Document MGV3kkxXMVMKMeJrvxZL08JEj

1 , IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS 2 ST. CLAIR COUNTY 3 FRANCES E. KEMNER, e t . al. ) ) 4 Plaintiffs, ) ) 5 VS. ) NO: 00-L-370 ) 6 MONSANTO COMPANY, ) ) 7 Defendant. ) 8 9 10 REPORT OF PROCEEDINGS 11 Before the HON. RICHARD ?. GOLDENHERSH 12 JURY TRIAL 13 May 30, 1985 14 15 A P P E A R A N C E S : 16 Mr. Rex Carr, Mr. Jerome Seigfreid 17 On Behalf of the Plaintiffs; 18 Mr. John Musgrave, Mr. Joseph Nassif, 19 Mr. Kenneth Heineman On Behalf of the Defendant. 20 21 22 23 t - 24 Debra II. Husielak, CSR, CM Official Court Reporter 1 1 2 3 WITNESSES CALLED ON BEHALF OF THE PLAINTIFF 4 1. JAMES WILSON (2-1102) 5 Cross E x a m i n a t i o n .......................... Clarification E x a m i n a t i o n ................. 6 Recross E x a m i n a t i o n . .............. .. . . Clarification E x a m i n a t i o n ................. 7 Recross E x a m i n a t i o n ........................ Clarification E x a m i n a t i o n ................. 3 Recross E x a m i n a t i o n ........................ 9 2. DR. GEORGE ROUSH (2-1102) 10 Cross E x a m i n a t i o n .......................... 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2 44 34 150 154 157 153 153  1 EXHIBITS 2 Page Page Identified Admitted 3 4 EXHIBITS SUBMITTED ON BEHALF OF THE PLAINTIFF: 5 Plaintiff's Exhibit Mo.: 1432 ( r e p o r t ) ................. 5 .......... 6 6 1433 (c h a r t ) ............ .. 1 4 7 .......... 7 EXHIBITS SUBMITTED ON BEHALF OF THE DEFENDANT': 8 Defendant's Exhibit No.: 906 ( n o t e s ) ................... 66 9 907 (letter) ..........71 10 11 12 13 14 15 16 17 18 19 20 21 ! 22 23 24 1 BE IT REMEMBERED, that on the 30th day of May, 1985,' 2 the same being one of the regular judicial days of said ' *i 3 court, the above-styled cause came on regularly for hearing 4 before the HONORABLE R I C HARD P. G O L D E N H E R S H , one of the 5 Judges at the St. C l a i r jCounty Building, 10 Public Square, ,in^ 6 the City of Belleville, County of St, Clair, State of 7 Illinois.' Whereupon the following proceedings were had: 3 COURT CONVENED: | 9 THE COURT: Good morning. Mr. Carr. 10 11 JAMBS WIT,SON 12 (being called as a witness on behalf of the Plaintiff, under 13 Section 2-1102, having been p r eviously sworn, continued to 14 testify as follows) '' 15 `RECROSS EXAMINATION 16 BY MR.' REX CARR 17 Q. Dr, Wilson, yes t e r d a y we were d i scussing the ,| 18 article Freeman and Shroy had sent to Science Magazine for i 19 publication dealing with a suggestion by Freem a n - S h r oy that 20 most of the TCDD in the soil at Times Beach Would have 21 disappeared in a short period of time, relatively speaking, 22 and that McConnell's article was in error when it discussed 23 the bio-availability, of TCDD in contami n a t e d soil, do you 24 recall that, sir? 2 1 A. Well, not exactly. I don't recall the 2 characterization of the S h r o y and Freeman findings that it 3 would disappear in a relatively short period of time. I 4 don't think that was the import of the article but I do 5 recall some discussion, yes. 6 Q. Well, you woul d n ' t consider that 90 percent of it 7 disappearing in a few months in, oh, less than ten years, 90 8 percent of the total TCDD had disappeared, you wouldn't 9 consider that a relatively short period of time? 10 MR. HUSGRAVE; Is the question in less than ten \ 11 years or relatively few months? 'l object to it as vague, 12 indefinite. 13 HR. CARR: I agree, it is conflicting. In less 14 than ten years, 90 percent having disappeared? 15 A. I don 11 consider that relatively fast, n o . 16 Q. - When you consider that i t 's accepted that a 17 half-life of TCDD in soil is ten years? 18 A. It's not so accepted. There is -- it's quite clear 19 that the disappear a n ce in the movement in the soil cannot be 20 described by a halfrlife process. 21 Q. It's clear from your Lillian and Queeny plant 22 experiences TCDD in the soil 16 years ago is still there? 23 A. Wo, sir, it's not the case. 24 Q. It's not the case? 3 1 A, There is no -- the T C D D that was found at the 2 Queeny plant is not associated with o i l r it's in oil and gunk 3 on the underside of an elevator, has nothing to do with soil. 4 Q. But the TGDD at the Kr u m m r i c h plant, it's in soil? 5 A. That's correct. 6 Q. And that was put in soil when, sir? i 7 A. To the best of my knowledge before 1980. 8 Q. W hich is fourteen years ago, better than fourteen 9 years ago and it's there, isn't it, sir? 10 A. Some remains, yes. 4 11 Q. Well, the point that I'm getting at in any event, 12 you stated yesterday that Science Magazine had refused to 13 publish this article written by Freeman and Shroy, you recall 14 that, sir? 15 A. I recall saying that they had not agreed to publish 16 it, yes. 17 Q. But you didn't know why they had refused to publish 18 it? 19 A. That was correct. 20 Q. Well, this morn i n g your attorneys delivered to me a 21 letter, a number of documents that at 9:15 this morning, one 22 of which was a comment by a person from Science on the 23 article, and have you read that, Dr. Wilson? 24 A. I have not read all of those materials, no. 4 'I 1 Q. When did you become aware of the fact, that Science 2 Magazine had given criticisms to Freeman and Shroy of their 3 comment on McConnell? 4 A. Well, I recall that they returned comments at the 5 time that I think they said they didn't have room to publish 6 the technical comment as they described it, `if that's what 7 you are referring to. I suppose shortly after the date that 8 they were received,, but I can't remember when that was? I 9 suppose it was last fall sometime. 10 Q. Doctor, I asked you yesterday whether or not you 11 knew why -they -- why they had refused to publish it and you 12 said just simply because they didn't have room? 13 A. No, sir, I said yesterday, I didn't .remember, I 14 believe. 15 Q. But today you do remember? 16 A. Well, I believe, t h a t 's the substance of at least 17 one of those responses in there, yes. 18 Q. I don't have a copy of this, so I'll just have to 19 have this one marked because it was delivered to me -- Dr.20 Wilson, handing you .Plaintiff *s Exhibit 1432 and turn to a 21 page that is numbered C22298, would you look at that please, 22 sir? That page there is a comment by some person from 23 Science who was given the r e s p onsibility of critiquing the 24 Freeman-Shroy comment on McConnell, is it not? 5 1 A. I believe that's the case, that's what it looks 2 like. 3 Q. And that person gives five deficiencies -- A MR. MUSGRAVE: I object to counsel -- I object to 5 counsel testifying, asking questions as to the contents of 6 the document until it's offered into evidence, Your Honor, it 7 hasn't been offered into evidence, I should say. 8 MR. CARR: Well, I'll offer it into evidence, no 9 problem. 10 THE COURTs Any objection? 11 MR. MUSGRAVE: Object to it as hearsay. 12 THE COURT: Objection is o v e r r u l e d . . Admitted into 13 evidence. ^ 14 Q. Dr. Wilson, the author from S c i e n c e r the writer 15 from Science says that the authors, and by that he means 15 Freeman and Shroy, in responding to the report by McConnell 17 e t . al. have failed to provide pursuasive evidence of 13 oversight in the original report based on several criteria, 19 does he not say that, sir? 20 A. That's v/hat it says, that's correct. 21 Q. And then he lists five places vihere they, on those 22 criteria v/here they failed to persuade, to give persuasive 23 evidence, do they not, sir? 24 A. At least five comments, yes. 6 i' 1 Q, Thank you. Doctor, with regard-to the Eglin data 2 and the article that was written by Freeman and Shroy, and 3 that was delivered to the American Institute of Chemical 4 Engineers, and Professor Jury's comments thereon, you recall 5 we had finished the day discussing that particular article? 6 A. I believe that's what we were doing, yes. 7 Q. Doctor, the -- could you give the exhibits that i ` 8 pulled out. 9 THE CLERK: They are over there. 10 Q. He has them. Fine. Referring to Exhibit 1415, if 11 you would,' that was the paper that was originally sent to the 12 American Institute of Chemical Engineers for p ublication and 13 the paper that was pr e s e n t e d to the society, to the national 14 meeting held in Phi l a d elphia? 15 A. That's my understanding, yes. 16 Q. Now, the equasions in that document are basically 17 on two pages that support the t heory or the model, are there 18 not, sir, that is on Pages 5 and 6? 19 A. `That's correct. 20 Q. And t h e article thereafter refers to actual 21 measurements at Eglin Air Force Base that we have discussed 22 here e a r l i e r , and the model, that is the model based upon 23 those equasions, or that's represented by those equasions and 24 those conclusions, isn't that correct, sir? 7 1 A. Basically that's correct, yes. 2 Q. And those conclusions that are reached are based 3 upon the equasions that are contained on page, Pages 5 and 6, 4 are they not, sir? 5 A. Well, no, not all of them, no, in fact -- 6 Q, I didn't ask you about all of them. 7 A. Well, then the answer is -- S Q. Referring to the model and comparing the model to 9 the actual soil measurements is based uplon the equasions on 10 Pages 5 and 6, isn't that correct, sir? 11 A, Strictly speaking, n o , it's not c o r r e c t . 12 Q. Well, refer to Page 9, if you would, sir, so we can 13 get a specific reference to it, exactly when they were doing 14 -- the very first sentence on that says, using the transport 15 model previously presented in this paper, a simulation of the 16 TCDQ movement was done, do you see that, sir? 17 A. Yes. 18 Q When they are talking about the transport model 19 previously presented, they are referring to the model based 20 upon the equasions on Pages 5 and 6, are they not, sir? 21 A. They are in part. 22 Q. Well, t h a t 's the only model that was previously 23 presented in the paper, isn't that correct, sir, is there 24 some other model that I've missed that's not on Pages 5 and 8 1 6, is it buried somewhere in that document that I haven't 2 seen it? It is on 5 and 6, is it not, sir, the transport 3 model previously presented in this paper is that which was 4 presented on Pages 5 and 6? 5 A. That's correct. 6 Q. And, tney say using that model, a simulation of the 7 TCDD movement was done, do they not, sir? 8 A. They do. 9 Q. And they say using that model, the third paragraph 10 on that page, the good agreement b e t ween the model and the 11 data suggests that all the TCDD applied by Dr. Young in 1972 12 is still contained in the biodegradation plots, do they not? 13 A. They do. 14 Q. And they say, the last sentence on the p a r agraph 15 two referring the model, to the actual m e asurements made, the 15 model fits the data well, do they not say that, sir. Page 9 17 second paragraph, last sentence? 13 A. Yes, they say that. 19 Q. Now, again, the model they are talking about goes, 20 are the equations on 5 and 5, aren't they, sir? 21 A. 22 Q. Didn't you just say that, Dr. Wilson, ten seconds 23 ago? 24 A. In fact -- 9 1 Q. Doctor, didn't you just say that ten seconds ago, 2 that model that they are referring to is the model t h a t 's 3 represented by the equasions on Pages 5 and 6? 4 A. T h a t 's -what it says, yes. 5 Q. Yes. And, this model they say fits the data well, 6 do they not, sir? 7 A. T h a t 's what it says. 8 Q. Now, Doctor, in the pre - p u b l i c a ti o n draft, they 9 changed the equasions on Page 5, did they not, sir? 10 A. Yes, they did. 11 Q. But they d i d n 't change one single word of the 12 conclusions, did they, sir? 13 A. T h a t 's correct. 14 Q. Doctor, and Dr. Jury had said that the equasions 15 that they v/ere using in the original document were completely 16 ridiculous, that it's off by a factor of a thousand? 17 MR. MUSGRAVEs Object to counsel's 18 characterization. 19 MR. CARR; I do agree. I d i d n 't say ridiculous. 20 MR. MUSGRAVE; May it be stricken, c o u n s e l 's 21 misleading comment? 22 TftE COURT: It will be stricken. 23 Q. He^ says that the v o l a tilization predictions made by 24 your model are not ph y s i c a l l y possible, given the parameter 10 1 values-of dioxin, does he hot, sir? 2 A. On which page does he say that? 3 _Q. Oh, -the third page of the letter dated September 4 25th, 1984, on P l a i n t i f f s Exhibit 1418? 5- A. Yes, it does say that, you are correct. 6 Q. Nov/, also goes on the bo t t o m of the page he says, 7, "On the other hand your model pre d i c t e d 31.66 p e r cent of the 8 initial application of TCDD would be volatilized during the 9 first 30 days." Then makes another comment about estimated 10 applications, and then he says, "This appears to be a 11 physical i m p o s s i b i l i t y ." Doesn't he, sir? 12 A. It does say that, yes. 13 Q. Now, Doctor -- 14 A. Approximately. 15 Q. The equasions were changed in the subsequent 16 document but not the conclusions, the c o n c lusions that were 17 reached in the original document were based upon the 18 equasions that were changed. The equasions were changed 1/ 19 because that was a phys i c a l i m possibility for that to occur 20 as pointed, out by Professor Jury, but the conclusions didn't 21 change. How can that be, Doctor, how can you have a model 22 that's based upon an equasion and you say in commenting on 23 that model the data fit that model well, you changed the * i * 24- model, it goes, from a Model T to a. Model A, or it goes from 11 1 one kind of a bridge to another kind of bridge, goes from one 2 vehicle to another, the equasions change, the model changes, 3 but now, the data which he said in 1415, the measurements fit 4 the model set out in 1415, he changed the model. He says now 5 6 MR. MUSGRAVE: I object to this continuing speech. 7 Q. The data same data -- S MR. MUSGRAVE: He asked the man a question, he 9 continues on giving his, counsel's own version. He's asked 10 the man a question that he's never let hi m answer. I object 11 to this as no more than a speech. 12 MR. CARR: I haven't finished the question, yet, 13 Your Honor. 14 THE COURT: Finish the question. Objection is 15 o v e r r u l e d . 16 Q. (by Mr. Carr) The data remains the same. The 17 measurements of the soil remains the same, exactly the same, 13 but the model changes. But now he says the same thing, the 19 model, that is, the new model fits the data well. That seems 20 to me, sir, and I'll ask you to agree that that is an 21 impossibility, is it not, sir? 22 MR. MUSGRAVE: I object. It's two questions. He 23 ought to be able to answer both questions. 24 MR. CARR: He can certainly answer all the 12 1 questions I asked him, counsel. 2 THE COURT: Objection is overruled. 3 A. Certainly not impossible, and the answer to the 4 question is quite s i m p l e . What those equasions describe is 5 not the model that is used to do the calculation because that 6' is something that is described in computer code, those 7 equasions describe the theory on which the model is based. 3 Dr. Freeman developed a computer technique for making 9 calculations that were deprived on this theory, and by the way 10 was incorrectly described in this original paper in a couple 11 of key points as Dr. Jury pointed out. In changing the 12 description of the t heory to represent in following Dr. Jury 13 and his colleagues suggestions, it gives a better description 14 of that theory as Dr. Jury said, but it d o e s n 't change the 15 computer model on which the calculations are based, doesn't IS change it at all. In fact, Doctor, the last half of Dr. 17 J u r y 's comments are based on an assumption about one of the 18 constituents in Dr. Freeman's theory, namely that this K of 19 Kenoga that h e 's talking about was part of the theory, the K 20 that was in Dr. Freeman's t h eory was there as an adjustable 21 parameter, and the whole second half, the whole last page and 22 a half of Dr. Jury's comments are based on incorrect 23 assumptions. T hey are not relevant. 24 Q. It is not relevant when he says that the model, he 13 1 says "Your model predicted that 31 percent would be gone 2 during the first 30 d a y s / 1 does he not say that, sir? 3 A. That's correct. 4 Q. And the model he's talking about is the model on 5 Pages 5 and 6, is he not? 6 A. No, sir, he's not. 7 Q. What other model again is there, Doctor, I've asked 8 you this several times, only one model in this document, 9 isn't there, sir? 10 A. What Dr. Jury is talking about -- Q. Excuse me, is there not only one model in the 12 document? 13 MR. M U S G R A V E : I object, he's asked two questions. 14 A . N o , sir. 15 MR. M U S G R A V E i The witness.is entitled to answer 16 both of t hem since he posed them. I don't think the witness 17 is required to answer them in any particular order unless -- 18 I request the witness be permitted to answer the question. 19 A. Dr. J ury -- 20 THE COURT: Objection is overruled. It was not a 21 multiple question. 22 A. Dr. Jury assumed that the equasions mean a certain 23 model by his comments in this letter, and his assumption is 24 incorrect, that's one model that is not described in the 14 1 paper but described in his letter. The model he's talking 2 about leads to those results which are incorrect, but that's 3 not the model that Dr. Freeman used to do his calculations. 4 N o w , the theoretical description of Dr. Freeman's model in 5 this original draft, the Plaintiff's Exhibit 1415, is not as 6 good as the one that is given in the later document called 7 pre-publication draft. It was improved by the taking into 8 account of Dr. Jury's comments on the original, but the basic 9 model is the same. 10 Q. If I understand you correctly, F r e e m a n - S h r oy 11 described a particular model in this document on Pages 5 and 12 6, in both documents, although different models, correct, 13 sir, different equasions? 14 A. T hey described a theoretical j u stification for the 15 actual computer model in which, by which they did their 16 c a l c u l a t i o n s . 17 Q. They don't give then -- when they say that the 18 model uses the following material balance equasions, they 19 don't really mean that then? 20 A. They do not give the detailed model, that is 21 c o r r e c t . 22 Q. Why do they say in their document if they do not 23 mean to mislead, w h y do they say the model uses the following 24 material balance equasions? 15 1 A. Because it's clear to anyone skilled in the art 2 that this is a model based upon a computer simulation and 3 they realize that those who will be reading this paper will 4 be able to d rawr will be able to conclude the kind of 5 computer model that is derived from it, and they will assume 6 that kind of computer model is used. 7 Q. Doctor, the impression that Freeman and Shroy give 8 is that they have an equasion that they call the model uses 9 those equasions, Jury says it's impossible for that to work, f 10 it's by a factor of a thousand, then they come up and put 11 another equasion on paper, but now you tell us that's really t 12 not what they put in the computer at all, they have got a 13 different theory, a different model that they put in the 14 computer? 15 A. No, sir, they have the same model in the computer, 16 they have the same basic theory. 17 Q. Let's stop right there, they have got the same 18 model in the computer, but yet the model changed from one 19 document to another, did it not, sir? 20 A. No, sir, it did not, the equasions used to describe 21 the theoretical basis for it. 22 Q. Doctor, how else do you describe a model except by 23 an equasion? 24 A. Well, this model -- 16 1 Q. There is no other way, is there Dr. Wilson, to 2 describe a model other than by equasions? 3 A. Yes, sir, there is. 4 MR. HUS GRAVE: Object, he won't let him answer the 5 first question, cut hi m off before he could answer it, I 6 request the witness be permitted to answer the first 7 question. 8 THE COURT: Overruled. 9 A. This model is described in terms of a complex 10 computer code, not a series of equasions but a series of 11 steps describing how the computer will go through 12 c a l c u l a t i o n s . 13 Q. And that model is not put in the paper, is it, sir? 14 A. That model is not, that's correct. 15 Q. And no one knows whether or not it's a good model 16 or poor model, do they, sir? The only way they have to judge 17 that is by the equasions put in this paper, isn't that 18 correct? 19 A. Wo, sir, that's not correct. 20 0. Is it anywhere in this paper, computer code, that 21 model in either of those documents? 22 A. Wo, sir, they can judge it by the fit of the 23 results with the actual data that are observed in the field. 24 That's the only way to judge the quality of the model, is how 17 1 well it fits the observed data. 2 Q. If you massage the data to fit the model then it 3 would appear your model is correct, w ouldn't i t f sir, if you 4 change the data in the field? 5 A. That would be correct. No, not necessarily. In 6 this case if you massage the data it would make it appear the 7 model does not fit, because if you don't massage the data as 3 we have not, the model does fit. 9 Q. Nell, I think we have demonst r a t e d and I'll 10 re-demonstrate it in a moment that you have massaged the 11 data, but nonetheless, the point that those questions pointed 12 to here today, Dr. Wilson, is that Freeman and Shr o y say they 13 construct a model based upon certain equasions, and they 14 reach certain conclusions based upon that model so 15 constructed. They change the model, they change the 16 equasions but they don't change the conclusions, and you say 17 that is perfectly proper and appropriate? 18 A. They did not change the model, they changed the 19 description and, yes, that's per f e c t l y proper and 20 a p p r o p r i a t e . / 21 Q,,* And, Doctor, as we pointed out yesterday, the new 22 model and the new equasions were never given to Dr. Shroy, 23 Dr. Jury, Dr. Freeman and -- I'm sorry, Dr. Palmer and Dr. 24 Farmer and Dr. Spencer so far as you know by any document IS i submitted to them, isn't that correct, sir? 2 MR. MUSGRAVE; Object to the question, mis-states 3 the witness' testify. They did not change the model. 4 Counsel is again attempting to mislead the jury. Object to 5 the question. It's improper representation of the witness' 6 testimony, !\ 7 THE COURT; Objection is overruled.1 8 A. I don't know whether there is any correspondence or 9, n o t . 10 Q. You do know because y ou've seen all that's been 11 produced, Dr. Wilson, you've seen all that's in'existence, 12 have you ..not, sir? 13 . A. J No, sir, I haven't seen all that's in existence. 14 Q. What is there that's in'existence you that, you 15 haven't seen? 16 A. Several boxes sitting'over there in the corner of 17 material that's been produced, that I have not seen all of, 18 lots that I have not, seen. ,- 19 Q. ,, Dealing with the c o r r espondence you are technically 20 correct, there is a lot of material you haven't seen. My 21 question for your information was directed at correspondence 22 betV7een Freeman, Shroy and Jury. Again, another technically 23 correct response. You are right, sir. My question again to 24 be more precise, Dr. Wilson, to meet your requirements, you 19 f* 1 have seen all the written communications that have been had 2 between Jury, Freemanr and Shroy, have you not? *I 3 A. X don't know whether I have not or. I have only 4 seen what has been described here in the courtroom. 5 Q. And if counsel has sworn under oath t h a t 1s all the 6 material that exists then you have seen' it all, haven.11 you, i7 sir, unless they are lying? 8 A. If counsel has sworn there is no other 9 correspondence other than what has been admitted, then X have 10 seen it all, that's correct. 11 Q. Then so far_as you know from the written documents 12 we have, Dr. Jury's comments about the model and with the 13 equasions, and about those draft publications, remained the 14 same as he stated in September 25th, 1984, isn't that 15 correct, sir? 16 A. I have no idea what his state of mind is. 17 Q. My q u e s t i o n so far as you know, Dr. Wilson, based 18 upon the documents that we have .-- 19 A. I know no t hing about it, sir, I have no idea. 20 Q. My question is b a sed'upon -- you do know something, 21 you have seen the letters, you have seen the document, you do 22 know something about it, and as far as you know, he has not 23 expressed a different opinion so far as you are aware, your 24 knowledge, isn't that correct, sir? 20 1 HR. MUSGRAVE: Based upon the documents, Hr. Carr? 2 Q. That is exactly correct. 3 A. 3ased upon the documents I've seen, I know, I have 4 seen him express no other opinion based on those documents. 5 Q. Now, Doctor, referring to the data that you, that .a Shroy says fits the model, you suggested that there might be 7 something wrong with some of those samples, when they break 0 those core down, they take out the sample that's zero to one 9 inch and put it in a separate container, box, or bag, or jar, 10 or something? 11 A. I believe that's the case. 12 Q. And they take one to two inches and put it in a 13 separate jar or bag or container? 14 A. I believe so. 15 Q. And take out the one eight to nine and put it in a 16 separate container? 17 A. Yes. IS Q. Take out seven to eight, so there is no, after they 19 get it out of that device that they use to core the soil, 20 they separate, their own separate little compartments, don't 21 they? 22 A. Yes. 23 Q. And if they w anted to spike six to seven, for 24 instance, they would take part of that soil from six to 21 1 seven, put it in a different container and spike that 2 separate sample, w o u l d n 't they, sir? 3 A. Typicall y they would, yes. 4 Q. Is there any o t h e ^ w a y of doing it? You wouldn't 5 spike the whole section, would you, sir, you'd take out that S part that you want to spike, spike it, segregate it from the 7 remaining samples, wouldn't you, sir? 8 A. It would depend on how much mat e r i a l were 9 available. They might spike it all. 10 Q. Well, if they do, there is not any left then of 11 seven to eight, they ar$ going to treat all of seven to eight 12 as the spiked sample, they won't report one seven to eight 13 without spike and another seven to eight v/ith spike, will 14 they, sir? 15 A. That would be correct, if they did spike the whole j 16 s a m p l e . 17 Q. So when you put a spike in the sample of soil that IS is taken from seven to eight inches, it's not going to get 19 into the sample taken from eight to nine inches, is it, sir? 20 A. It should not, that's correct. 21 Q. And so far as you know, you've never been informed 22 that they mixed up those samples, have you, sir? 23 A. Mo, sir. 24 Q. So far as you know they followed standard 22 1 laboratory procedure and kept the spiked samples separate 2 from the unspiked samples, did they not, sir? 3 A, As far as I know they did, yes. A Q. There is no way, then, for the contamination, for 5 the spiked samples to get into the unspiked sample, is there, 6 sir? 7 A. If I understand that question correctly, you are 8 asking me was there a way for two separate' samples to become 9 mixed -- 10 Q. No, I asked you there is no way if you spike one 11 part of the dirt from seven to eight inches, referring to 12 Exhibit 1413 and 1414, they designate, do they not, by 13 various letters which samples they have spiked and which 14 sample they haven't spiked? 15 A. They are supposed to do this, yes. 16 Q. They do do it, don't they, sir? You see that, 17 don't you? 18 A. There are cases like that, yes. 19 Q. And for instance on Exhibit 1413 sample four, three 20 to four inches, they have one sample three to four inches 21 with no letter next to it, and it's got 320 parts per trillon 22 rather of TCDD, you see that, don't you, sir? 23 A. Yes. 24 0. And, that would be this sample right here on 23 1 exhibit 1416, wouldn't it, sir? 2 A. Yes. 3 Q. Now, right below that there is another sample three 4 to four inches, "L", that's got an "L", that "L" stands for 5 the spiked, doesn't it, sir? 6 A. Yes,that's what it says, that's the -- 7 Q. That has a fall of 1,000, I'm sorry, 100, and -- 8 A. You were right, one thousand. 9 Q. 1,170 parts per trillon of T C D D , correct? 10 A. Parts per billion in this case, yes. 11 Q. And, of course, that's not in this graph, is it, 12 sir, that's a spiked sample? 13 A. That's correct. 14 Q. And they don't, and Shroy and Freeman in their 15 papers, they don't d e s c r i b e those spiked samples, do they, 16 they don't treat those as actual values, do they, sir? 17 A. No, they don't, except in one case. 18 Q. - Nov/, the sample, if you look at P l a i ntiff's Exhibit 19 1314, the sample eight to nine inches, if you would, sir, for 20 4N, you see that, sir? 21 A. I do. 22 Q. It has a value of 100 -- 1,200 parts per trillon of 23 TCDD, does it not, sir? ` - ' 24 A. Yes, it does, that's represented on that board, 24 1 isn't i t , sir, right here? 2 A. Yes, I believe it is. 3 Q. Now, there is no spike adjacent to that, is there, 4 sir? 5 A. Not marked as a spike, that's correct. 6 Q. And there is no spike on any sample above or below 7 it, is it, sir? 8 A. Yes, as a matter of fact, one section below that is 9 marked as a spike. I'm sorry, on your table or on this 10 table? 11 Q. On Exhibit 1413, that's zero to one inches, sir? 12 A. Looks like a duplicate, and below that is nine to 13 ten inches marked "L" for low spike and then below that there 14 are two which are not. 15 Q. Nine to ten inches, which is a low spike is only 16 820 in any event, is it not? 17 A. > That's what it says, yes. 18 Q. N o w , .D o c t o r , there is no indication of any sort 19 that this eight to nine inches was mixed up or became 20 contaminated by some sample next to it, is there, sir? 21 A. No case of'that, no, that's correct. 22 Q. And there is no physical way, is there, sir, to 23 confuse that? 24 A. To confuse one sample from another? ,Yes, it's 25 X qu ite poss ible. 2 Q. And, Doctor, how could that be? 3 A. Well, this chart lists what, three, six, nine, 4 twelve, fifteen, eighteen or nineteen different samples, they 5 are all in identical bottles, or jars, or bags, or boxes, 6 whatever they are in, they all look p r e t t y m u c h the same -- 7 Q. Excuse me, stop one moment. 8 MR. MUSGRAVE: May he finish his answer, Your 9 Honor? 10 Q. I would like to interrupt him at that point. 11 MR. M S GRAVEs Just a second, Mr. Carr, I would 12 like to request that the witness be able to finish the 13 ans'wer, the question that Mr. Carr has asked, there was a 14 question asked, how can that be and then the -- 15 Q. He can finish his answer. I want to c l a rify one 16 point before he goes on. 17 THE COURT: Mr. Carr, you may so clarify. 18 Q. Thank you. At that point of p u t ting in separate 19 bottles, they'label those bottles, d o n 't they, sir? 20 A. I believe they do, yes. 21 Q. Proceed on then. 22 A. Even though they are labeled it is entirely 23 possible with all of those sitting in front of one to make a 24 mistake, to mistak e n l y treat one as it should not h ave been 26 1 treated or to mix them up, and unfortunately it happens from 2 time to 'time. 3 Q. Doctor, you have no indication from anybody at 4 Dayton that a mix-up like that occurred, do you? 5 A. There is no evidence of that, no. 6 Q. When they take the sample eight to nine, for 7 instance, if you'll turn to Exhibit 1413 again, they have 8 sample eight to nine "L", don't they, sir, on the second page 9 of that Exhibit 4N? 10 A. Second page of 1413? 11 Q. Second page of 1413. You are not looking at the 12 second page. You've got a different -- you've got a 13 different -- What's the notebook page number? I rm sorry, 14 you've got the full document, it would be 2637039? 15 A. This one, all right. There is an eight to nine? 16 A. Low spike. 17 Q, Sample there, isn't there, sir? 18 A. That's correct, yes. 19 Q. It's got an "L" behind it, hasn't it, sir? 20 A. That's correct. 21 Q. And they in fact spiked it, did they not, sir? 22 A. That's what it says. 23 Q. How much did they put in it? 24 A. Says they put in 922 parts per trillon. 27 1 Q. All right. And, how much was detected in the 2 unspiked sample, sir? 3 A. Oh, on that one says \t was not detected; 4 Q. Well, on the first page, the 4N sample on the first 5 page, eight to nine? 6 A. On that one it says 1,2 parts per billion, 1200 7 PPb. 8 Q. Just suppose' hypothetically there was a mix-up, 9 added 992 but t h e y ,detected 1200, didn't they, sir? 10 A, That's possible. 11 0. And you indicated yesterday that one way of 12 determining what was really in the sample is by subtracting 13 the amount that was detected, didn't you, sir, subtracting 14 the amount that was added by a spike? 15 A. I said that's something that could be done in some 16 c i r c u m s t a n c e s , y e s . 17 Q. You justified one of those entries as the 310 entry 18 on one of those exhibits as perhaps that's the way it was 19 arrived, did you not, sir? \ 20 ,A. I did indeed. 21 Q. , Nov/, if you subtract 99i2 from the 1200, you would 22 end up with 208, wouldn't you, si-r?. 23 A. Something like that, yes. 24 Q. And that's a value that would be reported here 28 1 rather than the 1200 value, in fact the spike had been given 2 to the wrong sample, correct, sir? 3 A. If -- 4 Q . If you put in 922 and you get a value of 1200 or 5 value of 2440? 6 A. If you knew how much you put in. 7 Q. Well, they know how much they put in, they measure 3 how m uch they put in to be precise because they want to 9 measure how much they get back, don't they, sir? 10 A. In each case they do, but they do not consistently 11 add a particular amount, there are three different amounts on 12 this one page. 13 Q. Of course, but they only added one amount to sample 14 4N, eight to eight inches, didn't they? 15 A. As a matter of fact, c o rresponding to the records 16 doesn't say they added any to it. 17 Q. If you look at the page 2637039 it does say, we 13 just referred to -- 19 A. I'm sorry -- 20 Q. Says 922 ppt added? 21 A. That's to this sample analyzed here. 22 Q. Eight to nine "L"? 23 A. The one we were talking about says nothing. 24 Q. I'm suggesting that perhaps there was a m ix-up as 29 1 you are saying there was, sir. Would you direct your 2 attention -- .3 MR. MUSGRAVE: This is a hypothetical then, Mr. 4 Carr? 5' 'Q. Direct your attention please to that, sir. 6 MR. M U S G R A V E : We -- oh. 7 Q. If there was'a mix-up, they added 992 parts to it 8 and measured it and got 1200, and you v/ould subtract the 992 9 from the 1200, w o u l d n 't you, sir, if there had been a mix-up? 10 A. If I'd known that's how much was added I would, but suppose it v/as 1.2 parts per billion. 12 Q. W here does it say they added 1.2 parts per billion? 13 A. Doesn't say they added any. 14 Q. Does say added- to the sample eight to nine "L" 922 15 parts per trillon, doesn't it, sir? 16 A. Says they added to this one 922, but to the one 17 referred to in this earlier analysis doesn't say they added 18 any, so there is no way to know whether they did or not. 19 Q. Please direct your attention to the thrust of my 20 question, hypothesizing that what you said was correct, 21 somehow or other they mixed up those samples, when they are 22 reading the 1200 sample, they=are really not reading unspiked 23' sample but they are reading a spiked sample and the only 24 spiked sample we have of eight to nine that's listed here, 30 1 sir, is eight to nine "L" where they added 922 parts per 2 trillon, isn't that correct, sir? 3 A. The only one that is labeled as the spike is that 4 one, t h a t 's correct, 5 Q. If a mix-up had occurred and they in fact, they are 6 reporting on the spiked sample as you suggested might have 7 occurred, didn't you suggest that, Doctor? 3 A, No, sir, they could not have been reported, 9 Q. Didn't you suggest that, sir, they might have mixed 10 up the samples? 11 A, No, sir. 12 Q. If they didn't mix them up, then we are okay, this 13 is a 1200 sample that was unspiked at that level, correct, 14 sir? 15 A. No, sir. 16 Q. Does it read spiked, sir? 17 A. No, sir, 18 Q. All right. Then it was unspiked, isn't it? 19 A. Certainly believed to be, that's correct. 20 Q. That's what they believed and that's what they 21 reported? 22 A. That's exactly right. 23 Q. And on 1414 for the same sample on the low 24 resolution, they detected 2,440 parts per trillon, didn't 31 1: they, sir? 2 A. T hey did indeed. 3 Q. Again unspiked? 4 A. That's what they believed, yes, '` 5 Q. Over here on samples 5N they read 1120 and 692 on 6 , unspiked samples at the depth of 20 to J21 i n c h e s , didn't 7 they? 8 A o That's correct. 9 Q. And over on sample 7N read four to ten at a level ' 1 10' of three to four inches, didn't they, sir? 11 A. I believe that's what's there, yes. 12 Q. The two above it are not detected, isn't it? 13, A,. That's correct. 14 Q. They got a 430 at zero to one inch, no detected one 15 to two, two to three and, 410 three to four, isn't that 16 correct? 17 a ; That's correct. *, A 18 Q. Certainl y isn't consistent, all the sudden you've . 1 9 ' got nothing for two inches and then you've got 4i0 for an 20 inch. Now, that's really kind of odd, isn't it? 21 A. Yes, sir, that's why I believe he didn't use that 22- core at all for that reason, 23 Q. Didn't' use a lot of d a t a L, did he, used the data 24' that fit his model,, d i d n 't he, sir? 32 1 A. Mo, sir. 2 Q. Didn't use? 3 A. Yes, of course he did, all fits his model. 4 Q. It all fits his model? Does the 2440 fit his 5 model? 6 A. I believe it does. 7 Q. How does it fit 1his model? 8 A. That point his obviously inconsistent with the rest 9 of the data. 10 Q. Excuse me, you say, now you say you throw it out? 11 A. Of course. 12 Q. Then it doesn't fit his model if you throw it out, 13 does it? 14 A. Sir, the data -- 15 Q. Doesn't fit his model if you throw it out, does it, 16 sir? 17 A. If you throw it out doesn't fit his model, I think 18 it still fits his model even with it included. 19 Q. Did he include it? 2 A. In what? 21 Q. The 2440, 1200, 1120 and S92? 22 A. I believe we established he did not. 23 Q. Then he disregarded those values, did he not? 24 A. I believe that he did. 33 1 Q. They did not fit his model, did they? 2 A. I think so, they do, yes. 3 Q. How do they fit his model? 4 A. Quite'simple. You look at all of those data even 5 with those points, the data clearly fit the model. 6 Q. Hov/ does it fit his model? We drew a curve and we 7 have those exhibits in evidence, you saw it, there isn't a 8 mark way up at the top of the reference range, is there, sir? 9 A. V e r y easy how they fit the model -- 10 Q. Is there a mark up at the top .of the -- 11 A. Please allow me to answer the question. 12 Q. No, my question, is there a mark up at the top of 13 that curve for 2440 or 1200? 14 A. In the d i a gram you showed, there is. 15 Q. There is? 16 A. Yes, I saw it on the d i a g r a m you showed me. 17 Q. You saw it on the d i a gram I showed you, not what he 18 did? 19 A. T h a t 's correct. 20 O. I'm talking about his model, sir? 21 A. So? 22 Q. Is the 2440 the 1200, the 1120 and the 692 on the 23 curves, on the graphs that he drew and prep a r e d and put in 24 for publication, sir? 34 1 A . No. 2 Q. Then he discarded those because they didn't at this 3 time and it's a curve that goes up and down like that, 4 doesn't go way back up, does it, sir? 5 A. No, it does not, that's correct. 6 Q. And so, therefore, those data do not fit his model i ;7 do they, sir? 8 A. No, sir, I don't agree with that, they do fit his 9 model. 10 Q. Why didn't he use them? 11 A. You'll have to ask him. I believe he didn't use 12 t h e m because he believed them to be cont a m i n a t e d clearly 13 outside the range at points on each side, rejected because 14 they didn't fit the rest of the data, whether they fit the 15 model is irrelevant, they are inconsistent w ith the rest of 16 the -- 17 Q. He drew a simulated curve, went like this, down 18 like that, over like that, isn't that what he drew? 19 A. Had computer do it, yes, 20 Q. That was w h a t the model says should happen to TCDD 21 doesn't it, sir? 22 A, That's correct. 23 Q. Did the model go like this and up like that? 24 A . N o . 35 1 Q, Then this data up like this doesn't fit this model 2 down here? 3 A. That one data point does not, t h a t 's correct. 4 Q. That's what I'm asking you? 5 A. You keep asking me about the data, the data are 6 what are on that entire chart, those data as the whole fit 7 the model 8 Q. 2440 and 1200, show me on that curve V7here that 9 fits in? 10 A. Those two points do not, t h a t 's correct. 11 Q. Those two points are part of the data aren't they, 12 sir? 13 A. Yes, sir. 14 Q. That data' doesn't fit the curve? 15 A. Those two points do not but the data fits, the data 16 as a hole fit the model. 17 Q. Is this data part of the whole, sir? 18 A. Y e s . 19 Q. Can you use that data and say that it fits on this 20 curve? 21 A. If you use those data and put those two on the 22 points as v/ell as the others, any scientist would look at 23 them and come to the same conclusion that I do, that the data 24 as the whole fit the model. 36 1 . Q. That isn't what I asked you, I asked you whether or ' 2 not those data, the 2440, the 1200, the 1120 and the 692 fit 3 the model, and you suggest -- 4 A. They don't fit that curve* ' . 5 Q. You suggest they fit that curve, the curve is the 6 model? \ 1 A. No, sir, that curve is a representation of the i 8 model, they don't fit that curve. 9 Q. If a scientist is going to ignore some plain f 10 evidence, plain evidence here where there is no detected at IX certain levels, plain evidence here no detected at certain 12 levels, no detected below and above it, and no d e tected from 13 seven to eight all the wa y down to 20 to 21 inches, the 14 scientist, if he's going to be honest with his colleagues, is 15 going to say, describe those problems, isn't he, sir, going 16 to let them know the full truth, isn't he, sir? 17 A. If asked, he'll do that, sure. 18, Q. Doctor, in point of fact, you know t h a t the 19 measurements that they did at Dayton are very much bollixed 20 up, how is it possible, sir, that you can have TCDD going 21 through soil and for two inches .that it not be there, how can 22 you have TCDD go through soil and for four inches or s'ix 23 inches not be there, it is there, isn't it, sir? 24 A. In the soil? 37 1 Q. Yes 2 A. On the site, no, I don't believe it is. 3 Q. You don't think there is TCDD in between the level 4 from zero to one inches and three to four inches? 5 A. Clearly indicated there, of course, it is. 6 Q. Wo, it says not detected on this little 7 resolution. 8 A. The points -- 9 Q. D o e s n 1t i t , sir? 10 A. It does, 11 Q. Then it says not detected here from five to six 12 inches ail the way down, except to eight to nine inches says 13 that on the low resolution? 14 A. Yes. 15 Q. And it says six to seven inches, says it's not 16 there. Well, the m ethod failed there, but all those levels 17 says it's not there, d o e s n 't it? 18 A. That's correct. 19 Q. Nov/, we know that i t 's there, don't we, sir? 20 A. We know it's where? No, we don't in all cases, 21 Q. You don't know that there is TCDD in this, if this 22 model has any meaning at all, sir, it means that it's going 23 up and going down at the same rate, that's exactly what Shroy 24 says, what his curve demonstrates? 38 1 A. That's correct. 2 Q. So that we know that there has to be higher levels 3 than 410 in between those two points, we know that, don't we, 4 sir? 5 A. No, sir, we don't know that. 6 Q. We don't know that? 7 A . No. 8 Q. Or some levels at least rather than not detected? 9 A. Perfectly good measurements in the righthand column 10 would show how much is there. 11 Q. Which he didn't use, did he? 12 A. No, sir. 13 Q. Didn't use because they didn't fit the model? 14 A. As a matter of fact, they do fit the model. 15 Q. As a matter of fact -- They fit the model when 16 you've got 92 at the surface and 28 at the other level four , 17 to five inches away, that fits the model? 18 A. Generally, yes. 19 Q. Nearly four times greater? 20 A. Generally does fit it, yes. 21 Q. What happened here in point of fact isn't it a 22 fact, Dr. Wilson, that he got those figures, those 23 measurements, the low resolution measurements from Dayton and 24 he looked at his model, at that time he hadn't talked to Dr. 39 t 1 Jury, didn't know his equasions were all fouled up at that 2 time, he looked at those .data that he got from Dayton, he 3 said, boy, that sure doesn't fit, I've got to do something 4 about that 2440, that doesn't fit, and those items here don't 5 fit, and those don't fit. I've got nothing on this low ,6 resolution that fits my model. I'm going to ask Da y t o n to do 7 it over again. He asks Dayton to do it over again. 8 MR. MUSGRAVE; Object to this as a speech, this is 9 not a question. 10 Q. This is a question. 11 THE COURT: Overruled. It's a question. 12 Q. And, Dayton does it over again and D a y t o n still \- 13 .gives figures that are inconsistent. You cannot explain this 14 692, 20 `to 21 inches away, you see if it had been 15 contaminated the first time, they studied the first time, 16 surely Shroy would have told Hileman, say, eight to nine 17 level is way off, that 2440 doesn't fit my model? 13 ` MR. MUSGRAVE:- M a y this' be a c o ntinuing objection? 19 THE COURT: It is noted as continuing. You may -- 20 the objection is in the same question, you don't have to make .21 it as a continuing. 22 MR. MUSGRAVE; I want it to be a c o ntinuing v 23 objection because he's continuing on with this speech. 24 THE COURT: It's not a speech, it's a question. 40 1 I've overruled it. You are in the same question, there is no 2 need for a continuing objection. ' You should know that. Go 3 ahead, M r . Carr. 4 Q. (by Mr. Carr) The 1120 doesn't fit the model, must 5 be contaminated, make sure when you do them over again that 6 they are not contaminated, wouldn't he have said something 7 like that to him? 8 A. No. 9 Q. . He would not? 10 A. None of that is a fact. 1*1 Q. If he thought that this was a false value, 2440, 12 that it was a contaminated value, surely he would have 13 mentioned that to Hileman so he could avoid the contamination 14 the next time around, surely he would have said that, 15 wouldn't he, sir? 16 A. In fact, there is evidence in here that they did ; 17 attempt to analyses.it. 18 Q. My question is surely he would have told -- , would 19 you listen to my question, surely he w o u l d have p a s s e d onto 20 Hileman his thoughts that this was a false reading, that it 21 was a contaminated reading that he's got, surely he would 22 have said that? 23 A, Not necessarily, no. 24 Q. He would let t h e m go on and contaminate it again, 41 1 so what he did then, what you are suggesting he 'did, he took 2 those samples again, worked through the spikes again, 3 contaminated by coincidence the very same level that you had 4 the high readings on twso times, is that what he did again, 5 sir? 6 A, No, sir, he did not. What he did was he took-the 7 extracted material from those same analyses and went through 8 the last part of the procedure again. Any that had been 9. contaminated in the first w o r k-up of the soil samples and 10 re-analyzed in the last sampling would still be 11 contaminated. I believe that's why he went back and tried to 12 analyse that same sample again and clearly failed because .- i 13 with his-spike at 900 and some parts per t r i llon was analyzed 14 at 80 parts per trillon he did not include that data because 15 obviously there was something wrong with that a n a l y s i s . 16 Q. That's the point I'm asking making^ there is 17 obviously something wrong with all of the analysis? 18 A. No, sir, that's not the case. 19 Q. Well, Doctor, what he did, he had a model that 20 didn't fit the equasions. He had data that didn't fit the 21 model. He had data that's physically impossible to have 22 occurred in any scientific means, and all he did was throw 23 out what didn't fit his t heory and use what did fit his 24 theory, isn't that correct, Dr. Wilson? 42 1 A, No, sir, not at all. 2 Q. Did he advise any of the scientists that are going 3 to read this article of actually what went on, did he advise, 4 did he put in this article those other values that he did not 5 use and explain why he didn't use them so that his peers 6 could look at that before it gets published to decide whether 7 or not it meets the criteria for publica t i o n ? Did he tell 3 anybody that, sir? 9 A. I know that he has talked with n e a r l y all of his 10 peers, I have no idea what he told them. 11 Q. He hasn't written it to them, you h a v e n 't seen 12 those values in wr i ting to anybody, have you, sir? 13 A. Those values? 14 Q. Yes. 15 A. All I've seen in writing what appears in the paper. 16 O. You haven't seen those values in w r i t i n g anywhere, 17 have you, sir? 13 A. Well, I've seen them there, that's in' writing, but 19 I've only seen sent out w hat's on the paper, just what I said 20 a minute ago. 21 Q. So far as you know what he's advised his colleagues 22 is not what appears on this paper, is it, sir? 23 A. I have no idea what he's advised his colleagues. 24 Q. You do have an idea and I simply do not want to 43 i i 1 spar with you all day, you've seen what he sent out, you've 2 seen what we have seen, that's all there is according to the 3 sworn oath of your lawyers. Nov;, you do know, Dr. Wilson, 4 and what you do know is that what was sent out did not 5 contain those values and does not contain an explanation as 6 to why he's not using the total values in the data, isn't 7 that correct, sir? 8 A. That's quite correct, yes. 9 MR. CARR: I have no further questions', Your Honor. 10 THE COURT: Do you have any further questions, Mr. 11 Musgrave? 12 MR. MUSGRAVE: I do. 13 14 C L A R I F I C A T I ON EXAMINATION 15 BY MR. J O H N R. MUSGRAVE 16 Q. Dr. Wilson, with regard to Dr. Shroy's work and Dr. 17 Hileman's analysis, do you know or were you perso n a l l y 18 present, do you know if any discussions took place between 19 Dr. Shroy and Dr. Hileman and Dr. Freeman with regard to this 20 data? Let me just shorten that to Dr. S h r o y and Dr. Hileman 21 who analyzed those core samples? 22 A. It-'s my understanding that Dr. Hileman transmitted 23 some of the results by telephone, I know of no other 24 discussions. 44 1 Q. nd so you d o n 't know whether there were other 2 discussions or w e r e n 't other discussions? 3 A. That's correct. 4 Q. And, of course, Dr. Shroy would know that or Dr. 5 Hileman would know that, w o u l d n 't they? 6 A. That's correct. 7 Q. Did you know Dr. Hileman was here and testified in 8 this case? 9 A. I knew he was here, yes. 10 Q. Do you know whether Mr. Carr asked him any 11 questions about this data? 12 A. Mo, s i r , I ^ o n ' t . 13 Q. How, with regard to Dr. S h r o y 's other peers, you 14 indicated that you knew he had talked with other peers about 15 this data? 16 A. Yes, sir. 17 Q. And do you know, were you present when those 13 discussions took place? 19 A. Ho, sir. 20 Q. So you don't know what was discussed or what wasn't 21 discussed, may well have been discussed, may not have been 22 discussed? 23 A. That's correct. 24 Q. Now, with regard to this data, you used the word 45 1 contaminated and you used the word spiked, now, you indicated 2 that you felt that those samples that had been not used were 3 contaminated? 4 A, I believe that was Hr. Shroy's conclusion. 5 Q. In fact, he states that in D e f e n d a n t 's 897, d o e s n 't 6 he, that those were contaminated? 7 A. I believe t h a t 's the case, yes. 8 Q. And does the word contamination -- 9 HR. CARR: I object to that last statement and ask 10 the jury be instructed to disregard it. I t 's not an 11 admissible document, counsel knows it, and I 've objected to 12 it once, the Court sustained the objection. I t '.s now been 13 completely improper using the document the Court has said he 14 may not use. Ask the jury instructed to disregard it. 15 MR. H U S G R A V E : If I may respond? 15 HR. CARR: And I hope reprimand counsel. 17 MR. HUS G R A V E : I v/ould like to respond. Hr. Carr 18 goes into detail as to whether there were any documents that 19 support any discussions that Dr. Shroy had with regard to his 20 colleagues or Dr. Hileman with regard to this data and that 21 very document is Defendant's 897, and for him to ask that 22 question and then not to permit this to be utilized, 23 misrepresenting the facts to the jury. There are such 24 documents and he went into it and opened it up. 45 1 HR. CARR: The Court makes the rules as to w h a t is 2 proper evidence and what is not, a self-serving document by 3 Dr. Shroy as the Court has held is inadmissible because it is 4 self-serving, not one of those documents that is properly 5 admitted. Counsel knows that, the Court has objected to it, 6 counsel now had years of experience knew exactly what he was 7 doing when he asked that question. I did not ask a question 8 about Shroy's self-serving documents in which he was trying 9 to back up this phoney study that he put out. I didn't ask 10 those questions because 'I knew that and counsel is suggesting 11' that I did and I did not. Counsel had acted improper, he 12 knows,he's acted improperly. I'd like to have the Court 13 instruct the jury to disregard what counsel said as being <; 14 improper. : 15 MR. M U S GRAVE : The record -- 16 THE COURT: The objection is sustained as to the 17 use of the document. 1 have ruled that it is not 18 admissible. It's clear in the record. You are d i rectly 19 ordered not to refer to it in any way, shape,- or form. i ... 20 Q. N o w , Dr. W ilson -- 21 THE COURT: And the jury is ordered to disregard 22 the remarks. 23 Q. With regard to this work, you indicated again, I 24 believe, your belief that there was a contamination of those 47 1 data points that were not included, isn't that correct, I 2 believe that's a possibility, yes. 3 Q. And you also talked about spiking in conversations 4 in examination with Mr, Carr, correct? 5 A. That's correct. 6 Q. Nov/, and spiking being a procedure that would allow 7 you to determine an amount that v/ould be in a particular 8 sample? 9 A. Could be under some circumstances, that's correct. 10 0. And is that v/hen you know how much you've spiked, 11 how much you put in? 12 A. Yes. 13 Q. Yeah. Nov/ if a sample is contami n a t e d is that word 14 or can that word be different from the word spiked? 15 A. T hey are very different. 16 Q. Would you explain how they are very different? 17 A. The whole essence of a spike is that you add a 18 known amount, know how much is put in. If it's contaminated 19 there is no way to know ho w much might be there or might not 20 be there. 21 Q. Spiking is an intentional procedure of a known 22 amount? 23 A. Yes. 24 Q. Contamination is what, how does something become 48 1 contaminated or how could something become contaminated? 2 A. There is a v a r iety of w a y s . In this case it might o*1 have been unintentionally or m i stakenly spiked and not so 4 labeled, that would be one way there is no way to know how 5 much was added. There could be mixtures, a mode of dust 6 might have fallen, off the ceiling. Many ways for 7 contamination to occur. S Q. How about would there be any wa y that that could 9 occur that the use of instruments or the use of documents 10 that hadn't been prop e r l y cleaned u n k n owingly or something of il that nature? 12 A. Both of those things occur frequently. 13 Q. And, you mentioned something in your testimony 14 about samples being re-analysed, what did you mean by that? 15 A. The exhibit 14 -- 16 Q. Well -- You just mentioned that in your t e s t imony 17 about samples being re-analyzed in answer to a question of / 18 Mr. Carr's? 19 A. Yes, there is some data that indicate they were. 20 Q. In which exhibit? 21 A. Plaintiff 's 1413. 22 Q. And were those data points at those levels that you 23 believe were contaminated? 24 A. Yes, one of them. 49 1 Q. And, when you say the data fit, what did you mean 2 by that, sir, in the 4N, for instance? 3 A. I mean each of those data points, zero to one, one 4 to t w o , two to three and so on, all the way down to the 5 bottom -- 6 Q. Uh-huh? 7 A. No one of those except the not detected precisely 3 agree with the curve that was drawn, but they are all cross 9 and the scientist looked at those and either visually or by 10 some statistical technique determines how close they are and 11 the closeness of all of them taken as the whole are what 12 determine what they call the goodness of fit. 13 Q. The curve that Dr. Shroy had, the computer put up 14 on the chart, let me see if I can't find that. 15 A. Dr. Freeman, actually -- 16 Q. Dr. Freeman. Well, suffice it to say I can't find 17 it right now, but, in fact the points that were p l o tted after 13 the corrections weren't exactly on that curve, were they? 19 A. I don't think very many of them, if any, were 20 except those down in the not detected. 21 Q. Generally followed the curve, sir? 22 A. Yes. 23 Q. Would you have expected them to be exactly on the 24 curve? 50 1 A. No, sir. 2 Q. W h y not? 3 A. Well, a couple of reasons, the main reason is that 4 there is uncertainty, there is error, there is the lav; of 5 averages, things do not work out exactly as they are supposed 6 to be in any situation, in any curve of this type, any 7 exercise of this type where you are looking at the agreement 8 between individual data points and some constructive curve. 9 Some will always be to one side, some will be to the other. 10 Very few of them may be right on the curve. But a scientist 11 typically seeing that all the points fall on a curve begins 12 to wander about the quality of either the data or the 13 equasion that fits them. 14 Q. But getting back then to your statement that this 15 data for 4H fits the curve, but you then indicated that 2440 16 and 1200 his individual points, of course this is just the 17 same sample, isn't it, this isn't two different data points, 18 this is the same sample analyzed on two occasions low and 19 high resolution, is that right? 20 A. That's correct. 21 Q. And if it's contaminated at the low resolution, the 22 sample is re-analyzed, still contaminated? 23 A. That's my understanding, yes. 24 O. Nov/, why do you say that given this eight to nine 51 1 level reading at 4N and the variation that it has when you 2 look at readings above and below that it fits the model? 3 A. The point doesn't fit the curve that's drawn, but 4 the data as the whole fit the model because again all of the 5 points with the exception of that one are very close to the 6 curve that was drawn on both sides of it, they are in, they 7 follow the same shape. One of them sticking out, it's a sore 8 thumb, there is something that any scientist looking at would 3 conclude something was wrong with that data point. 10 Q. Is that because none detected above and none 11 detected below? 12 A. Yes. 13 Q. And again, over at 5N, the situation where you had 14 the 20, 21 inch depth where all of the sudden after having a 15 series of none detected above it you find this high level? 16 A. That's correct. 17 Q. Does the data as the whole 5N in your opinion fit 18 the computer model? 19 A. Yes, it does. 20 Q. But this data point down here, would it be logical, 21 would there be an explanation if you were to throw out all of 22 this data and keep that data point in? 23 A . N o , sir. 24 Q. W ould there be any logical, physical explanation to 52 1 your knowledge, sir, of how you could have those none 2 detected at this level and then have a 20 or 21 all of the 3 sudden this level? 4 A. You mean in the field? No, sir. 5 G. Yes, in the field? 6 A. No, s i r . 7 Q. Of this that -- in any wa y being related to what 8 was in fact is b u r i e d 'at the four to five inch level 9 originally? 10 A. N o , sir. 11 Q. Mr. Carr, of course, was referring-to Plaintiff's 12 1414 and 1413 and asking you about the data that was there. 13 N o w , that data that he was asking you about again was the 14 computer printouts? 15 A. Yes, they are. 16 Q- Now, when, the computer reads those, does it know 17 whether or not there was a c o ntamination or -- if it's, not 18 told that? 19 A,, Well, the operator identifies those w h i c h were 20 s p i k e d . 21 Q. All right. 22 A. Intentionally, and it knows, otherwise it does not. 23 Q. It does not. And there is no code on here for 24 contamination, is there? 53 i 1 A. No. 2 Q. Wash 't intended to c o n t a m i n a t e .a n y , was it? 3 A. That is .correct. 4 Q. Was intended to spike them, though, wasn't it? 5 A. Yes, some portion of them. 6 Q. Now, Mr. Carr I believe showed you P laintiff's 7 1432, those were comments made v/ith regard to the Freeman 8 comment on McConnell that he had submitted to Science 4 S Ha'a**a'zine'",* ist that correct? * 10 A. He showed me one of them, yes. 11 Q. Do you have that there, 1432? 12 MR. CARR: No, I have it here, counsel, 13 Q, How about 1451? 14 MR. CARR: There is no 1451. 15 MR. MUSGRAVE: There is not? 16 MR. CARR: No, we are only up to 1432. 17 MR. MUSGRAVE: Maybe i t 1s 1431, what you marked 18 yesterday then. Yes, 1431. 19 Q. (by Mr. Musgrave) Well, P l a i ntiff's 1432 and Mr. 20 Carr you didn't show this to me, I thought you were only 21 marking one page but you m arked all of.those, is that 22 correct? 23 MR. CARR: T h a t 1s c o r r e c t . 24 Q. Plaintiff's 1432 has more documents in it, does it 54 1 not, sir, than simply the first page that Mr. Carr showed 2 you? 3 MR. CARR; I showed him a page in the middle, not 4 the first page. 5 A. Has quite a number of pages, yes. .That was the one 6 he showed m e . 7 Q. All right, sir. Now, P l a i n t i f f s 1431 is of course 8 the document where,you and Dr. Shroy and Freeman were 9 requesting approval to publish the comments with regard to 10 the McConnell article and also included a letter dated March 11 9, where Dr. Freeman in fact sent at the outset the comments 12 to Science Magazine for p u b l ication or to be c o nsidered for13 publication, isn't that correct? 14 A. That's correct. 15 Q. That was the 9th of March, wasn't it, sir, of 1984? 16 A. That's correct. 17 Q. Now, referring you to Plaintiff's 1432, if I can 18 find it here, the document in this package 'which is -- or one 19 of the other documents attached to 1432 that has the number 20 C22296 stamped at th e ' b o t t o m of it, is a response, is it not, 21 sir, to that March 9,letter submitted the article to Science 22 for publication? 23 A. It looks to be that, yes. 24 Q. Yes. And what is the date of that response f rom 55 1 Science Magazine? 2 A. It's dated March 23rd, 1984. 3 Q. And, it's from one Phillip H. Abelson? 4 A. Yes, t h a t 's, correct. 5 .Q. And what does the response say, sir, w o u l d you read 6 it? 7 A. It says, "Thank you for submitting a technical .8 comment to S c i e n c e . Because we often receive m a n y t e c hnical 9 comments on the same subject, we sometimes wait 3 months i 10 after publication of the original paper and send the comments 11 then on hand out for review together. Thus, do not expect to 12 hear from us until at least four months after p u b l i c a t i o n of 13 the original paper." 14 Q. Is there another letter then from S c i ence sent 15 subsequent to this March 23 response, sir? 16 A. I don't know, I haven't looked at all that package. 17 Q. See if I can find it. Yes, the second page of this 13 exhibit that has the number C22294 at the bottom stamped on 19 it, is that another letter from Science Maga z i n e to Dr. 20 Freeman? 21 A. . Yes, it looks to be that, it has got Science at the 22 letterhead and is addressed to Dr. Freeman. 23 Q. What is the date of that letter? 24 A. March 26th, 1984. 56 1 Q. That's some two days after or three days after the 2 sampled date on the first letter? 3 A. Yes, it is. 4 Q. And, what does that letter from Science Magazine 5 say, first of all, who is it from? 6 A. It is from a Lois Schmitt, title, As s o c i a t e Editor. 7 Q. Of Science M a g a z i n e ? 8 A. I believe so, yes. 9 Q. Addressed to Dr. Freeman? 10 A. Yes. 11 Q. What does it say, sir? 12 A. Says, "Your letter addressed to Mrs. Christine 13 Gilbert commenting on the report by McConnell e t . al. has 14 been referred to me for handling since we have decided to 15 treat as a technical comment. On page 2 you make reference to 16 a figure showing TCDD c o ncentration profile at Times Beach. 17 This figure seems not to have been included with copies of 18 the manuscript. Please forward to missing figure, please 19 forward to missing figure to me, I presume they means the 20 missing figure to me at your earliest convenience so we may 21 proceed with the review process." This is March of '84? 22 A. That's correct. 23 Q. Does the Exhibit Plaintiff's 1432 include a 24 response by Dr. Freeman to that letter requesting the 57 1 additional figure? 2 A, Yes. 3 Q. And that is a letter dated April 2, 1934 from Dr. 4 Freeman to Lois Schmitt of Science Magazine? 5 A. That's correct. 6 Q. And does it attach the document that she requested? 7 A. Well, it says there is an a t tachment and there is a 8 copy of a figure that is attached. I don't know that that's 9 what was attached, I presume it might be. 10 Q. All right. But there is a response on April 2 to 11 the letter requesting additional information? 12 A. T h a t 's c o r r e c t . 13 Q. Now, is there a letter dated May 23, 1984 in this 14 exhibit, sir, another letter which would be, oh, almost two 15 months later? 16 A. Yes, there is. 17 Q. From Lois Schmitt? 18 A. Yes, there is. 19 Q. And this letter again is from Lois Schmitt the 20 Associate Editor of Science Magazine addressed to Dr. 21 Freeman? 22 A. That's correct. 23 0. And its date, sir? 24 A. May 23rd, 1984. 58 1 Q, What does she say in that letter now addressed to 2 Freeman after this previous correspondence? 3 A. She says, "Thank you for giving us the oppor t u n i t y 4 to consider your comment on McConnell et. al. I regret to 5 say we have decided not to publish it. We receive many more 6 comments than space is available for and hence must reject 7 most of those submitted. The manuscript is enclosed. 8 Q. ` T hen on this same letter where she says space is 9 not available, are there some notes handwritten notes? 10 A. Yes, there are. 11 Q. And can you identify the writer of those notes? 12 A. Looked like Randy Freeman's hand to me. 13 Q. Do they indicate he had c onversations with Lois 14 Schmitt by the telephone? 15 A * Y e s 16 Q. On June 6th, 1984? 17 A. Well, says -- I'm not sure whether it's June 6th or 18 June 1st. 19 Q. But there is an indication that c onversations took 20 place? 21 A. Yes. 22 Q. And, do you then have a letter-in this packet from 23 Dr. Freeman back to Lois Schmitt after June of 1984 dated 24 September 17, 1984? 59 1 A. Yes, do. 2 Q. Uh-huh. And, again, this is addressed to this same 3 lady that Dr. Freeman has been in communication with at 4 Science Magazine? 5 A. Yes. 6 Q. And wha t does Dr. Freeman, in fact, you signed off 7 on this document too, didn't you? 8 A. Yes, I d i d . 9 Q. What does Dr. Freeman and Dr. Shroy and yourself, 10 vihat do you say to Mrs. Schmitt, and this is September of 11 1984, correct? 12 A. Yes. 13 Q. All right, what does the letter read, sir? 14 A. "Per our conversation of June 6'ch, 1984 -- 15 Q. Just a moment is that the same date t h a t 1s in 16 handwriting of Dr. Freeman on this, on the May 23, 1984 17 letter? 18 A. Yes, it is. "The attached comment on the paper by 19 McConnell e t . al. has been rewritten to focus on the 20 environmental transport of T C D D . In addition, suggestions of 21 the peer reviewers have been incorporated pointing out the 22 possible effects of other chemicals contained in the soil on 23 the results obtained by McConnell. Please consider our 24 comment or publication in S c i e n c e .11 50 i 1 Q. . All right and the rest of it, sir? 2 A. "The following scientists are familiar with our 3 work and the situation in Missouri and are qualified to serve 4 as peer reviewers:" Then he names Dr. Alvin Young of the 5 Office of Science and T e c h n o l o g y Policy, and Dr. Paul D. 6 DesRosier of U.S. Environmental Protection Agency. 7 0. And attached to that September 17, 1984 letter to 8 Lois Schmitt is a -- 9 A, Looks like the manuscript. 10 Q. A manuscript? 11 A. Yes. 12 Q. Involving the same topic that was originally sent 13 to S c i e n c e . is that correct? 14 A. Quite modified, but same topic. 15 THE COURT: Mr. Musgrave, is this a good point for 16 a break? 17 MR. MUSGRAVE: I think it is, Your Honor. 18 THE COURT: Ladies and gentlemen, we will take a 19 recess at this time. I would remind you this will go for any 20 other break we take during the day, that you are not to 21 discuss this matter among yourselves, with anyone outside the 22 jury panel, or as of yet form any opinions or conclusions23 about the matters on trial. Court will be in recess. 24 (Following a recess, these p r o c e e d i n g s were had in open 61 1 court.) 2 MR. MUSGRAVE: Your Honor, before I proceed, I'd 3 like to straighten out an error that was made in the marking 4 of Defendant's Exhibit, if we can, and if I might, I would 5 like to have the record reflect that the document marked 6 yesterday as Defendant's Exhibit 904, that being the 7 memor a n d u m of Dr. Wilson to S. G. Collins and L. J. O'Neill 8 dated April 1, 1982, should have been marked 905 as we had 9 previously marked a 904. 10 THE COURT: Okay. Pine. 11 MR. MUSGRAV33: Would like the record to reflect 12 that change if we could, please. 13 THE COURT: So reflected. Thank you. 14 Q. (by Mr. Musgrave) Dr'. Wilson, when we broke, we ` 15 were talking about the*letter of yourself from Dr. Freeman 16 and Dr. Shroy again to Lois Schmitt of Science Maga z i n e dated 17 September 17, 1984 ,where there was a resubmission of a 18 manuscript? 19 A. Y e s , s i r . 20 Q. And, in that letter, I believe you indicated when 21 you read, to the jury that it did state that the manuscript 22 had been rewritten to focus on the environmental transport of 23 T C D D , and then it says, 11In addition, suggestions of the peer 24 reviewers have been incorporated pointing out the possible 62 i 1 effects of other chemicals contained in the soil on the .2 r e s u l t s ,obtained by M c C o n n e l l ." And then request that the 3 revised manuscript be considered for publication in Science 4 Magazine? 5 A. Yes, sir. 6 Q. Now, Hr. Carr showed you Plaintiff's 1432 w h i c h 7 were comments as he indicated from someone, i t 's 3 unidentified, is it not? , 9 A. That's right. 10 Q. But comments, someone from S c i ence Magazine oh the 11 manuscript? 12 A. Yes, sir. 13 Q. And, were there not -- well, would you look in your 14 Plaintiff's 1432 and see if there is not also another comment 15 from Science M a g a z i n e ? 16 A. . Here is another one. 17 Q. Yes, ,and that is again a .comment and it's indicated 18 as a comment on the McConnell e t . al., and Freeman e t . al. is 19 the author? 20 A. That's correct. 21 Q. Entitled also comments for transmittal to the 22 author and other comments there? 23 A. Y e s , sir 24 Q. N o w , then it would appear from the exhibit 63 1 Plaintiff's 1432 that there were at least two individuals 2 unidentified that commented on the manuscript of Dr. Freeman 3 and yourself that had been submitted to Science for 4 publication? 5 A. That's the way it a p p e a r s , yes. 6 Q. Getting back to September 17, '34 letter that we 7 have just been talking about it, it did refer to suggestions 8 of the peer reviewers have been incorporated? 9 A. Does say that, yes. 10 Q, Do you know whether or not those comments in those 11 two documents where the peer review, peer reviewers comments 12 that were incorporated in the redo of the manuscript? 13 A, Since I know of no others, I assume those were the 14 o n e s . 15 Q. In any event, after September 17, 1984 when the 16 review of the manuscript with the suggestion of the peer 17 reviews being incorporated was sent to S c i e n c e f is there then 18 another letter back from Science to Dr. Freeman with regard 19 to this review or revised manuscript? 20 A, Yes, there is. 21 Q. That also appears in Plaintiff's Exhibit 1432, does 22 it not? 23 A. Yes, it does. 24 Q. That is a letter dated what, sir? 64 1 A. 24 September, 1984. 2 Q. And is it again from Lois Schmitt the same lady 3 there at Science Ilaaazine who Dr. Freeman has been 4 corresponding with in *84 regarding this m anuscript? 5 A. Yes, it is. 6 Q. And what does she say in this letter of September 7 24, 1984 to Dr. Freeman? 8 A. She writes, "Thank you for your letter of 17 9 September 1984, resubmitting your technical comment on 10 McConnell e t . al. Unfortunately your comment has "grown" 11 appreciably in the revision and nov; greatly exceeds our 12 length limit of 500 words, including references and notes. 13 Your paper will need to be shortened by at least half before 14 we will be,able to consider it. Your m a nuscript is 15 enclosed. Sincerely." ' 16 Q. T h a t 's September of 1984? 17 A. That's correct. 18 Q. And nov; is there in Plaintiff's Exhibit 1431 some 19 handwritten notes that bear the document number at the 20 bottom, sir, C22319? 21 A. No, sir, there is not. 22 THE COURT; This one is 906? , 23 MR. M U S G R A V E : I hope so. Yes. 24 MR. CARR: This a document you didn't produce? 65 1 ,MR. MUSGRAVE: Yes, the document number is right 2 down there. i 3 MR. CARR: If i t 1s not in that group, we don't have 4 it. Because you prod u c e d it this morning, everything I got 5 the witness has, I gave the witness. 6 MR. CARR: Take it back, here it is, right on top. 7 MR. MUSGRAVE: Show that to his Honor. 8 Q. (by Mr. Husgrave) Handing you now, Dr. Wilson, 9 w h a t 1s been identified as 'Defendant's 906, it's a h andwritten 10 note, can you identify the handwriting on that? 11 A. Looks like Randy Freeman's h a n d w r i t i n g ,to me. 12 Q. Did it bear a date? 13 A. It does; 14 Q. That's the same Raymond Freeman who's the doctor, 15 the author of this article with regard to the M c C onnell 16 paper ? 17 A. Yes. 18 Q. And, does Lois Schmitt's name of Science Magazine 19 appear in those notes? Ir 20 A 1. Ye"s. 21 Q. Her telephone number? 22 A. A telephone number. 23 Q. And what does the document read then, the rest of 24 it? 66. 1 A. Says, "Put all details in the appendix, a p pendix 2 will not be published, resubmit. ' 3 Q. That's a note dated November 13, 1984? 4 A, Yes. 5 0. Nov;, do you know, Dr. Wilson, whether the 6 manuscript has been redone to be shortened, to be 7 resubmitted? 8 A. I know it has not yet been resubmitted. Randy is 9 supposed to be shortening it. I don't know where he stands. 10 Q. That would be the current status to the best of 11 your knowledge on the comment on the McConnell work? 12 A. Correct. 13 Q. Now, Doctor, going back a moment to the letter from 14 Renate Kimbrough, Plaintiff's Exhibit 1417, to Dr. Shroy, the 15 comments that she had with regard to m a n u scripts that she had 16 reviewed of Dr. Shroy's, do you have 1417? 17 A. I do not, I don't believe. No, I think not. 10 Q. Let me hand that to you, Plaintiff's Exhibit 1417, 19 Renate Kimbrough's letter, that's dated June of 1934, is it 20 not? 21 A. T h a t 's c o r r e c t . 22 Q. N o w , would you mark this, please? Y e s t e r d a y Mr. 23 Carr asked you questions with regard to the EPA and whether 24 they had agreed with or disagreed with Dr. Shroy's work on 57 1 volatility characteristics of 2,3,7,8-TCDD, you recall those 2 questions, sir? 3 A. I think so, yes. 4 Q. And if my notes are correct, I believe you 5 indicated, if I can find t h e m here, that you felt the EPA' 6 agreed with the theory of transportation as a result of the 7 handling of soils at plants of Monsanto? 3 A. Yes. 9 Q. Could you explain that to us, sir? 10 A. Well, there were two plants where soil became 11 contaminated, one alum i n u m plant near New Orleans, one the 12 Nitro plant near Charleston, West Virginia, the one, the 13 Luling was a relatively small area, we believe resulting from 14 transfer of material during unloading and loading of railroad 15 cars. At the Nitro plant there was a rather extensive area 16 that became contaminated during the course of production 17 between 1949 and '69, *70, whenever it stopped. In the last 18 two years, the EPA has visited all sites where 2,4,5-T was 19 produced and asked the manufacturers or the owners of the 20 sites to carry out analyses of the soil so that they can 21 determine if there is any environmental hazard being posed by 22 contamination of that soil. In cases w h e r e significant v 23 contamination has occurred, they have asked _'or directed the 24 owner of the prop e r t y to take some action, whatever action is 68 1 deemed appropriate to prevent some contamination. In the 2 case of the ITitro plant and in the case of the L uling plant, 3 Monsanto agreed to do certain things. In the L u ling plant it 4 was a relatively small area and essentially the area where 5 contamination v/as found, if I recall correctly, was covered 6 with a piece of heavy plastic, and further covered up with 7 'the local equivalent of gravel, oyster shell, to p r e vent any 0 movement of that soil, to prevent any exposure to people. In S the case of the Nitro plant where the area of contamination 10 was much more extensive, there were a number of things that 11 were agreed to. Certain areas where contamination was 12 relatively low and that they meant ty p i c a l l y broke ten parts 13 per billion in the top several inches of soil, no action has 14 been taken. In areas where it was somewhat higher, one area 15 where there is, it's used only storage for old equipment, 16 that area in gravel or is in the process of being graveled. 17 In another area where there is also a higher degree of 18 contamination up in the hundreds of parts per billion range, 19 an area has been paved and graded so that run-off goes 20 through a sewage treatment system. 21 Q. And, how then, Doctor, in your opinion, does the 22 things that the EPA has proved for the situations at those 23 two facilities, how in your opinion does that indicate your 24 belief that the EPA agrees with this theory of 69 1 transportation? 2 A. In each case, the data showing contamination were 3 such that the surface layers, the top inch or top two inches 4 showed very small concentrations of TCDD in the low parts per 5 billion or parts per trillon range, and they agreed that at 6 those ranges, if it was less than a part per billion, that 7 that in and of itself constituted no significant threat to 8 the people involved and agreed that it was, that the most 9 likely explanation for that finding -- 10 MR. CARR: I object to that unless the witness has 11 a document that says that, 12 THE COURT: I'm sorry, I didn't hear the last part, 13 MR. CARR: I object to his statement, ask the jury 14 be instructed to disregard it unless there is some document, 15 unless he has personal firsthand knowledge about 15 conversations with the EPA that they have said what he says 17 they said. I object to it. 18 THE COURT: Objection is sustained. Will you 19 address the objection? i 20 MR. CARR: Documents are of his own knowledge. 21 MR. MUSGRAVE: Do you have personal knowledge of 22 that, Doctor? 23 A. Yes, I do. In this form, under which authority the 24 EPA, according to their documents was entering the plants, 70 1 authority for setting standards regarded is given to the 2 centers for disease control. They have published an article 3 and published an advisory to the EPA, what they consider to 4 be a level below which no concern is needed. 5 MR. CARR; I object, ask the jury be instructed to 6 disregard it. EPA said no such thing to Dr. Wilson. He is i 7 simply interpreting past documents and past studies. 8 THE COURT: Objection is sustained. It is 9 stricken. The jury is ordered to disregard it. 10 Q. (by Mr. Musgrave) You have any other basis then, 11 Doctor, for your belief, though, with regard to the EPA's 12 acceptance of this theory of t r ansportation? 13 A. Yes, I've been involved in at least one meeting 14 including a number of people from the EPA Science Office of 15 Research and Development at which this work was de s c r i b e d by 15 Mr. Shroy, at which opportunity for comments were made in 17 which the people there, the scientists were who present, 18 agree that it was a plausible model. 19 Q. And handing you w hat's now been m arked Defendant's 20 Exhibit 907, can you identify that, sir? 21 A. Yes. 22 Q. And what is that, sir? 23 A. That's a me m o r a n d u m from Dr. Freeman to Mr. Shroy 24 and myself. 71 1 Q, And what does it reference, what 's the date of it, . 2 sir, first of all? 3 A. July 17, 1984. 4. Q. ` July of 1984? . - 5 A. That is correct. 6.. MR. CARR: May I see it, counsel? 7 MR. MUSGRAVE: I just showed it to you, Mr. Carr, 8 before it was marked. 9 ,MR. CARR; That's that one, okay, go ahead, I'm 10 sorry. 11 Q. That's some month and a week or so after Dr. 12 Kimbrough's letter to Dr. Shroy, P l a i ntiff's Exhibit 1417, is 13 it not? 14- A. Yes. 15' Q. And, what is the subject of the memo, J u l y of '84 16 there, sir? ** 17 A. Subject is given as a meeting with CDC in Atlanta. \ 18 Q. W i t h CDC, does it specifically refer to a meeting 19 with Dr. Renate Kimbrough of the Center for Disease Control? 20 A. Yes. 21 Q. What'dat e was the m e e ting set up for? 22. A. Meeting was set for August 23, 1984. 23 Q. In Atlanta? 24 A. In Chamblee, outside of Atlanta. 72 1 Q. Did you attend such a meeting? 2 A. Yes, I did. 3 Q. Who else was in attendance? 4 A. From Monsanto Mr. Shroy and Dr. Freeman. For 5 Centers for Disease Control, besides Dr. Kimbrough, I don't 6 remember their names, but there must have been 12 or 15 other 7 scientists. 8 Q. And those papers of Dr. Shroy, Dr. Freeman were 9 discussed at that meeting, their theory of transportation of 10 TCDD? 11 A. That was the purpose of the meeting. 12 Q. With Renate Kimbrough? 13 A. Yes, sir. 14 Q. And were the questions she addressed in her letter 15 of June 4, 1984, raised, sir, and discussed? 16 A. Plaintiff's Exhibit 1417? 17 A. Yes. IS Q. And were those decisions with regard to the 19 facilities at Luling and Nitro that were made by and in 20 concert with the EPA done after those meetings? 21 A. No, sir, before. 22 Q. Before. Was there any change after those meetings 23 took place, those decisions that were made as to the handling 24 of the situations at those two facilities? 73 1 A. Not to my knowledge. There may have been some 2 minor change but not to my knowledge. 3 Q. Now, yesterday, Hr. Carr was talking with you about 4 the body burden of TCDD in the body that is addressed in your 5 handwritten notes, sir, you recall that? 6 A. To some degree, yes. 7 Q. And, he was asking you if there was any studies 8 specifically dealing with 2,3,7,8-TCDD as to its metabolism S and what have you,/ that supported your opinion, do you recall 10 that, sir?, 11 A. Not really, no. 12 MR. CARR: No, because that's not w hat I asked 13 him. I asked him if there was any studies showing half-life, 14 in humans being excreted as fast as it comes in. 15 Q. You recall that yes, then, sir? 16 A. Yes. 17 Q. That would be with regard to the movement in or 18 movement out of the body? 19 A. Yes. 20 Q. And he asked you specifically if there were any 21 studies specifically w i t h 1regard to 2,3,7,8-TGDD? 22 A, I think so. 23 Q. And, do I recall that your answer was you know of 24 no such specific studies with 2,3,7,8-TCDD? 74 1 A. In humans. 2 Q. In humans? 3 A. Yes. 4 Q. Are those types studies in animals, sir? . 5 A. Yes, sir. 6 Q. And, you, I thought, indicated in your testimony 7 that you believe that there were studies that supported the 8 conclusions that you had reached? 9 A. Yes. 10 Q. What are those other studies? 11 A. Well, let me see, there is a study on the 12 m e t a b o l i s m of 2,3,7,8-TCDD by, I think, the first author is a 13 man named McNulty but I could be wrong. Dr. Gross of the 14 University of Nebraska is one of the co-authors, they 15 described the meta b o l i s m in species of monkeys. C onclude 16 that a half-life for elimination is about a year or p e r haps I 17 concluded that from there data, I can't remember that for 18 sure. There-are at least two different studies on the 1 19 products of m e t a b o l i s m from rats. I think there are at least 20 three studies on the products of m e t a b o l i s m in laboratory 21 rats, and there is at least one on the m e t a b o l i s m in 22 hamsters. There may be others. 23 Q. And are there studies also on the m e t a b o l i s m of 24 other chemicals in animals, in humans? 75 1 A. Yes, 2 Q, Those pla y any roll in the opinions and conclusions 3 that you reached? 4 A. Yes. 5 Q. In comparing chemistry of the two chemicals? 6 A, Yes, they did a large number. 7 Q. Nov/, Mr, Carr also asked you about authority for 8 comments you made yesterday in connection with incineration 9 of paper? 10 A. Yes, sir. 11 Q. Creating 2,3,7,8 or dioxins in any event, you 12 recall that, sir? 13 A. Yes. 14 Q. And were you at that time able to recall any? 15 A. Not that dealt specifically with paper, no. 16 Q. Are you aware, though, of any that deal w i t h wood 17 or were in any way related to paper products or materials 18 involved manufacture of paper? 19 A. I know that there have been some studies that 20 determine the formation of c h l o r o d i b e nzo-dioxins and furans 21 from burning wood, yes. 22 Q. And how about any type of a material or produet 23 related to paper? 24 A. Wood is related to paper, paper is made from wood. 76 1 Q. Are you .aware of a work in 1981 that dealt with 2 paralysis of paper mill lickers? 3 A. No, I'm not aware of that process -- I don't recall 4 that right now, no. 5 Q. Paper that dealt with p o tentials for creation of 6 TCDD precursors? 7 A. F rom paper mill waste -- 8 Q, Yeah? 9 A. I don't recall seeing that recently, no. 10 Q. You are aware of studies dealing with wood and 11 burning of wood? 12 A. Yes. 13 Q. Paper is made from wood, -sir? 14 A. That's correct, 15 Q. Yeste r d a y Mr. Carr asked you several questions 16 dealing with Lysol and 2,4-D, the herbicide, you recall 17 those, sir, and about assuming that there was dioxin content 18 in those and exposure and what have you? 19 A. Some of those questions, yes. 20 Q. Now, sir, has I-Ir. Carr shown you any document in 21 this case from any source indicating that 2,3,7,8-TCDD was 22 ever found in 2,4-D, the phenoxic acid herbicide? 23 A. I've seen no such document. 24 Q. And has he shown you any document, sir, in any way 77 I 1 indicating that 2,3,7,8-TCDD was ever found in any Lysol 2 product? 3 A. Not that I've seen, no. 4 Q . And, w o u l d it be a simple matter to analyze those 5 products if 2,4-D is still being sold? 6 A. Yes, that's quite -- well, r e latively simple, yes. 7 I know it can be done. 8 Q. And, I believe there is a bottle of Lysol as Mr. 9 Carr showed you at least has the substance that,-has the lO- chemical name of what is Santophen-1 in it? ll A. That's correct. 12 O. He has suggested to you that is. Santophen from 13 Monsanto, has he not? 14 A. Yes, I believe he has. 15 Q. , Yesterda y when Mr. Carr was asking you about 16 various authorities br materials in connection with some of 17 your opinions, there was a mention by you of a poster board 18 that he guffawed at as I recall, do you recall that, sir? 19 MR. CARR; I didn't guffaw at it.. 20 MR. MUSGRAVE: Maybe it was just a slight laugh. 21 MR. CARR: I sneered at it. I object to exactly 22 what I did, all things considered. 23 M R . 'MUSGRAVE: I think sneered is prob a b l y an 24 appropriate comment. Do you recall that, sir? \ 78 i i A. Yes. 2 Q. What was that in connection with? 3 A. There was a Simposium held on the w a y Canada, I 4 believe, it v/as middle of October of 1984, at which quite 5 number of technical publications were displayed in this form 6 of poster board, and I was referring to one of them. Those 7 publications, those posters are slated for p u b l ication in 8 journal some time this year, although they haven't yet 9 appeared, as far as I know. 10 Q. They deal with what? 11 A. One aspect or another of the suspect of 12 chlorodibenzo-dioxins in the environment. 13 Q. Did any of those deal with chlo r o d i b e n so - d i o x i n s in 14 the environment of, from a source of incineration? 15 A. Several of them did, yes. 16 Q,. And did any of them deal with that b o u r c e in th 17 incineration process being paper or wood products? 18 A. I don't remember that specifically, gen e r a l l y they 19 were talking about incineration of mixed municipal trash, 20 which of course includes paper and plastic and a wide variety 21 of other products and materials. 22 Q. Nov/, while we are talking about incineration of 23 trash, Mr. Carr asked you yesterday, you may recall, 24 questions about or questions related to hypothetically the 79 1 residents of Sturgeon and whether there were any incinerators 2 nearby? 3 A. I believe that was the case. 4 Q. Asked you whether or not you knew whether there 5 were any incinerators nearby, you recall that? 6 A. I think so, yes. 7 Q. Implying there weren't incinerators nearby that 8 could create dioxins if they did to possibly come into 9 contact with residents of Sturgeon, did you understand that 10 to be the import of his question? 11 A. I believe so, yes. 12 Q. And yet a couple of days ago, you recall hi m asking 13 you about whether or not dioxin was found nat u r a l l y in the 14 environment? 15 A. I think so, yes. 16 Q. You suggested to him, if I recall correctly, that 17 there had been a lake in the middle of an island in Lake 18 Superior? 19 A. Yes, sir. 20 Q. Very isolate? 21 A. Yes, sir. 22 Q. Where fish had been taken from and had found to 23 have dioxin in them? 24 A. Yes, sir. 80 1 Q. A n d 'at that time he then, didr he not, said well 2 that could have been from the municipal incinerators that 3 carry this stuff from the' area, didn't he? 4 A. I believe so, 5 Q. Didn't mention that to you when he talked about 6 the, there not being incinerators near th e people in 7 Sturgeon, did he, sir? 3 A, No, sir, he didn't. 9 Q,, `Now, Mr. Carr also,, sir, asked you a lot of 10 questions, as you may well recall with an a s s u m p t i o n that "a 11 person is exposed to, and has a dose every day of I believe 12 he said five parts per trillon of TCDD and the bod^ burden 131 that builds up, then the half-life, and after how many years 14 'how much 'you have in your body, what have you, you recall 15 those questions? ` 16 , A. , Yes. 17 Q, He related that to the people at Sturgeon, you 13 recall that being part of the question? 19 A. I think so, yes, 20 Q. . If there was in fact a build-up like that, sir, for 21 a'period of five years, and .the amounts and levels that Mr. 22 Carr was suggesting by those questions .were in fact-there, 23 t h e y had been pret t y high, wouldn't they? 24 A / Well 81 1 Q, If in fact what he was suggesting was true? 2: A. If the assumptions that I believe he was using, I 3 suppose they would be. t 4 Q. The assumptions thatj he asked you to make I don't 5 suggest you agree with them, but the ones he was asking you 6 to make? 7 A. I think so, yes. 8 Q. And if in fact those were true, sir, and you had 9 such high levels in the fat tissue, you could pretty easily, 10 take a fat sample and find that, could you not, sir, with the 11 analytical methods that are available and have been since 12 what those papers have demonstrated in 1983? 13 A.~ I think s o , yes . 14 Q. I think you told us, did you not, sir, that the 15 level, that the amount of fat that you take as the sample, 16 the more you have, the lower the detection level? 17 A. For a given piece of equipment, yes. 18 Q. But if you have a high c o ncentration then it would 19 require even a less amount? 20 A. That would be correct, yes. 21 Q. And, at those c o n c entrations that he was suggesting 22 would be in existence, based upon the information that you 23 read in connection With those other studies where they have 24 taken fat samples, would it take much more than a gram if 82 1 they were levels at the levels he s u g g e s t s , to determine if 2 in fact there was TCDD in the fat? 3 . I don't think so, no. 4 Q. nd rather than speculating about all of this, and 5 talking about what might be and what could be and how much is 6 there and how much people get on them, couldn't you just test 7 that fat and find out if it is there or not there? 8 A. That's what I would prefer to do. 9 Q. And if you could spend $7,500 on medical exams, 10 couldn't you think that you could spend $400 to have fat 11 samples analyzed? 12 A. If that's all it would cost, yes. 13 MR. HUS GRAVE: That's %11 I have,' Your Honor. 14 THE COURT: Mr. Carr? 15 MR. CARR: It's noon, Your Honor. I could' 16 proceed? 17 THE COURT: Oh, it is. Okay. Ladies and 18 gentlemen, we will break for lunch at this time. LTe will 19 start again at 1:30. And, the admonishments that I've given 20 you earlier will apply during this lunch break also. Court 21 is in recess. 22 (Following1a recess, these p r o c eedings were had in open 23 c o u r t .) 24 MR. CARR: I think he was finished and I was to 1 start. 2 THE COURT: Yes. 3 4 RECROSS EXAMINATION 5.I BY MR. REX CARR ; 6 Q. Dr. Wilson, you mentioned to Mr. Musgrave that, a 1 study by McNulty, Rose, and others dealing with the rhesus 3 monkey was a study that you said supported your theory that a 9 state of equilibrium would be reached with the intake of TCDD 10 over a period of time, did you not, sir? 11 A. No, I don't think that's what I said. 12 Q. I thought you cited that as a study that supported 13 that view? 14 A. I believe I cited that as the study which dealt 15 with the meta b o l i s m with 2 , 3 , 7 , 8-TCDD in test animals. 16 Q. But it had nothing to do with your thesis that the 17 body will, at some point in time the b o d y will excrete TCDD 18 as fast as it's taking it in, so there had been no additional 19 TCDD accumulated, isn't that correct? 20 A. That's not exactly correct. 21 Q. D o c t o r , ! read the study during the lunch hour, all 22 it deals with is the fact that they gave one dose to one 23 m o nkey one time and checked h i m a year later and at other 24 times in the interval, isn't that correct, sir? 34 1 A. You have the advantage of me, sir, I haven't had 2 the opportunity to look at it, that may be what i t s a y s . 3 Q. Do you recollect it was anything other than finding 4 out how much was left at the end of one year of one dose to 5 one monkey? 6 A. I don't remember a number of monkeys involved, I 7 remember X think it prob a b l y was a single dose experiment and 8 they did follow it over a p eriod of a year or something like 9 that, that's what I recall. 10 Q. Had nothing to do with h o w the body accumulates or 11 whether or not it reaches a steady state, does it, sir, 12 nothing more than a single dose they went in and meas u r e d hov; 13 much was left at the end of one year and at other times 14 during that i n t e r v a l , isn't that correct? 15 A. Ho, it's not correct, it does have something to do 16 with that. 17 Q. Dr. Wilson, you hypothe s i s e d your t heory here, you 18 said that when you reach a state where you take in the TCDD 19 it will be excreted at that same rate. Wow, the study that 20 you mentioned in support of that, when Mr. Musgrave asked you 21 the question about this study, you said that that supports 22 your thesis that that occurs, and all it does in fact 23 support, sir, is the fact that there is a half-life in a 24 primate of approximately a year, isn't that correct, sir? 85 1 A. That's exactly correct. 2 Q. And that's all it says? 3 A. That's exactly correct. 4 Q. Doctor, the other studies, the rat studies that you 5 mentioned all deals with m e t a b o l i s m that is half-life in rats 6 of TCDD as well, do they not, sir? 7 A. Rats and mice and hamsters and dogs or whatever the 8 animals were. / 9 Q. And again it was single doses in those animals to 10 determine how much was left, how the body m e t a bolizes that 11 single dose, how much is left after a period of time, isn't 12 that correct, sir? 13 A. That's a description of m e t a b o l i s m study, yes, sir. 14 Q. Again, it has nothing to do with multiple doses of 15 dioxin over a period of time to -determine how much is left 16 after a period of time to determine whether or not a steady 17 state is reached, isn't that c o r r e c t , sir? 18 A. No, sir. 19 Q. It has to do -- did they give more than one dose to 20 those rats and those mice? 21 A. It has to do -- 22 Q. Did they give more than one dose to those rats and 23 those mice? 24 A. I don't know whether they did or not, I know in 86 1 some cases they did not. 2 Q. Do you know of any cases where they did? 3 A. I don't remember the studies in detail, no. 3, Q. Doctor, the only w a y your thesis can be proved is 5 to conduct a study in which you give the same amount of 6 dioxin to an animal or a human being over a period of -- long 7 enough period of time to reach what you might call a steady 3 state. Mow, you've suggested that you can calculate that and 9 given the amount of the dose it might be as much as forty 10 years, as a matter of fact it could be as much as a hundred 11 y e a r s . 12 MR. MUSGRAVE: I object to the q uestion because he 13 starts out by stating what appears to be a question and then 14 goes on to another question without p e rmitting the witness to 15 answer the first question, so it becomes testimony of counsel 16 and I object to it. 17 THE COURT: Overruled. 18 Q. The answer is that's not the only iwa y the 19 hypothesis can be tested. It can be tested in other w a y s . 20 The way to approach the equi l i b r i u m is dependent on the 21 half-life. If the half-life for excretion was 50 years or 22 so, yes, you would not reach e q u i librium for more than a 23 h u n d r e d . 24 Q. You don't know what the half-life for excretion is, 87 1 sir? 2 A. I believe I do. 3 Q, Oh, how did you learn that, Doctor? 4 A, I believe I learned it by inferring from the same 5 metabolizing experiment that we have been describing and the 6 other experience with other similar chemicals on humans, I 7 believe it's about two years. 3 Q. Well, nov7, Doctor, I thought you told us y e s t erday 9 that it could be as much as forty years? 10 A. Wo, sir, I did not. 11 0. You did not say that, sir? 12 A. Wo, sir. 13 Q. Did you -- do you remember using the term forty 14 years, Doctor? 15 A. X do. 16 Q. And do you remember the context that you used it 17 in? 13 A. Yes, sir, it was the context v;hen you asked me to 19 assume that the half-life might be five years and you asked 20 me to guess how long it might take to reach equilibrium. 21 Q. And the half-life you stated in your papers in your 22 handwriting it was three to five years? 23 A. I stated that at one time, I believe that estimate 24 was high now. 88 1 Q. Well, based upon your then estimate in 1934 that it 2 was five years, could be as much as five years, didn't you 3 say that it could take forty years for that steady state to 4 be reached? .5 A. Yes, s i r , I did. 6 Q. Yes. And, it could be a hundred years for that 7 steady state to be reached, couldn't it, sir? 3 A. If the half-life were long enough it could be. 9 Q. If it's a half-life of five years? 10 A. Wo, sir. 11 Q. Oh, no? It could be forty but not a hundred? 12 A. That's correct. 13 Q. How much could it be? How much closer to a hundred 14 could it get, fifty? 15 A. No, sir, it actually -- it would depend in part on 16 hov; close to equil i b r i u m you wanted to obtain, and 17 math e m a t i c a ll y is one of those described as infinite series 13 one-half plus one-half and one-quarter, one-quarter plus 19 one-eighth, and so on and, so on, in about five periods you 20 reach 95 percent of the way to equilibrium. 1 21 Q. Half-life for five years, you xvould say I would 22 reach essentially the equilibrium in 25 to 30 years? 25 to 23 30 years. So to prove your theory what you would have to do, 24 subject an animal, of course, they don't live this long 89 i 1 unless they are elephants and tortoises, you'd have to 2 subject a human being to this dioxin for whatever measured 3 amount you want to give for a period of 25 to 30 years? 4 A. r No, sir. f 5 Q. Wo? You could pro v e it some other w a y other than 6 that, sir? 7 A. Yes. 8 Q, , And that would be what> sir? 1 9 A. If t h e r e .existed a 1 subject who wou l d - b e w i l ling t o > 10 undergo the biopsy serially over a period of tv/o to four H years, you could test that quit directly by that method. If 12 there were any change or significant change, that would 13 enable you to show appro x i m a t e ly what the half-life might be. 14 Q. So somebody would have^to agree to take biopsies 15 serially over a period of four years to test your hypothesis, 16 to prove your hypothesis? 17 A,- Or some p eriod of time consistent w i t h the 18 h a l f - l i f e . 19 Q. Doctor, have there been any studies of which you 20 are aware that even remotely suggests that biopsies have been . 21 taken from humans or animals over a period of time that could 22 even come close to proving your theory? 23 A. -I'believe the McNulty study analyzed -- 24 Q. We got through the M c N ulty study, that was one dose SO 1 in one animal for one year? 2 A. I believe you told me that he sampled the animal 3 over the period of the year, did he not? Aas Q. He did, he took more than one test in the period of 5 a year. 6 A. If the half-life in the monkey is-about a year, a 7 year v/ould suffice to show if that's a p p r o x i m a t e ly the 8 half-life. 3 Q. Yes, but that doesn't show anything about the state 10 of equilibrium that the excretion equals, the amount of the 11 intake, sir? \ 12 A. Yes, it does. 13 Q. Oh, Dr. Wilson -- you have no judgment at this 14 point in time how additional dioxin in a body is going to 15 effect, and you are not using any h e alth effects of this 16 dioxin in the body, as you take in more dioxin there are 17 going to be more health effects, are there not? 18 A. Mot necessarily, no. 13 Q. Oh, not necessarily? Sir, isn't dose and health 20 effects, isn't there a relation in many instances, sir? 21 A. I believe it's generally accepted to be the case, 22 yes. 23 Q. And the more your body accumulates, the more 24 dilatorious health effects there will be from that dioxin or 31 1 any other poison for that matter that's accumulated in the 2 body, isn't that correct, sir? 3 A- I d o n 't know that to be a fact, no. 4 Q. You don't know that to be a fact, sir? D i d n 't we 5 go through with you on the arsenic accumulation? Didn't we 6 ask you about that, how you can kill somebody with little 7 bitty doses of arsenic that accumulate over a period of time? 8 A. I don't think so. 9 Q. You do know that to be a fact? 10 A. What I know to be a fact, there are doses of 11 atsenic that you can give for that that will cause no ill 12 e f f e c t s . 13 Q. Small enough doses? 14 A. Yes, sir. 15 Q. But you also know, Doctor, that if you give doses, 16 small doses, not enough to kill you, but over a p eriod of 17 time it will gradu a l l y make you sicker and sicker because it 18 accumulates in the body and will gradually kill you, you know 19 that, don't you, sir? 20 A. I'm not sure. 21 Q. You don't know that either? 22 A. I don't know whether that's true or not, it might 23 b e . 24 G, You don't know that people have been convicted of 92 1 murder for doing just that very thing? 2 A. No, sir, I d o n 1to 3 Q. You h a v e n 1t heard of any d i s g runtled wives that got '4 rid of their husbands, and again visa versa, where they fed, 5 where the wife put a little bit of arsenic in the food every 6 day and they got sicker and sicker over a period of time 7 HR. MUSGRAVE: Object to c o u n s e l 's questioning 8 along this line unless he intends to bring in evidence as to 9 the amounts involved here so there is some relevancy and 10 materiality to the issue here in this lawsuit, 'Your Honor. 11 Speculation and conjecture on Mr. C a r r 's part. 12 MR. CARR: The only point I w ish to establish by 13 this line of questioning by this witness is that toxic 14 substances that accumulate in the body can have additional 15 harmful effects because of the additional accumulation of 16 toxic substances. The witness apparently doesn't want to ! 17 agree with t h a t . 18 THE COURT: Objection is overruled. 19 Q. (by Mr. C^rr) Doctor, I take it then your feeling 20 is that no matter how much TCDD is accumulated in the body, 21 that that additional TCDD is not going to have a harmful 22 effect on that person or that animal that has the additional 23 TCDD given to it or h i m or her? 24 A. You asked me no matter how much? No, sir, I d o n 't 93 1 agree with that* 2 ' Q. Then do you agree that you can accumulate doses of 3 dioxin in the body, sir? '4 A. You can to a point, yes. 5 Q. And, during that time that you are accumulating 6 that dose will not the greater amount have more.harmful 7 effects than the lesser amount, sir? 3 A. Wot necessarily. 9 , Q, Well, not necessarily, I guess that's another 10 technical answer. Can it be ordinarily, sir? 11 A. It depends entirely o n thov/ much that larger amount 12 is. If the larger amount enough is to cause effects, then it 13 will cause effects. If it's not, it won't, depends entirely 14i. on the size. 15 Q. The amount added to the smaller amount, gets is; larger, doesn't it, sir? 17 A. Depends entirely on the circumstances and entirely 13 on the amounts involved. 19 Q. Doctor, the answer to my question can be yes or no, 20: that the amount -- you do a c cumulate amounts, that you add, 21 when you add one amount to another you have a greater amount, 22 don't you, sir? 23 A. , That statement is correct. 24 Q, Yes, w he n you add something to that you have an 94 1 even greater amount, don't you, sir? 2 A. Depends on h o w long has occurred between the first 3 addition and the second addition. If a long time has 4 occurred, you may have less than you had before. 5 Q. The next day we were talking about b i o - accumulation 6 of TCDD in tissue, we weren't talking about a dose a year, we 7 were talking about every day of your life exposure to TCDD, 8 every day of your life in the case of experimental monkey, 9 you are putting TCDD in there, that's what we are talking 10 about, Doctor. Did you not understand that's what my 11 questions were directed to? 12 A. That's correct, I did not understand that. 13 Q. You did not understand that? 14 A. I did not understand. 15 Q. You did not understand that? 16 A. That's correct. 17 Q. Dr. Wilson, we are talking about testing your 18 thesis in which you said accumulation of dioxin through food 19 in human beings, because you know they eat food every day, 20 you had to be talking about ingestion or accumulation of 21 dioxin on a daily basis, did you not, sir? 22 A. I was in that instance, yes. 23 Q. You recall that's what we are talking about, that's 24 what this cross examination this afternoon thus far has been 95 1 about, ar you aware of that now, sir? 2 A, I understand that. 3 Q. Do I have to re-define that every time I ask you a 4 question about it, sir? 5 A. It may be. MR. MUSGRAVEs Are you suggesting, counsel, that 7 every time you ask a question now he's to suppose that you 3 are talking about a dally intake? 9 Q. Dr. Uilson, you do understand we are talking about 10 your theory, right? 11 A. I understand that now, yes. 12 Q. Your theory was based upon daily intake, right? 13 A. Yes, it was. 14 Q. You didn't understand that before, is that correct, 15 sir? 16 A. You were talking about arsenic, no, sir, I didn't 17 understand that. 13 Q. You were talking about accumulation of toxic 19 substances in your body that it will have a dilatorious 20 effects, the more you add the more likely it is to have a 21 harmful effect, isn't that correct, sir, isn't that what we 22 were talking about? You wouldn't agree with that? You 23 recall that, sir? 24 A. No, sir, I don't recall that. 96 1 Q. All right. 2 A. I don't think that's what you asked. 3 Q. Well, let me remind you, we were talking about 4 that, sir, Whether or not adding additional amounts of toxic 5 substances on a daily basis to a person would add to the 5 harmful effects of that toxic suostance to that person, are 7 you with me now, Dr. Wilson? 3 A. Are you asking me -- 9 0. I just want to know if you understand what I'm 10 asking you about, Dr. Wilson? ^ 11 A. I think I do, but I'm not sure. 12 Q. Dr. Wilson, then do you -- do you not agree that 13 adding amounts of any poison and especially the most toxic 14 synthetic substance known to man, TCDD, added to chat person 15 or an animals diet on a daily basis, whether it's on a diet 16 are take it in, be more likely to cause harmful effects to 17 that person than if the additional amounts were not added? 13 A. That's true, that's correct, yes. 19 Q. And, Doctor, do you not agree then that the 20 additional effect of dioxin could effect the rate of 21 metabolism, could effect your enzymes, could effect your 22 immune system, could effect all kinds of things, couldn't it, 23 sir? 24 A. It is possible that all those things can happen, 97 1 yes. 2 Q. As a matter of fact, you know that the monkey, just 3 that one dose, lost forty percent of its weight in the first 4 three months? You know that, too, don't you, sir? 5 A. I don't remember for sure if that was the paper 6 where that was discussed, but I remember reading a paper 7 where that effect was described, yes. 8 Q. Doctor, you know then that the rate of m e t a b o l i s m 9 of TCDD in your body simply won't work on a mathematical 10 formulation that the m e t a b o l i s m of the TCDD in the body is 11 going to be affected by what that TCDD has done to that body, 12 isn't that correct, sir? 13 A. I'm not sure that that is correct, no. 14 Q. Well, you do know the studies have been done on 15 immune and cancer and weight loss, and neuro, neuropathy, 16 these and all those things in the animals had bad effects, 17 you do know those things, don't you, sir? 18 A. I've read some of those, yes. 19 Q. You believe those bad things happening to those 20 animals, making them sick might effect the way their body 21 reacts to poisons and the way their body will metabolize 22 poisons? 23 A. It might do that, yes. 24- Q. Might have an effect on their liver, which is the 98 1 detoxifying organ, might it not, Doctor? 2 A, Well, it might have an effect on the liver, bat the 3 liver is not the only detoxifying organ. 4 Q. Did I say it was the only detoxifying organ? It is 5 the major organ, is it not, sir? 6 A. I don't know that that's necessarily the case. 7 Q. You don't know that. All right. Doctor, you do 8 know dioxin will have an effect and it will effect thereby, 9 if it makes the animal or the human sick, that will effect 10 the ability of that body to metabolize, excrete, detoxify, 11 get rid of that poison, won't it, sir? Or do you know that? 12 A. I'm not sure that it will. I don't know. 13 Q. You don't know. You simply don't have an opinion, 14 one way or the other? 15 A. My opinion is that eventually, if a person or 16 animal were near death, it might effect the rate, but that 17 lower dose is that it probably would have little effect, in 18 fact, what I've read suggests that because of the stimulation 19 of the same detoxifying enzymes, that it might rid itself of 20 larger amounts faster than it would rid itself of smaller 21 amounts:. 22 O. On a daily dose basis, Doctor? 23 A. Y e s , s i r . 24 Q. Doctor, are you suggesting that your theory now is 99 1 taken into account all the ramifications from a metabolic 2 involvement, liver, kidney, and all that viewpoint when you 3 talk about your steady state -- 4 A. All those r a m i f i c a t i o n s . 5 Q. Yes? 6 A. I don't know that it has, no. 7 Q. H o w f Doctor, Mr. Musgrave asked you about the 8 incineration at Sturgeon. If I meant to suggest to you that 9 the people of Sturgeon are not subject in some way or another 10 from the incineration of chlorinated phenols from St. Louis 11 or Kansas City or some other large city that incinerates its 12 phenols, please rest assured that I made no such thesis. As 13 a matter of fact, I believe and it is my thesis here that the 14 incineration of the chlorinated phenols that Monsanto and 15 other chemical companies have manufactured for a long period 15 of time is causing TCDD to be spread in one w a y all over the 17 country, including Sturgeon, so if Mr. Musgrave suggested to 18 you that I didn't include Sturgeon in that contamination of 19 their area, please believe me, I do. And, the TCDD that's in 20 the body tissue, Dr. Wilson, you know it's in the body 21 tissue, at least you know based upon the studies that you 22 made, but you know it's in the body tissue of the p eople at 23 Sturgeon? You know that, don't you, sir? 24 A. I don't know that it is, I believe that it p r o b a b l y 100 1 is. 2 Q. Well, I used too strong a word when I said no, 3 because you don't know, but you assume from the evidence you 4 have as to what has happened to the human population, at 5 least? the American popul a t i o n and the Canadian po p u l a t i o n to 6 being exposed to T C D D , you know that it's very likely that it 7 would be in their body whether that tank car spilled or not, 8 don't you, sir? 9 A. Yes, sir, that's correct. 10 Q. And the spilling of the tank car adds to that body 11 burden, if there was TCDD in that tank car to which they were 12 exposed, doesn't it, sir? 13 A. You are asking me to assume. If you assume those 14 things, yes, it would. 15 Q. Doctor, as a matter of fact, you hypothe s i s e d once 15 upon a time that the farmer burning, having a burning barrel 17 on his farm, would be a source of his own contamination, 18 didn't you? 19 A. Something to that effect, yes. 20 Q. And, you dropped that, Doctor. I didn't see that 21 in any more papers after the one. Are you suggesting now 22 that the farmers of Sturgeon who might burn wood on their 23 farms are not contaminating themselves now with TCDD? 24 A. First of all, I don't understand which one you are 101 1 referring to. But -- and I believe that people who are 2 burning trash contaminated themselves,I don'tknow,butthey 3 are producing dioxins, and theycould be exposingthemselves, 4 yes. 5 Q. Doctor, the trash, and you suggested that a poster 6 supported your theory, Mr. Musgrave talked to you about that, 7 the point of fact the poster that you talked about this 3 morning was one that was asking municipal incineration, was 9 it not, sir? 10 A. Mo, sir. 11 Q. All kinds of wastes? 12 A. No. There were several that we were talking about 13 this morning, I think. 14 Q. He asked you in talking about the poster that he 15 said I guffawed at, and as a matter of fact I objected to the 16 reference to it, you said it was a writing, I suggested that 17 wasn't the kind of writing I was talking about. In any 18 event, he brought it out, that poster that you were talking 19 about then. You got it in context now what I was talking 20 about, that context that you described this m o r ning v/as one 21 that was dealing with municipal incineration of waste, was it 22 n o t , s i r , trash? 23 A. I don't think it v/as. 24 Q. Doctor, isn't that what you just testified to this 102 1 morning with that poster? 2 A. I believe v/hat I testified to this morning is that 3 there were other posters given at that same session which 4 discussed municipal incineration and an output of 5 chlorodibenzo-diox i n s and d i b e n z o - f u r a n s , the one I v/as 6 referring to that talked about accumulation in the human body 7 v/as one, if I recall correctly, talking''about environmental 8 fate of chlorodibenzo-dioxins and fusans released to the 9 environment. 10 Q. And the question that Musgrave asked you v/as 11 whether' or not you had any evidence that burning anything 12 other than chlorin a t e d phenols would cause TCDD's to be 13 formed in the municipal incineration. And you suggested to 14 him that you saw a poster. 15 A, I don't think that's correct. 15 Q. Well, if that's not correct, we won't spend any 17 more time on that. But you do knov/ in every case where they 18 have found TCDD in the ash and in the fumes, the result of 19 the municipal incinerations, they have been incinerating 20 among other things products that have contained chlorinated 21 phenols, haven't they, sir? 22 A. I really don't know, possibly.' 23 Q. Doctor, insofar as you men t i o n e d that burning wood 24 v/as somewhat similar to burning paper, wood burning that you 103 1 were d i s c u s s i n g , they have burned the- wood from forests that 2 have been treated with various chlorinated phenols at one 3 time or another, have they not, sir? 4 A. I d o n 't think t h a t 's the case, no. 5 Q. You don't think that|s the case. Don't you know 6 that's exactly what Dow, the bow study you are talking about, 7 isn't it, sir? 8 A. No, sir. 9 * 0. , W hose study is it? 10 A. ,'Some work that was reported by Dr. Tiernan, as I 11 understand he scraped the soot from his fireplace and 12 measured* chlorodib e nso-dioxins of some kind in them. He 13 lives in Southern Ohio, I assume -- 14 Q. He found 2,3,7,8-TCDD in his fireplace? 15 A. All I know is that he was reported in another 16 document to have h i s . results were quoted as finding 17 chlorodibenzo-^dioxins in the soot in his fireplace, not in i 18 the a s h rand not -- 19 Q. Doctor, what you are talking about you saw a 20 second-hand report .of Dr. Tiernan's, you didn't even see Dr. 21 Tiernan's report, you are quoting here as evidence in t h i s 22 court when Mr. Musgrave asked you the question, you are 23 quoting a t h i r d - h a n d report of Dr. Tiernan's. You've never 24. seen it .published by Dr. Tiernan -- seen somebody that gave 104 1 you a document that you said quoted Dr. Tiernan's to have 2 found dioxins in his fireplace s o o t r is that what you are "o> saying, sir? 4 A. I didn't follovi all that, but I think that's what 5 I'm saying. 6 Q. nd you are not even -- didn't even describe it as 7 being 2,3,7,G-TCDD, did it, sir? 8 , I don't know what it describes it as, 9 chlorodibenao-dioxins. 10 Q. Do you have any other -- you can't cite me to an 11 article that says that, can you, sir? 12 A. I can 11 right o f f h a n d , n o . 13 Q. You can't cite me to an article that Dr. Tiernan 14 wrote that says that, can you, sir? 15 A. I cannot, not right now. I would have to find it. 16 Q. Doctor, you do know that the, the studies that have 17 been published dealing with dioxins found as a result of 13 burning wood was where the wood had been treated with 19 pentachlorophenol or the forest had been treated with silvex 20 or some other chlorinated phenol based herbicide, you do know 21 that, don't you, sir? 22 A. Mo, sir. 23 Q. You don't know that? 24 A. I don't know that. 105 1 Q. Isn't that what do you did, sir? 2 A. I d o n 't b e l i e v e . 3 Q. Well, if you don't, do you have any document- do 4 you have any knowledge of any studies where they found it in 5 wood that had not been treated with some form of chlorinated 6 phenol? 7 A. I recall something in one of the Dow articles where 8 again they did what Dr. Tiernan has reported third-hand to 9 have done, scraped soot from somebody's fire place, what is 10 ordinarily burned in fireplace wood is oak, elm, hard v/oods, those are not typi c a l l y forest that silvex is used to treat 12 because the silvex kills the oak and elm and so on. 13 Q. Now, you are talking about somebody scraped soot 14 from somebody elses fireplace? 15 A. I believe that's the case. 16 Q. That's a study also that Dow put out? 17 A. I believe that's quoted in one of the Dow studies 18 as well. 19 Q. W e l l , D o c t o r , you c a n 11 direct us to it at this 20 point, is that right? 21 A. Not right offhand, no. 22 Q. Now, Doctor, Mr. I-Iusgrave also talked to you about 23 2,4-D. No document ever -- n obody ever found dioxin, 24 2,3,7,0-TCDD in 2,4-D, do you recall that, sir? 106 1 A. I believe so, yes. 2 Q. Do you know whether or not anyone has ever tested J 2.4- D that has been made with Monsanto 2,4-dichlorophenol? 4 A. Yes, I believe so. 5 Q. And who is that? 6 A. The Canadian government. 7 Q. Canadian government tested 2,4-D made by Monsanto's 3 2.4- dichlorophenol? Do you have a document that supports 9 that, sir? 10 A. There was a paper pub l i s h e d by Dr. Cochran and two 11 of his associates, I c a n 't remember the journal right 12 offhand, which described testing of all of the different 13 2.4- D herbicides which were imported into Canada, I believe 14 in 1981, reported finding no 2,3,7,8-TCDD; I know that 15 Fallek-Lancro or Diamond- S h a mr o c k 2,4-D was imported into 15 Canada at that time. Therefore, conclude that there was . 17 Monsanto 2,4-DCP that v/as tested by the government of Canada 18 in that herbicide. 19 Q. Well, if that's so, you don't knov7 whether it was a 20 batch of 2,4-D that was made from Monsanto 2,4-dichlorophenol 21 that had TCDD in it, do you, sir? 22 A. Mo, I don't. 23 Q. Because you do know that most of the batches, as 24 you've testified to that were produced in 1980, of 107 1 2.4- dichlorophenol ha d no detectable 2,4-dichlor, T C D D in it, 2 do you"recall that, don't you, sir? 3 A. I believe that's the case, yes. 4 Q. So it could well be that the 2,4^0, if what you say 5 is correct, that the 2,4-D that the Canadian government -St tested w a s 'made from one o f the batches of M o nsanto 7 2.4- dichlorophenol that did not contain TCDD, isn't that 8 correct/' sir? , a. A.- That's correct, yes. 10 Q. May well be they did not test a batch of Monsa n t o ' s 11 derived from Monsanto's 2,4-dichlorophenol that contained 12 those, levels of TCDD that we have in those exhibits, isn't 13 that correct, sir? 14 A. Yes, sir. It-was such a rare o c currence that might 15 very well 'have happened. 16 Q. Yes, and 'it was a rare o c currence after you learned 17 that using caustic created TCDD, we don't know h o w rare it 18 was before 1979, do we, sir? 19 A. That's correct. 20 Q. We don't know but what the caustic that you. used 21 before 1979 made levels of T C D D and 2 , 3 , 7 , 8-TCDD in 22 the hundred parts per billion for years and years and years 23 in the 2,4-D that .went on our lawns, we don't know that, do 24 w e , sir? 1 108 1 A. I don't think we know very much about that, that's 2 correct,, 3 Q. We do know caustic was being used in all those 4 years, and v/e do know that caustic created T C D D 's . We do 5 know that for a fact, don't we, sir? 6 A. We know it did sometimes anyway, yes. 7 Q. And we do know that counsel talked about the Lysol, 8 you don't know whether or not any Lysol has ever been tested 9 that had Monsanto Santophen in it where the Santophen had the 10 levels of T C D D , you don't know that either, do you, sir? 11 A. I have seen no reports of Lysol being tested, no. 12 Q. So as far as you know, the batches of Santophen 13 that were made before the Sturgeon spill ac q u a i n t e d you with 14 'the nature of the p r o b l e m that existed, all the Santophen 15 that was, that was created had those same levels of TCDD as 16 shown in those exhibits that we have had introduced here 17 earlier for the pre-1979 tests, isn't that correct, sir, you 18 remember the T o m Taulli test, October 15th, 1973? 19 A. I believe those are probably repetitive of early 20 production, yes. 21 Q. We don't know that any Lysol or hosp i t a l herbicide 22 made with the pre-1979 Santophen has ever been tested for 23 TCDD, do we, sir? 24 A. I don't know of any, that's correct. 109 1 Q. Now, 'Doctor, Mr. Musgrave asked you some questions 2 about the fat sample testing at Sturgeon, did you -- when I 3 was hypothesizing with you, sir, that five parts per trillon 4 added on a daily doseage would accumulate in certain amounts 5 so that over a long period of time there'would be a lot there 6 and it would not be excreted, you didn't consider that I was 7 suggesting that the -- that in fact the people of Sturgeon 8 were taking in five parts per trillon every day, you didn't 9 understand that to be .the case, did you, sir? 10 A. I really don't know, I don't know -- 11 Q. You do know that I was using that as a hypothe t i c a l ,, 12 example to establish that there would be a 'lot of TCDD 13 accumulated in that person or the people of Sturgeon, if they 14 were taking in five parts per trillon, but not that I was 15' suggesting that in fact they were taking in five parts per 16 trillon, you understand that, sir?' 17 MR. MUSGRAVE: If it was a hypothetical has no 18 basis in fact, Mr. Carr. 19 A. I guess I assumed you prob a b l y were talking about 20 the people in Sturgeon, yes. 21 Q. Well, if I was talki n g * a b o ut the p e ople at 22 Sturgeon, you know that at the end of one year, they would 23 have what, nearly two. parts per billion of T C D D in their fat 24 tissue if they were taking in five parts per trillon daily? 110 i i 1 They w o u l d n 't even be alive if they were taking in that much 2 on a daily basis.3 A. Of course they would. 4 Q. If you were talking about five p a r t s , take in five 5 pavrts per trillon daily, if it has a half-life of five years 6 for convenience we can use that even though you might not 7 agree to it, that means that the end of the first year, '8 one-tenth of that first d a y 's TCDD has been excreted, d o e s n 't 9 it, sir? 10 HR. MUSGRAVEs You are asking h i m to assume that as 11 hypothetical fact? 12 MR. CARR: Yes. 13 A. Would you say that again, one-tenth w o u l d be 14 excreted'. 15 Q. If it has a half-life of five years? 16 A. Uh-huh. 17 Q. So that fifty percent of it will be gone at the end 18 of five years, that means at the end of one year, one-tenth 19 of it would be gone, ten percent would be gone at the end of 20 one year? 21 A. What it really means is that 20 percent of what had 22 been accumulated in the first year would be gone, a fifth of 23 the period you are accumulating at rates of 20' percent of -- 24 Q. Then it would all be gone at the end of five years, 111 1 Doctor, it's ten percent? 2 A. But it's not a linear, i t 's not a direct linear q relationship, it's something that -- 4 O. It's an average? 5 A. No, it's an inverse relationship, and you c a n 't 6 draw the conclusion that way, the mathematics are more 7 complicated than that. It's some sort of -- the amount would 8 be gone after the first fraction' is dependent on one over the 9 half-life or the anti-logarithm of one over the half-life and 10 i t 's not necessarily equal to a fifth or a tenth. .1 can't 11 tell you what it would be offhand without going through the 12 c a l c u l a t i o n . 13 Q. What you do know if you took in five parts per 14 trillon on a daily basis and had no logarithms to contend 15 with, you would been taking in on an average of four, if you 16 reduced it by ten percent, it would be an average of 4.75 for 17 all that you had taken in during that year. 18 MR. MUSGRAVE: Are you asking this as a 19 hypothetical question? 20 MR. CARR; Indeed I am. 21 MR. MUSGRAVE; Because you are saying you do know 22 that if you d o n 't have logarithm to contend with, which is 23 contrary, so I'd appreciate it if you'd now ask hi m to assume 24 hypothetical facts, and if you are asking hi m to assume 112 1 hypothetical facts, there are no facts in evidence to support 2 that assumption, Your Honor, I object to it. 3 THE COURT: Objection is overruled. 4 Q. Doctor, the five parts per trillon that was taken 5 in on the first day, at the end of the first year, it w ill 6 have lived one-fifth of its five year half-life, vzould it 7 not, sir? 8 A, I think that's correct, yes. 9 Q. And if a half-life is five years, that would be, 10 you could say that's one-tenth then at the end of that first 11 year, couldn't you, sir, one half of one-fifth, is one-tenth, 12 isn't it, sir? 13 A. No, sir, because of the nature of the m a thematical 14 relationship, more disappears in the first fraction than in 15 the second, than in the third, in the fourth, bigger, 16 smaller, smaller, smaller, like that. 17 Q. So v/hat you are saying is it 'would be less chan 13 one-tenth would disappear by the end of the first year? 19 A. No, sir, more than. 20 Q. How much more, sir? 21 A, I can't answer that without going through the 22 c a l c u l a t i o n . 23 Q. Would it be for just rough calculation, would it be 24 significantly greater than one-tenth, could we say that the 113 1 average you took in five parts per trillon on the first day, 2 and then-five parts per trillon the second day, and on 3 through the 365 days, can we not say for our purposes here 4 today, that v?e could say you have an average of 4.75 daily 5 intake for that year, sir? ' 6 A. We can assume that, yes. i. 7 Q. L W o uld that be fairly close, wouldn't it, Doctor, 8 without being mathematically precise? 9 A. ' I don't know, somewhere in there. 10 Q. 1 4.75 times 65 would be 1733? I did it earlier. 11 A. Something like that, yes,. 12 Q. 1733 parts per trillon is 1.7 parts per trillon 13 that would be in the body at the end of that first year if 14 you took in five parts per trillon on a daily basis that had 15 a half-life of five years? IS A . - You are talking about five parts per trillon in the 17 food supply? 18 Q. Y e s , t h a t 1s r i g h t . 19 A. X think that's making those assumptions. \% 20 Q. So that at the end of one year that would have 21 accumulated take into account the. Half-life factor so that 22 there is 1.7 parts per trillon in the tissue, isn't that i! 23 correct right, sir? 24 ' A. If all those assumptions are correct, yes. 114 X Q. At the end of five years it would still be reduced 2 but every day of those five years you are taking in more, so 3 that by the end of five years, you actually got nearly seven 4 parts per billion in the fat tissue? 5 A. If that's the way arithmatic comes out making all 6 those assumptions, I'd accept that. 7 Q. Nov/, Doctor, there has been no human anywhere 8 that's ever found to have as much as seven parts per billion S in there fat tissue, isn't that correct, sir? 10 A. The lady at Seveso v/as three, I think. 11 Q. 1340 parts per trillon in her? 12 A. Two, all right. Two is the highest that I know. 13 Q. And, hers was on a doseage that lasted I think six 14 weeks before they finally got her out of there? 15 A. Several weeks, whatever it was. 16 Q. Now, Doctor, the suggestion that Mr. Musgrave would 17 make that our people are taking in five parts per trillon on 13 a daily basis, that would be something that just would be 19 absolutely incredible. 20 MR. MUSGRAVE: Object to that, that's a total 21 mischaracterization and done intentionally, I made no 22 suggestion. I suggested that Mr. Carr suggested it, Your 23 Honor. I think he knows that. 24 THE COURT: Objection is overruled. 115 1 Q. Cby Mr. Carr) Doctor, the fat sample tests that 2 were taken, you are aware of the fact that there is no 3 medical reason for the people at Sturgeon to have their fat A sample, their fat tissue tested, are you aware of that, 5 aren't you, sir? 6 A. Mo, sir, I don't know anything about that. 7 0. You know of any doctor that would have ever 3 suggested other than in the c a s e , of course, you d o n 11 even 9 know that, in the case of Gary Mason they had, the doctor 10 recommended it be tested, do you know of any doctor that has 11 ever recommended that the fat tissue the people at Sturgeon, 12 or the workers at Nitro, or workers at lirummrich, or workers 13 anywhere be tested for dioxin in the fats? 14 A. Do I know of any doctors that recommended that? 15 No, I don't. IS Q. Now, Monsanto in 1979 went through a study of its 17 Xrummrich plant workers that were in the chlorophenol 18 department, you do know that, don't you, sir? 19 A. I've heard something about that, yes. 20 Q. Nobody recommended there that those people go 21 through a fat sample test to find out whether or not they got 22 dioxin in their fat, did they, sir? 23 A. I don't know whether they did or not, I know very 24 little about that. 116 1 Q, Haven't you seen the report? t 2 A. N o f I haven't. 3 Q. Went through the standard l a b o r a t o r i e s , but nobody 4 suggested they take the fat tissue from them, you don't know 5 that either, sir? 6 `A. No, I don't know anything about that. I 7 Q. You do know how much' Roush says that you need for a 8 test, don't you, 125 grams is required? 9 A. r I know that's what we requested from the cadavers. 10 Q-. ` No, you w anted a pound, but you said 100 -- mi n i m u m 11 of 125 grams is needed for analysis. Could you get exhibit 12 1397? 13 A. Yes, that's w h a t we requested, the m i n i m u m of 125 14 grams / . 15 Q. Possible a pound of fat rneeded specimens are to be 16 taken from -- I 'll w a i f until she, gets it for you. 125 grams 17 is four ounces, isn't it, sir? 18 , A. Approximately. 19 Q. And, he says if dioxin^is hot found in the 125 gram 20 specimen, analysis would be repeated using the remainder of 21 the fat specimen, that is whatever t h e y can get over 125 22 grams up to a pound to insure that a c o ncentration .below ten J 23 parts per trilion has not been missed, do you see that, sir? 24 A. Yes. 117 1 Q. What he's talking about with 125 gram specimen from 2 those cadavers, that they could test down to 10 parts per 3 trillon? A A. M o , s i r . 5 Q. No? 6 A. What he says that -- 7 Q. Doctor, let's look at that. 8 A. All r i g h t , l e t 's . 9 Q. The sentence says if dioxin is not found in the 125 10 grams specimen, then analysis will be repeated using the 11 remainder of the fat specimen to insure that a concentration 12 below 10 parts per trillon has not been missed. The method 13 of analysis with this size sample is sensitive to less than 14 one part per trillon, isn't that exactly what he said? 15 A. That's exactly what he said. 16 Q. He's talking about the 125 gram specimen, if they 17 don't find it in that specimen then you are going to have 18 analysis with the remainder of that pound of fat? 19 A. That's what he says. 20 Q. And with that remainder of the pound: of fat, that 21 would be, if 125 grams is four ounces, that would be twelve 22 ounces left, with twelve ounces you can get sensitive down to 23 one part per trillon, is what he's saying, isn't he? 24 A. That's not the w a y I interpret that, I mean it to 113 1 say at four ounces you can get it less than one part per 2 trillon. 3 Q. He just got through saying in the sentence above 4 it, dioxins not found 125 gram specimen, then the analysis 5 would be repeated using the remainder of the fat specimen to 6 insure that concentration be below ten parts per trillon has 7 not been missed. I s n 't he talking about his ten parts per 3 trillon based upon the 125 grams specimen? 9 A. I don't think so, no. 10 Q. Doctor, isn't that what he's saying? You have the 11 exhibit in front of you? 12 A. I do. 13 Q. Isn't that what he's saying? 14 A. I think you read it correctly, y e s . 15 Q. Now, Doctor, do you know ho w painful it would be to 16 take 125 gram specimen, four ounces from a human body? 17 A. No, sir. 18 Q. You have no idea of that? Do you know any doctor 19 anywhere that would recommend taking 125 grams of fat from 20 somebody to test to see whether or not they got dioxins in 21 the fat? 22 A. I don't know that I know any doctor who w o u l d make 23 such recommendations at all of any quantity. i 24 Q. Doctor, the only purpose to take fat' samples from 119 1 the people at Sturgeon would be to find out whether or n o t , 2 TCDD is there, isn't that right, sir? 3 A. Wo, sir. 4 Q. Oh, no, what other purpose could there be?. 5 A. The only purpose that I could imagine, sir, could 6 be to see if the amount there were s ignificantly different 7 from what everybody else has. The fact that it was there 8 would show only that they were like everyone else. 9 Q. Well then, what you are saying, is the purpose for 10 it to be to prove your t heory or disprove your theory of 11 accumulation in steady state, wouldn't it? 12 A. Mo, sir. 13 Q. Isn't that what would happen? 14 A. No, sir, what that would allow someone to show is 15 whether or not they had had significant exposure different 16 from the rest of the population? 17 A. No, Doctor, what it would show whether or not they 13 had a massive one-time exposure, whether or not they have had 19 a small amount of exposure over a long p eriod of time. 20 Q. And you could not d i fferentiate between the two, 21 could you, sir? 22 A. That's what' I said, it would only show w h e t h e r or 23 not they were different from the rest of the population. 24 Q. N o w , Doctor, you do know that fat tissue from the 120 1 people at Sturgeon have been tested or did you know that? 2 A. I'm not sure I did know that, no. 3 Q. Did you not know that orthochlorophenol and ph e n o l 4 was found in the fat tissue of two people at Sturgeon? 5 A. I had not heard that, no. 6 Q. Doctor, we know that the TCDD was in the tank car, 7 we know that, don't we, sir, the OCP? 8 A. I believe we have agreed there was some, yes. `9 Q. And we know that the OCP -- I want you to assume 10 that testimony in this case, that OCP was found in the fat 11 tissue of Joyce and Frances Kemner, would you assume that, 12 sir? 13 A. All right. 14 Q. One of the two, or both, I'm not sure, I know one 15 of the Kemners had, I don't recall which one right now, if 16 not both. Now, if the OCP is in the fat tissue and they 17 tested that down to parts per million, I believe, then, 18 dioxin would be there as well, wouldn't it, sir? 19 A. I believe that's p r o b a b l y true, yes. 20 Q. So we actually don't need to test the fat samples 21 to know that dioxin is in the fat tissue, the people at 22 Sturgeon, do we, sir? 23 A, To know whether there is, I think we can assume 24 there is, yes. 121 1 Q. And, Doctor, if you knoy/ that the fat sample taken 2 by Dr. Zabek for testing for dioxin was one gram, very little 3 bit, you know that, .don't you? 4 A. Mo, sir,. I didn't know that Dr. Zabek was involved 5 in any such tests., 6 Q; You didn't knov? that either? '7 A. Mo. 8 Q. I want you to assume that he was and he took one 9 gram of fat. 10 MR. M U S G R A V E : Dr. Zabek operated on those folks, 11 Mr. Carr, made those biopsies? 12 MR. CARR; Dr. Zabek analyzed the fat tissue, Mr. 13 Musgrave, if you are not aware of that. 14 MR. MUSGRAVE: I didn't ask that question, Mr. 15 Carr. 16 Q. (by Mr. Carr) Dr. Wilson, you are aware-, or are 17 you aware of the fact that Zabek analyzed the fat tissue one 18 g ram sample taken from those folks? 19 A. I was not' until you just men t i o n e d it, no. 20 Q. Do you know v/hat the detection limits Zabek 21 established, it's an exhibit in evidence, you don't know 22 that? 23 A. I don't know what it is, no. 24 Q. You could not -- his detection limit was 72 parts 122 ii 1 per trillon for one person and 47 parts per trillon for 2 another person, sir, assume that. -That means that you could 3 have as much as 40 parts per trillon in the fat tissue of 4 those people and it would not have been detected in that 5 t e s t , doesn't it, sir? 6 A. That's exactly what it means. 7 <Q. The highest, amount of TCDD or 2,3,7,8-TCDD was 3 detected in Viet Nam veterans with what, 35 parts per 9 trillon, heavily exposed to A g e n t .Orange? 10 A. I believe the gross study cited one example of 99. 11 Q. ' The others had 35 and 26 parts per trillon, didn't 12 they? t 13 A. I believe that's correct, yes. 14 Q. And they were described as heav i l y exposed to Agent 15 Orange, weren't they, sir? 16 A. There were three so described, yes. 17 Q. Agent Orange to which they were exposed, Monsanto 18 part of Agent Orange to which they were exposed, had as much 19 as 26 parts per million of T C D D in the 2 , 4 , 5-T, didn't it, 20 sir? 21 A. I don't know that it, did that, n o . J 22 Q. Doctor, didn't we go through -- I don't have the 23 exhibit in front of me, but where your p eople analyzed the 24 production from 65 .through 69 under Agent Orange and that 123 1 there was varying levels at parts per million, 7, 12, 26 2 parts per million? A. I-Iy recollection might be faulty but I believe they 4 were analysing 2,4,5-T which is half the Agent Orange. 5 Q. T h a t 's what I said. 6 A. Half the Agent Orange so even if there were 7 approximately 25 in one sample that the highest in Agent 3 Orange would be 10 parts per million. 9 Q. All right, 10 parts per million, and the veterans 10 that got said one sample of 99 parts per trillon in their fat 11 tissue being exposed to dioxin, are you with me so far, 12 Doctor? 13 A. Yes. 14 Q. They v/ere exposed to Agent Orange that has in the 15 parts per million contamination, weren't they, sir? 15 A. I believe that's the case, yes. 17 Q. Nov/, our people at Sturgeon, sir, of course the 13 veterans in Viet Nam v/ere exposed during the period of time 19 they were using it, and then they came out of that 20 environment, didn't they, sir? 21 A. I believe so, yes. 22 Q. They didn't have chronic long-term, lov/-dose 23 exposure, did they, sir? 24 A. Well, I guess it depends in part on what all you 124 1 mean by all of those things, but some of them were exposed 2 for up to a year and a half, I think, I regard that as a 3 fairly long time but certainly not a long time type of 4 exposure. 5 Q. Doctor, the only reason of which you might be aware 6 for the one moment, please -- The fat samples for the heavily 7 exposed people-were 23, 35, 99 and 63 parts per trillon. 8 A. That sounds correct. 9 Q. We have the exhibit. Whereas the controls had it 10 down to 4, 3, 5, and 44 and 14, you recall that, sir? 11 A. Yes. 12 Q. And, the controls were people that theoretically at ; 13 least were not out in the field in being exposed to dioxin, 14 they were people at the Veterans Hospital, we have been 15 through that already, sir? 16 A. Yes, I believe that's the case. 17 Q. Doctor, then the only reason that you could 18 possibly want to subject the plaintiffs in this case, if Mr. 19 Musgrave is serious in his suggestion, the only p o ssible 20 reason you could have to inflict this very painful process on 21 those plaintiffs, women, men, children, would be to establish 22 not whether or not they have got dioxin in their fat tissue, 23 but simply how much is there, is that right, sir? 24 A. How much? 125 1 Q. How much dioxin is in their fat tissue? 2 A. To establish whether they are different from 3 anybody else, yes. 4 Q. Well, that's .to establish ho w much there is there, 5 isn't that right, sir? 6 A. That's correct. 7 Q. Now, there is no medical reason to do that, simply 8 to prove what in effect might be. Musgrave is serious about 9 it a legal point, because it sure wouldn't be a medical 10 point, would i t , s i r ? 11 A. t I don't know whether any medical purpose would be 12 served or not. 13 Q. Well, you know med i c a l l y speaking w h a t 1s w r o n g with 14 those people, you've heard about that, haven't you? 15 A. No, I have not. 16 Q. You don't know, Dr. Wilson, I cannot believe that 17 you have been working on this dioxin p r o b l e m a s sociated with 18 Sturgeon, for all these years,, you are not aware oJf the 19 afflictions that the plaintiffs in this case have, sir? 20 A. My impression was they are regarded as quite 21 normal. 22 Q. Dr. Wilson, you wrote a memo in which you talked 23 about the possibili t y of a result in this case, I don't 24 intend to get into what you thought would be the result, but 126 1 you had to have investigated at that point in time for you to 2 make such a suggestion, you would have had to have been aware 3 of the fact that they had very'serious ailments, wouldn't 4 you, sir, to make that suggestion that you made? 5 A. .1 guess it's accurate to say that I was aware that 6i allegations were made of that, yes. 7 Q. Now, Doctor, you k n o w `that simply because we say 3 something in a complaint, that's not proof that it's so? I 9 can say anything in that complaint, I can make any allegation XO as their attorney that I want to. .You know that's not proof, 11 don't you, sir? 12 A. X believe that's the case. 13 Q. The result has to be based upon evidence that comes 14 into this courtroo m in the form of exhibits, form of sworn 15 w i t n e s s e s / and all that evidence is subject to cross 16 examination,' M o n s a n t o rgets to put on its doctors, put on its 17 evidence, if 1 ever get finished, and before the jury ever 18 makes a decision, and one of the things they have to look at 19 is the a f f l i c a t i o n s , the ailments that the p l aintiffs have, 20 whether I 've alleged or not, you know that, don't you, sir, 21 what the proof is? 22 A. I think that's the case, yes. 23 Q. Sir, your analysis of this case, based without 24 knowing what the medi c a l evidence,, what the laboratory tests 127 1 show, what Mayo's have said, what immunologists have said, 2 your knowledge is based without knowing anything about those 3 plaintiffs. 4 HR. E-IUSGRAVE; Ma y I object' to any questions 5 directed to this witness to provide any situation of this 6 case which obviously is directed toward questions that are 7 the province of the jury and invading the province of the 3 jury, and if overruled to be a continue objection. 9 THE COURT: Objection is o v e r r u l e d . . It is a 10 continuing objection. 11 A. I really know nothing about the details of the 12 state of health of the people involved in this case. 13 Q. Well, Doctor, then on another point, and the work 14 that you've done, and I know you've done work in toxicology, 15 I know that you've read and studied because you've testified 16 to it. You do know that the reaction that each human has to 17 TCDD, or toxic substance varies from human to human, that I 18 could have in anybody, for instance, perhaps 25 parts per 19 trillon of TCDD, and because of the way my immune system is 20 made and my m e t a b o l i s m rate is made, I may go along and have 21 no effects at all, whereas the next person might have two , 22 parts per trillon in their that tissue and very very bad 23 results, you know that, don't you, sir? Human response 24 varies from person to person? 128 1 A. My impression is that "at those levels? nobody would 2 be effected, but I do know that the susceptibility does vary 3 from person to person. 4 Q. So you could find five parts per trillon in most 5 human bodies and that might not effect most humans, isn't 6 that right, sir? 7 A. My impression is it would effect nobody, yes. 8 Q. Well, do you know that it would effect no one, Dr. 9 Wilson, do you know that, sir? 10 A. I say it's my impression. 11 Q. I know what your impression is, but do you know 12 that it won't, sir? 13 A. Mo, sir. 14 Q. Do you know whether or not the cancer rate that 15 this country has had in the last twenty years can be directly 16 connected with the fact that we now have in our bodies 17 2 , 3 , 7 , 3-TCDD? 18 A. I know that's not the case, yes. 19 Q. You know that's not the case? 20 A. That's correct. 21 Q. How do you know that's not the case, Dr. Wilson? 22 A. The rate of cancer in the last twenty years, last 23 forty years in fact for males is effected, has changed only 24 because of the effect of cigarette smoking and the rate of 129 1 lung cancer. 2 Q. Doctor, ho w do you know that? Don't you know that 3 TCDD is not just an initiator but it's a promoter? We know 4 that cigarette smoking is harmful to the he a l t h and that it 5 causes cancer, no question about that, we-know that, don't 6 we? 7 A ; \ ' T h a t 1s correct. 8 Q. We also know that TCDD can promote the harmful 9 effects of other toxic substances, we know that, too, don't 10 we, sir? 11 A. Experiments have been done in animals which suggest 12. that might be the case under certain circumstances. 13 Q. Dr. Wilson, it ma y well be that the high rate of 14 lung cancer that v/e have today in human males and is now 15 raising in the women can well be because of a synergistic 16 effect or the co-promoting effects between the cigarette 17' smoke and TCDD, isn't that' correct, sir? 18 A. N o , s i r . 19 Q. You don't think that's correct? 20 A. I think that is not correct, sir. 21 Q. Well* you said TCDD does promote, you said in 22 animals, don't you, sir, you don't accept that it is 23 extrapolable over the humans? 24 A. It only prom o t e s in certain strains and under 130 1 certain circumstances, it promotes certain kinds of tumors in 2 skin and apparently retards trie formation of tumors in liver, 3 I know that's not extrapolable to lung. 4 Q. You know that TGDD, the fact that it promotes 5 cancer is not extrapolable to lung? ( 6 A. Doesn't promote cancer in liver, what is it going 7 to do in lung, how can you tell? 3 Q. What you are saying is no way to tell, I'm asking 9 you whether or not you know. You don't know, do you, sir? 10 For all you know, Dr. Wilson, in our bodies, this TCDD can be 11 promoting, might not show up for 30 years from now, 30 years 12 from the exposure, promoting a cancer in everybody, every 13 human being as far as you know, isn't that right, sir? 14 A. No, sir, I know that's not the case. 15 Q. Iiow do you know that's not the case, Dr. Wilson, 16 nobody else knows that's not the case, how do you know that? 17 A. I believe other people have made very similar 18 statements. The basis worldv/ide, the rate of deaths from 19 cancer in people aged under seventy is very similar. 20 Approximately 25 to 30 percent of the population dies from 21 cancer worldwide, the nature of the cause is the kind of 22 cancer, but roughly that number of people die from cancer. 23 The other two-thirds to three-quarters do not under any 24 circumstances. 131 1 Q. Doctor, then I d o n 't see where that falls at all. 2 How does it fall, sir, that TCDD is not promoting the cancer 3 in the bodies of those people that die from the cancer? 4 A. It falls that it's not promoting cancer in 5 everybody, because not everybody gets cancer or dies f r o m it 6 Q. Oh, I see your point. All right. Again, you v;ere 1 technically correct, I agree, I'm sorry, Dr. Wilson. I keep 8 forgetting that, you are technically correct, everybody is 9 not dying from cancer. I agree V7ith that. Doctor, do you 10 have any study to support a t heory that the TCDD that we now 11 have in our bodies is not going to cause serious human 12 ailments to the people at Sturgeon when they have added to 13 that the TCDD that came from the tank car? 14 A. I believe that there are two lines of evidence 15 which lead me to that conclusion. Yes, the first one is that 16 as we discussed a few minutes ago the amount of extra 17 exposure that the people in Sturgeon are getting is so small IS that you believe a p parently it would not be detectable by 19 analytical methods, and therefore they represent the 20 population no different from the rest of the United States 21 population. Second line of evidence is that by Professor 22 Hites at Indiana who suggests that the amount of 23 chlorodibenzo-dioxi n s present in the environment to which we 24 are all exposed has been approximately uniform since about 132 1 1950, thirty-five years ago by my calculation, perhaps as 2 early as 1945. He believes that it started rising fifty 3 years ago, reached a plateau at that time, hadn't been the 4 same since. If they v/ere going to be the same since from 5 those chiorodibenzo-dioxins in the environment they would 6 have shown up by now, and there is no sign of them. 7 THE COURT: Mr. Carr, is this a good point for a 3 short break? 9 MR. CARR: Yes, Your Honor. 10 THE COURT: Ladies and gentlemen, v/e will take a 11 short recess at this time. I would remind you that the 12 admonishments I made earlier V7ill apply during this break 13 a l s o . Court is in r e c e s s . 14 (Follov/ing a recess, these p r o c eedings were had in open 15 c o u r t .) 16 Q, (by Mr. Carr) Dr. Wilson, at the recess, you made 17 a suggestion that somebody had deduced that the TCDD level 13 had not increased since 1950, that is the T C D D in the 19 environment. Who was that that said that? 20 A. Professor of Chemistry at Indiana U., H - i - t - e - s , 21 Ronald Hites. 22 Q. Did he p u b lish that, sir? 23 A. I believe -- I believe that he has published it, I 24 know I also heard him describe the theory in lectures that he 133 1 has given for instance at this -- 2 Q, Your Honor, if it hasn't been published in an 3 authorative article, we can't find it, never found it, 4 because you mentioned it before, I ask the statement be 5 disregarded and the jury be instructed to disregard the 6 statement because it's hearsay on the part of the doctor. 7 Have no w a y of checking whether the doctor is telling us the 3 truth or not. 9 MR. MUSGRAVE: Your Honor, just because Mr. Carr 10 states he believes he's not authorative does not speak for 11 what the witness said, and he has asked the witness about his 12 basis for those beliefs and he has given h i m the basis for 13 his beliefs of an individual Professor of Ch e m i s t r y who gave 14 this at the lecture. 15 THE COURT: Do" you have it, a copy of it? 16 MR. MUSGRAVE: Right here, no, I don't. 17 THE COURT: Do you know it has been published? IS MR. MUSGRAVE: I didn't even know about its 19 existence until Dr. Wi l s o n m e n t ioned it today. 20 THE COURT: Objection is sustained. It's stricken 21 and ordered to be disregarded by the jury. 22 MR. MUSGRAVE: My objection to that be noted? 23 THE COURT: Your objection is noted in the record. 24 Q. (by Mr. Carr) Mow, I'd like to inquire into the 134 1 suggestion of yours, based on what you have now that we know 2 what it's based upon, that it was a statement from Professor 3 Hites to you and not a published article, so now I do want to 4 discuss that with you based upon that. Now, did Dr. Hite 5 come to the conclusion, if he is a doctor, and in 6 conversation that he had with you, now did he tell you that 7 he arrived at a conclusion that the TCDD had not risen in the 8 environment since 1950? 9 A. Dr. Hites, and he is a doctor, he was a student of 10 Professor Beeman's at M.I.T. and mass spectromotist b a s i cally by profession, has studied and has reported on those studies. 12 Q. But I 'm asking you how did he come to the 13 conclusion that TCDD had not increased in our environment 14 since 1950? 15 A. He came to that conclusion by studying sediments in 15, lakes in which he analyzed for chlo r o d i b e n zo - d i o x i n s and 17 chlorodibenzofurans as a function of department w ithin the 18 sediment. It's well known in the science of limnology that 19 sediments are deposited at a more or less constant rate. 20 There are methods for dating the deposition of those 21 sediments and he concluded from studying the sediments at 22 different depths, that there was an approximately constant 23 deposition of chlor o d ibenzofurans and chlorodibenzo-dioxins 24 since about 1950. That before that period, if you are 135 1 looking backward there was a diminishing amount, or if you r 2 are looking forward from about 1930 and increasing. 3 Q. Doctor, though, what he's talking about then, is 4 sediment in lakes, not talking about the environment, is he, 5 sir? Sediment in a lake is a far cry than m y lawn on at my 6 home here in town? 7 A. I suspect that the lawn in your home is built on 8 what were once sediments, sir, so it is not a far cry. 9 Q. Doctor, so much of the rangeland that the cattle 10 graze `upon are not even near lakes and 2,4,5-T and the 11 herbicides sprayed over the vast ranges and it wasn't even 12 used at great extent until the late 5 0 * s? 13 A. r Well, I believe it vas used starting in about 1948. 14 Q. That's w h e n it w a s used, but wasn't even started to is' use great in extent until* the '50'>s, all those 2,4-D, the 16 herbicides, all those things, I don't think Monsanto even 17 started making it until -- 18 A. '47. 19 Q. Sir? 20 A. 1947. 21 Q. Well, in any event, so how on. earth most of the 22 germicides and herbicides that were being made had been 23 produced, have been produced since 1950, how can anybody 24 reach a conclusion that three years after you started making 136 i it it reached a steady state/ didn't increase over that? 2 A. All I can describe is the work that he has done and 3 the conclusions he has drawn from it, you'll have to ask him 4 why he came to that conclusion. 5 Q. Now, Doctor, it's based on that article that you 6 say then as you said before the break, that we. are not going 7 to be subjected to greater risk of cancer because of a TCDD 8 that is being found now in the fat tissue of Americans and 9 Canadians, is that correct, sir. 10 MR. MUSGRAVE; M a y I object to this line of 11 questioning about cancer generally from the ba c k g r o u n d levels 12 that have been found in the environment generally, has 13 nothing to do with the alleged illnesses that those 14 plaintiffs contend to have as per the testimony of Dr. 15 Carnow, and I object to them going into this area as being 16 irrelevant and immaterial. 17 THE COURT: Objection ^is, overruled. It's noted as a 18 continuing o b j e c t i o n . 19 MR. M U S G R A V E : Thank you. 20 THE COURT: You 1r e w e l c o m e . 21 A. I believe I said that was one of two lines of 22 evidence that led me to that conclusion. There have been 23 articles, published. 24 Q. The other line of evidence is the fact somehow or 137 1 another you concluded there was a minimal amount of TCDD in 2 the fat tissue in the bodies of my clients, the other line of 3 reasoning and I was going to get to that in a moment. 4 A. I believe that was an inference I drew from what 5 you said, actually. 6 Q. What I said, Doctor, you know in Kidwell, who is 7 also a client of mine, he had 31 parts per trillon in his 8 blood? 9 A, No, sir, I don't know that, I believe we 10 established before that I have some doubt about that 11 analysis. In fact, I thought if he did he'd be dead. 12 . ' Q. You know W right State Un i v e r s i t y report regarding 13 -- , laboratory reported that to be the case, you know that, 14 Dr. Wilson? 15 A. I've seen a letter to that. 16 Q. Doctor, how can you sit there and say that the 17 additional TCDD that my clients had in their body over and 18 above what other people have in their body is not going -- 19 has not caused them a l r eady serious h e alth effects and will 20 not cause them more serious health effects in the future when 21 you don't even know what's wrong with them. 22 MR. MUSGRAVEs Object to that. It assumes facts 23 not in evidence, that-his clients have any additional T CDD 24 over and above the'general background of the population. 138 1 THE COURT; Objection is overruled, I 2 A. V ery simply. First of all, I don't believe they 3 have any more TCDD in them than the general population. A Second of all, the measurements that you cite were capable of 5 detected amounts in excess of what was found to be in a woman 6 in Seveso who showed no ill effects from T C D D exposure, 7 therefore, it's quite easy to conclude that of those clients 3 whose fat analyses you described a few moments ago were less 9 by two orders of magnitude than this Seveso woman, and she 10 had no ill effects, they won't either. 11 Q. Doctor, first of all, the fat samples that were 12 tested in my clients were tested in 1979 that they have had 13 six more years of exposure since then, do you understand 14 that, sir? 15 A. Ho, sir, 16 <2,, That was in 1979, just July, June of '79, just 17 four, five months after the spill occurred, years ago, 18 Doctor, so to compare then and we have never contended except 19 for individuals in this case now, we have never contended 20 that there have been those massive doses that occurred at 21 Seveso, and, Doctor, for you to suggest that there wasn't 22 anything wrong with that lady at Seveso, boggles the 23 imagination. She died of cancer and there were a number of 24 other things wrong with her at the time. 139 1 MR. MUSGRAVE: Object to counsel's question as 2 being a speech and argumentative and not a question. 3 THE COURT: Overruled.. 4 Q. (by Mr. Carr) Doctor, back to my question again, 5 now, since you now know that the -- there is only a one gram 6 fat sample, 47 parts per trilion, and this was back in 1979, 7 we have had six more years of exposure since then? 8 A. No, sir, I don't know that. 9 Q. You don't know that? 10 A. No, s i r . 11 Q. Dr. Wilson, you know the facts of this case, d o n 1't 12 sir? 13 A, I certainly don't know I know only a very few of 14 them. There are very many to which I'm not familiar. 15 Q. Given the facts to you that the T C D D c o ntaminated 16 soil was not all removed, that it went into a pond, spread 17 through town, vie have given you those facts, Dr. Wilson, 18 although you may not agree that it's the truth, but it is the 19 truth and those are the facts -- 20 MR. MUSGRAVE: Object to counsel's speech as-to 21 what's true and what's not true, and object to it as being 22 phrased as facts. Whether they are' facts or not are for the 23 jury to determine, Y o u r -Honor, not for counsel, and I request 24 it be stricken and the jury instructed to disregard it and 140 I } * 1 counsel asked not to state what are facts and what are not 2 facts. That's for this jury to- determine not for Mr. Carr, 3 THE COURTS Mr. Carr, will you rephrase the 4 question? 5 MR. MUSGRAVE: May the jury be instructed to 6 disregard it, Your Honor? 7 'THE COURTs It's going to be rephrased. 8 MR. MUSG R A V E f Is my question overruled? 9 THE COURT: Your objection is overruled. 10 Q,, (by Mr. Carr) Dr. Wilson, those are items of 11 evidence that have come into this- case and tes t i m o n y that's j 12 come .into this case as I've stated it to you, and assume for 13 the sake of this question that those are indeed facts, will 14 you do that? .15 MR. MUSGRAVE: Same objection. 16, THE COURTs Same ruling,. Overruled. 17 A, If directed I will do that, y e s . ' \ / 13 Q. Doctor, if those are true facts, then the people of 19 Sturgeon are to some ^extent continuing to have exposure to 20 2,3,7,8-TCDD, weren't they, sir? 21 A. No, sir, doesn't n e c e ssarily follow. 22 Q. They are not. Doctor, are you assuming n o w that 23 the 2 , 3 , 7 , 8-TCDD is in the soil, is in the pond, spread 24 through the creek, in the dust and trucks that went through * 141 1 town and carried the contaminated noil on their wheels? Have 2 you assumed all those things? 3 A. Yes. 4 Q. And the people still living there, are you assuming 5 also that TCDD is evaporating from the soil as Shroy and 6 F r e e m a n 's model suggestion that it does, i t 's in the 7 atmosphere? 8 A. Yes, that's correct. 9 Q. Are you saying now that that T CDD is not going into 10 those people? 11 A. Of course not, if it's evaporating from the soil 12 and photodegrading as we establish that it did, entirely 13 likely most possible that they have not be exposed, certainly 14 not to any significance since the very first year, if they 15 were exposed then to any significance. 16 Q. Doctor, v/hat you are saying, you are taking those 17 facts and saying while it might be that they have exposure, 13 you don't know for sure that they don't, you can't state 19 positively, can you, Dr. Wilson, that they are not 20 continuously getting it into their system, based upon the 21 facts I've given you? 22 A. I can say it's extremely unlikely that they are 23 not, yes. 24 Q. You are not saying positively, you are just saying 142 1 in your judgment it's extremely unlikely, aren't you, sir? 2 A. T h a t 1s c o r r e c t . 3 Q. Dr. Wilson, Mr. Seigfreid reminded me of some 4 testimony you gave before you broke your leg, that the 5 children in Sturgeon that were playing in the park that had 6 been flooded with the contaminated water, that the TCDD 7 evaporated in that park, that those children would be 8 exposed, would be getting TCDD in their system, you recall 9 testifying to that? 10 A. In that very first year they might, that's correct. 11 0. If that TCDD at all has a half-life, doesn't it, 12 sir? 13 A. Yes, sir, your question to me was continued 14 exposure in the years since then. I will submit there was no 15 continued expo s u r e . 16 Q. Children still p l a y in that park to this day? 17 A. Yes, as we established the TCDD in the surface of 18 the soil disappears very rapidly. 19 Q. We didn't establish that at all. You established 20 it had a half-life but that it continues to come. We showed 21 is it -- TCDD is still there, Times Beach, TCDD is still 22 there, still evaporating. Young Air Force Base still there 23 in the original amounts, didn't evaporate at all according to 24 Dr. Young? 143 1 A. Buried underneath the ground that's true, t h a t 1s 2 correct . 3 Q. It's still there to this day, is it not? 4 A. Underneath the surface of the ground it is, but at 5 the surface of the ground, i t !s gone. 6 Q. Doctor, it evaporates through the ground, comes up 7 through the ground? 8 A, Disappears very rapidly thereafter. 9 Q. Doctor, if a child happens to be in that park when 10 that vapor is coming up, he's taking it in, isn't he, sir? A. Mot necessarily. 12 Q. Doctor, not necessarily, can he or can he not be 13 taking it in? 14 A. Can he or can he not? Yes. One or both of those 15 are c o r r e c t . 16 Q. He can be taking it in, can he not? 17 A. T h a t 1s a possibility, yes. 18 Q. And, Doctor, if he is taking it in, then he's 19 accumulating it in his body to some extent, isn't he, sir? 20 A. To some extent, yes. 21 Q. Nov/, Doctor, do you knov; anything about porphyria? 22 A. I have heard the phrase. I know that it refers to 23 aberrations of porphyrin metabolism. 24 Q. And, have you done any checking to see how many of 144 1 the plaintiffs in this case have got a form of porphyria 2 according to I-layos? 3 A. Have I done that? No. 4 Q, Do you know about their immune systems? t 5 A. I know nothing about them. 6 Q. Doctor, if you don't know what's afflicting those 7 people at this point in time, how can you conceivably say, 8 knowing the facts that you know, that I've given you here in 9 this case, how can you conceivably say that the TCDD is not 10 affecting t hem and causing t h e m problems? 11 A. As I answered, b e f o r e , the amounts involved are so 12 small, and that they are p eople who were c l e arly exposed to 13 greater amounts were not harmed and it's easy to conclude 14 they were not harmed either. 15 O. Doctor, what p eople were you talking about, the 16 Krummrich workers, Nitro workers? 17 A, Krummrichv W o r k e r s , basic w o r k e r s and so on and so 18 o n . 19 Q . ' Are you really prepared to sustain a cross 20 examination on the h e a l t h effects on the people at Krummrich 21 and Nitro? 22 A. N o , s i r . 23 Q. I didn't think you were. So how can you p o s s i b l y ' 2.4 say that those Krummrich workers, do you know how many of the 145 - 1 Krummrich workers have got abnormal porphyrins? 2 A. I have -- I know nothing about the porphyrins. 3 Q. Do you know how many of the p eople at Nitro have 4 got? 5 A. My recollection one of those that were tested. 6 Q. You h a v e n 11 seen -- well, I'll get to that with 7 Doctor -- you haven't seen the number of abnormal porphyrins 8 reported -- 9 A. I have seen the data, yes. 10 Q. Have you seen the data then, you know that 24 11 percent or 28 percent of the people at Nitro that were 12 exposed have got abnormal porphyrins? 13 A. No, sir, that's not the case, I know that's not the 14 c a s e . 15 Q. Well, I'll get into that with Dr. Roush. How about 16 the 26 abnormal porphyrins that Hayos reported for the Nitro 17 workers, you know about that? 18 A. I've seen those data, yes. 19 Q. That's 26 out of 112, isn't it? 20 A. Mo, sir, my recollection of the Mayo data is that 21 one was abnormal, sir. 22 Q. You haven't seen the data where 26 had abnormal 23 porphyrins? 24 A. 26 of the workers at Nitro who were examined, yes. 146 i Q. Yes, where the urine was sent, the Plaintiff's that 2 were sent. I was going to use it with Dr. Roush, I'll be 3 glad to show it to you here today, sir, see if you recognize 4 it. Showing you now what's been marked Plaintiff's Exhibit 5 1433, do you recognize that as the Mayo report on the 6 porphyrin abnormalities of the people at Nitro, the workers 7 at Nitro? 3 A. Mo, I don't recall that I have seen that document. 3 Q. You've never seen that? Dr. Roush didn't tell you 10 about that? 11 A. Dr. Roush didn't show me that compilation that I 12 r e c a l l . 13 Q. He told you just one person at Mitro that had 14 abnormal porphyrins? 15 A. What I remember seeing -- IS Q. Is that w h a t ' I (said? 17 A. Mo, sir, that's a conclusion I draw. 18 Q. How many did he say had abnormal, from the 112 at 19 Nitro that 'were tested? 20 A. I don't believe he said. 21 Q. I thought you just said he said one? 22 A. No, sir, I said one based on my examination of the 23 data. It's Mr. McCoy there at the top. 24 Q. Then you have seen the data, did you examine all 147 1 those data? 2 A, No, sir, I have not seen that chart. I have seen 3 4 Q. Have you seen the day, too, for all those v?orkers? 5 A. I have seen another depiction of those d a t a ', yes. 6 I've seen a chart, a diagram, a graph. 7 Qo You have seen the data then on those w o r kers that's 8 shown on this chart? 9 A. I have seen some of it, yes. 10 Q. There are 26 people on this chart, aren't there? 11 A., I didn't count -- I'll take your word for that. 12 Q. And porphyrin abnormalities listed, isn't it, sir? 13 A Y e s 14 0. Of those 26 listed you say there is only one? 15 A. That's my conclusion, 16 MR. MUSGRAVE: I object to -- continuing objection 17 to"the document, one, the w i t ness has not seen before and 18 can't identify, and that he did not author, arid that has not 19 ben offered into evidence. 20 THE COURT: Objection is overruled, 21 Q. (by Mr. Carr) Doctor, would it change your opinion 22 as to the afflictions if I were to tell- you that we will have 23 evidence here that this chart shov/s 26 p e ople with porphyrin 24 abnormalities as shown by Mayos, would it change your opinion 148 1 when you say a little bit of dioxin doesn't hurt anybody? 2 A. - No, s i r . 3 Q. You still stick to the same opinion? 4 A. Yes, sir. 5 Q. . All right. That's your right. 6 Q. Doctor, what about the immune system, do you 7 believe that dioxin would effect the immune system of my 8 clients? , 9 A. The, evidence that I have -- I have read about that 10 suggests that it will, little or no effects on adults, no. 11 Q. Doctor, are- you using the same reasoning for the 12 immune system as you have used in describing, in interpreting 13 the porphyrin abnormalities of the workers at Nitro? 14 A, N o , sir. 15 Q. Using that same reasoning, sir? 16 A. I'm not sure what you mean by that question, but 17 what I'm relying are articles that I've read that are- on the 18 general topic. 19 Q. Are you aware of the OKT 10 a bnormalities that are 20 in the people at Sturgeon? 21 A. I don't even know what that is. 22 Q. All right. Now, I take it then, Doctor, the 23 judgment that you are making as to whether or not low doses 24 or chronic low-dose exposure of people to TCDD, is being 149 1 based not upon the facts as they relate to the medical 2 history of the pla i n t i f f s in this case, is that correct, sir? 3 A. That's coirrect. 4 MR. CARR; All right, I have no further questions. 5 THE COURT: Mr. Musgrave. 6 MR. MUSGRAVE; Just a couple, Your Honor. 7 8 CLARIFICATION EXAMINATION 9 BY MR. JOHN MUSGRAVE 10 Q. Dr. Wilson, Mr. Carr asked you about medical 11 doctors advising that fat tissue samples can be taken, 12 whether you* knew of any m e d ical reason wh y fat sample tissues 13 should be taken, for instance,-of the p e o p l e of Sturgeon, why 14 any doctor would advise that, you recall those questions? ^ - 15 A. I think s o . 16 Q. And, do you know, do you recall what your response 17 was, whether you knew wh y any medical doctor would so advise? 18 A. I-think my response was that I didn't know any 19 medical reason why that would be done, but I didn't really 20 know. ,, 21 Q. Nov/, Mr. Carr also asked you if you were aware' of 22 the fact that three of the p l aintiffs in this case had had 23' fat sample analysis done back in '79, G a r y Mason, Joyce 24 Kemner and Frances Kemner. Yo u remember hi m asking you those, 150 1 questions? 2 A. Something like that. 3 Q. Mow, did their medical doctors advise that those, A or do you know whether their medical doctors advised that 5 those fat samples be taken of those people? 6 A. Mo, I have no way of knowing that. 1 Q. If their doctors didn't advise them to have those 3 fat sample tissues taken, do you know who did advise that 9 they have those fat sample tissues taken and analyzed? 10 A. I don't know anything about that. 11 Q. You think they would know enough t h emselves to go 12 in and say, gee, take a fat sample of me, I want it analyzed 13 see whether it's got any dioxin in it? 14 A. I don't know. I suppose they might do that if they 15 wanted to. 16 Q. Do you knovz whether their lawyers advised them to 17 do that for legal reasons? 18 A. No, of course not. 19 Q. Now, Mr. Carr has been questioning you about 20 low-dose exposure over a long period of time, has he not? 21 A. He's asked some questions about that. 22 Q. Did he not ask you a question just a moment ago 23 when he said how do you know whether the additional T C D D that 24 his clients have over and above the background levels from 151 1 the general population is not causing the ill effects that 2 they complain about, you remember that question? 3 A. Not very well. Something like that. 4 Q. So, would it appear that he is contending, sir, 5 that the spilled material out there has increased, the levels 6 of dioxin that he believes his clients have in their bodies 7 over and above the general background level? 3 A. That's what I -- that's what I infer, yes. 9 Q. With regard to low level exposures over a long 10 period of time, we have looked, sir, at those Viet Nam 11 studies, looked at the Canadian study, those other studies 12 that you've talked about where in almost all instances those 13 low levels of dioxin in the body have been found, you recall 14 those, sir? 15 A. Yes. 16 Q. And no correlation of health effects, you recall 17 that, sir? 18 A. Well, the only one where that was m e n t ioned was the 19 Air Force study and that conclusion ./as term. 20 Q. In the Canadian study they said all the people that 21 died, died from common causes? 22 A. Said something to that effect, yes. 23 Q. Usual causes. And, those background levels, would 24 you consider those low-dose exposures over a low, over a 152 1 period of time? L i 2 A. Very low dose. 3 Q. And no reported correlation of h e alth effects, at 4 least so far in the'literature, is there? 5 A. I have seen that. 6 Q. Nov/, sir, then if that is the c a s e .and there are in 7 fact then what appear to `be some low-dose exposures over long 8 periods of time out there from those studies, if Mr. Carr is 9 contending that his clients have greater levels of TCDD than 10 general background, wouldn't a post-tissue study demonstrate 11 that if they had 15, 20, 30, 40, 50 parts p e r trillon? 12 A. Or you could demonstrate that, yes. 13 Q. If you took a fat sample?' 14 A. Yes. 15 Q. And this general information about how m u c h you >' 16 need, the Viet Nam study, did we not point out, sir, that the 17 samples taken there were five to ten grams? 18 A'. I believe that they reported two to ten or 19 something like that. 20 Q. Their level of detection at least on one indication 21 was down to one part per trillon, was it not? 22 A. I thought the lowest was two, but, in the lov; parts 23 per trillon. 24 Q. Well, detection limit on this one indication was 153 1 one part per trillon, wasn't it? 2 A. There is one there, yes, that's correct. 3 O. The Canadian study I think we established the 4 samples of 1 to 20 grams and they were detected certainly 5 down at least to the lowest detection of 4.8 parts per 6 trilioni ' 7 A. Four is the lowest they report, there. 8 Q. Four. So if in fact those people f r o m Sturgeon 3 have, as Mr. Carr suggests, T C D D in them, over a n d . a b o v e 1the 10 general background levels, that he says are causing ill 11 health effects, wouldn't you suspect that those they had of 12 post-tissue tests could show that if that's in fact what he 13 believes? 14 , A. Ones done now with current m e t hods could certainly 15 show t h a t , y e s . 16 MR. MUSG R A V E : No other questions. 17 THE COURTS Mr. Carr? 18 MR. CARR: Yes, Your Honor. 19 20 RECROSS EXAMINATION 21 BY MR. REX CARR 22 Q. Mr. Siilson, do you understand that Mr. Musgrave -- i 23 that I should have my clients submit to an extremely painful 24 operation in order to ^prove something we have already proven 154 1 by the facts? 2 MR. MUSGRAVE: Do you understand that the facts are 3 for the jury to decide, not for what Mr. Carr -- 4 MR. CARR: I thought that's what you were just 5 asking, proving something. 6 MR. MUSGRAVE: I was asking what you were asking 7 Mr. Carr. on THE COURT: Objection is overruled. 9 Q. (by Mr. Carr) Doctor, do you understand that the 10 reason two of the three had fat samples tested in 1979 was 11 because in 1979 Monsanto said no 2,3,7,8-TCDD in the tank car 12 and in documents filed in 1983 they said no 2,3,7,8-TCDD in 13 the tank car. The first time they admitted that it was in 14 the tank car was in this cou r t r o o m in front of the jury. 15 MR. MUSGRAVE: Object to that. There is no 16 evidence of that. 17 HR. CARR: Most certainly is. 18 THE C O U R T : Ove rr u 1e d . 19 Q. (by Mr. Carr) Nov/ Doctor, you u n derstand wh y the 20 Kemner's would follow to have fat samples tested at that time 21 in order to try to prove that Monsanto was not telling the 22 truth? You understand that would be a good reason then, 23 w o u l d n 't i t , sir? 24 A. If it's as painful as you say, no, sir, I don't 155 1 think that would be.. 2 . Q. They only took one gram for that purpose, sir, they 3 didn't take the 125 grams, you understand that, sir? 4 A. I only know what you told me about what they took. 5 Q. And, Dr. Wilson, Gary M a s o n s sample was taken 6 because he was having blackouts and having difficulty and he 7 had it splashed on his body and that's the reason his doctor 8 suggested he have it taken, try to show whether there was or 9 was not enough TCDD in his fat sample to account for those 10 serious problems that he was having. You understand that, 11 sir? 12 A. No, sir, I don't know anything about that, 13 Q. Then, would you say that I should ask the 55 14 clients to submit to this in order to p r ove that T C D D is 15 having health effects? 15 A. I wouldn't care to give you advice one w a y or at 17 all, s i r . 18 Q. Doctor, if they submitted to it and it showed 19 higher levels of TCDD in their fat, in their o rdinary 20 background, would you then concede in this case and by you, I 21 mean Monsanto, would you then agree that we are entitled to 22 the damages to that, we can stop this trial? 23 A. N o , s i r . 24 Q. Might agree to do that, Doctor? 155 1 A. I wouldn't agree to that, no. 2 Q. You wouldn't agree to that, would you, sir, because 3 what you would say well the farmer burned the barrel, or he 4 did something else, or ate some cattle from some other place, 5 or he drank alcohol, or he did something else to cause those 6 problems? That's exactly v/hat you v/ould say, isn't it, sir? 7 MR. MUSGRAVE: Object to that as a speech by 8 counsel, not a question. It's argumentative. 9 THE COURT: Overruled.. 10 MR. CARR: I have no more questions. 11 MR. MUSGRAVE: Just one. 12 13 C L A R I F I C A T I ON EXAM I N A T I O N 14 BY IiR. J O H N MUSGRAVE 15 Q. Dr. Wilson, Mr. Carr just told us it v/ould appear, 15 viould it not, about a medical reason that a doctor told one 17 of Mr. Carr's clients to have the fat sample taken, I believe 18 he said to see if the blackouts he was having v/ere caused by 19 TCDD that he couldn't find? 20 A. I'd interpret that that way, yes, sir. 21 MR. MUSGRAVE: No other questions. 22 23 24 157 1 RECROSS EXAMINATION 2 BY MR. REX CARR 3 Q. You understand that was again in June of '79, 4 before Monsanto admitted that there was 2,3,7,3-TCDD in the 5 tank car and in the soil at Sturgeon, do you understand that, 6 sir? 7 A, I don't know anything about when it was done or 8 anything. 9 HR. CARR: T h a t 1s all I h a v e . 10 MR. MUSGRAVE: Nothing further, Your Honor. 11 THE COURTs Okay. Gentlemen, could I see you at 12 the bench for a minute? 13 (Following a side bar conversation v/hich was outside the 14 hearing of the jury and the Court Reporter, the following 15 proceedings were had in open court.) 16 THE COURT: Dr. Wilson, you may step down. 17 MR. CARR: Call Dr. George Roush to the stand as an 18 adverse witness, Your Honor. 19 20 PR.-GEORGE ROUSH 21 (being called as a witness on behalf of the Plaintiff under 22 Section 2-1102, upon being duly sworn, testified as follows) 23 CROSS EXAMINATION 24 BY MR. REX CARR 158 1 Q. W o uld you state your name please, sir? 2 A. George Roush, Jr. 3 Q- And how old a man are you, Dr. Roush? 4 A. 54. v 5 Q. And by w h o m are you employed, sir? 6 A, M o n s a n t o . 7 Q. And, how long have you been so employed, Dr. Roush? 8 A. Could you speak up just a little bit? 9 Q. How long have you been employed by Monsanto? 10 A. Twelve years. 11 Q- You started working for them in 1974, I believe? 12 A. 173. 13 Q. I'm sorry? 14 A. '73. 15 Q. All right. And, the Medical Director at Monsanto 16 and you have a department that has a name, do you not, sir? 17 A. Yes, sir. 18 Q. What is that name? 19 A. Department of Medical and Environmental Health. 20 Q. Now, all during the time you worked for Monsanto, 21 have you been director of that department? 22 A. Mo, sir. 23 Q. In what capacity did you first join Monsanto? 24 A. I was Ass o c i a t e Director. 159 1 Q. And where had you been before that, Dr, Roush? 2 A, I was at Tulane University. 3 Q. In what? 4 A. In Mew Orleans. 5 Q. In what position? 6 A. I was Professor of Medicine. 7 Q. How long have you been Professor of Medicine? 3 A. Five yearsc 9 Q, Had you practiced medicine before that? 10 A. While I was at Tulane I was also Medical Director 11 of Ethyl Corporation. I had two jobs. 12 Q. Okay. That's Ethyl Corporation, the company that 13 makes additive to gasoline? 14 A. Yes, sir, tetra ethyl lead. 15 Q. And how long had you been with that company? 16 A. Ten years. 17 Q. Had you practiced medicine then before that, sir? 18 A. Mo, I taught at Un i v e r s i t y of Cincinnati before 19 t h a t . 20 Q. Same University of Cincinnati that Dr. Suskind is 21 associated with? 22 A. Yes, sir. 23 Q. And I take it then that you knew Dr. Suskind from 24 your University of Cincinnati association? 160 1 A. He wasn't there when I was there. 2 Q. All right. Doctor, have you pra c t i c e d medicine in 3 the past' at any time? 4 A. No, sir, always been at a university. 5, Q. Never been -- you've never practiced medicine at 6 all at any time? 7 A. Just university hospital. 8 Q. Well, then you did prac t i c e medicine in the 9 university hospital? 10 , A. Yes, but not private practice. Q. But did you treat people, sir? 12 A. Yes. 13 Q, What was your field? 14 A. Internal medicine. 15 Q. I 'm sorry? 16 . A. Internal medicine. 17 Q. Was it just while you were at Tulane University 18 that you pract i c e d medicine? 19 A. No, I .practiced at Cincinnati. 20 Q. Cincinnati also. You are located at the 21 headquarters or your offices right across the river a|t Creve 22 Coeur, Missouri, is it not, sir? 23 THE COURT: Okay, Mr. Carr, we need to take a short 24 recess at this point. THE COURT: All right. The court is 161 1 in a short recess. 2 (Following a recess, these proceedings were had in open 3 court.) 4 Q . (by Mr. Carr) Dr. Roush, could you relate for us 5 your duties as Director of the Department of Medicine and 6 Environmental Health for Monsanto? 7 A. Our department has a responsibility of monitering 3 the health of the workers who work for Monsanto at all of our 9 locations. That means to watch over them, to make sure they 10 a r e n 't adversely affected by the work that they do. That's 11 one thing we do. We also monitor the work environment at 12 each of the other locations so that each and every worker is 13 not exposed to a concentration of the chemical in any way by 14 skin or my inhalation, that he won't suffer adverse effects; 15 and, thirdly, we do toxicology on our products so that we can 16 define the biologic effects of those products so that we can 17 decide what we have to protect our workers from. And then 13 using all of that data, we write safe data sheets and write 19 descriptions of the how those products can be handled 20 safely. Doesn't mean they are not toxic, but it means by 21 handling them correctly means they can handle them safely. 22 Q. Now, the last aspect of the title of your 23 department, environmental health, you have duties broader in 24 scope than just the workers at Monsanto, do you not, Dr. 162 1 Roush? 2 A. Our responsibility is to insure that our products 3 are used safely, and in order to do that, we write safety 4 data sheets that describe how they are to be handled. We do 5 not have responsibility to go out and monitor the environment 6 outside of Monsanto. 7 Q. Well, you do have the responsibility insofar as the 8 public is concerned, that live in the outside environment 9 outside of the Monsanto plant to see to it that the products 10 that are produced and manufac t u r e d by Monsanto are used in 11 such a fashion that they will not have injurious health 12 effects, isn't that correct, sir? 13 A. That's correct, we write a safety data sheet that 14 will describe how that product can be used safely. 15 Q. If there are hazardous substances in your products, 16 it's one of your obligations to see to it that the public,, 17 the ultimate consumer, gets knowledge of that, isn't that 18 correct, Dr. Roush? 19 A. We vzrite that safe h a ndling' instructions for all of 20 our chemicals so that they can be followed correctly. We do 21 not follow the product into our customers locations and 22 insure that they use them safely. 23 Q. No, but what you do do, or at least what you are 24 supposed to do, is to make sure that your customers are aware 163 1 of the toxic substances that may be, not may be, that are in 2 fact in Monsanto products, so that they can be aware of the 3 health problems that may arise from the use of those 4 products, isn't that correct, sir? 5 A. That's right, we write safe handling instructions 6 to insure that they can do that. 7 Q. Well, my question goes .beyond that, not just to S safe handling instructions but safe handling instructions .9 would be, say, how to use it, my question makes sure that you 10 understand me, my question goes beyond that, is it not your 11 obligation to let the customer know what is in the product i 12 that might be harmful to them so that they would have the 13 knowledge and more specific knowledge as to not be exposed to 14 it or not use it in an inappropriate fashion? 15 A. We do describe what the product is, so that, and 16 tell them how toxic it is, and tell them what the effects are 17 from other exposure, and then tell them the safe handling so 18 they can keep that all from happening. 19 Q. Well, more specifically, do you not and isn't it 20 your department's responsibility to see to it that customers 21 are aware of and are apprised of the toxic contents of your 22 various products? 23 A. Yes, we call them material safety data sheet that 24 describes that. 164 1, Q, N o w , insofar as that obligation is concerned, you 2 have toxicologists that v/ork in your department and under you 3 and you have medical doctors that work in your department and 4 under you, do you not? 5 A. Yes, sir. 6 Q. What other kind of professionals do you have in 7 addition to toxicologists and medical doctors? 8 A. We have a section of industrial h y gienists v/ho have 9 responsibility for m o nitering environment in the v/ork place 10 to insure that we don't have other exposures there and meet 11 all regulations. In addition to that we have a section 12 called epidemiology, in vzhich we take the data from our 13 health examinations and look at the total experience and do a 14 study, a statistical study, of the health of our employees. 15 Q. Now, when did this part of your department that is 16 dealing with epidemiology come into being, sir? 17 A. Well, as soon as I came to Monsanto we started to 18 do what I call amateur epidemiology, done by ID non-professionals. I had t o xicology work, every occupation 20 of physician does epidemiology, because you look at the work 21 force and look at the p o pulation and see if there are 22 abnormalities in such a group, but six years ago we hired a 23 professional Ph.D. epidemiologist who has built up the 24 department since then. 165 1 Q- Who would that be? 2 A a Dr. Gaffey. 3 Q D r . Gaffey? 4 A. Gaffey. 5 Q. Yes. And you had, of course, Dr. Zack in your 6 department before you had Gaffey, did you not? 7 A. . Yes, sir. . a Q. Sir? 9 A. Yes.* 10 Q. And Gaffey, I'm sorry, Zack she was an 11 epidemiologist by profession or toxicologist? 12 A. Epidemiology, she had a Master's degree in 13 epidemiology. 14 Q- She was there before Gaffey? 15 A. Yes. 16 Q. But when you hired G a f f e y you became mor 17 formalized in your department for epidemiology, is that 18 correct sir? Is that what you are saying in ,effect? 19 A. Yes i 20 Q. Wot .that you didn't have epidemiologists before 21 Gaffey was hired, wasn't formalized as such? 22 A. T h a t 's r i g h t . 23 Q- 'Now., v/hat other duties do you have in your / 24 department or have .you p retty well- related them? 166 1 A,.. We provide direction for Monsanto for change in 2 procedures, we are going to handling of chemicals, provide 3 guidance for them on environmental matters. 4 Q. Wow, when a particular department, say 5 manufacturing department, asks you what are the adverse 6 health effects of a certain prop e r t y or a certain chemical or 7 a certain constituent of a product, it's one of your 8 obligations to' so advise them, isn't that correct, sir? 9 A. Yes, sir. 10 Q. N o w , do you recall being asked in writing, in 1979 11 on more than one occasion by Dr. W i lson to give h i m the -- a 'f 12 safe limit level for various chlorinated p h enol p r oducts 13 including Santophen? 14 A. Yes. 1 15 Q. Did you give a response to him in writing, sir? 16 A. No, I did not. 17 Q. You are aware of what Dr. Paget told Dr. W i lson in 18 July of *79 with regards to Santophen, are you not, sir? 19 A. Yes. 20 Q. Now,/is that -- and that document was in writing. 21 Is there any other document, sir, that you know of. that 22 exists in which y o u r 'department or a n y body in your department 23 advised the chlorinated p h enol manuf a c t u r i ng in as to safe 24 levels for dioxin contaminants in your chlorinated ph e n o l 167 1 products? 2 A. Mo, we did not. 3 Q. M o w , Doctor, the requests were made of you in 4 writing, and I've seen literally thousands of documents in 5 writing and I've seen, and there has been in evidence those 6 requests of you in writing, two or three in a row in November 7 of '79, all of which was in writing, and I see no written 8 response from your department. Should you not have responded 3 in writing so there would be a record of what you said, Dr. 10 Roush? 11 A. Mo, we went to talk to them. We said that was 12 satisfactory, the one part per billion. 13 Q. All right. Now, somewhere along the line, you got 14 from somebody information that a spill had taken place at 15 Sturgeon, did you not, sir? 16 A. Y e s , s i r . 17 Q. Now, at that point in time did your duties and your 18 Department of Medical and Environmental Health include the 19 p r o blem that existed then at Sturgeon, the occurrence at 20 Sturgeon? 21 A. There are two ways that that can be my response, 22 either because I thought it was or because the company would 23 call me and ask for an opinion. 24 Q. And both things happened? 168 1 A. Yes. 2 Q. So the occurrence at Sturgeon, you became connected 3 with, at least you are, perhaps not you personally but your 4 department became connected with it, actually from the very 5 beginning of the episode? S A. Yes, sir. 7 Q, Was it not, sir? 8 A. Yes, sir. 9 Q. And it has been associated with it and connected 10 with it down to and including the present time, isn't that 11 correct? 12 A. Yes, sir. 13 Q. Dr. Paget, of course, was the person from your 14 department that was originally assigned to work on the 15 Sturgeon i n c i d e n t , isn't that c o r r e c t , sir? 16 A. Yes, s i r . 17 Q. And he was so assigned and did so work until some 18 time moderately late in 1979, is that correct, sir? 19 A. Yes, sir. 20 Q. Wow, after that, who became the person from your 21 department that would have been assigned to the Sturgeon 22 problem if anybody? 23 A. I didn't assign anyone, it was my responsibility. 24 Q. It was your responsibility from that point on, is 169 1 that correct, sir? 2 A. Yes, sir. t 3 Q. Sir? 4 A. Yes, sir. 5 Q. Now, in line with your responsibility and to 5 execute your duties properly, you of course have to know what 7 contaminants might be in the tank car that spilled at 8 Sturgeon, Missouri, isn't that correct, sir? 9' A. Yes, sir. 10 Q. Now, you asked in your responsibility those persons 11 that should know, you asked whether or not the dioxin that 12 was found to be in the tank car, you asked whether or not 13 that could be 2 , 3 , 7 , 8-TCDD, did you not? 14 A. Yes, sir. 15 Q. And you were told that it was not, weren't you, 16 sir, 2,3,7,S-TCDD? 17 A. We were told that it should not be. 18 Q. You were told more than that, Dr. Roush, I beg to 19 differ with you, you were told that it p r o b a b l y was not or 20 more than that, it was not, weren't you, sir? 21 A. It's hard for me to recall the words at that time. 22 Q. Well, let me show you your deposition that you gave 23 in this case on December 2 2 n d , *83, to refresh your memory, 24 if you would. I've underlined the answer that you gave to 170 1 that question? 2 A. That it probably was not. 3 Q. No, more than that, it probably was not, it was 4 not? 5 A. Right. 6 Q. Yes. Nov/, at that point in time, sir, and hbw long 7 from that point on when you were told that, that it was not, 3 were you ever advised from that point on, u p until today, 9 that indeed it was 2,3,7,8-TCDD in the tank car, ever been 10 told that, Dr. Roush? 11 A. We have had many discussions since then about 12 whether it was 2,3,7,3 or not? \ 13 A. But my question is, have you ever been told, sir, 14 up to the present time that indeed it was 2 , 3 , 7 , 8-TCDD that 15 was in the tank car? 15 A. I was told that it could be after that. 17 Q. Then is the answer to my question, is that still to 13 this date, you have never been told that it was in fact 19 2,3,7,8-TCDD in the tank car? 20 A. That's right. 21 Q. W e r e you ever told that Professor Rappe, in Sweden, 22 confirmed that it v/as 2,3,7,8-TCDD in the tank car? 23 A. I heard later that he had said that v/as correct. 24 Q. How much later did you hear that, Dr. Roush? 171 1 A. I don't recall that. 2 Q. Has it been since the start of this trial? 3 A. I know it's been since then. 4 Q. Yes. Doctor, Twhen you -- your department became 5 involved early on, are you aware of the fact, you know Dr. 6 Kaley in Monsanto, analytical chemistry department, don't 7 you, sir? 8 A. Yes, sir. 9 Q. Did anybody ever tell you that Dr. K a l e y at that 10 point, right shortly after the spill occurred, w i thin a month 11 of the time the spill occurred, that he estimated that 90 12 percent of the TCD D in that tank car was 2 , 3 , 7 , 8-TCDD? 13 MR. HEINEMAN: Object, Your Honor, that's a total 14 misrepresentation of Dr. Kaley's testimony and Mr. Carr knows 15 that it is. 16 THE COURT: Overruled. 17 A. Could you ask the question again, please? 18 THE COURT: Let'me explain the ground rules. If I 19 overrule an objection, you have to answer the question. 20 A. I understand I just asked for the question again. 21 THE COURT: I'm sorry. r>r> (Court Reporter read back the question.) 23 A . M o . 24 Q. Have you ever seen -- could you get Exhibit 1142 A, 172 i I suppose it will be, I've got 1142 here. I hand you now 2 what's been marked Plaintiff's Exhibit 1140, ask you if 3 you've ever seen that before, sir? And you recognize that 4 this document I hold in my hand, 1142, is a blow-up of that 5 which you have in your hand? 5 A. Yes, sir. 7 Q. Now, could you tell me whether or not you've ever 3 seen that? 9 A. I've seen it recently. 10 Q. Just recently? 11 A. Yes, sir. 12 Q. Again, prior to the time you were coming here to 13 testify in this case? 14 A. (indicates affirmatively.) 15 Q. Sir? 15 A. Yes, sir. 17 Q. But you were not aware what Dr. Kaley estimated 13 back in 1979, isn't that correct, Dr. Roush? 19 A. Y e s . 20 Q. Dr. Roush, had you asked anybody recently why they 21 told you that it was not 2 , 3 , 7 , 8-TCDD in the tank car when in 22 fact it was, ever ask anybody that, sir? 23 A. Well, we talked about it often. 24 Q. My question is, you said that you were told that it 173 1 was not 2,3,7,8-TCDD in the tank car, now my question is, now 2 that you've learned that it was 2 , 3 , 7 , 8-TCDD in the tank car, 3 you ever ask anybody w h y they didn't tell you that it was 4 2,3,7,3 in the tank car? 5 MR. HEINEMAN; Object, Your Honor, the witness just 6 said that we have talked about it often, I think that is 7 responsive to the question. I d o n 't think it needs to be 8 reiterated, and the witness already said, which Mr. Carr has 9 failed to point out in his answer, that he was told that it 10 could be 2,3,7,8 in the tank car. 11 THE COURT: Overruled. I don't think the answer 12 was responsive to the question. That's not what it asked 13 f o r . 14 A. We discussed this and c h emically I was told -- 15 Q. Mo, Doctor, that isn't what I'm asking you, what 16 I 'm asking you now that you know that it was 2 , 3 , 7 , 8-TCDD in 17 the tank car, nov? that you know that, sir, have you asked 18 anybody why you were told back in '79 that it was not 19 2,3,7,8-TCDD? 20 A. As I read this, this doesn't say there is 2,3,7,8. 21 0. Doctor, I'm asking you another question nov? 22 altogether, all right? 23 A. Yes, sir. 24 Q. You understand that your lawyer has stood in front 174 1 of this jury and said that it was 2,3,7,8-TCDD in the tank 2 car, all right? Do you understand that, sir? i i3 A. Yes. 4 Q. Wow, you were told in '79 that it was not 5 2,3,7,8-TCDD in the tank car. Now, my question-is you now 6 know, sir, since this trial started that it was 2 , 3 , 7 , 8-TCDD 1 in the tank car. My question to you, Dr. Roush, is have you 8 asked anybody why you weren't told that fact? 9 A. Mo. 10 Q. Doctor, you know from experience -- first of all 11 let me ask you this, do you know the extent of the clean-up 12 that took place at-Sturgeon, Missouri? 13 A. I've been told recently how it took place. 14 Q. Well, were you told that part of the contaminated 15 dirt remained in Sturgeon, was not removed? 15 A. Yes. 1 17 Q. When did you learn that, sir, for the first time? 18 A. Recently. 19 Q, Again, just recently. Nov/, ho w recently, Dr. 20 Roush? 21 A. In the last year. 22 Q. Dr. Roush, that means some time in the past twelve 23 months, after this trial commenced, you were told that all 24 the contaminated dirt had not been removed, did you ask 175 1 anybody why you weren't told before that that the 2 contaminated dirt had not been all removed? 3 A. No, sir. 4 Q. Did anybody tell you w h y they didn't tell you, sir? 5 A. No, sir. 6 Q. Did everybody at the company knows that it's your 7 responsibility, the head of your title is Department of a Health and, Department of Medical and Environmental Health, 9 everyone knows that, don't they, sir? 10 A. Yes, sir. 11 Q. And, they also know that for you to make 12 appropriate decisions you have to be advised of the full 13 factual situation, they should know that, shouldn!t they, 14 sir? 15 A. Yes. 16 Q. And you do have to know the facts in order to make 17 appropriate decisions, don't you, sir? 18 A. Yes, sir. 19 Q. Did you learn that instead of removing the 20 contaminated soil, that they commenced washing it in mid 21 1979. 22 MR. HEINEMAN: You suggesting to hi m that none of 23 the contaminated soil was removed, Mr. Carr? 24 Q. Did you hear my question, Dr. Roush? 176 1: A . Yes. 2 MR. HEXNEMAN: I'll object to the question as being 3 o u t r i g h t 'fabrication-and misrepre s e n ta t i o n of weeks of 4 testimony in this case, Your Honor. 5 THE COURT: Objection is overruled. Answer the 6 question, please, Doctor. 7 Q. Could you ask that question again, please? 8 (Court Reporter read back the question.) 9 A.- No, I wasn't told that. 10 Q. And I don't want you to -- if counsel's objection 11 is -- if you really think that I meant that none of the 12 contaminated soil was removed, rest assured that a good deal 13 of it was removed. You understand, I'm not representing to 14 you that no contaminated soil was removed, what I'm telling 15 you ;is that all the contaminated soil was not removed and IS what you/are telling me is that you did not know that. 17 MR. HEX N E M A N 1: Thank you. 18 Q.' You did not know that and you did not k n o w that - r. / 19 they had washed it? 20 A, That's right. 21 Q . , Sir, if they had, you know from your work, although 22 you are not strictly a toxicologist, you have toxicologists 23 working under you, don't you, sir? 24 A. I'm a clinical' toxicologist. 177 1 Q. All right, clinical toxicologist means that you 2 treat those, people who come in or you have knowledge on how 3 to treat or what th'e clinical science of toxic posioning is, 4 isn't that correct? 5 t A. ; I also evaluate the likelihood of a hazard. 6 Q. That's part of your job? 1 . A. Yes. ' ' 8 Q. ." It's something that you, oh, I guess on the job 9 learned how to do or learned to do after you started doing 10 those things at Ethyl Corporation, I take it? 11 A. I started doing t h a t and teaching it back in 12 Pittsburgh back in 1957. 13 Q. That's fine, Doctor. Then you are indeed a 14 toxicologist? 15 A.' Yes, sir. 16 Q. So you knew' at the time, then, that W a s hing soil 17 doesn't remove the dioxin if there is dioxin in that soil, 18 you knew, that b a c k ,in '79, didn't you, sir? 19 A. No, I didn't know that in '79. 20 Q. You did not know that in 179> when did you learn 21 that, Doctor, because you know i t 'now, don't you? 22 A. Yes, sir.1 23 Q. When did you learn that you can't remove dioxin 24 from soil by washing it? 178 1 A. I can't give you a time, I suspect some time in the 2 last four or five years. 3 Q. Well, the last four or five years would put it back 4 in 1980 or '81? 5 A. Right. 6 Q. Have you ever learned that any washing of that soil 7 took place at Sturgeon? 8 A, I didn't know it until p r e p aration for this trial. 9 Q. Again, just recently? 10 A. Well, in the last year. 11 Q. Well, when you learned that the soil was washed, 12 was it then that you went out to investigate or explore to 13 determine whether or not w a s hing the soil would remove the , 14 dioxin? Did those two things, one follow the other, sir, if 15 you get my meaning? 16 A. No, it did not. 17 Q. Which did you learn first, that the soil was washed 18 or that dioxin can't be removed from the soil by washing? 19 A. I knew that it couldn't be removed before I heard 20 about the washing. 21 Q. All right. Nov;, when you learned that it had been 22 washed, the wash had long since ceased, didn't it, sir, 23 hadn't it, sir? 24 A. Yes. 179 i 1 2., And you knew at that point that the soil that was 2 washed still had the dioxin contaminant in it, if the dioxin t 3 was in that soil to start with? & A. Yes. \ '5 Q. ' Now, did you also have knowledge t h e n , `sir, did it 6 coincide at that time that you had the* knowledge that *it was 7 confirmed that it was 2 , 3 , 7 , 8-TCDD in the soil, or had you 3 not yet, learned that? 9 A, I'm still not aware that it's been confirmed that 10 2,3,7,8 was in the soil. 11 Q. Well, in the tank car? 12 ` hi In the tank car. 13 Q. Sir, you still don't know that it's confirmed? 14 A. That's right, I assumed that it is. 15 Q. Dr. Roush,.you mean to say that up to this date, no 16 one has told you, even yet today, coming into this courtroom, 17 that Mr, Heineman agreed that it was 2 , 3 , 7 , 8-TCDD in the tank IS car, you still don't know that, sir? * 19 A . '' We assumed right from the beginning -- 20 Q. ' That's not w hat I asked you. 21 . A. I understand. 22 Q. I'm asking you even to this date it's not been 23 confirmed to you by the- lawyers or by the toxicologists or by 24 the chemists or anybody else that it was 2,3,7,8-TCDD in that i 180 1 tank car-in fact? Still haven't told you that? 2 A. . T h a t 1s r i g h t . 3 Q. Doctor, the knowledge'that you had.that dioxin 4 can't be removed from soil by washing it then, when you had 5 that knowledge and when you learned that the soil was washed, 6 you really didn't know at that point because you still don't 7 know that it was for sure 2 , 3 , 7 , 3-TCDD in the tank car, is 8 that correct, sir?9 A. (indicates affirmatively.) 10 THE*COURT: You have to answer verbally so she can get'it down, Doctor. j 12 A. Yes, s i r . 13 THE COURT: Thank you. 14 Q. Now, Doctor, you do know now that dioxin in soil 15 has a half-life of.,about ten years, you know that, at least, 16 don't you, sir? 17 A. Yes. 13 Q. Okay. And you do know that dioxin in soil will to 19 some extent vaporize, you know that, too, don't you, sir? 20 A. I'm not sure how it gets out of the soil. 21 Q. Well, let me -- is this an u n c e rtainty or 22 unsureness that you have just recently arrived' at'or is it 23 one that you knew for some time? 24 A. I don't think it's been established how it gets out [ 181 j 1 of the soil by there are theoretical ways in which they think 2 it can get out, but it hasn't been e s t a blished as a fact. 3 Q. Hasn't Dr. W i l s o n or Dr. Shroy or Dr. Freeman ever 4 told you that they did terrific experimentation and they got 5 models to prove that the TCDD in the soil would evaporate and 6 disappear? --- 7 A. That's an explanation of how it gets out, yes. 3 Q. Well, then, they did tell you that it does 9 evaporate? 10 A. They told me what the model fits the data that they 11 have, that doesn't mean that's the way it takes place, taey 12 haven't proved it yet. 13 Q. Well then, what you are saying, you don't accept 14 what they told you? 15 A. No, I didn't say that. I said they have an 1G explanation that fits the way in which the dioxin leaves the 17 soil. They have a model, and m athematics enables them to 18 cake a model that fits the data quite well, that's what they 19 have done. 20 Q. And did you not read Dr. Shroy and Dr. Freeman's 21 work? 22 A. Yes. 23 Q. And do they not say in that work that it will 24 vaporise and disappear? 132 1 A. They say volitalization will explain how it .gets 2 out. 3 Q. Are you aware of the fact that W i l s o n , Shroy, and 4 Freeman, wrote a letter to Science Magazine saying that the 5 Times Beach TCDD soil, the TCDD in that soil, 99 percent of 6 it evaporated in the period of time since it spilled at Times 7 Beach? 8 A. Said it's been r e m o v e d 1and can be explained by 9 evaporation, y e s .. 10 Q. You are aware of the fact they it does evaporate?' 11 A. T hey do say it evaporates, that's right. 12 Q. But you don't accept that as proof? 13 A. I didn't say that. (' 14 Q. Well,' I must concede then I am confused, do you 15 believe what Wilson, Shroy, and Freeman have stated, that is' 16 TCDD evaporates from the soil? 17 A, I have read the article. I know their explanation 18 for it;.and I know they have a model for it, but that doesn't 19 mean they prove that it disappears by volatilization. 20 Q.* , Dr. Roush, I don't want to misdirect you, but that 21 isn't what I asked ypu, I asked you do you believe it, sir? . 22 A. I don't know whether to believe it or not. 23 Q. Then the answer is that you don't really believe 24 it? 183 1 A. . Mo. . 2 Q. Because you .don't know whether to believe it or 3 not? 4 A. No, I didn't say that either.' 5 Q. I'm confused. 6 A. I said that volatilization can take place. The 7 fact that volatilization can take place and have a model to 8 show it, doesn't mean that's the w a y it gets out. That's one 9 explanation for how it can get out. 10 Q. Well, v/hat I'm asking you, subjectively, Dr. Roush, 11 do you believe that that's the way it gets out? 12 A. I don't know. 13 Q. Then I take it you have no belief one wa y or the 14 other as to how it gets out, is that correct, sir? 15 A. It's possible it's volatilization, I do know it 16 comes out. 17 Q. Doctor, I don't want to quarrel with you on this 18 point, but I'm simply asking you do'you have a believe as to 19 how dioxin gets out of the soil, and if so, is volatilization 20 or evaporation that belief? 21 A, I don't know how to answer any better than I have, 22 I've said that I know it comes out, and they have a model 23 that will explain how it comes out, using volatilization, and 24 that may be the wa y it gets out but they haven't established 184 1 the way it really takes place. 2 Q. All right, then I understand you correctly, they 3' have said it, it may be true, it may not be true, you simply 4 have no belief one way or the other as to whether what they 5 say is true or not? '6 A. At this s t a g e , we can 11 . 7 Q. That's really what I was asking you, but you do 8 know there is, not w i thstanding their work, you do know that 9 there is a vapor pressure and that so evaporation does take 10 place, maybe not to the extent that they say that it does. 11 A. That's true. 12 Q. But you do knov/ there is a vapor pres s u r e and that 13 evaporation does take place? 14 A. Yes, sir, that's true. 15 Q. And, while that -- if that occurs in a town where 16 the dioxin has not be w a shed out of the soil, and the soil 17 has not been removed that has the dioxin in it, the 18 townspeople will have some kind of exposure to that vapor, 19 won't they, sir? 20 I4R. HE INEMAN: Let me object to the form of the 21 question. It assumes no dioxin has been washed out. 22 THE COURT: Objection overruled. 23 Q. Could you answer that question? 24 A, You'll have theoretical exposure, I'm not sure how 185 1 rauch it is. It can't be measured. 2 Q. I understand that, Doctor, all I want to get from 3 you is acknowledgment that there is an exposure that at least 4 theoretically takes place? 5 A. Y e s , sir. 6 Q. And, while that exposure is taking place, that 7 dioxin, if it is in the vapor, if the dioxin is evaporating, 8 that can go into the residents bodies, c a n 't it, sir? 9 A. If they are exposed to it. 10 Q. Dermal contact with the vapor or inhalation of the 11 vapor, i s n 't that correct, sir? 12 A. Yes. 13 Q. And, that vaporization v/ill continue all -- if it 14 does exist, it will continue all during the life of dioxin in 15 soil, won 't it, sir? 16 A. Yes, over that ten-year period. 17 Q. Ten-year period is the half-life? 13 A. I understand. 19 Q. So it will continue beyond that ten-year period, 20 w o n 't it, sir? 21 A. T h a t 's right. 22 Q. It will continue during the next ten-year period 23 and next ten-year p e riod and next ten-year period and chc 24 next ten-year period, will it not, sir? 136 1 A. Yes. 2 Q. And all during that time, that vapor, during those 3 years and years will be, if it does vaporize, it will come up 4 and the people will be exposed to it, won't they, sir? 5 A. Yes. 6 Q. Mow, Doctor, the problems that exist with the 7 exposure to dioxin, you have studied those problems now at 3 least since you joined Monsanto, have you not, sir? 9 A. Yes, sir. 10 ,Q. Or at least since 1979, let me bade up, how long 11 have you studied the problem of human health effects from 12 dioxin exposure? 13 A. Since 1979. 14 Q. Since 179? 15 A. Y e s , s i r . 16 Q. All right. Then it started with the Sturgeon 17 spill, is that correct? 18 A. Except for the p e n t a c h l o r o ph e n o l p r o b l e m with 19 dioxin. 2.0 Q. Well, the p e n t a c h l o r o ph e n o l p r o b l e m was not a 21 2 , 3 , 7 , 3-TCDD problem, was it, sir? 22 A. T h a t 1s r i g h t . 23 Q. And, I did use the word dioxin rather loosely, but, 24 your knowledge as to the health effects of 2, 3 , 7 , S-TGDD, 187 1 exposure commenced in *79, did it not, sir? 2 A. Yes. 3 Q. Now, at that time after the Sturgeon spill, you 4 became aware of the fact that Monsanto entered on to a 5 program, to exam it's chlorinated phenols to see what dioxins 6 mighi t be present in( those chlorinated p h enols? 7 A. Y e s , s i r . 8 Q. And you, of course, learned that 2,3,7,8-TCDD was 9 found in the Santophen or that which coelutes with 10 2 , 3 , 7 , 3-TCDD, did you not, sir? 11 ' A. Yes. 12 Q. And you learned that it was found in 13 2,4-dichlorophenol, did you not, sir? 14 A. .Yes,, sir. 15 Q. Sir? 16 A. Yes, sir.. 17 Q. And you learned that it was found in 18 parachlorophenol, did you not? 19 A. ` Yes, sir. 20 Q. Now, after you learned that then, it became 21 important to you in the job that you had to find out the i 22 human health effects, isn't that right, sir? 23 A. Y e s , s i r . 24 Q. And one of the things that you did in that respect 138 1 was to a very -- well, you examined first of all the records 2 that Monsanto had relative to the health effects of its 3 Nitro, West Virginia workers and of its Krummrich plant 4 workers, did you not, sir? 5 A. Yes, sir. 6 Q, Yes, and along the line of that, a Dr. Raymond 7 Suskind came in contact with you, did he not? 3 A. Yes, sir. 9 Q. And some time in '79, he asks for and he received 10 from you and Monsanto permission to do a study, a mortality 11 study for the workers exposed to the 1949 TCP accident, isn't 12 that correct? 13 A. Yes, he asked that in 1977. 14 Q. Well, you d i d n 't respond to hi m until '79, you 15 didn't agree to it until '79, isn't that correct, sir? 15 A. We had difficulty in finding a cohort that he could 17 s t u d y . 18 Q. So, actually in 1979, you agreed to finance the 19 study to pay for the study that Suskind, the Zack-Suskind 20 study took place of the deceased workers associated with the 21 1949 Nitro accident, isn't that correct, sir? 22 A. We didn't pay for his study on that. 23 Q. Well, l e t .me back up, you are correct. Let me back 24 up on that. Actua l l y the study was undertaken by your 139 1 employee Judith Zack, and the mortality study and she 2 incorporated and brought in Dr. Suskind, isn't that correct, 3 sir? 4 A. Yes, sir. 5 Q. So, Dr. Zack at that time was a full-time paid 6 employee of Monsanto? 7 A. Y e s . 8 Q. Wasn't she, sir? 9 A. (indicates affirmatively.) 10 G. And she, as a matter of fact, wrote up, prepared 11 the original draft article and took it to Dr. Suskind so that 12 he might comment on it and make certain revisions, isn't that 13 correct, sir? 14 A. Yes, sir. 15 G. And as a matter of fact, the so-called Zack-Suskind IS study of the mort a l i t y people of the deaths a s sociated with 17 this accident was in fact a Judith Sack study which Dr. 18 Suskind gave some input, isn't that correct, sir? 19 A. Yes, he did more than some. 20 Q. Well, we can get to that later, but I've compared 21 her draft with the final draft. Have you done that, Dr. 22 Roush? 23 A. Y e s . 24 Q. Compared her first draft with the final draft? 190 1 A. Y e s . 2 Q. All the findings, the basic findings were Judith 3 Sack 's? 4 A. Yes. 5 Q. And all that Dr. Suskind did was to add a little 6 prestige to the document, isn't that correct, sir? 7 A. No, it was his idea to do it in the first place, it 3 was his idea to do the study. 9 Q. But Judith Sack did the study? 10 A. But then he defines the cohort:, helped to define 11 the cohort that we were unable to do without his help. So we 12 couldn't have 3 0 k started without goes input. 13 Q. Dr. Roush, I don't want to quarrel with you on the 14 point, but, the cohort were those workers who had a history 15 of being exposed to the accident that occurred in 1949? 16 A. Yes, sir. 17 Q. And that is a very simple definition, isn't it, 13 sir? 19 A. Yes, sir. 20 Q. And you surely didn't need his assistance in 21 arriving at the definition of, we want to study the death 22 rate of the people exposed in that accident, what you do is 23 study the people who were exposed in that accident, that's no 24 big problem, is it, sir? 191 1 A. That's a simple statement but it's difficult to 2 find the people- on whom you are going to do the study. 3 Q, Maybe difficult to find the p eople but again that's 4 not- something Suskind did, that's something Judith Zack did? 5 A. f It was his input. His input was the basis that 6 started the definition of that cohort. 7 Q. Dr. Roush, in point of fact, Judith Zack examined 8 the records to find out who was exposed, Dr. Suskind didn't 9 examine those records1, did he? 10 A. He sent us the names of those that he saw back at 11 that time that were involved in the accident. 12 , Q. Of the 112? 13 A. Not all of them, no. 14 Q. Part sir? 15 A. He started the definition of that cohort. 16 Q. And Judith Sack added names? 17 A. She completed i t . ' 18 Q. Now, insofar as the Suskind m o r b i d i t y study is 19 concerned, that's the one that human h e alth effects during 20 contaminants of 2 , 4,5-T manufacturing process published in 21 the Journal of American Medical Association in 1984, you know 22 what I 'm .talking about? r - 23 A. Yes, sir. 24 Q. Nov/, t h a t study was paid for by Monsanto, was it 192 not , sir? 2 * A. Yes, sir. *' 3 Q. And, you p a i d Suskind, well, you didn't pa y h i m 4 directly or did you pay him directly? 5 A. ,No, we pay the University. 6 Q. Paid the U n iversity of Cincinnati? 7 A * Yes 8: Q. And the so-called Zack-Gaffey study, that^too, was 9 paid for my-Monsanto, wasn't it? 10 A. It was d o n e ^ i n t h e department. 11 Q. Well, by Monsanto employees on Monsanto time, 12 dealing With Monsanto workers, correct, sir? 13 A. Yes, sir. . ` 14 Q. . And the study on the Krummrich plant w o r kers in 15 1979/ that was published in 1980, that too was paid for 16 entirely by Monsanto, wasn't it, sir? 17 A. Which study are we talking about? 18 Q. The study of the- Kru m m r i c h plant w orkers? 19 A. Yes. 20 Q. That Dr. Suskind did in 1979? 21 A. That wasn't published. 22 Q. Well, it was pub l i s h e d in the sense that the / 23 reports were given to Monsanto? 24 A. Oh, we had a report of it, yes. 193 1 Q. But it wasn't published in any peer reviev;? 2 A. No, it wasn't published. 3 Q. That study v/as p aid for my Monsanto, wasn't it, 4 sir? 5 A. Yes, sir. 6 Q. So, all of the studies dealing with the dates and 7 health of the people, the employees of Monsanto who have been 3 exposed to 2,3,7,8-TCDD, has been in fact paid for by 9 Monsanto, isn't that correct, sir? 10 A. Not completely. 11 Q. Well, all but the morbidity study was paid for 12 completely by Monsanto? 13 A. Yes. 14 Q. And the m o r b i d i t y study, all of the costs of 15 Suskind paid for, all the examination paid for, all the 16 reports, he sent you a bill, you paid it, isn't that right? 17 A. Yes. 13 Q. Now, Doctor -- 19 A. But Dr. Rolls from N.I.H.S. insisted that he 20 contribute as much as v/e paid for that study. 21 Q. They contributed that to the University of 22 Cincinnati, didn't they? 23 A. Yes, just like we did. 24 Q. Not just like you did because what you did, Dr. 194 1 Suskind sent you a bill for the examination and his time and 2 you paid that bill, didn't you? O A. Yes, sir. 4 Q. Doctor, all of the studies now -- strike that for a 5 moment. You know as head of this department, you know that 6 the Zack-Suskind study, the Zack Gaffey study, and the 7 Suskind morbidity study, all of those things have been 8 published for wide dissemination, don't you, sir? 9 A. Yes, sir, XO Q. And you know that of the human health effects 11 insofar as 2 , 3 , 7 , 8-TCDD is concerned, is that those documents 12 are nearly the only, might be one or two others, but it 13 certainly covers more people who have been exposed to 14 2 , 3 , 7 , 8-TCDD of any other study with the exception of the 15 Seveso accident, isn't that correct, sir? 15 A. Except for the study of Moses on the same 17 p o p u l a t i o n . 18 Q. Moses and Selikoff on the same population? 19 A. We didn't pa y for that. 20 Q. I understand that the union paid for that? 21 A. Yes. 22 Q. The Nitro, the union for the workers at Nitro? 23 A. Steal Workers Union. 24 Q. Correct? 195 1 A. Yes, sir. 2 Q. But, you were aware of, and you knew all during 3 this time that those studies, if they were published, they 4 would be cited and relied upon by people that are interested 5 in whether or not 2,3,7,8-TCDD has adverse health effects, 6 i s n ?t that correct, sir? *7 t A. We did it for that purpose. 8 O. Yes. Now, along that line, it is your belief, is 9 it not, sir, that acute exposure to 2,3,7,8-TCDD will cause 10 Chloracne and in the long-run basis, that Chioracne is the 11 only adverse human health effect from exposure to 12 2.3.7.8- TCDD? 13 A. Yes. 14 Q. Now, you don't believe, do you, Dr. Roush, that the 15 immune system can be adversely affected in the longer run, 16 you don't believe that cancer can be caused by exposure to 17 2.3.7.8- TCDD in the long run, you don't believe that liver 18 problems can be caused in the long run, you don't believe 19 that porphyrin problems can be caused, you d o n 't believe that 20 any problems can be caused by 2,3,7,8-TCDD on the long-term 21 basis, except Chloracne, isn't that correct? 22 A. Based on my knowledge to date, yes. 23 Q. Sir? 24 A. Based on my knowledge to date. 196 1 Q. That is also the position of Monsanto, i s n 't it? 2 A. Yes, sir. 3 Q. And you have used and you have cited those studies 4 that I have referred to as support for the position that you 5 and Monsanto have taken, that is that Chloracne is all the 6 bad stuff that's going to come out of exposure to 7 2 , 3 , 7 , 8-TCDD, i s n 't that correct, sir? 8 A. That's what those studies v/ould indicate. 9 Q. Yes, and you have seen those studies of Monsanto's 10 being relied upon, and used and cited by other people who are 11 studying health effects of 2 , 3 , 7 , 8 - T C D D , you've seen that, 12 haven't you, sir? 13 A. I believe that's right. 14 Q. M o w , it becomes important, doesn't it, sir, that if 15 those articles, those articles have become important to start 15 with, h a v e n 't they, sir? 17 . A. Yes. 18 Q. A n d (it's the center of, or it's the substance of a 19 major part of the prin t e d medical knowledge that we have in 20 this world, if you will, as to the human health effects of 21 exposure to 2,3,7,3-TCDD, isn't that correct, Dr. Roush? 22 A. Yes. 23 Q. Mow, all of those studies have been conducted under 24 your supervision, haven't they, sir? 197 1 A. Yes, Yes. 2 Q. Yes. And it is your belief all during that time, 3 that Chloracne is the only adverse result from dioxin 4 exposure, isn't that correct, sir? 5 A. Is the result of those not before -- my conclusion 6 is the only long-term effects was the result of those studies 1 rather than the basis for the studies. 8 Q. You didn't have that belief then until those 9 studies were completed? 10 A. I had no basis for drawing those conclusions. 11 Q. Now, Doctor, I take it since you are an intelligent 12 man and obviously he had had that since you were influenced 13 to believe that from those studies and the conclusions 14 reached in those studies, you were influenced and you 15 accepted as true the statements made in those studies, didn't 16 you, sir? 17 A. That's the reason v/e did the studies, so we could 18 believe what we got out of them. 19 Q. Well now, it becomes important, though, the 20 honesty, the ability to accurately interpret the results, 21 that becomes important when you are relying on this study, 22 isn't it? 23 A. It's true of any study. 24 Q. Of any study that's the wa y it is, you have to rely 198 1 upon the honesty and integrity of the people that's doing the 2 work, don't you , sir? 3 A. Yes. \ 4 Q. Now, in this instance. Dr. Roush, in this instance, 5 would you say that Monsanto had a stake in presenting and 6 maintaining a position that Chloracne is the only long-term 7 adverse effect that will come from exposure to 2,3,7,S-TCDD? 8 A. I am sure it would have an influence on what the 9 results were going to be, but remember that in 1977 before we 10 knew about the Sturgeon spill, before there was anything 11 else, Suskind had gone to Seveso and parti c i p a t e d as a part 12 of the W.H.O. study of what are the long-term health effects 13 of dioxin and he came from W.H.O. saying to that study see if 14 you can do that study in that population, we did it for 15 Seveso, so we might know the long-term health effects for 16 them, not us. 17 Q. But, that's? 18 A. Wait a minute. At that time we had no knowledge of 19 the long-term health effects, we were through making the 20 Agent Orange, it was a past issue. At that time we had no 21 knowledge of what the effects were going to'be and we were 22 going to find so that the people in Seveso wouldn't have to 23 worry, like we worried. 24 Q. Dr. Roush, didn't you know at that time that 199 1 Monsanto chlorinated phenols had been spread and used 2 throughout the world with a half-life of ten years, that it 3 contained 2,3,7,S-TCDD? 4 A. What chlorinated phenols? 5 Q. 2,4,5-T, manufac t u r e d at Nitro, West Virginia, 6 2.4- D manufactured at Sauget, Illinois, Santophen 7 manufactured at Sauget, Illinois, 2,4-dichlorophenol 8 manufactured at Sauget, Illinois, you were aware of those 9 facts, weren't you, sir? 10 I*IR. HEINEMAN: Are you telling this witness that 11 2.4- D contains 2 , 3 , 7 , 8-TCDD? 12 Q. You are aware of those facts, weren't you? 13 HR. HEINEI-1AN: Your Honor, I object to that as 14 outright fabrication and Mr. Carr knows it. 15 THE COURT: Objection is overruled. 16 A. W hen we talk, I don't think of 2,4,5-T as being a 17 chlorinated phenol. 18 0. You don't? * 19 A. No, I think of that as being a distinct one from 20 chlorinated phenols. 21 Q. Distinct what? 22 A. Distinction from our chlorinated phenols as we use 23 them in Monsanto. But 2,4,5-T certainly is has 2,3,7,8, 24 that's quite clear, but don't -- I don't put them all 200 1 together with the other chlorinated phenols. 2 Q. Doctor, the thrust of my question is that you are 3 aware of the fact -- I'm sorry, Your Honor, we can stop. 4 THE COURT: You can finish that last question. 5 Q. The thrust of my question is that you at Monsanto, 6 are you aware of the fact that^our products that may contain 7 2,3,7,8-TCDD had been spread throughout the world, and that 8 is that products may contain 2,3,7,3-TCDD which has a 9 half-life of ten years? 10 A. Yes. 11 THE COURT: All right. Okay. Ladies and 12 gentlemen, we will end the testimony at this time and we will 13 resume again tomorrow morning at 9:30. I would remind you as 14 I do for any overnight break that you are not to read, listen 15 to, or watch anything about this case in particular, or 16 subject matter in general. Thank you for your attention and 17 cooperation. Court is adjourned. 10 COURT ADJOURNED: 19 20 21 22 23 24 201 1 STATE OF. ILLINOIS ) ) 2 TWENTIETH JUDICIAL'CIRCUIT ) SS ) 3 COUNTY OF ST. CLAIR ) 4 5 I, DEBRA'M. MUSIELAK, certify the foregoing to be a 6 true and accurate transcript of the testimony and proceedings 7 in the above-entitled cause. 3 Dated this (o _day of May, 1985. 9 10 l 12 13 14 15 16 17 18 19 20 21 22 23 24 202 1 STATE OF ILLINOIS ) ) 2 TWENTIETH JUDICIAL CIRCUIT ) SS ) 3 COUNTY OF ST. CLAIR ) 4 5 I, RICHARD P. GOLDENHERSH, one of the Judges in and 6 for the Twentieth Judicial Circuit, do hereby certify that I 1 have examinated the aforesaid transcript of proceedings, and 3 certify the foregoing to be a true and accurate transcript of 9 the testimony and proceedings in the above-styled cause. 10 Dated this ________ day of May, 1985. 11 12 13 14 15 16 HON. R I C HARD ?. G O L D ENHERSH 17 13 19 20 21 22 23 24 203