Document MGkMDLyXg39ZLYndzBoxBx6k9

, 1 IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS 2 ST. CLAIR COUNTY 3 FRANCES E. KEMNER, et al 4 Plaintiffsf 5 VS. 6 MONSANTOCOMPANY, 7 Defendant. ) ) ) ) ) ) ) ) ) No.80-L-970 8 9 Before the HON. RICHARD P GOLDENHERSH, Judge 10 li' REPORT OF PROCEEDINGS 12 JURY TRIAL 13 November 6, 1985 14 APPEARANCES: 15 MR. REX CARR and MR. JEROME SEIGFREID 16 on behalf of the Plaintiffs? 17 MR. KENNETH R. HEINEMAN and MR. JOSEPH NASSIF on behalf of the Defendant. 18 19 KIMBERLY GANZ, CSR, RPR, CM 20 Official Court Reporter 21 23 24 1 1 BE XT REMEMBERED, that on November 6, 1985 the same 2 being one of the regular judicial days of said court, the 3 above-entitled cause came on regularly for hearing before the 4 HONORABLE RICHARD P. GOLDENHERSH, one of the Judges of said 5 court, at the St. Clair County Building, 10 Public Square, in 6 the City of Belleville, St. Clair County, Illinois. 7 Whereupon the following proceedings were had: 8 (The following proceedings were had in the hearing 9 and presence of the jury). 10 THE COURT: I apologize for starting late. There 11 were some other court matters to be taken care of. 12 PRANK DOST 13 having resumed the witness stand, being previously sworn, 14 testified further as follows: 15 DIRECT EXAMINATION 16 By 17 MR. KENNETH R. HEINEMAN. 18 Q. Doctor Dost/ when we stopped off, stopped testimony 19 yesterday afternoon, you were just, you had just finished 20 discussing these photographs of Doctor Zahalski's charts 21 which are marked as Defendant's Exhibits 1291 through 1295. 22 In the meantime, have you done some writing on these 23 photographs? 24 A. Yes. I made some remarks that relate -- I wrote 2 1 some remarks on there that related to the oral testimony that 2 X gave yesterday with respect to those diagrams. 3 Q. Would you step down, please, and with respect to 4 each of the exhibits, point out to the jury the remarks that 5 you have written on them? 6 A. The diagram as it is set up in my view at least 7 does not represent the process by which TCDD is associated 8 with an increased incidence of tumors in experimental 9 animals. There is some resemblance to the process by which 10 TCDD interacts itself to induce the P450 enzymes that react 11 with foreign chemicals. The interaction to this point is 12 correct except that I do not believe that the term recognizer 13 is appropriate because it is not specific. It is a receptor 14 that accepts a large number of chemicals and that complex is 15 formed in the body of the cell, not on the cell wall. 16 Q. Which number is that that you were just referring 17 to? 18 A. This was on Exhibit 1291f the first of that 19 series. In 1292, you really don't have such specific 20 information that we could say it reacts with a critical 21 target. Obviously it has to react in a special way in order 22 to cause the sequence of events that take place afterwards 23 but that interaction or the nature of that interaction at the 24 present time is not adequately known. There is information 3 1 about it but no one has taken the position that they 2 understand precisely what is happening. 3 In any case, there is an interaction with the 4 genome to cause this RNA blueprint that we have talked about 5. to go to the endoplasmic reticulum. These are the 6 messengers, 'so called. That is not an inappropriate way to 7 describe messenger RNA because that is what the biochemists 8 call it because the purpose is to carry information from one 9 place to another. Out in the cell, there is interaction on 10 the messenger RNA causes the endoplasmic reticulum to 11 manufacture specific proteins. These proteins are not, this 12 represents the same thing as the receptor or recognizer that 13 was described earlier. And that is stated here. 14 The proteins that are made are not receptors. The 15 proteins are made are the P450 enzymes and other enzymes that 16 are not in that particular chemical class that are formed 17 that we have, many of which we have named and they remain on 18 the endoplasmic reticulum which is a very, a membrane that is 19 all wrinkled up in the cell. Very high surface area that 20 occupies a relatively small part of the space in the cell. 21 If you were to take a big piece of tissue paper, you could 22 crinkle that all up into a very, very small space and yet the 23 surface area is still very, very large. The surface is still 24 the same. It just occupies a very small space and that is 4 1 the way many of the membranes inside the cell are formed so 2 that they can get an awful lot of surface into a very small 3 space so that endoplasmic reticulum is in the cell sap or in 4 the soluble or out in the cell body and not out here on the 5 cell wall. And we are not talking about a receptor. 6 These are the proteins that are made are enzymes 7 that among other things have the function of interacting with 8 TCDD and making it less toxic. We don't go back to this 9 cycle a second time. And we don't create additional -- as X 10 said r you don11 create additional receptors but then 11 apparently according to this description, do something 12 different than they did the first time. And we don't form 13 reactive intermediates This statement is incorrect. 14 And then in the last diagram, again the question of 15 reactive intermediates and they don't bind in the cell. The 16 results of the interaction of TCDD with those enzymes is a 17 non reactive product and as I stated the other day, I don't 18 really think that any mechanism of this sort represents any 19 of the, any of the mechanism by which TCDD is associated with 20 the increased tumor incidence that is seen in high lifetime 21 doses in the various studies that have been done to show that 22 TCDD has some potential presumably as a promoter. 23 Q. Doctor Dost, then the last one down by the word 24 transformation, you put a question mark there, did you not, 5 1 sir? 2 A. Yes. 3 Q. And what was the purpose of that? 4 A. Well, for one thing, we believe that TCDD is a 5 promoter. There are some problems with terminology because 6 the term, the concept of promotion and transformation 7 sometimes become -- I won't say they become interchanged but 8 it is hard to tell where one leaves off and the other begins. 9 We do not know anything about a mechanism by which that might 10 happen and it certainly doesn't occur as a function of 11 binding of TCDD to critical targets, so to speak, such as 12 DNA. Certainly we know that the formation of the metabolites 13 of TCDD does not result in cell toxicity. Apparently it is 14 toxicity that is produced by TCDD depends on in tact, 15 unchanged TCDD molecules. 16 MR. HEINEMAN: Your Honor, at this time we would 17 move the admission of Defendant's Exhibits 1291 and 1295 into 18 evidence. 19 MR. CARR: No objection, Your Honor. 20 THE COURT: 1291 and 1295? 21 MR. HEINEMAN: 1291 through 1295. `* 22 THE COURT: All right. Admitted without objection. 23 Q. Doctor Dost, in describing or in discussing these 24 particular charts, you will recall that Doctor Zahalski 6 1 talked about one molecule of dioxin being able to initiate 2 cancer or to initiate immune collapse. Do you recall that, 3 sir? 4 A. Yes. 5 Q. Now, did you tell us yesterday you disagreed with 6 that? 7 A. I did, yes. 8 Q. And why is it that you disagree with that, Doctor 9 Dost? 10 A. Well, we can deal with it biologically or 11 chemically or both. To begin with, reactions of chemicals in \ 12 the body follow the same rules, the same natural laws that 13 reactions in a test tube or anywhere else must follow. And 14 one fundamental concept, one fundamental fact in chemical 15 reactions is that as the concentration of reactants 16 decreases, the rate of reaction decreases. In fact, it 17 decreases more rapidly than the concentration does and also, 18 the. probability that a reaction can be started in the first 19 place also depends on concentration. I believe I pointed out 20 yesterday that one of the reasons for this is because it 21 takes time. It is very difficult to imagine time in 22 compartments so small that it would relate to a molecule. I 23 mean we talked about how many molecules there are in very, 24 very small amounts of any substance yesterday. However, if a 7 1 molecule does not remain on' the site where it is going to 2 react for some finite period of time, and the physical 3 chemists speak in terms of pecoseconds when they discuss 4 these kind of things. If it doesn't stay there long enough, 5 it won't react. 6 Well, it can stay there long enough if there are 7 enough other similar molecules in the system to make it stay 8 there. Otherwise, because of the natural physical activity, 9 molecules move around. They don't stay in one place. They 10 are not lying there like a rock. And as a consequence, the 11 molecule will not stay in place long enough for the physical 12 forces that would hold it in place to actually bind it so 13 that it can react. If there is a large population of 14 molecules that surround it, then the potential for it to stay 15 in place long enough to react becomes significant and a 16 reaction presumably can take place. It may be very slow but 17 it can take place. A single molecule, the likelihood of a 18 single molecule reacting with anything is in practical terms 19 impossible. 20 Q. What about with respect to promotion of an already 21 initiated cancer cell? 22 A. Okay. We are talking about, again we are talking 23 about a chemical reaction and TCDD is not a magic chemical. 24 There are no magic chemicals. There are no chemicals that 8 1 behave apart from the basic laws of chemistry and physics and 2 the same idea applies. There just is not enough material 3 there even with the incredible toxicityf if you will, of TCDD 4 and it is a very toxic substance. No one has ever denied 5 that. There has to be enough molecules available to i 6 interact. One molecule in a practical reasonable sense is 7 not going to undertake a reaction. 8 Q. What about individual susceptibility? You would 9 certainly agree that one individual may be more susceptible 10 to the action of the chemical than another person may be? 11 A. The differences in sensitivity of individuals are 12 really not all that great. You may be talking about 13 differences of 10, 20 fold, even animals or people with 14 genetic differences that magnify individual or variability 15 within a species. These differences are not on the order of 16 hundreds and thousands and ten thousands. They are 17 relatively small numbers. Now to be sure, an individual who 18 is twice as sensitive, let's say, to an anesthetic agent and 19 this is a very real possibility. A person who is twice as 20 sensitive to an anesthetic agent is always a possibility in a 21 surgical context and the anesthesiologist must be exceedingly 22 careful that that individual is not just given some' dose of 23 anesthesia and assume that they are going to be properly 24 anesthetized because the average dose is at some level. If 9 1 an individual is only twice as sensitive, the consequences 2 could be drastic but a 10 fold sensitivity, when we are 3 speaking in an issue where levels are so low as to be 4 virtually unimaginable has very little meaning. 5 Q. So that you wouldn't find a ten trillion fold -6 A. Oh, no. 7 Q. Difference in sensitivity? 8 A . No. Never. 9 Q. Now, with respect to the idea that we discussed 10 yesterday that Doctor Zahalski suggested that promotion would 11 occur before initiation. Do you remember that testimony? 12 A. Yes. 13 Q. Are there any studies, particularly in skin tumor 14 agenesis in animals that have looked at what happens when 15 TCDD is applied to the skin before a known initiating 16 carcinogen is applied? 17 A. Well, the skin tumor model is a very widely used 18 system for studying the ideas, the processes of promotion and 19 initiation and their interrelationship because -- and the way 20 that the system works is that an initiator, let's say 21 di-methylbenzanthracene. It is applied to the skin and then 22 the promoter is applied to the same spot over an extended 23 period. 1 Let's say twice a week for half a year after a 24 single dose of an initiator. And this is a very sensative 10 1 system for at least certain kinds of tumor agenesis and it 2 has provided a great deal of information that has given rise 3 to the concepts of promotion and initiation, 4 TCDD doesn't work as a promoter in that rather 5 sensitive system. In other words, if you were to treat a 6 mouse with di-methylbenzanthracene and then follow it with 7 TCDD at, well, the doses that have been used are as high as a 8 microgram twice a week applied to the spot over, say, a 30 9 week period, still don't see any promotion. You see some 10 skin injury. Some hyperplasia but you don't see any tumors. 11 If you give TCDD prior to the initiator in that system, what 12 happens is very dramatic. The incidence of tumor formation 13 drops very sharply and the reason that it drops is very 14 straight forward. What TCDD has done is to initiate the 15 chemical metabolizing enzymes, the P450 enzymes in skin where 16 they exist, not as extensively in liver but they are there 17 and so if we give TCDD, let's say a week ahead of the ,18 initiator, the skin, the P450 enzymes in the skin have risen 19 sharply. They have been induced and they metabolize the 20 di-methylbenzanthracene and get rid of those of it and so the 21 tumor incidence drops very dramatically. 22 Q. So instead of promoting, they inhibit? 23 A. In that situation instead of promoting, they really 24 inhibit because they are accelerating the metabolism of the 11 1 initiating carcinogen so that the actual availability of the 2 initiator has been decreased very sharply. 3 Q . Now -- 4 MR. CARR: Counsel, did the witness perform these 5 studies? You said they were studies but I didn't hear him 6 identify -7 A. I did not do that. 8 MR. CARR: I didn't hear you identify who did it? 9 A. Those have been done by Doctor Berry, Doctor Slaga 10 again. A group primarily at the National Institute of 11 Environmental Health Sciences. DeGiovanni, Cohen. 12 Q. Now, discussing di-methylbenzanthracene, I will 13 have you take a brief look once again at the Eisen chart 14 which is Plaintiffs' Exhibit 233. This particular document, 15 this particular study, is this TCDD specific? Is that 16 what -- 17 A. This study is looking at -- No, it is not. Many of 18 the things that are in here do relate to TCDD. I believe I 19 mentioned yesterday that this part clearly is associated with 20 the action of TCDD and this part. There are questions as the 21 document shows but whether these particular enzymes are also 22 elevated, the evidence is not clear. It doesn't apply to 23 this concept of the formation of a reactive intermediates 24 which then interacts to cause cancer or other elements of 12 1 toxicity. There is a possibility that there is evidence/ in 2 other words, to suggest that TCDD does have some activity in 3 this general area. This is an area that has not been fully 4 worked out yet. I suspect that we will find, in fact, there 5 are interactions here and establish those very clearly. 6 Q. The question mark, sir, do they mean that it is a 7 hypothesis? 3 A. Well, as I said yesterday, this is an overall model 9 that is intended to include all, most of the reasonable 10 possibilities for all chemicals but not as a specific model 11 for any one chemical. You mentioned di-methylbenzanthracene. 12 That fits into this category because there are presumably 13 reactive intermediates formed. However, in the studies that 14 I just was describing, apparently the interaction in the skin 15 is sufficient that it either, there is such a short-lived 16 intermediate or conceivably there may be a direct conversion 17 without going through the reactive intermediate. That 18 substance does cause or does form reactive intermediates in 19 the liver. 20 Q. Now, there have been a number of occasions here, 21 Doctor Dost, when you have disagreed with the testimony of 22 Doctor Silbergeld and with Doctor Zahalski. The views you 23 have expressed in disagreement with those two witnesses, are 24 those views solely your own, sir? 13 1 A. No. They are not. 2 MR. CARR: Your Honor, I object, certainly object to 3 that unless the witness is going to be here to cross 4 examine. I object as to what Doctor Dost is doing and what 5 Mr. Heineman is doing and counsel clearly knows that this is 6 not proper. 7 THE COURT: Objection is sustained. It is not 8 proper. 9 Q. Your views here today, sir, and yesterday, what 10 have you based your opinions on? 11 A. My opinions are based on a thorough analysis of the 12 scientific literature, analysis of the opinions of other 13 scientists. 14 MR. CARR: Your Honor, I most certainly disagree, 15 object to that. Counsel knows that it is not proper. If 16 there is an authoritative article or if there is a citation 17 of some sort, this witness may refer to it. He may not refer 18 to conversations of so-called other scientists that are not 19 here. Vie have no way of identifying. No way whether it is a 20 fact or truth. It is the rankest form of hearsay and counsel 21 knows it from many times we have been up on points similar to 22 that and I object to it and ask the jury.to be instructed to 23 disregard what this witness has said with regard to 24 conversations with other scientists. 14 1 MR. HEINEMANs May I respond to that? As we have 2 gone through this witness's testimony, he has specifically 3 related to specific papers and specific studies by specific 4 scientists when he has expressed his opinion. 5 MR. CARR: And I have no objection to that. That is 6 not what I am objecting to now. 7 THE COURT: That is not a similar situation. The 8 objection is sustained. The jury is ordered to disregard the 9 remark. Mr. Heineman, you were admonished to avoid any such 10 area, any such remarks or any question that calls for such 11 remarks. 12 Q. Doctor Dost, have you, yourself, done any specific, 13 hands-on work in the laboratory with dioxin? 14 A. No. I have not. 15 Qi But you said to us that you have read the 16 literature? 17 A. That is correct. 18 Q. On the subject of dioxin? 19 A. Yes. 20 Q. How many -- approximately how many such articles 21 have you read? 22 A. I have no idea, really. Hundreds, I am sure. 23 Q. Is it -- do toxicologists such as yourself in 24 operating daily as toxicologists deal solely with the result 15 1 of their own work in reaching conclusions about situations -2 that are presented to them? 3 A. No. That would be impossible because for a number 4 of reasons. For one thing, toxicologists tend to do research 5 on certain classes of chemicals or work involving certain 6 kinds of mechanisms. It is not possible for any of us to do 7 a significant amount of work in any specific field. I at one 8 time was considered to be a major expert in the area of the 9 toxicology of the hydrosenes and I doubt if I had done three 10 percent of the research on hydrosenes. The toxicologist has 11 to be in a position to respond to problems and use the basic 12 principles, the basic scientific principles and concepts of 13 toxicology in doing that and there is no way that any of us 14 could possibly do all of the work or even enough work to 15 reach a conclusion on a wide basis. Certainly a researcher, 16 Allen Poland, for example, has done a great deal of work on 17 the AHH receptor and I am sure he has a very clear conclusion 18 in his mind based on his own work about that but I am also 19 sure that it, he has examined everybody else's work as he has 20 approached his conclusions and we are all -- When we do do 21 research, our research is shaped by the work that other 22 people have done. If it was not, we would just waste our 23 efforts because everything would be done over and over again. 24 Q. Now, one of the things I would like to ask you 16 1 about, sir, is the testimony by Doctor Zahalski on May 3rd of 2 1984, page 110. He suggested that one molecule of dioxin 3 could result in one million cancer cells in 30 days. Do you 4 remember that testimony, sir? 5 A. I remember that testimony. 6 Q. Do you agree with that? 7 ' A. No. 8 Q. And could you tell us why not? 9 A. Well, I have already explained why I really am 10 convinced that a single molecule is not going to induce the 11 carcinogenic process. But some simple arithmetic would and I 12 discussed yesterday also the doubling time of tumor growth. 13 If I recall, Doctor Zahalski had mentioned the idea 14 of rewarding his daughter for something, a penny a day, 15 double it tomorrow, or do you want that or do you want some 16 now. If one were to use that figure, that is using a 17 doubling time of one day where there are two cells, one cell 18 yesterday and two day, four tomorrow, et cetera, there would 19 be on the order, I have calculated this, it would be in 20 excess of 500 million cells at the end of a month. If we 21 assume a doubling time or if we assume that there are a 22 million cells starting from that single cell, at the end of a 23 month, there would be, if we did start just with one cell, at 24 the end of a month there would be a million cells, at the end 17 1 of two months there would be a trillion and at the end of 2 three months there would be, each of those cells would form a 3 million cells and there would be 10 to the 18 cells. Now, if 4 we assume that there are 10 to the 9, that is one billion 5 cells in a gram of tissue which is something of the order 6 that we find in the liver, that means that at the end of the 7 second month, there would be a thousand grams of tumor. Now, 8 a thousand grams is only a kilogram. That would certainly be 9 noticeable, but by the end of the third month, we would have 10 a thousand kilograms of tumor cells and a kilogram is a 11 fairly substantial amount of material. A person may weigh 70 12 or 80 kilograms and by the third month we already have a 13 thousand kilograms of cells. If we wanted to multiply this 14 by the amount of, by the number of molecules that we were 15 talking about yesterday that are in the body at a dose of one 16 nanogram per kilogram and I don't remember what the number 17 was but we were talking something on the order of 130 18 trillion molecules at that dose, I think, something of that 19 sort and if each,of those molecules was to initiate this 20 process, we are moving into numbers here that I no longer am 21 able to imagine. 22 But in three months, a single cell reproducing at 23 that rate would produce a tumor that weighs about a thousand 24 kilograms. 18 1 Q. How much is that? 2 A. Well, that is 2200 pounds, something over a ton. 3 Q, Now, and that would be if indeed one molecule will 4 result in a million cancer cells in 30 days? 5 A. Yes. 6 Q. Now, in fact, sir, would you explain to the jury 7 the doubling rate that occurs in cancer and how that relates 8 to a latency period and the development of a tumor after a 9 period of time? 10 A. Well, the latency -- latency is defined in 11 sometimes different ways because you recall, if I might bring 12 up 1285, we talked about this initiation process and that can 13 happen and that cell may remain there initiated for the life 14 of the animal even.' So there is no specific time between 15 this event and the process of promotion and ultimately 16 transformation. That cell may remain initiated for a 17 lifetime. That sometimes is thought of as part of the 18 latency period but if we just think of it from this point 19 forward when that cell has reached the point where it is 20 going to become a tumor without question. It has evaded 21 immune surveillance, it is going to become a tumor and if we 22 have, if we have a doubling time, I think I spoke yesterday 23 of doubling times on the order of 30 to 90 days. 24 Now there are some culminating types of tumors that 19 1 go at an incredible rate. Not doubling everyday but they do 2 go very fast but if a tumor doubled at a rate of 90 days, at 3 the end of one year we would have two, four, at the end of 4 six months we would have four cells. At the end of nine 5 months we would have eight and at the end of 12 months we 6 would have 16 and so on. And it would probably require a 7 population. If one was really looking and was able to see 3 tumors, you have got, you know, tumors are hardly ever found 9 until they are of substantial size because they are found 10 only when they are starting to cause some kind of 11 disruption. A tumor of this size in the liver would almost 12 certainly be undetected but with our present level of 13 sophistication because it is hard to identify tumors on the 14 basis of some biochemical change in the body. The only way 15 they can really be identified is morphologically in most 16 cases. 17 Now, some'of the leukemias and so forth are 18 detectable with a blood sample, but even so, they are rarely 19 sought. You rarely look for them unless something is going 20 wrong. So, most of the time a -tumor isn't detected until it 21 is causing some kind of a disturbance and that may be because 22 of its size and it takes a long time, if a tumor is, let's 23 say, this big around, it probably weighs what 20 or 30 grams 24 and if there are a billion cells per gram, that means 20 or 20 1 30 billion cells and when the rate of doubling is only 90 2 days, that means that the growth of that tumor is going to be 3 very, very small and it will probably have been going on for 4 years and years and years. There are tumors that double even ,5 more slowly than that. So, that really is the basis for the 6 latency idea. It is a little depressing to realize that all 7 of this can be going on without us knowing it but that is 8 what happens. 9 Q. Now, at some point, though, the mass ,of cells get's 10' large enough that a doubling has a very substantial effect, 11 isn't that right? 12 A. Oh, yes. There is another property here, too, and 13 that is as a tumor becomes very large, oftentimes the 14 doubling rate slows because the tumor is not well nourished. 15 In other cases, it is well nourished and it will just keep 16 right on going but oftentimes the tumor may be even 17 capsulated. The cells in the tumor are not necessarily well 18 nourished and that would slow the growth down. It varies 19 with the kind of tumor. 20 Q. Nov;, with respect to the dose response theory, what 21 do the studies of the effect of TCDD arid cancer, what do they 22 show with respect to whether or not a dose response principle 23 exists in cancer? 24 A. Well, they all clearly show that at the highest 21 1 doses, there is some incidence of increased, some increased 2 incidence of tumors, particularly in the liver, some 3 thyroid. And in animals that are fed the material, 4 apparently some incidence of tumors in the palate and upper 5 respiratory area but as the dose decreases, and I might add 6 that at those doses, these are animals that are showing other 7 kinds of pathology as well. And as the dose decreases, that 8' evidence just simply stops and at the lower doses, there is 9 no evidence of increased tumor incidence. 10 Q. Well, who are the people? Who are the scientists 11 who have studied this subject? -12 A. There have been a series of studies done under the 13 auspices of the National Toxicology Program. They have 14 studied TCDD in rats and mice given by stomach tube and also 15 applied to the skin. The study by Koceba in rats that I have 16 mentioned a number of times. Studies by a researcher named 17 Toth, T-o-t-h, on mice. There have also been studies -- I 18 mentioned earlier the skin tumor initiation promotion 19 experiments that have been done. Allen Poland has done 20 studies in nude mice. Identifying the promotion character of 21 the promoting character of TCDD as have Henry Pitot. Those I 22 think are the principal sources of data. There has been a 23 study done by at the University of Wisconsin by Van Miller, 24 James Allen and that group but it was a peculiar study, very 22 1 small numbers of animals. It was intended as a preliminary 2 study. They found evidence of tumors but most of the control 3 animals died. There was a higher mortality in the control 4 animals than there was in any of the experimental groups f 5 except those in which all of the animals died because of the 6 high dose of TCDD. 7 They used a very wide range. I think they used 8 nine different dose levels but a relatively small number of 9 animals in each. 10 Q. When they are measuring lethality of animals, do 11 they find that it is cancer that kills them? 12 A. It doesn't seem to be, no. That is not the 13 mechanism by which they die. 14 Q. With respect to whether there is a threshold for 15 TCDD and cancer, have the Koceba studies addressed that 16 subject? 17 A. Koceba did not specifically address that as part of 18 the problem. The data suggests that there is, in fact, a 19 threshold. In my opinion, I think there is a threshold for 20 that kind of effect. 21 Q. What doses did Doctor Koceba test and what did he 22 find with respect to any kind of tumors? 23 A. Well, in his two year study, they used a dose or a 24 dose rate, if you will, of a microgram per kilogram per day. 23 1 I beg your pardon, a tenth of a microgram per kilogram per 2 day over the lifetime of the animal and then there was a dose 3 ten fold lower than that at .01 micrograms and a dose at .001 4 micrograms per kilogram per day. 5 Q. And what was found at those respective doses? 6 A. At the lowest dose, no evidence of any carcinogenic 7 response. At the intermediate dose, there were some hepatic 8 nodules that are characteristic of a lot of hepatic 9 intoxicants and then at the higher dose, primarily hepatic 10 carcinomas, some evidence of tumors, increased tumor 11 incidence as I have just mentioned in the palate and upper 12 respiratory tract. I don't recall whether he found -- I 13 think he may have found some evidence of thyroid tumors in 14 the high doses too and decreased incidence of tumors in the 15 endocrine gland. 16 Q. . Lower than in the control? 17 A. Yes. 18 Q. Now, based upon that, do you have an opinion as to 19 whether there is a no effect level with respect to TCDD and 20 any relationship to cancer? 21 A. Well, in my opinion, I think that there is a no 22 effect level. 23 Q. And what is that? 24 A. Well, based on the studies of Koceba and in the 24 1 National Toxicology Program studies where the doses were 2 approximately equivalent and in the Toth studies on mice, I 3 think that we can consider .001 micrograms per kilogram to be 4 a no effect level. It is often stated as a no effect level. 5 Q. Now, Doctor Dost, there has been some testimony in 6 this case in the past relating to a certain paper put out by 7 the Centers for Disease Control and Doctor Renate Kimbrough, 8 Henry Falk and others. And, in fact, it is in evidence as 9 Plaintiffs1 Exhibit Number 1255. Have you read that 10 document? 11 A. I have, yes. 12 Q. And what is the level in soil that is discussed as 13 a level of concern in that document? 14 A. In that document, they consider that a level of one 15 part per billion or above in residential soil is a level of 16 concern. 17 Q. I would like you to look .at the exhibit -- first of 18 all, I have a copy of Plaintiffs' Exhibit 1255 and I would 19 like to direct your attention to page 74 of that exhibit. 20 Doctor Dost, I am showing you Defendant's Exhibit Number 1296 21 and ask if that is an accurate copy of page 74 of Plaintiffs' 22 Exhibit 1255? 23 A. Yes. It is apparently a photocopy of this page. 24 Q. All right. 25 1 MR. HEINEMAN: Your Honor, we would move admission 2 of Defendants Exhibit 1296. 3 MR. CARR: No objection. 4 THE COURT: Okay. It is admitted without 5 objection. Before you get, into that, l e t s take a short 6 break at this point in time. Court is in recess. 7 COURT RECESSED: 8 (The following proceedings were had in the hearing 9 and presence of the jury) 10 FRANK DOST 11 having resumed the witness stand, being previously sworn, 12 testified further as follows: 13 DIRECT EXAMINATION 14 By 15 MR. KENNETH R. HEINEMAN. 16 Q. Doctor Dost, you have before you there Plaintiffs' 17 Exhibit 1255, do you not, sir? 18 A. Yes, I do. 19 Q. And the one part per billion level in residential 20 soil that you, related to us, what according to the CDC is the 21 relationship between the level of contamination and where' 22 that contamination is in terms of the assumptions they have 23 made and the level that they have made applicable? 24 A. The one part per billion level relates to 26 1 residential soil. The assumption is that the entire area is 2 contaminated at a level of one part per billion. In other 3 words, this is an area where people are living and the entire 4 area is assumed to be contaminated at one part per billion. 5 Q. Now, by the entire area, you are 'referring, the 6 articles is referring to what? 7 A. It is referring to soil. In other words, the 8 garden., the lawn, wherever soil contact might be and the 9 assumption is that it could very well be the entire area in 10 open soil. 11 Q. Does it state anything with respect to whether any 12 commercial or industrial area is considered? 13 A. Yes, it does. It points out that in commercial or 14 industrial areas where there is often gravel covering, 15 paving, where there is essentially limited foot traffic 16 contact by individuals, people may be crossing over it but 17 they are not in contact with the soil to any appreciable 18 extent, they state that higher levels would be also without 19 risk. In other words, they would not, they would be 20 concerned only at higher levels than one part per billion. 21 Q. Did they state whether or not inhalation or skin 22 contact would be assumed in gravel or commercial sites? 23 A. They did speak to that and their assumption was 24 that there would not be skin contact nor certainly there 27 1 would not be ingestion because the people who are going to be 2 in industrial sites are going to'be almost exclusively adults 3 and small children are not going to be playing in such sites. 4 Q. Does this one part per billion, sir, relate to a 5 concentration in a product or a concentration in soil? 6 A. No, sir. It relates only to the ultimate 7 concentration that might result in soil. 3 Q. And what were the assumptions behind the one part 9 per billion? 10 A. Well, they have listed them on page 74, yes. Which 1 1 we have reproduced here. The assumptions are listed here. 12 This formula up here is simply a formula that -- this is 13 worked out on a daily basis over a lifetime and so what this 14 formula actually amounts to is incorporating each o,f the 15 assumptions for each day and then with a computer going 16 through and adding it all up over a lifetime. The factor is 17 the expected lifespan in days. This factor is the age 18 specific amount of soil ingested each day and they have made 19 some estimations of soil ingestion patterns according to age 20 with ingestion of approximately a gram of soil a day between 21 ages 9 and 18 months, 10 grams of soil a day between a year 22 and a half and three and a half years of age and then the 23 amount ingested tends to diminish with age and they have also 24 made estimates of daily deposition of soil on skin with age 28 1 and those estimates of deposition on scale for the age groups 2 are about the same. And they have made an estimate of the 3 percentage that should be expected to be absorbed through the 4 gastrointestinal tract and they have arrived at a figure of 5 one percent absorption. 6 In other words, you see they have the amount 7 ingested and the amount absorbed. They have the amount that 8 they would estimate to be deposited on skin and the amount 9 that they would expect to be absorbed through the skin. The 10 amount -- this is a symbol for inhalation. This is an 11 estimate of the amount of air exchanged each day. It is 12 known what our respiratory exchange "rate is. We probably, 13 with the kind of activity that is going on in here, probably 14 have an exchange rate of something like 10 or 15 cubic meters 15 a day that we breathe in and breathe out. Concentration of 16 dust in the air, and a variable for season. They may be 17 assuming that in the winter months where children are not 18 outside, that that would be zero. So they put in the factor 19 one for the fair weather months and zero for the cold weather 20 months. And they made estimates when they did the ultimate 21 calculation based on one part per billion and on a hundred 22 parts per billion. These are the doses that they estimated. 23 But the main thing we are interested in here are 24 the considerations that they brought into the calculation. 29 1 They make the point again that they are assuming uniform 2 contamination across the entire area. 3 Q. Doctor Dost, what did they assume would be the 4 primary route of exposure? 5 A. By ingestion of soil and primarily at the age range f. 6 of one and a half to three and a half years where they assume 7 10 grams of soil taken in a day. 3 Q. 10 grams per day? 9 A. Yes. 10 Q. And what about the routes of dermal exposure or 11 inhalation? 12 A. They came to the conclusion that inhalation 13 exposure was not significant and they made a note of that but 14 they did not include inhalation as part of the calculation 15 because the factor is so small that it made no contribution 16 to the ultimate estimated dose. 17 Q. And did they look at the time of exposure? In 18 other words, the length of time? 19 A. Well, they looked at -- they set this formula up to 20 deal with the entire lifetime. In other words, when they 21 arrived at an estimated dose, they are making the assumption 22 of a total lifetime exposure. In other words, if I were to 23 live from birth to death in one site and the assumption is 24 made that the contamination level remains constant throughout 30 1 that time. 2 Q. And did they build in any kind of a safety factor? 3 A. Well, they used, they used the safety factor or the 4 no effect level that is currently accepted by the Food and 5 Drug Administration as well as CDC of a no effect dose at one 6 nanogram per kilogram and then, of course, they find that 7 they have -- well, all right. The average daily TCDD dose to 8 an individual over a 70 year lifetime would be 44.6 9 picograms. Now, we are talking about a no effect level at 10 one nanogram per kilogram per day or 70 nanograms per person, 11 approximately, 50 to 70 kilogram person, it would be 50 12 nanograms and since that is a number that is similar to 44 -- 13 That is a thousand fold difference. In other words, 44.6 14 picograms is 1,000 fold less than 45 or, yeah, 50 nanograms. 15 Q, Now, what about the dose response analysis and 16 assumptions for promoters versus carcinogens? What sort of 17 assumptions did they make there? 18 A. Well, they made the assumption' -- you understand 19 that this is a document intended for regulatory use. It is 20 the practice in the regulatory context because the regulatory 21 context looks at events that might be in the future, not 22 events that are in the past. And even though they make the 23 statement in the document that TCDD is apparently a promoter, 24 they use the assumption that it is a complete carcinogen. In 31 1 other words, they used an assumption that does not include a 2 threshold. In other words, the dose response relationship is 3 essentially linear down to zero dose which is the custom in 4 any kind of regulatory context at the present time. 5 Q. All right. Now, how does that square with what the 6 studies show with respect to whether or not there is a 7 threshold? 8 A. In this document itself, they make the point that 9 it is, I can't remember their exact language, it is possible 10 or it is likely that the dose response relationship with 11 respect to a promoter and, therefore, TCDD may be non 12 linear. That is, that it may come down to a threshold or 13 have some other configuration that approaches a threshold and 14 what they do is acknowledge that along with the other 15 assumptions that they make and the other estimates that they 16 make, they are setting up a highly conservative model from 17 which to judge the potential hazard of a one part per billion 18 contamination. 19 Q, And as a matter of fact, if you look at the Exhibit 20 1255 there, I direct your attention to the second page of the 21 exhibit in the middle of that first paragraph. 22 A. These calculations assume that a linear dose 23 response relationship exists for carcinogens such as TCDD 24 that based on current evidence are thought to be primarily 32 1 promoters. However, the dose response curve for promoters 2 may not be linear causing an over-estimated risk. Is that 3 what you are referring to? 4 Q. Yes. Now, Doctor Dost, have you been to Sturgeon? 5 A. Yes, I have been to Sturgeon. 6 Q. And how did you go? 7 A. I believe it was in late July or early August. I 8 only remember that it was very/ very warm when I was there. 9 Q. And what did you do while you were there? Where 10 did you go? 11 A. Well, I walked the trackage from the, actually from 12 the middle of Sturgeon through what is it Ogden Street, Wentz 13 Street and on clear out to the intersection past the site 14 where the tank car came to rest and then back. Inspected the 15 area so that I could get an understanding of the topography 16 and the kind of land that was adjacent. Visualize the 17 treatment facilities that were set up and the excavations 18 that were done and so forth. 19 Q. Now, at the time you were there, of course, none of 20 that equipment was there? 21 A. Everything was gone. 22 Q. Did you have photographs with you from which you 23 could visualize where the things were? 24 A. I had studied photographs very extensively before I 33 1 went, I took a couple along so that I could keep oriented 2 but, yes, 3 Q, Ar you familiar with the smell of chlorinated 4 phenols, sir? 5 A, Yes, I am afraid I am. 6 Q. And were you able to detect the smell of 7 chlorinated phenols when you were there on that hot day? 8 A, No. I couldnft smell them. 9 Q. And where else did you go besides walking up and 10 down the track? 11 A. Well, we walked in some parts of the town, entered 12 a couple of stores. We were debating whether to have lunch 13 there or whether to go someplace else for lunch. Bought a 14 soft drink. Drove throughout the town. Followed the course, 15 most of the course of the ditch that leads from the, from 16 about the point where the French drain ended and, in general, 17 toured throughout the town. Walked some of it, drove through 18 some of it and then went out into some of the surrounding 19 agricultural area to get a general sense of the nature of the 20 community. 21 Q. Now, with respect to Sturgeon, sir, and your 22 understanding of this incident, was residential soil 23 contaminated by the spill in Sturgeon? 24 A. I don't believe so. I can't see how it would 34 1 become contaminated. 2 Q. Now, what was the area that was contaminated by the 3 spill? 4 A. The area that was primarily contaminated by the 5 spill is an area just outside the town. 6 MR. CARR: I object unless the witness states the 7 basis for his knowledge of the area that was contaminated by 8 the spill. 9 THE COURT: Objection is sustained. 10 MR. CARR: Unless counsel gives it to him in a 11 hypothetical. I am sure this witness has no knowledge of his 12 own. 13 THE COURT: Objection is sustained. 14 Q. Doctor Dost, if you were to assume that the car 15 came to rest on the main line track adjacent to the Triple C 16 Construction property there at Sturgeon. Did you see the 17 Triple C Construction property there? 18 A. I did, yes. 19 Q. And if you assume that the car came to rest there, 20 sir, and that the derailment began near Ogden and Wentz 21 Streets and the car proceeded west from there along the- track 22 until it came to rest? 23 A. Yes. 24 Q. Now, what was the area that received, if the car 35 1 came to rest there, the area that received the primarily 2 contamination? 3 MR. CARR: Your Honor, I object to that. Counsel 4 hasn't given the witness any facts yet. The witness can't 5 answer a hypothetical, give a factual answer to a 6 hypothetical. 7 THE COURT: I think there is some lacking in that 8 question, too. Could you rephrase it and ask more. I will 9 give you that opportunity. Objection is sustained. 10 Q. Doctor Dost, can you tell me which of the 11 assumptions upon which the CDC estimate was based in your 12 opinion do not apply to the Sturgeon situation? 13 MR. CARR: Your Honor, I object until the witness is 14 given the facts to make an opinion on it. Right now he has 15 been given no facts except that a tank car ran through 16 Sturgeon. 17 THE COURT: Objection is sustained. 18 Q. Now, what is the age, Doctor, at which one would 19 expect ingestion of soil that might be contaminated? What is 20 the age at which that is expected to occur? 21 A. Well, according to the CDC and its consultants, the 22 age at which the maximum amount of soil might be ingested 23 would be between the ages of one and a half and three and a 24 half. Somewhat less prior to that time and the amount would 36 1 diminish until by the age of five the estimated intake .is on 2 the order of 100 milligrams a day of soil, dirt. 3 Q. All right. Now, how is that according to the CDC 4 assumption, how is that soil ingested? How does that occur? 5 A. Well, just because children do not eat much dirt 6 purposefully but children are not that careful about the way 7 they handle toys and they tend to take a lot of soil in just 8 through carelessness. 9 Q. Is that in the area where they play? 10 A. Primarily in the area where they are playing, where 11 they are spending most of their time, yes. 12 Q. And where do children who are ages one and a half 13 to three and a half years spend most of their time, according 14 to the CDC estimate? 15 A. Well, I would assume that at times when they are 16 not under immediate and direct supervision, they are in their 17 own yard and in their own home. 18 Q. And it is at that location that the CDC is assuming 19 that this ingestion of dirt is going to occur? 20 A. That is correct. 21 0. Does the railroad right-of-way at Sturgeon that you 22 observed run through the yards of any of the people that live 23 in the town? 24 A. I believe there is one residence through which or 37 1 near which the railroad right-of-way runs. It doesn't run 2 through any yards, 3 Q, Do you have a conclusion, sir, as to -- do you have 4 an opinion as to whether the one part per billion level of 5 concern established by CDC in this document would be 6 applicable to Sturgeon? T MR. CARR: Your Honor, I object unless it is based 8 simply upon what the doctor has yet to suggest to and not any 9 other consideration because no other facts have been given to 10 Doctor Dost. 11 THE COURT: With that caveat, you may answer the 12 question, Doctor Dost. I think that is properly brought 13 out. 14 A. In my opinion, there is no relation to an exposure 15 that might take place at any point on a railroad right-of-way 16 and an exposure in a residential yard and I don't think that 17 the CDC estimate is applicable to the situation in Sturgeon. 18. Q. Doctor Dost, with respect to dioxin isomers other 19 than 2,3,7,8 TCDD, is there any literature that treats the 20 toxicity of those other types of dioxin isomers? 21 A. Yes. There are some. There is some research in 22 this area. 23 Q. How do the other dioxin isomers relate in terms of 24 toxicity vis-a-vis 2,3,7,8 TCDD? 38 1 MR. CARR: Your Honor, I object unless he 2 identifies the source of his knowledge at this point and 3 cites the literature. 4 THE COURT: Objection sustained. Can you rephrase 5 the question. .6 Q. What literature are you referring to, Doctor Dost? 7 A. Quite a few years ago Doctor Scwetz did a 8 comparative lethality study on TCDD and other chlorodioxins. 9 MR. CARR: Can you spell his name? 10 A. S-c-w-e-t-z. There have been studies of the 11 ability of TCDD to induce and others as a comparative study 12 TCDD and other isomers to induce AHH in cultured cells as 13 well. 14 Q. And who has done that work? 15 A. Primarily a group including Doctor Bradlaw, Doctor 16 Casterline. 17 Q. And what do these studies demonstrate with respect 18 to the toxicity of the other dioxins? 19 MR. CARR: Your Honor, to my knowledge we have not 20 been given these studies. The witness hasn't referred to 21 them and we didn't -- It is not in the document that he has 22 given us. 23 MR. HEINEMAN: I certainly believe you have been. 24 I don't know that I have that sheet here. Which one is it 39 1 that you don't have, Mr, Carr? 2 MR. CARR: I have got nothing that refers to Scwetz 3 at all. I have got nothing that refers to Bradlaw at all. 4 THE COURT: Gentlemen, it is almost noon. Why 5 don't you resolve this over the lunch break and we will start 6 again at 1:15. Court is in recess for lunch. We will resume 7 again at 1:15. I would remind you that you are not to 8 discuss this matter among yourselves, with anyone outside the 9 jury panel or as of yet form any opinions or conclusions 10 about the matters on trial. Court is in recess. 11 COURT RECESSED: 12 (The following proceedings were had in the hearing 13 and presence of the jury) 14 FRANK DOST 15 having resumed the witness stand, being previously sworn, 16 testified further as follows: 17 MR. HEINEMAN: Your Honor, may counsel approach the 18 bench for just a minute please. 19 THE COURT: Sure. 20 (Bench conference had out of the hearing of the 21 jury.) 22 MR. HEINEMAN: Right before the lunch break, Judge, 23 Mr. Carr had raised an objection with respect to having 24 testimony on the, with respect to the paper by Bradlaw. 40 1 THE COURT: Bradlaw and someone else, 2 MR, CARR: The Scwetz paper we have. There were 3 two papers. We have the Scwetz paper. 4 MR. HEINEMAN: Okay. My understanding is that both 5 papers were in the Carnow bibliography which was provided to 6 Mr. Carr a long time'ago but it is also my understanding that 7 in the list of papers which Doctor Dost was going to rely on, 3 the Scwetz paper was mentioned by the Bradlaw was not. 9 MR. CARR: That is correct. 10 MR. HEINEMAN: And, therefore, I am not going to 11 have him testify to anything involving the Bradlaw paper so 12 the questions. 13 MR. CARR: You have a copy of the Bradlaw paper 14 here? 15 MR. HEINEMAN: I don't have one here. No. I don't 16 think so. I don't think so. I am not going to ask him 17 anything about it. 18 THE COURT: About Bradlaw? 19 MR. HEINEMAN: No. Because I think Mr. Carr has a 20 legitimate objection. 21 MR. CARR: And it wasn't listed. 22 THE COURT: But you are going to ask him about 23 Scwetz? 24 MR. HEINEMAN: Yes. 41 1 THE COURT: And since you have it, there is no 2 objection? 3 MR. CARR: Correct. 4 (The following proceedings were had in the hearing 5 and presence of the jury) 6 DIRECT EXAMINATION 7 By 8 MR. KENNETH R. HEINEMAN. 9 Q. Doctor Dost, before we broke for lunch, we were 10 talking about the work of a Doctor Scwetz and with respect to 11 investigating the lethality of certain isomers of dioxin. Do 12 you recall that, sir? 13 A. Yes. 14 Q. All right. And in connection with Doctor Scwetz's 15 work -- 16 MR. CARR: Counsel, would you make it clear that he 17 mentioned other reports before lunch and that you are not 18 going to ask him about it in the record, just the Scwetz? 19 MR. HEINEMAN: I am not going to ask you about the 20 Bradlaw, just the -Scwetz. 21 Q. With respect to the other isomers of dioxin, what 22 does the Scwetz work indicate as to the relative toxicity? 23 A. Well, the TCDD is, of course, the most toxic. The 24 other four chlorine isomers that they tested were much less 42 1 toxic on a comparative -- in fact, they were so much less 2 toxic that they had trouble getting good quantitation. Their 3 estimate of the lethality was that it required in excess of 4 100 milligrams per kilogram which would be 100,000 micrograms 5 while in the rat whereas TCDD is lethal at a dose on the 6 order of 20 to 30 micrograms per kilogram in the rat. 7 Q. As opposed to 100,000? 8 A, As opposed to 100,000 for other four chloro 9 isomers. The two chloro isomers, 2,7 and 2,8 are another 10 order of magnitude, less toxic still. On the order of what, 11 would amount to a million micrograms per kilogram. 12 Q. Now, when you are talking about the other four 13 chloro isomers, are you including 1,3,6,8? 14 A, 1,3,6,8, 1,3,7,9. These are four chloro, 15 tetrachlorodioxins with the chlorines located other, at other 16 places than on the outside corners. We could have two of 17 them, for example, in those positions but if the others are 18 not, the toxicity drops precipitously. 19 Q. Now, what about the hexas and octas? 20 A. They are -- in part, it depends on the location of 21 the chlorines, on the hexas, but the most toxic is perhaps 10 22 to 15 fold less toxic than TCDD. 23 Q. And with the octas, sir? 24 A. .The octas are relatively innocuous. They are not 43 1 very toxic at all. 2 Q. Now, sir, I would like to talk to you about phenol 3 and chlorinated phenols. Would you tell the jury what phenol 4 is? What are its physical characteristics? 5 A. Phenol is a much simpler compound than is TCDD. It 6 is -- at room temperature it is a clear crystalline 7 material. If it is a little bit contaminated, it may be 8 slightly pink in color but it is basically a clear 9 crystalline substance that has a vapor pressure of about a 10 third of a millimeter of mercury which means that it has some 11 volatility but it is not highly volatile and it has a very 12 strong odor. 13 Q. Now, speaking of the odor, Doctor Dost, would you 14 define the difference for us between odor threshold and TLV? 15 A. An odor threshold is the concentration in the 16 atmosphere that can be detected by humans and this is 17 determined by using a so-called odor panel. In the same way 18 the taste panels are used for judging the taste of food 19 products in which a group of people are individually exposed 20 to varying concentrations of the substance and when they can 21 first tell that it is in the air, then they identify that 22 concentration. The TLV or the threshold limit value is a 23 factor that is used in industrial hygene to identify the 24 level of a compound that is acceptable for workday exposure 44 1 in the workplace. 2 Q. What is the odor threshold for phenol? 3 A. For phenol it is about on the order of five 4 hundredths of a part per million. .05 parts per million. 5 Q. Which would be how many parts per billion? 6 A. That would be, that would be 50 parts per billion. 7 Q. And what is the threshold limit value in the 8 workplace for -- 9 A. The threshold limit value in the workplace for 10 phenol is five parts per million. 11 Q. Which would be how many times higher? 12 A. * It would be 100 times higher than the odor 13 threshold. 14 Q. All right. Now, do you recall the testimony of 15 Doctor Silbergeld that phenols can be detected in the air 16 between 1 to 10 parts per million and OSHA recommended a TLV 17 for phenol at the level you can detect or on the order of one 18 part per million? Do you recall that testimony, sir? 19 A. Yes, I do remember that. 20 Q, Do you agree with that? 21 A. No, sir, I do not. 22 Q, All right. And on what basis do you disagree? 23 A. Well, really on the basis that I have just stated. 24 That the odor threshold is substantially lower than that. 45 1 The odor threshold is at ,05 parts per million which is 20 2 times less than one part per million and that the OSHA TLV 3 which was last reviewed in, I believe, 1976 is at five parts 4 per million. 5 Q. So, would it be true, sir, that if you can smell 6 phenol in the air, then there is clearly more there than 7 there should be according to the OSHA standard? 8 A. Not according to the OSHA standard, no, sir. 9 Q. Now, what happens to phenol in the body, sir? 10 A. Well, phenol is absorbed very readily. It is 11 absorbed when its contact is by the digestive tract. Phenol 12 vapor can be absorbed even across the skin. In fact, the TLV 13 identifies that fact by stating that phenol exposure is not 14 limited to the respiratory exposure but also to vapor 15 exposure across the skin. Phenol is not held in the body for 16 a very long time. It is a non specific compound., It doesn't 17 have preferential sites to which it moves. It is 18 sufficiently water soluble; that substantial amounts are 19 excreted without change but phenol also goes through this 20 process of glucuronidation which I have discussed in which'a 21 soluble molecule is attached to it and it then goes out in 22 the bile or perhaps in the urine. 23 Q. Is that through metabolism? 24 A. In a sense. It is metabolism in'the sense that the 46 1 compound is changed. We don't take something off of the 2 compound except the one hydrogen off of that hydroxyl group 3 and exchange it and put on another more soluble group but the 4 ring is not broken up. The basic structure of the compound 5 is not changed. If we were to subject that glucuronide to a 6 glucuronidase enzyme later on, you would get phenol back out 7 of the system. 8 Q. Does the human body in its normal state contain 9 some phenol? 10 A. Yes. As a matter of fact, it probably arises 11 primarily from the activity of bacteria in the digestive 12 tract as they interact, as they metabolize certain amino 13 acids, tryosine. Some of the aromatic amino acids are broken 14 up to form phenol. 15 Q. And where do those materials come from, sir? 16 A. Well, those are normal constituents of the diet. 17 Q. Now, is it normal to find either in the animal or 18 in the human certain constituents of phenol in the urine? 19 A. Yes. It is not -- anytime that one is looking for 20 baseline levels of phenol, if you were looking at an exposure 21 to extrinsic, that is phenol coming from the outside, you 22 have to take a baseline level to learn what the level of 23 phenol in the urine already is. 24 Q. Well,' Doctor, what are the toxic properties of 47 1 phenol? 2 A. Phenol is what sometimes is called a protoplasmic 3 poison because it does haven1t any specific effect. At any 4 point where the concentration becomes sufficient, it simply 5 causes damage. It will cause damage in the kidneys if a 6 large amount is taken in? the liver, almost any organ where 7 the circulation is substantial. On the skin it is a serious, 8 it is a severe caustic. Phenol will burn the skin. If 9 someone was to ingest phenol, it would devastate the upper 10 digestive tract. The mouth, the esophagus and so forth. 11 Q. It can cause death, can it not? 12 A. It certainly can. It is a highly toxic substance. 13 Q. ' Does it have any genetic potency? 14 A. It doesn't appear to have an appreciable ability to 15 cause genetic change. It is a rather non specific poison 16 because it is so reactive, I suppose, that it is imaginable 17 that it could perhaps cause some damage. I, at the moment, 1'8 do not know of specific tests that show any positive results 19 of it in genetic studies. 20 Q. What are the levels of phenol that are found to be 21 required to cause some sort of biological reaction? 22 A. I would say that a dose of 20 or 30 million grams 23 per kilogram would cause toxicity. The lethality of the 24 phenols runs in between two and 400 milligrams per kilogram 48 1 depending on the species. Some are somewhat higher. 2 Q. Is the TLV, i assume, lower than any level that 3 would cause any -- 4 A. Heavens yes. That is the whole idea of 5 establishing industrial hygene limits with any substance. 6 TLVs are set for all substances that are encountered in the 7 industrial environment, at least nearly all substances. 8 Q. Is there any evidence, sir, that chronic phenol 9 exposure below the odor level is harmful, toxic? 10 A. I know of no evidence. 11 Q. As a matter of fact, the odor level is far below 12 the TLV, isn't that correct? 13 A. The odor level is below the TLV and it is-- because 14 the odor of phenol is so sharp, there is very little question 15 when one is in its presence. 16 Q. So that if Doctor Silbergeld testified, sir, that 17 the toxic effects from chronic phenol exposure below the 18 odor, can arise below the odor level -- 19 MR. CARR: What page is that and what day? 20 MR. HEINEMAN: April 16, page five. 21 Q. If she had testified, sir, that chronic exposure at 22 levels below the detection by smell can result in toxic 23 effects, would you agree or disagree with that statement? 24 A. I cannot agree with that. 49 1 Q. As a matter of fact, is there phenol found in the 2 body all the time? 3 A. Yes. 4 Q. Now, there is evidence, sir, in this case. There 5 is testimony that people tested the levels for phenol at 6 Sturgeon. In fact, the EPA measured phenol in the air at 7 Sturgeon. I would like you to assume that and assume that 8 there was never a finding by either EPA or Monsanto of phenol 9 above the threshold limit value. ` Could you assume that, sir? 10 A, Uh-huh. Yes. 11 Q. I would like you also to assume that there was 12 testimony in the case that people could smell strong phenolic 13 odor as far away as a mile or two from the spill site 14 according to testimony in the case. Will you accept that, 15 please, sir? 16 A, Yes. 17 Q. Can you tell me what it was they would be smelling? 18 A. Well, most of the material that spilled was two 19 chlorophenol and two chlorophenol has a very, very sensitive 20 odor threshold. It has a recognition threshold on the order 21 of 95 parts per trillion. In other words, not only can it be 22 detected but a person who is familiar with that smell can 23 identify it at 95 parts per trillion and that level generally 24 comes quite a bit, at a higher concentration than the 50 1 detection threshold or the odor threshold and I wouldn't at 2 all be surprised that it could be smelled some distance away 3 because that is a very, very small amount of material. 4 Q. Now, by two chlorophenol, is that the same thing as 5 orthochlorophenol? 6 A. That is orthochlorophenol. 7 Q. Now, I would like you to assume that Doctor 8 Silbergeld testified at page 14 on April 16th that the 9 process of metabolizing phenol can cause damage to the liver 10 and kidney. Would you assume that, sir? 11 A. All right. 12 Q. Do you agree with that statement? 13 A. Well, when the concentration of phenol in the body 14 becomes high enough, it is going to damage the liver and the 15 kidney but it has nothing to do with the process of 16 metabolism. It has to do with the fact that the 17 concentration is so high that it is causing cellular 18 destruction. 19 Q. So that if the concentration of phenol in the body 20 is below that at which, for example, skin destruction or 21 tissue destruction would occur by the mere contact, would the 22 fact that metabolizing it cause any toxicity to either the 23 liver or the kidney? 24 A. No. There is a dose response with this sort of 51 1 thing just like every other kind of chemical impact and below 2 the level where there is actually being cellular destruction, 3 there is going to be a variety of toxicological injury but 4 this has nothing to do with the metabolism of the compounds. 5 It has to do with the reaction of the compound in the tissues 6 as it exists as the phenol. The process of metabolism to the 7 extent that it takes place is really a means of getting rid 8 of the material. And at lower levels, the mammal, humans and 9 other animals are very, very efficient at disposing of it. 10 Q. Well, sir, let me ask you if you recall the 11 testimony of Doctor Silbergeld on April 16, page four, with 12 respect to the toxic effects of phenol on the liver being 13 related to the removal of chlorine from the phenol ring 14 producing what is called a free chlorine radical. Do you 15 remember -- 16 A. Yes. 17 Q. That testimony, sir? Do you agree with that? 18 A. No, I do not. 19 Q. And can you tell us why? 20 A. There is no evidence at all that chlorine is 21 metabolized by any mechanism that removes chlorine from the 22 ring. Furthermore, the idea of a free chlorine radical as an 23 entity in the toxicity of a chlorinated compound is really 24 not sound because chlorine, when it is removed from organic 52 1 ring structures, is removed as a chloride ion and it is not 2 highly reactive. Our body is saturated with chloride ion. 3 We are full of sodium ions and chloride ions. We can't 4 survive without it. If it were a highly reactive species. 5 It would be no more reactive than the multitude of active 6 oxygen and peroxide and so forth I believe that I was 7 discussing yesterday as agents that are, that occasionally 8 cause damage to DNA and there are multitudes of scavenging 9 mechanisms that straps such substances and removes them from 10 any activity. But basically the best argument is very simply 11 that that kind of reaction does not occur with a 12 chlorophenol. 13 Q. Now, Doctor Dost, you suggested that sodium, 14 charged sodium and chloride ions are necessary to our 15 existence? 16 A. Well, of course. 'When I say charged, we are simply 17 talking about, about ionized sodium, ionized chloride. That 18 is the state that sodium chloride is in in solution. 19 Q. What is sodium chloride? 20 A. It is salt, just like table salt. 21 Q. And so that negatively charged chlorine atoms and 22 positively charged sodium atoms are in the body all the time? 23 A. We won't call them atoms. They are ions because 24 they have had a change in their electrical charge but they 53 1 are not, they are not destructive entities. They don't go 2 around having violent interactions with other components of 3 the organism. 4 Q. Doctor Dost, would the fact that people were able 5 to smell orthochlorophenol at Sturgeon mean that 2,3,7,8 TCDD 6 was present in the atmosphere? 7 A. Certainly not. 8 Q. Why do you say that? 9 A. Orthochlorophenol is quite volatile. It also has a 10 very low odor threshold. TCDD is virtually not volatile. 11 Its volatility is so low as to be considered essentially nil. 12 Q. To your knowledge, sir, has TCDD ever been measured 13 in ambient atmosphere anywhere in the world? 14 A. I know of no case where it has been measured in the 15 atmosphere as a gas. 16 Q. Are there any other factors which would lead you to 17 believe that TCDD would not be present in the atmosphere 18 other than what you have already told us? 19 A. Well, TCDD has a very strong tendency to bind to 20 anything that it comes in contact with and that would inhibit 21 its ability to move. It also is subject to degradation by 22 light. 23 Q. All right, sir. Have there been studies done on 24 the toxicity of 2,4 dichlorophenol? 54 1 A. Yes. Yes. 2 Q. And what do they demonstrate, sir? 3 A. They demonstrate again that the compound is similar 4 to the other chlorophenols in that the toxicity is relatively 5 non specific. That is, it attacks when it reaches 6 concentration that is sufficient to simply interact directly 7 with cells. It is rather quickly excreted. Half times are 8 very short. It appears to have very little reproductive or 9 immunological effect. It is like all chemicals, fetotoxic in 10 sufficient concentrations. In other words, if 2,4 11 dichlorophenol is given to a pregnant animal, not only the 12 parents but the offspring would be' expected to be intoxicated 13 at sufficient doses. 14 Q. You say in sufficient doses. Does it have a no 15 observed effect level? 16 A. It appears to, yes. 17 Q. All right. Doctor Dost, I would like to ask you a 18 hypothetical question, sir. And I want you to assume, if you 19 would, that on the night of January 10, 1979, a tank car 20 derailed while moving west through Sturgeon, Missouri. 21 Assume that this tank car spilled approximately 19,000 22 gallons of orthochlorophenol-crude, a mixture of phenol and 23 various chlorinated phenols, and that this mixture also 24 contained between .6 and 45 parts per billion of 2,3,7,8 55 1 tetrachlorodibenzo-para-dioxin which would be no more than 81 2 percent of a teaspoon in this 19f000 gallons of chemicals. 3 Assume also that the spillage involved the main 4 line track, the passing track and a seven foot wide walkway 5 between the two tracks. Further assume that this tank car 6 traveled 2700 feet after it derailed, coming to rest beyond 7 the city limits of Sturgeon; that there were only scattered 8 splatters and splashes of chemical on the ground, along the 9 passing track the first 2,400 feet past the point of 10 derailment and that the major spill area was 240 feet long at 11 the extreme western end of the spill area where the tank car 12 came to rest. 13 Assume that dioxin has a low volatility, 16 billion 14 times less than water at 77 degrees Fahrenheit, so that it 15 does not tend to become airborne or turn into gas. 16 Assume that the inhabitants of Sturgeon were 17 evacuated the night of January 10, 1979, but were notified 18 they could return to Sturgeon January 12, 1979, after the EPA 19 determined from air samples taken by the EPA and by Monsanto 20 that no health hazard existed from breathing the air at 21 Sturgeon. Assume that the air in the town of Sturgeon was 22 sampled for four to six months starting in April of 1979 and 23 that no levels in excess of one part per million of any of 24 the spilled chemicals were ever detected in the air in the 56 1 town of Sturgeon 2 Assume that the railroad retained a contractor to 3 clean up the site of the spill under the direction of the 4 EPA. Assume that the contractor dispatched a team of workers 5 who arrived at Sturgeon at nine o'clock a.m. the morning 6 after the spill. Assume that the first operation in 7 connection with cleanup of the track they performed was 8 cribbing or removing material from between the ties. Assume 9 that all the material between the ties and the main track was 10 removed to a depth of six to eight inches below the bottom of 11 the ties as well as all material between the end of the 12 passing track ties north of the rails. In addition, assume 13 that all material between the passing track ties was removed 14 to a depth of eight to ten inches in the western 150 to 200 15 feet of the spill area where the surface of the snow and the 16 ballast of the passing track had been visibly discolored by 17 the spilled chemical. 18 Assume that by January 26, 1979, all of this 19 material had been removed from the tracks and transferred by 20 gondola car to a staging area south of the tracks which had 21 been scraped and surrounded by a wall of soil to contain the 22 material. Further assume that no dust was kicked up either 23 by the cribbing operation or by the transfer of this material 24 to the staging area. Assume that this material removed from 57 1 between the ties was placed in two piles in this staging area 2 and that the cleanup workers were instructed to keep any 3 contaminated material confined to these piles. 4 Assume that this material never thawed while it was 5 in the piles and that there was no dust blown off the piles 6 as there were no particles small enough to be picked up by 7 the wind. Assume that a backhoe lifted soil and ballast out 8 of these piles and loaded it into 55 gallon drums. The 9 larger or east pile was covered with plastic as the west pile 10 was loaded into the drums. 11 During the loading of the barrels, there was no 12 dust picked up by the wind. Workers then leveled off the 13 material by hand to the top of the barrel and secured the 14 lid. Assume that after the lid was securely fastened, the 15 workers rolled the barrels away from the contaminated area so 16 that the scatbacks which picked up the barrels would not 17 drive over any contaminated material. Assume that as 18 material was loaded from the piles into the barrels, the 19 backhoe operator would scoop up any material which was no 20 longer on the pile back onto the pile so that the backhoe 21 would not be tracking through any contaminated material. 22 Assume that after the barrels were rolled away from 23 the contaminated area, they were loaded by scatbacks onto 24 flatbed trailers which were then pulled to the north side of 58 1 the tracks where the barrels were unloaded for temporary 2 storage. Assume that it is possible that less than a cubic 3 yard of contaminated material was carried out of the staging 4 area on the wheels of the scatbacks or flatbed trailers. 5 Assume that the barrels were reloaded on the north side of 6 the tracks into enclosed tractor trailer trucks to be 7 transported out of Sturgeon. And that no drums left the site 8 in anything other than enclosed tractor trailer trucks. 9 Assume that by March 1, 1919, 4,500 drums of 10 material had been removed from Sturgeon. Assume that after 11 the cribbing operation was completed, a ditch two and a half 12 feet wide and four feet deep was dug between the passing 13 track and the main track from Ogden Street to the place the 14 tank car came to rest. Assume that additional material was 15 also removed onto the main track by an undercutter machine. 16 Assume that this machine removed the ballast and earth 17 beneath the main track to a depth of 46 inches in the 200 to 18 240 feet of track where the most chemical was spilled and to 19 a depth of two feet for the rest of the main track. 20 Assume also that some dirt was removed from the 21 ditches around where the tank car came to rest. Assume that 22 all of this material was loaded into trucks previously lined 23 with sheets of plastic. Assume that in order to prevent any 24 spillage of soil, the trucks were not filled to the top, the 59 1 plastic was folded over the top of the soil and a heavy 2 canvas tarp was secured over the top of the truck and no 3 truck left the spill site without a plastic liner and a 4 canvas tarp. Assume that by March 1, 1979, 2,855.3 cubic 5 yards of soil had been removed from Sturgeon in these 6 trucks. 7 Assume that the cleanup workers spent the night in 8 towns other than Sturgeon and only went into the town of 9 Sturgeon for lunch with the exception of a couple of workers 10 who went into town for hardware supplies on days when they 11 were not working in the contaminated material. Assume that 12 the workers always went to Daisy's Cafe for lunch. Assume 13 that when the workers arrived in the morning, they put on 14 protective PVC rain suits and rubber gloves kept on site and 15 that when the workers left the site for lunch at Daisy's or 16 at the end of the day, they always removed their protective 17 suits. Assume that when the workers were at the western end 18 of the spill site, they always either brushed off their boots 19 before leaving the site with a dry brush or scrub them with a 20 brush and soap and water. And that even when the workers 21 worked at the less contaminated eastern end of the site, some 22 still scrubbed their boots before leaving the site. 23 Assume that throughout the January and February 24 cleanup, the weather was nearly always below freezing. 60 1 Sometimes as low as 20 degrees below zero and that this was 2 too cold for soil and other material to stick to boots or 3 tires. Assume that the only place where mud was generated 4 during this period was in a non contaminated area. Assume 5 that no cleanup worker ever testified that he saw any mud 6 tracked anywhere by the cleanup workers or that anyone ever 7 complained that the workers were tracking mud into Daisy's or 3 anyplace else. 9 Assume also that one of the duties of the EPA on 10 site cleanup coordinator was to see if any chemicals were 11 tracked away from the cleanup site and that he never observed 12 any chemical being tracked out of the controlled site area by 13 any equipment or personnel. Assume that there were banner 14 guards erected at the Ogden Street crossing to prevent 15 unauthorized people from getting into the site and that no 16 unauthorized people were seen on the site. In addition, 17 assume that the railroad posted railroad security guards 18 during the weeks following the derailment at the Triple C 19 driveway to restrain on-lookers, spectators and townspeople 20 that did not have any business being there from driving into 21 the Triple C driveway. 22 Assume that Monsanto informed the EPA on. February 23 9, 1979 that it had confirmed the presence of 24 tetrachlorodibenzo-para-dioxin in the spilled material at a 61 1 level of approximately 37 parts per billion and that EPA 2 determined at that time in consultation with outside 3 toxicologists that even if the dioxin present was the most 4 toxic form of TCDD, no increased endangerment to the towns 5 people was expected as a result of this information and that 6 the primary problem was exposure to the phenolic compound. 7 Assume the ponds south of the railroad tracks were 8 found in March of 1979 to be discolored in the same manner 9 that water known to contain phenol compounds is discolored 10 and that these ponds were found to contain orthochlorophenol 11 and phenol compounds. Assume further that discolored water 12 was also observed in Saling Creek when it overflowed its 13 banks during the latter days of April. Assume also that 14 dioxin has a very low solubility in water and, therefore, 15 would not tend to migrate with this water unlike phenol and 16 chlorinated phenols which are water soluble. 17 In this regard, assume that a sample of water 18 obtained by Doctor Gary Osweiler on April 4, 1979 from a 19 ditch north of the main track at the spill site was analyzed 20 by Doctor Matthew Zabik and found to contain over 15 percent 21 phenol and chlorinated phenols but only 14 parts per trillion 22 TCDD with no 2,3,7,8 tetrachlorodibenzo-para-dioxin present. 23 Assume further that dioxin has a strong attraction 24 to soil and would tend to bind to soil rather than to become 62 1 airborne or to migrate with water flowing through the soil 2 and that, therefore, the movement of phenol and dioxin 3 through soil will not be similar. 4 Assume that the railroad hired a second cleanup 5 contractor which arrived in Sturgeon during the first week of 6 April of 1979 and worked at the site until June of 1980. 7 Assume that this contractor was originally retained to treat 8 the water in the Kemner pond, to reduce the level of 9 contaminants to a level set by EPA at less than 100 parts per 10 billion. And to reduce the level of contaminants in soil in 11 the area to a level set by EPA of 200 parts per million. 12 Assume that EPA also subsequently established a 13 criteria of 60 parts per billion for runoff water from the 14 spill site into the Kemner pond. In May of 1979 assume that 15 this contractor learned from Monsanto that 37 parts per 16 billion tetrachlorodibenzo-para-dioxin had been in the 17 spilled material and that EPA had labeled the entire amount 18 as 2,3,7,8. Assume that this contractor discussed this 19 information and determined that no changes need be made in 20 the cleanup methods used as a result of those discussions and 21 that EPA also did not require any change in cleanup methods 22 as a result of any information about dioxin content and the 23 spilled material. Assume that this cleanup contractor 24 determined that the source of the water contamination in the 63 1 Kemner pond was the western most 220 feet of the spill site 2 which lay outside the city limit of Sturgeon. 3 Assume further that the second cleanup contractor 4 contained the runoff from this area to channel it into the 5 Kemner pond, installed a carbon filtration system in the pond 6 south of the railroad tracks and installed an underground 7 pressure injection system to flush the chemicals in the 8 railroad bed into the pond for treatment. Assume that this 9 cleanup contractor also observed contamination in Saling 10 Creek on April 27, 1979, and traced the source of that 11 contamination to a French drain located under the railroad 12 tracks in the eastern portion of the spill site. 13 Assume that the site manager for the cleanup 14 contractor testified that the spilled chemical did not move 15 into the French drain the night of the spill because of the 16 ground frost but instead was carried into the French drain 17 with the water several months later. Assume that that same 18 day the contractor constructed dams to prevent discharges 19 from the French drain from- north into the town of Sturgeon or 20 into Saling Creek along the railroad right-of-way. Assume 21 that the contractor treated all the water collected behind 22 these dams before it was discharged into Saling Creek and 23 that a permanent drain pipe was installed to route water from L 24 the French drain onto the railroad tracks to Saling Creek 64 1 where it was filtered by a second carbon filtration system 2 before it entered the stream. 3 Assume that in all 106 water samples analyzed by 4 the contractor in the(Sturgeon area during a period from May 5 22, 1980 through June 23, 1980, less than 40 parts per 6 billion of orthochlorophenol were detected. Assume also that 7 the soil around the Kemner pond was sampled in May of 1980 8 and that no levels of contamination above the Ep a criteria 9 were detected. Assume also that an outside hydrogeologist 10 investigated the ground water in the Sturgeon area and that 11 as a result of this investigation, the EPA determined that 12 there was no health hazard associated with the ground water 13 at Sturgeon. Also assume that in addition to water treatment 14 as described above, the second cleanup contractor also 15 excavated and removed earth in an area 20 feet wide and 393 16 feet long on the north side of the tracks and ranging from 17 four to 29 feet wide for the same length on the south side of 18 the tracks. These areas were excavated to depths from six 19 feet closest to the track to one foot furthest from the 20 track. 21 Assume that during this excavation the contractor 22 sampled the soil in the excavation area and that whenever a 23 level of contamination higher than the level set by the EPA 24 was found, additional excavation was performed at the 65` 1 location of that sample until subsequent samples showed that 2 the EPA criteria had been met. Assume that all the earth 3 excavated was loaded into dump trucks or trailers lined with 4 plastic and was covered with plastic and a canvas tarp before 5 shipping. Assume that between April 19th and June 25, 1980, 6 the second cleanup contractor removed a total of 1,351.7 7 cubic yards of earth from these areas in this manner. 8 After this earth was excavated, assume that the 9 entire area of excavation was layered with an average of six 10 inches of carbon which is capable of absorbing large 11 quantities of organic material. Above this was placed two 12 separate six inch layers of compacted clay mixed with 13 industrial sealer to keep water from leaking into the 14 excavated area. Above this was placed a 6 to 12 inch layer 15 of clay mixed with top soil which was seeded with grass seed 16 to keep the area from eroding. Assume that the only soil 17 sample taken at Sturgeon would show the presence of 18 tetrachlorodibenzo-para-dioxin was performed in 1983 by EPA 19 on a sample taken February 16, 1979, and showed 65 parts per 20 trillion total tetrachlorodibenzo-para-dioxin. Other 21 analyses performed at the same time showed no dioxin in 22 sediment from cropland along Saling Creek at a detection 23 level of three parts per billion and no dioxin in a well 24 water sample at a detection level of 25 parts per 66 1 quadrillion 2 Assume also that the half-life of TCDD and the top 3 two millimeters of soil exposed to ultraviolet light is no 4 more than 36 hours so that at the end of that period of 5 exposure to ultraviolet light, one-half of the TCDD in that 6 layer will have been destroyed and that TCDD will move 7 through soil at a rate of no more than .033 millimeters per' 8 day. Further assume that based on these facts it has been 9 calculated that TCDD will take at least 60 to 62 days to move 10 through the top two millimeter layer of soil and that a 11 concentration of 65 parts per trillion at the two millimeter 12 level will have been reduced to a concentration of no more 13 than 625 parts per quintillion by the time it reached the 14 surface. 15 Assuming that all the facts stated above are true, 16 do you have an opinion based upon a reasonable degree of 17 toxicological certainty whether a resident of Sturgeon, 18 Missouri, during the period from January 10, 1979, to the 19 present could have been exposed to any amount of 2,3,7,8 20 tetrachlorodibenzo-para-dioxin sufficient to cause any 21 adverse health effects? 22 A. Yes, I have an opinion. 23 Q. And what is that opinion, sir? 24 A. I don't believe that there is any meaningful 67 1 possibility of such an effect. 2 Q. Now*, Doctor, in your experience with the phenoxy 3 herbicides, did you have occasion to review the presence or 4 potential presence of dioxin in 2,4-D? 5 A. Yes, as a matter of fact. 6 Q. In your review, are you aware of whether or not 7 2,4-D, the herbicide, was ever found to contain 2,3,7,8 TCDD? 8 A. I know of no evidence that it has ever -- that 9 2,3,7,8 TCDD has ever been found in 2,4-D. 10 Q. Was 2,4-D tested for dioxin to the best of your 11 knowledge? 12 A. Yes. 13 Q. By whom and when, approximately? 14 A. In 1980 a Canadian researcher studying Canadian 15 production of 2,4-D found that there were a variety of other 16 chlorodioxins in 2,4-D as well as the 2,7 isomer which a 17 chemist would expect to find in a product containing, that is 18 derived from 2,4 dichlorophenol. That is the dichlorodioxin 19 that would be expected in production of that product. It had 20 not been found previously. When that work was reported, it 21 was reported first in a meeting in Rome and then published in 22 the United States. The EPA carried out a sampling program of 23 commercial sources of 2,4-D and they analyzed some 33 samples 24 as I recall. They found no 2,3,7 TCDD. They found traces of 68 1 others, one or two other tetras- They found traces of one or 2 two trichlorodioxins. In three of the samples they found 3 small amounts of the 2,7 which was somewhat surprising 4 because we anticipated that they should find it in more 5 samples. They found it in one sample, if my memory serves, 6 at a concentration of 57 parts per billion and in two other 7 samples at levels less than 30 parts per billion. 8 Considering that, the 2,7 DCDD has very, very limited 9 toxicity. Those are not toxicologically significant 10 amounts. That generally is the picture that was found in 11 that EPA sampling. 12 Q. Did the testing include a mean and ester product? 13 A, It is my understanding that both the mean and ester 14 products were tested. 15 Q. To the best of your recollection, sir, was 2,3,7,8 16 TCDD ever found in any of those samples? 17 A. No, it was not. 18 Q. To your knowledge, Doctor Dost, has any scientist 19 or anyone ever reported finding 2,3,7,8 TCDD in 2,4-D? 20 A. I know of no such finding. 21 Q. Do you know what 2,4 dichlorophenol is used for 22 industrially? 23 A. I am sure it has many uses but the use that I am 24 familiar with is as a starting material for the manufacture 69 1 of the herbicide 2,4 dichlorophenoxyacetic acid, 2,4-D. 2 Q, Doctor Dost, I want you to assume the following 3 facts. That 2,4 dichlorophenol manufactured by Monsanto 4 between December 1, 1978 and April 1, 1979 contain total 5 tetradioxins in a range from none detected to as high as 6 approximately 500 parts per billion. The latter having 120 7 parts per billion coeluting with 2,3,7,8 TCDD. Assume that 8 this material was manufactured in a process which used 9 caustic, which use was discontinued after April 1, 1979. 10 Assume that an isomer specific analysis was performed in 11 February of 1981 on a sample of 2,4 dichlorophenol showing 12 total tetras of 149 parts per billion and 14 parts per 13 billion coeluting with 2,3,7,8 TCDD. I am sorry, let me 14 repeat that. Iysaid it was an isomer specific analysis so it 15 wouldn't be coeluting. It found 149 parts per billion total 16 tetras and 14 parts per billion of 2,3,7,8. 17 Assume that levels coeluting with the 2,3,7,8 18 standard have been found in 2,4 dichlorophenol as high as 210 19 parts per billion. Assume that the 2,4 dichlorophenol was 20 shipped by tank car and was used in an enclosed system for 21 the production of 2,4-D, 'a mean product. 22 Based upon your studies of the Use of phenoxy 23 herbicides, the levels of dioxins found therein, and the 24 toxicological significance of dioxin, do you believe that the 70 1 dioxin levels as stated above reached the level of 2 toxicological significance to humans in their handling or use 3 of either the 2,4 dichlorophenol or subsequently manufactured 4 2,4-D product? 5 A. Well, this concentration in the dichlorophenol 6 because of the toxicity of the dichlorophenol itself, I would 7 consider it to not have significance. It does not take very 8 much dichlorophenol on the skin or ingested to cause 9 substantial injury and I would consider that this level of 10 contamination in the phenol, per se, would not represent a 11 significant part of the toxicity of the total. 12 Qw Doctor, I want you to further assume -- well, first 13 of all, what about in the subsequently manufactured 2,4-D 14 product? 15 A. In the 2,4-D product, and we are assuming that this 16 is carrying forward in the product at 210 parts per billion, 17 is that correct? 18 . Q. Well, would you assume that? 19 A. Not necessarily. 20 Q. And why not? 21 A. Well, there is a reaction that takes place that 22 adds another molecule. 23 MR. CARR: I object here unless this witness is 24 qualified as a chemist of some sort. I think he hasn't and I 71 1 object to this answer. 2 MR. HEINEMAN: Your Honor, he is clearly 3 qualified. He has a background in studying the phenoxy 4 herbicides and he has had chemical training as testified to 5 on the very first day of his testimony. 6 THE COURT: Do you have anything further you want 7 to say? 8 MR. CARR: I don't recall it but if he has some 9 training that -makes him capable of answering that question, I 10 will withdraw it but I don't recall anything, any chemical 11 training. 12 MR. HEINEMAN: Well, my recollection, Your Honor, 13 he testified both when he got his Doctor of Veternary 14 Medicine and his Masters in Physiology, he had extensive 15 study in the area of chemistry among others, pharmacology, 16 biochemistry, physical chemistry. That is my recollection of 17 his testimony and, of course, his experience with 18 agricultural chemicals 19 MR. CARR: I have nothing further, Your Honor. 20 THE COURT: Objection is sustained. 21 MR. CARR: Your Honor, I won't object if counsel 22 establishes it in more detail but I certainly don't want to 23 keep this testimony out if this witness, if -- 24 THE COURT: If you wish to lay a further 72 1 foundation, you may. Go ahead under your original 2 hypothetical. 3 Q. Doctor Dost, would you tell the Court and the jury 4 the training that you have had in chemistry in the course of 5 obtaining the degrees that you have, that you have achieved? 6 A. Well, I have had courses in, of course, the kind of 7 elementary chemistry that any college freshman takes. 8 Analytical chemistry, biochemistry, some physical chemistry 9 and organic chemistry. 10 Q. When did you obtain, when did you take these 11 courses? 12 A. Well, I took some of them, of course, at Washington 13 State University in my undergraduate training. I took some 14 of them at Kansas State University. I have also taken 15 courses while I was on the faculty at Washington State 16 University. I also took some courses in chemistry and 17 biochemistry. 18 THE COURT: Objection is sustained. 19 Q. Doctor Dost, I would, like you to further assume 20 that 2,4-D, a mean product -- First of all, Doctor, tell me, 21 sir, do you know whether or not in the manufacture of 2,4-D, 22 that 2,4 dichlorophenol is blended with another material in 23 that process? 24 A. 2,4-D is a more complex chemical than the 2,4 DCP. 73 1 Another molecule is combined with it to make the 2,4-D. 2 Q. What is that other material? 3 A, It is acetic acid. 4 Q. Do you know, sir, what are the proportions in which 5 the acetic acids and the 2,4 dichlorophenol are added 6 together? 7 A. Well, they are mol for mol. In other words, for 8 every molecule of the phenol, there would have to be a 9 molecule of the acetic acid in the ultimate product. 10 Q. Now, sir, that being true, what would that tend to 11 do to the concentration of a contaminant in the 2,4 12 dichlorophenol? 13 A. It would bring it down to some extent. I would 14 judge on the basis of the molecular weights of the two that 15 it would bring it down perhaps by 25 percent. 16 Q. Now, Doctor, I want you to further assume that the 17 2,4-D, a mean product manufactured from the 2,4 18 dichlorophenol product that I mentioned before, has been used 19 in a 9 percent solution as 2,4 dichlorophenoxyacetic acid in 20 a product cabled Weed-B-Gone and that this product has been 21 applied by homeowners on their lawns at a rate of four 22 teaspoons per gallon. In your opinion, Doctor, based on a 23 reasonable degree of toxicological certainty, would either of 24 the Weed-B-Gone product or the spray solution reach a level 74 1 of toxicological significance to humans as the result of the 2 presence of dioxins mentioned before in the 2r4 3 dichlorophenol product? 4 A, Well, when we are dealing with the 2,,4-d as such, 5 at that concentration, it has a marginal tendency for 6 toxicity. If one were to pour it on the skin and not wash it 7 off, there is some possibility of illness. But toxicity is 8 clearly less than we were talking about with concentrated 9 dichlorophenol. At the same time, the concentration of the 10 TCDD has been diminished very sharply and I don't think that 11 it represents a hazard in the solution as it is sold. It is 12 a registered pesticide and certainly when it is further 13 diluted for distribution, four teaspoons per gallon would be 14 about two-thirds of an ounce in 128 ounces. That would 15 dilute it substantially further and when it is spread, when 16 it is used as a herbicide, sprayed on vegetation and 17 inevitably on the ground, the concentration is going to be 18 very low of TCDD and I don't really think that that 19 represents a significant hazard. 20 THE COURT: Is this a good point for a short 21 break? 22 E*1R. HEINEMAN: Sure, Judge. 23 THE COURT: We will take a short recess at this 24 time and then resume testimony. The admonishments that I 75 1 have given you earlier will apply during this break also. 2 Court is in recess, 3 COURT RECESSED: 4 (The following proceedings were had in the hearing 5 and presence of the jury) 6 FRANK POST 7 having resumed the witness stand, being previously sworn, 8 testified further as follows: 9 DIRECT EXAMINATION 10 By 11 MR. KENNETH R. HEINEMAN. 12 Q. Doctor Dost, I would like to ask you another 13 hypothetical question. I would like you to assume, sir, 14 that during a period from August of 1978 until March 1, 1979, 15 Monsanto manufactured orthobenzo-parachlorophenol known as 16 Santophen-1 by a process using caustic. That there were a 17 number of product samples produced during this period which 18 were analyzed for tetradioxins and found to have levels which 19 ranged from 1.5 parts per billion to 56 parts per billion. 20 That these samples were tested coeluting with the 2,3,7,8 21 TCDD and found to have a range of coeluting with 2,3,7,8 TCDD 22 from not detected to seven parts per billion with the second 23 highest level being 2.9 parts per billion. 24 I want you to further assume, sir, that this 76 1 material was blended into a solution containing anywhere from 2 2.7 percent to 4.5 percent of Santophen-1 and sold as a 3 disinfectant to hospitals and the public for cleaning 4 bathrooms, nurseries, et cetera. You should further assume 5 that the manufacturer suggested a further dilution of the 6 disinfectant into a water solution of one and one quarter 7 ounces of disinfectant per gallon of water. You should 8 assume that the rate might vary slightly based on actual home 9 or hospital use. You should assume that the manufacturer 10 recommended the use of gloves and the water rinsing of the 11 material in the nursery. 12 In your opinion, Doctor Dost, based on a reasonable 13 degree of toxicological certainty, would either the Santophen 14 product, the disinfectant solution or the recommended 15 application reach a level of toxicological significance to 16 humanbeings including infants as a result of the reported 17 levels of dioxins in Santophen product? 18 A. In my opinion, no. 19 Q, And on what basis do you reach that opinion, sir? 20 A. Well, again this is a product that is highly 21 toxic. This particular phenol just and all phenols are. It 22 is very toxic. The concentration at the highest is still 23 relatively low at seven parts per billion and in the 24 solution, assuming the maximum concentration in which it is 77 1 marketed, the concentration would be much lower and as it is 2 used, the dilution is still another hundred fold lower and 3 the concentration is down at levels in the low parts per 4 trillion and there simply is not enough of the material there 5 to represent a hazard. 6 Q. Doctor Dost, you have previously testified 7 regarding your work with the Environmental Protection Agency 8 pertaining to 2,4,5-T and the levels of 2,3,7,8 TCDD in that 9 product. During the period from 1970 until 1979, did the EPA 10 have a tolerance level of 100 parts per billion of 2,3,7,8 11 TCDD in 2> 4,5-T? 12 A. It wasn't precisely a tolerance level. It was, it 13 was a guideline that was adhered to by all producers. It was 14 never incorporated in the law apparently as nearly as I know 15 but it was a guideline that EPA projected and it was followed 16 by all manufacturers and, as a matter of fact, the 17 concentration is steadily diminished but that was the level 18 that was acceptable until 1979. 19 Q. Was 100 parts per billion? 20 A. 100 parts per billion. 21 Q. Doctor, as a herbicide, was 2,4,5-T registered 22 under FIFRA? 23 A. Yes. 24 Q. Pursuant to that registration, was it not within 78 1 the power of EPA to require the presence of that 2,3,7,8 TCDD 2 to be placed on the label? 3 A. I would presume that they have that power. 4 Q. Isn't that one of the things that FIFRA is about in 5 registering a product? You have to register the label too? 6 A. The label is a legal document that identifies the 7 product and the way it is to be used and the label really 8 reflects among other things the toxicological character of 9 the substance. 10 Q. Doctor Dost, during the period from 1970 to 1979, 11 did the EPA or any other federal agency require the 12 disclosure of the levels of dioxin present in 2,4,5-T on the 13 labels for that product? 14 A. Not to my knowledge. Those levels were never 15 published on the labels. 16 Q. Did the EPA require, to your knowledge, any notice 17 whatsoever of 100 parts per billion of dioxin being present 18 in 2,3,7,8 TCDD to purchasers of the product? 19 A. Of dioxin in 2,4,5-T you mean? 20 Q. In 2,4,5-T. 21 A. I have never seen such notice and so I assume that 22 it wasn't required. 23 Q. Now, this product, Doctor Dost, was sold to and 24 used by farmers, foresters and many other people for blending 79 1 and direct application for the killing of weeds? 2 A. That is correct. 3 Q. And it was sprayed. What was done with this 4 product? 5 A. It was sprayed either by aircraft or by machines or 6 backpack apparatus, a variety of methods of application but 7 it was sprayed as a liquid. 8 Q. Now, following the withdrawal of the registration 9 of 2,4,5-T, did the EPA ever require a recall of any 2,4,5-T 10 product from the marketplace? 11 A. To my knowledge, never. 12 Q. Did the EPA ever require any cleanup of any of the 13 property upon which the material was sprayed? 14 A. No. 15 Q. Subject to photodegradation or any other breakdown, 16 microbial or otherwise of this material, as far as anyone 17 knows, is the EPA certainly aware of the possibility that 18 materials sprayed on the soil and grounds of farms in 1979 19 might still be beneath the surface of the soil today? 20 A. Well, I am sure they have access to the same 21 information that we all have access to and so I suppose that 22 they would have to make that assumption of that possibility. 23 Q. Doctor Dost, are you aware of any animal 24 experiments performed with contaminated materials from the 80 1 Sturgeon spill site? 2 A. I am aware that Doctor Osweiler conducted some 3 experiments with water that I believe emerged from the ground 4 after the thaw in that spring. 5 Q. And where did that water come from? 6 A. It is my understanding that it came from a site -- 7 HR. CARR: Again I object to the witness. He 8 obviously does^t have any knowledge of it. Counsel is going 9 to have to give him the facts. The witness wasn't there and 10 he is not Doctor Osweiler. It has to be hearsay. 11 THE COURT: Objection is sustained. 12 Q. Doctor, I would like you to assume that Doctor 13 Osweiler obtained this water from a ditch which was alongside 14 the area where the tank car came to rest. That the water he t 15 obtained contained sediment and that he fed this material to 16 goats and guinea pigs and that none of the guinea pigs died 17 as a result of being fed this material. Would you assume 18 that for me, please, sir? 19 A. Yes. 20 Q. Is there any significance to the result of that 21 study in terms of whether or not there is any hazard to the 22 residents of Sturgeon from dioxin at the spill site? 23 * MR. CARR: Your Honor, I object to that because the 24 question does not include the fact that the Osweiler water 81 1 was never found to have dioxin in it. Clearly the evidence 2 shows that. That is an important factor that counsel must 3 include within the aspect of the question to the witness. 4 MR. HEINEMAN: All right. I will be happy to 5 include that. 6 MR. CARR: He never found 2,3,7,8 TCDD in the 7 water. 8 MR. HEINEMAN: That is right. 9 Q. I will ask you to assume this, too, Doctor, which 10 we already did in the previous hypothetical that was read to 11 you. That Doctor Zabik analyzed that water and found 14 12 parts per trillion of tetras but did not find any 2,3,7,8 13 TCDD in the water, all right. Now, based upon that, do those 14 experiments have any significance in your opinion to whether 15 or not there is a hazard to the people of Sturgeon from any 16 dioxin being present at the spill site? 17 A. The fact that water and sediment contained perhaps 18 -- you ask me the question again so that I can give you a 19 direct answer and then I should perhaps explain the reason 20 for my answer. 21 Q. I am trying to remember the question. 22 (The Court Reporter read back the last question.) 23 A. Yes. They have very real significance. 24 Q. And what is that, sir? 32 1 A. The fact that there was no 2,3,7,8 TCDD found in 2 the water that emerged from the track area. 3 MR. CARR: Your Honor, I object to that. There is 4 nothing in the hypothetical that shows it emerged from the 5 track area. 6 THE COURT: Objection is sustained. 7 MR. HEINEMAN: I think I did say where the water 8 came from, Your Honor. 9 MR. CARR: It came from a ditch but he is saying it 10 emerged from the track. There is a difference coming from 11 the ditch. 12 THE COURT: I think the question just included the 13 track part. I don't think it included anything. I mean the 14 ditch part, not the track. 15 MR. HEINEMAN: Well, Your Honor, I am sorry. 16 Q. Doctor, assume, if you would, that Doctor Osweiler 17 testified that he asked the EPA to take him to the spot where 18 he could get water from the spill site, from the track, and 19 they took him to this ditch and that is where he got the 20 water that he used in the experiment. All right. Now, with 21 that further assumption, sir, continue with your explanation, 22 if you would? 23 A. The water contained no 2,3,7,8 TCDD. It did 24 contain -- what was the phenol level in that water? 83 1 Q. 15 percent. 2 A. 15 percent. So the water clearly was associated 3 with the phenol. The fact that no TCDDf 2,3,7,8 TCDD was 4 found indicates to me one of two things, possibly a third. 5 That the phenols in water as they have moved left the TCDD, 6 the 2,3,7,8 behind. The concentration of 14 parts per 7 trillion even if it were 2,3,7,8 would imply that there is a 8 vastly lower level than the 45 parts per billion that was 9 originally in the material and even with the 15 percent 10 factor, we have about a thousand fold decrease in 11 concentration. 12 I would suggest that one of three events occurred 13 and possibly a combination of the three. The phenol in water 14 as it moved left the TCDD behind. The 2,3,7,8. The other 15 possibility is that the analytical data on the reserve sample 16 may have been incorrect. That is a possibility because there 17 was other evidence that the levels were lower. Those are two 18 possibilities. The third possibility is that that material 19 in the ditch in the open was, in fact, subject to 20 photodegradation which resulted in the loss of the 2,3,7,8 21 which is more vulnerable to photodegradation because of the 22 positioning of the chlorines than are other isomers. 23 Q. What is the significance, sir, of feeding the 24 material to guinea pigs? 84 1 A. Guinea pigs -- 2 Q. With no effect? 3 A. Well, guinea pigs are very sensative. Can you tell 4 me what levels were fed those guinea pigs? 5 Q. I can't, as I sit here right now, no. All right. 6 Doctor Dost, I would like you to assume, sir, that there was 7 a 90 day study in which the high dose -- There was a high 8 dose group of guinea pigs, a low dose group of guinea pigs 9 and a control group of guinea pigs. The high dose group 10 started out at a ratio of one part of this sediment water to 11 10 parts of plain water, was then changed to one part of the 12 sediment ditch water to five parts of plain water and then 13 was changed to a one to one ratio of sediment ditch water to 14 regular water. The low dose group was fed one part ditch or 15 sediment water to 10 parts regular water throughout the 16 experiment and the control group got regular water throughout 17 the experiment. There was no decrease in thymus weight and 18 no significant differences in the weights of the three 19 groups. 20 Based upon that information, sir, would you 21 continue with your explanation. 22 HR. CARR: Your Honor, I will object to that 23 question because there is no testimony that it was sediment 24 water. The testimony is that Doctor Osweiler took it off of as 1 the top one foot of the water that was in the ditch. It was '2 at least two feet in depth and that, in fact, the sediment 3 that was found on the filter subsequent to the analysis and 4 the analysis by Doctor Zabik was 70 percent phenols and OCP 5 and could not describe, was unable to describe what the 30 6 percent consisted of. 7 MR. HEINEMAN: Your Honor, if I could respond to 8 that. Doctor Osweiler testified that he put the bucket in 9 the water a foot down when he scooped the water out. That he 10 kept, that there was indeed sediment in the water and that 11 everytime he fed the animals, he stirred the water to get the 12 sediment up into the water. 13 THE COURT: That doesn't meet what the objection 14 was. The objection was sustained. You will have to.rephrase 15 it. 16 Q. Doctor Dost, would you assume as true what I have 17 just told you in terms of how Doctor Osweiler obtained the 18 water from the ditch and how he stirred it before he fed it 19 to the animals and that he said there was sediment in the 20 water? 21 MR. CARR: Your Honor, I object unless the witness 22 is further given the significant facts as I have indicated; 23 that that sediment that was, whatever was in the water was 24 filtered out and found to be over 70 percent OCP and phenol 1 and the remaining less than 30 percent, the constituents of 2 it was unknown. 3 THE COURT: Objection is sustained. 4 MR. HEINEMAN: It was not filtered out before it 5 was given to the animals. 6 THE COURT: That doesn't make any difference in 7 that. Objection is sustained. 8 Q. I will add that to it. If you want to add that to 9 it, fine. Assume that as well. 10 A. Well, it is an astonishing level of phenols. I am 11 startled that the guinea pigs tolerated. Their drinking 12 total water supply is one to one mix of a solution that is 13 very, very high in phenols which surprises me. However, the 14 fact that they showed no evidence of decreased thymus weight 15 and no evidence of decreased body weight over a three month 16 period in which they were maintained on this water source 17 indicates to me that there would not have been a significant 18 amount of TCDD, 2,3,7,8 TCDD in that material. 19 MR. CARR: Your Honor, the witness has assumed the 20 fact that isn't true. There wasn't any 2,3,7,8 TCDD in the 21 material as so testified by Doctor Zabik clearly under oath. 22 MR. HEINEMAN: Well, Your Honor, clearly this 23 amounts to a bioassay and that is what -- that is certainly 24 what the analytical result was but it certainly is equally R7 1 well to say that that is what a bioassay showed as well. 2 MR. CARR: Your Honor, the bioassay cannot show that . 3 there was 2,3,7,8 TCDD in that water. Nothing happened to 4 the guinea pigs and the only evidence we have is that that 5 water did not contain any 2,3,7,8 TCDD. That is the only 6 evidence in this case. 7 THE COURT: Objection is sustained. I think that 8 was also part of your hypothetical. 9 Q. Doctor-Dost, I would like you to assume that Doctor 10 Silbergeld testified that the water flowing into the Kemner 11 pond would contain 30,000 parts per million of OCP giving a 12 TCDD concentration in the pond of 1.4 parts per billion. 13 Would you assume that what you testified to, sir? 14 A. Uh-huhi Yes. 15 Q. Would you agree with that statement? 16 MR. CARR: What page and date, counsel? 17 MR. HEINEMAN: April 16, page 38. 18 Q. Would you agree with that statement, sir? 19 A. Is this referring to in the spring when the weather 20 warmed up? 21 Q. Yes, sir. 22 A. If I understand these figures, they are implying 23 that the concentration of the phenol that moved into the pond 24 was accompanied by the same concentration of TCDD that was pa 1 supposedly originally in the tank car. I would disagree with 2 that. 3 Q. And/ why is that, sir? 4 A. Because the material that moved into, that moved 5 away from the site at the time of the thaw, the material that 6 was left after the excavation, the initial excavation in 7 which so much material was hauled away, is going to be 8 modified by the fact that it has-been in the soil. The TCDD 9 will bind to the soil. TCDD will not travel with the OCP. I 10 would suggest that this is the same reason that the TCDD did 11 not appear in the water that emerged beside, that was found 12 beside the track. 13 Q. Now, Doctor Dost, you recall Doctor Silbergeld's 14 testimony with respect to TCDD being in the air because of 15 the burning of railroad ties? 16 A. I remember something to that effect. 17 Q. Do you recall her saying beginning at page 48 on 18 April 16th that when she was asked what happens to the TCDD 19 that is on the ties when the ties burned and the ties is 20 reduced to smoke or vapor and she said that unless the fire 21 temperature reaches a very high level which it would not as 22 far as I can tell from the way you have described this as 23 having occurred because it takes very specific conditions and 24 hazardous waste incinerators, the 2,3,7,8 TCDD would not be 89 1 changed and I would expect it to enter and be moved about in 2 the environment, attached to particulates from the fire, that 3 is soot and burned organic material from the railroad ties. 4 Do you recall reading that when you reviewed her testimony? 5 A. Yes. 6 Q. Would you agree with that statement? 7 A. I would agree in part because the temperature of a 8 fire of that sort certainly is not high enough to degrade 9 TCDD. Probably also not high enough to degrade all of the 10 other organic material, although some of it certainly would 11 be that is involved with the railroad ties. There is a lot 12 of creosote and other material that is used as a 13 preservative. I question whether the TCDD that might be 14 attached to particulate material, unless it had been totally 15 combusted and was completely inorganic in its nature, I think 16 that that TCDD bound in that fashion would probably be 17 subject to breakdown by light. 18 Q. Why is that, sir? 19 A. Well, because the organic, the organic matrix to 20 which it is attached could serve as a hydrogen donor and I 21 would expect, I would expect photodegradation to take place 22 in such a situation. 23 Q. Let's assume, sir, that for the sake of argument 24 that there would be some TCDD on some organic material there on 1 that would not be photodegraded. Would that kind of movement 2 of material in the air create any kind of a hazard for the 3 people of the town of Sturgeon? 4 A. I don't believe so, 5 Q. Why not? 6 A. Well, my experience with smoke and the components 7 of smoke and the potential for respiring smoke or any of the 8 material that is contained in it indicates that material of 9 that sort, smoke is distributed throughout an enormous volume 10 of atmosphere. And the relationship between the respiratory 11 volume, even of a person who is working vigorously which an 12 athlete might very well get a respiratory volume up to 40 13 cubic meters per day or a person who is doing very, very 14 heavy work at home, X am concerned about fire fighters- Even 15 that is a turnover of volume compared to the volume of 16 distribution of that very, very small amount of material that 17 might have become associated with the ties because most of it 18 is going to go right on by. There will be some surely that 19 soaks into the tie. The ties are old and cracked but that 20 total amount is really not large compared to the amount, the 21 total amount that was spilled. 22 Q. You are talking about the amount that would be in 23 the tie versus the amount that would go into the ballast? 24 A. That went right on through into the ballast, the 91 1 soil under the tracks and so on. 2 Q, Nowr if you take that tie and you burn it, sir, 3 would that smoke create a hazard for anybody in the town of 4 Sturgeon? 5 A. I don't think so. I don't think so because it is 6 going to move away. The air, the wind velocity, the average 7 wind velocity in that area is on record and it runs in excess 8 of I think seven miles an hour. The volumes of air that are 9 involved are just enormous and the dilution is so large and 10 the material, even if that burning was to continue for a day 11 or two, the dilution is so great that I find it difficult to 12 imagine anyone coming into contact with an amount of TCDD 13 that has any meaningful possibility of significant exposure. 14 Q. Doctor Dost, based upon the facts that I have asked 15 you to assume in these hypothetical questions with respect to 16 the townspeople of Sturgeon, what is your opinion as to 17 whether or not there is any possibility, any practical 18 possibility of there being any hazard to any of the 19 townspeople of Sturgeon from exposure to 2,3,7,8 TCDD as a 20 result of that spill? 21 A. I don't think that there is any practical 22 possibility of a meaningful exposure. I really don't. 23 Q. Let's assume, Doctor Dost, that the spill had not 24 been cleaned up at all. Assume for the sake of argument that 92 1 nothing had been removed from' that spill site. Would there 2 be any hazard to the people of Sturgeon from the TCDD spilled . 3 there? 4 A. Not from the TCDD in my opinion. 5 Q. And why do you say that, sir? 6 A. Well, if you wish, we could perhaps go directly 7 back to the CDC document which represented a one part per 8 billion concentration in residential soil as being the level 9 at which concern should be expressed. They also pointed out 10 that higher concentrations would be acceptable in industrial 11 sites where the exposures are less, A railroad right-of-way 12 is really an industrial site. It has very little common t 13 traffic. The material went into the ground. The dilution by 14 soil, if you will, brings the concentration I am sure below 15 or down to at least 10 fold. We know from the concentrations 16 of phenols found in that area that the dilution by soil was 17 at least.10 fold. If we were to simply make a division of 45 18 parts per billion by 10 and assume that the soil contained 19 45, four and a half parts per billion of TCDD, it would not 20 fall outside the criteria that are expressed in the Centers 21 for Disease Control document in my view for an action level, 22 if you will. A level at which some action should be taken 23 to, for protection of people in the vicinity. 24 Q. And what is the safety factor built into the CDC 93 1 assessment? 2 A. It is about a thousand. 3 MR. HEINEMAN: That is all the questions I have of 4 the witness at this time, Your Honor. 5 THE COURT: Mr. Carr. ' 6 MR. CARR: Yes, Your Honor. 7 CROSS EXAMINATION 8 By . 9 MR. REX CARR. 10 Q. Doctor Dost, I would like to start off by asking 11 you a few questions about your background insofar as it 12 concerns your work with TCDD and 2,4,5-T. Actually, you have 13 in the past characterized yourself as something of a quote 14 instant expert in the area of TCDD, have you not, sir? 15 A. I did that at the time that I became involved with 16 the EPA in 1970, yes. 17 Q. And you became an instant expert not based upon any 18 background with TCDD but based upon the fact that you served 19 on an advisory panel for the United States Department of 20 Agriculture in 1970 and '71, isn't that right, sir? 21 A. I served on that panel,, yes, sir. 22 Q. Is the answer to my question that is when you 23 became the instant expert? i know you served on that panel. 24 A. That is when I became an expert. 94 1 Q. And as you characterize yourself, an instant 2 expert? 3 A, That is correct. 4 Q. And you characterize yourself as an instant expert 5 in 1970 under oath, have you not, sir? 6 A. Yes. 7 Q. Now, at that point in time, what you did in 1970, 8 you had no prior experience with TGDD or dioxin, isn't that 9 correct, sir? 10 A. That is correct. 11 Q. And what you did at that time was for this United 12 States Department of Agriculture was to review the literature 13 that was in existence at that time and not doing any research 14 at all, isn't that correct? 15 A. No bench research, that is correct. 16 Q. No research of any sort other than reading the 17 literature? 18 A. That is correct. 19 Q. All right. And it is the same literature in large 20 part that we know that we have read parts of it at least to 21 this jury. You have seen the Monsanto exhibits. You have 22 seen our exhibits and it is the same kind of literature that 23 this jury has already heard about, isn't that correct, 24 Doctor? 95 1 A. That is correct. 2 Q. And what you did was to read this literature and 3 summarize it and come to a conclusion, the conclusion that 4 you reached, in 1971 as to whether or not 2,4,5-T should 5 continue to be used in the forest land as it had been used up 6 to that time, isn't that correct, sir? 7 A. The concern went beyond forest land. 8 Q. Well, range land, grassland and things of that 9 sort? 10 A . Yes. 11 Q. And what you did -- and by the time you finished 12 with this review of the literature, the EPA had come into 13 existence in 1971 and your actual report that you and others 14 on this panel made as to the use of 2,4,5-T, your actual 15 report went to the EPA which had just then come into 16 existence and taken over this responsibility, isn't that 17 correct, sir? 18 A. Yes. 19 Q. And you made your opinion that you recommended that 20 the company be continued to allowed to use the 2,4,5-T on 21 these various lands, isn't that correct, sir? 22 A. There were specifications, yes. 23 Q. Is the answer to my question yes, you recommended 24 that they be continued to use this 2,4,5-T on the range land, Q6 1 the forest land and the grassland of this country? 2 A. We recommended it be continued but we made 3 recommendations about conditions that should be applied, 4 Q. And what were the conditions that you recommended? 5 A. That the TCDD levels in the product should not be, ,6 a new product should not be higher than a tenth of a part per 7 million and a hundred parts per billion and that if existing, 8 if they were lower than a half a part per million could 9 continue to be sold. 10 Q. What you said was use up what you got but in the 11 future, cut the levels down to a hundred parts per billion on 12 new manufactured 2,4,5-T, isn't that correct, sir? 13 A. Essentially, yes. 14 Q. And the EPA at that time in 1971 accepted the 15 recommendation of your panel, didn't they, sir? 16 A. At that time it did not act on it. 17 Q. Well, at some point in time they did act upon it, 18 did they not, sir? 19 A. Apparently they did. 20 Q. And they allowed the continued use. They used the 21 informal guideline, if you will, of the 100 parts per billion 22 and they allowed the continued use of the more heavily 23 contaminated 2,4,5-T, isn't that correct, sir? 24 A. That is correct. Q7 1 Q. Actually in point of fact, they really took no real 2 official action at all at that point in time. It was just 3 kind of an informal thing that they more or less went along 4 with your recommendation, isn't that correct, sir? By you, I 5 don't mean you specifically, I mean your entire panel? 6 A. I don't know the full mechanics but the substance 7 remained in registration. 8 Q. Is the answer to my question yes, that that is what 9 occurred? 10 A. You used the term informal. I don't know whether 11 it was an informal or a formal action. 12 Q. Well, if it was a formal action, you would have 13 known about it, would you not, sir, being an expert in the 14 field? 15 A. I am not sure that I would. It is a government 16 regulatory action. I know that the chemical was returned for 17 registration. 18 Q. You worked in 2,4,5-T for a number of years after 19 you made this recommendation. You would have known if there 20 had been any formal official EPA action taken on your 21 recommendation, wouldn't you, sir? 22 A. I know that EPA returned it to its registration. 23 Q. That isn't my question, Doctor Dost. I know they 24 returned it. My question is, you would have known if there QR 1 had been any formal action on this recommendation, wouldn't 2 you, sir, in view of the work that you did subsequently? 3 A. I am not sure that I would have known. .I am a 4 toxicologist. 5 Q. All right. Well, now, at that point in time, as 6 far as being a toxicologist was concerned, this was the first 7 time you were asked'to offer an opinion from a toxicological 8 viewpoint on 2,4,5-T or dioxin and it again was based upon 9 your search of the literature and not any other kind of 10 activity on your part, isn't that correct? 11 A. That is correct. 12 Q. Now, after you made that recommendation and after 13 you became kind of this instant expert, as you have 14 characterized it, you then were called upon to testify in 15 behalf of a number of chemical companies. In behalf of the 16 Department of Forestry or other departments of that sort 17 against actions brought by various citizens' group who were 18 protesting the use of 2,4,5-T, isn't that correct, sir? 19 A. Yes, sir. 20 Q. Yes. As a matter of fact, in 1976 you testified in 21 favor of the chemical companies in Oregon where the citizens' 22 group brought an injunction action against the use of 2,4,5-T 23 in the United States forest, didn't you, sir? 24 A. No, sir. Q9 1 Q. You didn't testify in behalf of the United States 2 Attorney General's Office where the citizens' group was 3 trying to get an injunction against the use of 2,4,5-T? 4 MR. HEINEMAN: Objection, Your Honor. The question 5 was did you testify in favor of chemical companies. He 6 changed the question. 7 THE COURT: Objection is sustained. Could you 8 rephrase that question. 9 Q. Did you not testify, sir, that 2,4,5-T should be 10 allowed, continued to be allowed to be used in Oregon and 11 elsewhere for that matter in the federal court where the 12 citizens' group sought an injunction against the use of 13 2,4,5-T? 14 A. I testified that I thought it was a safe chemical 15 to use. 16 Q. Could you answer the question as I phrased it- Did 17 you testify against the citizens' group and in favor of the 18 continued use of 2,4,5-T? 19 A. Yes. 20 Q. And it was a citizens' group that brought this 21 action in 1976, wasn't it, sir? 22 A. That is correct. 23 Q. Now, again, in 1977 in California, another 24 citizens' group brought another injunction action trying to i nn 1 prevent the use of 2,4,5-T again in the forest at that time, 2 isn't that correct, sir? 3 A. No, sir. 4 Q. That isn't correct, sir? 5 A. No. The chemical was 2,4-D. 6 Q. All right. Against the use of 2,4-D and 2,4,5-T 7 was not involved at that time? 8 A. No, sir. 9 Q. In any event, it was testimony to allow the 10 chemical companies to continue to manufacture and sell 2,4-D 11 and 2,4-D in 1977 and 2,4,5-T in 1976, isn't that correct, 12 sir? 13 A. No, sir. 14 Q. That isn't correct? 15 A, It had nothing to do with the chemical companies. 16 Q. Doctor Dost, the chemical companies make the 17 product, don't they, sir? 18 A. They make the product. 19 Q. And if it is not allowed to be used in the forest 20 land, they can't sell their product in the United States, can 21 they, sir? 22 A. The issues that I was concerned there with are 23 forestry uses. 24 Q. Answer my question, Doctor Dost. im 1 A. Forestry is a small use. 2 Q. I am sorry. What you are saying is in this 3 particular action, the chemical that they are trying to 4 prevent the use of this in forests? 5 A. That is correct. 6 Q. And to that extent, the chemical companies could 7 not sell it for use in forests if the citizens' group had 8 prevailed, isn't that correct, sir? 9 A. Not exactly. 10 Q. Well, how is that incorrect? 11 A. Because this was an action against the United 12 States Forest Service. It had no. bearing on commercial, on 13 industrial forestry. 14 Q. Well, X see your point, Doctor Dost. What it 15 boiled down to is the chemical companies couldn't sell the 16 product to the United States Government for use upon all the 17 thousands and thousands and thousands of acres of United 18 States forest if this action were correct?' 19 A. In that region,-that is correct. 20 Q. Now, that would have affected the ability of the 21 chemical company to sell these chemicals to the United States 22 Government, wouldn1t it, sir? 23 A. I am sure it would. 24 Q. And to that extent, it was beneficial to the in'? 1 ,chemi"cal companies, was it not, sir? 2 A. I guess I would assume so, 3 Q. Now, in 1979 or in 1980, anindividual brought an 4 action trying to prevent the State of Oregon from spraying 5 2,4-D on a forest, did he not, sir? 6 A. I am not sure I remember which case you are 7 referring to, 3 Q. Well, maybe I can help you remember it. My notes 9 are not that explicit. I made notes from your deposition and 10 they are not that clear. 11 A. If my deposition depended on my memory, why -- 12 Q. We would all be in trouble. Doctor Dost, what you 13 did according to your deposition, this was a case brought by 14 a citizens1 group against the Bureau of Land Management in 15 the federal court in Portland. You provided a statement and 16 supplement to that witness's statement. You did not appear 17 in court. You did not give a formal deposition. Does that 18 help you? 19 A. That is correct. 20 Q. All right. Now, that was a suit brought by a 21 citizens1 group against the California Department of Food. 22 That must be a different one. There was a subsequent 23 injunction action against the State of California, wasn't 24 there, sir? 103 1 A. I remember such an action at some point. 2 Q. And there was one case where you testified you were 3 asked to, there was an individual who was being prosecuted. 4 He was trying to prevent 2,4,5-T from being used on the 5 forest land. You blocked access to the state spray crew and 6 he was being prosecuted, a jury trial, and the State of 7 Oregon, you came in and testified against that individual and 8 in behalf of the prosecution, did you not, sir? 9 A. I believe the chemical was 2,4-D. 10 Q. Yes. 11 A. I di that, yes. 12 Q. And then you testified involving an injunction 13 action again against the California Department of Food and 14 Agriculture. That is the document that you provided, 15 correct, sir? 16 A. I did provide a document in that action, yes. 17 Q. And then there was in *79 there was a citizens1 18 group in Portland Oregon that brought suit against the Bureau 19 of Land Management to prevent the use of 2,4-D, was there 20 not, sir? 21 A. Yes. 22 Q. And then you testified in that case against the 23 citizens1 group, did you not, sir? 24 A. That is correct. 1 fl4 1 Q. And in 1982f and that must be the California action 2 where you provided an affidavit to be used against the 3 citizens' group that was suing the California Department of 4 Agriculture, isn't that correct, to prevent the use of 2,4-D? 5 A. I am very vague about the dates and the times but I 6 remember such actions. 7 Q. All right. Now, in 1978 or '79, the EPA finally 8 did reject your 1971 recommendation and, in fact, suspended 9 the use of 2,4,5-T on forest land, didn't they, sir? 10 A. They suspended the use of 2,4,5-T. 11 Q. Is the answer, to my question yes, that they did do 12 that? 13 A. Well, there were two questions, I am sorry. 14 Q. First of all they rejected your 1971 15 recommendation, did they, sir? 16 A. I have no knowledge at all whether they rejected 17 that recommendation, 18 Q. Doctor Dost, you recommended that they be allowed 19 to continue the use of 2,4,5-T in forest land, didn't you, 20 sir? 21 A. Yes. 22 Q. And they did not go along with that in '79 or 78, 23 did they, sir? They said no, we are going to suspend the use 24 of 2,4,5-T in forest land, didn*t they, sir? 105 1 A. X just don't know the reasons why they did that. 2 Q. That was contrary to your recommendation, wasn't 3 it, sir? 4 A. Yes. 5 Q. Now, and since that point in time, you have never 6 been used by the EPA as an expert or in any capacity since 7 that time, have you, sir? 8 A. By EPA? 9 Q. That is correct. By the EPA? 10 A. No. 11 Q. But you have since that time, been -- you have been 12 continued to be used or you are used and have been used by 13 the chemical industry, have you not, sir, and by the forest 14 industry? 15 A. I have served a number of times, yes. 16 Q. As a matter of fact in 1983, and you mentioned that 17 you referred to it in your direct testimony, in 1983 you 18 testified, gave statements in behalf of the Nova Scotia 19 Forest Industries Company, didn* t you, sir? 20 A. Yes. 21 Q. And that was a lumber or timber company that wanted 22 to use 2,4 -- wanted to continue to use 2,4,5-T in Canada, 23 isn't that right, sir? 24 A. That is correct. i ns 1 Q. And there was an individual and a citizens1 group 2 in Canada just like they did in the United States brought 3 actions against the Nova Scotia Forest Industries, didn't 4 they, sir? 5 A. Yes. 6 Q. And you testified, you came down there and 7 testified on the side of the industry, didn't you, sir? 8 A. Yes. 9 Q. Now, you also were used by the Diamond Alkali 10 Company as an expert witness who was being sued by a lady who 11 became very, very ill after using a herbicide, isn't that 12 correct, sir? 13 A. It was Diamond Shamrock, I believe. 14 Q. Diamond Shamrock, whatever. You did testify in 15 behalf of that company who was being sued by a lady who 16 became very, very ill after using the herbicide, didn't you? 17 A. I did not testify. I provided a witness statement. 18 Q. Provided a deposition, sir? 19 A. Not a deposition. I provided an evaluation of the 20 evidence. 21 Q. Now, you provided an evaluation of the evidence to 22 be used by the chemical company in its defense of its case 23 against this lady who was, as you have described it in the 24 earlier case, very, very ill, isn't-that right, sir? 1 f!7' 1 A. That Is correct. 2 Q. Now,, in that case, do you know whether or not the 3 herbicide was made from Monsanto's 2,4 dichlorophenol? 4 A. I have no idea. 5 Q. Well, you do know that that company bought 2,4 6 dichlorophenol from Monsanto, do you not, sir? 7 A. I have been told. that. 8 Q. And this herbicide that made this lady -- that she 9 at least said it made her very, very ill, so far as you know 10 was made from Monsanto's .2,4 dichlorophenol, wasn't it, sir? 11 MR, HEINEMAN: Objection, Your Honor, unless we get 12 an identification of what the herbicide is. 13 THE COURT: Objection is overruled. 14 Q. What was the herbicide? 15 A. The herbicide was a substance called MCPA. 16 Q. Do you know whether or not that is made with 17 Monsanto's 2,4 dichlorophenol? 18 A. MCPA is not made with dichlorophenol. It has only 19 one chlorine on it and it as a methyl group on it. 20 Q. And it would have nothing to do with Monsanto 21 then? 22 A. I really don't know. I have no knowledge about the 23 sources of those chemicals. 24 Q. I have no knowledge that Monsanto made any such mo 1 product and so the answer to -- if this answer to'my question 2 so far as you know, Monsanto's chemicals were not involved, 3 isn't that correct, sir? 4 A. Yes. 5 Q. All right. Now, you have also given a deposition 6 or, you couldn't have testified because the case didn't go to 7 trial but you gave an expert deposition and served as a 8 consultant on the side of Monsanto and these other chemical 9 companies, on the side of the chemical companies and against 10. the Vietnam veterans in the Agent Orange case, isn't that 11 correct, sir? 12 A. Yes. 13 Q. And you have also testified for Monsanto and 14 against the workers, employees, in Nitro, West Virginia, 15 haven't you, sir? 16 A. Yes. 17 Q. Now, have you ever, since you became an expert in 18 1970 or '71 on dioxin in the fashion that you have described, 19 have you ever testified in behalf of an individual or a 20 citizens' group involved with dioxin or dioxin contamination? 21 A, Not with those chemicals. With others, though. 22 Q. Have you ever served as a consultant to the EPA 23 except on the occasion when the United States Department of 24 Agriculture started in 1970 and was taken over by the EPA? i no 1 A. No. 2 Q. Have you ever served as a consultant to any 3 governmental agency, testified before a Congressional 4 committee or done any kind of government work or service 5 since 1979 when the EPA suspended the use of 2,4,5-T? 6 A. ' Other than natural resource agencies, Bureau of 7 Land Management, forest service, state agencies, no. 8 Q. All of that was before the EPA suspended the use of 9 2,4,5-T, was it not? 10 A. No. That activity continues right to this day. 11 Q. In behalf of whom? 12 A. Behalf of the United States Forest Service, the 13 Bureau of Land Management, State forestry agencies, British 14 Columbia Administry of Forests, the Department of 15 Environmental Quality in Oregon. 16 Q. You are testifying involving 2,4,5-T? 17 A. You1asked me if I served as a consultant to those 18 agencies. Did you specify 2,4,5-T? 19 Q. I think you are probably right. I don't believe I 20 did specify 2,4,5-T. You have served since 1979 as a 21 consultant to one of these, one or more of these agencies, 22 sir? 23 A. Yes. The Bonneville Power Administration which is 24 a branch of the United States Department of Energy. 1 10 1 Q. Well, what it was in 1982, you served as a 2 consultant on herbicides for the Bonneville Power 3 Administration? 4 A. I still do. I do that on a standing basis as 5 essentially part of my job. 6 Q. Doctor Dost, to talk for a few minutes about your 7 background so that we can get that clear, the expertise that 8 you have ^acquired in TCDD that we are concerned here with did 9 not come from any scholastic or academic training or courses, 10 did it, sir? 11 A. No. 12 Q. You have a veterinarian degree and by virtue of 13 that fact, you are properly called doctor, are you not, sir? 14 A. Yes. 15 Q. Because you have a DVM, isn't that correct, sir? 16 A. That is correct. 17 Q. But you do not hold a Ph.D.. That is a doctors 18 degree in any scientific field, do you, sir? 19 A. No. 20 Q. You hold what you do hold,, the only advanced 21 academic degree that you hold over and above your 22 veterinarian medicine degree is a Masters Degree in 23 veterinary physiology, isn't that correct? 24 A. In physiology, yes. 111 1 Q. And, of course, you are aware of Doctor Silbergeld 2 whose testimony you read and critiqued, if you will, for the 3 benefit of this court. You are aware that she does hold a 4 Ph.D. and that it is based upon original scientific 5 research. You do know that, don't you, sir? 6 A. Yes. 7 Q. And you do not hold a degree of that nature, do 8 you, sir? 9 A. No, sir. 10 Q. Now., have you ever taken any university taught 11 courses in toxicology? 12 A. Not in toxicology, per se. 13 Q. And have you ever taken any university taught 14 courses in epidemiology? 15 A. No, sir. I have never represented myself as an 16 epidemiologist. 17 Q. Doctor, of necessity, when you testify as a 18 toxicologist, you have to have or do you consider that you 19 have to have knowledge of epidemiological studies in order to 20 determine the toxic consequences of exposure to certain 21 chemicals? 22 A. If one is considering direct effects on humans in 23 using that data, one needs some expertise in epidemiology. 24 Q. And you don't consider that you have any expertise 1 in that field? 2 A. I have general expertise but I don't consider 3 myself an epidemiologist. 4 Q. I didn't ask you that, sir. In order -- because 5 this case is about human health effects on a group of 6 people. Of necessity for you to testify in this case, you 7 have to have some knowledge of epidemiology, must you not, 3 sir? 9 A. I don't think so. 10 Q. You don't think so. Then all of the opinions that 11 you have been giving here have not been based upon the human 12 health studies that are in existence? 13 A. They are based on human health studies,, animal 14 studies. The human -- as I see the human, when I read the , 15 scientific literature, is one of many species. I don't try 16 to interpret population effects. 17 Q. And nothing, no testimony that you have given here 18 then has been based upon any consideration from an 19 epidemiological viewpoint? 20 A. I don't believe so. 21 Q. All right. And you have, of course, not be taught 22 any such courses in any university, isn't that correct, sir? 23 A. That is correct. 24 Q. Now, have you, yourself, ever taught any 113 1 toxicological courses at a university? 2 A. Yes, I have. 3 Q. What courses have you taught, Doctor? 4 A. I have taught some special topics courses at Oregon 5 State University in the graduate program in toxicology. We 6 have a training grant at Oregon State University that has 1 been going on for a long time and I have taught students in 8 that. I have taught post doctoral fellows in my laboratory 9 and graduate students in toxicology. 10 Q. And when was that, Doctor? 11 A, Up until 1980. I have not taught formally in the 12 classroom. In fact, I did little formal class room teaching 13 at Oregon State University. I have conducted special topics 14 courses for students in the toxicology program leading them 15 on special assignments. 16 Q. Doctor, according to the CV that I have been given, 17 since 1980 you have been an extension specialist. That means 18 you don't teach courses, you go out in the field? 19 A, That is exactly right. 20 Q. Since 1980. That has been the last five years you 21 haven't taught at all, isn't that correct? 22 A. I have not taught formal courses. I have taught 23 physicians. I have taught foresters, farmers, managers. 24 Q. Well, that is an agricultural extension service 11 a 1 that is given to the public in Washington or Oregon, isn't 2 that correct, sir? 3 A. Yes. 4 Q. From '75 and until '80 you served as a professor in 5 agricultural chemistry and veterinarian medicine, didn't you, 6 sir? 7 A, The toxicology program is centered in the 8 Department of Agriculture Chemistry. 9 Q. Well, is there some description in anything that 10 you have given us that will suggest that you taught any 11 toxicological courses, sir? 12 A . No. 13 Q. And the exprience that you have had insofar as, 14 well, for instance, neurotoxicology, have you ever done any 15 research other than reading literature in neurotoxicology, 16 for instance? 17 A. ' We did research on hexachlorophene in which we were 18 very concerned about the anatomy. 19 Q. You are saying we, Doctor Dost. So we won't get 20 confused, you are a part of a group, this area here where 21 there is different people have different assignments? 22 A. My colleague was a biochemist. 23 Q. Your colleague was the biochemist. My question is, 24 have you ever done any research in neurotoxicology? 115 1 MR. HEINEMAN : You mean alone? 2 Q. My question stands on its own, counsel. 3 A. I suppose it is a matter of interpretation. I have4 done work that involved neural effects. I won't say that I 5 have directed it specifically'to neurotoxicology. 6 Q. Doctor, have you ever done any research other than 7 in the field of, other than reading literature in the field 8 of toxicology that is concerned with TCDD? 9 A. No. 10 Q. Or any other polycyclic hydrocarbon? 11 A. Hexachlorophene. I have collaborated on other 12 projects on insecticides. Chlorinated hydrocarbon 13 insecticide. Hexachlorophene work is, I believe, the only 14 paper that- I have published in that area. 15 Q. Doctor, have you ever performed ariy research on the 16 effect of chemicals or chemical substances on either the 17 porphyrins or the immune system? 18 A. No. 19 Q. Have you ever reviewed any scientific documents, 20 literature, anything of that sort for the Ep a excepting the 21 1970 or "71 service that was up, ultimately taken over by the 22 -- well, no, I take that back. I mean reviewed scientific 23 documents for the EPA, period? 24 A. .Not for the EPA. 116 1 Q. All right. And except for the work that you did in 2 *70 and '71 in 2,4,5-T, have you ever reviewed any dioxin 3 articles for the EPA? 4 A. Not for EPA. 5 Q. Have you ever performed any service for the Food 6 and Drug Administration? 7 A. No. 8 Q. Have you ever performed any service for the 9 Department of Health and Welfare? 10 A. I have reviewed a couple of documents for NIOSH 11 which is associated with HEW and I served as a consultant for 12 NIOSH. 13 Q. When was that, Doctor? 14 A. That was back in the mid '70s, I think. 15 Q. It was at the time before the EPA rejected your 16 recommendation, was it not? 17 A. Yes. 18 Q. Doctor, have you ever published any article in a 19 peer reviewed scientific journal or done any original 20 research in the field of toxicology concerned with TCDD? 21 A No 22 Q. And organizations, sir, are you a member of the 23 National Academy of Scientists? 24 A. No. Very few people are. 117 1 Q. Well, you know that Ellen Silbergeld is, don't you? 2 A. I am not sure that she is. I would like -- 3 Q. Well, she is, indeed. 4 A. Is she? 5 Q. Yes, she is. You are not, you were not aware of 6 that, Doctor? 7 A. No. I am not aware of that. 8 Q. Are you a member of the American Public Health 9 Association? 10 A. No. 11 Q. You know that Doctor Silbergeld is, don't you? 12 A. If you tell me she is. 13 Q. Well, you read her testimony in this case, did you 14 not, Doctor Dost? 15- A. I don't remember reading that but -- 16 Q. Well, my question is, you read her testimony, did 17 you not? 18 A. I read her testimony. 19 Q. I am sorry? 20 A. I read her testimony. 21 Q. And you don't recall reading that she is a member 22 of the American Public Health Association? 23 A. I don't remember reading that, I am not sure that 24 I read every word. 118 1 Q. Are you a member of the American As s o c i a t i o n for 2 the Advancement of Science? 3 A. Yes, as a matter of fact. 4 Q. When did you become a member of that association? 5 A. When I paid a subscription price for the magazine. 6 Q. Well, perhaps that is your description of the -- 7 there is more to running the American Association for the 8 Advancement of Science than paying a subscription to a 9 magazine, isn't there, sir? 10 A. Membership requires only the payment of a fee. 11 Q. Are you a member of the Society of Neuro Science? 12 A. No. 13 Q. Do you hold membership in the American Society of 14 Neuro Chemistry? 15 A. No. 16 Q. Are you part or hold any membership in the 17 International Brain Research Organization? 18 A. No. 19 Q. Do you hold membership in the Society for 20 Occupational and Environmental Health? 21 A. No. 22 Q. Are you part of the assembly of scientists that is 23 part of the National Institute of Mental Health? 24 A. No. 1 19 1 Q. Are you a member of the Science A d v i s o r y Board for 2 the EPA? 3 A. Mo. 4 Q. Are you on any NIOSH committees? Are you on any 5 committee of the Occupational Safety and Health Committee for 6 NIOSH? 7 A. No. 3 Q. In your years of service, have you ever received 9 any awards or honors in science dealing with toxicology? 10 A. Well, I consider that my election as chair of the 11 Gordon Conference at a time when the conference was in danger 12 of being suspended because of problems with its quality and 13 its direction, when I was asked to save the conference, one 14 of the most important conferences in the Profession, I 15 consider that a signal honor. 16 Q. Well, is it considered getting an award or an honor 17 in science or toxicology? 18 A. Chairmanship of a Gordon Conference. 19 Q. I am sure it is, Doctor Dost, as far as you are 20 concerned an honor and there is no question about it but what 21 it is is an honor. It is a compliment to you to be made that 22 appointment but my question is more specific. Have you 23 received something that is called honors, sir, or awards? 24 A. No. 1 20 1 Q. Now, you know that all of these things that I have 2 asked about, all of these memberships, all the work for the 3 FDA, working for the Department of Health and Welfare, 4 publication in Nature, the Journal of Science, all of these 5 membership things, all of these things you know from reading 6 the deposition of Doctor Silbergeld that she has received and 7 is a member of these various organizations and have done 8 these various things, don't you, sir? 9 A. Uh-huh. 10 Q. Yes. Now, Doctor, so we can make it clear, you 11 have given us earlier the list of documents that -- of course 12 the jury is-not aware of this -- the list of articles and 13 documents upon which you base your opinions, isn't that 14 correct, sir? 15 A. Yes. 16 Q. And none of these documents, none of these articles 17 is based upon any work that you have done but all of them are 18 based upon work that others have done and that you have read 19 about? 20 A. That is correct. 21 Q. All right. Now, Doctor, insofar as your opinion as 22 to various things here, is your opinion that dioxin, that is 23 this 2,3,7,8 TCDD dioxin, is the most toxic synthetic 24 substance of which you have knowledge? i 21 1 A. Yes. 2 Q. It is also your opinion, is it not, that it is the 3 most toxic substance that you have ever encountered? 4 A, I am not sure what you mean by encountered, Mr. 5 Carr. 6 Q.*; Well, you recall your testimony in the case 7 involving the Nitro, Monsanto employees? 8 A.. I don't recall all the details. 9 Q. Well, I am sure you could. Do you recall being lO- asked this question. "Of all the things that man has come up ll with, this may be the most toxic thing that you have ever 12 encountered?" And your answer to that question was, "It 13 could very well be. Synthetic substances, yes". Now, is 14 there any other toxic substance of which you are aware that 15 you have ever encountered that is more toxic of any sort than 16 2,3,7,8 TCDD? 17 A. Well, you are speaking of encountered and I guess I 13 will assume -- 19 0. Work with, I am sure. 20 A. I have concerned myself about. Certain hexatoxins, 21 for example, which is a very potent biological substance that 22 I have had occasion to be concerned about. 23 Q. Is it more potent than 2,3,7,8 TCDD? 24 A. It may be. 122 1 Q. On what scale, Doctor? 2 A. Well, I think I can't remember exactly but its 3 lethality, I think, is comparable. 4 Q. Now, insofar as the health effects of this 2,3,7,8 5 dioxin, you have found that it affects the skin, haven1t you, 6 sir? 7 A. Yes. 8 Q. You have found, you have concluded that it affects 9 the immune system, have you not, sir? 10 A. At what doses? 11 Q. At whatever doses it may affect. You have found, 12 Doctor, you have concluded that it does affect the immune 13 system, haven't you, sir? 14 A. Yes. 15 Q. You have concluded that it affects the liver, 16 haven't you, sir? 17 A. Yes. At sufficient doses. 18 Q. Doctor, if you don't mind, you have found that it 19 affects the liver, haven't you, sir? 20 A. Yes. 21 Q. You. have found that it has some cardiovascular 22 effect, haven't you, sir? 23 ' A. Some, yes. 24 Q. You have found that it affects the gastrointestinal 123 1 system, haven't you, sir? 2 A. Yes. 3 Q. You have found that it affects the nervous system, 4 haven1t you, sir? 5 A. Yes, 6 Q. You have found that it affects the reproductive 7 system and the endocrine. You found that to be true also, 8 haven't you, sir? 9 A. Yes. 10 Q. You found that to be mutagenic to a limited extent, 11 haven't you, sir? 12 A. I would question whether it is mutagenic. 13 Q. Doctor, do you recall your testimony on page 14 21,210, counsel, this question being asked you. "And you 15 found that to be mutagenic. You found that to be true?" And 16 your answer was, "To a limited extent". Wasn't that your 17 answer at that time to that question in Charleston, West 18 Virginia? 19 A. Yes, and that is my feeling now. 20 Q. Well, it was true then that you found it to be 21 mutagenic to a limited extent. It is true today that it is 22 still mutagenic to a limited extent, isn't it, sir? 23 A. All right. 24 Q. Isn't that correct, sir? 124 1 A, Yes. 2 Q. And you also found it to be carcinogenic, didn't 3 you, sir? 4 A. Yes. 5 Q. Doctor, all of these things -- and you found, of 6 course, that it is teratogenic, didn't you', sir? 7 A. Yes. 8 Q. And you found that it is a promoter of cancer. You 9 found that, didn't you? 10 A. Carcinogenic effect. 11 Q. Is it a promoter o f `cancer? 12 A. Yes. 13 Q. And you did find that it affects the nervous system 14 including the peripheral system in humans, didn't you, sir? 15 A. I have heard evidence to that effect. 16 Q. Excuse me. My question is, sir, you found that and 17 you accept that as true, do you not, sir? 18 A. Yes. 19 Q. Nov?, Doctor Dost, many of these things that you say 20 now that you have found to be true, you have just got through 21 saying is directly contrary to a number of things that you 22 said in direct testimony, isn't it, sir? 23 A. No, sir. 24 Q. Well, did you testify that it was mutagenic in 125 1 direct testimony? 2 A. I said, if I recall, that there had been some 3 studies which showed a mutagenic effect that had not been 4 when attempted to repeat them, they had not shown up 5 positive. I also mentioned the work -- 6 Q. Doctor Dost, that isn't what I am asking. 7 HR. HE1NEMAN: Objection. He is interupting him as 8 he is answering the question. 9 THE COURT: Objection is overruled. It was not 10 responsive. 11 Q. Doctor, you said in response to my question that 12 you found it to be mutagenic to a limited extent. Now, in 13 response to the same question now, you are saying that there 14 is literature that is saying that. Now, my question and the 15 question asked you in Charleston, West Virginia, was 16 specific. You found it to be mutagenic to a limited extent, 17 isn't that correct, sir? Isn't that what the question was 18 and isn't that what your answer was at that time? 19 A. In the reading of the literature, that is what I 20 found then. 21 Q. Yes. And, Doctor, if you found it in the Spring of 22 1985, it is still true in the Fall of 1985, isn't it, sir? 23 A. Yes, and I describedNit in my testimony. 24 Q. Now, Doctor, you told this jury that it doesn't 126 1 affect the nervous system but yesterday you have just got 2 through saying a moment ago that you found that it did affect 3 the nervous system, didn't you, sir? 4 A. The comment -- 5 HR. HEINEMAN: Objection, Your Honor. Mr. Carr 6 when he asked the question doesn't distinguish between 7 animals and humans. The doctor said very clearly in his 8 direct examination, he distinguished between the test results 9 in humans as opposed to the test results in animals and Mr. 10 Carr doesn't ask him that distinction. 11 MR. CARR: And what is it? That it affects of 12 peripheral nervous system in animals and not in humans? Is 13 that what you are suggesting, counsel? 14 A. I stated -- 15 THE COURT: Wait a second. Is that the basis of 16 your objection? 17 MR. HEINEMAN: My objection is to the Court is that 18 you are switching the question on the witness. 19 THE COURT: I don't think that is a switching. 20 Objection is overruled. 21 O. All my question for the record deals with human 22 health effects and those were the questions asked in Nitro, 23 West Virginiaand those are the questions that I am asking 24 today. You are dealing with human health effects, are you 127 1 not, sir? 2 A. In my testimony here, I have been speaking to 3 animal effects. The toxicology in animal. 4 Q. And never talking about human effects? 5 A. On rare occasions I spoke. 6 Q. Doctor Dost, are now you saying that we should 7 consider that none of your testimony relates to humans? 8 A. Of course not. 9 Q. You have testified time and time again as to 10 relation to humans, did you not, sir? 11 A. I pointed out the humans' tehal with the same kind 12 of systems that mammals do. 13 Q. And you meant for your testimony to be applicable 14 to humans. You meant for this jury to believe, to take your 15 expertise and tie it in to the humans, here in this case the' 16 plaintiffs, that are alleging, claiming certain health 17 effects. You meant that, didn't you, sir? 18 A. In my description of the animal toxicology, that is 19 what I would expect. 20 Q. And the long hypothetical question that was asked 21 you, you understood that the plaintiffs' were humans that 22 were described in that question. You understood that, 23 didn't you, sir? 24 A. Yes. 128 1 Q. And you have found, have you not, that the human 2 peripheral nervous system is affected by dioxin. You have 3 found that too, have you not, sir? 4 A. My recollection of the information is that in the 5 Nitro workers -- ,5 Q. Excuse me, Doctor Dost, could you answer that 7 question and then if you want to explain it, please explain 3 it, but you have found that, haven!t you, sir? 9 A. Yes, and if I may explain? 10 Q. Yes. 11 A. And I didn't bring this up in my direct testimony 12 in this case because I had forgotten it but in the 13 examination of the workers at Nitro, I did mention one 14 individual who had a nerve biopsy and that individual was 15 found to have some demyelinization. The evidence of nervous 16 effects in humans in the Nitro case was reported on 17 interviews with the patient who described aches and pains, 18 tingling of the extremities and such symptoms. I do not know 19 the results of the clinical examinations of those 20 individuals. I do not remember what the clinical 21 examinations showed. On that basis, it can be assumed that 22 those individuals had nervous effects. 23 Q. And, Doctor, you found in addition and you 24 testified in Nitro that you are convinced that it does have 129 1 the ability to exert a toxic effect on the peripheral nervous 2 system in humans, didn't you, sir? 3 A. I don't remember that. It is not unreasonable. 4 Q. It is a fact. You are convinced, aren't you, sir? 5 A. If that testimony is so, then I will accept that. 6 Q. Notwithstanding that testimony. Just assume that I 7 am making that up. You are convinced, aren't you, sir, that 3 ICDD does have a toxic effect on the human peripheral nervous 9 system, aren't you, sir? 10 A. I am not. 11 Q. You are not. Nov?, when you were under oath in 12 Nitro, West Virginia, you were convinced, weren't you, sir? 13 A. Yes, and I have given it a great deal -- 14 Q,. Doctor Dost, if you don't mind. 15 A. Yes. 16 Q. Have you done some new research since the spring of 17 1985 to unconvince you? You are convinced in the Federal 18 court in West Virginia and you are not convinced in the State 19 court in Illinois. What has occurred -- well, let me ask it 20 a different way. Have you done any research since, then, sir? 21 A. Only reading. 22 Q. Have you read any new articles since then, sir, 23 that would suggest that there is not an effect upon the 24 peripheral nervous system of humanbeings? 130 1 A. All -- 2 Q . If so, please name the article? 3 A. I have read animal toxicology studies. 4 Q. We are talking about humans. 5 A. I have no evidence in humans, per se. 6 Q. Now, have you read some animal data that would 7 convince you or make you no longer convinced that it has this 8 toxic effect upon the peripheral nervous system in humans? 9 If so, please state the name of the studies? 10 A. I have read -- I have reread a number of papers. 11 The studies on monkeys. I reread all of the pathology 12 studies including Doctor Koceba's work, including the 13 National Toxicology Program work, and I do not see evidence 14 in those studies for effects on animals in the peripheral 15 nervous system. 16 Q. Doctor, you read all of those studies. All of 17 those studies are old. There is none of them new. 18 .A. That is correct. 19 Q. They are many,,many years old. You knew about them 20 in 1979 and you knew about them in 1980 and you knew-about 21 them in *81, '82, *83, `34, '85. None of those things are 22 new. You reread those and you had knowledge of all of those 23 things when you testified in the Federal court, did you not, 24 sir? *131 1 A. I did. 2 Q. And you reread those articles for the purpose of 3 testifying in this case, didn't you, sir? 4 A. No. Actually not. I have been concerned about 5 neural effects for a long time and I have gone back 6 independently of this case to try to come to some conclusion. 7 Q. But now you are no longer convinced that it has an 8 effect upon the nervous system, is that right, sir? 9 A. In the nervous system of animals. 10 Q. No, of humans. I am talking about humans because 11 you were convinced in the Federal court that it had the 12 effect upon humans. I am talking about humans. I don't give 13 a hoot about the animals, Doctor. 14 A. Well, animals are what I work with. 15 Q. Doctor, I understand that. But my question is 16 specific. Are you now convinced or are you unconvinced that 17 the peripheral nervous system in humans are not affected by 18 TCDD? 19 A. I say -- I think the word that you have used 20 unconvinced is perhaps more appropriate. 21 Q. All right. You were convinced in the spring of '85 22 but you are not convinced today? 23 A. I am no longer certain. 24 Q. And the only thing that has caused you to become 132 1 from convinced to no longer certain is your rereading of 2 these studies that you have mentioned? 3 A. That is correct. 4 Q. 'Is that correct, sir? 5 A. That is correct. 6 Q. Now> Doctor, you knew that these men that were 7 exposed in Nitro, West Virginia, you knew they complained of 8 peripheral neuropathy and'peripheral neuritis along with the 9 finding that the myelin sheath in a biopsy was damaged and 10 destroyed. You knew those things, didn't you, sir? 11 A. That is correct. 12 Q. You also know that those men today -- how many 13 years later, 26 years later, no more than that, 36 years 14 later are still complaining about the peripheral neuritis and 15 the pains and the aches, aren't they, sir? 16 MR. HEINEMAN: Objection, Your Honor. Are you 17 equating all the Plaintiffs in Nitro with the people that 18 were originally examined by Suskind? 19 MR. CARR: If you donft mind, I will ask this 20 question of the Doctor. 21 THE COURT: Objection is overruled. Please answer 22 the question. 23 Q. You are aware of that, aren't you, sir? 24 A. I am aware that there are complaints. I am also 133 1 aware of the -- 2 Q. Doctor, if you don't mind, my question was, you are 3 aware of the complaints, aren't you, sir? 4 A. I am aware of the complaints. 5 Q. These workers at Nitro, they could be lying about 6 their aches and pains, couldnft they, sir? 7 A. I suppose they could. 8 Q. Or they could be exaggerating, couldn't they, sir? 9 A. Yes. 10 Q. And with humans, however, different from animals, 11 when you look at an animal, unless he is arthritic or have 12 difficulty walking, you really can't tell whether he is or is 13 not having a peripheral neuropathy. By this X don't mean the 14 reflexes but I mean pain in the legs? 15 A. Well, I can tell if an animal is lame. I can't 16 tell if he has minor problems. 17 Q. But if I am walking along right now, if I were a 18 horse or a dog, you couldn't tell whether I have lack of 19 sensation in that foot or pain running down this leg with me 20 walking here? 21 A. Not just obesrving you, no. 22 Q. But now the humans can tell you that. I mean, they 23 can tell you that they have what you call, what you called, I 24 don't know whether you meant it or not, what you called minor 134 1 pains* Humans can tell you that they have these so-called 2 minor pains, can't they, sir? 3 A. Yes. 4 Q. Now, Doctor Dost, do you really think that somebody 5 that has had pain down their legs and in their joints for 36 6 years, that you can call that a minor pain? 7 A. No. 8 Q. And it is something, Doctor Dost, that isn't going 9 to show up on any test that you can give that human, isn't 10 that right, sir? 11 A. Well, I am not a clinician but I will assumeJso. 12 Q. Well, you are enough of a clinician. You studied 13 and have a Masters in physiology, veterinary physiology and I 14 thought you told this jury that the physiology, you take the 15 same courses that the med students do. The same classes and 16 it is much the same. You don't have to be a clinician to 17 know that, do you, sir? IS A. Well, to be able to do, to make the observations on 19 humans, the laboratory observations that would provide that 20 information, yes. 21 Q. Doctor, I am not aware of any laboratory 22 examination that can tell anybody that I do or do not have 23 pain in my leg. 24 A* I will agree with that, certainly. 135 1 Q. And, Doctor, you were a doctor. You would have to 2 depend upon the truthfulness of that person, wouldn't you, 3 sir? 4 A. Yes. 5 THE COURT: Mr. Carr, is this a good point to 6 break? ' 7 MR. CARR: Yes, Your Honor, it is fine. 8 THE COURT: Ladies and gentlemen, we will recess - 9 for the day at this time. We will start tomorrow morning at 10 9:30. I would remind you as I do for any overnight break 11 that you are not to read, listen bo or watch anything about 12 this case in particular or subject matter in general in any 13 of the media. Thank you for your attention and cooperation. 14 Court is adjourned. 15 COURT ADJOURNED: 16 17 18 19 20 21 22 23 24 136 I 1 STATE OF ILLINOIS 2 TWENTIETH JUDICIAL CIRCUIT 3 COUNTY OF ST. CLAIR ) ) ) ) ) SS 4 5 I, Kimberly Ganz, one of the Official Court Reporters, do 6 hereby certify that the foregoing transcript is a true and 7 correct transcript of the proceedings had in the 8 above-entitled cause. 9 Dated this J A day of November, 1935. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 137 1 STATE OF ILLINOIS 2 TWENTIETH JUDICIAL CIRCUIT 3 COUNTY OF ST. CLAIR ) ) ) ) ) SS 4 5 I, RICHARD P. GOLDENHERSH, one of the Judges in and for 6 the Twentieth Judicial Circuit, do hereby certify that the 7 foregoing transcript is a true and correct transcript of the 8 proceedings had in the above-entitled cause. 9 Dated this f day of November, 1985. 10 11 12 13 HON. RICHARD P. GOLDENHERSH 14 15 16 17 18 19 20 21 22 23 24 133 1 INDEX 2 J WITNESSES CALLED ON BEHALF OF THE DEFENDANT: 4 1. FRANK DOST 5 Direct Examination by Hr. Heineman . . Cross Examination by Hr. Carr. v . . . 5 7 8 9 IO 11 12 13 14 15 15 17 13 19 20 21 22 23 24 139 PAGE 2 94 1 2 DEFENDANT'S EXHIBIT NO. 3 1291- 1295 4 1295 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 exhibits IDENTIFIED 25 140 ADMITTED