Document MMx1ZKXpYYRn22NzmyVMdV10y

/V /'///:' M V11T.R OF: Tennessee Gas Pipeline Company vs. Monsanto Company Cause No. 94-CI90145 Deposition of Cumming Patton October 26, 1995 Gore & Perry Reporting Company 100 North Broadway, Suite 1175 Saint Louis, Missouri 63102 (314)241-6750 621-4790 (800) 878-6750 WATER PCB-SD0000076480 235 1 COMMONWEALTH OF KENTUCKY 2 ROWAN CIRCUIT COURT 3 CIVIL BRANCH 4 5 TENNESSEE GAS PIPELINE COMPANY, 6 7 Plaintiff, 8 9 vs. NO. 94-CI90145 10 11 MONSANTO COMPANY, 12 1 3 Defendant . 14 1 5 Deposition of CUMMING PATON, Volume II, taken 1 6 on behalf of the Plaintiff, at the offices of 1 7 Thompson & Mitchell, One Mercantile Center, in the 1 8 City of St. Louis, State of Missouri, on the 25th 1 9 day of October, 1995, before Dawn L. McTeer, 2 0 Registered Professional Reporter and Notary Public. 21 22 23 24 25 Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076481 1 APPEARANCES OF COUNSEL: 2 3 FOR THE PLAINTIFF: 4 Mr. Steven J. Roeder 5 Hedlund, Hanley & John 6 Sears Tower, Ste. 5700 7 Chicago IL 60606 8 9 FOR THE DEFENDANT: 1 0 Mr. Roily L. Chambers 11 Smith, Helms, Mulliss & Moore 12 227 North Tryon Street 13 Charlotte, NC 28202 14 15 16 17 18 19 20 21 22 23 24 25 Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 236 WATER PCB-SD0000076482 1 INDEX 2 3 Examination by Mr. Roeder 4 5 EXHIBITS 6 7 Plaintiff s Deposit ion Exhibit 2 15 8 Plaintiff s Deposit ion Exhibit 2 16 9 Plaintiff s Deposition Exhibit 2 17 1 0 Plaintiff s Deposit ion Exhibit 218 11 Plaintiff s Deposition Exhibit 2 19 12 Plaintiff s Depo sit ion Exhibit 2 2 0 13 Plaintiff s Deposition Exhibit 221 14 Plaintiff s Deposition Exhibit 222 15 Plaintiff s Deposition Exhibit 223 16 Plaintiff s Deposit ion Exhibit 224 17 Plaintiff s Deposition Exhibit 2 25 18 Plaintiff s Deposition Exhibit 2 2 6 1 9 Plaintiff s Deposition Exhibit 2 2 7 20 Plaintiff s Deposition Exhibit 2 2 8 21 Plaintiff s Deposition Exhibit 2 2 9 2 2 Plaintiff s Deposition Exhibit 2 3 0 23 Plaintiff s Deposition Exhibit 2 3 1 2 4 Plaintiff s Deposition Exhibit 2 3 2 25 Plaintiff s Deposition Exhibit 233 PAGE Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 5 283 292 294 301 301 34 1 346 368 369 369 375 379 379 385 397 400 403 4 13 4 16 23 7 WATER PCB-SD0000076483 1 Plaintiff s Deposition Exhibit 2 3 4 2 Plaintiff s Deposition Exhibit 2 3 5 3 Plaintiff s Deposition Exhibit 2 3 6 4 Plaintiff s Deposition Exhibit 2 3 7 5 6 7 8 9 10 11 ' 12 13 14 15 16 17 18 19 20 ' 21 22 23 24 25 Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 4 18 425 429 436 238 WATER PCB-SD0000076484 239 1 CUMMING PATON, 2 of lawful age, having been first duly sworn to 3 testify the truth, the whole truth, and nothing but 4 the truth in the case aforesaid, deposes and says in 5 reply to oral interrogatories propounded as follows, 6 to-wit : 7 EXAMINATION 8 QUESTIONS BY MR. ROEDER: 9 Q: This is the continued deposition of Cumming 10 Paton. Dr. Paton, you recognize you're still under 11 oath? 12 A: Yes. 13 Q: Okay. Yesterday, when we concluded, we were 14 talking about Exhibit No. 119. Let me hand you a 15 binder which has the exhibit in it. 1 6 A: Gossage. For goodness sake. 119. 17 Q: Gossage, Paton. We're talking really 1 8 important people. 1 9 A : Okay . 2 0 Q: Okay. That was your memorandum, dated July 2 1 17th, 1972. Do you recall the testimony regarding 2 2 this document? 2 3 A: The testimony we covered yesterday? 2 4 Q : Yes . 2 5 A: Yes, I think I do. Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076485 240 1 Q: Okay. You had requested that the 2 individuals consider sending the attached letter 3 modified, as you may suggest, but I'm reading from 4 your memorandum, to the attached customer list. And 5 we had discussed briefly the mechanisms or the 6 language you had used in that draft letter. Now, if 7 you look to the second page of the document of the 8 memorandum, bates number TNGS 6123, you write "I 9 would propose we give some thought as to how we 1 0 distribute this letter to the customers. We have 11 learned a few things about customer relations in the 12 blizzard of mail we have sent out in the last few 13 years." What type of thoughts did you have with 14 respect to how you distribute this letter? 15 A: It's so long ago now that I cannot recall 1 6 what my thoughts were at the time. So anything I 17 would say now would be sheer speculation on my part, 1 8 because I really cannot remember what my thoughts 1 9 were at the time. 2 0 Q: And prior to this deposition, you hadn't 2 1 seen this document since approximately 1972? 2 2 A: I don't think so. I might have seen it on 2 3 Monday, but I cannot recall it. I don't think. 2 4 Q: But other than Monday, you didn't see this 2 5 document ? Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076486 241 1 A: No. No, I would have had no reason to. 2 Q: All right. Keeping that binder open in 3 front of you, sir, would you turn to -- while I'm 4 getting the number, you were concerned or expressed 5 a concern in that exhibit about customer cleanout. 6 What did you mean by that? 7 A: This is item three you're referring to? 8 Q: Well, in the body of the exhibit, you said 9 "We know from heat transfer experience that certain 1 0 PCB affected customers have tried to pin the cost of 11 conversion and related problems on MICC, because of 12 the alleged failure to properly warn them on need 13 for system cleanout." What's system cleanout as you 14 understood that term? 15 MR. CHAMBERS: Where are we in the 16 document ? 17 MR. ROEDER: The body of that memorandum. 1 8 A: Okay. Let me read it again. 19 Q: (By Mr. Roeder) Sure. Take your time. . 2 0 A: I don't think there necessarily was a 2 1 connection between item three alone and that 22 statement. I think my statement in the body of it 23 was sort of a general statement, but I was trying, 24 as I said, I think, in my earlier testimony, to 25 understand what the difference is in the hydraulic Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076487 242 1 type areas were compared to heat transfer areas, 2 because, as I again indicated, I had been in that - 3 in this position of having Pydraul as well as the 4 other PCB fluids only a matter of weeks. 5 Q: Well, let's -- in the heat transfer area, 6 Therminol area, as you noted in your July 17, 1972, 7 memorandum, earlier correspondence to customers that 8 stated "No draining is necessary." That's what the 9 memorandum you wrote says, right? 1 0 A : Yes. 11 Q: And we looked at yesterday afternoon the 1 2 full description that you -- that the letters of 13 February 28, 1972, said, which that would be "No 14 draining, cleaning or changing of seals near systems 15 is necessary." That would be at TNGS 6129, Mr. 16 Bergen's letter of February 28th, 1972. 17 A: And as I say, I was new. There could have 1 8 been, you know, a perfectly reasonable explanation 1 9 of why that wasn't necessary in Pydrauls. I was in 2 0 a position of being new trying do ask the people 2 1 that had been involved earlier and were involved in 2 2 Pydrauls as to what the situation really was and the 2 3 differences . 2 4 Q: I understand that, sir. But when you read 2 5 this, admittedly your testimony is that Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076488 ____________ ________________________________________________________________________________24 3 1 approximately in July of 1972 you were given the 2 responsibility for Pydrauls, correct? 3 A : Yes. 4 Q: So as part of your standard procedure when 5 you had obtained new responsibilities, you would 6 examine and investigate with respect to your 7 responsibilities so that you can better do your job? 8 A : Yes. 9 Q: And as part of that investigation, you came 1 0 across these letters and then had written your July 11 17, 1972, memorandum to highlight questions you had 12 about previous correspondence, correct? 13 A : Yes . 1 4 Q: Right. And when you look at the February 15 28, 1972, letter from Mr. Bergen, the one that you 1 6 attached to your memorandum in July, you highlighted 1 7 this point about telling the customers that no 1 8 draining or cleaning or changing of seals near 1 9 systems was necessary. That was what you did in 2 0 your memorandum? 2 1 A: Yes. 2 2 Qs Okay. Now, isn't it true that you were 2 3 concerned that customers would believe that there 2 4 was no cleaning or draining or changing of seals 2 5 that would be necessary with respect to PCB issues Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076489 244 1 that confronted them because of this letter? 2 A: I don't think you can draw that conclusion. 3 There can be other interpretations for that. At the 4 present time, it's hard for me to go back and 5 actually think what are various interpretations I 6 was thinking at the time that I wrote it. That most 7 -- the thing I can remember is trying to find out 8 as much as I could about what went on and the 9 reasons for it. 1 0 MR. ROEDER : Could you read the question 11 back? 12 (The requested portion of the 1 3 record read by the reporter. ) 14 Q: (By Mr. Roeder) I think the answer calls 15 either for a yes or no or I don't recall. So I'll 1 6 move to strike your previous answer, and ask if you 1 7 can answer that question? 1 8 A: I can't recall. 19 Q: Well, you were aware as of July 1972, 2 0 weren't you, that customers were not -- did not know 2 1 uniformly that there was a requirement or a need to 22 completely clean out and flush their system to 23 eradicate any PCB problems? MR. CHAMBERS: Object to the form. THE WITNESS: Again, could you read that Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076490 _______________________________________________________________________________________________24 5 1 back to me again? 2 (The requested portion of the 3 record read by the reporter.) 4 A: Well, the term "customers" is -- is very 5 broad. I mean what customers do you really mean? 6 Q: (By Mr. Roeder) Customers of Monsanto who 7 purchased products that had PCBs in them. Is that 8 too broad for you? 9 A: Yes, sir. I mean are we talking Pydrauls? 1 0 Are we talking Therminols or heat transfer, 11 dielectrics? You know, what does -12 Q: It's too broad to answer if the question 13 encompasses Pydrauls and dielectrics for you as of 14 that date. How about for Therminols if I limit it 1 5 to Therminols? 16 A: I think in the case of Therminols, to the 17 best of our ability, all the customers we knew about 18 had been notified. 19 Q: So all the customers that you knew about as 2 0 of July 1972 were aware that there was, in fact, a 2 1 need to flush the system, remove all the PCB 2 2 materials, clean that system and then completely do 23 a new fill with non-PCB materials to get rid of the 2 4 PCBs that were in their system? 2 5 MR. CHAMBERS: Object to the form. Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076491 ____________________________________________________________________________________________ 2 4 6 1 A: In the case of the heat transfer systems, 2 which is the area that I knew most about in July 3 1972, to the best of my knowledge and ability, they 4 had all been notified. In the case of dielectrics, 5 they had not been notified, because we were still 6 continuing in that business. And in the case of 7 process fluids, as I recall, by then we had 8 discontinued the uses. In the case of Pydraul, as I 9 said, I was new. I didn't know whether they all had 1 0 o r hadn1t. 11 Q: And the notification that went to the 12 customers in the Therminol area was the notification 13 that went out through the letters? 1 4 A: Yes. 1 5 Q: Okay. And so by looking at those letters, 1 6 customers would understand what they needed to do? 17 A: Yes. 1 8 Q: Can you turn, sir, to Exhibit 96? It should 1 9 be in that binder. Probably at the very -- no, 2 0 that's right. It should be in that binder. That's 2 1 it. Take a moment to review that, sir, and I'll 2 2 identify it for the record. Exhibit 96 is a call 2 3 report, organic division, to Cumming Paton.. It 24 bears production number TNGS 7355, dated 6-16-72. 2 5 That's the date of the call. Date typed is Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076492 _______________________________________________________________________________________________24 7 1 6-21-72. This is a call report that you received 2 with respect to U.S. Steel, correct? 3 A : Yes. 4 Q: Okay. And in this call report, there is a 5 reference to Pydraul 230-C and there is also a 6 discussion with respect to the entire PCB situation 7 with the customer. I guess Mr. Stegen is the 8 salesman, correct? 9 A : Yes. 1 0 Q: Mr. Stegen writes to you "Peterson, who is 11 the customer, is of the opinion that U.S. Steel 1 2 plant Torrance in California has already changed 13 their system with the assistance of Monsanto from 14 PCB to non-PCB fluids and has flushed the system to 1 5 remove all residual PCBs." That's what he writes 1 6 there, correct? 17 A : Yes . 1 8 Q: Okay. Then Mr. Stegen writes "We discussed 19 the entire PCB situation with Peterson and Roland, 20 and I now feel they have a reasonably good 2 1 understanding of the problem. " Did I read that 2 2 correctly? 2 3 A : Yes. 2 4 Q: Okay. Mr. Peterson informed -- excuse me. 2 5 Mr. Stegen informed you that "Peterson, who is the Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076493 248 1 customer, recognizes he will not get to zero PCBs 2 even if he drains and flushes his system." Did I 3 read that correctly? 4 A: Yes. 5 Q: Okay. Was that an understanding that you 6 believe that all customers had as of -- Therminol 7 customers had as of June 1972? 8 A: Well, this is a Pydraul customer. 9 Q: Okay. Did you believe that there was a i 1 0 concern that the Pydraul customers did not have that 11 understanding as of June 1972? 12 A: This -- this call report indicates to me 13 that customers apparently then did have a better 14 understanding than my recollection earlier might 15 have been. 1 6 Q: Okay. The understanding is that, after you 1 7 have somebody from Monsanto go out and with their 1 8 assistance change their system and flush it, that 1 9 they will even not get to a zero PCB state with the 2 0 existing system, correct? 21 A: That's what this statement says. 2 2 Q: Sure. And the customer only learned of this 2 3 possibility, because it had assistance from Monsanto 24 changing the system in the first instance, correct? 2 5 MR. CHAMBERS: Object to the form. Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076494 249 1 A: I would not that from this call 2 what you said, I would not interpret that from 3 reading this call report. 4 Q: (By Mr. Roeder) Well, you would interpret 5 it, wouldn't you, sir, that the customer with the 6 assistance of Monsanto recognizes that he will not 7 get to zero PCBs even if he drains and flushes his 8 system? 9 MR. CHAMBERS: Object to the form. 1 0 A: I don't think it says that. It says 11 "Peterson recognizes," but it doesn't add that 1 2 Peterson recognized only because Monsanto gave him 13 assistance. 14 Q: (By Mr. Roeder) Well, Peterson recognized 15 that after Monsanto discussed the entire PCB 16 situation with him, and after the Monsanto 1 7 concluded they have a reasonably good 1 8 understanding of the problem. Isn't that what that 19 memorandum says? 2 0 A : Yes. 2 1 Q: All right. And at this point, Mr. Stegen 22 informed you that he had provided the customer with 2 3 the name of the labs which would be willing -- they 2 4 would be willing to recommend for analytical work on 2 5 PCBs. That's what he informed you there, right? Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076495 250 1 A : Yes. 2 Q: Okay. Was that standard practice with 3 respect to customers that you would inform them of a 4 lab with respect to PCBs? 5 A: I cannot recall now. It wouldn't -- it 6 wouldn't surprise me, but I cannot specifically 7 recall doing that. That may have been done before I 8 even got there, but I can't remember. 9 Q: Was U.S. Steel a large customer? 1 0 A: I believe they were. 11 Q: A larger customer than Tennessee Gas? 12 A: I can't recall. 13 Q: In fact, you can't recall Tennessee Gas 14 being a large customer with respect to Pydrauls at 15 all; isn't that correct? 16 A: That's probably -- yes, I think that's 1 7 probably fair. 18 Q: And as a larger customer, U.S. Steel would 19 naturally attract a larger interest and concern on 2 0 behalf of Monsanto; isn't that true? 2 1 MR. CHAMBERS: Object to the form. 22 A: No, I don't think that's -- I don't think 2 3 that's accurate. 24 Q: (By Mr. Roeder) Well, NCR was a larger 2 5 customer of your plasticizer division, correct? Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076496 251 1 A : Yes . 2 Q: Okay. And you went personally out to visit 3 NCR to discuss the issues relating to Dr. 4 Riseborough's article that had been published in the 5 "San Francisco Chronicle"? C MR. CHAMBERS: Object to the form. Go 7 ahead. 8 A: As I said in my testimony, I had arranged to 9 go there for reasons other than the PCBs, Dr. 1 0 Riseborough's statement. NCR were looking for 11 alternatives to the PCBs totally unrelated to PCBs, 1 2 and that was the reason that I was making the call 13 was to discuss how we could -- if there were 14 products that we had that might be of use to them in 15 this changeover, which was a technical -- there was 16 a technical reason for them wanting to change. It 17 so happened, at the time that I went, this 18 Riseborough paper came along and I took that along 19 with me. 2 0 Q: (By Mr. Roeder) But the first thing you 2 1 discussed in that memorandum you wrote was the 2 2 Riseborough paper, correct? 23 A: Yes, because it probably was an introduction 24 to the -- the call, but that was not the main 2 5 purpose of the call. Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076497 ____________________________________________________________________________________________ 2 5 2 1 Q: Are you recalling this -- are you recalling 2 this trip to National Cash Register more precisely 3 today than you did yesterday? 4 A: I don't think so. 5 Q: Going back, sir, to Exhibit 119, which was 6 your memorandum to Davidson, Gossage, Bergen, 7 Stapleton, Papageorge and Johnson. We were looking 8 at that earli.er. 9 A : Yes. 1 0 Q: I asked you yesterday whether the statement 11 that you had noted in your point two about the April 12 15th, 1971, letter, whether that was true or false, 1 3 and you said you didn't know? 14 A : That ' s right . 1 5 Q: Am I -- am I fairly characterizing your 1 6 testimony? 17 A: I think that's probably right. 1 8 Q: I want to show you, sir, Exhibit 11, which 1 9 is a memorandum from Mr. Bradford to Mr. Davidson to 2 0 Mr. Gossage as of December 8th, 1971. Okay. You - 2 1 you can sit down, sir. 2 2 A: Well, do we -- are we going to go back to 23 this? 24 Q: We are. We certainly are. 2 5 A: I'm trying to see if I have some way of not Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076498 2 53 1 losing all the places. 2 Q: I have, if you would like, sir, some 3 post-its if that will help you. 4 A: It's a good idea. Thank you. 5 Q: It is -- for the record, the witness is 6 looking at Bradford Exhibit 11. It is - 7 Plaintiff's Exhibit 11. It is dated December 8th, 8 1971, from C. L. Bradford and J. H. Davidson to T. 9 L. Gossage. It bears production number TNGS 8577 1 0 through 8593. Perhaps I can speed up the -- your 11 review of this, sir, by drawing your attention to 12 page four. Bates number at the bottom is TNGS 13 8580. There is a paragraph there entitled "Customer 14 Notification. " 1 5 A: Yes. 1 6 Q: And so the record is clear, the paragraph 1 7 that I'm drawing your attention to says "On April 1 8 15, 1971, we sent out a letter to the Pydraul 1 9 mailing list saying there are no PCBs in any of our 2 0 Pydraul fluids." Let me stop right there. That's 2 1 the same statement you were referring to in point 2 2 number two of your July 17th memorandum, correct? 2 3 MR. CHAMBERS: Object to the form. 2 4 A: I referred to a statement from that letter. 2 5 Q: (By Mr. Roeder) That's what I mean. At Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076499 ____________________________________________________________________________________________ 25 4 1 this point, this -- he's referring to the same 2 statement you were referring to in your memorandum 3 of July 17th, 1972, correct? 4 A : Yes. 5 Q: Okay. Mr. Davidson and Mr. Bradford 6 continue. "This letter is not true and has 7 irritated the Chevrolet division of General Motors 8 and probably anyone else who knows that it is not 9 true. We will communicate immediately to the same 10 customers clearly stating that the letter was 11 somewhat in error in giving them facts on the PCB 12 contamination." Did I read that correctly? 13 A : Yes. 14 Q: Okay. "If possible, we can temper this with 1 5 our plans for future fluids. However, getting the 16 information to our customers before they get this 17 information from our competitors should be our prime 1 8 area of consideration." Did I read that correctly? 1 9 A : Yes. 2 0 Q: Was this document in the file you examined 2 1 when you were given the responsibility for the 2 2 Pydrauls in July 1972? 2 3 A: I cannot recall that. 24 Q: Well, do you -- let me show you on that same 2 5 book, sir, Exhibit 13. 13. Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076500 255 1 A: One three. Okay. Here it is. 13. 2 Q: 13 also is an exhibit, dated December 8th, 3 1971, to T. L. Gossage from C. L. Bradford and J. H. 4 Davidson and bears production number TNGS 10691. 5 This is Mr. Gossage's handwriting here, isn't it? 6 A: It looks -- it looks a bit like it, yes. I 7 wouldn't a hundred percent swear, but it looks it 8 might be. 9 Q: The handwriting on the sides of this 1 0 exhibit ? 11 MR. CHAMBERS: In the margins? 1 2 MR. ROEDER: Right. 1 3 Q: (By Mr. Roeder) If you turn to page four, 14 the customer notification paragraph of this 1 5 document . 16 A: I'm not sure if it his writing, though. 1 7 Q: If it helps, I think you testified it was. 1 8 I think Mr. Gossage did. 19 MR. CHAMBERS: I -- I will object to the 2 0 form, because I don't think that's correct, but 2 1 let's proceed. 2 2 MR. ROEDER: The record will show what the 2 3 record will show. 24 MR. CHAMBERS: Obviously. 2 5 MR. ROEDER: I'm not going to -- if the Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076501 2 56 1 witness can't recall, he can't recall. I'm pretty 2 confident Mr. Gossage said that was his handwriting. 3 MR. CHAMBERS: And I'm equally confident 4 that he didn't. We're up in the air. We just need 5 to look back. 6 A: I cannot be a hundred percent sure. 7 MR. ROEDER: I'll send you the transcript. 8 A: I cannot be a hundred percent sure. 9 Q: (By Mr. Roeder) All right. But in your 1 0 opinion, it looks like his handwriting? 11 MR. CHAMBERS: Object to the form. 12 A: Some. I looked -- I looked again, and then 13 I'm not -- right now at this minute I'm not so sure. 14 Q: (By Mr. Roeder) All right. Look on page 15 four, sir, the customer notification paragraph. It 1 6 might help actually if you would place your hand, if 1 7 you have it, as well on Exhibit 11 so you can see 1 8 the changes to this paragraph. 1 9 A: You're wanting me to look at the one that's 2 0 labeled customer notification; is that right? 2 1 Q : Right. 2 2 A : Okay. 2 3 Q: You'll see that in the Exhibit 13 draft 2 4 there are a couple of changes that to the way that 2 5 it was originally drafted by Mr. Davidson and Mr. Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076502 2 57 1 Bradford. In the customer notification paragraph in 2 Exhibit 13, it would originally read -- I'm going 3 straight to the third sentence of it. "We should 4 write another letter immediately to the same list, 5 referring to customers, clearly stating that the 6 letter was not true in giving them the facts on PCB 7 contamination." That's the way that -- that's the 8 way the typed portion of that memorandum reads, 9 correct? 1 0 A : Yes . 11 Q: So as Mr. Davidson and Mr. Bradford were 12 suggesting in this letter as originally typed, the 13 letter of April 15th was not true and they were 14 suggesting that Monsanto ought to send another 15 letter immediately to the same list of customers 1 6 telling them that the previous letter was not true, 1 7 correct ? 1 8 A: That's what I'm reading. 1 9 Q: Right. Then the changes are made. Instead 2 0 of "We should write another letter," it's changed to 2 1 "We should communicate or we will communicate." 2 2 And if you look, you will see that is the change 23 that is reflected in the customer notification 2 4 memorandum as part of Exhibit 13. Instead of "We 2 5 should write another letter," it's changed to "We Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076503 258 1 will communicate." So the idea of the letter is now 2 withdrawn based on that change. Would you agree 3 with that edit ? 4 MR. CHAMBERS: Object to the form. 5 A: I'm looking at two -- two drafts, and I'm 6 reading one, reading the other. I have absolutely 7 no idea why they were changed. 8 Q: (By Mr. Roeder) Well, let me -- let me just 9 1 0 A: And whether that was the only change before 11 the final one. I don't know. 12 Q: All right. Well, the changes that were made 13 in handwriting on Exhibit 13 with respect to that 14 paragraph were made on the draft which is contained 15 in Exhibit 11, right, of that sentence I should 1 6 say. "We should write another letter" that appears 1 7 in Exhibit 13 is changed in accordance or at least 1 8 consistent with the handwriting to "We will 1 9 communicate immediately," correct? 2 0 A: Well, there's a draft now, which I read 2 1 earlier, which says "will communicate." I see a 2 2 draft here which didn't have it, but there's 2 3 handwriting that would seem to indicate that that's 24 the change they made on that, yes. 2 5 Q: Right. And then the word "list." "We will Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076504 259 1 write another letter immediately to the same list" 2 as it's originally written is changed to "We will 3 communicate immediately to the same customers." 4 Customers is in handwriting on Exhibit 13? 5 A: That was written above customers. I can see 6 the C, and then that's the only letters I can make 7 out. 8 Q: All right. Well, if you look at Exhibit 13 9 or 11, excuse me, you'll see that the word 1 0 "customers" appears where "list" appeared. Would 11 you agree with me on that? 1 2 A : Yes. 1 3 Q: All right. If possible continuing -- strike 14 that. Continuing on that same sentence after "list" 15 is changed to "customers, " the original draft would 1 6 read "Clearly stating that the letter was not 1 7 true." That's the draft Mr. Davidson and Mr. 1 8 Bradford have, right? 1 9 A: Well, that's -- yes, there's a word "not 2 0 true," and that's been scored out, yes. 2 1 Q: Right. Okay. The "not true" that's changed 22 in Exhibit 11 to "somewhat in error," isn't it? 2 3 A: The draft that I see now, document 11, says 24 "somewhat in error, " yes. 25 Q: Well, "somewhat in error" is different than Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076505 260 1 "not true," isn't it? 2 MR. CHAMBERS: Object to the form. 3 Q: (By Mr. Roeder) Or are they the same for 4 y ou ? 5 A: I see a difference. How significant it is I 6 don't know, because I wasn't involved or wrote the 7 different words so I don't know what they meant. 8 Q: All right. Continuing. The previous 9 sentence on the earlier draft would say "Clearly 1 0 stating that the letter was not true in giving them 11 the facts on the PCB contamination. If possible, we 12 can temper the letter." That's changed -- the 13 "letter" is changed to "this," correct? 14 A: Yes. 15 Q: "With our plans for future fluids. However, 1 6 getting this information" -- strike that. "Getting 17 this letter into our customers' hands," which is the 18 way Mr. Bradford and Mr. Davidson first drafted it, 19 is changed in Exhibit 11 to "However, getting the 2 0 information to our customers," that's the change 2 1 that shows up, correct? 2 2 A : Yes . 23 Q: And that change is consistent with the edit 24 on Exhibit 13, isn't it? 2 5 A: It appears to be. Although, the letters are Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076506 261 1 hard to read . 2 Q: That should be our primary consideration. 3 Now, just so I understand it, this was available to 4 you when you assumed responsibility for the Pydraul 5 products as well? Documents regarding letters sent 6 out, memoranda, et cetera, this would have been 7 available to you as product manager for that 8 product, correct? 9 MR. CHAMBERS: Object to the form. 1 0 A: It might have been. 11 Q: (By Mr. Roeder) Well, if it's available to 12 us in discovery in this case, it certainly would 13 have been available to you as the person who had 14 responsibility for that? 15 A: Yes, but I cannot recall if I read it or not 16 when I moved in, because I cannot recall -- I doubt 17 if I read every conceivable piece of correspondence 1 8 in all the files, but I can't recall. 1 9 Q: Would you look to the next exhibit, Exhibit 2 0 14? There is a memorandum from Mr. Bradford to Mr. 2 1 Bergen, who is the director of this group, organic 2 2 chemicals division, correct? 2 3 A : Yes . 2 4 Q: Okay. Who is Mr. Bollinger, who it was also 2 5 sent to ? Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076507 262 1 A: I think it might have been engineering, but 2 I can't recall that. Maybe you know. Maybe it 3 wasn't. I know somebody with a similar name. So 4 I'm not sure who he was. 5 Q: All right. Anyway, December 22nd, 1971, 6 we're looking at Bradford Exhibit No. 14, TNGS 8477 7 through TNGS 8479, and it's a memorandum from 8 Bradford to Mr. Bergen, Mr. Bollinger, Mr. Hatton, 9 Mr. Herber, Mr. Johnson, Mr. Potter, Mr. Savage, Mr. 1 0 Cilari, Mr. Stark and Dr. Richard and a carbon to l'l Mr. Gossage, right? 1 2 A: Yes. 13 Q: All right. In this memorandum, Mr. Bradford 14 asks to substitute pages four and five in place of 15 those attached to the above memo and relates it to 16 his memo of December 8th, which is Exhibit 11 that 1 7 we've been looking at, right? 18 A : Yes . 1 9 Q: And if you'll compare the recipients of Mr. 2 0 Bradford's December 22nd memorandum are all of the 2 1 people who received carbon copies of his December 22 8th memorandum, isn't that right, as reflected on 2 3 that document? 24 A: I see more on the 22nd one than I do on the 2 5 8th one on number 11. Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076508 263 1 Q: Well, who is different? I see also Bergen 2 and Richard written in. 3 A : But they weren't on the original one. So I 4 don ' t know who gave them those. 5 Q : All right. So even more people? 6 A : Well, you know, seem to be more people, but 7 I don ' t know because I wasn't part of it. 8 Q : Do you see in the substituted page four for 9 the December 8th memorandum the paragraph regarding 1 0 customer notification? 11 A: Let's see. I'm now looking at -- do you 12 want me to look back at Exhibit 11? 13 Q: Compare -- compare 11 to Exhibit 13 14 now, 14 the substituted pages that Mr. Bradford wants all 1 5 these people to put with the memo and send him back 16 the other pages to him immediately. 17 A : And you're asking me? 18 Q : Do you see the paragraph in the substituted 1 9 page s that Mr. Bradford sent these people that 2 0 relates to customer 2 1 A : No . 22 Q : It's deleted, isn't it? 2 3 MR. CHAMBERS: Object to the form. 24 A : I don't know if it's deleted or not. I 2 5 don ' t see it there. Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076509 2 64 1 Q: (By Mr. Roeder) Right. But everything else 2 looks the same, doesn't it? 3 MR. CHAMBERS: Object to the form. 4 A: I haven't read it so I don't know. 5 Q: (By Mr. Roeder) Well, but you can see that 6 looking at page four of Bradford Exhibit 14, the 7 paragraph, carry-over paragraph, ends with DASCO 8 300, and that's the way it appears on Exhibit 11 as 9 it was originally sent, correct? 1 0 A: I -- I see a paragraph ending with DASCO and 11 then 300, and then it goes down to field sales. 12 Q: And field sales/product group relationship 13 is the next paragraph after the customer 14 notification paragraph in the December 8th original 15 memo which is Exhibit 11; isn't that correct? 16 A : Ye s . 17 Q: And just so the record is clear, in Exhibit 18 14 Mr. Bradford attached pages four and five, which 1 9 he asks to be substituted in place of those attached 2 0 to his - earlier memo. That's what he writes in his 2 1 memorandum, correct? 2 2 MR. CHAMBERS: You're referring to the - 2 3 MR. ROEDER: Yes, I am. 24 MR. CHAMBERS: The first page of Exhibit 2 5 14 ? Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076510 265 1 MR. ROEDER: Yes, I am. 2 MR. CHAMBERS: He's referring to this - 3 this portion of the memo on Exhibit 14 of that 4 page . 5 A : Yes. 6 Q: (By Mr. Roeder) All right. And then he 7 says "Please return the other pages to me 8 immediately." That's what Mr. Bradford requests 9 right ? 1 0 A : Yes. 1 1 Q : Okay. Whose handwriting is that at the top, 12 sir? 13 A : I have no idea-. 14 Q : No idea. It's not yours? 1 5 A : No . 1 6 Q : Do you recall -- does this -- does this 1 7 refresh your recollection now, looking at the change 18 in the memorandum that Mr. Bradford and Mr. Davidson 1 9 prepared, whether these concerns informed your 2 0 thinking when you prepared your July 17, 1972, 2 1 memorandum, which is Exhibit 119? 22 A : I can't recall that they did. ' 2 3 Q : Okay. And looking at this doesn't refresh 24 your r<^collection? 25 A : No . Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076511 266 1 Q: Did Mr. Bradford ever tell you that he 2 thought that the April 15th, 1972, letter contained 3 a statement that was false? 4 A: No, I can't remember that. 5 Q: Did he ever tell you that customers, who 6 knew that the statement in that letter was false, 7 were angry as Chevrolet Motors division was? 8 A: I can't recall him telling me that. 9 Q: Okay. Was that a concern that you had, when 1 0 you assumed responsibility for Pydrauls in 1972, 11 that customers, who were aware of a false statement 12 in a letter that had been sent out by Monsanto, 13 would have been upset about it? 1 4 A: I can't remember that situation. 15 Q: Well, this is -- that concern is nothing - 1 6 did not inform or was not going through your mind 1 7 when you say "I would propose we give some thought 1 8 as to how we distribute this letter to customers. 1 9 We've learned a few things about customer - 2 0 customer relations in the blizzard of mail that was 2 1 sent out in the past few years." That didn't relate 22 to that ? 2 3 A: I don't think so, but I can't recall. 2 4 Q: All right. Did you talk about this 2 5 statement at all with Mr. Davidson? Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076512 267 1 A : I can 1 t recall. 2 Q: How about with Mr. Gossage? 3 A : I c an' t recall. 4 Q: Can you turn your attention, sir, to Exhibit 5 122? It's probably also in that binder, in one of 6 those binders. 7 A: I think it's in the other one, isn't it? Do 8 you want this one back? 9 Q: Yeah, let me get it out of your way. I 1 0 think that's all I have for that binder. 122. 11 A: 12 2. 12 Q: I'm trying to find, sir, the letter that 13 ultimately did go out that you had planted the seed 14 for in your July 17th, 1972, memorandum, which is 15 Exhibit 119. Is, in fact, the letter which is 16 referenced on Exhibit 122, is that the letter that 17 ultimately did go out on August 3, 1 9 7 3, that began 1 8 with your memorandum of July 17th, 1972? 19 MR. CHAMBERS: Object to the form. 2 0 A: I need to read through this, because I can't 21 2 2 Q: (By Mr. Roeder) Sure. Take as much time. 2 3 A: You're asking me is a letter that's 2 4 somewhere in 122 similar to what I had suggested 2 5 back in - - Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076513 268 1 Q: No. No. What I said -- what I am asking 2 you is in the context of your July 17th, 1972, 3 letter, you suggested that Monsanto should send out 4 additional correspondence to its customers relating 5 to federal regulations. And I'm trying to find out, 6 is -- first of all, if any such letter was sent 7 out. So maybe we ought to start right there. Was 8 any such letter sent out as you suggested a letter 9 should be sent out in your memorandum of July 17, 1 0 19 7 2 ? "' 11 A: I can't remember. 12 Q: Okay. Now, if you look at Exhibit 122, 1 3 perhaps that might help refresh your recollection. 14 A: Well, let me read through this. Okay. 1 5 MR. ROEDER: Can you read back the 1 6 gue s tion ? 1 7 (The requested portion of the 1 8 record read by the reporter.) 19 A: It doesn't absolutely. I don't recollect 2 0 even now reading this whether anything was sent out 2 1 between 1972, July, when I wrote the previous thing, 22 and August '73. I really don't -- can't remember. 23 Q: (By Mr. Roeder) Well, the letter, which is 2 4 attached to Exhibit 122, is signed by you, correct? 2 5 A: The letter that on - Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076514 ____________________________________________________________________________________________ 2 6 9 1 Q: Is attached to Exhibit 122 is signed by you? 2 A: Okay. Let me look. Yes. Yes. 3 Q: And Exhibit 122 is a memorandum that you 4 sent out to a number of people starting with J. 5 Arment our ? 6 A : Yes. 7 Q: And going all the way to E. Trifner? 8 A : Yes. 9 Q: Using almost every letter in the alphabet in 1 0 between? 11 A : That' s right. 12 Q: Is that fair enough? 13 A : Yes. 14 Q: Would you agree with me that the August 3, 15 1973, letter was similar to in certain paragraphs to 16 the July 17, 1972, draft, which is attached to 17 Plaintiff's Exhibit 119? 18 MR. CHAMBERS: Let me object to the form. 19 Is there a particular letter that you have in mind 2 0 since there are multiple letters attached? 2 1 Q: (By Mr. Roeder) All right. Fair enough. 2 2 What I'm really looking for, sir, is the -- well, 23 the only draft you had prepared in your July 17, 2 4 1972, letter was the one that would have gone to 2 5 Pydraul customers -- I'm sorry. I said letter. Gore & Ferry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076515 ____________________________________________________________________________________________21 0 1 July 17th, draft -- strike that. Let me rephrase 2 the question,, because I'm saying letter when I mean 3 memorandum and I want the record to be clear. Your 4 July 17, 1972, memorandum attaches a draft letter 5 which is also dated July 17, 1972, correct? 6 A : Yes. 7 Q: Now, that letter would only go to Pydraul 8 customers, right? 9 A: My recollection, yes, that was my 1 0 suggestion, yes. 11 Q: Now, there was a letter, which was also 1 2 attached to Exhibit 122, which is dated August 3, 13 1973, over a year later, correct? 1 4 A: Yes. 15 Q: Okay. And one of those letters attached to 1 6 Exhibit 122 would also go to Pydraul customers, 17 correct ? 18 A: Yes. 1 9 Q: And that's the one that begins with the 2 0 bates number TNGS 8617, correct? 2 1 A : I'm sorry. 22 Q: Just so the record is clear, you're looking 2 3 at a piece of paper that has a bates number at the 2 4 bottom of TNGS 8617? 2 5 A : Yes. Yes. Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076516 271 1 Q: Okay. So if you compare that one, the 2 August 3 Pydraul letter, to the July 17, 1972, draft 3 letter, the first paragraphs are almost identical? 4 A: Let me get them out. It will be easier for 5 me . 6 Q: You need to -- you need to - 7 MR. CHAMBERS: Let me give you a hand. 8 THE WITNESS: This high technology. 9 MR. CHAMBERS: We're just going to take this 10 one out. 11 MR. ROEDER: You've got to pull it open. 12 Q: (By Mr. Roeder) Let's stop at the first 13 paragraph. The first paragraph is very similar 14 except for the last sentence, correct? I think it's 1 5 identical up to the last sentence of the first 16 paragraph? 1 7 A: The first sentence is the same. The -- the 18 second and third sentences are different. 1 9 Q: The second sentence in the July 17, 1972, 2 0 letter says "Since then we've gone even further and 2 1 eliminated the use of any chlorinated compounds in 22 our Pydraul fluids." Then isn't it exactly the 2 3 same? 24 A : No . 2 5 Q: "Since then we have reviewed our Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076517 272 1 formulations and taken further steps to remove all 2 chlorinated compounds from our Pydrauls." 3 A: Yes. 4 Q: Okay. The wording of the third sentence, as 5 of the July 17, 1972, draft, was "Effective July 1, 6 1972, no Pydraul fluids will be sold that contain 7 chlorinated compounds as a formulation component." 8 And what you said in your August 3 letter was 9 "Pydraul fluids containing chlorinated materials 1 0 have not been sold since mid 1972," correct? 11 A: Correct. 12 Q: Pretty much the same overall thought, 13 wouldn't you agree? . 14 A: Yes, similar. 15 Q: I mean there's no great distinctions in the 16 -- the message that you were conveying in the first 17 paragraph of the August 3 letter in 1973 as to the 18 draft in July -- on July 17th, 1972, correct? 1 9 A: Probably not, 2 0 Q: All right. In the July 17th, 1972, draft, 2 1 you had discussed a publication, dated May 14th, 2 2 1972, of the intergovernmental agency PCB task force 2 3 which recommends the discontinuation of PCBs, and 24 then you referenced a notice of a proposed rule 2 5 making on PCBs that the FDA had noted as of March Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076518 2 73 1 18, 1972, correct? 2 A : Yes. 3 Q: All right. Now, in your August 3, 1973, 4 letter you talk about the final rule that the FDA 5 had made with respect to polychlorinated biphenyls? 6 A : Yes . 7 Q: Okay. That's the final rule in the August 3 8 letter. That's the rule that was proposed in the 9 July -- that was discussed -- let me rephrase the 1 0 question so it's clear. The final rule reflected in 11 the August 3, 1973, letter is the rule that was 12 proposed on March 18, 1972, correct? 13 A: Proposed rule making. Yes, in March '72 14 they proposed -- they give notice of a proposed rule 15 making. What I see in the '73 letter is they got 16 around to making that final, and I don't know if it 1 7 was the same or had been modified in July '73 just 18 about 15 months or so later. 1 9 Q: But it's the continuation of the -- the rule 2 0 that you had noted in July '72 in your letter became 2 1 a final rule in exactly the same form or slightly 2 2 modified as of July 1973, correct? 2 3 MR. CHAMBERS: Object to the form. 2 4 A: Looking at these two letters, that would be 25 an inference, and I don't know if there was anything Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076519 2 74 1 else in between or not. I can't recall. 2 Q: (By Mr. Roeder) All right. But the July - 3 okay. Now, the August 3, 1973, letter now talks 4 about the proper disposal of chlorinated materials. 5 That was not -- that was also referenced in your 6 July 1972, letter, correct? 7 A: Where are you now? You are now what? What 8 paragraph are you in now? Are you in August '73 9 letter at the moment? 1 0 Q: Sure. Both of them. I'm trying to do them 11 both at the same time so we can compare. 12 A: Okay. You're addressing what part of the 13 letter? 14 Q: The fourth paragraph on the first page talks 15 about disposal of chlorinated materials requires 16 high temperature incineration? 17 A: Yes. 1 8 Q: Then it references Monsanto's installation 19 of a facility at its Sauget, Illinois, plant? 2 0 A: Yes. 2 1 Q: You also contain or give that same 22 information in the draft of your July 17, 1972, 2 3 letter, don't you, if not the same words but at 24 least the same thought? 2 5 A: Yes, they are somewhat similar paragraphs. Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076520 275 1 Q: All right. But the essential message was 2 the same in each of those, correct? 3 A: I wouldn't dispute that. 4 Q: All right. Now, the August 3, 1973, letter 5 contains a statement that says "Because you have 6 purchased Pydraul fluid prior to our changeover 7 activities in mid 1972, it may have contained PCBs. 8 You may wish to review your procedures and inspect 9 your facilities at this time to ensure that your 10 operations are in compliance with the new 11 regulation." Did I read that correctly? 12 A : Yes. 13 Q: Okay. The new regulation related only to 14 the uses of PCBs that might contaminate animal feed, 1 5 food and food packaging materials during their 16 manufacturing, handling and storage, correct? 17 A: That would be my understanding. I can't 18 recall everything that was in that register, but 19 that's what I wrote in August. 2 0 Q: In any event, the way you describe the 2 1 regulation in August 3, 1973, in this letter, the 22 FDA rule relates to the uses of PCBs in processes 23 where you make or produce animal food, food for 24 humans or packaging for food, right? 2 5 A : Yes. Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076521 ____________________________________________________________________________________________ 27 6 1 Q: All right. Not, for example, relating to 2 uses of Pydraul with respect to a gas transmission 3 pu rp o s e ? 4 A: I can't recall the register referring to 5 that specific application. 6 Q: Right. But you would consider that 7 different than the use in food processing? - 8 MR. CHAMBERS: Object to the form. 9 Q: (By Mr. Roeder) -- operations? 1 0 A: You know, I have no opinion on that. 11 Q: All right. In any event, your August 3, 12 1973, letter suggests that customers should inspect 13 their operations to be sure they're in compliance 14 with the regulation that relates to animal feed or 1 5 food or food packaging materials for humans, right? 16 A: I'm saying they should review their 17 procedures and inspect their facilities to see that 1 8 they're in compliance with this particular 1 9 registration of which I've given some indication of 2 0 what it is there. Whether my paragraph was totally 2 1 comprehensive or not, I don't know. I'm saying they 2 2 should read that regulation themselves and make a 2 3 judgment . 24 Q: Well, you've attached a copy of the 2 5 regulation in your letter. You say you've attached Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076522 277 1 a copy. 2 A: Okay. Yes, then I'm sure I did. 3 Q: All right. So they could immediately refer 4 back to that regulation. Okay. So whatever 5 concerns they could have, they could identify it 6 with this regulation as you had enclosed it? 7 A : Yes. 8 Q: Then in your July 1972 draft on page two, 9 you had written "In view of the foregoing 1 0 governmental actions, you may wish to evaluate their 11 effects, if any, in light of past purchases of PCB 12 containing fluids from Monsanto." You further 13 write, do you not, sir, "To assist you in carrying 14 out any investigations you may care to make, we've 15 attached a list of Pydraul purchases by your company 16 each year from 1969 to the present." That's 17 different from the way you had written the third 1 8 paragraph of the August 3, 1973, letter, isn't it? 1 9 A : Ye s . 2 0 Q: Okay. In the August 3, 1973, letter you 2 1 don't suggest that you're going to attach a list of 2 2 their purchases, do you? 23 A: That's true. But we give them the 2 4 information that they could identify that 2 5 themselves . Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076523 278 1 Q: But you at Monsanto had that information, 2 didn't you? 3 A: We had information, yes. 4 Q: And then the next sentence in the third 5 paragraph of this letter says "To assist you in any 6 investigations you may care to conduct, I've 7 attached a list identifying the Pydraul fluids which 8 contain chlorinated ingredients and those which do 9 not." That's the same point that you tried to make 1 0 in your July 17, 1972, draft; isn't that correct? 1 1 A: Yes. Well, except there I say PCB and 12 non-PCB, and I broaden it to be chlorinated for this 13 one . 14 Q: So it's almost as if you said -- if you 15 simply deleted the phrase that said "We have 1 6 attached a list of Pydraul purchases." So if you're 1 7 looking at the July 17 draft, "To assist you in any 1 8 investigations you may care to make, we have 1 9 attached a list," and then you just eliminated that 2 0 clause in between, right? 2 1 A : Yes. 22 Q: Okay. Is that a decision you made? 2 3 A: I cannot now recall. 2 4 Q: But you would have been involved in it, 25 wou1dn' t you? Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076524 279 1 A: In all probability, yes. 2 Q: Would Mr. Gossage have approved that 3 decision? 4 A: Mr. Gossage may have seen the letters before 5 they went out. I think probably, but I cannot 6 specifically recall that now. 7 Q: How about Mr. Papageorge? 8 A: I would think so but, again, I can't 9 specifically recall. 1 0 Q: Both of those individuals received drafts of 11 your letters, didn't they? 1 2 A: Yes, they did. 13 Q: Who was Mr. Stapleton, J. F. Stapleton? 14 A: I think J. F. Stapleton was in our legal 15 department . 16 Q : A 1awye r ? 17 A : Yes. 1 8 Q: Mr. Bergen was your boss? 1 9 A: Well, I reported to -- directly to Tom 2 0 Gossage. 2 1 Q Who reported to Bergen, right? 2 2 A Exact 1y. 2 3 Q So he was the senior guy in the division? 24 A Yes. 2 5 Q So the only people who got your July 17 Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076525 280 1 letter were Davidson and Johnson who were in sales 2 in that division, right? 3 A : Yes. 4 Q: Papageorge, who was the -- in charge of the 5 -- in charge of PCBs, he was the coordinator? 6 A: Yes, with the agencies and all of that. 7 Q: Your boss, your boss' boss and the lawyer? 8 A: That's right. 9 Q: Did it concern you that -- that your July 17 1 0 draft letter was not getting out quickly? 11 A: I can't recall. 12 Q: Well, would it be your practice to follow up 13 on memoranda that you had sent to people if you 14 hadn't heard back from them in a week, week and a 15 half, two weeks? 16 A: Probably. But in this case, I cannot recall 1 7 what went on afterwards. I mean I see the two 1 8 things, and I cannot today recall what took place 1 9 between when I wrote this obviously on July the 17th 2 0 and what happened between August the 3rd. You know, 2 1 I have no recollection. 22 Q: Sure. So what I'm trying to find out, 23 because you testified you have no recollection of 24 that. It would be your practice, wouldn't it, that, 2 5 if Gossage hadn't gotten back to you on something Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076526 ____________________________________________________________________________________________ 2 8 1 1 that you wanted to get out, you'd call him up and 2 say "Tom, where are we" on whatever it is that you 3 wanted to get out? 4 A: Normally, yes. 5 Q: Okay. And that would also be the same with 6 Mr. Papageorge, right? 7 A : Yes. 8 Q: And would you expect Mr. Gossage to 9 communicate that point to get the approval of Mr. 1 0 Bergen, or would you call him directly? 11 A: I would have left it to Gossage to get 12 Bergen's approval. 13 Q: Okay. But if Gossage says it's okay, you're 14 assuming he's cleared it with Bergen? 15 A: Absolutely. 16 Q: How about Stapleton? Would you have called 1 7 Stapleton directly to get his approval on something 18 that you had sent for his approval? 1 9 A: Not necessarily. 2 0 Q: Okay. But you would have relied upon 2 1 Gossage to have gotten the approval from Stapleton? 22 A: I'm not sure. You know, I can't -- it 23 varied. You know, I can't recall what happened in 2 4 this case. 2 5 Q: I understand that. But I'm just saying, in Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076527 2 82 1 the ordinary course at Monsanto, you wanted to get 2 something out, and you were instructed or felt 3 prudent that somebody in legal ought to approve it, 4 Stapleton, for example, here? 5 A: Yes. 6 Q: Would it be your practice to call him up 7 directly and say, as you would with Mr. Gossage, 8 "Where are we on this"? 9 A: I think it would have been. Whether I did 1 0 in this case, I don't know. It probably would have 11 been . 12 Q: You didn't -- you didn't feel that you had 13 to go through a channel to get to Stapleton. You 1 4 could call him directly? 15 A : That 's right. 16 Q: While we're on the subject, why don't we 1 7 mark this as the next exhibit. 18 A: So are we finished with these for the 1 9 moment ? 2 0 Q: We are. And I'd like to mark this as an 2 1 exhibit ? 22 A: So should I put this back in the place where 23 it was? 24 Q: Yes, put that exhibit back from whence it 2 5 came . Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076528 283 1 A : Okay. 2 MR. ROEDER: Could you mark this as the next 3 exhibit, please? I think we're on Exhibit 215. 4 Does that sound right? 5 (Plaintiff's Deposition Exhibit No. 6 215 marked for identification.) 7 Q: (By Mr. Roeder) Exhibit 215, sir, is your 8 letter dated August 3, 1973. It says "Dear sir" and 9 has your signature on the second page, right? 1 0 A : Yes. 11 Q: And this is the same letter that we've been 1 2 looking at that was attached to Exhibit 119, right? 13 Would you like to see it to confirm it is? 1 4 A: I'm sure it is. 1 5 Q: All right. And the production numbers are 1 6 TNGS 2837 through TNGS 2851. And if you notice, 17 sir, attached to this document is a list of Pydraul 1 8 fluids which contain chlorinated ingredients? 19 A: Yes. 2 0 Q: It's at 2839. This was included in the 2 1 letter that was sent out, right? 2 2 A : Yes . 2 3 Q: Okay. Then current Pydraul fluids do not 2 4 contain chlorinated ingredients. That was the list 2 5 that was sent out. There's an incineration service Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076529 284 1 letter. This went out with that mailing, right? 2 A : Yes. 3 Q: And also the "Federal Register," Department 4 of Health Education and Welfare, Food and Drug 5 Administration ruled that you had discussed, right? 6 A : Ye s . 7 Q: So this was the letter that was sent out, 8 wasn't it? 9 A : Yes. 10 Q: Now, as we have compared the July 17 draft 11 with the August 3, 1973, draft sent out a year 12 later. 13 A : Yes. 14 Q: And the testimony we just had. Does this 15 refresh your recollection as to whether or not this 16 August 3, 1973, letter was the letter that was 17 suggested in the July 17, 1972 memorandum? 1 8 A: It could well be. You know, based on the 1 9 letters I've seen, it would have indicated it is. 2 0 But I-- you know, I cannot just say 100 percent 2 1 sure . 2 2 Q: Okay. Assuming, for the sake of this 2 3 question, it is and there are similarities, I think 24 you'll agree, between the July draft and this draft? 2 5 A: Yes. Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076530 285 1 Q: Why did it take a year to send out? 2 MR. CHAMBERS: Object to the form. But go 3 ahead and answer if you're able. 4 A: I, you know, cannot now specifically recall, 5 but certainly the reference I made at the time in my 6 '72 draft referred to a proposed rule making and as 7 I look through the -- what's in the -- what I had - 8 what is in the August '93 letter. 9 Q: (By Mr. Roeder) '73 letter. 1 0 A: '73 letter. The "Federal Register" didn't 11 get around to making the final rule until, you know, 12 virtually a year later. So one consideration could 1 3 be -- and I'm not saying it was the only one. But 14 one would be wait until we see what the authorities 15 do, in fact, come up with so that -- because when 16 they publish a proposed rule making, my 17 understanding of that is that that gives time for 18 interested parties, whoever they may be, to come 19 forward and say "Well, no, we think this is wrong." 2 0 So there's a period where comment is accepted and 2 1 digested and so on, and that might have changed. 2 2 You know, what came out finally a great deal which 23 would have made what was being proposed in July not 24 necessarily helpful or accurate. 2 5 Q: Well, if you gave the customers notice of Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076531 2 86 1 the proposed rule in 1972, they would have that much 2 more time to prepare for any potential rule that 3 would be implemented over a year later; isn't that 4 correct? 5 MR. CHAMBERS: Object to the form. 6 A: I think that would be speculation. As I say 7 again, I am not absolutely sure that nothing was 8 done between July '72 and '73. It may not have 9 been. I cannot recall. 1 0 Q: (By Mr. Roeder) So but in any event, you're 11 uncomfortable speculating as to how Monsanto's 1 2 actions would or would not give customer lead time 13 with respect to government regulation that 14 ultimately came down the pike? 1 5 MR. CHAMBERS: Object to the form. 16 Q: (By Mr. Roeder) You understand where I'm 17 coming from when I ask this question? 18 A: No, I'm not sure I am. 19 Q: Okay. Well, when I asked you why did you 2 0 wait, you said -- couldn't you have given your 2 1 customer a year's lead time, you didn't want to 22 speculate as to - 2 3 A: I'm saying that's one possible scenario. 24 I'm saying that now having looked at what I said - 2 5 looked at the date of that final one and what was Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076532 287 1 available to me at the time of my July '72, which 2 was there was a proposed rule making in the works 3 and here is the final one. I don't know whether 4 that was a factor if there was a delay. Today I'm 5 not sure if there was a delay between July of '72 6 and 1973 before a letter was sent out. And I'm 7 speculating today that that might have been one of 8 the reasons, but I cannot recall what the reasons 9 were or what transpired. 1 0 Q: Well, you believed, once there was a notice 11 of a proposed rule making from the FDA, that a rule 12 was going to be made, didn't you? 13 A: Not necessarily. It said it was being 14 considered, and that this was their way of letting 15 people know, I think, that they could make comments 16 and so on and so forth. That's my recollection of 17 what the -- how the process worked. 1 8 Q: Well, as of July 1972, hadn't Monsanto 19 already made the decision not to sell Therminol FR 2 0 for food related uses? 2 1 A: We had done that, yes. 2 2 Q: So you thought it would be improper for 2 3 continued use and purchases of Therminol FR with 24 PCBs as they would be used for food, right? 2 5 MR. CHAMBERS: Object to the form. Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076533 288 1 A : Yes . 2 Q: (By Mr. Roeder) Okay. And so if the FDA 3 were going to make the rule a proposed, it would 4 have been consistent with what you thought the 5 proper policy should have been regarding PCBs and 6 food related operations? 7 MR. CHAMBERS: Object to the form. 8 A: I would have had no objection. I would have 9 had no objection to the proposed rule as best I 1 0 recall . 11 Q: (By Mr. Roeder) But you thought Monsanto's 12 decision not to sell PCB fluids in the Therminol 13 area for food related uses was proper? 14 A : Yes. 15 Q: Okay. And what the FDA was doing was giving 1 6 notice of a rule that would-be consistent with 1 7 Monsanto's previously made rule, right? 1 8 MR. CHAMBERS: Object to the form. 19 Q: (By Mr. Roeder) They were going to -- let 2 0 me rephrase the question. What the FDA suggested in 2 1 their proposed rule making was that you couldn't use 2 2 PCBs in food related processes, right? 2 3 MR. CHAMBERS: Object to the form. 2 4 A: I think they said that there shouldn't -- I 2 5 don't know if they said you couldn't use it. My Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076534 ____________________________________________________________________________________________ 2 8 9 1 recollection was that they were talking about in the 2 limits of PCBs that could be present. 3 Q: (By Mr. Roeder) All right. But they were 4 limiting the use of PCBs in food related operations, 5 correct? 6 MR. CHAMBERS: Object to the form. 7 A: By setting, you know, limits on how much 8 PCBs, yes, you could say they were. 9 Q: (By Mr. Roeder) Okay. And you had already 1 0 established a policy of limiting PCBs in food 11 related industries by not selling Therminol FR, 12 correct? 1 3 MR. CHAMBERS: Object to the form. 14 A: You could say that, yes. I mean we were 15 saying "From now on we won't be supplying any. So 16 if there are PCBs out there, we're not going to be 17 adding to it by selling." 1 8 Q: (By Mr. Roeder) And you weren't going to 19 make any new fills? 20 A: That's right. Exactly. 2 1 Q: And if anyone wanted to top up, you were 22 going to sell them, if they wanted, additional fluid 2 3 that would be compatible with the PCBs, but would 2 4 not contain PCBs, right? 2 5 A : That ' s right . Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076535 290 1 Q: So you were out of the PCB Therminol 2 business as it related to food products? 3 A : Ye s . . 4 Q: Okay. So the FDA's proposed rule was 5 consistent with the policy that Monsanto had; isn't 6 that correct? 7 MR. CHAMBERS: Object to the form. 8 A: Well, it was to some extent possibly an 9 endorsement. We did -- I did not and, to the best 1 0 of my knowledge, I don't know if anybody within 11 Monsanto had gone, you know, and suggested this rule 12 come out. I think that came from the federal 13 government who had established a task force on its 14 own, and we gave them'information . We tried to be 1 5 as open and cooperative as we could giving them 1 6 information. You know, if there's any implication 1 7 in your statement that, you know, somehow this was 1 8 Monsanto having developed the rule and then said to 19 the federal agencies "You bless it," no, that - 2 0 that didn't happen, as best I can recall. 2 1 Q: (By Mr. Roeder) No. No. The question 2 2 was: Their rule was consistent with the policy that 2 3 you had adopted, their proposed rule? - 2 4 MR. CHAMBERS: Object to the form. 2 5 Q: (By Mr. Roeder) -- as you understood that Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076536 291 1 rule? 2 MR. CHAMBERS: Object to the form. 3 A: It certainly wasn't incompatible with it. 4 Q: (By Mr. Roeder) Okay. It was not 5 incompatible. It was consistent? 6 MR. CHAMBERS: Object to t.he form. 7 Q: (By Mr. Roeder) Would you agree with me on 8 that ? 9 A: Well, except the point I'm trying to make is 1 0 that they went one step further and said that, you 11 know, there were -- you know, that it was up as long 1 2 as it didn't exceed a certain level. And that was 13 not something that Monsanto -14 Q: So they didn't go as far as you did, as far 15 as you wanted to go? 16 A: No, I'm not saying that. I think, from a 1 7 practical standpoint, you have to set some measure 18 somewhere, you know. As we got to talking 19 yesterday, I think, you know, zero is something that 2 0 you cannot -- you know, zero meaning this. You've 2 1 got to be careful. Zero is -- is not, you know, 2 2 something that you can actually measure. 2 3 Q: All right. So didn't you expect, though, 2 4 that, when a proposed rule was issued and notice of 2 5 a proposed rule was published in the "Federal Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076537 ____________________________________________________________________________________________ 2 92 1 Register," that some kind of rule regulating the use 2 of PCBs would ultimately be put in place? 3 A: I can't think what I thought at the time, 4 but I don't think it's a given that because they 5 publish that proposed rule that it would actually 6 happen. At the time, I thought it probably -- it 7 would, but I mean I wouldn't bet on it. 8 MR. ROEDER: All right. Let's take a couple 9 minute break. 1 0 (Discussion off the record.) 1 1 MR. ROEDER: Let's mark this as the next 1 2 exhibit. 1 3 (Plaintiff's Deposition Exhibit No. 1 4 216 marked for identification.) 1 5 Q: (By Mr. Roeder) Okay. Exhibit -- is this 16 2 16? 17 A: 2 16, yes. 1 8 Q: Plaintiff's 216 is a letter? 1 9 A: I've got two copies. Is that intentional or 2 0 am I - 2 1 Q: I only want you to have the one that has the 2 2 TNGS number. I think they're the same exhibit. 2 3 MR. CHAMBERS: I think I got -- I think I 2 4 got the TRAN version. Thank you. 2 5 Q: (By Mr. Roeder) Okay. That way we avoid Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076538 ____________________________________________________________________________________________ 2 9 3 1 any questions regarding the designation. Okay. It 2 bears TNGS number 4 094 to 4 095, and this is a letter 3 to Mr. Henry Bartz at Tenneco Chemicals in Lobeco, 4 South Carolina. Did you ever talk to Mr. Bartz 5 yourself? 6 A: Not that I recall. 7 Q: Okay. Now, the letter to Mr. Bartz, dated 8 November 22nd, 1971, recommends that he drain 9 Therminol FR from the system and replace it with a 1 0 non-PCB Therminol 66. Was this pursuant to a policy 11 you had adopted in the heat transfer area? 12 MR. CHAMBERS: Object to the form. 13 Q: (By Mr. Roeder) To send out letters like 14 this to customers? 15 A: I recall that we were getting a lot of 16 inquiries and, yes, I think there was a general 1 7 policy established as to how to handle inquiries, 1 8 yes. 1 9 Q: Who was your counterpart in the Pydraul area 2 0 at this time? Who was product manager? 2 1 A: I cannot recall. 2 2 Q: Because you didn't take -- you didn't get 23 Pydrauls until approximately seven months later? 2 4 A: Exactly. So I don't know. 2 5 Q: Mr. Johnson, Mr. Bradford? Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076539 2 94 1 A: It might have been one of those. 2 Q: Do you know what happened in response to 3 this letter? 4 A: I can't recall now. 5 MR. ROEDER: That's all I have for that. 6 Would you mark this as the next exhibit, please? 7 (Plaintiff's Deposition Exhibit No. 8 217 marked for identification.) 9 Q: (By Mr. Roeder) Exhibit 217, sir, is a 1 0 memorandum from James J. Roder to W. B. Papageorge, 11 dated December 8th, 1971, and you are carboned on 12 that letter, correct? 13 A: Yes. 14 Q: And for the record, you were carboned on the 1 5 previous letter Plaintiff's Exhibit 216, weren't 16 you ? 1 7 A: Yes. 18 Q: So you would have received that in the 19 ordinary course? 2 0 A : Yes. 2 1 Q: And you would have received Plaintiff's 22 Exhibit 217 in the ordinary course as well, correct? 23 A: I'm sorry. I would have received? 24 Q: Plaintiff's Exhibit 217 in the ordinary 2 5 course of business at Monsanto? Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076540 2 95 1 A : Yes. Yes. 2 Q: Exhibit 217 references a report that the EPA 3 had contacted Tenneco regarding their use of PCB 4 material as a heat transfer fluid in offshore 5 platforms. Do you recall this? 6 A: I don't recall. 7 Q: Okay. And looking at that statement doesn't 8 refresh your recollection concerning that? 9 A: No. 1 0 Q: All right. Mr. Roder also suggests to Mr. 11 Papageorge whether the EPA would tell Mr. Papageorge 12 which oil companies had been contacted/ who they 13 contacted and their impression about the future use 14 of PCB material. Do you recall Mr. Papageorge ever 15 getting back to you or Mr. Roder regarding whether 16 or not he would contact or thought you should 1 7 contact the EPA to find out who was using PCBs? 18 A: I can't recall. I can't recall. 19 Q: Would that have been the policy? Would it 2 0 have been consistent with your understanding of 2 1 Monsanto's policy that someone would contact the EPA 2 2 to find out which companies they had contacted, 2 3 which companies the EPA had contacted regarding 2 4 their use of PCB? 2 5 A: I have no way of - Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076541 296 1 MR. CHAMBERS: Object to the form. Now you 2 can answer. 3 A: I have no way of knowing now whether Mr. 4 Papageorge would have considered that appropriate or 5 not. Whether he did it, I don't -- I just don't 6 recall anything about it. 7 Q: (By Mr. Roeder) You were familiar with your 8 policies at Monsanto as of December 1971 concerning 9 whether or not an employee would contact the 1 0 government to learn information about what the 11 government was doing with respect to customers, 12 we re n't you ? 13 MR. CHAMBERS: Object to the form. 1 4 A: I -- you know, I don't know about a policy. 1 5 Q: (By Mr. Roeder) Was there such a policy? 16 A: I can't recall. 17 Q: So if you can't recall that there was such a 18 policy, you don't know whether this would be 1 9 consistent or inconsistent with Monsanto's policy? 2 0 I mean I just I want to make my record clear. 2 1 A: True. I -- I can't recall anything about 22 this particular situation. 2 3 Q: All right. And you can't recall whether it 24 was a practice or a procedure that Monsanto would 2 5 contact government to find out who the government Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076542 ____________________________________________________________________________________________ 2 97 1 had contacted regarding the PCB use of their 2 materials, correct? 3 A: I -- I didn't have responsibility for 4 contacting the -- the government directly in any of 5 this. That was Mr. Papageorge 1 s area. 6 Q: Okay. Now, Mr. Roder says "We could use 7 this information in promoting Therminol 66 as a 8 replacement both for new and existing systems." 9 What is your understanding of his purpose in making 1 0 that point? 11 ' MR. CHAMBERS: Object to the form. 12 A: Mr. Roder was a salesman. But as to what he 13 had specifically had in mind when he wrote this, I 14 have no of knowing. 1 5 Q: (By Mr. Roeder) Well, if the PCB -- strike 1 6 that. If the EPA had an impression about the future 1 7 use of PCB material which as he reflects here, which 1 8 would be that you couldn't use it, wouldn't that 1 9 tend to increase your ability to sell Therminol 66? 2 0 MR. CHAMBERS: Object to the form. 2 1 MR. ROEDER: What's the basis for the formal 2 2 obj ection? 2 3 MR. CHAMBERS: It assumes facts not in 2 4 evidene e . 2 5 MR. ROEDER: It's cross-examination. Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076543 ___________________________________________________________________________________ 29 8 1 A: I have no way of knowing what was in Jim's 2 mind when he wrote this. He wrote it, sent it to 3 Papageorge, which was perfectly appropriate. He 4 copied me in. And I can't recall discussing it with I 5 Roder, with Papageorge or having seen a response. 6 Q: (By Mr. Roeder) Well, you were aware at the 7 time, weren't you, that if -- strike that. At the 8 time, Monsanto was attempting to sell Therminol 66, 9 correct ? 1 0 A : Yes. 11 Q: And isn't it also true that, if customers 1 2 had to completely drain out their systems of 13 Therminol FR and then put in Therminol 66, you would 14 sell more Therminol 66, correct? 1 5 MR. CHAMBERS: Object to the form. 1 6 A: Yes, we had competitors so there was -- at 1 7 least we would have an opportunity. Whether we 1 8 would get it or not. 1 9 Q: (By Mr. Roeder) Okay. But it would be your 2 0 understanding that the requirement that -- that a 2 1 customer would have to drain its system would then 2 2 create the possibility that they'd have to buy 2 3 replacement fluid for the fluid they drained? 2 4 A: Or find another way to do their heating. 2 5 Q: Okay. By nonthermal operation? Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076544 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 99 A: Exactly. So they would have -- they had - they had a range of options that they would probably consider. Q: All right. Okay. Was it your experience, at the time in 1971, that customers were, in fact, draining Therminol FR from their systems? MR. CHAMBERS: Let me ask that that question be read back, please. (The requested portion of the record read by the reporter.) MR. CHAMBERS: I apologize. I misheard your question. You can answer. A: My recollection is that we didn't totally discontinue sales. I seem to recall yesterday looking at correspondence that indicated the date that we told them that we would be discontinuing sales was later than December the 8th. So, therefore, as of December the 8th, I'm not sure -- I cannot recall now what I -- anything about what the actual status of draining or not draining was. Q: (By Mr. Roeder) Maybe I can help you on that date. What I'm looking for, sir, is a -- to help refresh your recollection, is a cable or a fax or something like that that was sent out indicating what the last date was that you would sell PCB for Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076545 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 300 nondielectric uses? A: And I thought that was just a few days before Christmas or something 1971. The date of December 17th sticks in my mind. Q: Okay. That's -- that's your best ion of when A: When we said no to all PCB . Sorry. No to all PCB. No to all Therminol FR sales. Q: Okay. So we can move this along, this letter or this memorandum from Mr. Roder, dated December 8th, 1971, would be approximately a week before your best recollection is that decision was made to get out of all PCB business other than A: Well, at that time, I would have been involved in -- in PCBs, all PCB containing heat transfer fluids. Q: All right. Okay. So as far as your responsibility was concerned as of that date, you weren't selling PCBs anymore, because you had the Therminol at that point? A: Yes, except for the dielectrics. And there was some discussion as to whether there might be some circumstances where there might be a request for an extension as I recall. And I don't know -- I Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076546 ___________________________________________________________________________________ 3 0 1 1 cannot recall now exactly what -- what that was. 2 Effectively or to all intents and purposes, when we 3 went out on that 17th or whenever that later date in 4 December was, that was a termination of PCB heat 5 transfer fluids. 6 Q: Okay. Well, in fact, I have an exhibit 7 right he re . 8 (Plaintiff's Deposition Exhibit Nos. 9 218, 219 marked for identification.) 1 0 Q: (By Mr. Roeder) Sir, Exhibit 218 is a 11 memorandum from W. S. Clark, dated December 16th, 12 1971, to Messieurs Bechtold, B-E-C-H-T-O-L-D, 13 Fording, McNamara, Sutton and Wilde, W-I-L-D-E, and 14 you're a carbon copy recipient, right? 15 A: Yes. 16 Q: December -- let me continue the 17 identification. It has bates numbers TNGS 4609 to 1 8 TNGS 4623. Your handwriting is on Exhibit 218, 1 9 isn't it? 20 A: Yes, that looks like -- that looks like 2 1 mine, yes. 2 2 Q: All right. Now, Exhibit 219 is a memorandum 2 3 from the Industrial Chemicals Company St. Louis to 2 4 directors of marketing, field sales directors, field 2 5 sales managers and district sales managers, and this Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076547 ________________________________________________________________________ ___________3 0 2 1 has production numbers TNGS 4838 through 4858. This 2 is the decision that you were talking about; isn't 3 t ha t correct? 4 A : Yes. 5 Q: Okay. Exhibit 219 references a board 6 meeting on December 9, 1971, in which "Monsanto's 7 board of directors approved corporate Monsanto 8 decisions previously takes as follows:" That was 9 "One, to terminate all sales of PCB fluids for use 1 0 in heat transfer applications by formal notice to 1 1 all customers." That's what you were referring to; 1 2 isn't that right? 13 A : Yes. 14 Q: So that's what would directly relate to your 15 area of responsibility, correct? 16 A: Yes. 17 Q: Okay. "To immediately implement a plan to 18 terminate all sales of polychlorinated terphenyls 19 March 31, 1972, for plasticizers." That was also 2 0 within your jurisdiction? 2 1 A : Yes. 22 Q: All right. And the third one "The sales of 2 3 PCB fluids for transformer or capacitor use will be 24 dependent upon the receipt of agreements acceptable 2 5 to Monsanto holding Monsanto harmless from legal Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076548 ___________________________________________________________________________________ 3 0 3 1 liability associated with the use of PCBs in 2 transformers and capacitors from customers whose 3 financial responsibility makes such agreements 4 meaningful in Monsanto's opinion." It also related 5 to your area of responsibility? 6 A: Yes. 7 Q: Okay. You had signed this memorandum, 8 didn't you? Your signature appears on page six? 9 A : Yes. 1 0 Q: Okay. And Willis Clark who is he? 11 A: He was in the plasticizer group doing 12 something similar in the specialty area, as I 13 recall, that I would have done sometime in the 14 period '66 to '70 when I was in plasticizers, a 15 similar type job. 1 6 Q: And Mr. Clark also signed this memorandum, 17 correct? 1 8 A: Yes. 1 9 Q: And so he took -- basically took the 2 0 position you had at that point? 21 A : That's right. 22 Q: Okay. On page four of the memorandum, 23 there's a reference to key Monsanto customers. For 2 4 the heat transfer group, for example, you could let 2 5 the key Monsanto customers know by special Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076549 ___________________________________________________________________________________ 3 04 1 notification, which would either be by mail, by 2 phone or by phone plus personal visit (with letter 3 hand carried), correct? 4 A: Yes. 5 Q: Okay. Why -- why the distinction? 6 A: I cannot remember now why we made a 7 distinction. 8 Q: Did it relate to the ability or the size of 9 the customer and whether they're a big customer or a 1 0 little customer, good customer? 11 A: I cannot say. I recall that, as this was 1 2 being prepared, there was -- as I recall, there were 13 conversation, you know, input from other parts of 14 the company totally unrelated to fluids, you know, 1 5 saying, you know, they had become aware that, you 1 6 know, this was being discussed internally saying 17 "Well, if you do something, you know, we would like 1 8 to know about it, because we have, you know, certain 1 9 negotiations going on," and et cetera, et cetera. 2 0 So I think, as best I recall, there was an element 2 1 of what the different preferences would be for how 2 2 they wanted this communicated. 23 MR. ROEDER: Can I have the answer read 2 4 back ? 2 5 (The requested portion of the Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076550 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 record read by the reporter.) Q: (By Mr. Roeder) As I understand your 3 05 mail or by phone might depend upon what someone else in the company may have had going with that customer in terms of either business relationships? A: That's vaguely my You know, I cannot -- looking back almost 25 years later, I cannot recall . Q : All right . A: There must have been some reason, but I - you know, I cannot pin it down today. Q: All right. By phone plus personal visit, you don't know why some customers were put in that category or not? A: I can't recall. I do recall myself going to a few customers with whoever, you know, account responsibility in other areas at their request, but I -- I'm very, very fuzzy and vague on it today. Q: Do you recall one of the customers you went to? A: One I do recall is Lubrizol. Q : Lubrizol? A: And the reason I recall that is that I got caught in a blizzard in Cleveland and couldn't get Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076551 306 1 home . 2 Q : Okay. 3 A: That -- that sticks in my mind. 4 Q: But you can't recall any others? 5 A: I can't. 6 Q: And you don't recall going yourself to speak 7 with anyone at Tenneco? 8 A: I can't recall that. 9 Q: Now, the letter that was sent to the 1 0 Therminol customers was the letter that was attached 11 to this memorandum beginning with the production 12 number TNGS 4846, correct? 1 3 A : Yes . 1 4 Q: This letter did not go to the Pydraul 15 customers, did it? 1 6 A: I don't know. I don't -- you know -- I just 17 1 8 Q: You have no knowledge that it went? 1 9 A: I have no knowledge it went to Pydraul. 2 0 Q: And it doesn't contain the words Pydraul in 2 1 here, does it? 2 2 A: Not that I can see, no. 23 Q: Now, starting on page 5 8, 54 the TNGS 24 production number, there's a listing of key 2 5 plasticizer accounts. Were these the largest Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076552 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 07 plasticizer accounts? A: I don't know whether they were or they weren't. I can't recall. Q: All right. Let's go to the next page. Heat transfer accounts. A : We're on 55, 5 6 now are we ? Q : We're 58, 55. A : 855 and 856. Q : Right. A : We're on 855 a t the moment. 854 you had asked me about earlier Q : Right . A : I don't know if these were the largest or not. Q: On the heat transfer accounts, these would be accounts that you would have looked at on a regular basis in discharging your duties as product manager, correct? A: We selected only these key customers who bought FR in '70 and '71, and we are sending letters to customers who show up in '68 and '69 IBM runs some of whom are key accounts to corporate Monsanto for reasons other than FR -- would have been for reasons other than FR fluids. Since these key accounts have not bought any fluid in 1970 and '71, Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076553 ___________________________________________________________________________________ 3 0 8 1 we believe the Therminol FR systems are very small, 2 under 50 gallons. That was just an inference on our 3 part . 4 Q: Now, there's a reference on the same thing 5 just where you stopped. It says "Consequently we 6 would not expect our formal notification letter to 7 cause a major upset in Monsanto customer relations." 8 That's how that paragraph ends, correct? 9 A : Yes. 1 0 Q: What did you mean by that when you wrote the 1 1 memorandum ? 1 2 A: It was an opinion in my -- it looks as if it 1 3 was an opinion. I cannot -- you know, I cannot 14 remember my thought process at the time I put it 1 5 down . 1 6 Q: Well, was there a concern that a formal 17 notification letter would cause a major upset at 18 certain customers while it may not cause it at other 1 9 cust ome rs ? 2 0 A: I'm having difficulty, you know, going back 2 1 in time to this date and thinking what my thought 2 2 process was, but -- so I cannot recall what I was 2 3 actually thinking. 24 Q: Well, you have no recollection of there 2 5 being a concern that some customers would be upset Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076554 __________________ '________________________________________________________________ 3 0 9 1 by getting a letter that said you weren't going to 2 sell the product that they were buying? 3 A: I think -- I think, in general, that would 4 have to be a -- you know, that was a concern that 5 this, to a greater or lesser extent, it interrupted 6 their operations. Some within that customer might 7 say "Well, if Monsanto does it to us in this area, 8 you know, why should we, you know, buy other things 9 from them?" You know, that's -- that was again 1 0 speculation. One didn't know they would take that 11 position, but it was a possibility. 12 Q: And you always wanted to maintain as good of 13 customer relations as you could? 14 A : Absolutely. 1 5 Q: Now, the next list is key accounts notified 1 6 by phone with follow-up formal notification letter. 17 By the way, Tenneco is not listed in the number one 1 8 key accounts where a formal notification letter was 1 9 accompanied by a cover letter, was it? 2 0 A: I don't see Tenneco here, no. 2 1 Q: Okay. Tenneco is not a member -- one of the 2 2 key accounts notified by phone with follow-up formal 2 3 notification letter that's listed here, is it? 24 A : No . 2 5 Q: Number three, the phone calls with personal Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076555 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 10 visits by St. Louis specialty products group management, Tenneco is listed there, isn't it? A : Yes. Q: Who from St. Louis on this specialty products group management was to visit Tenneco? A: I cannot recall. Q: Do you know if, in fact, that was done? A: I cannot recall. Q: Well, the specialty products group management that would have gone was listed here at the top, right, I'm sorry, on page four, Gossage, Johnson, you or Bergen? A : Yes . Q: Mr. Johnson didn't have any responsibility -- did Mr. Johnson have responsibility to you as well? Did he report directly to you? A: As best I recall, he never reported directly to me. He reported to Gossage as I recall. Q: Okay. But he was in the heat transfer area as well, or was he in the Pydraul area? A: I cannot -- we went through several, you know, rearrangements of one time having, you know, groups of salespeople just associated with a particular group of products like dielectrics, you know, distinct difference. I vaguely remember that Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076556 ___________________________________________________________________________________ 3 11 1 there was at some point, maybe possibly, you know, 2 it was broader than that. There was a sales 3 director person in St. Louis that had responsibility 4 of fluids. I could be wrong on that, because I - 5 it's -- it's a fuzzy recollection, and I cannot pin 6 particular times on it now. 7 Q: But under this memorandum the senior people 8 who are supposed to go would be one of you four, 9 1 0 A: Correct. And it would -- this would 11 indicate to me that he might have had responsibility 12 for fluids other than Pydraul at that time in the 13 sales function. 14 Q: When a personal visit had been followed up 1 5 as was envisioned in this memorandum, in the 1 6 ordinary course would there be a trip report of the 17 visit prepared? 1 8 A: I cannot say absolutely for sure. 1 9 Q: But, in general, a trip report would be 2 0 prepared when somebody had gone to visit a customer; 2 1 isn't that true? Wasn't that the practice? 22 A: That would have been the normal practice. 2 3 Whether there were exceptions, it's hard to say. 24 Q: You would have expected or would it have 2 5 been your practice yourself, sir, that, if you had Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076557 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 12 gone to visit, say. General Motors or Ford Motors - make sure we take one as listed as the -- Ford Motors is listed on number three as someone to whom a formal notification letter will be hand carried. When someone brought that to Ford, if they did bring it to Ford, you would expect there to be a trip report prepared about that so people back at Monsanto would learn what Ford was thinking about this issue, and they would know how to handle themselves; isn't that correct? A: My recollection would have been that, yes, I would have done that. Although, my general policy -- whether I would always have done it, you know, I cannot for sure say now, but that would have been my general practice. I cannot speak for the others. Q: Well, the people who reported to you? A: The people that reported to me. Q: Wasn't your order or your policy that you wanted to see a trip report when they went to see an important customer? A: I would have -- yes. Again, I wouldn't know that they always did it, but that would have been my general policy. None of these other people -- these three people I don't -- well, certainly Bergen and Gossage didn't report to me, and Johnson -- Johnson Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076558 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 13 I'm almost certain never did either. Q: As a practical matter, if Johnson went with Bergen, Johnson would write up the sales report, correct? A: Possibly. You know, I'm not sure how they would have worked between each other. (Discussion off the record.) MR. ROEDER : This has already been marked. I have another copy for you. MR. CHAMBERS: Thank you, sir. Q: (By Mr. Roeder) By the way, sir, as you're looking at Exhibit 116, did you look at Exhibits 217 or 218 or 219 in preparation for your testimony? A: I seem to recall seeing the one with my handwriting. Q: That would be 218? A: 218. Possibly I saw 217. I'm not so sure. I think -- yes, I think I did also see 219. Q : How about 216? Did you look at this one right here? Is that a document you looked at in preparation for your testimony today? A: It may have been. I'm not sure about this particular one. I'm not so sure about this one. There was one I saw where Tenneco was part of our trip report that Roder wrote. So I cannot recall Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076559 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 14 this, but I may have seen it. Q: I think the trip report one is one that we looked at yesterday? A: Yes, and that I recall. Q: That's another one you looked at prior to your testimony? A: Yes. But this I'm not so sure, but I might have done. Q: 219 you looked at? A: 219, yes, I did. I'm not so sure I remember looking -- I can't recall looking at the list of customers. Somewhere I remember seeing -- I may not have gone through it all, but I remember seeing this thing about Gustafson. Q: You're referring to the article on PCBs? A: Yes, I remember seeing that, because I remember seeing that little insert about Monsanto and that caught my eye. So that may be as far as I went in looking at the document. Q: Well, while you're still there, is this accurate? There was a specialty products business group Monsanto Industrial Chemicals Company. I don't know what you would call this, a chain of command. A: Organization chart. Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076560 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 15 Q: Organizational chart for the PCB task force heat transfer fluids? A : Yes. MR. CHAMBERS: Let -- let me object to the form just a second. Do you mean is it accurate that that's part of the document, or do you mean -- are you asking him independently to verify? MR. ROEDER: Well, I'm asking him independently if this was accurate when it was prepared. A: To the best of my knowledge, yes. Q: (By Mr. Roeder) All right. So you were the -- you were a member of the PCB task force with respect to heat transfer fluids? A: I think -- I'm not sure. This might have been a name PCB task force. It was just a name I gave to this particular group for a task in hand, which was to help customers in this transition from non-PCB to PCB. So that might have just been a name that I coined to call this particular group. Q: Right. Well, there's a task force telephone number 694-2514. Where did that go? A: As I recall now, I think that was into my - that was directly into my department. Q: All right. Directly to your office? Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076561 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 16 A: It might have been, but I would think we probably had some, you know, internal switchboard mechanism. Not every call necessarily. Somebody would have answered and then routed it to whoever the appropriate person was. Q: And as the task force mail address, you were the guy? A : Yes. Q: You were the person that people should send things directly to? A: Yes. Q: Now, Exhibit 216 is a memorandum from T. L. Gossage to - A: You mean 116? Q: Did I say 216? I'm sorry. 116. I'm sorry. I misspoke. Exhibit 116 is a memorandum from Mr. Gossage, dated January 4th, 1972, and you are a carbon copy recipient, correct? A : Ye s . Q: Okay. This memorandum Mr. Gossage attaches a memo from Mr. Corey. Who is W. R. Corey? A: I think he was a -- I think his title was general manager of the organic division. Q: So he was higher than Mr. Bergen? - A : Yes. Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076562 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 17 Q: And who is Mr. Cunningham? A: Mr. Cunningham might have been a managing director of the chemical group or conceivably, I think, he might even have been on the board of Monsanto. I'm not sure. But he was -- he would have been more senior than Mr. Corey. Q: All right. So Mr. Gossage is sending out to his people a memorandum that -- a confidential memorandum, as is listed here, that the general manager of the organics division is sending to his superior as to how the worldwide program they've adopted to conform with the corporate management policy to discontinue all sales of PCBs would be implemented, correct? A: Yes, with the exception of dielectrics, yes. Q: With the exception of the sales of PCBs for use in dielectric -- for dielectric use in transformers and capacitors? A: Yes. Q: And then you received a copy of Mr. Corey's memorandum to Mr. Cunningham as well, didn't you? A : Yes. Q: If you look, sir, at the -- the actual PCB/PCT implementation program talks about the discontinuance of sales of PCBs for heat transfer Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076563 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 18 applications, correct? A : Yes. Q: Number C or letter C on page two. A : Yes. Q: Says -- your name appears. It says "A team of trained engineers will be directed by Dr. Cumming Paton. They will, one, visit customers' plants upon request." Was that true? A : Yes. Q: Was that done? A : Yes. Q: "Number two, discuss the possibility of using other Monsanto fluids giving proper warnings as to possible hazards." A: Possible fire hazards. Q: Possible fire hazards. Thank you. How would these possibilities of using other Monsanto fluids be discussed when the trained engineers visited customer plants upon request? A: Or as I recall, on the phone if a customer called and had a request on that, he would have been -- if one of the engineers was in the office, he'd have been the one to pick up the call or conceivably Don Roush who was technically competent in that area, or it would have been left for an engineer or Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076564 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 19 Roush to call back as soon as they were able to. Q: But the engineers were the people we saw here that were in the organizational chart? A : Yes. Q: Is that right? A : Yes. Q: Dean Danzer, Bob Neary, Frank Calkins and Skip Ratterman? A : Yes. Q: And they were identified as conversion engineers on Plaintiff's Exhibit 219, correct? A: Yes. Q: Okay. So those would be the guys that are referenced here? A : Yes, exactly. Q: "The engineers will discuss the possibility if a customer asks about their plant or if the customer calls in." A : Yes. Q: All right. "Number three, the engineers are to make the customer aware of other possible alternatives, but make no recommendations as to their use." Was that done? A: To the best of my knowledge, yes. Q: And that was the policy? Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076565 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 320 A: That was the policy. Q: Why would there be no recommendations as to other possible -- as to the use of other possible alternatives? A: Because there could be a range of alternatives to using heat transfer fluids to using nonfluid type systems if they chose. So we would say, you know, here's -- and it would be usually a dialogue. The customer would have people that would have some idea what they were doing and why they were doing it. If they were asked "Well, what alternative would be open to us," we would suggest some, but we were in no position to be able to make a recommendation. Q: Well, but you were allowing your engineers to discuss the possibility of using alternative other Monsanto fluids? A: Yes, but we couldn't speak for other companies' fluids or for nonfluid heating systems. Q: All right. Okay. Then you would refer the customer to the other manufacturer? A: That's right. Q: Okay. Make arrangements with customer for proper handling, packaging and return of spent PCB fluids to Monsanto for incineration. This is, Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076566 ___________________________________________________________________________________ 3 2 1 1 again, after the engineer has gone out to the plant 2 to look at it, right? 3 A: Yes, or it might have been done on the 4 phone, too. 5 Q: If someone called in and asked for it? 6 A : Ye s . Ye s . 7 Q: "Number five, the engineering teams' role is 8 solely to consult with and assist customers in 9 making conversion away from PCBs. Any questions 1 0 with respect to Monsanto management's decision to 11 discontinue sale of PCBs for heat transfer use are 1 2 to be referred to Dr. Paton for proper answer." 13 A: Yes. 14 Q: You were the guy that, if anyone wanted to 15 know why it was being done, they were instructed 16 they can't say, "You have to call Dr. Paton"? 1 7 A : That's right. 1 8 Q: Was that done? 19 A : Oh, yes. 2 0 Q: Why could the engineering team not answer 2 1 that question? 2 2 A: Because they had had jobs in engineering 2 3 within Monsanto, but they were picked because they 2 4 had -- they were conversant with heat transfer 2 5 fluids or the heating aspect of processes in our Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076567 ___________________________________________________________________________________ 3 2 2 1 Monsanto plants. So we chose some that had a 2 background of either using systems or having this 3 kind of expertise, but they had not been in any way, 4 associated -- as best I recall, none of them had 5 been associated with the fluids business in their 6 engineering capacity, you know, our -- our business 7 group. And so for -- to tie them up in getting into 8 discussions of why management decided or not, they 9 really didn't know. And, you know, if we had to go 1 0 back and get them a training course in that, I don't 11 know when we would have been able to get them to do 1 2 the job for which they were brought in to do. 13 Q: Well, but it was also an issue that was 14 something that Monsanto took great care to decide, 1 5 correct? 16 A: We were trying to use these engineers -1 7 Q: I mean the decision. 18 A: In a practical situation. 1 9 Q: I'm talking about the decision right now. 2 0 "As it's reflected in this policy, questions 2 1 regarding Monsanto management's decision to 2 2 discontinue the sale of PCB fluids for heat transfer 2 3 use was a decision Monsanto took after considering 24 all the possible options that it felt was relevant;" 2 5 isn't that correct? Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076568 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 323 A: Yes. Yes. Q: And it was a complicated decision that Monsanto took, correct? A : Yes . Q: Wasn't that at least part of the reason why Monsanto wanted to be sure that you were the person who would give the proper answer to those questions? A: I saw it more as a separation of responsibilities and duties, that I was in the best -- probably of this group that we have on that chart, I probably was the one that had had most involvement with the decision making process and, therefore, could probably give the most complete answers I could. Q: Or the proper answers as is suggested here? A: Well, proper answers. By that I mean I would say correct answers, you know, not speculation, to be as accurate as I could. Q: Did you type this up? Is this a policy that you actually prepared yourself? A: I cannot recall if I did. I undoubtedly would have seen a draft or had some input into it. Q: But you didn't want your conversion engineers out there indicating why corporate management had done something? Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076569 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 24 A: Because they had not been a party to it. And as I said, we had so much work to do. That for me to have gone through the answers to any possible questions that could come up would have been very time consuming and complicated, because they might -- I could have said "Well, here's some hypothetical questions that come up," but the questions that might have come up might have been totally different. And then what would they have done? They would have probably had to call me to say "He's asked me this. I don't know. What do you say?" So it was much more efficient to break it down and say "Paton, this is part of the job you will do. Your job is to help. " And if -- so I - you know, so that was a perfectly natural way to be efficient in managing the task we had to do. Q: Well, by this -- all of engineers would have known this, too? MR. CHAMBERS: Object to the form. A: I'm sorry. They would have known what? Q: (By Mr. Roeder) All the engineers would have been given a copy of this policy, correct? A: Yes. Q: And so by giving them a copy of this policy, they would know that they weren't authorized to make Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076570 ___________________________________________________________________________________ 3 2 5 1 statements with respect to Monsanto management's 2 decisions to discontinue the sale of these PCB 3 fluids; isn't that correct? 4 A: Correct. 5 Q: That way the only person who was authorized 6 to make those statements would be you? 7 A: Yes, or someone that I may have later 8 delegated to do it. 9 Q: All right. But as of the policy that was 1 0 given by Mr. Corey to Mr. Cunningham, you were the 1 1 only person who was authorized to speak on this? 12 & : Yes, and I would have been held accountable 13 for that. 1 4 Q: Okay. And you didn't want these other guys 15 making statements out to customers that would later 16 come back and might get misunderstood, et cetera; 1 7 isn't that correct? 18 A: Yes. 19 Q: And you didn't want these -- these 2 0 conversion engineers, who were dealing with 2 1 customers, also to say statements that you didn't 22 agree with? 2 3 MR. CHAMBERS: Object to the form. 2 4 A: I hadn't thought of it that way. 2 5 Q: (By Mr. Roeder) But it's true, isn't it? Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076571 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 326 It prevented that from happening; isn't that right? A: I think it prevented confusion, answers that weren't correct or even them trying to speculate on answers just to make up a reply if they didn't really know. So many factors go into it. I mean I wasn't a tyrant. You know, it may seem that way, but I wasn't. Q: Well, I mean the reason that you didn't want to sell PCBs in a heat transfer application was because you were concerned that PCBs would get into the actual -- would somehow get into the operations when they would otherwise be contained; isn't that it ? MR. CHAMBERS: Object to the form. Q: (By Mr. Roeder) Let me rephrase the question. Tell me, as we sit here today, what your understanding was of the reason that you stopped selling these PCB fluids? Why did Monsanto -- if I'm a customer and call you up -- I'll amend the question this way. I say "Dr. Paton, tell me why Monsanto's management decided to discontinue selling me PCB fluids for heat transfer uses." What would you tell me? A: I would - - again, as I recall, I would have gone back to some incidents where this product had Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076572 327 1 found its way into food, food packaging kind of 2 applications, and there was a lot of controversy 3 going around about PCBs in the environment. And 4 having considered a whole variety of complex factors 5 decided that it was better to get out of that 6 business. 7 Q: Just so I understand your testimony, you 8 were concerned that you couldn't tell your 9 conversion engineers that so that they could answer 1 0 that quest ion? 11 A: Well, - 1 2 MR. CHAMBERS: Object to the form. 1 3 A: Because my recollection is that customers 1 4 asked me a great deal of questions. Some of them 15 were, you know, controversial, and we were offering 1 6 these engineers a service where we were using their 1 7 expertise, and to have their time tied up getting 18 into these other areas would have been inefficient, 19 because we -- we had a lot of requests for 2 0 assistance. And so the idea was to try to get them 2 1 to cover as many customers as they could giving the 2 2 assistance a customer required, and not get them 23 into the explaining the whys and wherefores of the 2 4 decision. That was something that I took on. 2 5 Q: (By Mr. Roeder) Wouldn't it be your Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076573 ___________________________________________________________________________________ 3 2 8 1 expectation, sir, that if the discussion of the 2 decision to no longer sell these fluids could be 3 done within a minute? 4 A: Not necessarily. I mean I recall some 5 conversations with customers that went on for many 6 minutes . 7 Q: Well, as you just related your reason to me, 8 it didn't take a minute, did it? 9 A: But some customers would come back with 1 0 follow-up questions, and I cannot recall all they 11 were now. But there were, you know, a whole myriad 12 of questions they would ask me. And I would have to 13 step -- some I wasn't able to answer. Some I could. 1 4 Q: Was there ever a listing or a log prepared 1 5 of all the customers who had called in to utilize 1 6 this service? 1 7 A: I recollect that was an area where Paul Gann 1 8 was involved. 1 9 Q: Mr. Gann was involved with that? 2 0 A : Yes. 2 1 Q: Do you recall whether Mr. Gann prepared a 22 list so he would know that Mr. Neary, for example, 2 3 would have to be at this customer next Tuesday? 24 A: My recollection was yes. I think he would 2 5 have done that in conjunction with the engineers. Gore & Perry Reporting Co. St. Louis, Missouri (.314) 241-6750 621-4790 WATER PCB-SD0000076574 1 2 3 4 5 6 7 8 9 10 i1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 329 But Mr. Gann was in charge of the record keeping, the organization of these kind of logistics, yes. Q: Now, this heat transfer fluid task force that you headed up, was there a comparable task force for the Pydraul area? A: At that time, I don't know. Q: Well, when you took over responsibility for Pydrauls, did you ever see any documents that suggested that there were conversion engineers that were designated the responsibility of answering questions that customers might have regarding other Monsanto fluids, for example? A: No. Two reasons for that. Q: Were there conversion engineers who were part of a PCB task force in Pydrauls that were instructed to visit customer plants upon request with respect to a conversion? A: I cannot recall personnel other than the technical personnel there that were in the Pydraul area . Q: But nothing set up like this? A: Nothing set up like this, and there were reasons for that. MR. ROEDER : Why don't we -- it's 12:15. Why don't we take lunch. This is a good time. Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076575 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 330 (Discussion off the record.) Q: (By Mr. Roeder) Good afternoon, sir. A: Good afternoon. - Q: I'll find the exhibit I'd like to begin with. Can you look, sir, at Plaintiff's Exhibit 36, and I'll hand you the binder in which that exhibit is located. There you go. It should be in that binder. For the record, sir, Plaintiff's Exhibit 36 is a PCB/PCT action plan that Mr. Papageorge had prepared. And you were listed as a carbon copy recipient on this document, were you not? A : Yes. Q: You and a number of others from Mr. Bergen on down to Mr. Vodden, V-O-D-D-E-N, correct? A: Yes. Q: And for the record, the production number is TRAN 3025 through TRAN 3035. Now, what was this document? What was its purpose? MR. CHAMBERS: Object to the form. A: All I can see is what's on the first page. I don't recall the document. Q: (By Mr. Roeder) Okay. So the document says on its first page is that "This is the first attempt to present a composite of the action plans of the various product and area groups involved in the Gore & Perry Reporting Co. St. Louis, Missouri (.314)241-6750 621-4790 WATER PCB-SD0000076576 ________________________________________________________________________________ 3 3 1 1 PCB/PCT program." That was Mr. Papageorge's 2 description of what followed, correct? 3 A : Yes. 4 Q: When he talks about the PCB/PCT program, 5 what did that refer to as you understood it? 6 A: I'm not sure what he felt was covered by 7 that. 8 Q: Well, there was an action plan, was there 9 not, to implement the board's directive of the 1 0 previous December? 11 A : Yes. 12 Q: Okay. And so that's what he's referring to 13 are the PCB/PCT action plan, correct? 14 A: Possibly. 15 Q: Now, you are noted on the second page in the 16 heat transfer area. Your initials are C. P., 17 correct ? 18 A : Yes. 19 Q: I see you showing up on the page with 2 0 respect to heat transfer fluids. You mailed 2 1 customer notification. You had organized a 2 2 conversion team. You had developed the conversion 2 3 bulletin. That's correct so far, right? 2 4 A : Yes. 25 Q: You were assigned the responsibility of Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076577 ___________________________________________________________________________________ 3 3 2 1 rechecking offshore installations on the Gulf of 2 Mexico? 3 A : Yes. 4 Q : You followed visits to OEMs, which are 5 original equipment manufacturers, correct? 6 A : Yes . 7 Q: Then you evaluate response and review 8 policy? 9 A : Yes. 1 0 Q: And you were to get all of this done by 4-1? 11 A : Yes. 12 Q: Okay. Did you complete this by April 1st of 13 1992? 14 A: I can't now recall if I did or didn't. 15 Q: What I don't see, though, on page four of 1 6 the same document, which relates to industrial 17 fluids, is your initials with respect to any of the 1 8 assignments or actions with respect to either 19 Santovac, Turbinol or Pydraul; is that correct? 2 0 A : Correc t . 2 1 Q: But at this time you had the Pydraul 2 2 responsibility; isn't that right? 2 3 A: No, not in -- 24 Q: Oh, you got it the following July? 25 A: I got it -- yes, I got it sometime in the Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076578 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 333 summer of '72. So there would have been no reason to copy me in back in April. Q: So you were not supervising Bradford as of this time? A: No, in fact, as I said earlier, I think Bradford may have been person that was in the position similar. It was either him or Johnson. By this it looks as though it was Bradford. Q: So you don't know whether Bradford completed all of these assignments by the target date or ever? A : No . Q: Did you ever determine whether on a later date Mr. Bradford had completed the assignments as required under the PCB/PCT action plan? A: I can't recall that. Q: Did you have a view as to whether or not Mr. Bradford was someone that you could -- as of this date, you had -- Mr. Bradford had never worked for y ou ? A: That's right. And he never did work for me as I recall. Q: Did he leave the employment of Monsanto? A: I'm not sure if that was the reason that I was moved over or if he got another position. I cannot recall that. Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076579 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 334 Q: But in effect you assumed his responsibility? A: As I say, I'm sure it was him or Johnson, but I now think -- that's refreshed my memory. I took over what Bradford had been doing in this area. Q: All right. So as of July, you assumed the duties of Bradford? A: That's right. Q: And so if this were -- if this exhibit were to have been prepared say in July where they have Bradford's initials under the industrial fluids, they probably would have put yours, because you would have been the guy? A: Probably right. I can't say for sure, but probably. Q: All right. When you assumed the duty for the Pydraul area, did you confirm whether or not Mr. Bradford had completed all of these duties by the time you left? A: I can't recall specifically doing that. It's not to say I didn't, but I just cannot recall it . Q: Did Mr. Bradford leave voluntarily? A: At some point, he left Monsanto, and I have no idea under what circumstances he left. Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076580 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 33 5 Q: Did you review any of Mr. Bradford's performance evaluations at any point? A : .No . Q: But as an employee, he would have been reviewed periodically, would he not? A: The likelihood is yes but, again, I can't, you know, say whether it was carried out or not. Q: Well, would -- would the review -- would there be a yearly review or twice a year review? Is there any particular practice or procedure that was followed? A: I cannot totally recall. As I recall in my own case, it was approximately once every year there was sort of a formal review, but I can't speak for anybody else. Q: Well, when you had your formal reviews, would you meet with your superior? A : Yes. Q : Anyone else? A: No. Q: And would the superior accept or get comments from other people who had worked with you in formulating his review of you? A : I don't know. Q: At some point as a managerial employee at Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076581 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 336 Monsanto, you would review people as well, correct? A : Yes. Q: What was your practice with respect to getting information concerning your subordinates when you would perform their reviews? A: If as -- as I recall, there was a system of goals in place, and these goals would have not necessarily been these people working in isolation but involving others. If that's the case, I might have called maybe the regional sales managers if it was -- if the person that I had reporting to me had a lot of interaction with sales, which usually they did, I would ask the regional managers how they felt so and so had performed. And that would tend - that would not always be wait until -- you know, you -- that might be brought up when you meant them or, if there was a particular customer situation that had arisen, you might ask, okay, were you happy with how so and so handled that. I don't think there was sort of a formal written thing went on. It was something you would pick up the phone or see them and ask. You would take -- you know, you would take a note and put it in that individual's file. Q: On a yearly basis - A: That's how I did it on a -- you know, I Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076582 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ___________________________________________________________________________________ 3 3 7 think there probably was some leeway as to how other people would have done it. Q: But on a yearly basis at Monsanto, an employee would learn whether his salary would be increased or not, correct? A: At some point, that came into play. I'm not sure if it was in practice as early as this or not. But I do -- I think at some point there was more of a grade and the minimum and the maximum and where you were on that curve. You know, you were shown it. But I don't think that was in place, say, when I first joined Monsanto. So when that happened I'm . not so sure. Q: Well, when you first joined Monsanto - A: Well, about five years earlier, well, six years earlier. Q: Six years earlier. It was Monsanto in St. Louis? A: Yes, five years. So I cannot recall - certainly when I came in, maybe I was naive and didn't bother to ask, but I mean I was given a salary. It seemed okay. I accepted the job. I got awarded appropriately when I got promoted, and I have never had any reason to, you know, enter into any discussion or dispute about what my salary was. Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076583 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 338 Q: Right. Just so I'm clear, as you would be promoted, that would certainly reflect a good evaluation of your performance, correct? A : I would hope so. Q : Right. But with respect to people who remain in the same position, then that -- I mean from one year to the next their supervisor would want to know how well they were doing, and would determine or make a recommendation as to their salary for the following year based upon a review correct? . A : Yes. Yes. Q : Okay. Now, did Mr. Bradford -- was he -was he senior to Mr. Johnson? A : I would have thought they were in reporting relationships were all in the same line. Now, whether they were different grades, I don't know. Q: Okay. Whose job did Mr. Gossage -- strike that. Mr. Gossage had replaced Mr. Olson, correct? A : Possibly. I can't -- I can't remember that. Q : All right. You can't remember whether either Mr. Johnson or Mr. Bradford was upset at not obtaining that job? A : I have no way of knowing that. Q : Do you have Exhibit 117? Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076584 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 339 A: Are we finished with this now? Q : Yes, we are. MR. ROEDER: I'm looking for Exhibit 117. Right there. It's in that one by you, Mr. Chambers . MR . CHAMBERS : 117. MR. ROEDER: It's this one with a different production number, but it's the same document. MR. CHAMBERS : Okay . Thank you. Q: (By Mr. Roeder) Exhibit 117, sir, is the memorandum from Mr. Papageorge to Mr. Bergen and Mr. Gossage and you and a carbon to Mr. Corey, dated January 12th, 1972. It bears production number TRAN 3011 to 3013. MR. ROEDER: Before we go, Mr. Chambers, I had asked whether or not what was the purpose of the deletion, and you've not been able to determine t hat ? MR. CHAMBERS: Not as of this date. I don't have an answer for you on that, but I'll continue looking into that. Q: (By Mr. Roeder) Okay. Is this a memorandum that you received, sir, from Mr. Papageorge on or about that date? A: I cannot recollect receiving it. I'm on Gore & Perry Reporting Co. St. Louis, Missouri (.314)241-6750 621-4790 WATER PCB-SD0000076585 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 340 there so there's no reason to assume that I would not have seen it back then. Q: Well, just -- just to be sure, the copy that I gave to Mr. -- that one if you would show the witness. It has an arrow directed directly at C. Paton. So that would have been the practice. That would have been your copy right? A: Yes, I have no reason to dispute what you're saying. Q: All right. That copy then perhaps you should look at the copy that has the arrow. There's some handwriting on it. Is that your handwriting? A: It might be. It looks as though it might be . Q: Okay. And you're looking at the second page next to paragraph 14? A: Yes. Q: "J. J. R. " A: Yes, that would be -- Q: "Presents." Is that what it says? A: It looks like a P. R., doesn't it? Q: J. J. R. Something, right? A: I think it's P-L-S-E N-O-T-E. So please note. Q: Please note. So you were making a note for Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076586 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 341 Mr. Roder to follow up? A: Follow up, yes. That's what it looks like to me . MR. ROEDER: All right. MR. CHAMBERS: Let me just note for clarity that the page that we're looking at bears production number TRAN 003348. MR. ROEDER: I was going to suggest, since it's technically a different document, maybe we should just mark it as an exhibit. MR. CHAMBERS: Fair enough. (Plaintiff's Deposition Exhibit No. 220 marked for identification.) A: So we're still on page two? Q: (By Mr. Roeder) Right. Okay. So on page two this is on the page that has the production number TRAN 3348 where it says "Obtain list of operators of offshore installations in the Gulf of Mexico. Contact them to determine if they're using PCB heat transfer fluids." You wrote "J. J. R. please note," right? A : Yes. Q: Just so the record is clear. Now, 15 there's a notation. Does that say "in hand"? A : Yes . Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076587 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ___________________________________________________________________________________ 34 2 Q: Okay. This would be to the check status of letter to accompany acknowledgment of PCB orders. So you wanted Mr. Roder that, when he went to visit certain customers, to carry these letters in hand. Is that what this relates to? A: No, I would see these as two separate items, and now this morning just before lunch you showed me the letter that the question that Roder had directed to Papageorge. And having already seen that just a couple of hours ago, this would to me probably was an indication that someone in our Washington office, Warren Easley who was in Monsanto's Washington office, had contacted the Department of Interior to find out did they have a list of installations, and so this would have been my way of saying to Roder "No, there was no -- there's no -- according to what we've got from Warren Easley, there's no list available." So what Roder was trying to follow up on didn't necessarily exist, which was the EPA or something. Q: Here. I think the exhibit you're referring to is Exhibit 217? A : Yes . Q: And that was the memorandum? A: From Roder to Papageorge about the EPA. Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076588 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 343 Q: That was December 8th, 1971. This was a month later on January 12th, 1972? A: Yes, so maybe -- and again, I have tied this one to this. It may be that this triggered me or something to tell Roder. Not necessarily for Roder to do anything, but to say "Look, someone has, in fact, been in touch with an agency in Washington about a list of offshore installations, and this particular agency says they don't have a list." Q: How do you get that from the word "in hand"? A: No. No. I'm saying in hand number 15, because you were asking me did -- was Roder going to be hand carrying letters, and I was saying that 15 bore no relation to 14. They were two different items, and Roder wasn't necessarily involved in numb er 15. Q: Well, what I was thinking is that -- okay. I was wondering if 15 related to the suggestion - okay. All right. Just so I understand and the record is clear, and I apologize if I wasn't seeing it. What does the "in hand" refer to? A: The "in hand" would refer to just that particular section 15, and I cannot now recall what I really meant by saying "in hand," but it said that something was -- you know, it was being attended to, Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076589 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 344 and whether it had been totally accomplished or was an ongoing thing I'm not sure. "Check the status of letter to accompany acknowledgment of PCB orders is being sent to customers." That is at least in the process of being -- has been implemented or being implemented. It's in hand. Q: Well, who is the individual you said who worked in the Washington office? A: That's Warren Easley, but -- Q: Had Mr. Easley succeeded in obtaining this information? A: Well, I think I understood from what you had said to me was in hand was this something that Roder was going to be doing, and that's then headed me back to 14. And I said, well, 14 and 15 are two different things. But then when you had mentioned the word "Roder" again, then it occurred to me, okay, this looks to be very much tied into this previous document . Q: Oh, you're talking about paragraph 14? A : Exactly. Q: The list of operators? A: And so I was then -- I think my note would have meant that I was going to tell Roder "Look, you were asking for a list. As best I know today, there Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076590 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 345 isn't such a list." Q: All right. Okay. I was confused, because I was asking about 15. You're tying paragraph 14 with that memorandum? A: Well, I think I heard you use the word "Roder" in connection with 15, and that's what threw me off, because I couldn't see Roder having anything to do with it. It got me on to the Roder kick. I looked back up, and then it triggered -- it rang a bell. So we -- so I've clarified and confused at the same time. Q: It's not me. It's no relation to me, right? Maybe I ought to clarify that at some point on the record. It's spelled differently than my name . MR. CHAMBERS: All men are brothers. MR. ROEDER: And six degrees of separation, right. A: So we've got that squared away, hopefully. Okay. So 15 I'm dealing strictly with these lines four to five lines of text, and my "in hand" meant it was -- it was being handled. I was comfortable with how it was being handled. MR. ROEDER: All right. Fair enough. And just so the record is clear, Mr. Chambers, it looks Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076591 ___________________________________________________________________________________ 34 6 1 as though there's a 16 and 19 which are deleted. 2 And again, I don't know why. And a one and two on 3 the previous page which are deleted. 4 (Plaintiff's Deposition Exhibit No. 5 221 marked for identification.) 6 Q: (By Mr. Roeder) Exhibit 221, sir, is a 7 memorandum from Mr. Papageorge to you along with Mr. 8 Munch, Dr. Richard -- is it Dr. Munch as well? 9 A : Dr . Munch, ye s . 1 0 Q : Dr . Munch, Dr. Paton, Dr. Richard and is it 11 Dr . Tuc ke r ? 1 2 A: Yes, doctor. 13 Q: All the scientists got this memorandum, 14 correct? 1 5 A: Well, if you'd ask -- if you'd ask, maybe 16 two out of the four. They have considered me 17 having, you know, scraped in, but certainly my 1 8 current position said that I had betrayed the cause. 19 Q: All right. And this reflects a meeting with 2 0 Dr. Edward Goldberg, Dr. Robert Riseborough and Dr. 2 1 George Harvey. Dr. Riseborough we have discussed 2 2 already, correct? 2 3 A: Yes, I've heard that name before. 24 Q: He was one of the researchers who first 2 5 discovered PCBs in fish in the wildlife in San Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076592 347 1 Francisco Bay area, correct? 2 A: I think so, yes. 3 Q: And he's the guy whose article you brought 4 to see the NCR people? 5 A: That 1s right . 6 Q: Who are Dr. Goldberg and Dr. Harvey? 7 A: Harvey rings a bell, but I can't recall his 8 position. And Goldberg I have difficulty 9 recollecting him at all. But I can't recall what 1 0 their positions were. 11 Q: All right. Do you recall having a meeting 1 2 with Dr. Riseborough at any point? 13 A: I vaguely think I might have been somewhere 14 where he was present, but I can't really pin down 15 the place, the time, the subject, no. 16 Q: Well, at this point, Dr. Riseborough was 1 7 sort of an important figure in the PCB pollution 1 8 issue, correct? 1 9 A : Yes. 2 0 Q: Okay. We had seen an earlier memorandum 2 1 where Dr. Richard had gone to meet with Widmark in 2 2 Stockholm to discuss what he was doing? 2 3 A : Yes. 24 Q: When you vaguely recall meeting Dr. 25 Riseborough, was it here in St. Louis? Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076593 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 348 A: That I can't even recall that. It might - the other thing that's flashing through my mind is conceivably there was some governmental task force agencies or something got involved in Washington, and I was certainly at one meeting, might have been at more. And conceivably he might have been at one of those. But I -- you know, I cannot for sure say. Q: Well, did you ever discuss with Dr. Riseborough what plan of action Monsanto would take with respect to the PCB products that it sold? A: No, I probably wouldn't have done that in any event . Q : Why not? A: Because the most, if not all of the relationships between him and Monsanto would have in all likelihood been handled by someone like Bill Richard, who was the head of research in that fluids area, and that would have been -- you know, he would have carried the main thrust of that. If I had had to be involved in any presentations with scientists, it would have been to supply supplemental information, maybe describe what the applications were, describe the volumes of Aroclor for different applications, that kind of background, but not to get involved in discussions of the technical, you Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076594 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 349 know, accuracy or merit or pros and cons of findings and procedures. I would not have -- I'd have been interested in the outcome, but I would not have had any real role to play. Sometimes I knew these meetings were taking place, didn't necessarily attend. They sometimes invited me out of courtesy. But if I had other things to do, I wouldn't necessarily have gone. I would have relied later on finding out what had happened. Q: Well, by this time, isn't it true that Dr. Riseborough was advocating that all PCBs be eliminated or removed from sale? A: You know, he might have been. I can't recall he was. Q: Okay. And the memorandum we saw yesterday suggested that Dr. Widmark was in sympathy with those people who had removed PCBs from use, correct? A : Yes . MR. CHAMBERS: Object to the form. Q: (By Mr. Roeder) Who was Dr. E. J. Burger who is reflected in this memorandum? A : I don't know. Q: Okay. And it references a Dr. Warren Muir, M-U-I-R? A : Yes . Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076595 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 350 Q: Council of Environmental Quality. Have you ever spoken to him? A: I think that name rings a bell, and I think that was part of this interagency task force in Washington. Q: And as the memorandum reflects, he will be representing the multi-agency PCB task force? A: Exactly, yes. Q: That's the one that was going to examine, make recommendations for PCB use or nonuse? A: Yes. Q: At this point, we're now in January of 1972 with this memorandum. At this time, sir, the only sales of PCB products that Monsanto wanted to continue with would be in the dielectric area, correct ? A: Yes. And that was -- they were -- that was the only ones that were continuing, yes. Q: All right. Would it be fair to say that at this point Monsanto's goal, with respect to the PCB production in continuing products, would be to save the ability to use or to save the uses for the dielectric area? A: I think, as I recall, the thrust we were getting was that the dielectric industry could not Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076596 ___________________________________________________________________________________ 35 1 1 see a way to give up the fire resistant properties 2 that they got from the PCBs and be able to cope with 3 -- as best I recall, they didn't have a replacement 4 available that they could use in place of PCBs, and 5 get the level of fire resistance that was required 6 and which had got involved in insurance and a whole 7 lot of other aspects of their business. And it 8 appeared -- I'm, again, not sure exact time. But at 9 some point, it appeared that this interagency task 1 0 force was sympathetic to that situation. So in some 11 ways Monsanto was continuing to produce in response 1 2 to that situation. 1 3 Q: Well, out of all the functional fluids or 14 the specialty fluid group -- I'm using it in a broad 1 5 term, including dielectrics, Therminol, heat 1 6 transfer, the Pydrauls, Santovacs. The largest 1 7 single portion of that business was the dielectric 1 8 group, wasn't it? 1 9 A: Yes. 2 0 Q: Did it account for 50 percent of the volume 21 or higher than that? 2 2 A: You know, at one time, I would have had 23 numbers at my fingertips. I can't recall today. 24 Q: Okay. Well, historically it had been a very 25 profitable line, had it not? Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076597 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 352 A: I can't recall, but I have no reason to dispute that. I can't recall figures and percentages now. Q: Well, would a 40 percent profit margin be a good profit margin? A: Depends. You know, I'm not saying it wasn't profitable. But what level it was at, I can't recall. Q: All right. Let me see if I can find this exhibit for you. You can probably do this better than I can. I'm showing you, sir, what had been marked as -- do you have Plaintiff's Exhibit 97 in front of you? A: Yes. Q: All right. It's a memorandum to P. G. Benignus from P. G. Benignus, I'm sorry, to Mr. Papageorge, and you are copied on it along with Mr. Corey, Mr. Bergen, Mr. Gossage and Mr. Savage. Before we go into the letter or the memorandum, who is Mr. Savage ? A: Mr. Savage, as I recall, would have been in production manufacturing. I think at that time. At one time I know he was. I think at that time. Q: Okay. This memorandum you would received this in the ordinary course at Monsanto? Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076598 3 53 1 A : Ye s . 2 Q: And it relates to askarel dielectrics, does 3 it not ? 4 A : Yes . 5 Q: Okay. Now, that's the dielectric uses of 6 the PCB products that we were just discussing a 7 minute ago, isn't it? 8 A: It's one category. As I recall, that was in 9 the transformer area. 1 0 Q: Askarel was transformer? 11 A: Yes, there was some products that we 12 produced for the transformer industry that carried 13 askarel and, I think, there was another one. And 14 they were either General Electric or, as I recall, 15 Westinghouse formulations. 16 Q: The Inerteen and Pyranol? 17 A: Inerteen that's the -- Inerteen and 18 Pyranol. Yes, these were the ones I'm thinking of. 1 9 MR. ROEDER: P-Y-R-A-N-0-L, I think, and 2 0 Inerteen is just how it sounds, I-N-E-R-T-E-E - N , I 2 1 think. Is that correct, Mr. Chambers. 2 2 MR. CHAMBERS: Sounds right to me, yes. 23 MR. ROEDER: Mr. Chambers is our spelling 2 4 maven here. 25 MR. CHAMBERS: I've been wrong about every Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076599 1 time so far so that role may change. 2 A: Maybe now that we've clarified that, askarel 3 I'm not quite so sure what -- my memory escapes me 4 as to what -- looking at this, it would seem it 5 would cover both transformers and capacitors so 6 maybe that's some other terminology, but I've 7 forgotten what that was. 8 Q: (By Mr. Roeder) Well, would askarel refer 9 more broadly to products made with polychlorinated 1 0 biphenyls ? 11 A: It might or it might even include ones made 12 not just by Monsanto but by other companies. 13 Q: Right. Aroclor was your trade name? 14 A: That's right. Exactly. So askarel might 15 have been a broader umbrella. Mr. Benignus would be 16 the best person to ask that. 17 Q: Okay. Well, Mr. Benignus writes in this 18 memorandum that "When dealing with historical 19 production and sales figures for dielectrics, it 20 becomes quite important for all concerned to put 2 1 them in proper perspective especially from the 22 standpoint of the higher PCBs, Aroclor 1254 and 1260 23 content relative to the PCB pollution problem." 24 Have you had a chance just to review this 2 5 memorandum? Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076600 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 355 A: I haven't, but I will. Q: Why don't you take a moment. A : Yes. Q: The purpose of it, as you can read from this memorandum -- see if you agree with me. What I get from it is Mr. Benignus is trying to tell Mr. Papageorge what the historical production has been for dielectrics and how it has gone down over the years, correct? Would that be a fair way to characterize the - A: Well, I think not necessarily saying that total Aroclor has gone down over the years, but that the amount of these penta and higher chlorinated biphenyls have gone down considerably over the years . Q: Those would be, if we can use it, the bad Aroclors that do not degrade? A: That did not appear to degrade. MR. CHAMBERS: Object to the form. Q: (By Mr. Roeder) Did you understand what I meant by that? I think he was going to object to assumes a fact not in evidence. MR. CHAMBERS : You should answer. Q: (By Mr. Roeder) You understood what I meant Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076601 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 356 by that. At least you didn't indicate any - because of the objection, let's just ask the question again so it's clear. The intent of the memorandum was to show that the Aroclors that did not degrade and were the more serious Aroclors in that respect were becoming less frequently used, correct ? A: That would be correct. Q: All right. Whether they're bad or not, the jury can determine. But in any event, this was the day before the meeting was scheduled or suggested to be held, I should say, pursuant -- let me rephrase the question. On Plaintiff's Exhibit 221 the meeting was going to be held on January 21st, right? A : Yes. Q: Mr. Benignus prepares and distributes this memorandum the day before the meeting, correct? A: Yes. Q: Okay. Was this memorandum from Mr. Benignus prepared to give participants at the meeting with Dr. Riseborough some information as to how serious or not serious the dielectric use problem would be? A: It's hard for me now to say whether or not it was or whether this was, you know, responding to some other Papageorge request. Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076602 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 357 Q: But it would be something that you would expect Mr. Riseborough and the other scientists to discuss with respect to the PCB pollution problem? A: Not necessarily. From this it doesn't help me any in my recollection knowing whether this was strictly a technical discussion involving Munch, Richard and Tucker on analytical techniques and so on or whether it was going to look at, you know, broader aspects of what types are considered more biodegradable than others and what that impact is. So it might have been used in this meeting to take place on the 21st. And on the other hand, it might not have been. Q: Well, when the members of the PCB task force, the multi-agency PCB task force would attend a meeting, and the only thing at this point that Monsanto was going to sell that had PCBs would be in the dielectric area? A: Yes. Q: So wouldn't it have been important then to get information to that representative as to how minimal from Monsanto's view the dielectric problem with PCB s was ? MR. CHAMBERS: Object to the form. A: I don't know about the phrase "minimal," but Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076603 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 358 I know that in my own capacity I can recall giving a presentation. I think I gave it. I certainly prepared data which was somewhat along the same lines. It might have been broader. It might have been -- it might have covered more than just dielectrics. I can't remember. To this interagency task force, I remember being present, and I think I gave a presentation. But as I say, if I did not, I prepared the data for it, which was a similar situation, and that was not trying to argue in favor of continuing it. It was to try to give a perspective of what we were talking about in trying to address this question of PCBs that were less biodegradable, more biodegradable and monochlor biphenyl, for example, which I was, I think, reasonably and readily biodegradable as memory serves me. Q: Well, one of the exhibits that we had looked at -- actually I think it was Exhibit 116 the PCB, PCT implementation program, which was just two weeks prior to this date, Exhibit 116. A: Got it. Q: Got it. But don't lose the other exhibit, because we're not done with it yet. Here Monsanto had agreed that it would continue to sell Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076604 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 359 s only to those entities that were responsible and would agree to pay Monsanto for any damages that resulted from the use of those dielectrics, correct? MR. CHAMBERS: Object to the form. Q: (By Mr. Roeder) Is that -- is that correct? MR. CHAMBERS: Just noting an objection to the form. Certainly you should respond. A: Yes, I think that -- that -- Q: Well, in light of the objection. I'll reask the question. And the reason I do it is because, if we get to trial and there's a formal objection which is sustained, then I may not be able to use the answer. So if he continues to object to form on a question that you and I know what we're talking about, we'll just have to do it again. On Plaintiff's 116 Mr. Gossage wrote that or describes the letters that would be sent to the dielectric customers, all of which would relate to indemnity agreements, correct? A: I think all -- yes, I think that was true. Q: All right. And the policy was, as of January 1972, that Monsanto would agree only to sell dielectric PCB products to customers who had agreed to indemnify Monsanto by signing appropriate hold Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076605 ___________________________________________________________________________________ 3 6 0 1 harmless and indemnity agreements with Monsanto 2 arising out of the continued use of those PCB 3 products, correct? 4 A : Yes. 5 Q: Monsanto wanted to -- I should say Monsanto 6 retained the option of determining who it believed 7 was financially responsible. So if one of the 8 customers, in Monsanto's opinion, was not 9 financially responsible, it could retain the option 1 0 of not doing business with them, right? 11 A: Yes. 1 2 Q: So at this point, if Monsanto is able to 13 continue to sell dielectric products, it has an 14 assurance that it can sell the product to somebody 15 who will hold it harmless from any liability arising 16 out of that product, correct? 17 A : Yes. 18 Q: Okay. So that would be a good business to 19 be in assuming Monsanto is satisfied with the 2 0 indemnity arrangement with its seller or its buyers, 2 1 correct ? 22 MR. CHAMBERS: Object to the form. 2 3 A: I wouldn't necessarily draw that conclusion. 24 Q: (By Mr. Roeder) Well, historically the 25 dielectric -- the dielectric fluids have been Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076606 361 1 profitable, correct? 2 A: Yes. 3 Q: Okay. And if their uses could be -- strike 4 that. If the purchasers of the fluid from Monsanto 5 were financially responsible like General Electric, 6 for example, I think you would agree with me that 7 would be a financially responsible party to do 8 business with? 9 A : Yes. 1 0 Q: Okay. They would have the financial 11 wherewithal to compensate Monsanto for any liability 12 arising out of their continued use of the PCBs, 13 correct ? 14 A: Yes. 15 Q: Okay. So Monsanto would continue to make 16 money by selling the dielectrics to GE so long as GE 1 7 agreed to indemnify Monsanto from any liability 1 8 arising out of their use, correct? 19 A : Yes. 2 0 Q: Okay. And the same would be true for 21 Westinghouse , which was another large customer in 22 this area, correct? 2 3 A : Yes. 24 Q: And we would have no dispute that 2 5 Westinghouse had financial wherewithal to live up to Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076607 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 362 an indemnity obligation like that, correct? A: Correct. Q: Okay. So, at this point as of January 1972, you're getting out of the Therminol business with PCBs, right ? A: Yes. Q: Okay. You're out of the Pydraul business with the PCBs, correct? A : Yes. Q: You were out of any other formulations with PCBs other than the dielectric use, correct? A : Yes. Q: So wasn't it to Monsanto's interests to continue to serve the dielectric area with this product so long as it received appropriate indemnification agreements from its buyers, its customers ? A: Not necessarily long-term. Q: Well, not long-term? A: And not necessarily. Q: Well, you would continue to make money with each barrel of dielectric fluid you sold, correct? A: Possibly. I mean there are some economic and competitive situations here that would say that that is not a -- selling to customers who were Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076608 ________________________________________________________________________ 3 63 1 agreeing to indemnify you and hold you harmless 2 isn't particularly a good customer relationship to 3 be in. 4 Q: Well, they all agree? 5 A: They agreed. They agreed at the time, 6 because that was the way it was going. As had I 7 said it in my earlier testimony, there was a 8 practical -- initially this became -- it was a 9 concern when we were faced with the situation. On 1 0 one hand, the government said "Well, we think that 11 the dielectric areas you ought to continue to, 1 2 because these people have no alternatives at least 13 at the moment," and we were faced with how we're 14 having said we would discontinue others. How do we 15 police that? So the only way was to put some 16 controls around how we sold and what conditions we 1 7 sold to the dielectric industry. But from their 18 standpoint, they have to take into consideration 1 9 what it's really costing them to use our product. 2 0 The dollars per pound that Monsanto bills them is 2 1 one thing. There is this hidden potential cost that 2 2 they may have to cough up some day if someone in 2 3 their operations,, you know, does something that 24 creates an environment concern or it gets into an 25 application that it wasn't supposed to. So it had Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076609 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 64 become -- there had been discussions about what's available to replace capacitor fluids. I mean there was mineral oil for some applications, but there were many applications where a degree of fire resistance was considered essential. In transformers there didn't appear to be there were other chlorinated products, but sometimes they had physical properties or something that wasn't any good. So within Monsanto there had been programs mounted to find replacements, and there were others mounted by other people. So we were looking at a situation whereby this market would go to -- would be searching very hard to find something else. Also, there was a question of what other companies making PCBs would do outside the United States. You know, we were not the only producer of PCBs in the world. So from a business standpoint, you know, I could see reasons why this would not be a business in which you'd want to keep investing time and effort longer than you had to to help the customers find their way to something else. MR. ROEDER: Could you just read my qu e s tion ? (The requested portion of the record read by the reporter.) Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076610 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 365 MR. ROEDER : The court reporter has read back the question, sir. I appreciate the answer, but it doesn't respond to the question. Could you read back the question? (The requested portion of the record read by the reporter.) Q: (By Mr. Roeder) They all agreed, correct? A : To sign? Q : Yes. A: I don't -- well, the ones we were supplying had agreed to sign. Q: Did you consider the conclusion of Mr. Benignus that at this time - A : Which - - Q: Again, we're looking at Exhibit 97. A : 9 7. Q: Right. I'm sorry. I should have made that clear. In Exhibit 97 Mr. Benignus had concluded that the entire U.S. capacitor industry would not use or appear to exceed more than 700 -- strike that. Let me rephrase the question. Mr. Benignus has a conclusion which says "At this time and for the foreseeable future, involvement with the acknowledged nondegradable five chlorine and higher PCBs from the entire U.S.A. capacitor industry does Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076611 ________________________________________________________________________ 3 6 6 1 not appear to exceed about 70,000 pounds annually." 2 Do you see that conclusion? 3 A : Yes. 4 Q: Okay. Is that a large amount of 5 nonbiodegradable PCBs, in your view? 6 MR. CHAMBERS: Object to the form. 7 A: It's a large number. You know, I wouldn't * draw any conclusion about it. I don't see that as 9 being part of his conclusion and not mine. I mean 1 0 he's saying factually that, if it's 26,000,000 times 11 .3, you get this. That's that. That's the number. 12 Q: (By Mr. Roeder) But earlier when we had 13 discussed an exhibit that related to insecticide 14 use . 15 A: Yes. 16 Q: In your exhibit where you made clear that we 1 7 were, we being Monsanto, was not going to sell any 1 8 more PCB containing products for anyone who would 1 9 use it for insecticides or pesticides. Do you 2 0 recall that one? 2 1 A : Yes. 2 2 Q: The only customer that you thought might be 23 buying it was a customer who might buy approximately 2 4 2,400 pounds annually. Do you recall that? 2 5 A : Yes. Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076612 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 367 Q: Okay. So we're going from 2,400 to 70,000 pounds. 2,400 you agreed was not large. That was your testimony yesterday. Do you recall that? A: In the total scheme of things, it didn't seem large. If it went in one place, then the concentration might be higher. Q: Okay. But - A: I -- if I said that, then I stand by what I said. Q: Right. But 70,000 pounds annually for use in different areas throughout the country, would that seem large to you as well, or how would you grade that ? A: I don't know that I ever, you know, addressed it in that particular way. Q: Well, then refresh my recollection. I think you just testified that at some point you made a presentation to the multi-agency PCB task force on these very issues. A : Yes. Q: Related to the things that Mr. Benignus was discussing in Plaintiff's Exhibit 97. What was the conclusion of your presentation to the PCB task force? A: The data that I showed indicated that the Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076613 ________________________________________________________________________ 36 8 1 steps that had been taken were reducing the number 2 of these penta and higher, you know, difficult to 3 biodegrade Aroclors down now to -- you know, from 4 approximately 20,000 million say down to the 78 to 5 deal just with the numbers we have in front of us 6 here, and that at least was heading in the right 7 direction. Is it the right number? I didn't know, 8 and I don't know. 9 Q: But was it, in your opinion, a small number? 1 0 A: Percentage-wise it's small. Whether that's 11 enough to -- whether that would have been enough to 1 2 satisfy everyone that was -- had now become involved 13 in the issue such as the interagency task force, I 14 had no way of knowing. It was at least heading in 15 the -- it was heading in the right direction. 1 6 Whether that was the right number to arrive at, I 1 7 alone couldn't determine that. 18 Q: All right. 1 9 A: Are we finished with this binder now, do you 2 0 think? 2 1 MR. ROEDER: I think we are for the time 2 2 being. Why don't you let me have that so we can get 2 3 it out from in front of you? Thank you, sir. Would 24 you mark this as the next exhibit, please? 2 5 (Plaintiff's Deposition Exhibit No. Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076614 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 369 222 marked for identification.) (Whereupon, excerpted portion of confidential testimony is contained in confidential transcript Volume II.) MR. ROEDER: Let's mark this as the next exhibit. (Plaintiff's Deposition Exhibit No. 223 marked for identification.) MR. ROEDER: Then while you're looking at that, why doesn't the court reporter mark as an exhibit this one. (Plaintiff's Deposition Exhibit No. 224 marked for identification.) Q: (By Mr. Roeder) Okay. Exhibits 223 and 224 relate to call reports for Tenneco, do they not, sir? A : Yes. Q: Okay. Both of them were sent to you in St. Louis? A : Yes . Q: The salesman was Mr. Stegen, S-T-E-G-E-N? A : Yes. Q: Okay. Exhibit 223 has production number TNGS 4188, 224 is TNGS 4164. All right. Was this call report in connection with the PCB action plan Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076615 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 70 that we looked at just a couple of minutes ago? A: I don't know whether it was directly or not. It could have been. Q: Well, in Exhibit 223 Mr. Stegen says that the person he contacted told him that you had to contact a Buster Kelly who was reflected in that memorandum from Tenneco, correct? A : Yes. Q: Okay. Now, then Kelly was contacted or shown to have been contacted by Mr. Stegen in Exhibit 224, correct? A : Yes. Q: Also, Mr. Louis Williams who was also referenced in Exhibit 223 as someone that Stegen had to contact at Tenneco to bring him up-to-date on the PCB situation, correct? A: Yes. Also, the spelling of Louis is different, but may be the same person. Q: Okay. Could very well be. You wouldn't expect there to be different -- or there would be different people there with those two names, would y ou ? A: Unlikely. Q: Unlikely. Now, the second paragraph, sir, of Exhibit 224 relates to the conversation with Mr. Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076616 ________________________________________________________________________ 3 7 1 1 Knight and Mr. Williams at Tenneco by Mr. Stegen. 2 And before we go any further into the document, it 3 says "Call made with J. J. Roder." Does that mean 4 Mr. Roder went with Mr. Stegen on this call? 5 A: That's how -- that's how I'd understand that 6 t o be . 7 Q: Did you delegate this responsibility to Mr. 8 Roder ? 9 A: What responsibility? 1 0 Q: The responsibility of following up and going 11 out to accounts to discuss the PCB plan. 12 A: I would have delegated to Roder the 13 responsibility of going out and calling on accounts, 14 because that was part of his job. And to the extent 15 that he could answer questions about them, yes. 1 6 Q: Okay. But again, if there was an issue 17 relating to why management made this decision, the 1 8 direction was that that should go to you? 1 9 A: Yes. Although, in the case of Roder, it's 2 0 conceivable that I would given Roder authority to 21 answer some questions on my behalf possibly. I 2 2 can't recall doing it, but it's possible. 2 3 Q: But certainly that's not what you indicated 24 to senior management would be the way the things 2 5 were handled on your PCB task force? Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076617 ________________________________________________________________________ 3 72 1 A: On the PCB task force, probably no. But 2 Roder was -- Roder was a person that had been in the 3 -- in the heat transfer area a long time and knew 4 -- had been part of pretty much everything that had 5 gone on in it. 6 Q: All right. Now, 7 A: As opposed to the engineers. 8 Q: Okay. In this -- in this sales report, Mr. 9 Stegen says "It came out that Tenneco had been asked 1 0 for information on organic halide, H-A-L-I-D-E, that 11 they were using. This may have come from an agency 12 of the government, or it may be come from internal 13 Tenneco." What is a halide? 14 A: A halide is a -- it's either a chlorine, a 15 fluorine or a bromine. These are -- chlorine, 16 fluorine and bromine, I believe, are classified as 17 halogens. It's kind of a classification of these 18 three. 19 Q : Okay. 20 A: So you don't know if it's chloride or ' 2 1 bromide or fluoride. It could be one of these 2 2 three. 23 Q: Well, Mr. Knight, Henry Knight, at 24 engineering in Tenneco, as this memo reflects, 2 5 thought that PCB could be classed as an organic Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076618 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 73 halide, and feels this may be responsible for a million dollar loss in platinum catalysts that Tenneco had experienced at their refineries. Is this something you recall reading? A: I can't recall reading it. Q: Okay. Do you recall following up on an issue like this? A: No. All I see is it looks as though I scribbled this to go to other people and then be filed. So I can't read my writing. Q: Okay. But that would be your writing, one, two and three on the bottom of this? A : Yes. Q: Okay. Would the first one be T. L. G.? A: Conceivably. Q: You would be concerned if there was a report of a potential million dollar loss that could be attributed to PCBs that a customer had suffered, wouldn't you? A: It would -- it would -- yes, I would be interested to know was that really caused by our product or something else. The fact that it's a halide says that there could be other things that could have caused it. Q: Well, did you ever contact anyone at Tenneco Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076619 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 with respect to the issues raised in Exhibit 224? A: I can't recollect doing that. Q: Okay. Do you know if Mr. Gossage did? A : I can't that. Q: Okay. Would there be anything there that 3 74 A: You know, other than asking Mr. Gossage. He'd be in a better position to know whether he did or didn't. Q: As of this memorandum, though, if you look at the first paragraph, Mr. Stegen expects that Tenneco will be changing their existing offshore platforms in the not too distant future. Did you see that statement in there? A : Yes. Q: Okay. Does that mean that -- that Mr. Stegen is reporting to you that it looks like Tenneco in Lafayette, Louisiana, was going to drain their existing system and then be in the market for a new fill? A: That's the impression I get. Q: Okay. Other than what is said in this memorandum, do you have any independent recollection of any of the matters raised in here? A : No . Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076620 ________________________________________________________________________ 3 7 5 1 Q: Okay. That's all I have for that. I do 2 have one more question, but you don't have to look 3 at the document. Did you ever -- do you have a 4 recollection of ever talking with anyone at Tenneco 5 or anyone affiliated with Tenneco related to the 6 issues discussed in this memorandum? 7 A : No . 8 MR. ROEDER: Would you mark this next 9 exhibit? 10 (Plaintiff's Deposition Exhibit No. 11 225 marked for identification.) 12 Q: (By Mr. Roeder) Exhibit 223 is a letter 13 dated March 6th, 1972, and it bears your signature, 14 doe s it not ? 15 MR. CHAMBERS: Object to the form. I think 1 6 you said Exhibit 223, and it's actually 225. 17 MR. ROEDER: Is it 2 25 ? Is that what it 1 8 is? I must have liked 223. 19 Q: (By Mr. Roeder) Let me rephrase the 2 0 question. Exhibit 225 is a letter dated March 6th, 2 1 1972, and it is signed by you, is it not, sir? 2 2 A : Yes. 2 3 Q: Okay. What is this letter? What was the 24 purpose of this letter? 2 5 A: I can't recall why this one was sent out. Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076621 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 376 Q: Well, the first paragraph of the letter says "We had previously advised your company of our discontinuation of the sale of Therminol FRs series heat transfer fluids, and urged you to discontinue their use in applications where the potential for food contamination existed. We feel certain that you no longer use these fluids." That's what you wrote, correct? A : Yes . Q: "However, we are maintaining records of the actions taken by our customers in this regard. And to update these records, we ask if you will please confirm that you have discontinued the use of Therminol FR fluids in your plants. Please confirm by signing one copy of this letter and return it to Monsanto in the enclosed self-addressed stamped envelope. The other copy is for your files." That's what that says, right? A : Yes. Q: Now, reading that does this refresh your recollection as to what the intent of this letter was ? A: Not really. Q: It doesn't suggest to you that Monsanto wanted to get a signed statement from its customers Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076622 ________________________________________________________________________ 3 7 7 1 that they had stopped using Therminol FR in food 2 related applications? 3 A: It looks that way. I think you asked me why 4 maybe, and I wasn't sure why we had written that. 5 But that's what it does ask. 6 Q: Well, that's what it asks for? 7 A : Yes . 8 Q: And if a customer had signed that and sent 9 it back, do you have that record in your files, 1 0 right? 11 A : Yes. 1 2 Q: Do you know if, in fact, Monsanto received 1 3 signed statements from its customers pursuant to 14 this letter? 1 5 A: I can't remember whether we did or we 16 didn't, and I have no idea today how many we would 1 7 have received. 1 8 Q: When you took over responsibility for the 1 9 Pydraul area, which would have been three months 2 0 after this approximately, right? 2 1 A : Yes. 2 2 Q : Okay. Did you send out a similar letter? 2 3 A : I can' t recall. 24 Q : Okay. Would there be reason why you would 25 send that out in the Therminol FR area, but not in Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076623 3 78 1 the Pydraul area? 2 A: I think in the Pydraul area, if my memory 3 serves me, we had already reformulated away from 4 PCBs, and then later, I think, about the time that 5 -- I think about the time that I took over they had 6 -- were in the process of reformulating again and 7 not have anything chlorinated as I recall. I think 8 that was the chronology more or less. 9 Q: So the idea in the Pydraul area was that - 1 0 strike that. You weren't at the Pydraul area when 11 it was reformulated, correct? That was not part of 12 13 A: No. No. I might have come in at the tail 14 end of going from the chlorinated terphenyls to the 15 nonchiorinated materials. But if that was the case, 1 6 as best I can recall, I would have been right at the 1 7 tail end of it so I would have been inheriting what 1 8 was already almost a fait accompli. 1 9 Q: Right. You wouldn't be making the decisions 2 0 as to how it would be reformulated? 2 1 A: No. No. Do you want me go right to the 2 2 very last page? 2 3 Q: Yes, let me -- Exhibit 17, sir. 24 A : Yes . 2 5 Q: Okay. This is the -- is this a telex that Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076624 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 79 was sent out worldwide to confirm that nowhere throughout Monsanto would PCB containing products be shipped to customers after January 31, 1972, except for dielectric customers? A: That's what it looks like. Q: You received a copy of this telegram? A: Yes. Q: Would that be fair? A : Yes. Q: It's almost quaint now to think of a telegram being sent, isn't it? A: That's right. Q: I think that's what -- you're listed as a carbon copy recipient on the first page of this exhibit ? A: Yes. Q: Is that correct? A: Yes. Q: Okay. And you would have received this in the ordinary course? A : Yes. MR. ROEDER : Okay. That's all I have for that exhibit. (Plaintiff's Deposition Exhibit Nos. 226, 227 marked for identification.) Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076625 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 80 Q: (By Mr. Roeder) 226 is that what this is? A : Yes. Q: Okay. Plaintiff's Exhibit 226, sir, is a document which just simply has reasons for this price increase at the top, and Plaintiff's Exhibit 227 is a memorandum from you, dated March 7, 1972. More particularly, 226 bears production number TRAN 67371 to 67373. Plaintiff's 27 is TRAN 69436. Your memorandum, which is Exhibit 27, attaches an article from the "Wall Street Journal" of the previous day. It discusses tougher legislation from PCBs, correct? A : Yes . Q: Okay. At this point, you were closely tracking what was going on with the proposed or potential bans of uses of PCBs, correct? A : Yes. Q: Okay. Who was this sales bulletin sent to, which is Exhibit 227? A: I cannot recollect specifically, but normally this would have gone to our sales personnel and regional sales manager, sales directors and then with copies to other people in the immediate business area, and sometimes it would have gone worldwide. Sometimes it would have been U.S. only. In this case I can't recall where it went, but there Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076626 ________________________________________________________________________ 3 81 1 were standard distribution lists usually for these 2 kind of things . 3 Q: All right. Did the proposed tougher 4 legislation on PCBs that's reflected in Exhibit 227 5 -- was that related to Exhibit 225 of this same 6 date or the day before where you wanted customers to 7 confirm when they stopped using Therminol FR? 8 A: Again, I can't say. But looking at it, I 9 think it -- I think the two were two different 1 0 action items on my part. 11 Q: Okay. Well, you'll agree that they're very 12 close in time, correct? 13 A: Yes. 14 Q: Now, the proposed tougher legislation on 15 PCBs, how did you hear of that? 1 6 A: Well, I have to think that that article that 1 7 was the message I got from that article, because I'm 1 8 attaching this article which apparently -- I can't 1 9 say for sure, because I can't remember the article 2 0 at all now. But what I had said was "Attached is an 2 1 article from the 'Wall Street Journal' of March the 22 6th on tougher legislation for PCBs being proposed 23 by the FDA." 24 Q: Sure. I realize that's what the memorandum 2 5 says. Did Monsanto have any lobbyists that it had Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076627 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 82 retained in Washington with respect to this issue? A: Not that I recall. Q: Not at your level? A: No, and I can't recall any. Q: The ANSI group, which was set up with Mr. Benignus, was part of an effort to influence public policy, though, wasn't it? MR. CHAMBERS: Object to the form. A: I cannot recall that part of it. Q: (By Mr. Roeder) Would Mr. Benignus be the person to ask questions with respect to that? A : Abs o1u t e1y. Q: Okay. Now, in your March 7 memorandum on the functional fluids stationery sales bulletin number 72, which is Plaintiff's 227, you write "Please publicize this information as widely as you can. It now appears Monsanto's voluntary ban helped industry by giving them lead time they won't get from the government." You wrote that, correct? A : Yes. Q: Did you think that was correct when you wrote that? A: I'm sure I did. Q: Do you think that's correct today? A: I have no way -- I haven't given it -- you Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076628 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 83 know, I haven't thought about it. Q: Now, the Exhibit 226 discusses reasons for this price increase. And if you look at the second page , sir, it's your signature on there, isn't it? A : Yes . Q = Okay. So you wrote this document? A : Yes. Q : Okay. Number one, the reasons for this price increase, that would relate to dielectrics, correct ? A: You can infer that, because I talk about Aroclor 1016 and dielectrics, yes, almost certainly Q: Paragraph one refers to the same attached "Wall Street Journal" article, March 6th, 1972, correct? A : Yes . Q : Okay. And that's the same one that's attached at least on the original to Exhibit 227? A: Yes. Q: Okay. You write "Monsanto has voluntarily gotten out of much of its PCB business to protect the environment and to preserve the continued usage of these products and dielectrics." That's what you wrote at Monsanto in March of 1972, correct? A : Yes . Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076629 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 84 Q: You continued "All of our efforts in PCBs have been made to enable us to continue to supply dielectrics to the electrical industry." That's what you also wrote, correct? A : Yes. Q: Was that true when you wrote that? A: At the time, I must have thought it was true, or I wouldn't have written it. Q: As the attached "Wall Street Journal" article shows, March 6th, 1972, "The government may make our voluntary ban a permanent one." That's, again, reflecting the proposed tougher legislation on PCBs you had mentioned in Plaintiff's Exhibit 2 2 7, corre ct ? A : Yes . Q: Once you got out of the business of selling PCBs to anything other than dielectric customers, you raised the price for the dielectrics, correct? A: Yes. Q: . How much did they go up? A: I cannot recall. I don't know if it says in here. That part I don't see. I can't remember. I know our costs were going up. Q: Well, if you look on the last page of this exhibit, it talks about thousands of pounds and Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076630 ________________________________________________________________________ 38 5 1 percentage of total of sales and millions of pounds, 2 I should say. This doesn't help you with that 3 calculation, I take it? 4 A: Well, it says that from '67 to '70 our total 5 sales would have been, if everything was being 6 supplied, 63,000,000 pounds, which would have 7 increased, if there had been no PCB issues, to 72 by 8 1970. As a result, it was now probably in the 9 40,000,000 pound range. So that's a decrease of 1 0 what -- well, it's a decrease of 44 percent in 1 1 volume in 1970, I guess. 12 Q: All right. So the inability to sell the 1 3 PCBs to the other uses had decreased your PCB 14 business by about 44 percent as of the number 15 reflected in that memorandum? 1 6 A : That's right. 17 Q: In fact, that's the reason for your price 1 8 increase that's reflected in paragraph two here of 1 9 this memorandum, correct? 20 A: Yes. 2 1 MR. ROEDER: That's all I have for that 2 2 exhibit at this time. 2 3 (Discussion off the record.) 2 4 MR. ROEDER: Would you mark this as the next 25 exhibit, please? Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076631 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 386 (Plaintiff's Deposition Exhibit No. 228 marked for identification.) Q: (By Mr. Roeder) While you're looking at that, sir, I'll identify it for the record. Plaintiff's Exhibit 228, which is a memorandum from H. S. Bergen to R. H. Munch, dated April 3, 1972. You are a carbon copy recipient, and it bears production number TRAN 67976 through TRAN 67978. A : Okay. Q: This exhibit dated April 3, 1972, is this one of the exhibits that you looked at in preparation for your testimony? A: I think I did see this. I think I did. Q: And just so I don't forget, did you look at Plaintiff's Exhibit 227, 226 and 225 in preparation? A: 227, no. 226, no. 225, no. Q: Okay. 228 you did look at? A: 228 I -- yes, I recall seeing that. Q: All right. Do you know whose handwriting that is, sir, on the exhibit? MR. CHAMBERS: You're referring to the first page, right ? MR. ROEDER: Yes, I am. A: It might be Bill Richard. It might be Bergen's own. I'm not sure. Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076632 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 387 Q: (By Mr. Roeder) All right. But the memorandum this is from Mr. Bergen, who was the director of the organic division, correct? A: He -- I don't know if he was total organic division, but he was certainly -- he was in charge of certainly all the fluids operations and maybe some others. I can't recall. Q: All right. Compliments Mr. Munch and Mr. Benignus. "On the statement of overall strategy you have presented, you are also to be complimented on your assessment of the technical and commercial risks, and the 'wheel of fortune' that you have developed." That's what it said, correct? You have to answer yes or no. A: Yes. Sorry. Yes. Q: And you're listed as a carbon copy on this? A: Yes. Q: So you would have gotten this in the ordinary course; is that correct? A: Yes. Q: What was the wheel of fortune that Mr. Benignus and Mr. Munch had developed? A: I -- you know, for the life of me, I can't remember that. Q: All right. Mr. Bergen goes on "In order to Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076633 ____________________________________________________________ ___________ 3 8 8 1 make a total dielectric fluid strategy, I feel this 2 should encompass the total team effort of research, 3 marketing, manufacturing, engineering and the 4 medical department. We should get a specific 5 timetable on who, what and when. Normally these 6 types of strategies are prepared by marketing, and 7 Tom Gossage has asked Cumming Paton to take on the 8 overall responsibility of making a total strategy." 9 That's what that says, correct? 10 A: Yes. 1 1 Q: So was that, in fact, what happened that you 12 were assigned the task of making a total strategy 1 3 for the total dielectric fluid strategy? 14 A: This refreshes my memory. I wouldn't have 15 remembered it without this, but yes. 1 6 Q: Okay. What was encompassed in making the 17 total dielectric fluid strategy? 18 A: I can't recall the details of what it 1 9 involved today. 2 0 Q: Well, in general. 2 1 A: In general, as Mr. Bergen says, it has to 22 encompass all the functions of the business. And in 2 3 this case clearly since Bergen is saying that 24 somebody that feels strongly about the strategy has 2 5 to address them, and then it would have -- I would Gore & Perry Reporting Co. St. Louis. Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076634 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 389 have got from Munch and Benignus what was it that caused them to do -- if I didn't, then I probably had already got copies of the technical, commercial risks and the wheel of fortune. Munch and Benignus, which apparently felt very strongly about this, weighed in with the -- with what I heard from Bergen, and then I'd have put my own thinking together as to what direction the business should be headed, what the issues were and then do an analytical and economic projection. If we were to be looking at new products, you know, what steps would have to be taken, who would be involved in those and milestones to evaluate where we were going, and also looking at what competitors might be doing in this non-PCB replacement area. So I'd follow, to some extent, the kind of strategy that - you know, a program that you would have for development of any new product, because where we're clearly headed was in a new product direction. Q: Okay. So you were the point guy with respect to the overall strategy plan - A : Yes . Q: -- at this point? A : That 's right. Q: Now, Mr. Bergen reflects several things he Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076635 ________________________________________________________________________ 3 9 0 1 feels strongly about. Number one, "The recent 2 Japanese action of banning all PCBs for all uses, 3 including dielectric use, may cause a political and 4 emotional reaction both in the U.S. and abroad." 5 That's what he wrote there, correct? 6 A: Yes . 7 Q: Now, does this refresh your recollection as 8 to when the Japanese banned PCBs for all uses 9 including dielectric use? 1 0 A: Well, it says it must have happened fairly 11 recently just before April the 3rd I would imagine 12 from what I read here. 13 Q: So at this point, do you recall there being 14 a lot of factors moving the potential ban as the 15 "Wall Street Journal" is reporting in the March 16 6th, 1972, editorial, correct? 17 A: Yes. 18 Q: We've got the Japanese banning it for all 1 9 purposes; is that correct? 2 0 A : Yes. 2 1 Q: So things are really coming to a head at 2 2 this point? 2 3 A: Yes. 2 4 Q: Mr. Bergen says "We must explain why their 2 5 reaction is different from ours. " Paul Benignus is Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076636 ________________________________________________________________________ 3 9 1 1 writing this up. Why was the Japanese reaction 2 different from yours? 3 A: I don't recall. I do recall that initially 4 we had gone to our -- we had a joint venture in 5 Japan, and we had gone to them saying "Here's what 6 we're going to do." They were -- they had gone 7 along with some of our recommendations. They were 8 still considering others. We recently saw something 9 that Ned Greene had gone out on a worldwide basis 1 0 saying "Here's what we're doing worldwide." It 11 would not -- from my experience, the Japanese don't, 12 you know, usually take time to reach a consensus. 13 Once they do it, they do it. And they may well have 14 had, you know, a consensus building exercise in 15 their own country, and one of the other producers of 16 those products saying "You know, is this a problem? 17 How are we going to address it?" But, you know, 18 part of that is speculation. 19 Q: Mr. Bergen continues "We must alert our 2 0 people as well as our customers on this move." That 2 1 would be the Japanese decision, correct? 22 A : Yes. 23 Q: He continues "The Japanese announcement will 2 4 add fuel to the fire that replacements are possible 2 5 in both internal and external and easiness will Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076637 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 92 result." Would you agree with that statement? A: Yes. Q: Okay. Did it, in fact, add fuel to the fire that replacements were possible for the dielectric uses of PCBs? A: I think it added some impetus, but it didn't -- as I recall now, it didn't add a lot of fuel to the fire, because we got into issues like, you know, well, what -- you know, what fire standards were in place in different countries, and what they -- were they willing to tolerate in things like capacitor failures and things like that. So again, you know, there were -- there were similarities and there were differences. But I think what was happening is that it added momentum to the search to find alternatives . Q: Well, at some point prior to this, weren't you hearing information from companies such as GE that "If you take away our dielectrics, we may have blackouts in our major cities"? A: I vaguely remember hearing something about that. Q: That was kind of the doomsday scenario that was being portrayed as a possible result if the dielectric industry could no longer use PCBs, Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076638 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 93 correct? A : Yes. Q: Okay. Now, do you recall the Japanese having large blackouts as being a major problem? A: I can't recall. Q : Mr.. Bergen requests that "We must anticipate this, the uneasiness, and develop plans to handle this situation." Strike that. I think what he's referring to is the Japanese announcement that replacements are possible, and he asks you to anticipate this and develop the plans to handle this situation. Do you see that there? A : Yes. Q: What did you do to develop plans to handle that situation? A: I cannot today recall specifically what I did to handle that situation. I'd have put it as part of the overall strategy. Q: Mr. Bergen also talks about the Monsanto special undertaking and the requirements for either $50,000,000.00 net worth or suitable insurance coverage that would require or trigger the smaller manufacturers to look for substitutes. Do you see that ? A : Yes. Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076639 ________________________________________________________________________ 39 4 1 Q: Was that, in fact, the requirement that 2 Monsanto had put in place that anybody who bought 3 dielectrics that contained PCBs either had to have 4 $50,000,000.00 in net worth or suitable insurance 5 coverage? 6 A: I remember that. 50,000,000 probably was 7 the right figure. You know, if I had been asked 8 independently, I wouldn't remember the figure but, 9 yes, these were the requirements. Either have the 1 0 net worth or get insurance to cover it. 11 Q: Okay. Now, the next page, page two of this 1 2 memorandum Mr. Bergen advises you and others that 13 Westinghouse and other manufacturers had told him 14 that they are concerned that the government or even 15 Monsanto might legislate against them and they must 16 be prepared for the alternatives. Do you see that? 17 A: Yes. 1 8 Q: You were concerned that the government would 1 9 shut it off immediately, weren't you? 2 0 A: Yes. 2 1 Q: Okay. Or at least after whatever time it would be required to either pass a bill or have some kind of ban imposed by a governmental agency, correct ? A : Yes. Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076640 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 95 Q: Okay. What was the strategy that Mr. Bergen was here with respect to developing new product s ? A: I think, you know, it's difficult for me to go back to the time frame and know everything that Howard was thinking about. I read in this memo a strong emphasis on us doing what we could to find new products and going out and getting them evaluated as soon and effectively as we could. I see in this part of this strategy a lot of what I talked about earlier, this new product development app roa c h. Q: So you would develop a product, but before you could sell it you would need to have one of your customers use it? A: Very rigorously, yes. Q: So that you would get some kind of idea as to how well it performed under actual conditions; is that correct ? A:' Yes. Q: Was there a crisis going on at this time? Would that be a fair way to characterize it? MR. CHAMBERS: Object to the form. A: I wouldn't -- you know, I would not have - from my perspective, yes, life was challenging but, Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076641 ________________________________________________________________________ 3 9 6 1 you know, I didn't feel I was in a crisis 2 a t mosphere . 3 Q: (By Mr. Roeder) Under paragraph numbered 4 four Mr. Bergen is relating the recent episodes on 5 timing of the NC phosphate project and the NCR 6 Santosol 100 project, and he requests that we get 7 everyone involved so the crisis element is 8 minimized. Do you see that? 9 A : Yes. 1 0 Q: What's he mean by that? 11 MR. CHAMBERS: Object to the form. 12 Q: (By Mr. Roeder) What did you understand him 13 t o me an? 14 A: I can't remember what I understood about it, 15 but the NCR Santosol 100, Santosol 100 was a product 16 that, as I recall, was a non-PCB replacement for - 17 for Aroclor. I don't think -- in fact, I'm almost 18 certain that I don't think I had responsibility for 19 that. I think that went back into the plasticizer 2 0 group since it was no longer considered a PCB. The 2 1 NC phosphate, I can't recall what that was either. 2 2 So from his perspective, these have been problems, 2 3 and maybe these particular projects had got 24 themselves into a crisis atmosphere. But I did not 25 sense at the time that we were, you know, we were in Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076642 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 97 a crisis. Monsanto and Munch had done some looking. I mean over years they had looked at possible products that could be better than PCB and so on and so forth. So they weren't -- also, they had a long way to go to commercialize a product. They weren't actually starting from absolutely ground zero in terms of, you know, having -- so it was a thing that properly coordinated and set out and managed. We would do our best. We couldn't guarantee success, but I didn't see it as a crisis. Q: Well, but the answer is you don't know what he meant by that? A: But I don't know what he meant by that. Q: That's all I have for that document, sir. (Plaintiff's Deposition Exhibit No. 229 marked for identification.) Q: (By Mr. Roeder) Exhibit 229, sir, is a memorandum from E. Greene to J. P. Berndt, and J. R. Durland, P. A. Klingsporn and A. D. Lapthorne. A: Yes. Q: Who are those people? A: These would be regional people. Durland was in Tokyo responsible for Monsanto's overall businesses in Japanese, particularly the Japanese joint venture with Mitsubishi. Lapthorne was head Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076643 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 398 of our operations in Australia, New Zealand. Klingsporn now where was he? What part of the world did he have? Joe Berndt had India Africa, I believe. And I can't now -- Klingsporn might have been Latin America. I've forgot now. Q: All right. There's handwriting that says "J. F. the book implementation. " Do you see that? A : Ye s . Q: Does that J. F. stand for Jack Fallon? A: I would -- I doubt it. It might have been his secretary or conceivably -- let's see. I wouldn't have thought it was Jack Fallon but, you know, J. F. might have been his secretary. I don't know . Q: His secretary meaning Mr. Bergen's secretary? A: Yes, but I'm just -- oh, no, wait a minute. It's Ned Greene. Okay. So -- wait a minute. This is Bergen's copy. I really don't know. Q : Well, it looks like there is -- A : I don 11 t know. Q : Well, let me - - let me see. Maybe we can we can work our way through this. It looks like there's an arrow pointing to Mr. Bergen, doesn't it? A : Yes . Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076644 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q: All right. And if you look at Exhibit 228, 3 99 the one you just put down, there is a -- if you pick it up and look toward page three, there's a back slash J. F.? A : Yes. Q: J. F. was Mr. Bergen's secretary or initials for his secretary? A: I can't remember who it was, but it's conceivable that's who it was. Q: Well, it was the practice at Monsanto that whoever typed up a document such as a memorandum would put his or her initials in lower-case on that document, correct? A: That was a frequent occurrence. I don't know if it was universal, but it frequently happened. Q: Okay. That happened, for example, Exhibit 22 7 there ' s a C . S . ? A: Q= A: Q : of your secretary? A: Q: probably Mr. Bergen's Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076645 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 00 A : Yes. Q: Now, was that handwriting Mr. Bergen's? A: It looks like it. Q: Okay. Who is Mr. Greene? A: Mr. Greene was an international, and had some sort of a director administration coordination type role as to what happened throughout our international operations. Q: All right. You received a copy of this document ? A : Yes. Q: And as you read this document, this was Mr. Greene telling the people worldwide what the policy was with respect to PCBs, correct? A : Yes . Q: Okay. And he was attempting to confirm compliance with the policy worldwide, correct? A: Yes, if it was being complied with, yes. MR. ROEDER: Okay. That's all I have for that document. (Plaintiff's Deposition Exhibit No. 230 marked for identification.) Q: (By Mr. Roeder) Exhibit 230 is a memorandum that you sent enclosing a memo from Bob Sido, correct ? Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076646 ________________________________________________________________________ 4 0 1 1 A : Yes. 2 Q: Okay. Did you -- it relates to PCB tank car 3 1abe1ing ? 4 A : Yes . 5 Q: Dated April 10, 1972. This relates to the 6 new label that would be put on all the tank cars 7 that would ship PCBs at this point only for 8 dielectric uses, correct? 9 A : Yes. 1 0 Q: What was the reason to change the label that 11 would go on PCB tank cars? 1 2 A: The specifics of it escape me now. 13 Q: Well, in general, your memorandum reads "Our 1 4 dielectric tank car fleet will be permanently 15 labeled with a cautionary statement on PCBs. In 1 6 addition, tags containing standard PCB product 17 labels will be affixed to seals, et cetera, on the 1 8 bulk loads, " correct? 1 9 A : Yes . 20 Q : Prior to this time the tank cars did not ' 2 1 contain the cautionary statement, correct? 22 A: They would have contained statements of some 2 3 sort. This was a change, and I can't recall what 24 they were before this and after this. 2 5 Q: If you look, attached to this exhibit there Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076647 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 402 is a leak or spill label that's going to be put on each of these and attached on the next page, which is production number 88380, is a copy of the leak or spill label? A : Yes. Q: So that wasn't there previously, right? A: I'm not -- that might have been there before. It's conceivable that the part that was added is this part in the middle column. I'm not, you know -- I'm not the one to ask that and I don't have access. You know, I don't have the information to say what was changed. This doesn't say what was changed and what wasn't . Q: Well, but the -- this page. And I'm pointing to the one that has production number 88379 shows where PCB leak spills are going to be put on the tank cars, right? A : Yes. Q: You're sending this memorandum out. Is this part of your responsibility for the PCB strategy that you'd be sending this memorandum out? A: This would not be related to the PCB strategy that Mr. Bergen referred to. This would be part of my day-to-day duties and communication communicating to the field sales force what was Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076648 _____________________________________ ;__________________________________ 4 03 1 happening as far as their interface with the 2 customer would be concerned. 3 Q: All right. So this is part of your duties 4 as product manager? 5 A: Yes, exactly. 6 Q: All right. 7 (Plaintiff's Deposition Exhibit No. 8 231 marked for identification.) 9 Q: (By Mr. Roeder) Okay. You have Exhibit 1 0 231, sir? 11 A : Yes . 12 Q: All right. Another memorandum from you 13 dated a couple of days later, a dielectric 14 presentation to PCB task force, dated April 12th, 1 5 1972, production number TRAN 86234 to 86236. And 1 6 this reflects a meeting of April 10th, 1972 1 7 correct ? 18 A : Yes . 1 9 Q: Okay. You were in attendance with Drs . 2 0 Kellers, Munch, Mr. Benignus and Mr. Papageorge, 21 right? 2 2 A : Yes . 2 3 Q: Okay. What was the dielectric presentation 24 to the PCB task force? What was it about? 2 5 A: See if this refreshes my memory. Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076649 1 2 3 4 5 6 1 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 04 Q: Sure. Well, take -- take whatever time you need. A : Okay . Q: All right. Have you had an opportunity to look at Exhibit 231? A : Yes. Q: Now, your memorandum, Exhibit 231, references a PCB presentation before the PCT PCB task force tentatively set for mid May? A : Yes . Q: Okay. What was that task force about, or what was the presentation going to be? A: Well, the task force, as I recall, was this group, interagency group here. Q: So this was going to be a presentation to the governmental PCB task force? A: Yes. Yes. Exactly. Q: And people that you expected to be in attendance at your presentation tentatively set for mid May 1972 would be Dr. Burger from the Office of Science and Technology. Environmental Quality will be Terry Davis. Task force co-chairman, Muir, M-U-I-R. He's the guy that was referenced in that earlier memorandum, wasn't he? A : Yes. Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076650 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 05 Q: Exhibit 221? A: Yes, Warren Muir. Q: Right. From the Council of Environmental Quality. And you've written "He came to St. Louis with Riseborough, et al . " That -- that relates, doesn't it, sir, to the meeting that was held on Friday, January 21? A: Probably, yes. Q: All right. The EPA and FDA were going to send people, correct? A : Ye s . ` Q: The USDA, Department of Commerce, Bureau of Standards, Department of Interior and somebody from the National Institute of Health Sciences, NIH . Was there such a meeting held? A: I cannot -- I cannot recall. I have no reason to doubt that it wasn't held, but I can't recall. Q: Okay. Well, this is -- this is forward looking at the time you prepared this memorandum? A: Yes. Q: So if you go to the next page, you indicate what you had previously covered in presentations to the same task force, right? A : Yes. Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076651 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 06 Q: So you brought them up to speed on your analytical methods on PCBs? A : Yes. Q: Okay. What does that refer to? A: That would refer to what capability Monsanto had. Maybe only Monsanto. I'm not sure. But certainly what Monsanto had in their capability to detect PCBs with what accuracy at what levels, and possibly what other procedures, technologies, capabilities might be. But probably -- okay. I shouldn't speculate. It would certainly have ours. And whether it had other peoples' I don't know. Q: All right. Then you brought him up-to-date on the uses of PCBs and Monsanto's withdrawal program? A : Yes. Q: And the withdrawal program is something in effect we've been discussing all day, right? A : Yes. Q: The attitude of competition and foreign governments to PCBs, that was covered? A: If I said -- if I said here it was, it must have been done. Q: Do you just recall, in general, what the attitude of competition was with respect to PCBs at Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076652 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 07 this time? A: I think most of those were continuing to sell. The Japanese had continued now obviously as we just saw recently. They had a change of heart, you know, just prior to April. But up to then they had been going along. There was -- I think there were maybe three in Europe. France was a major producer. Bayer in Germany. And there was an Italian company. In Europe they did not seem to be -- you know, they were not acknowledging that there was a problem in taking steps in the same way that we were in the U.S. Q: But the foreign governments at this time were having differing - A: Views on the subject as I recall vaguely. Q: All right. Sweden had a different view. Sweden had banned them, right? A: I can't recall if they had outright banned them. Clearly because of the Jensen Widmark thing, there probably wasn't much of an atmosphere for wanting them to continue. Q: All right. And toxicity relates to the toxicity of the problem of the product, correct, how toxic it was and what amounts to what types of life forms? Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076653 ________________________________________________________________________ 4 0 8 1 A: It probably would have been, you know, 2 covered the type of tests that we had sponsored or 3 work that we had done to determine how toxic they 4 were or weren't, yes. 5 Q: Right. And that would be the tests 6 Industrial Biotest had done? 7 A: Yes, and any other published reports and 8 studies . 9 Q: All right. Now, the action there is from 1 0 Mr. Papageorge W. B. P. to circulate copies of notes 11 used by John Mason at prior presentations to R. E. 12 K., that's Dr. Keller, to you, to Mr. Benignus and 13 to Dr. Munch to ensure consistency, correct? 14 A: Yes. Yes. 15 Q: Why were you concerned about consistency? 1 6 A: Well, I think, in any event, you want to - 1 7 if there's been -- it doesn't necessarily -- If 18 there hasn't been an error made, you wouldn't 1 9 correct it. But, you know, you don't want to be 2 0 presenting two different sets of data on the same 21 thing unless you have valid reasons why one thing 2 2 has changed from now to then. 2 3 Q: Okay. So you have written that's done? 24 A : Yes . 2 5 Q: So you've got the copies of notes so that Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076654 ________________________________________________________________________ 4 0 9 1 you could ensure consistency. Then you had 2 objectives that had been agreed upon for the May 3 presentation. One was to present Monsanto's 4 biodegradation data on PCBs to dispel the half-life 5 notions on PCBs; is that correct? 6 A : Yes. 7 Q: What's that refer to? 8 A: To get an answer to that, you'd have to talk 9 to someone in the technical research area. I -- you 1 0 know, my chemical knowledge is getting rusty. I 11 know what a half-life means, but I can't now recall 12 exactly what it meant in terms of this. 13 Q: Okay. Well, in terms of what a half-life 14 means, generally, what do you understand that term 15 to mean? 16 A: Well, it's how long does it take before half 1 7 of it has got broken down. Another thing is half of 18 it still remains. 1 9 Q: Okay. All right. You thought you could 2 0 justify the use of Aroclor 1016 in capacitors on the 2 1 basis of, number one, the biodegradation data? 22 A : Yes . 23 Q: Now, Aroclor 1016 broke down more easily 24 than the higher chlorinated Aroclors, correct? 2 5 A: Yes, because 1016, as I recall, was Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076655 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 10 basically a mono, what they call monobiphenyl. So you only had one chlorine atom there. So you had one benzene ring and didn't have any chlorine on it at all. So it's reasonable to see that that would be easier to deal with, you know, than ones that had two or more. Q: All right. Then three would be the decrease in the "hard IE five chloro and higher PCBs in the environment " ? A : Yes. Q: That's the same thing Mr. Benignus is writing in his memorandum about how the bad PCBs if I can use that term without an objection? MR. CHAMBERS: Object to the form. A: More biodegradable versus less biodegradable. Q: (By Mr. Roeder) All right. So now I've got to reask the question because of the objection. That's the same thing Mr. Benignus was referring to in his memorandum that we discussed earlier, correct ? A: Correct. Q: All right. And you wanted to get the task force to back off from the zero detectable limits of PCB in plant effluent. That was an objective you Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076656 4 11 1 wanted? 2 A : Yes. 3 Q: Okay. Why was it important to get them to 4 back off of that zero detectable limit standard? 5 A: Because the phrase "zero detectable" is 6 really a moving -- somewhat of a moving target. 7 Zero detectable by what? Under what conditions? 8 You're better to come off and establish -- if it 9 says -- it implies that you can never get, you know, 1 0 measure absolute zero. You can get very close, but 11 you can never quite get there. So you're left with 1 2 a degree of fuzziness. So you want to come up and 13 say "Okay, you know, if it's above this level, it's 1 4 not acceptable. If it's below that level, we're 15 prepared to accept." But that's a much -- you know, 16 that's a much stricter and something that can be 1 7 complied with much better than coming up with 18 something that's zero detectable. I mean I can do a 19 test and say "Well, gee, by the way, I did it. I 2 0 didn't see anything." You come in and you say "Gee, 2 1 I found something. " 2 2 Q: So you needed to have? 23 A: A more strict definition. 2 4 Q: And a more objective definition? 25 A : Exactly. Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076657 ________________________________________________________________________ 412 1 Q: All right. Okay. You were going to do, on 2 the assignments in getting the first drafts for this 3 status report that you would present to this 4 committee, the hard PCB/degradable PCB statistics. 5 That's what you referred to earlier, isn't it? 6 A: Yes. 7 Q: You thought you'd put this information 8 together, correct? 9 A -. Yes. 1 0 Q: So it was in connection with this 11 presentation to the intragovernmenta1 PCB task 1 2 force? 1 3 A: That might have well been the beginning of 1 4 it, yes. 1 5 Q: All right. Now, your memorandum continues 1 6 to down below to refer to the need to be aware of, 1 7 number one, GE and Westinghouse approaches to OST, 1 8 which would be Office of Science and Technology? 1 9 A : Yes . 20 Q: What were those approaches? 2 1 A: I can't recall what they are now. 2 2 Q: Okay. But you wanted Monsanto to be 2 3 consistent with them, correct? 24 A : Yes . 2 5 Q: Okay. Why was that? Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076658 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 13 A: It would be to the extent that -- that we - we had a contribution, that that would be consistent with what they said that they knew some parts about their business and products that we didn't so there was -- you know, we were trying not to -- to be reasonably accurate in what we said. Q: Okay. There was another meeting that was going to be scheduled between April 21 or 24? A : Yes . Q: Would you have attended that meeting? A: The likelihood is I would since I was, you know, the recipient, and also I had some data to prepare. So the odds are I would be there. MR. ROEDER: All right. That's all I have for that exhibit right now. (Plaintiff's Deposition Exhibit No. 232 marked for identification.) Q: (By Mr. Roeder) Exhibit 232 is a memorandum from you to Mr. Papageorge regarding labeling and warnings. What was the purpose of this memorandum, sir? A: Okay. This -- Mr. Papageorge was, if you like, the product -- I think product stewardship was the word that was used for his job at Monsanto. It was to make certain that we complied with the. Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076659 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 14 regulations that regards the use of products, the way they were shipped and so on. There were people whose job it was in distribution and in order and billing. In distribution they had to comply with the -- the regulations of the carriers be they OSHA or rail or road. Billing that had to fill the orders and send paperwork to freight forwarders and people like that. And there were a great deal of regulations pertaining to labels and symbols and so on. True to form, the U.S. followed one and our English speaking allies across the pond tended to use another. And they -- that also got, of course, entangled with the common market and continental Europe. And so getting things done in Europe just took longer and was more complicated. But what I was trying to do here was to let Bill Papageorge know where we stood in all of these from the standpoint of him as a kind of an overseer of how well we were complying with the directives that management had put upon us. Q: Okay. I notice, sir, that on this document you have carbon copied Mr. Stapleton again in the law department, right? A : Yes. Q: Were you carboning Mr. Stapleton because you Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076660 ________________________________________________________________________ 4 1 5 1 wanted him to be aware of what you were putting or 2 wanted to put as a warning with respect to the drums 3 or your invoices or your order acknowledgments? 4 A: It might have been an element of keeping him 5 informed, because he probably would have looked - 6 he would have looked at the final wording. I would 7 have looked to -- also Sido's name is not on here 8 strangely enough. There was a man called George 9 Sido in distribution that was kind of the -- you see 10 his name mentioned here in the front page, who was 11 familiar with all the symbols and terminologies and 1 2 rules for setting what went on labels. So you 13 couldn't get people misinterpreting. We talk about 14 clerks in here. You know, from one company we say 15 this and so on. Sido would have come up and said 1 6 "Here's what I suggest." Then other people would 1 7 have looked at it in the distribution chain and seen 18 if there was any problems. If it reached my desk, I 1 9 then looked at it and said "Okay, they're accurate 2 0 in the words they used pollinated, chlorinated 21 biphenyls. Do I have any problems from an accuracy 2 2 from the message you were trying to get across?" 2 3 Then I would have sent it to probably to Papageorge 24 and Stapleton saying "Now, look are we ready to sign 2 5 off on this" and set the whole nine yards rolling. Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076661 4 16 1 That's how it -- and then it would have gone in to 2 Sido to take a lot of the action, distribution 3 various other people and gone overseas as well. And 4 there would have been coordination between me and 5 Europe as to -- as to how that was all being 6 handled. ' 7 Q: All right. There is a D. C. Jones that I 8 have not seen before or I don't think you've 9 testified to. Who was he? 1 0 A: And I honestly can't remember now. 11 MR. ROEDER: Okay. That's all I have for 12 this document, sir. 13 (Plaintiff's Deposition Exhibit No. 14 233 marked for identification.) 15 Q: (By Mr. Roeder) Exhibit 233, sir. 16 A : Yes. 17 Q: Is a letter that you wrote and signed dated 18 May 25, 1972, correct? 19 A : Yes. 2 0 Q: Okay. Production numbers TNGS 2836. Under 2 1 this letter you were advising Therminol FR customers 2 2 that the offer that you had previously extended, 2 3 with respect to paying for the freight incurred in 24 connection to Therminol to you for disposal, was 2 5 going to be revoked effective July 1, correct? Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076662 4 17 1 A : Yes. 2 Q: Why was that offer put in place initially? 3 What was your purpose? 4 A: I think -- let me see if I can refresh. My 5 memory isn't clear on this. I think it was an 6 assistance. We had established a facility that had 7 reached temperatures high enough to incinerate. At 8 9 10 11 that time, that appeared to be the only way you could dispose of these products. We had made it available. And to be helpful to help counter all the inconvenience that they were, you know, having 1 2 to put up with, we would do it for a certain period 13 of time. It would be done free. And by allowing, 14 offering it for a certain number of -- six months 15 comes to mind. It may or may not have been right, 16 but that's what I vaguely remember. That that would 1 7 be a way of them getting it done fairly quickly as 1 8 opposed to us then having -- you know, this might 1 9 drag on and on and on. And then by establishing a 2 0 deadline, okay, that might also get the others that 21 hadn't a way to speed up. And then after it would 2 2 be -- you know, it would a few stragglers that would 23 24 25 be left. Q: Also, it was an encouragement, was it not, for them, if they were going to require a new fill Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076663 ________________________________________________________________________ 4 18 1 on a system that they had drained, that they would 2 think more highly of Monsanto and might be more 3 inclined to purchase more product from you? 4 A : Yes. 5 Q: Now, this -- the offer was terminated 6 effective July 1, 1972, wasn't it? 7 A: Yes, as best I can remember. I mean I don't 8 remember the date. But this would say -- if I said 9 it in here, the odds are it was. 1 0 Q: All right. That's all I have for that. 11 Again, with respect to this exhibit, it was dated 1 2 May 25, 1972? 1 3 A : Yes. 1 4 Q: Had you been given the responsibility with 15 respect to Pydrauls at that point? 16 A: I can't recall. 1 7 Q: Okay. Maybe this will help. 1 8 (Plaintiff's Deposition Exhibit No. 1 9 234 marked for identification.) 2 0 MR. CHAMBERS: Should we invest the time to 2 1 review the whole thing, or will there just be one 2 2 portion of it? 2 3 MR. ROEDER : I don't want to invest the 24 entire time. 2 5 Q: (By Mr. Roeder) Why don't -- why don't I Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076664 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 19 just draw your attention, sir. A: Okay. Q: I will -- I will acknowledge that you were a very prolific writer at Monsanto. You wouldn't contest that, would you? A: People accuse me of having shares in the paper industry. Even my wife says that, because she looks at our storage area. Q: Sir, Exhibit 234 is a memorandum you wrote to Mr. Gossage, dated June 9th, 1972. It's a monthly report for May 1972? A : Yes. Q: And one of the problem areas that you reference here in number one on the first page is the inability to command the anticipated premiums for your straight PE Pydrauls on the basis of technical superiority. Do you see that? A : Yes . Q: Okay. You would write these monthly reports at the end of the month? A : Yes. Q: Okay. So if you were writing a monthly report for May 1972 that dealt with Pydrauls, would it be fair to say that you had the Pydraul responsibility for that month of May? Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076665 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 420 A: Maybe not the entire month. I could have well have taken over on the first of June, but then I would have had to pick up. Q: And explain what had happened the previous month? A: Exactly. Q: All right. Okay. In any event, as of June 1972, you were -- you had the Pydraul responsibility? A: Yes, that's what this indicates. Q: And if there were earlier monthly reports that you had written to Mr. Gossage that reflected Pydraul discussions, in your mind would that suggest that you had the Pydraul responsibility for that mont h ? A : Yes. Q: At least at some point? A: For at least I would have been involved at the time that the monthly report was due. Q: All right. When was the monthly report due? A: It was usually due within a week or so after the -- you know, so many working days after the end of the month. Q: Because it's not very relevant to get information about June if it comes in August, Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076666 421 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 correct ? A: That's right. By the same token, you've also have to get time to -- because in those days, although we had computer runs, they didn't -- you know, they weren't instantaneous. We didn't have PCs . . Q: Right. It took a few days to get this, type it up assemble it, et cetera. The PE Pydrauls that you reference in your memorandum to Mr. Gossage, what were they? A: As I recall, these were the -- and I can't -- I don't know -- I can't remember what the PE was. But these would have been the ones that we were -- would have been used in the chlorinated product free Pydrauls. Q: Would PE stand for phosphate ester? A: That -- that probably is right. Q: Okay. So these were the non-PCB Pydraul formulations? A: That's right. Q: Okay. So when you tell them that you're unable to command the anticipated premiums on the basis of technical superiority, you're telling them that the product wasn't operating as well as you had hoped, or that it really was a technical superior Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076667 ________________________________________________________________________ 42 2 1 product, but you weren't able to charge what you 2 hoped you could charge for it? 3 A: It could be either. You know, I can't 4 recall now which it was. 5 Q: Okay. And you can see both interpretations 6 of your statement there, correct? 7 A: Possibly. Although, it might well just have 8 been the cost one. The price one might have been 9 the basis. Yes, we had the technical superiority, 10 but the competition was coming in lower. I can't 11 say for sure which one it was. A combination maybe. 1 2 Q: You also write "Difficulties exist in 13 product cost due to the processing necessary to pass 14 emulsion tests and getting free phenolic levels that 1 5 are down to the levels of competition." Does that 1 6 help you where you where the previous sentence 1 7 didn't to determine whether or not your products 1 8 were superior -- were superior to those of the 1 9 customer ? 2 0 A: Possibly. Or it just meant that our cost 2 1 -- there might be two separate issues. One, the 2 2 marketplace issue and, secondly, the internal 23 manufacturing issue that it was taking us costing us 2 4 more than we had thought to do the processing to get 2 5 the acceptable product performance. Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076668 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 423 Q: All right. Now, the free phenolic situation, that's another environmental pollution potential question relating to these products, right ? A : Yes . Q: What -- can you describe what that situation was? A: I can't really. I've forgotten. Phenyls was a problem, much less magnitude, as I recall, than -- I mean an order of magnitude less than PCBs, but it was there. And from what we were going through and had gone through, it was an area to which we were sensitive. Q: Very sensitive? A : Yes. Q: And you pointed that out to Mr. Gossage. A: So incurred my share of problems, right. Q: Could you turn to the last page of it? Mr. Chambers was right in not having you look at the entire document. Under the heading of PCB/PCT, you indicate that you had lost 32 customers, but you had 172 customers who were committed to convert to T-55 or T- 6 6 . That related to Therminol, right? A : Yes . Q: Okay. Is that an abbreviation for Therminol Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076669 424 1 55 and Therminol 66? 2 A : Yes. Yes. 3 Q: Okay. Your free incineration -- the 4 announcement of termination of free incineration had 5 gelled conversion dates on many accounts. So part 6 of the reason to write this letter was to say "Hey, 7 wake up. It's not going to be here. So you've got 8 to make a decision right away whether -- whether, as 9 I say, you is or ain't," right? 1 0 A: That's right. 11 Q: Whether you're going to buy it or you're not 1 2 going to buy it? 13 A : That's right. 14 Q: Okay. At this point, is it fair to say the 1 5 work of the task force was done or essentially done? 16 A : Yes . 1 7 Q: Because as you write here, "The task force 1 8 should be reduced to Paul Gann only through -- only 1 9 on June 30th." So Paul was going to be the only 2 0 person left with this responsibility? 21 A: That's right. Exactly. 22 Q: Okay. So by that time you had done your 2 3 work with respect to the task force relating to the 24 heat transfer? 25 A: That's right. Yes. Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076670 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 425 MR. ROEDER: Okay. That's all I've got for that. (Plaintiff's Deposition Exhibit No. 235 marked for identification.) Q: (By Mr. Roeder) Exhibit -- would it be 235 ? You've had a chance to look at it's a call report from Hewlett-Packard Company from Clifford Boutin. He's a salesman who reported indirectly to you, correct? A: Indirectly. He wouldn't have -- he would have reported to Doug Hansen, and Hansen in return -- in turn would have reported to Gossage. But, you know, the product group and the sales force worked very closely together. Q: All right. But it was a memorandum to you? A: Well, this was a sales report, and the normal practice was usually, not always, the sales report would normally come in to me, and then it would be routed to people in my department. Sometimes people would put it to -- if they wanted action done by any particular individual, they would carbon copy them. I would look at it and then send it or have my secretary send it to whoever I thought should see it. Q: All right. Now, at the -- in the sales Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076671 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 report Mr. Boutin -- am I saying that correctly? A: Yes, I think so. Boutin, yes. Boutin 426 maybe . Q: Okay. But Mr. Boutin discusses a meeting he had with Hewlett-Packard in which they advised Hewlett-Packard to drain all the die cast machine reservoir since the fluid was old and needed changing. And he reports as good news that they can expect an order for replacement fluid in the not too distant future, correct? A : Yes. ' Q: Okay. He also offered, Mr. Boutin did, to ask for a composite sample to be analyzed for PCB content. Then he could advise them regarding disposal. There's handwriting at the bottom correct? A : Yes. Q: Okay. It's signed Jerry? A : Yes. Q: Jerry who? A : Davidson. Q: Okay. Mr. Davidson writes to Cliff. "We do not want to analyze for PCB unless we have to. You can bet PCB content will be several percent at least and analysis -- and analysis is expensive. We will Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076672 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 dispose of the used fluid for three cents .03 per 16." That's three cents a pound, right? 427 A: Yes. Correct. Q: "At Sauget and Hewlett pays the freight. " Then it says "PCB analysis costs money. Will not tell us anything we don't already know. A hundred parts per million PCB is as bad as ten percent as far as pollution authorities are concerned. * Jerry." Did I read that correctly? Regards A: Yes. Q: Okay. Was that the policy that Monsanto did not want to analyze for PCB unless you had to for a customer? A: There would have been -- there would have been latitude given to analyze or not. Q: Okay. So you don't know whether it was or was not the policy? A: No. In this case what he's saying is that because 312A, if my memory is correct, was a PCB fluid, if I'm not mistaken. Then there would have been -- you would expect to find, you know, not parts per million, but a certain percent of PCB. So that wasn't going to tell us anything. And since - by this time the task force, as these earlier memos have shown, were thinking about setting levels, you Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076673 ________________________________________________________________________ 42 8 1 know, much lower than one percent. Then if they 2 wanted to take it out because they had to drain it, 3 the best thing was not to do the analysis. 4 Q: All right. The task force you're talking 5 about was the intragovernmenta 1 task force? 6 A: Exactly. Exactly. 7 Q: Not your internal task force? 8 A: No, this intergovernmental thing. 9 Q: And as of this date, your own personal task 10 force was w inding do wn ? 11 12 13 A : In - - in - - in the heat transfer area, yes. Q = All right. Okay . Was this a heat transfer application? 14 A: No. It was Pydraul . 15 Q: In industrial use? 16 A: He says dye cast machine. So that would be 17 hydraulic fluid. 18 Q: I think it's a measure of a person's 19 importance how many documents are sent to him. 20 A: I don't know. I look at that, and I think, 21 22 God, how many hours were spent? These were before the days of word processors. 2 3 MR. CHAMBERS: Yeah, this looks like it's 24 already been marked. 25 Q: (By Mr. Roeder) It is. It has. And you Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076674 ________________________________________________________________________ 42 9 1 were right. All right. Okay. Mr. Chambers has 2 astutely caught my attempt to double mark an 3 exhibit. You have been shown Exhibit 96? . 4 A : Yes. 5 Q: Which was another sales report to you? 6 A : Yes. 7 Q: I think actually we discussed this earlier, 8 didn 1 t we ? 9 A: It seems to that we have. We talked about 10 that yesterday, I think. 11 Q: You're right. You're right. 12 A: So do you want this? 1 3 Q: We can have it back unless you would like to 14 keep a copy. We actually did. This one is a new 15 one. That's what confused me. 16 (Plaintiff's Deposition Exhibit No. 17 236 marked for identification.) 18 Q: (By Mr. Roeder) Okay. Exhibit 236, sir, is 19 a call report, dated 6-19-72, from Martin Marietta 20 21 22 Aluminum, Torrance, California, to you carboning J. H. Davidson and D. R. Hansen from an R. S. B-E-V-A-C-Q-U - A . Take a moment to look at this. 23 A: Yes. 24 Q: Okay. This memorandum is a memorandum or a 25 call report that you would have received in the Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076675 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 430 ordinary course at Monsanto, correct? A : Yes. Q: And in it Mr. Bevacqua reports of a call to Martin Marietta in Torrance, California, correct? And the customer asks your sales representative a question which he quotes. He says "Seems somewhat out of context based on his knowledge of our Pydraul products, which was that any of the Pydraul products purchased by Harvey Aluminum predecessor Martin Marietta Aluminum ever contained chlorinated biphenyls." Do you see that? A: Yes. Q: Okay. Then he reports that the divisional manager's operation had been called before the federal grand jury with regards to their use of polychlorinated biphenyls. Do you see that in the second paragraph? A : Yes. Q: Is that a concern to you that customers may be called to testify before the grand jury regarding their use of polychlorinated biphenyls? A: I can't recall. Until I read this, I couldn't -- you know, I can't recall this particular incident . Q: Now, looking at Exhibit 236, sir. Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076676 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 431 A : Yes. Q: And if you compare that with the one - actually you just gave it to me, but I'll give it back to you. Exhibit 96. They both have boxes stamped that say "date received" on them, don't they? A: Yes. Q: Then they have initials that are part of a stamp. That's the date received stamp, right? A : Yes. Q: Okay. What are those initials? What do the lines through those initials mean? A: They mean that they went to people, and they marked them off showing that they had read them and then they would have gone to a file. Q: All right. So looking at 96, for example, when you would read it, you would line through it and pass it on, right? A: Yes. Q: P. G. B. was Mr. Benignus. He would look at it and line through, and that was the practice and it would go to F. H. L. Who was that? A: A man called Frank Lagenfeld who was in marketing. Q: Okay. And then G. F. F.? Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076677 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 432 A: He was George Fague, marketing. Q: All right. And the very last person to get this would be T. L. G. That would be Mr. Gossage, right ? A: Yes. Q: So that would be the ordinary course. It would all go through to different people. And after Gossage, it would be filed? A: That's right. Q: That way you wouldn't -- on these reports you wouldn't make all sorts of copies, right? A: Right. Q: Okay. And that's what happened as well on Exhibit 236, right? A: Yes. Q: Okay. Where it went from you to Benignus to Fague? A: No, let me just step in a second. When there was a number there, it meant it would go to somebody first. In both cases Davidson, because I had looked to him, since it's in his market area, that he should know it. And if there was follow-up to be taken care of, that would be his responsibility. Q: All right. So you would have written in the Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076678 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 433 numbers one, two, three, four? - A: Yes. Q: -- for the Exhibit 236? J. H. D. That stands for Davidson? A: That's right. And then the U.S. Steel one it went to Davidson and Hatton. Q: Okay. One is J. H. D. Two is R. E. H. A: That's right. Q: All right. And that's your handwriting there, too? A : Yes. Q: All right. So I think you know what I meant, but the record won't show it. The numbers next to the initials is in your handwriting? A: Yes. Q: All right. Is there any particular reason you would have directed these to these individuals first? Was it their responsibility? A: It was their responsibility. Davidson had the Pydraul area, and Hatton was his -- his technical customer service person. So they were the people to address whatever had to be addressed in these two call reports. Q: All right. Do you recall any discussions with anyone at Monsanto regarding potential grand Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076679 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 434 jury investigations of your customers' use of PCBs? A: No, that doesn't ring a bell at all. Q: Okay. Was there a decision making process you would go through personally as to whether you would send these call reports to these people or not? MR. CHAMBERS: Object to the form. Q: (By Mr. Roeder) Let me rephrase it. If you compare 23 5 and 23 6. I'm sorry. You just put them down. But just look briefly at 23 5 and 3 5 6. 23 5 doesn't have that stamp, but 236 does. A: What are the dates? Q: Oh, they're within a week of each other. Within days of each other. 235 is 6-9-72. 236 is 6-19-72. A: That could mean that my secretary wasn't there -- you know, might not have been there that particular day or days, and sometimes the stamps might have got missed out. But if they were -- if they came and they didn't have a stamp, then I would have routed it by hand to whom I thought it was needed. Q: Okay. I mean it doesn't reflect your own belief that you would need to send the call reports to the other people? What I'm trying to find out Gore & Perry Reporting Co. St. Louis, Missouri . (314) 241-6750 621-4790 WATER PCB-SD0000076680 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 435 was, is it your decision to put the stamp on? A: As I recall, it was probably stamped automatically when it came in, and I would just number them, score off my own name kind of thing. But sometimes that escaped and, therefore, I would just do what -- Q: You would write in who you wanted to see it? A: Sure. (Plaintiff's Deposition Exhibit No. 237 marked for identification.) Q: (By Mr. Roeder) Exhibit 237 it's a memorandum to you from J. J. Roder, dated July 21, 1972, and this is a call report regarding Tenneco at Lafayette, Louisiana, correct? A : Yes. Q: Okay. This would reflect Mr. Roder's actual trip to Tenneco, right? A : Yes . Q: And Papageorge got a copy. Gossage got a copy as well, right? A : Ye s . Q: Okay. And this would be the copy that went to Mr. Gann based upon the arrow next to his name, right? A: Yes. Yes. Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076681 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 436 Q: Okay. In this memorandum Mr. Roder reports, does he not, that "Tenneco was not aware of our July 1 deadline on the return of PCB, and I gave them a copy of our discontinuation letter to Louis Williams and told him that if he had some indication -- if we had some indication that they would convert to Therminol 66 in the near future, we could possibly extend the deadline on fuel return to September 1." That's what Mr. Roder writes there, correct? A : Yes. Q: Is this the first notice that you had that one of your customers had not been aware of the July 1 deadline? A: I can't recall. I can't recall that. Q: But you recall that some customers were still not aware of the July 1 deadline? A: I was not -- you know, I can't recall being aware of that . Q: At all whether this was the first one or whether any others were? A: I can't recall. Q: Okay. And I guess what Mr. Roder is trying to tell you is that, if you would extend the free deadline -- strike that. If you extend the deadline on free return to September 1, that it might be Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076682 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 437 helpful in getting the order for the new fills? A : Yes. Q: Okay. Did you extend the deadline? A: I can't remember. Q: You don't remember whether the Tenneco facility in Lafayette, Louisiana, proceeded to purchase ? A: I can't remember. Q: How much was the new fill worth in terms of dollar amount? I mean I'm not looking for the exact number. But I mean it seems as though it's important enough that Mr. Roder has now made two trips to Tenneco Louisiana to discuss this? A: You're probably looking at -- a 2,500 gallon fill might be of the order of -- might have been then an order of somewhere 12, $15,000.00. Q : In 1 972 dollars? A: Yes. Yes. Q: Which would be substantially more today. Although, none of us can figure that out here without a calculator, right? A: Yes. Q: So it was worth going down there a couple of times if you got the order? A: Yes. Exactly. And he wrote it to Gann, Gore & Perry Reporting Co. St. Louis, Missouri (314)241-6750 621-4790 WATER PCB-SD0000076683 ________________________________________________________________________ 4 3 8 1 because Gann would have been the person that would 2 have then been tracking down what happened to this 3 letter. 4 Q: All right. And you don't recall Mr. Gann 5 talking to you about it at all? 6 A : I can't. 7 Q: And what position did H. R. Ford have? 8 A: He was the regional manager to whom Jim -- I 9 think by then Jim Roder was actually in field sales, 10 because we had reorganized our salespeople so that 11 he was no longer part of the internal -- my internal 12 product group. He was actually in sales. He 13 reported to Ray Ford. 14 MR. ROEDER: All right. All right. Tell 15 you what. Can we break at this point? It's almost 16 5:00. Then we'll pick up at 10:00 next Wednesday. 17 MR. CHAMBERS: I will need to -- I would 18 like a chance to confirm with you that that 19 Wednesday date is good. Tentatively I have no 20 problem with it. 21 22 MR. ROEDER: All right. (Whereupon, the deposition was adjourned to 2 3 tentatively reconvene at 10:00 a.m. on Wednesday, 24 November 1, 1995.) 25 Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076684 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMES NOW THE WITNESS, CUMMING PATON, and having read the foregoing transcript of the deposition taken on the 26th day of October, 1995, acknowledges by signature hereto that it is a true and accurate transcript of the testimony given on the date hereinabove mentioned. CUMMING PATON Subscribed and sworn to me before this _ _ _ _ day of __________ , 1995. My Commission expires: _________ Notary Public 439 Gore & Perry Reporting Co. St. Louis, Missouri (314) 241-6750 621-4790 WATER PCB-SD0000076685