Document NEd2EOr9yOMgoxRDNqn71LEyV

U N iTED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION WILLIAM R. GAFFEY, Plaintiff, vs. PETER MONTAGUE,et al Defendants. ________________________________________ ) ) ) ) ) ) ) ) ) ) CAUSE No.91-1938-C-7/ UNSWORN STATEMENT OF PAUL E. MERRELL MADE UNDER PENALTY OF PERJURY2,I I, PAUL E. MERRELL, declare and state: 1. My name is Paul E. Merrell. I am co-counsel in this matter for defendants Dr. Peter Montague and Environmental Research Foundation. I make this statement in support of Defendants' Motion to Disqualify Counsel and in response to the motion for protective order filed by Monsanto Company and James F. Collins, who is Director of Epidemiology in Monsanto Company's Medical Department, the position formerly held by plaintiff William R. Gaffey. (Hereafter, both Monsanto and Dr. Collins will be discussed jointly as "Monsanto.") 2. In this statement, I discuss in addition to my qualifications to make this statement: |ii] the relevance of and need for the discovery sought by defendants in this case; [ii] Monsanto's claims of expense and undue burden in responding to that discovery; and |iii| the need for disqualifying Cobum & Croft from further participation in this case. 1 -ft 3. My practice is focused on litigation involving a closely-related group o f toxic chemicals known as chlorinated dioxins, chlorinated dibenzofurans, and polychlorinated biphenyls ("PCBs"). E ,g .. Van Strum v. U .S . Environmental Protection Agency, 680 F. Supp. 349, 350 n. 1 (D . Oregon 1987) (District Court noted my longstanding professional and personal interest in dioxins) (court found evidence o f conspiracy between industry and EPA officials to suppress, modify, or delay results o f dioxin studies). 4. This libel action was filed by plaintiff W illiam R. Gaffey after defendants published a report that Gaffey and his co-author were accused by others o f fraud in the conduct o f an epidemiologic study o f the mortality o f Monsanto workers exposed to dioxin through their employment at Monsanto's trichlorophenol plant in Nitro, W est Virginia. Defendants stand by the truth o f their report and contend therefore that they have no liability for defamation. 5. M ost o f the discovery objected to by Monsanto is carefully crafted to support the defendants' claim o f the truth o f their report.1 The discovery requested from Monsanto, while substantial, has been considerably narrowed through pre-motion consultations among counsel and in response to Monsanto's objections. Nevertheless, the charge o f fraud reported by defendants arose in substantial part from an appellate brief involving the longest civil trial in U .S . history, Kemner v. Monsanto, where the subject o f fraud in Mr. Gaffey's study was examined at length and where the jury imposed an award o f punitive damages against Monsanto1 1 The discovery requested does touch on other areas, for example Monsanto's files o f articles and scientific publications in which similar or stronger charges were leveled against Mr. Gaffey and his co-authors o f the Nitro worker studies. These articles raise a substantial issue o f how Mr. Gaffey's claimed damages might plausibly be attributed in their entirety to defendants' milder charges, the subject o f a pending interrogatory directed to Dr. Gaffey. 2 V totaling some $16,250,000.00. (The verdict was subsequently set aside by the Court o f Appeals on grounds not involving the scientific validity o f the Gaffey study.) 6. The discovery requested is necessary to the defense o f this lawsuit. While I do not discuss the relevance o f every discovery category sought, the following discussion should be sufficient to assure the Court that discovery is sought on a serious matter and is reasonably calculated to lead to the discovery o f evidence admissible at trial. 7. Defendants' legal team has already obtained some records o f the Kemner case. I am already familiar with many issues involved in this case, having co-authored a detailed examination o f fraud involved in Monsanto's Nitro worker studies that was used to support an administrative petition to EPA on behalf o f an environmental organization requesting a criminal investigation. C. Van Strum & P. Merrell, Critique o f Monsanto and BASF Retrospective Studies o f Human Health Effects o f 2.3.7.8-T C D D (October 1, 1990). (While the petition was denied on grounds o f the petitioner's purported lack o f standing to seek a criminal investigation, EPA did subsequently instigate such an investigation o f its own volition.) 8. Monsanto stresses in its motion for protective order that it has no stake in the outcome o f this litigation. W hile it is true that Monsanto has not been named as a party, this lawsuit was filed by Monsanto's former Director o f Epidemiology Dr. Gaffey and involves work he performed for Monsanto. The fact is that Monsanto has an enormous stake in the truth or falsity o f the allegations o f fraud in the conduct o f studies by Dr. Gaffey and his co-workers, an issue to be tried in this case. In response to such allegations, a Monsanto vice president stated in a letter to EPA that "[g]iven the Company's science-based focus, preservation o f Monsanto's reputation for performing accurate world-class research is o f critical importance to our business 3 and research operations." EXHIBIT S, pg. 1. Monsanto therefore requested an audit o f the studies by EPA. Id. Likewise, Monsanto also at least claimed to welcome EPA's criminal investigation, as "the only way to put this matter to rest." EXHIBIT T (article in ScienceV Given such statements, Monsanto's efforts to handicap determination o f the truth by seeking prohibitive costs and attorney fees are indeed ironic. 9. There are strong reasons to believe that the results o f the Gaffey study were a foregone conclusion before the study was ever performed, i.e .. that Dr. Gaffey's "study" was a conclusion in search o f supporting data. The existence o f such evidence in Monsanto's files, discussed below, is consistent with the historical backdrop for the Gaffey study and is probative o f "intent" to defraud. When the Gaffey study was actually performed in 1978-1979, Monsanto had been named as a co-defendant in a massive class-action lawsuit brought by Vietnam War veterans exposed to dioxin in the notorious defoliant Agent Orange and therefore had reason to whitewash dioxin's human health effects. E .g .. In re "Agent Orange" Product Liability Litigation. 611 F. Supp. 1223 (E.D . N .Y . 1985) (dismissing claims o f veterans who opted out o f settlement and discussing importance o f negative epidemiologic evidence to decision). The U .S . Environmental Protection Agency had taken regulatory action against the dioxincontaminated herbicide 2 ,4 ,5-T, one o f the ingredients o f Agent Orange widely used as an herbicide in the U .S. The EPA action was largely based on animal studies and a study associating 2 ,4 ,5-T exposure with "spontaneous" (involuntary) human abortions among residents in a 1,600-square-mile area o f the Oregon Coast Range. USEPA. Decision & Emergency Order Suspending Registrations for the Forest. Rights-of-wayT and Pasture Uses o f 2.4.5Trichlorophenoxvacetic Acid (2.4.5-TL 44 Fed. Reg. 15874 (March 15, 1979). In addition, 4 V* the Steel Workers Union, bargaining body for the Monsanto plant workers at Nitro, had persuaded Mt. Sinai Hospital officials to perform an epidemiologic study o f Nitro plant workers. EXHIBIT U hereto (Monsanto document produced in Kemner. acknowledging that its Nitro workers "became o f significant worldwide interest in attempting to answer questions about the long-term health effects, if any, o f dioxin exposure"). A ll o f these factors gave Monsanto an incentive to perform fraudulent studies o f its workers. 10. Indeed, Monsanto's internal documents also indicate that its Nitro worker studies, including Dr. Gaffey's, were performed because Monsanto was "vulnerable to [a Mt. Sinai researcher's] announcements and/or allegations o f potential health problems which he may relate to dioxins." Id. Such statements raise a strong inference that Dr. Gaffey's study was intended, before work ever began, to refute "allegations o f potential health problems . . . relate[d] to dioxins" and provide evidence o f Dr. Gaffey's motive in altering his study in ways that resulted in misclassifications o f exposed and unexposed workers. In addition, another Monsanto document indicates that its researchers were advised that a two-year statute o f limitations applied to potential suits brought by the Nitro workers, providing a plausible explanation for Mr. Gaffey's reasons for cutting o ff his study period to exclude later worker deaths. EXHIBIT V hereto, pg. 2. Having shown the existence o f such compelling evidence prior to taking discovery o f Monsanto, defendants should be permitted to discover related materials. 11. Monsanto has suggested that only records relating to Dr. Gaffey's study are relevant to this lawsuit. However, Dr. Gaffey's study has been controversial ever since independent scientists noted in a 1985 article in the influential scientific journal Nature that Dr. 5 % Gaffey and his co-author Dr. Judith Zack had included in their "unexposed" group four deceased workers that had been classified as "exposed" in a concurrent study by Zack and Dr. Raymond Suskind.2 The truth, as examined in depth in the Kemner case, is that the "earlier" Zack- Suskind study was only part o f the "larger" Zack-Gaffey study being conducted at the same tim e.3 There are strong reasons for extensively probing the Monsanto records involved with all simultaneous studies being performed on the Nitro population by Monsanto researchers. It was in truth part o f what Monsanto itself has portrayed as a studied effort by a single group o f Monsanto researchers and contractors called "the Nitro Health Study Task Force" to test the singular hypothesis that dioxin causes adverse human health effects.4 The state o f mind and activities o f the researchers involved in the Nitro Health Study Task Force -- and o f then- employer Monsanto that established it --is probative o f Dr. Gaffey's actual intent in publishing his study.5 2 A. Hay & E. Silbergeld, Assessing the Risk o f Dioxin Exposure. 315 Nature 10203 (May 9, 1985). They also noted that Dr. Gaffey had omitted from his study "some 19 individuals who died o f circulatory disease or cancer whilst in employment at the company, and who meet the criteria for inclusion in the exposed group," basing that part o f their report on records they obtained as expert witnesses in the Nitro workers' litigation, d. 3 According to the Zack-Suskind study, it was only part o f a "larger study," later identified by Dr. Roush in the Kemner litigation as the Zack-Gaffey study. J. Zack & R. Suskind, The Mortality Experience o f Workers Exposed to Tetrachlorodihenzodioxin in a Trichlorophenol Process Accident. 22(1) J. o f Occupational M edicine 11 (January, 1980) ("The results o f this study w ill be incorporated with those o f a larger study which w ill include plant workers exposed in the course o f 2,4,5-trichlorophenoxyacetic acid production"). 4 A memorandum describing a July 20, 1979 meeting o f the Nitro Health Study Task Force is mentioned in the transcript o f one o f the Nitro worker cases, Boggess transcript, pg. 28573. 5 There is also a substantial question whether the study is actually Dr. Gaffey's own work. For example, testimony by Monsanto's Dr. George Roush in the Kemner case states that the data for the Zack-Gaffey study was gathered during 1978 and 1979 at the same time as the 6 % 12. Monsanto also contends without explanation that records generated after the publication o f the Zack-Gaffey are irrelevant, reasoning that only Dr. Gaffey's state o f mind prior to publication relates to this lawsuit. The argument ignores the fact that some discovery is sought to challenge Dr. Gaffey's claim that he suffered damages years after publication when defendants published their article, as discussed elsewhere in this statement. The Monsanto argument also ignores the fact that subsequently generated documents often contain discussions o f prior events and impressions, and that subsequent conduct may be probative o f a prior state o f mind. Grandstaff v. City o f Borger. Texas, 767 F.2d 161, 171 (5th Cir. 1985; cert, den.. 480 U .S. 916. 13. Monsanto has seriously exaggerated the burden and expense o f retrieving records involved in defendants' discovery requests. As part o f my professional activities, I operate a litigation clearinghouse for dioxin-PCB-related litigation. In that role, I have been intimately involved in discovery activities in many lawsuits brought against Monsanto Company because o f its manufacture o f PCBs and other chemicals contaminated with the ultra-toxins dioxins or dibenzofurans. I have also litigated such cases m yself. E .g .. Nevada Power Co. v. Monsanto. 955 F.2d 1304 (9th Cir. 1992) (finding jury issue on when Nevada Power should have known Monsanto had fraudulently misrepresented safety o f PCBs contaminated with dioxins and dibenzofurans).6 Zack-Suskind study, which is inconsistent with Dr. Gaffey's answers to interrogatories in this case stating that he him self "initiated the idea for the study, and it was approved by his superior, Dr. George Roush." Gaffey response to defendants' interrogatory 8(a). The problem with Dr. Gaffey's statement is that he also states he did not begin working for Monsanto until 1979. 6 See also Save Our ecoSystems/Merrell v. Clark. 747 F.2d 1240 (9th Cir. 1984) (Monsanto appeared as amicus party) (court found "widespread fraud" in tests submitted to EPA 7 % 14. I coordinated all trial preparation activities for the plaintiff in the Nevada Power litigation for more than a year. During that time, Monsanto produced hundreds o f thousands o f pages o f documents, often on extremely short notice in response to court orders. Because o f the rapidity o f response to detailed discovery requests, I became convinced that Monsanto was operating a computerized document retrieval system for its records involving dioxins, dibenzofurans, and PCBs, as is common in major toxic tort litigation, a belief that was subsequently confirmed by conversations with Monsanto's outside counsel and by production o f documents referring to such a system. 15. I am in accord with Mr. Kenneth Heineman's affidavit wherein he states his belief that the Kemner v. Monsanto lawsuit was the longest civil trial in the history o f the American court system .7 Kemner was a companion case to the Iawsuit brought by the workers at Monsanto's Nitro plant, whose mortality experience is the subject o f this litigation. Materials developed in the Nitro workers' case were examined extensively in the Kemner case. From my experience in major litigation with Monsanto involving dioxin, dibenzofurans, and PCBs, I would consider it highly unlikely that Monsanto did not have its litigation materials for Kemner and the Nitro workers' case indexed extensively with document retrieval software. to obtain pesticide registrations); Merrell v. Thomas. 608 F. Supp. 644 (D . Oregon, 1985) (Monsanto was defendant-intervenor), affirmed on other grounds sub nom. Merrell v. Ruckelshaus. 807 F.2d 776 (9th Cir. 1986), cert, den.. 484 U .S . 848 (1987) (lawsuit to enjoin fraudulently-obtained government pesticide registrations). 7 I do question, however, his statement that the Kemner transcript exceeds 100,000 pages. According to the appellate opinion in that case, it is only some 91,000 pages long. There is no dispute, however, that the transcript is lengthy. 8 \* % 16. I am also less than persuaded by Monsanto's claims o f its need to conduct an extensive review o f documents for potential privilege claims. The lion's share o f the discovery materials sought through defendants' subpoenas are for trial transcripts, exhibits, and documents already produced in the antecedent Kemner and Nitro worker cases. Monsanto has no need to review for privilege claims documents already revealed to other adverse parties. Republic o f the Philippines v . Westinghouse Electric Corp. T132F .R .D . 384, 388 (D .N .J. 1990) (once documents are produced to any adversary, even under shelter o f a protective order, all privilege claims are waived against all adversaries, as a matter o f law), a ffd .. 951 F.2d 1414 (3rd Cir. 1991) (surveying authorities). 17. The discovery sought by defendants in this case focuses narrowly on records o f Monsanto Company's Medical Department and their use in related litigation. During the Nevada Power litigation, my law partner Ralph Bradley took the deposition o f M s. Sue Ann Jacobson, Supervisor o f Monsanto's Medical Department Library. In her deposition, which I have reviewed in drafting this statement, M s. Jacobson described in some detail the computerized records system she developed for the M edical Department after she assumed her position in 1989, upon the retirement o f her predecessor, Mary L. Gaffey, w ife o f plaintiff W illiam R. G affey. 18. Because o f my experience and such information as is discussed above, I am convinced that Monsanto is seriously exaggerating the expense and effort entailed by responding to the discovery subpoenas propounded by defendants in this litigation. I am highly ///// ///// 9 familiar with sophisticated file and text retrieval software now used in major litigation; based on that experience, 1believe the Kemner and Nitro workers' litigation transcripts could be produced in electronic format with fewer than five hours' effort on the part of an experienced computer user familiar with the software system involved. 1also believe that retrieval of other documents requested involves only a few hours with software using Westlaw- or Lexis-type search capabilities that is commonly available and almost certainly used by Monsanto and by Coburn & Croft. 19. I stress that Monsanto has never before sought compensation for providing copies of its discovery documents in any case in which I was involved. (Monsanto in fact ordinarily indexes and produces copies of all requested documents rather than producing them for inspection and copying, in order to avoid creating the automatic "business records" exception to the hearsay rule created by exercising the Fed.R.Civ.P. 34(b) option of producing documents as they are kept in the ordinary course of business.) Moreover, when all parties are well financed, it is the custom in major litigation not to charge for producing discovery documents. Monsanto's demand for costs and attorney fees is an obvious tactical maneuver, fairly raising the question of why Monsanto believes such a tactic would be successful in this case. The answer to that question raises a "risk" that Coburn & Croft have obtained and are acting on the basis of information about defendants' modest litigation budget unfairly acquired by Cobum & Croft's Mr. Wray during his earlier representation of defendants in this case. A "risk" of such divulgence is all that defendants are required to show in order to be entitled to Cobum & Croft's 10 % disqualification from further involvement in this litigation.8 Indeed, Monsanto may not presume to charge defendants for their requested discovery without compounding Coburn & Croft's apparent ethical violation in representing Monsanto's interests against defendants.9 ///// ///// mu mu mu 8 This Court need not find that Mr. Wray in fact disclosed client confidences in order to require Cobum & Croft's disqualification. All the Court need find is that there is a risk that client confidences could be used against defendants. C. Wolfram, Modem Legal Ethics 7.4, pg. 369 (1986) ("once the former client shows the substantial relationship that is necessary to invoke the rule, a nonrebuttable presumption arises that the lawyer obtained in the former representation confidential information relating to each of its elements. Because of the presumption, the lawyer is disqualified in a later representation if a risk exists that any of the presumed confidential information could be used against the interests of the former client") (emphasis added), citing Westinghouse v. Gulf Oil Corp.. 588 F.2d 221, 224 n.3 (7th Cir. 1978); Ernie Industries v. Patentex. 478 F.2d 562, 571 (2nd Cir. 1973). But note, however, that some courts have questioned whether the presumption should be irrebuttable. M. See e.g.. ABA Rules of Professional Conduct 1.10: "(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by rules 1.7, 1.8(c), 1.9 or 2.2. "(b) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by rules 1.6 and 1.9(b) that is material to the matter." 11 20. Pursuant to 28 U .S.C . 1746, I declare under penalty o f peijury that the foregoing is true and correct. EXECUTED THIS TWENTY-FIRST DAY OF NOVEMBER, 1993. c:\usci&!rc\ox)aagp\maffi2ff.001 PAUL E. MERRELL 12