Document NEmBRRVyJxNJpzdK05gXgpm4g

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA NEVADA POWER COMPANY, Nevada corporation, Plaintiff, a : : : V. : CV-S-8 9 -5 5 5-LDG-LRL MONSANTO COMPANY, a : foreign corporation; : GENERAL ELECTRIC COMPANY,: a foreign corporation; : WESTINGHOUSE ELECTRIC : CORPORATION; and DOES I : XXV, inclusive, : Defendants. : . READING COPY DEPOSITION OF ROBERT EMMET KELLY, M.D. VOLUME V TAKEN ON APRIL 18, 1994 MARTIN & ASSOCIATES CERTIFIED COURT,REPORTERS 2200 MARKET STREET, SUITE 412 GALVESTON, TEXAS 77550 (409) 762-2222 * FAX (409) 762-8040 WATER PCB-SD0000031585 WATER PCB-SD0000031586 605 1 INDEX 2 3 THE WITNESS; ROBERT EMMET KELLY, M.D. VOLUME V 4 5 EXAMINATION; PAGE 6 By Mr. Kim ..................................................................................... 6 0 8 7 By Mr. Bauer ............................................................................... 6 7 8 8 By Mr. Kim ..................................................................................... 6 8 6 9 10 KELLY EXHIBITS; PAGE MARKED 11 Kelly No. 51 ................................................................................ 6 08 Document dated September 20, 1955 to 12 Dr. J. W. Barrett from Dr. Kelly re: "Your memo September 8 to Mr. Nason" 13 Aroclor Toxicity 14 Kelly No. 5 2 ................................................................................ 608 Minutes of Meeting of the Corporate 15 Development Committee; November 17, 1969 16 Kelly No. 53 ................................................................................ 608 Letter dated February 4, 1972 from 17 Howard Bergen, Director, Specialty Products Group, Monsanto Industrial 18 Chemicals Company with attachment titled Special Undertaking by Purchasers of 19 Polychlorinated Biphenyls 20 21 22 23 24 25 Martin & Associates (409) 762-2222 WATER PCB-SD0000031587 606 1 APPEARANCES: 2 3 FOR THE PLAINTIFF: 4 Mr. John H. Kim Fisher, Gallagher & Lewis 5 70th Floor First Interstate Bank Plaza 6 1000 Louisiana Houston, Texas 77002 7 8 FOR THE DEFENDANT MONSANTO COMPANY, a foreign corporation: 9 Mr. Scott R. Bauer 10 Kirkland & Ellis 1999 Broadway, 40th Floor 11 Denver Colorado 80202 12 FOR THE DEFENDANT GENERAL ELECTRIC COMPANY, a 13 foreign corporation: 14 Mr. Evan J. Roth Williams & Connolly 15 725 Twelfth Street, N.W. Washington, D.C. 20005 16 17 FOR THE DEFENDANT WESTINGHOUSE CORPORATION, a foreign corporation: 18 Mr. Konrad L. Cailteux 19 Weil, Gotshal & Manges 767 Fifth Avenue 20 New York, New York 10153 21 THE VIDEOGRAPHER: 22 Ms. Chris O'Brien 23 Avision Video 444 S. Hanley 24 Clayton, Missouri 63105 25 Martin & Associates (409) 762-2222 WATER PCB-SD0000031588 607 1 The oral videotaped deposition of 2 ROBERT EMMET KELLY, M.D., VOLUME V, was taken 3 on April 18 , 1994 , beginning at 9:10 a. in. , in 4 the offices of Husch & Eppenberger, 100 N. 5 Broadway, Suite 1300, St. Louis, Missouri, 6 before Jana L. Martin, a Certified Court 7 Reporter and Notary Public in and for the 8 State of Texas, pursuant to Notice, the 9 Federal Rules of Civil Procedure, and the 10 following stipulation and waiver of counsel: 11 IT WAS STIPULATED AND/OR AGREED 12 that the deposition is to be signed by the 13 witness before any Notary Public or officer 14 authorized to administer oaths. 15 IT WAS STIPULATED AND/OR AGREED 16 that the court reporter could administer the 17 oath to the witness with the same force and 18 effect as if she were a notary public in and 19 for the State of Missouri. 20 21 22 23 24 25 Martin & Associates (409 ) 762-2222 WATER PCB-SD0000031589 608 1 (Instruments were marked Kelly 2 Exhibit Nos. 51 through 53 for 3 identification.) 4 5 ROBERT EMMET KELLY, M.D. 6 was called as a witness and, having been 7 previously sworn, testified as follows: 8 9 FURTHER EXAMINATION 10 BY MR. KIM: 11 Q. Good morning, Dr. Kelly. 12 A. Good morning, Mr. Kim. 13 Q. Thank you for spending what 14 last day of this deposition 15 A. You're certainly welcome. 16 Q. You understand that as we c 17 testimony today that you ar 18 oath? 19 A. Yes, I do. 2 0 Q. 21 The same type of oath that courtroom? 22 A. Just a little louder, remem 2 3 Q. I forgot. The same type of 24 were in a courtroom. 25 A. Yes, that's correct. Martin & Associates (409) 762-2222 WATER PCB-SD0000031590 609 1 Q. When we last took a break, I believe we were 2 talking a little bit about the composition of 3 PCBs or Aroclors at Monsanto; and to the 4 extent that you know from your experience as 5 the medical director from 1946 till 1974, do 6 you have knowledge of whether chlorinated 7 diphenylbenzene was ever used in the Monsanto 8 PCB Aroclor mix? . 9 MR. BAUER: Object to the form. 10 One particular mix? There were many. 11 Q. (By Mr. Kim) In any PCB - 12 A. It was called an Aroclor. Chlorinated 13 diphenylbenzene was called an Aroclor in 14 5460; and it was also used in a mix, 4465, in 15 which 60 percent, I believe, was chlorinated 16 diphenylbenzene and 40 percent was a 17 chlorinated PCB. 18 Q. And that is the product that I believe you 19 identified that Dr. Drinker tested in his 20 original study for Halowax Corporation? 2 1 A. That's the assumption, yes. 22 Q. Was this 4465 Aroclor mix ever used as a 23 dielectric fluid? 24 A. I wouldn't know. My impression is it never 25 was, but I can't answer that. I don't know. Martin & Associates (409) 762-2222 WATER PCB-SD0000031591 610 1 Q. Why would that be your impression? 2 A. Because I always thought that the dielectrics 3 were 1242, 1254 and 1260. I didn't know that 4 5460, the terphenyIs, or the 4465, the 5 mixture, were used as dielectrics. I don't 6 know. 7 Q. Can we agree that the combination of the 8 terphenyls and, in particular, chlorinated 9 diphenylbenzene with PCBs posed more health 10 considerations to Monsanto than did the 11 Aroclor 12 series? 12 A. Well, they were more toxic in animals, yes. 13 Whether or not there was exposure that would 14 cause more health -- more health problems, I 15 don't know because I'm not sure exactly where 16 they were used. I had no record of any - 17 hearing about any illness of any of our 18 customers; but, frankly, I don't know where 19 they went. 20 Q. Were there any tests undertaken at your 21 direction as the medical director of Monsanto 22 Company between 1946 and 1974 that tested the 23 synergistic effect between PCBs and any other 24 chemical? 25 A. With the exception that we ran mixtures of Martin & Associates (409) 762-2222 WATER PCB-SD0000031592 611 1 PCB and chlorinated diphenylbenzene, yes, but 2 not other chemicals. Except we did also test 3 in our acute package a mixture of chlorinated 4 PCBs PCBs and trichlorobenzene. 5 Q. And which acute studies are you talking about 6 that would have tested that synergistic 7 effect? 8 A. The last one? We did some at Scientific - 9 at Younger Laboratories. 10 Q. Was there any testing undertaken at your 11 direction or at Monsanto's direction during 12 the time period in which you were there that 13 tested the synergistic effect between PCB and 14 any chemical from a chronic standpoint? 15 A. No, sir. 16 Q. Were there any tests called for by you or 17 Monsanto Company while you were there as the 18 medical director that would have tested the 19 decomposition products of PCB? 2 0 A. Decomposition how? 21 Q. For instance, if it entered the human body, 22 whether intentionally or by accident, how it 23 may decompose upon the introduction of body 24 fluids or fatty tissues? 25 A. No, sir. Martin & Associates (409) 762-2222 WATER PCB-SD0000031593 612 1 Q. By the same token, I take it that during the 2 time period you were the medical director at 3 Monsanto you never initiated any testing that 4 would have investigated the metabolism and 5 its effects of PCB compounds in the human 6 body. 7 A. No, sir. That really was not unique in the 8 chemical industry. In other words, I can 9 think of very, very few, if any, compounds 10 that were industrial chemicals that were 11 examined for that purpose during that time 12 frame you talked about. 13 MR. KIM: Object to nonresponsive 14 after "no, sir." 15 Q. (By Mr. Kim) And, again, those are just some 16 legal things we attorneys have to do. Don't 17 worry about it. 18 As I understood your testimony from 19 last time, you do not have any medical 20 compilations with respect to your 2 1 occupational workers for review today. 22 A. No, sir. I do not. 23 Q. And during the time period in which you were 24 the medical director at Monsanto, you never 25 asked for or initiated any epidemiological Martin & Associates (409) 762-2222 WATER PCB-SD0000031594 613 1 2 A. 3 Q. 4 5 6 7 A. 8 Q. 9 A. 10 11 12 Q. 13 A. 14 15 Q. 16 A. 17 Q. 18 19 20 21 22 2 3 A. 24 25 studies with respect to PCB exposure? No, sir. I did not. During this same time period, you were also responsible for the communication of the toxic and health effects of PCBs to your customers, were you not? Yes. You were in charge of the labeling? No, I wasn't in charge of the labeling. I was in charge of putting the cautionary statement on the labels. You were in charge of the language? For that purpose, yes, but not the entire language of the label. The text of the warning part of it? Yes, that's correct. And during this time period, did you ever indicate to your customers that you had done no testing with respect to decomposition, metabolism, synergistic effects and had no occupational compilations that could have been the basis for any epidemiological tests? Would you mind simplifying that question because you've talked about four things that are -- the end was these four items were Martin & Associates (409) 762-2222 WATER PCB-SD0000031595 614 1 2 3 Q. 4 5 A. 6 Q. 7 8 9 10 11 12 13 A. 14 15 16 17 18 19 20 21 22 23 24 25 not -- tell me how you tied in the epidemiological tests again on that. Why don't I just break it down into a couple of questions. Fine. You have told us that Monsanto, under your direction, never did any decomposition testing or testing to see how it would metabolize within the human body or any synergistic effect type of testing and had no compilation of the occupational -- occupants' medical records. Is that correct? Well, first of all, a few sentences ago I said we did test the synergistic effects with chlorinated terphenyls or diphenylbenzene. We did also check the synergistic effect of -- with trichlorobenzene. So with those exceptions, we did not test the synergistic effects. And let me tell you that certainly I don't see -- I don't recall any literature about any industrial chemical in which synergistic effects were a prominent part of the toxicologic examination. Now, as far as a compilation is Martin & Associates (409) 762-2222 WATER PCB-SD0000031596 615 1 concerned, I did examine the records of the 2 people at Anniston. I did not compile an 3 epidemiological study, but I know from 4 looking at the records that we did not have 5 any illness that I can attribute to PCB. 6 Q. Of course, I believe that you told me in the 7 prior deposition that we have -- took that 8 the medical testing that you did was not 9 specifically geared towards PCB 10 identification. 11 A. Not specifically, but it was geared towards 12 any illness. 13 Q. They were generally geared toward the general 14 occupational health and welfare of your 15 workers? 16 A. Yes, but I don't know how you can distinguish 17 between gearing and examination towards a 18 person to see if he's ill from PCB or ill 19 from diabetes or ill from any of a number of 20 things, any other chemical exposures. You 2 1 want to see if he's apart from the normal. 22 Q. How do you know as a doctor what to ask for 23 and how to identify that type of 24 symptomatology that may give rise to an 25 indication that there is a possible systemic Martin & Associates (409) 762-2222 WATER PCB-SD0000031597 616 1 poisoning as a result of your product? 2 A. You know by your clinical experience over the 3 years of examining people. You know what to 4 ask for. You know what constitutes a good 5 history and a good physical examination. 6 Q. And you also have to identify those symptoms 7 that would be identified with the type of 8 systemic poisoning associated with your 9 product? 10 A. No. I don't believe that because symptoms - 11 you could get the symptoms from any number - 12 the same symptoms from any number of 13 illnesses. You could get the same symptoms 14 from any number of illnesses, any number of 15 chemical absorption. Just the -- you cannot 16 trace back from a symptom to a single cause 17 because that symptom may be the result of any 18 number of causes. 19 Q. You would agree that those symptoms give rise 2 0 to a possibility of systemic poisoning? 2 1 MR. BAUER: Object to the form. 22 What symptoms? 23 A. Yes. 24 Q. (By Mr. Kim) You recall in your testimony 25 with Mr. Bauer, the very first exhibit he Martin & Associates (409) 762-2222 WATER PCB-SD0000031598 617 1 2A 3Q 4 5A 6Q 7 8A 9 10 11 12 13 14 Q 15 16 A 17 Q 18 19 20 A 21 Q 22 23 24 25 used was a study by Jones and Alden? Yes . And they noted in that study the loss of - lassitude, loss of appetite, loss of libido? Yes . And that result was associated with a PCB-based product? Yes. But it could be associated with benzene. It could be associated with anything that would give you anemia. It could be associated with hypothyroidism. So those symptoms are not the result -- not only from PCB overexposure. The presence of those symptoms does not eliminate PCBs as a causative agent? No . It gives rise from a medical standpoint and an occupational safety standpoint of the need for further investigation, doesn't it? Yes, it does. And my question to you, Doctor, is: Then how could we rely upon the occupational medical monitoring that you have talked about thus far without any specific inquiry into the causes of the systemic or systematic effects Martin & Associates (409) 762-2222 WATER PCB-SD0000031599 complained of by workers? Well, first of all, they weren't complaining about any systemic effects. Did you ask them? Certainly. I didn't ask them were you complaining about systemic effects of absorption from PCB because there weren't any from their point of view. Did you - I asked them if they had any symptoms, period. Did you ask them specifically if they were experiencing a loss of appetite? I'm sure I obtained the same information, whether I asked that specific question or not. In the course of a history, you do not ask questions specifically on all cases. You ask how the man is feeling, how his weight is doing. You could ask very easily, "Do you have any problems with your appetite?" Did you ask him specifically whether he was experiencing lassitude or lethargy? MR. BAUER: Object to the form. Who is "he"? MR. KIM: His worker. Martin & Associates (409) 762-2222 WATER PCB-SD0000031600 619 1 Will you repeat - 2 MR. BAUER: Objection. Lacks 3 foundation. 4 MR. KIM: Scott, I believe he's 5 already testified that he personally 6 interviewed occupational workers and he's 7 reviewed them over 4 0 years. 8 (By Mr. Kim) I think that's foundation 9 enough for him to testify as to whether he 10 specifically, during the course of those 11 investigations, Doctor, ever asked whether 12 the occupational worker, your worker at 13 Monsanto, ever experienced lassitude. 14 Certainly I obtained that information. 15 Whether I was sitting next to him and said, 16 "Do you have lassitude," certainly not -- I 17 may not have done that; but I've said, "How 18 are you feeling? How is your work doing? 19 Are you able to work? Do you have any 2 0 problems with work? Do you get tired 2 1 easily?" I did not say, "Do you have 22 lassitude?" 2 3 And you trusted that answer even though it 24 was part of a review in-house that would 25 affect his job performance and continuation? Martin & Associates (409) 762-2222 WATER PCB-SD0000031601 62 0 1 A. 2 3 Q. 4 5 6 7 8 A. 9 10 11 12 Q. 13 A. 14 15 Q. 16 A. 17 Q. 18 A. 19 20 21 22 2 3 Q. 24 25 Say that over again because I -- I get a little confused with your question. Do you think that that worker may have been hesitant to tell you, "Yeah, I'm not feeling as spunky as I used to. I'm not able to work as hard as I used to"? MR. BAUER: Object to the form. I certainly do because the workers knew that we never discharged anybody on a basis of a physical examination once he was working for Monsanto. (By Mr. Kim) Never? Never, unless he had tuberculosis or something 1ike that. Something communicative? I beg your pardon? Something - Communicable. Or if he objectively couldn't do the work. If he couldn't bend, if he had serious arthritis and he couldn't bend or go up a ladder, then if there was no other job for him, he may have gone on disability. Did you ever ask, during these medical examinations, any worker whether they had experienced a lessened sex drive? Martin & Associates (409) 762-2222 WATER PCB-SD0000031602 621 1 A. Did I ever? I may have, but I don't - 2 didn't do it routinely because I believe that 3 from my experience with workers, they will 4 tell you if they have it. That's pretty 5 important to them. 6 Q. Why would they tell you that? 7 A. Because they were interested in it. They 8 wanted to know if you could do something 9 about it. 10 Q. And they would talk to the occupational 11 health director at Monsanto about that? 12 That's your testimony? 13 A. That they never talked to me or that they did 14 talk -- 15 Q. No. That they would volunteer that 16 information. 17 A. During the course of examination, certainly. 18 Q. It was -- was this a part of an oral history 19 that you would take or was there some written 2 0 protocol? 21 A. There was no written protocol. It's an oral 22 history that a person develops during his 23 clinical experience over a lifetime as an 24 occupational physician. 25 Q. And as a result of these oral histories over Martin & Associates (409) 762-2222 WATER PCB-SD0000031603 622 1 time, you formed the belief that your 2 occupant -- your occupational workers 3 experienced no negative findings associated 4 with PCBs? 5 A. That's correct. 6 Q. And I believe you told us in the last 7 depositions that to this date you feel that 8 PCBs hold no unreasonable toxic effects 9 towards humans. 10 A. That's correct, with the exception of 11 chloracne. 12 Q. I'm curious in that belief, Mr. Kelly, 13 because of what you wrote and what I've put 14 before you as your deposition Exhibit No. 51, 15 I believe. Could you take a look at that 16 real quickly? 17 A. Yes, sir. I sure can. 18 Q. And you've had an opportunity to review that 19 prior to starting today's session, have you 2 0 not? 21 A. Well, I've seen it before. Yes, sir. 22 Q. How have you seen it before? 2 3 A. I beg your pardon? 24 Q. How have you seen it before? 25 A. It was shown -- well, first of all, when I Martin & Associates (409) 762-2222 WATER PCB-SD0000031604 623 1 wrote it I saw it. 2 Q. You wrote it back in September of 1955? 3 A. Yes. And it was shown to me in one of these 4 depositions. I don't know if it's this 5 particular case or other cases. 6 Q. And it was directed to a Dr. Barrett in 7 London. Is that correct? 8 A. That's correct. 9 Q. Who was Dr. Barrett? 10 A. He was a development -- he was a Ph.D. He 11 was not an M.D. 12 Q. Was he employed by Monsanto? 13 A. Yes, he was. 14 Q. Based in London? 15 A. That's correct. 16 Q. If you will turn your attention to the last 17 paragraph on the first page of your letter 18 where it states MCC -- and I assume that 19 stands for Monsanto Chemical Company? 20 A. That's correct. 21 Q. -- "MCC's position can be summarized in this 22 fashion." We knew Aroclors -- "We know 23 Aroclors are toxic but the actual limit has 24 not been precisely defined." And this is in 25 1955, correct? Martin & Associates (409) 762-2222 WATER PCB-SD0000031605 624 1 A. 2 Q. 3 4 5 A. 6 7 8 9 10 11 Q. 12 13 14 A. 15 Q. 16 A. 17 Q. 18 19 2 0 A. 21 Q. 22 23 24 A. 25 Yes, sir. Do you think it's important from a toxicological standpoint that the actual limits of toxicity be defined? Not necessarily. In an industrial situation, you want to find out the safe limit. You don't want to find out: If I expose this man to this much, will I hurt him? What you want to find out is: What is the 1imit I can -- that he can be exposed to without any harm? Did you know during the 1950s whether PCBs persisted in fatty tissues or the environment? No, sir. I did not. Have you ever testified differently? I don't know if I have. Do you recall giving a deposition with Mr. Warshauer sometime earlier this year in a case styled Fisher versus Monsanto? I remember the deposition. Yes, sir. Do you recall telling him that you knew that PCBs may persist sometimes -- sometime in the 1950s? Well, they persist. Certainly I said that. I said they could -- they were not -- we Martin & Associates (409) 762-2222 WATER PCB-SD0000031606 625 1 2 3 4 5 Q. 6 7 8 9 10 11 12 13 14 A. 15 16 17 A. 18 Q. 19 20 21 22 A. 23 Q. 24 25 thought they were nonbiodegradable. We thought they were stable compounds, and we thought they were nonsoluble in water. Certainly I said that. Did you ever initiate any studies while the medical director of Monsanto between 1946 and 1974 that tested the cumulative effect of PCBs as it persisted within the human body? MR. BAUER: Obj ect to the form. He never said persisted within the human body. MR. KIM: He did in his prior depo, Scott. MR. BAUER: Well - Will you repeat your question? MR. BAUER: Objection. Lack of foundation. Will you repeat your question, then? (By Mr. Kim) You bet. Do you recall telling me earlier in this deposition -- apparently your lawyer doesn't, but do you recall earlier in this deposition, prior days - Yes . -- telling us that in the 1950s, you and Monsanto were aware of the fact that PCBs may persist within the human body and Martin & Associates (409) 762-2222 WATER PCB-SD0000031607 62 6 1 2 3 4A 5 6 7Q 8 9 10 11 A 12 13 14 15 Q 16 A 17 18 19 Q 20 21 22 A 23 Q 24 A 25 Q environment? MR. BAUER: Objection. Mischaracterizes his prior testimony. I do not recall saying within the human body. I certainly knew they persisted in the environment. (By Mr. Kim) Your testimony today is in the 1950s, you were unaware of the fact that PCBs may persist in the fatty tissues of the human body? I think I would have to say that, and I did not have any evidence to show that there was an accumulation of PCB in the fatty tissues of the body. How about in the blood? I don't believe we had -- in fact, I'm quite sure we had no methods to pick up PCB in the blood in the 1950s. What is your understanding today as to the normal background level of PCBs present in humans' fatty tissue? 1 to 3 to 5 parts per million. How about in the blood? 1 to 3 parts per billion in the blood. And I think we can agree that polychlorinated Martin & Associates (409) 762-2222 WATER PCB-SD0000031608 627 1 biphenyls are not a natural chemical compound 2 in the environment. 3 A. That's correct. 4 Q. They're man-made? 5 A. Yes. 6 Q. So the presence of any PCB background levels 7 in humans, whether it be in blood or fatty 8 tissue, is a result of the introduction of 9 this chemical compound by industrial 10 manufacturers? 11 A . Yes, sir. 12 Q. Monsanto, during the time period that you 13 were employed as the medical director from 14 1946 to 1974, was the sole supplier of PCBs 15 in the industrial setting, was it not? 16 MR. BAUER: Objection. 17 A. In the United States. 18 Q. (By Mr. Kim) In the United States. 19 A. Yes, sir. 20 Q. I'm curious, then, Doctor, when as the 2 1 medical director you first became aware of 22 the possibilities that PCBs may persist in 23 the environment. 24 A. First, I recognized the fact that they - 25 that they were in the environment; but I also Martin & Associates (409) 762-2222 WATER PCB-SD0000031609 62 8 1 recognized the fact that they were stable 2 compounds, they were nonsoluble in water and 3 that, if they persisted in the environment, 4 they persisted as PCBs much as they would 5 have been if they were a lump of coal lying 6 in the bottom of a river. Yes, if that's 7 what you mean by persisting, they were there. 8 Q. When were you first aware of this? 9 A. I suppose the first time I recognized the 10 fact that they were nonsoluble, non -- we had 11 no idea that they were metabolized. So I 12 think I became aware of it sometime in the 13 forties. 14 Q. And when you indicated just now that you 15 became aware that they were nonmetabolized - 16 A. Yes, sir. 17 Q. -- to what are you referring with respect to 18 that metabolism? Within what organism or 19 what structure? 20 A. Any organism. 21 Q. The human? 22 A. Yes . 23 Q. And you knew that in the forties, as well? 24 MR. BAUER: Well - 25 A. I didn't say I knew it. I suspected. Martin & Associates (409) 762-2222 WATER PCB-SD0000031610 629 1 Q. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 A 23 Q 24 25 (By Mr. Kim) did you ever forward that the persiste MR didn't say they persisted. Lack of metabolism is not the same thing. The answer is no, but we had our clinical opinion -- our clinical evidence that workers who were exposed to this -- PCBs during the manufacture of the material, if it was going to persist anyplace, it was going to persist in their bodies; and we medically monitored them, and they were well. (By Mr. Kim) Of course, you have no compilation of data? Well, I don't need the compilation of data. I have the information I gained from the individual examinations. After your retirement in 1974, were you made aware of the Zack and Musch study - Yes . -- done on the Monsanto occupational workers? Yes . Martin & Associates (409) 762-2222 WATER PCB-SD0000031611 630 1 Q. 2 3 A. 4 5 Q. 6 7 8 A. 9 Q. 10 11 12 13 14 15 16 A. 17 18 19 20 21 22 23 24 25 Do you dispute those results? MR. BAUER: Object to the form. Well, which results are we talking about now? (By Mr. Kim) Specifically, the cancer findings. MR. BAUER: Obj ect to the form. What cancer findings? Cancer of what? (By Mr. Kim) Do you dispute the fact that study indicated that based upon the cluster groups in that community around them that - and the representative sample of the Monsanto workers that it was anticipated that they would see 22 incidences of cancer? Do you have a recollection of that? I do not know the figures; but I do know that when she published her first study, which - not published -- when she wrote her first study, she compared the cancer rate to the people of the United States. When she compared them to the county of -- St. Clair County in which Monsanto's plant is, there was no difference in the Monsanto employees than the people not working for Monsanto who lived in the same area. Martin & Associates (409) 762-2222 WATER PCB-SD0000031612 631 1 Q. 2 A. 3 Q. 4 A. 5 Q. 6 7 A. 8 9 Q. 10 11 A. 12 13 Q. 14 15 16 A. 17 18 19 20 Q. 21 22 23 24 25 A No difference? No, sir. That's your understanding? That's my understanding. And of course you will agree with me as you earlier indicate that it was never published? No. But it's been referred to so often that the material certainly got around. Through litigation? MR. BAUER: Obj ect to the form. Not only litigation. I've seen references to her study in papers. (By Mr. Kim) Do you recall whether Monsanto ever disseminated that type of information to its customers? Remember, the Zack study occurred after I left there; so I do not know what Monsanto did as far as disseminating that particular study. Prior to your retirement in 1974 and during the time period of PCB production between 1946 and 1974, you certainly never disseminated any occupational studies or occupational data to your customers? Monsanto's occupational data? No. Should Martin & Associates (409) 762-2222 WATER PCB-SD0000031613 632 1 I -- I had written many customers and said we 2 have had no illnesses in our workers, period. 3 Q. There was no doubt in your mind that PCBs as 4 used during the time period that you were the 5 medical director of Monsanto were safe? 6 A. Certainly they were safe. 7 Q. Posed no attendant liabilities to the 8 corporation, the company? 9 MR. BAUER: Object to the form. 10 A. Well, now we're getting into a legal 11 situation which I don't believe I should 12 comment on. 13 Q. (By Mr. Kim) Why not? 14 A. Because I'm not a lawyer. 15 Q. Well, I'm curious, if you will look at the 16 last paragraph then, in the last sentence 17 that first page, of what you meant then when 18 you said, "I am sure the juries would not pay 19 a great deal of attention to the MACs." And 2 0 by that I take it you meant maximum allowable 2 1 concentrations. 22 A. Yes. 23 Q. What was the thrust of that statement 24 intended for? 25 A. Because I believe the average juror does not Martin & Associates (409) 762-2222 WATER PCB-SD0000031614 63 3 1 2 3 4 Q. 5 A. 6 7 Q. 8 A. 9 Q. 10 A. 11 Q. 12 A. 13 Q. 14 15 A. 16 17 18 19 20 21 22 23 24 25 understand the relationship of MACS to a lifetime of work to any one particular episode. You feel that juries are too ignorant? No, I didn't say that at all. It's outside of their field. I resent that implication. Can they be educated? Certainly they can be educated. Just as a customer could be educated? Just as the customers were educated. And workers? Workers were educated. And to educate them, there must be full disclosure? Full disclosure -- I don't know what you mean. And what I mean -- I tell the workers how to protect themselves against any harm during their working experience. If they follow those directions, which are relatively simple, they will not get and have not gotten any illnesses. And that's not only my statement, but it's also the renowned Dr. Kimbrough's statement who said as late as 1987, with the exception of chloracne, there have been no cases of worker illness from Martin & Associates (409) 762-2222 WATER PCB-SD0000031615 634 1 2 Q. 3 4 5 6 7 8 A. 9 10 11 12 13 14 Q. 15 16 17 18 19 20 A 21 22 23 24 25 PCB . Well, you never tell the individuals, by virtue of your labels or warnings, what the actual impact of not following your directions are. MR. BAUER: Object to the form. Vague as to what you mean by "warnings." Well, to phrase your statement earlier, the workers are not ignorant -- to paraphrase it -- and they see if you put a warning on that the warning means something. And if they follow those warnings, they would get no illness and did not get any illness. (By Mr. Kim) And it is your position as the person in charge of the text of the labels and warnings from 1946 to 1974 that it was not necessary to tell your workers or customers the impact or the potential effects of not following those directions? I do not believe that you need to put the specific illness that overexposure may give you. I don't believe you need to put on a gas station: "Do not smoke while filling your car or you're liable to be blown into the next block." They certainly say: "Do Martin & Associates (409) 762-2222 WATER PCB-SD0000031616 63 5 1 not smoke when filling your car." 2 Q. How about if you said: "Highly flammable. 3 Do not smoke. Could be possible ignition 4 source"? 5 A. I didn't hear the last phrase. 6 Q. "Could be a possible ignition source." 7 MR. BAUER: Obj ect to the form. 8 A. Well, I don't know. 9 Q. (By Mr. Kim) Is that an inadequate warning? 10 MR. BAUER: Object to the form. 11 A. Is it inadequate or adequate? What did you 12 say? 13 Q. (By Mr. Kim) You tell me. 14 MR. BAUER: Same objection. 15 A. Well, the same objection is I am not in the 16 selling of gasoline and I can't make a 17 comment on what - 18 Q. (By Mr. Kim) Exactly. Those that give 19 warnings should have an expertise or a 2 0 knowledge in that area? 21 A. That's correct. 22 Q. Those that give warnings should know 23 everything possible about their comp ound? 24 A. Those that give the warnings should, yes , 25 certainly. Martin & Associates (409) 762-2222 WATER PCB-SD0000031617 63 6 1 Q. They should have done testing? 2 A. You test for adequacy and protection of the 3 worker and the user. And, yes, we did that, 4 and I did know that. 5 Q. And you should foresee both intended uses and 6 unintended uses of that product? 7 MR. BAUER: Object to the form. 8 A. No, I don't think so. I don't believe that I 9 would -- if I am selling an industrial 10 chemical, an unintended use might be to put 11 it on pancakes. I couldn't, by any stretch 12 of the imagination, think that would be - 13 that's an unintended use, and I am not 14 supposed to foresee that. 15 Q. (By Mr. Kim) So in your warning philosophy 16 that you encapsulated while at Monsanto 17 Chemical Company, is it your position that 18 you did not take into account the potential 19 for misuse or unintended uses of the 2 0 product? 21 A. No matter if -- the one exception, we did not 22 say "Do not take internally" because we did 23 not expect anybody using an industrial 24 chemical as something to be taken by mouth. 25 We certainly took warnings against Martin & Associates (409) 762-2222 WATER PCB-SD0000031618 63 7 1 unintended uses when we said "Do not breathe 2 at elevated temperatures or in confined 3 spaces" and we said "Do not" -- "Avoid" - 4 not "Do not" -- "Avoid prolonged or repeated 5 skin application." Those certainly took care 6 of unintended, unforeseen uses. If a person 7 decided to use it to remove paint from his 8 hands, that would be covered. That would be 9 covered under the designation of repeated or 10 continuous skin contact. 11 Q. Is it fair to say that the contemplated 12 environment of use included both those 13 intended uses and those accidental exposures 14 that might occur in an occupational setting? 15 A. Is it fair to say what? 16 Q. That in the environment of use of your 17 product that environment of use includes not 18 only its intended use but also accidental 19 exposures by misuse or accident? 2 0 A. Yes, because if they got it on them we said, 21 "Wash it off." We told them not to breathe 22 it at elevated or repeated -- or elevated 23 temperatures or in confined spaces. That 24 would take care of it, and it worked because 25 as I've stated before, there were no injuries Martin & Associates (409) 762-2222 WATER PCB-SD0000031619 63 8 1 or ill effects from the use of PCB in the 2 electrical industry. 3 Q. And if that is the truth, Dr. Kelly, then why 4 as you indicated in September of 1955 were 5 you so worried about juries? 6 MR. BAUER: Obj ect to the form of 7 the question. He didn't say he was so 8 worried about juries. 9 A. I wasn't worried about juries particularly. 10 I was worried about the use of it in England, 11 in the United Kingdom. I had no idea how it 12 was liable to be used. I didn't know whether 13 or not it would be a household product over 14 there, whether these were mom-and-pop shops 15 rather than pretty sophisticated companies. 16 I just didn't know. 17 Q. (By Mr. Kim) If Monsanto's position was 18 there were absolutely no concern from a 19 health standpoint with respect to PCBs, then 2 0 why in 1972 did it require indemnity from its 21 customers before it would sell them any more 22 PCB products? 23 MR. BAUER: Object to the form. 24 Mischaracterizes his testimony. 25 A. I believe at that particular time -- well, Martin & Associates (409) 762-2222 WATER PCB-SD0000031620 639 1 first of all, I don't know why. I had 2 nothing to do with indemnity; but this was 3 the time of the environmental aspect and it 4 was not -- their concern was problems with 5 the environment rather than problems with the 6 workers. 7 Q. (By Mr. Kim) Is it your position that 8 Monsanto thought there could be environmental 9 implications that did not implicate human 10 health? 11 A. Yes. We thought there was a possibility when 12 we found out that it was present in the food 13 chain. That's why we started -- that it 14 might be present in the food chain. That's 15 why we started the chronic feeding 16 experiments. 17 Q. So, yes, you thought it was possible that the 18 environmental implications could have human 19 implications. Is that correct? 20 A. It was a possibility, yes. 2 1 Q. And that is when you initiated the IBT tests 22 to test this supposition? 23 A . That's correct. 24 Q. Did you ever visit the IBT Laboratories? 25 A. Yes. Dozens of times. Martin & Associates (409) 762-2222 WATER PCB-SD0000031621 640 1 Q. 2 A. 3 4 5 Q. 6 7 A. 8 9 10 Q. 11 12 13 A. 14 Q. 15 16 A. 17 Q. 18 19 2 0 A. 21 Q. 22 23 24 25 Do you know whether Mr. Levinskas did? Yes, he did. When he came with the company, he went up there once every month, once every two months. Do you recall testifying differently in any other court proceeding? I may have been -- I never testified that he never went up there. I may have had a different amount of times he went up there. Let me show you what we've marked as your deposition Exhibit No. 53 and just ask if you recognize that. Yes, sir. Do you recall seeing those contemporaneous to 1972? I don't remember that I have. Do you recall if -- whether you were made privy to discussions that surrounded the introduction of those letters? No, I was not. Let me represent to you that those letters indicate that Monsanto would not sell its PCB products to its customers absent a hold harmless or indemnity agreement. Were you a participant in that decision-making process? Martin & Associates (409) 762-2222 WATER PCB-SD0000031622 641 1 A. No, I was not. 2 Q. In any event, you knew by 1972 that the 3 continued sales of PCBs was a concern at 4 Monsanto Chemical Company? 5 A. Some uses were, yes. 6 Q. Why? 7 A. Why? Because they were open uses. They 8 were -- there was no way to prevent them from 9 going into the environment. 10 Q. And what were the implications of PCBs being 11 exposed to the environment? 12 A. It was killing birds. It could -- quite 13 possibly could wipe out the Peregrine falcon, 14 quite possibly could wipe out the bald 15 eagles. That was the primary concern. 16 Q. How about - 17 A. Then when -- may I finish? 18 Q. You bet. I'm sorry. 19 A. Then when we found out that it was being 2 0 metabolized by the fish and shrimp and lower 21 aquatic organisms and was being biomagnified 22 as it went up the food chain, we were 23 concerned about that. 24 Q. You knew, at least from an environmental 25 standpoint, that PCBs were nonbiodegradable Martin & Associates (409) 762-2222 WATER PCB-SD0000031623 642 1 in the 1950s or 1940s? 2 A. Did I know that? It was my belief, it was 3 Monsanto's belief that they were 4 nonbiodegradable in the 1950s. Yes, sir. 5 Q. In the 1950s, did Monsanto and yourself carry 6 the same belief that the nonbiodegradability 7 might affect the food chain? 8 A. No, sir. We thought if they were 9 nonbiodegradable they would not affect the 10 food chain. 11 Q. Did you initiate any tests to verify or 12 disprove that supposition? 13 A. No, sir. I did not. 14 MR. KIM: Let's take a break. 15 16 (A recess was taken from 9:55 a.m. 17 until 10:05 a.m.) 18 19 Q. (By Mr. Kim) Doctor, let me show you what's 2 0 been previously marked as your deposition 2 1 Exhibit No. 52 and ask if you recognize 22 that. 23 A. Yes, I do. 24 Q. What is it? 25 A. It's a draft of a presentation to be given to Martin & Associates (409) 762-2222 WATER PCB-SD0000031624 643 1 the corporate development committee of 2 Monsanto on November 17, 1969. 3 Q. Did you attend that meeting? 4 A. Yes, I did. 5 Q. Did you participate in that meeting? 6 A. Yes, I did. But the majority of the 7 participation from the medical department was 8 by Wheeler. 9 Q. What was the nature of your participation? 10 A. Gosh. I guess I was lending moral support to 11 Wheeler, and I was there to answer 12 questions. I was there to answer the -- any 13 toxicological questions. I believe I talked 14 about that, what we were doing 15 toxicologicalwise. 16 Q. What was the purpose of this meeting? 17 A. To bring the corporate development committee, 18 which was the organization that ran the 19 company, up to speed, up to the -- our 20 present knowledge of the problem with PCBs 21 vis-a-vis the environment particularly. 22 Q. You indicated that the corporate development 2 3 committee or CDC ran the company? 24 A. Well, the executive committee ran it; but the 25 same people were on it. So they wore two Martin & Associates (409) 762-2222 WATER PCB-SD0000031625 644 1 different types of hats. 2 Q. On the first page, it indicates some 3 individuals that were present and maybe you 4 can identify them: an E. J. Bock? 5 A. He was the chairman of the committee, and I 6 think he was either the president or the CEO 7 at that time. I'm not sure. 8 Q. How about H. H. Bible? 9 A. He was head of administration, a vice 10 president and a member of the board of 11 directors. 12 Q. J. R. Eck? 13 A. He was head of manufacturing, a vice 14 president and a member of the board of 15 directors. 16 Q. J. L. Gillis? 17 A. He was head of marketing and also a member of 18 the board of directors. 19 Q. E. J. -- is it Putzell? 2 0 A. 21 Putzell. company. He was a chief counsel for the 22 Q. C. M. Sommer? 23 A. He was the chairman of the board, and I don't 24 know if he was CEO at that time or not. 25 Q. And J. N. Ehlers? Martin & Associates (409) 762-2222 WATER PCB-SD0000031626 645 1A 2 3Q 4 5 6 7A 8Q 9 10 11 12 A 13 14 15 16 17 18 19 20 Q 21 22 23 A 24 25 Was a lawyer, and he was the secretary of this particular committee. Fair to say that within the organizational chart of Monsanto Chemical Company in November of 1969 these were the leaders of the company? No question about it. If you will turn to the page -- I think it's about four down where it's titled "PCB Presentation to Corporate Development Committee." Page which? MR. BAUER: What is the production number on the bottom? MR. KIM: Well, they're not the same . MR. BAUER: Oh, all right. MR. KIM: But they're the same document. (By Mr. Kim) Did Mr. Wheeler give this portion of the presentation, the introduction? I'm not sure. Remember, this is the rough draft. It says the minutes before, but this wasn't the minutes. Martin & Associates (409) 762-2222 WATER PCB-SD0000031627 64 6 1 Q. Right. 2 A. I don't know who started it off. 3 Q. Okay. 4 A. Because I have to go back to the people on 5 the front. There was -- Smith and Mason, 6 T. K. Smith and Bergen, Springgate were all 7 from the division that manufactured PCBs. I 8 think Smith was probably the ranking person 9 there. So whether it was Smith -- either of 10 the Smiths or Mason or Bergen or Springgate 11 that gave the preamble or the -- I don't know 12 who did. 13 Q. Well, let's just talk about a couple of the 14 things that are in the draft, and let me ask 15 you a couple questions about that. Okay? 16 A. Sure. 17 Q. If you will take a look at the third 18 paragraph under the heading of Introduction 19 where it says "From the standpoint of 2 0 reproduction, the PCBs are highly toxic to 21 birds" - 2 2 A. Yes, sir. 2 3 Q. -- what was the implication of that as you 24 recall? 25 A. Well, if it were carried to the extreme, it Martin & Associates (409) 762-2222 WATER PCB-SD0000031628 647 1 2 3 4 5Q 6 7 8A 9Q 10 11 12 13 A 14 Q 15 A 16 Q 17 A 18 Q 19 A 20 21 Q 22 23 24 25 A could wipe out a species. These birds were laying eggs with thin eggshells; and when they sat on the nest, it was good-bye to the egg and to the chick inside it. At least in 1969, Monsanto was aware of possible reproductive toxicity in animals or birds? Yes, sir. The fifth paragraph indicates that those making the presentation indicated that it was a serious matter from two point of views, correct? Yes, sir. The first being a pollution matter? Yes, sir. And the second being a profit -- Yes, sir. -- analysis. And a third one, too; adverse legal and public relations problems. Absolutely right. What type of adverse legal problems were contemplated? MR. BAUER: Objection. Lacks foundation. I don't know. That's outside my field. Martin & Associates (409) 762-2222 WATER PCB-SD0000031629 648 2 3 4 5 6 7 A. 8 9 10 Q. 11 12 A. 13 Q. 14 A. 15 Q. 16 A. 17 18 19 Q. 20 21 22 A. 23 24 Q . 25 (By Mr. Kim) Would it be the same type of problems that you expressed concerns about in the September 1955 letter where you were concerned about what juries would do? And hold on because we're going to have an objection. Well, no. In that letter I was talking about health effects. Here I believe they were talking about environmental aspects. And you made a distinction between environmental aspects and health effects? When? In 1955. I think when I was talking to England, yes. How about in 1969? I believe in '55, there was no thought about environmental aspects. And in 1969, it was very, very prominent. Did you make a distinction, Dr. Kelly, between environmental impacts and health impacts, human health impacts? No. But I believe that the environmental aspects were much, much greater. You never made that distinction? MR. BAUER: Object to the form. Martin & Associates ( 409) 762-2222 WATER PCB-SD0000031630 64 9 1 What do you mean making a distinction? 2 A. I don't know how or what sort of a 3 distinction. 4 Q. (By Mr. Kim) Well, you told us earlier that 5 one supposition or impression that you had 6 was that the persistence of PCBs in the 7 environment may cause some attendant type of 8 concerns for humans. 9 A. Yes , sir. 10 Q. When did you come to that realization? 11 A. In the late sixties when we found out it was 12 present in the food chain. 13 Q. So am I correct in understanding that at the 14 time you wrote this letter that we've marked 15 as your deposition Exhibit No. 51, your 16 concern was solely in human health at that 17 point in time? 18 A. May I see it? 19 Q. It's right there. 2 0 A. 21 Yes, sir. This was purely human health effects at this time. 2 2 Q. In 1969, in November when the presentation 2 3 was made to the CDC, would the possible 24 adverse legal effects that were contemplated 25 have been as a result of the environmental Martin & Associates (409 ) 762-2222 WATER PCB-SD0000031631 650 1 implications or the human health implications 2 or both? 3 MR. BAUER: Objection. Lacks 4 foundation. 5 A. I think both. 6 Q. (By Mr. Kim) Am I correct in understanding 7 that as of November 1969, no testing had been 8 completed to test the supposition that you 9 had of a correlation between environmental 10 persistence and human health persistence? 11 A. The suspicion, did you say? 12 Q. Suspicion. 13 A. Suspicion. 14 MR. BAUER: Objection. You said 15 "human health persistence"? 16 Q. (By Mr. Kim) Or persistence in humans. 17 A. Well, I think we did know something about the 18 fact that there was some presence in humans 19 at that particular time. After all, Jensen 2 0 found it in Europe; and I think there was - 2 1 I don't know when the first fat biopsy showed 22 up in the United States. 23 Q. Were you involved in any of the analysis that 24 reached the conclusion within that same 25 paragraph, Doctor, that PCBs involved a gross Martin & Associates (409) 762-2222 WATER PCB-SD0000031632 651 1 profit of $10 million? 2 A. No, sir. 3 Q. If you will turn with me to Page 4 of that 4 draft - 5 A. Yes, sir. 6 Q. -- where it talks about Monsanto's worldwide 7 Aroclor business, was this a part of the 8 presentation to the CDC, as you recall? 9 A. I don't recall. I don't know -- they 10 certainly didn't go into all this. We didn't 11 spend all that time with the CDC as you might 12 expect from looking at all this. I don't 13 know how long we were in there, but I thought 14 we were in there half an hour or something 15 like that or 45 minutes. So I don't know. I 16 imagine they did mention this, but -- I don't 17 know what our sales were in '69, but they 18 were probably -- what? -- 400 million. So 19 we're talking about -- 2 0 Q. Well, it indicates - 21 A. -- 22 million. 22 q. -- PCBs would account f or 2 2 million? 23 A. In sales. Yes, sir. 24 Q. With a gross profit per year of 10 million? 25 A. Yes, sir. And our profit that year, again, I Martin & Associates (409) 762-2222 WATER PCB-SD0000031633 652 1 don't know, but there were -- my guess would 2 be 200 million. 3 Q. Do you know - 4 A. Wait a minute. I fell apart. Well, I may 5 need a lawyer yet. Thank you. 6 Q. Doctor, the sixth line item where it says 7 worldwide M/I - 8 A. Yes. 9 Q. -- do you know what that means? 10 A. No, I don't. 11 Q. If you will turn to Page 9, I think the first 12 sentence is "We considered four alternative 13 courses of action." 14 A. Yes, sir. 15 Q. Do you have a recollection of that? 16 A. I think so, yes. 17 Q. The first was just to do nothing and react to 18 legislation and emotion? 19 A. Yes, sir. 20 Q. What type of emotional responses were you 2 1 . talking about? 22 A. Adverse publicity. 23 Q. How about legal effects? 24 A. I don't know. It doesn't say that, so I 25 don't know what -- whether that was included Martin & Associates (409) 762-2222 WATER PCB-SD0000031634 653 1 in this or not. 2 Q. On the previous page, there is a little 3 description which I believe indicates 4 underneath Alternative 1 that those making 5 the presentation recognized that it was the 6 quickest route to being forced out of 7 business. 8 A. But they also said it was considered 9 unacceptable from a legal, moral and 10 customer, public relations and company policy 11 viewpoint. It looks like they just put a 12 straw man to knock him down right off the 13 bat. 14 Q. What is -- did you make -- did you 15 participate in the development of the four 16 alternative courses of action? 17 A. No, sir. 18 Q. Okay. Do you have a recollection of this 19 discussion before the CDC? 2 0 A. Yes, I have a recollection. 2 1 Q. Was this a part of the 30-minute presentation 22 that was made to the CDC? 2 3 A. Yes, sir. Remember, don't hold me to that 30 24 minutes; but that was what I remember 25 25 years ago. Martin & Associates (409) 762-2222 WATER PCB-SD0000031635 654 1 Q. Okay. It was not an expansive presentation? 2 A. It wasn't all afternoon. That's for sure. 3 Q. You got in and got out? 4 A. Yes. 5 Q. The second one is titled get out of total 6 Aroclor business? 7 A. Yes, sir. 8 Q. And the analysis under there was that it was 9 unacceptable from a divisional viewpoint? 10 A. Yes, sir. 11 Q. But from a corporate standpoint may be 12 necessary? 13 A. Yes, sir. 14 Q. Why might there be a discrepancy between the 15 divisional and corporate viewpoints? 16 MR. BAUER: Objection. Lacks 17 foundation. 18 Q. (By Mr. Kim) If you know. 19 A. I don't know. I didn't belong to the 20 division. I didn't belong to the corporate 21 managing group. 22 Q. If you will look with me at the very next 2 3 sentence where it says "Only you can make 24 that decision" - 25 A. Yes, sir. Martin & Associates (409) 762-2222 WATER PCB-SD0000031636 655 1 Q. -- are they referring there to the CDC? 2 A. That's correct. 3 Q. Was that a decision with respect to these 4 alternatives that must have come from the 5 CDC? 6 A. That -- 7 Q. The final decision must have been made - 8 A. Yes. 9 Q. -- by the CDC? 10 A. That's correct. 11 Q. In other words, a division could not initiate 12 these alternatives on its own but had to have 13 approval from the CDC? 14 A. That's my belief. I'm not certain of that, 15 but it's my belief. 16 Q. Okay. The next sentence indicates that all 17 Aroclor products are not serious pollutants. 18 Many degrade. There is too much customer 19 market need and selfishly too much Monsanto 2 0 profit to go out. Is that correct? 2 1 A. That's what they wrote. Yes , sir . 22 Q. Again, was profit and money a factor 2 3 considered in the alternative to be chosen? 24 A. Well, I don't know if it's a factor and 2 5 alternative to be chosen because eventually Martin & Associates (409) 762-2222 WATER PCB-SD0000031637 656 1 they did go out. And profit is always an 2 item with any industrial chemical, with any 3 company; but I have to repeat what they say 4 here: 12 cents a share profit. Well, our 5 profit in '69 was probably two dollars and a 6 half or three dollars a share. So we're 7 talking about 3 percent of the profit. 8 Q. You would also agree with me that they also 9 indicated that selfishly too much Monsanto 10 profit to go out? 11 A. Well, whoever wrote this said that. 12 Q. Do you have an understanding whether the type 13 of analysis engaged in 1969 was a 14 risk/benefit type of analysis with respect to 15 products or was it a risk/utility analysis? 16 A. Risk which? 17 Q. Utility. 18 A. I don't know what you mean by risk/utility. 19 Q. You understand what risk is? 2 0 A. Yes. I understand risk. 2 1 Q. And by utility, I'm not talking about just 22 those pecuniary benefits; but I'm also 2 3 talking about the general benefits to the 24 product such as those claimed by Monsanto 25 with respect to dielectric fluids in that it Martin & Associates (409) 762-2222 WATER PCB-SD0000031638 657 1 was a good fire retardant and better and 2 safer conductor. 3 A. Well, I'm sure that entered into it because 4 they did not have acceptable relatively 5 nonflammable electrical uses for dielectrics 6 at that time. 7 Q. My question was: Was it both a risk/benefit 8 type of analysis and risk/utility analysis, 9 or was it one or the other; or do you know? 10 A. Well, you told me what risk/utility was. I 11 can understand that. Risk/benefit -- benefit 12 to whom? 13 Q. Benefit to the company. 14 MR. BAUER: Object to the form. 15 A. Well, the only benefit of the company 16 obviously would be the profit and I don't 17 think that was a predominant thing. Now, 18 there was a risk/benefit certainly to the 19 users; but I thought that would fall under 20 risk/utility, by your definition. 21 Q. (By Mr. Kim) You don't believe that in 1969 2 2 that benefit in terms of money to the company 23 was a predominant consideration? 24 A. Oh, I think it was the least of it. In fact, 25 as I think I've told you before, that Bock Martin & Associates (409) 762-2222 WATER PCB-SD0000031639 658 1 who was there said if we can't handle this 2 problem, we're going to quit. He said walk 3 away from it or -- walk away from PCBs. 4 Q. Alternative No. 3 called for going out of the 5 Aroclor 1254 and 1260 production? . 6 A. Yes, sir. 7 Q. This alternative was eventually eliminated, 8 correct? 9 A. Yes, sir. 10 Q. Why was that? 11 A. Well, I believe that it was valuable to the 12 electrical utility users and some places 13 where they had transformers that it would be 14 completely unsafe to have an oil-based 15 transformer such as stadium -- the lights at 16 Busch Stadium here and the White House and 17 trains . 18 So at that particular time, it's my 19 impression the government advised us not to 2 0 go out of the electrical business. 2 1 Q. The fourth action was just to develop 22 specific action plans tailored to the 2 3 different business units? 24 A. That's correct. 25 Q. And each customer market situation to clean Martin & Associates (409) 762-2222 WATER PCB-SD0000031640 659 1 2 A. 3 Q. 4 5 A. 6 Q. 7 8 9 A. 10 11 12 13 Q. 14 15 16 17 18 19 Q. 20 21 22 A. 23 24 25 up the mess? Right. Was this the plan that was ultimately adopted by the CDC? Yes, sir. And they directed the tailoring of plans and the cleanup of the mess to each individual division? I don't know what the cleanup of the mess was, what they meant by that; but there was a 12-point proposal to the CDC in there someplace and they adopted that. That 12-point proposal I think we can find on Page 20 titled Recommended Action Plan. MR. BAUER: I think as adopted - I've lost my microphone now -- as adopted, it's in the minutes -- the second page of the minutes as it was adopted. (By Mr. Kim) Let's look at the second page of the minutes. Do you recall those to be the 12 actions recommended by the CDC? We recommended them to the CDC, and then the CDC approved it. These were the task force group from the organic division, the law and medical departments. We came up with these Martin & Associates (409) 762-2222 WATER PCB-SD0000031641 660 1 12 and said "This is what we want to do," and 2 they said "Okay. Go ahead." 3 Q. Were all these 12 points done subsequent to 4 this presentation? 5 MR. BAUER: Obj ection. Lacks 6 foundation. 7 A. Well, let's start off one at a time. 8 Papageorge was appointed to fulfill No. 1. 9 2, all Aroclor customers were notified. 10 3, we reduced the effluents from Monsanto 11 plants. 12 Q. (By Mr. Kim) Let me stop you right there and 13 go back to No. 2. What PCB problem were the 14 Aroclor customers notified of? 15 A. The environmental problems. 16 Q. Okay. 17 A. The disposal of the material, disposal of 18 spent material. 19 Q. How about its potential implications to human 2 0 hazards, human health? 2 1 A. Well, there were no actual -- there hadn't 22 been any problems with human health in the 23 users, so we didn't talk to them about that. 24 Q. I thought we had a suspicion by that time 25 that the persistence in the environment may Martin & Associates (409) 762-2222 WATER PCB-SD0000031642 661 1 lead to potential human implications. 2 A. Yes, but that's not the customer. That's the 3 person who is eating shrimp or eating fish. 4 Q. So you felt no need to convey that type of 5 information? 6 A. That the workers with the PCBs shouldn't eat 7 game fish? No. 8 Q. Or that the ingestion of PCB may lead to 9 potential human health concerns? 10 A. No, sir, because we didn't believe that. 11 Q. Okay. 12 A. But we wanted to be double sure, so that's 13 why we started the toxicological 14 investigation. 15 Q. At this point in time when these 16 notifications to Aroclor customers went out, 17 that testing had not been completed? 18 A. No, it had not. 19 Q. Both the customers and Monsanto were unaware 2 0 of the ultimate results of those tests in 2 1 November of 1969? 22 A . That's correct. 2 3 Q. Go on, please. 24 A. Reduce and effectively control PCB effluents 25 from Monsanto plants. That we did. Educate Martin & Associates (409) 762-2222 WATER PCB-SD0000031643 662 1 2 3Q 4 5A 6Q 7 8A 9 10 11 12 Q 13 14 15 A 16 17 18 19 20 21 22 23 Q 24 25 A customers in the need to reduce and effectively control PCB effluents. Let me stop you there. What did that education consist of? I don't know. You'll have to ask Papageorge. Did you take part in developing an education program for your customers? No, sir. This is on how -- this is certainly manufacturing and disposal. So it was not the medical department's problem or responsibility. There was no input from the medical department as to the impact of not controlling PCB effluents? Well, we had been talking for months to everybody in the company about the fact that we've got an environmental problem here and let's stop it. So they certainly didn't need another memorandum from me saying, "This is important not to have this stuff spilled out in the country." So, no, there was not specific input from the medical department. To those within Monsanto and those customers as well? No. But that was taken care of by other Martin & Associates (409) 762-2222 WATER PCB-SD0000031644 663 1 2 Q. 3 A. 4 Q. 5 6 7 8 A. 9 10 11 12 13 14 Q. 15 16 17 18 19 20 2 1 A. 22 23 Q 24 25 parts of the Monsanto organization. What other parts? The manufacturing department. The manufacturing department would have the availability and wherewithal to pass on toxicological type of information to customers? We are talking here about control PCB effluents. That's what No. 4 is. The manufacturing people certainly knew a lot more about how to control effluents from a manufacturing process than the medical department did. And again, that was consistent with the labeling or warning philosophy that you told us last time that you just tell your customers or workers what to do; and so long as they do it, there is no need to tell them of the potential effects of failing to comply with those directions? Well, no. Look at No. 2. We told all the customers about the problem. Did you tell them about the supposition that there may be an implication of human health concerns? Martin & Associates (409) 762-2222 WATER PCB-SD0000031645 664 1 A. From eating food? 2 Q. From exposure to PCBs - 3 MR. BAUER: His confusion is -- 4 Q. (By Mr. Kim) -- by virtue of - 5 MR. BAUER: -- worker exposure 6 versus environmental exposure. 7 Q. (By Mr. Kim) -- by virtue of its 8 environmental persistence. 9 A. I don't know what the No. 2 letters 10 contained, but I would believe it would be 11 directed towards the environmental control of 12 the problem. And certainly the customers had 13 been told by bulletins, by correspondence 14 that we sent out, by sending out the Treon 15 reprints, by sending out the American 16 Industrial Hygiene reprints that they knew 17 about the health problems. 18 Q. No. 5 and No. 6 were to introduce new 19 packaging and replacement products, correct? 20 A. Yes, sir. 21 Q. And those were done for 1254 and 1260? 22 A. They were done what? 23 Q. And those were done? 24 A. Yes. 25 Q. No. 7 was to continue and expand Martin & Associates (409) 762-2222 WATER PCB-SD0000031646 665 1 biodegradation test program with the Aroclor 2 series? 3 A. Yes, sir. 4 Q. What biodegradation tests had been - 5 programs had started prior to November of 6 '69? 7 MR. BAUER: Obj ection. Lacks 8 foundation. 9 A. I can't answer that, but it's my 10 impression -- I cannot answer that 11 specifically, but it's -- my impression was 12 that they had carried out biodegradation 13 studies in England at our Ruabon Laboratory 14 and also at our either our St. Louis or 15 Anniston research department. They had 16 started some before this meeting. I don't 17 know the earliest date they started it. 18 Q. (By Mr. Kim) In the sixties? But that would 19 not have come from your department? 20 A. No, sir. It would not have. 2 1 Q. It would not have been a test that was 22 initiated from you? 23 A. No, sir. It was not. 24 Q. Didyou ever see the results of the 25 biodegradation tests? Martin & Associates (409) 762-2222 WATER PCB-SD0000031647 666 1 A. 2 Q. 3 4 5 6 7 A. 8 9 10 Q. 11 12 13 14 15 16 A. 17 18 19 20 21 22 23 24 I can't remember whether I did or not. Do you feel that the results of the biodegradation tests would have been important to you in formulating the type of warnings or communications to your customers? MR. BAUER: Obj ect to the form. Well, we -- you mean as far as spilling it, disposing it in the ground or spilling it in the lake or what? (By Mr. Kim) Do you just think that any information gained by the biodegradation tests may have been important to you from a standpoint of the type of communication that you would pass on to your customers? MR. BAUER: Object to the form. Well, I don't think it was necessary for us to have this to tell the people to use extreme care in disposal of the material, whether it biodegraded or not according to our tests. We certainly had other people saying that the stuff was biodegradable, and we had taken that into consideration in our warnings to the customer from the environmental aspect. (By Mr. Kim) So the answer to my question is Martin & Associates (409) 762-2222 WATER PCB-SD0000031648 667 1 it would have had no impact in the type of 2 communications that you would have given to 3 your customers - 4 MR. BAUER: Obj ect to the form. 5 Q. (By Mr. Kim) -- because of the type of 6 warnings that you - 7 A. That might have been another reason, but we 8 had ample reason to tell the person not to 9 dispose of the stuff unwisely. 10 Q. No. 8 is to continue toxicological test 11 program, and that was your department? 12 A. Yes, it was. 13 Q. And that continued? 14 A. I beg your pardon? 15 Q. And that continued? 16 A. Yes, it did. 17 Q. No. 9 was to accelerate present analytical 18 test program? 19 A. Yes, sir. 20 Q. Was that underneath your division - 2 1 A. No. 22 Q. -- or department? 2 3 A. It was not. That was the research or 24 analytical group. 25 Q. What were they presently in 1969 trying to Martin & Associates (409) 762-2222 WATER PCB-SD0000031649 668 1 analyze or test? 2 A. Where the material was, how much the material 3 was. And I do not know whether they were 4 looking for -- I think that's the answer. 5 Q. Were they doing analytical tests with respect 6 to synergy? 7 MR. BAUER: Obj ect to the form. 8 A. Well, I don't know how you could mix up an 9 analytical test with synergy. Synergy is the 10 action of two products, and an analytical 11 test is picking up this one product and a 12 whole milieu of earth samples or water 13 samples. I don't know that necessarily was 14 synergy. 15 Q. (By Mr. Kim) Would the analytical tests have 16 included decomposition analysis? 17 A. If you're looking for biodegradation, 18 obviously you are looking for what it 19 biodegrades to; so it would. 2 0 Q. How about by-products dependent upon various 2 1 environments? 2 2 MR. BAUER: Obj ect to the form. 2 3 The question is whether they were being 24 studied as of 1969? 25 Q. (By Mr. Kim) Sure. It says accelerate Martin & Associates (409) 762-2222 WATER PCB-SD0000031650 669 1 2 3A 4 5 6 7Q 8 9A 10 Q 11 12 13 14 15 16 17 A 18 19 20 21 22 23 24 25 present analytical test program. I just want to know what they were studying. I don't know. You'll have to ask one of the analytical people about that. That did not -- the medical department did not have any input into that. Did you ever see any results from the analytical department? I don't know if I did or not. And again, my question to you is: Do you have a thought as to whether seeing the results from the analytical test program would have had an impact on you as the person responsible for communicating with Monsanto's customers about PCB effects? MR. BAUER: Object to the form. You have a condition, a clause in there. The medical department was not the organization that communicated with Monsanto's customers about anything except health effects. It did not communicate -- on humans. It did not warn about what the environmental aspects were except as what information we sent on to customers before the advent of Papageorge in 1970. Wheeler may have written some Martin & Associates (409) 762-2222 WATER PCB-SD0000031651 670 1 customers -- and I believe he did -- about 2 what he found in Sweden and Holland relative 3 to the environmental aspects. 4 Q. (By Mr. Kim) And that was under your 5 direction? 6 A. That would have been under my direction. 7 Right. 8 Q. In fact, Mr. Papageorge didn't assume 9 controls of environmental concerns until 10 after this - 11 A. January of 1970. 12 Q. -- CDC meeting, correct? 13 A. That's correct. 14 Q. And what I want to know is: Prior to that, 15 in November of 1969, would any results from 16 the analytical test program have impacted the 17 type of communications you gave to the 18 Monsanto customers with respect to PCB 19 products? 20 MR. BAUER: Obj ection. Calls f or 21 speculation. We don't even know if there 22 were any yet. 2 3 A. I don't know. I mean I cannot recall that 24 having any particular impact, but I do not 25 know. I'm not certain about how -- what the Martin & Associates ( 409) 762-2222 WATER PCB-SD0000031652 671 1 2 3 Q. 4 5 6 A. 7 8 9 10 11 Q. 12 A. 13 14 15 16 Q. 17 18 19 A. 20 21 22 23 Q. 24 25 A truth of an answer to that question would be. (By Mr. Kim) Did you -- were you aware in November of 1969 that analytical testing was ongoing? Yes. And they were quite confused, as I recall. They were confused about their analytical test methods, and I did not believe that they were as positive about their findings of PCB as other workers were. What were they confused about? Are we finding it? Are we getting this? Are we getting some other compound similar to it? Are we getting DDT? That's the impression I have. Is it fair to say that in November of 1969, you indeed had some interaction with members of the analytical test program? I had some interaction? Well, yes. But I - I probably knew they were working on it, but I don't think they sent me reports on their information. We're just about through, Dr. Kelly, and I've appreciated your patience. Well, you've been very kind. Martin & Associates (409) 762-2222 WATER PCB-SD0000031653 672 1 Q. Thank you. The -- in the draft, if you will 2 turn to Page 22 -- let me get that for you. 3 It will be easier -- it talks about -- well, 4 the heading is "What Could We Expect From 5 This Program," correct? 6 A . Yes, sir. 7 Q. And I suspect -- and correct me if I'm 8 wrong -- that the next sentence -- "Through 9 this action program, Monsanto would expect 10 to:" -- is referring to Plan No. 4. 11 A. Yes, sir. 12 Q. The one ultimately adopted by the CDC? 13 A. That's correct. 14 Q. And the first consideration as we list here 15 under the draft is that it would retain or 16 convert a good portion of our business and 17 profits, correct? 18 A. That's what it says. 19 Q. It's a profit analysis? 2 0 A. I beg your pardon? 2 1 Q. A profit analysis? 22 A. Yes. 23 Q. The second one was to gain further valuable 24 knowledge and time to learn more facts, 25 protect our position, correct? Martin & Associates (409) 762-2222 WATER PCB-SD0000031654 673 1 A. 2 Q. 3 4 A. 5 Q. 6 A. 7 Q. 8 A. 9 Q. 10 11 12 A. 13 14 15 16 Q. 17 A. 18 19 20 2 1 Q. 22 A. 23 24 25 Yes. What position were you interested in protecting? Are you talking about me or Monsanto? Monsanto, if you know. Because I had nothing to do with this. I understand. But you were there? Yes, I was there. Do you have a recollection of what position was recommending -- they were recommending to protect? Yes. They wanted to protect the sales and use of some of the products that were -- they considered indispensable to the electrical industry. Wanted to protect its market share? Well, it wasn't considered -- they were the only people who were making a relatively noninflammable dielectric. They didn't have to worry about the market share. They wanted to protect its market, then? Well, they also wanted to contribute to a very necessary use. It was certainly very important to the whole United States industry to have a noninflammable dielectric. Martin & Associates (409) 762-2222 WATER PCB-SD0000031655 674 1 Q. The third expectation was to clean up the 2 major - 3 MR. KIM: And I'll obj ect to 4 nonresponsiveness. 5 Q. (By Mr. Kim) The third expectation was to 6 clean up the major contributing pollution 7 factors, correct? 8 A. Yes, sir. 9 Q. And the fourth one was to minimize customer 10 complaints and hardships? 11 A. Yes, sir. 12 Q. If you will turn with me to the next page - 13 A. Yes, sir. 14 Q. -- the program then went on to say that 15 adopting Alternative 4 would or the program 16 would, correct? 17 A. Yes, sir. 18 Q. Is that your understanding of what this page 19 would indicate? 2 0 A. Yes, sir. 21 Q. That the adoption of Alternative 4 would lead 2 2 to the following results? 23 A. Yes, sir. 24 Q . And again, the first item listed would be 25 cost some money? Martin & Associates (409) 762-2222 WATER PCB-SD0000031656 675 1 A. 2 Q. 3 A. 4 Q. 5 A. 6 Q. 7 8 9 A. 10 Q . 11 12 13 A. 14 Q. 15 16 17 A. 18 Q. 19 20 21 A. 22 23 24 25 Yes, sir. It was a financial analysis? Yes, sir. The -- what is estimated SARE? Sales and research expenditures or expenses. Okay. And the implementation of the program would cost somewhere between a million one and a million two? Correct. And according to the prior pages, it would help retain a division that enjoyed $10 million in gross profits annually? That I can't comment on. Sure. The second consideration was that it would expose Monsanto to continued adverse publicity and possible lawsuits? Yes . Were you a party to the discussion that indicated or discussed the type of lawsuits that might implicate Monsanto? Yes. I think the type of lawsuits -- I remember only anecdotally -- was here we're selling a person something that is important to his business and we stop selling it to him and he's out of business. Martin & Associates (409) 762-2222 WATER PCB-SD0000031657 676 1 Q. 2 3 A. 4 5 6 7 Q. 8 9 10 11 A. 12 Q. 13 14 15 A 16 17 18 Q 19 20 A 21 Q 22 23 24 25 So it would be those civil suits involving business interruption to your customer? That's my impression. But again, I was not privy to what might have occurred or what they were talking about. But that's just from the recollection I have. Was there any discussion of suits involving cleanups for the environmental pollution? MR. BAUER: Objection. Lacks foundation. I don't know. (By Mr. Kim) Any discussion of potential suits involving health hazards or personal injury suits? No, sir, because that they would have talked to me about, and there was no talk about that. The third consideration was customer discontent? Yes, sir. Did you feel in November of 1969 that the presentation to the corporate development committee and its acceptance of the recommended plan of action was a responsible approach from a toxicological standpoint? Martin & Associates (409) 762-2222 WATER PCB-SD0000031658 677 1 A. Yes, sir. 2 Q. And as of 1974, it is your position -- well, 3 strike that. 4 Today, with the benefit of 2 0 some 5 odd years more of knowledge since your 6 retirement, do you have an opinion as to 7 whether PCBs pose any human health concerns? 8 MR. BAUER: Obj ection. Calls for 9 expert testimony. 10 A. Human health concerns now or then or -- 11 Q. (By Mr. Kim) Today. 12 A. Whether PCBs have any human -- there are any 13 human health concerns in 1974 -- I mean 14 1994? 15 Q. I'm asking you, Dr. Kelly, today as we sit 16 here -- 17 A. Today. 18 Q. -- in this deposition, 1994 -- I'd give you 19 the date but I don't know it -- April of 2 0 1994, do you have an opinion as to whether 21 PCBs pose any human health concerns? 22 A. Yes, I do have an opinion. 23 Q. And what is it? 24 A. They do not -- 25 MR. BAUER: Objection. It calls Martin & Associates (409) 762-2222 WATER PCB-SD0000031659 678 1 2 A. 3 4 5 A. 6 7 Q. 8 9 10 11 Q. 12 13 14 A. 15 Q. 16 17 18 A. 19 Q. 20 21 22 A. 23 24 25 for expert testimony. They do -- MR. BAUER: And that doesn't specify the dose; but go ahead, Dr. Kelly. They do not have any human health concern. No, sir. (By Mr. Kim) I thank you for your time. EXAMINATION BY MR. BAUER: Dr. Kelly, I have a few more questions for you. As you know, my name is Scott Bauer representing Monsanto Company. Yes, sir. From the 1930s forward, Dr. Kelly, did you believe that overexposure to PCBs could cause liver damage? Yes, I did. You've used the term target organ several times in your testimony. What do you mean by the term target organ? That is the organ system of the body, the individual part of the body that is affected most seriously by an overexposure to any particular chemical. Martin & Associates (409) 762-2222 WATER PCB-SD0000031660 679 1 Q. Was it widely known in the scientific 2 community from the 1930s forward that the 3 1iver was the target organ for PCBs? 4 A. Yes, sir. It was. 5 MR. KIM: Object. Speculation. 6 Q. (By Mr. Bauer) What did Monsanto do to 7 ensure that the workers who were 8 manufacturing PCB at Monsanto's plants did 9 not get liver damage from exposure to PCBs? 10 A. We did three different things. We cleaned up 11 the housekeeping. We kept them from getting 12 any inhalation of the material where there 13 was filling of the drums and elevated 14 temperatures. We used spot ventilation 15 there. We saw to it that they had -- did not 16 have repeated or continuous skin absorption. 17 We also medically monitored their health. 18 And I think that's what we did. 19 Q. Was it your judgment that it was not 20 necessary to tell Monsanto's workers that the 2 1 liver was the target organ for PCBs? 22 A. Yes, sir. I saw no reason to tell them that. 23 Q. Why is that? 24 A. Because they weren't getting any problems 25 with the liver. Martin & Associates (409) 762-2222 WATER PCB-SD0000031661 680 1 Q. Was it your judgment that it was not 2 necessary to keep workers with a prior 3 history of liver injury out of the PCB unit? 4 A. Yes. We know that the liver regenerates; and 5 we know that whether or not the man had any 6 previous liver problems, nothing showed up on 7 his physical examination that would indict 8 his work environment. 9 Q. Were you hiding your opinion that the liver 10 was the target organ from Monsanto's 11 customers? 12 A. Oh, no, sir. On the contrary. Almost any 13 information we sent out in the reprints of 14 Treon that talked about liver being the 15 target organ, under the American Industrial 16 Hygiene Association reprints that were 17 formulated by the Government Industrial 18 Hygienists Group that spent a lot of time 19 talking about liver problems. 20 Q. Why was it that you would include such 2 1 information when you were sending out 22 reprints but you would not put that 23 information on a warning label on a drum? 24 A. Well, one reason is that we had a two- or 25 four-page brochure we sent out with the Martin & Associates (409) 762-2222 WATER PCB-SD0000031662 681 1 liver -- talking about the liver and the 2 label has got a finite geographical space. 3 It's got a finite area. 4 And, number two, we didn't need to 5 put it on the label because they would not 6 get a -- any liver trouble if they followed 7 the -- our labels, followed the warning 8 system -- warning statements on our labels. 9 And, third, we sort of tailored our 10 response to the audience. We didn't think 11 that we needed to go into a very elaborate 12 discussion of the whole toxicological matter 13 to all groups of people. 14 Q. What was the audience that received the Treon 15 reprint and the hygienic guide series 16 reprint? 17 A. Plant managers, doctors, medical directors. 18 Q. Dr. Kelly, did you believe prior to the 19 report by Jensen and Widmark that PCBs were 2 0 in the environment in Sweden that PCBs would 21 be eaten by fish or birds? 22 A. No, sir. I did not. 23 Q. Did you believe prior to the report by Jensen 24 and Widmark that PCBs would get into the food 25 chain in any manner? Martin & Associates (409) 762-2222 WATER PCB-SD0000031663 682 1A 2Q 3 4 5A 6 7 8Q 9 10 11 A 12 Q 13 14 15 A 16 17 18 19 20 21 Q 22 23 24 25 No, sir. I did not. Was it well-known in the scientific community in the 1930s and the 1940s that PCBs were very stable compounds? Yes, it was. MR. KIM: Obj ect to speculation. Vague as to well-known. (By Mr. Bauer) Was one of the reasons that PCBs were useful in industry the very fact that they were stable? Yes, sir. Do you make a distinction in your mind about whether something metabolizes in the body versus whether it accumulates in the body? Well, it all depends on what you mean by metabolize. If it's metabolized, are the end products excreted. And accumulation means does some of the material persist in the body. So there is that difference. Yes, sir. Why is it -- strike that. Did you have a belief in the 1930s and 1940s and the 1950s that PCBs were persisting inside the bodies of animals or humans? Martin & Associates (409) 762-2222 WATER PCB-SD0000031664 683 1 A. You went up to the fifties? No. 2 Q. Was there any article or paper published 3 prior to 1966 suggesting that the stability 4 of PCBs meant that they were spreading 5 through the environment and would eventually 6 get into fish and other things eaten by 7 people? 8 A. I have no -- I do not know if there was any. 9 I have no recollection of seeing any such 10 article. 11 Q. Did Monsanto, to your knowledge, conceal from 12 customers concerns that it had about PCBs 13 accumulating in the environment? 14 A. No. Do you mean when they found out about 15 it? 16 Q. At any time, but - 17 A. No. No, they did not. 18 Q. Did you personally have concerns, prior to 19 the reports by Jensen and Widmark, about PCBs 20 accumulating in the environment? 21 A. No, sir. I did not. 22 Q. About PCBs accumulating in any specific 23 species? 24 A. No, sir. 25 Q. Did you have any understanding or belief Martin & Associates (409) 762-2222 WATER PCB-SD0000031665 684 1 2 A. 3 Q. 4 5 A. 6 7 8 9 10 11 12 13 14 15 16 17 Q. 18 A. 19 20 21 22 23 24 25 prior to 1966 that PCBs biomagnified? No, sir. I did not. Would you tell us what you understand biomagnification to mean? Yes. Well, let's start with PCBs if you want to. Here it is in the water, lying down there. The shrimp or the algae or something are down -- the algae are there; and for some reason the algae are able to metabolize, break down the PCBs that they take into their -- enable them to take it into their body. And the shrimp come -- so they have - these are all rough -- really rough figures. I'm just using it to explain biomagnification. They're not taken as absolute. Sure. So they're there at one part per billion. A shrimp comes along and eats all these algae. Then when he ends up with his meals of algae after a lifetime, he has ten parts per billion. Along comes a small minnow and eats -- or a herring or something and eats the shrimp. He eats this for a good part of his life. I mean lots of shrimp. And he Martin & Associates (409) 762-2222 WATER PCB-SD0000031666 685 1 ends up with 100 parts per million or ten 2 parts per million, going down from billion to 3 million. Then along comes an eagle or a 4 Peregrine falcon or any raptorial bird that 5 is a predator of fish and eats the fish, and 6 he ends up with a larger amount of the 7 material in his body, maybe a factor of 10. 8 Q. All right. 9 A. So it goes from one part per billion -- again 10 these are -- I'm just describing it. I'm not 11 saying absolute figures -- up to parts per 12 million, ten parts per million or even 13 higher. 14 Q. When was the question of whether PCBs were 15 biomagnifying in the environment first a 16 concern? 17 A. At the time of Widmark and Jensen in 19 69 18 or -- no -- '68 -- late sixties. 19 Q. The J ensen and Widmark paper, whenever it was 20 published? 2 1 A. Yes. 22 MR. BAUER: That's all I have 23 MR. KIM: I've got a couple 24 questions. 25 Martin & Associates (409) 762-2222 WATER PCB-SD0000031667 FURTHER EXAMINATION BY MR. KIM: Dr. Kelly, you are aware that in 1977, Monsanto ceased its PCB production? Yes, sir. Do you agree or disagree with that from a standpoint of your position as the former medical director of Monsanto? No, sir. I do not disagree with it. Do you agree or disagree with Congress' legislation that imposed some restrictions to the use of PCBs in 1976? I thought they banned the material a matter of months after we -- or a year after we stopped manufacturing it. I'm not familiar with any Congressional action that may have -- in 1966. I just don't know. Excuse me. 1976. '76. I just don't know. It is your belief that -- strike that. Thank you. MR. BAUER: We're all finished. THE WITNESS: How about the gentleman here? MR. ROTH: No, thank you. Martin & Associates (409) 762-2222 WATER PCB-SD0000031668 688 1 THE STATE OF TEXAS 2 3 I, Jana L. Martin, Certified Court 4 Reporter in and for the State of Texas, 5 hereby certify that this deposition 6 transcript is a true record of the testimony 7 given by the witness named herein, after said 8 witness was duly sworn or affirmed by me. 9 I further certify that I am neither 10 attorney nor counsel for, related to, nor 11 employed by any of the parties to the action 12 in which this testimony was taken. 13 Further certification requirements, 14 if any, pursuant to the Rules will be 15 certified to in the Supplemental Certificate 16 after they have occurred. 17 Subscribed and sworn to on this, 18 the day of 1994 19 20 21 22 Jana L. Martin, CCR 23 Certificate No. 1007 Expires 12/31/94 24 25 My Notary Commission expires 11/17/96. Martin & Associates (409) 762-2222 WATER PCB-SD0000031669 PAGE OF___J___ _____ I1*0} f NAME OF WITNESS ' > ________ "" DEPOSITION CORRECTION SHEET In re: Upon reading the deposition and before subscribing thereto, the deponent indicated the following changes should be made: Page (&/2- Line Should read: Reason for change: " Page Page Page Page Line Should read: Reason for change: Line Should read: Reason for change: Line Should read: Reason for change: Line Should read: Reason for change: , SIGNATURE OF WITNESS WATER PCB-SD0000031670 687 1 THE STATE OF 2 COUNTY OF1 3 4 I, ROBERT EMMET KELLY, M. D . , hereby 5 certify that I have read the foregoing 6 transcript of my testimony given in the 7 foregoing numbered and styled case and that 8 same is true and correct to the best of my 9 knowledge and belief. 10 I further certify that any and all 11 corrections have been made on a separate page 12 and initialed by me. 13 This the day of 14 ~Cs __________________, 1994 15 16 f(jy /fy f) 17 ROBERT EMMET KELLY, M.D. 18 19 SUBSCRIBED AND SWORN TO BEFORE ME, /day of 2 0 this the 1994 . u 21 22 J. YuJJmoA. 23 Notary Public in and for the State of /77 24 josMus.mea My Commission Expires HOTARY PUBLIC STATE OF MISSOURI 25 Job No. 94-117 ----------- ST.IOUlSCOUNT?-----------MY COMMISSION EXP. JAN. 15,1093 Martin & Associates (409) 762-2222 WATER PCB-SD0000031671 LIST OF CHANGES OR CORRECTIONS To the Deposition of If there are any .changes or corrections, please list them below giving the page number, line number, and reason for the change. The reasons for making changes are: (1) (2) (3) To clarify the record: To conform to the facts: To correct transcription errors: Page No. U Changed _______ Page No.__2_i Changed_______ l/" Page No._ ^^ Changed _ Page No._ % Line No. L t?> Line No. Line No. Line No. it Reason for Change --------to io/y,> _ Reason for Change To 4't-tyt __ Reason for Change Pq 0 __ Reason for Change Changed _ Page No,_ Changed _ Page No._ Changed _ Page No;. Changed . Page No. Changed Page No. ?Cf / Line No. Lf O A-n Line No. Xi f 2- 3 To (JL-N-C-c^ Reason for .Change To___________________________ ___ Reason for Change )04 <JL Line No, / D *f Line No. c To _______ c'' ' Reason for Change To L. '-L-- v yuJls *(_/ ___ Reason for Change ({<LC-C <Pq 1"^<>-C_ t to ^ Line No. JX Reason for Change Changed a-*- WATER_PCB-SD0000031672 LIST OF CHANGES OR CORRECTIONS To the Deposition, of _______________________________________________________________________ If there are any .changes or corrections, please list them below giving the page number, line number, and reason for the change. The reasons for making changes are: (1) (2) (3) To clarify the record: To conform to the facts: To correct transcription errors: Page No. Changed W Line No. . <7 Reason for Change 77?/>a^axZ.uL TQ / Page No. Changed Page No. Changed ( ^J Line No. 1 ^ Line No. Y'tdjLcJh-X' Reason for ^Change -----------------r------- i <pQ ,/y^JL-u Reason for Change Yq CuJLc Page No. 3- 1 Line No.^ Reason for Change Changed T o ^ ^1 (i Page No. ^ Line No. <^3 Reason for .Change Changed 'T To l os-A^ui-o-r' Page No. Changed ' Page No; Changed 1 0Hi 1 I OJ 1 ^ Line No. Q Reason for Change 't " .6 To f/^ Line No. fTf x^ Reason for Chance Page No. 3 ^ Line No. Reason for Chance * ^ Changed Page No. ^ Line No. %> Reason for Chance >, , n Changed Witness WATER_PCB-SD0000031673 LIST OF CHANGES OR CORRECTIONS To the Deposition, of ___________<^r> ^ If there are any .changes or corrections, please list them below giving the page number, line number, and reason for the change. The reasons for making changes are: (1) (2) (3) To clarify the record: To conform to the facts: To correct transcription errors: Page No. 3L3 Line No. ^ Changed Page No. 3^3 Line No. Changed Page No. Changed 0 'i -2 Line No. 11 /h Page No. Line No. Changed Page No. Line No. Changed Page No. Line No. Changed Page No.; Line No. Changed Page No. Line No. Changed Page No. Line No. Changed Reason for Change Reason for Change /w_. To syuc3 Reason for Change ba-tfr &t /6 . ' Reason for Change To Reason for .Change To Reason for Chance To Reason for Change To Reason for Change To Reason for Chance To . _ . ___ y Witness rj-j WATER_PCB-SD0000031674 PAGE OF__J___ _________ f NAME OF WITNESS'" " " 'V deposition correction sheet In res Upon reading the deposition and before subscribing thereto, the deponent indicated the following changes should be made* Page (o(lL- Line ^ Should read: Reason for changes <<****' r^i' V Page Line Should reads Reason for change: Page Line Should reads Rcaaon for changes Page Line Should reads Reason for changes Page Line Should read: Reason for change: SIGNATURE OF WITNESS / WATER PCB-SD0000031675 687 1 2 COUNTY OF 3 4 I, ROBERT EMMET KELLY, M.D., hereby 5 certify that I have read the foregoing 6 transcript of my testimony given in the 7 foregoing numbered and styled case and that 8 same is true and correct to the best of my 9 knowledge and belief. 10 I further certify that any and all 11 corrections have been made on a separate page 12 and initialed by me. 13 This the / day of 14 / 1994 . 15 16 17 ROBERT EMMET KELLY, M.D. 18 19 SUBSCRIBED AND SWORN TO BEFORE ME, 20 this the day of ~~/TVl, 1994 u 21 22 J. yujjjjo(Uk-; 2 3 Notary Public in and for the State of 77? uo~<i ________- 24 JOSEPHINE S.NIBLOCK My Commission Expires NOTARY PUBLIC STATE OF MISSOURI 2 5 Job No. 94-117 ST. LOUIS COUNT? I1Y CCKMISSION EXP. JAN. I5.1C03 Martin & Associates (409) 762-2222 WATER PCB-SD0000031676