Document NGKRRxLr03DjDev62v3r15zqE

]A 2Q Yes, sir. -140- Now when you married James he had the one child, 3 James, that is here now? 4 A Yes, sir. 5 Q When you married Mr. Greenhill in 1975, James lived 6 with his mother, your acquaintance, Sandra Watkins, didn't i 7 he? 8 A Yes, sir. ! 9 Q Now Mr. Louevering, your second husband, did Jim 10 work for him? H A No, sir. j J i 12 0 When Jim worked for Sky Freight when he worked for Mr. 13 Louevering was that someone of your second husband's family? 14 A No, he worked for me. He didn't work for Mr. Louever 15 ing. 16 Q So, when you met him he was working for you at Sky 17 Freight? 18 A No, sir. 19 Q You and James made a decision when you first got 20 married not to have any children, is that correct? 21 A We made a decision not to have children, but it wasn't j 22 when we first got married, no. 23 Q But James -- you made a choice before James got sick 24 to have a vasectomy and not have anymore children? 25 A Yes, sir. | 133^ C>~i357 I 1 Q , Did Mr. Greenhill smoke, to your recollection? 2 A Not while he was with me, no. 3 Q But did he smoke at one time? 4 A Yes, sir. ; iI j| i | 5 Q And did he occasionally drink beer? | 6 A Occasionally. 7 Q Now the wood stove, that was the only heating source 8 that you had in Oregon? 9 A Yes, sir. 10 Q And did you burn the wood -- and he burned wood for 1) that heating source, correct? | i | 12 A 13 Q Yes. And was that the same in Arkansas as well? | i 14 A Yes, sir. 15 Q When you had these cookouts did you grill the meat, 16 grilled meat and barbecuesand things? 17 A Yes, we cooked out. ! i i 18 Q And did you have a family dentist when you were 19 married? 20 A Yes, we did. 21 Q Do you recall who that dentist was? 22 A Dr. Serviews (oho). 23 0 Now, Mrs. Greenhill, when Mr. Greenhill went to Dr. 24 Teeter in 1978 he went because of severe back pain, didn't 25 he? D- I ii -112- ; 1 A He went to Dr. Teeter as a result of the accident ; I -) from the Forest Service with his hack, yes. j 3 Q But he had severe back pain prior to going to Dr. ij 4 Teeter in 1978? ii 5 A No. No, he on 1y had the back nain after he had the 6 acci dent. 7 Q Is it your recollection, ma'am, that he never had any 8 back pain until he had the accident in 1978? 9 A That's correct. 10 Q Are you sure he didn't have any severe back pains II prior to going to Dr. Teeter, ma'am? 12 A Notthat I remember. 13 Q Mrs. Greenhill, do you remember that I came up to | 14 Arkansas in your home -- in your home town -- and took IS your deposition? Do you recall that? 16 A Yes, I do. 17 0 Okay. And do you recall me asking you these <'uostions 18 and you giving these answers? 19 MR. BALDWIN, JR.: What is your page number, 20 Counsel? i; 1I j 21 MR. ORTEGO: Sure, I am sorry. Page 52, Line 22 21 to 25: 23 (Mr. Ortego continuing:) ji 24 Q "How long did he complain about his back pains before 1 25 he went to see Dr. Teeter? ' 1336 V -13 5 7 -143I "I don't remember how long. It seemed like quite a 2 while." "But it was bad before and it was getting worse?" 'O h , 3 yes, definitely." 4 Now, his back pain was pretty bad be Tore he even went 5 to Dr. Teeter in 1978, wasn't it? 6 A From the accident, yes, sir. 7 Q But before he even went in 1978he had severe back 8 pain, as you stated in your deposition, didn't he? 9 A What I meant in that deposition was from the accident, 10 sir. 11 Q But when I asked -- 12 A That was what we were talkingabout, at the time. 13 Q When I asked you the question, ma'am -- let's see if 14 I'll ask the question again, maybe we will see again. IS It says -- 16 A Obviously he had back pain before he went to Dr. 17 Teeter, because that is why the Forest Service sent him 18 to Dr. Teeter because of his back pain. But he didn't have 19 back pain relating to anything else but the accident. 20 0 Isn't it, ma'am, isn't it fair to say that the Forest 21 Service didn't send him to Dr. Teeter? He went on his 22 own. You found Dr. Teeter in a phone book and that's why 23 you went, because he had severe back pain way before the 24 Forest Service accident? 2S A No, sir. 1331 P - l3(o t | 1Q -144- : Let me ask you -- I remember asking vou this question: I l 2 "What doctor did he go see?" This is -age 52. "The first 3 doctor, yes, was Dr. Teeter," was your answer. i ! ! 4 "How did he go to Dr. Teeter? How did he find him?" 5 "In the phone book." 6 "And how long did he complain about back pains before 7 he went to see Dr. Teeter?" 8 "I don't remember how long. It seemed like quite a 9 whi 1e ." 10 "But it was bad before and it was getting worse?" 11 "Oh yeah, definitely." 12 I'll move on. When is the first time that your husband 13 found out that he had Hodgkin's disease? 14 A After the biopsy. 15 Q And that was when Dr. Cole said that he had Hodgkin's j Iii 16 disease? j 17 A I don't remember which doctor it was, but it was in i 18 St. Mary's. 19 Q Now Mr. Greenhill you say was very healthy before he 20 started working in the Forest Service. He didn't go for 21 regular physicals, did he? 22 A Not that I know of. 23 Q As a matter of fact, he rarely saw doctors or rarely 24 had tests before the back pain in 1978, isn't that correct? j 25 A Ho didn't have any need to see doctors. 1338 V > - \ 3 &l 1Q -145So up until the time where he started getting severe 2 back pains in 1978 he really didn't see any doctors, did 3 he? 4 A I don't know. 5 Q Do you remember him seeing any doctors as you sit 6 here now? 7 A Not that I remember. 8 Q Now, ma'am, you said that he joined the Forest Service 9 even though it was less money because he loved the outdoors, 10 was that your testimony? 11 A Yes, sir. 12 Q Isn't it fair to say that he joined the Forest Service 13 because it was for more money than he was making, and that 14 at his other job he really wasn't getting paid? 15 A Not that I know of. 16 Q Ma'am, do you remember being asked these questions on 17 Page 32, ma'am? 18 "When you got married, why did he leave the other 19 job when you got married?'' 20 "More money." 21 "Was that the other job, the United States Forest 22 Service?" 23 "Yes." 24 Wasn't it a fact, ma'am, that he was making more money at 25 the Forest Service than he was at his other job and that's 1339 1 the reason why ho took the job? - 146- A No, sir. 3 Q Now you say you recall today as you sit here, ma'am, 4 that ho made1 how much an hour? i ! ! i j 5 A Six dollars and some cents perhour. j 6 Q When did you remember that he made six dollars an i 7 hour? 8 A I don't know. 9 Q When I took your deposition and I asked you how much 10 he made an hour, you didn't remember. And that was this 11 year, as a matter of fact, isn't that correct? I I 12 A That's correct. 13 0 But now you remember how much he made an hour? 14 A Yes, sir. 15 Q But at the time of the deposition when I asked you you 16 said you knew nothing about his wages, isn't that correct? 17 A At the time of the deposition 1 didn't know what I was 1 18 going to be asked, so I didn't check into dates or j 19 monitarial things at all. 1 ! 20 Q Well, did you check into how much money he made in 21 1976 and 1977? 22 A No, sir. ! 23 Q So is it fair to say that you are just estimating 24 how much he? made an hour? 25 A No, sir. I II j i J 1340 P-1363 | 1Q - 147VVel], how many hours a week did he work at the Forest 2 Service in 1976? 3 A Total? 4 Q Well, a week, and how many weeks did he work there? 5 A He worked nine months out of the year, five days a 6 week eight hours a day. 7 0 So he worked forty hours a week? 8 A Yes, sir. 9 Q For about thirty-six weeks? 10 A Approximately. 11 Q And you say at six dollars an hour,is that fair to 12 say? t l 1j ; i 13 A That's fair to say. 14 Q But Isn't it also fair to say that according to his 15 W-2 in 1976 he only made $3,000 with the United States 16 Forest Service, ma'am? j I j it j 17 A I don't know. i 18 0 Well, if I showed you his 1976 Wage & Tax Statement 19 from 1976, would that change your mind? 20 MR. ORTEGO: If I may approach, Your Honor? 21 THE COURT: Yes. 22 Q It says from the U.S. Department of Agriculture Office ij 23 of Management and Finance, National Finance Center. What 24 does it say your husband made in 1976, ma'am? 25 A Three thousand -- o-i3<=y 1 Q O h , I'm sorry. -IAS- i \ j 2 A Three thousand one hundred, looks like, sixty-three. 3 I am not sure about that. 4 Q Thank you, ma'am. So, ma'am, would it be fair to i I j |i 5 say that you might have been mistaken this morning when 6 you told us how many hours a week and how much he made i 7 per week, and how many months he worked in 1976 at the 8 Forest Service? 9 A I don't believe so. 10 Q Now is it also fair, ma'am, that for 1977 the whole II year your husband made less than six thousand dollars a 12 year that year? 13 A I don't believe so. I don't know for sure. 14 Q Ma'am, when he worked at the Forest Service he was a 15 seasonal worker, that he only worked part of the year, is , 16 that correct? 17 A Yes, s ir. I 18 Q And lie.* worked part of the year of 1976 in Oregon for 19 the Forest Service and part of the year of 1977 in Oregon 20 for the Forest Service, isn't that correct? 21 A Yes, he did. 22 Q And in the off-season -- l 23 MR. BALDWIN, SR.: I believe the evidence is also 24 he worked part of the year of '78. 134225 MR. ORTEGO: I will get to that, Mr. Baldwin. I (3>b I won't leave that out. 2 (Mr. Ortego cont.i nuing: ) -149- ! i I I j 3 A Yes, sir. 4 Q And in the off-season when he didn't work for the 5 Forest Service he didn't have any other job, but he was 6 self-employed cutting wood? 7 A That's correct. 8 Q And you assisted him in cuttingwood? 9 A Yes, I did. 10 Q Now in '78 he worked for the Forest Service in the 11 Ozark National Forest, did he not, ma'am? 12 A After the Oregon Forest Service, yes, sir. 13 Q So he left the Oregon Forest in '77 and his work was 14 in 1978 in the Ozark National Forest? i j j 15 A No, sir. He left the Forest Service in Oregon in 1978. 16 Q How many months did he work for the Forest Service II j 17 in Oregon in- 1978? 18 A I believe the season started June -- June the 2nd of 19 each year. I am not positive on that date, though. 20 Q When did the season end, ma'am? 21 A March. The end of March. 22 Q Now you talked about what he did as a hack and squirter, 23 and I hope these questions aren't offensive to you, but you 24 never saw him on the job, did you? 25 A No, sir. 134c O - 13 t o (o 1Q - 150And you don't know what chemicals he used except what 2 you might have been told by the lawyers in this case, or 3 maybe James, isn't that correct? 4 A I know what I was told, yes, sir. 5 Q And what you tell us today is what you'rp told, not 6 what you actually know from your own personal information, i 7 isn't that fair, ma'am? I 8 A That's what Jim told me. i 9 0 Now, how many months of the year, ma'am, do you think 1it 10 Jim did hack and squirt work in 1976? j i 11 A 1976? !i 12 Q Yes, ma'am. 13 A I'd say close to three months. 14 Q And how about in 1977? 15 A The same. It was three to four months each season, 16 hack and squirting. 17 Q Well, when you say it's three to four months hack and 18 squirting, you are really estimating, aren't you, because -- 19 A That -- sorry. 20 Q -- jobs changed, didn't they, from week to week, 21 depending on where people were needed at? 22 A I'm not sure I know what you mean. 23 Q Well, ma'am, do you know for a fact that he did three -- 24 are you sure as you sit here now that he did three months of 25 hack and squirt, in 1976? i 1344 p-(3t7 ; 1A - 151I couldn't say exactly to the day, but approximately 2 three to four months each season was hack and squirt time. 3 Q So are you saying that more than half of his job was 4 hack and squirt? S A No, sir, three to four months. It was nine months for 6 the job. 7 Q In the Ozark National Forest is it your testimony that 8 he did hack and squirt there too? 9 A No, sir. IO Q Did he do hack and squirt in 1978 at the Ozark 11 National Forest? 12 A 13 0 No, sir. So he only did it in Oregon, isn't that correct? 14 A That's correct. IS Q When did you move, again, to Arkansas, ma'am? 16 A March of 1978, the end. 17 Q Now, ma' am, you talked about coming home with his 18 soaking wet. 19 A Yes, sir. ; 20 Q And did he come home like that allthe time? ; 21 A When he was doing hack andsquirting, every day. 22 0 Soaking wet? 23 A Soaking wet. 24 Q Did he complain to you? 25 A Yes, he complained. 1 | 134& V- - 152- ] Q Did ho complain to you very regularly that he didn't 2 like it? 3 A No. 4 Q But he complained to you? 5 A Occasional!y. 6 Q Isn't it fair to say, ma'am, that as you sit here now 7 when I took your deposition you never recalled his pants 8 being wet, and as a matter of fact, you said he never 9 complained, he loved his job at the Forest Service? 10 A He did love his job at the Forest Service. 11 Q And he never complained, did he,really? 12 A Maybe not about the ForestService individually, no. 13 Q But he never complained anything about his job to you? 14 A Yes, sir, he did occasionally. 15 0 Remember me asking you these questions? I know it's 16 difficult at your deposition. Do you remember him telling 17 you he didn't -- 18 THE COURT: What is the page? 19 MR. ORTEGO: Oh, I am sorry, Judge. 47, Lines 20 1 th rough 11. 21 (Mr. Ortego continuing:) 22 Q "Do you remember him telling you he didn't like his 23 job at the Forest Service?" 24 A No, sir. 25 Q "Uh-huh. I am giving your answers. "No. p-134? I A Oh , I'm sorry. -153- 2Q "So he never -- did he ever comolain about it while j 3 he was in Arkansas or in Oregon?" "No." "So he was happy ! i4 working in the Forest. Service in the outdoors? He en.joyed j 5 I it?" "Yes." "No conrmlaints that you know of?" "Not that i 6 I know of." 7 Do you recall giving those questions and those answers, 8 m a 'am? 9 A Yes, I do, sir. i 10 MR. ORTEGO: I have no other questions at this 11 time, Your Honor. 12 MR. BALDWIN, SR.: A couple, Your Honor. I 13 MR. ORTEGO: Let me get out of your way, Mr. j 14 Baldwin. IS REDIRECT EXAMINATION 16 BY MR. BALDWIN, SR.: 17 Q Mrs. Greenhill, who are Mr. Greenhill's parents? i \ 18 A .James Greenhill, Sr. and Betty Hicks, H-i-c-k-s. 19 Betty Hicks. 20 Q Are they living? 21 A His father lives in Florence, Alabama, and his mother 22 lives in Flipnin, Arkansas. I j 23 MR. ORTEGO: Judge, I am going to object that this i i 24 is beyond the scope of direct or cross. It is a new area. | 25 THE COURT: I will overrule the objection. r I (Mr. Baldwin, Sr. continuing:) - 154- 2 Q Mrs. Greenhill, did he stay in touch with his parents? I 3 A Yes, I do. 4 Q Now you testified about his earnings being $6.12 an 5 hour this morning? 6 A Yes, sir. 7Q Is that a result of you having checked your records ! j ! J i 8 when you got back after your deposition? 9A 10 Q Yes, sir. And you testified in Arkansas he made a high of I 11 $8,366, and a low of $7,930 a year? 12 A Yes, sir. 13 0 Is that a result also of you checking the records? 14 A Yes, sir. 15 Q Now do you recall the question Mr. Ortego asked you 16 when he said the doctor told you it was Hodgkin's disease? 17 A Yes, sir. 18 Q Can you tell us what thedoctor told you was the 19 cause of his problem? 20 A The1 doctortold methe cause of 21 MR. ORTEGO: I am going to object, Your Honor, as . 11I 22 to hearsay, what the doctor told him. 23 MR. BALDWIN, SR.: Your Honor, he has opened the 24 door. 25 MR. ORTEGO: I can't open the door to hearsay, Mr, V-1311 I Baldwin. -155- i 1 THE COURT: I am going to overrule the objection 3 in view of the answer to the question that was asked on 4 cross-examination. Go ahead. 5 (Mr. Baldwin, Sr. continuing:) O6 * What did the doctor tell you was the cause of this 7 man's problem? i j I j ! j 8 A The doctor told me that the death of my husband was 9 caused by cancer which was in direct con -- which resulted 10 from handling the chemicals. I ! II MR. ORTEGO: Judge, I am going to object and ask j 12 that it be striken. There is nowhere in the record of that, i 13 and it's hearsay of a medical opinion that doesn't even 14 exist in the medical records. I ask that this answer be 15 striken. j | 16 THECOURT: Take t' ^e Jury out. 1 17 (Jury out at 1:39 o.m.; open court continues:) 18 THE COURT: I understand, Mr. Ortego, you say 19 that that does not appear in the medical records that that 20 conversation took place between the doctor and -- 21 MR. ORTEGO: It does not, Your Honor. 22 THE COURT: -- and the Plaintiff? 23 MR. ORTEGO: It's Dr. Fecher, and nowhere in his 24 records does it indicate that his Hodgkin's disease was 25 caused by exposure to our product. V - I37A -156- 1 MR. BALDWIN, SR.: He has never deposed Dr. i Fee.her. 3 MR. ORTEGO: I am looking at his records. I have i i 4 never deposed Dr. Fecher, but it's not in the medical , i 5 records as the treating physician. And having a lay person, ' 6 Mr. Baldwin, render an opinion on the ultimate issue of j j7 fact that's not supported, I think it's terrible hearsay. ii 8 MR. BALDWIN, SR.: Well, Your Honor, may I just j i 9 say this? He asked her the question. ! I i 10 MR. ORTEGO: Well, no, I asked her the question ; I 11 if he had Hodgkin's disease because you asked her about thej i 12 cancer. I didn't ask what caused it, and I think it is 13 highly prejudicial, especially when the man is not going 14 to testify -- 15 MR. BALDWIN, SR.: May I finish? 16 MR. ORTEGO: -- and he signed an Affidavit in 17 other litigations and never gave or rendered a causation 18 opinion. He said "the man had Hodgkin's disease." i 19 THE COURT: I am not going to allow the testimony i 20 of what this doctor told this Plaintiff. I think it would 21 be hearsay, and I don't think it's in the record at this 22 point on that one issue. Now, some questions were asked 23 today about Hodgkin's disease earlier, but I don't believe 24 there is any testimony that would allow -- anything that 25 would allow the testimony of a treating physician to state -I 1349 P-1373 | - 15 7- i jI or for this woman to testify, this lady to testify, as to ! 2 what a physician told her was the cause of her husband's 3 injuries. And I am going to sustain the objection and 4 instruct the Jury not to consider that for any purpose. 5 MR. BALDWIN, SR.: Your Honor, let me just make 6 this observation. Ordinarily, I would not offer that, 7 although I think it's admissible as an exception to the 8 Hearsay Rule. 9 MR. ORTEGO: What is the exception? 10 MR. BALDWIN, SR.: Mr. Ortego, may -- 11 THE COURT: Let him finish, Mr. Ortego. 12 MR. BALDWIN, SR.: -- I make an objection without 13 you interrupting me? i I i 14 MR. ORTEGO: I apologize. 15 THE COURT: Let Mr. Baldwin finish. ! j 16 MR. BALDWIN, SR.: On cross-examination he asked j j17 this witness if it isn't true that the doctor told you that i 18 your husband had Hodgkin's disease? And I wrote it down 19 and it's in this record, and we can go back and find it, 20 if it's necessary. And there is nothing clearer in the 21 law than that if a part of a transaction is opened up, then 22 the other side is entitled to show the entire transaction. 23 Now, he opened the door by asking that question, 24 and the only question I had to her is "What did the doctor 25 tell you was the cause of this man's death?" 1350 P-I37V 1 MR. ORTEGO: 1 think -- - 158- , j 2 MR. BALDWIN, SR.: And I think that in view of | 3 the fact that he has opened up the door to that, now it 4 leaves me looking -- the Jury only getting part of the 5 transaction. j i ' 6 MR. ORTEGO: Well -- !! 7 MR. BALDWIN, SR.: And it makes the Jury believe 8 that he died of Hodgkin's disease, which is a hotly con 9 tested issue in this case. And I think it would be unfair 10 not to let us show the rest of what took place. II MR. ORTEGO: I think the whole conversation is 12 hearsay, Your Honor. The problem I have is Dr. Fecher | ! ! 13 signed an Affidavit, which Mr. Baldwin submitted to the 14 Court, in which Dr. Fecher said he had Hodgkin's disease. 15 MR. BALDWIN, SR.: Well, if you want to offer that, 16 he can offer it. 17 MR. ORTEGO: I can't offer an Affidavit because 18 it's hearsay. 19 MR. BALDWIN, SR.: That goes to the weight. 1 20 MR. ORTEGO: I think at this time Mr. Baldwin 21 asking an ultimate issue of fact, the ultimate thing -- one 22 single issue in this case: what caused the guy's cancer? 23 And hearsay from a layperson witness is outrageous, and I ask 24 that it be striken. And you won't look bad in front of 25 the Jury because it's hearsay. 1351 V - I37S -159- 1 THE COURT: I am not going to allow that question. 2 MR. BALDWIN, SR.: Well, then may I -- I would 3 move that you instruct the Jury not to consider the question 4 he asked her about the doctor telling her he died of i 5 Hodgkin's disease, also. i I 6 THE COURT: I don't have in my -- I am not saying j 7 that that's not in the record. But I don't have down here, ; 8 i and I try to keep pretty good notes, I don't have down here j 9 that that question was asked. J 10 MR. BALDWIN, SR.: Well, I know it was asked \ H because I would not have asked this question had it not : 12 been, and I made a record of it. And Mr. Ortego knows it 13 was asked. 14 MR. ORTEGO: I think the question I asked -- 15 MR. BALDWIN, SR.: Now we can ask the witness if 16 the question was asked. 17 MR. ORTEGO: I will go through my notes. 18 MR. BALDWIN, SR.: And I can't believe he'd sit 19 here now and represent to the Court that he didn't ask that 20 question. 21 MR. ORGEGO: Then why didn't you object? But 22 that's not the issue. I don't think I asked the question ; 23 the way you phrased it. j 24 MR. BALDWIN, SR.: I don't have to object. I 25 t h i n k I h a v e the; c h o i c e i 1352 j XP-I37fe ! 1 MR. ORTEGO: Yes, you do. -160- 2 THE COURT: Well, just a minute. Let's just -- 3 MR. BALDWIN, SR.: I think I should have the j 4 choice of either objecting or going into the entire 5 transaction, and I chose that choice. 6 THE COURT: I want to hear the testimony that I 7 Mr. Ortego asked this witness, before we go any further, 8 on this one issue, the question that was asked of the 9 Plaintiff by Mr. Ortego as to what the doctor told her 10 about her husband's death, and whether or not he died of 11 Hodgkin's disease. 12 We are going to stand in recess until this is 13 located. 14 (Recess at 1:39 p.m., until 1:43 p.m.; open court, i 15 jury not present) ! 16 THE COURT: Now what was the question you asked, 17 Mr. Baldwin? 18 MR. BALDWIN, SR.: My question was that -- I j 19 asked the witness to tell the Jury what the doctor said j 20 was the cause of this man's problem. . 21 THE COURT: All right. (to reporter) Play back ; 1I 22 what is on the testimony this morning, please. Go back 23 two or three questions before it, and pick it up in context. : 24 (At this time the following proceedings were played 25 back, excerpted from cross-examination by Mr. Ortego:) j 1353 P - 13 1 1 I - 161- "Q But before he even went in 1978 he had severe back 2 pain, as you stated in your deposition, didn't he? 3 "A What I meant in that deposition was from the accident, 4 sir. 5 "0 But when I asked -6 "A That was what we were talking about at the time. 7 "Q When I asked you the question, ma'am -- let's see if 8 I'll ask the question again, maybe we will see again. 9 It says -- 10 "A Obviously he had back pain before he went to Dr. 11 Teeter, because that is why the Forest Service sent him 12 to Dr. Teeter because of his back pain. But he didn't have 13 back pain relating to anything else but the accident. 14 "Q Isn't it, ma'am, isn't it fair to say that the Forest 15 Service didn't send him to Dr. Teeter? He went on his 16 own. You found Dr. Teeter in a phone book and that's why 17 you went, because he had severe back pain way before the 18 Forest Service accident? 19 "A No, sir. i | 20 "Q Let me ask you -- I remember asking you this question: ] 21 "'What doctor did he go see?'" This is Page 52. "'The j 22 first doctor, yes, was Dr. Teeter,'" was your answer. i I 23 "'How did he go to Dr. Teeter? How did he find him?'" 24 "'In the phone book.'" " 'And how long did he complain 25 about back pains before he went to see Dr. Teeter?'" iI I j 1354 V - I37S" - 1621 "'I don't remember how long. It seemed like quite a while.'" 2 "'But it was bad before and it was getting worse?'" "'Oh, 3 yeah, definitely."' I'll move on. When is the first time 4 that your husband found out that he had Hodgkin's disease? 5 "A After the biopsy. 6 "0 And that was when Dr. Cole said that he had Hodgkin's ; 7 disease? 8 "A I don't remember which doctor it was, but it was in 9 St. Mary's. 10 "Q Now Mr. Greenhill you say was very healthy before he 11 started working in the Forest Service. He didn't go for 12 regular physicals, did he? 13 "A Not that I know of. I I ! iI iI i 1 { | i ' 14 "Q As a matter of fact, he rarely saw doctors or rarely had 15 tests before the back pain in 1978, isn't that correct? 16 "A Ho didn't have any need to sop doctors. 17 "Q So up until t^e time where he started getting severe 18 back pains in 1978 ho really didn't see any doctors, did { i 19 he? 20 "A I don't know. 21 "Q Do you remember him seeing any doctors as you sit 22 here now? i ji I i 23 "A Not that I remember. 24 "Q Now, ma'am, you said that he joined the Forest Service 25 even though it was less money because he loved the outdoors, 1355 I P -1 3 7`7 1 was that your testimony? -163- 2 "A Yes, sir." 3 (Playback of testimony concluded.) 4 THE COURT: I will overrule the objection. Bring 5 the Jury back in. 6 MR. ORTEGO: Judge?, just for the record, it's -- 7 the ultimate -- I still think it's hearsay to allow a 8 question from a layperson on the ultimate cause of the iIi 9 injury. If you want to strike any testimony or any hearsay, 10 I have no problem with that. But when you let a layperson II give hearsay on the ultimate -- 12 THE COURT: I am allowing it because you opened 13 it up on your examination. 14 MR. ORTEGO: Judge, I don't mind as to the IS Hodgkin's question, but Your Honor is going to let the ii i 16 part in the doctor told her it was caused by the Tordon? 17 That's going to stay in? That's the part that I am con 18 cerned about. We can play that part. Her next response 19 is: "the doctor told me it was caused by the Tordon 101." 20 And that's what I want striken, nothing else. If she wants 21 to say the doctor told her to was cancer or whatever, but iiI 22 the Tordon 101, that's the part that hasn't been played 23 and I think -- I 24 THE COURT: I am going to let her testify as to 25 what the doctor told her about her husband's condition. I 1356 i ! T? ~13 8^6 -164] MR. BALDWIN, SR.: May I, because of the **> c.on F u s i o n , may I a s k t hat q u e s t i o n a t t a i n , Yo u r Ho n o r ? ' 3 THE COURT: Yes. Bring the Jury in, please. j ! 4 (Jury in at 2:03 p.m.; ooen court, all parties present)! 5 MR. BALDWIN, SR.: Shall I proceed? i j 6 THE COURT: Y'ou may proceed. 7 REDIRECT EXAMINATION CONTINUES 8 BY MR. BALDWIN, SR.: 9 Q Mrs. Greenhill, would you tell us what the doctor 10 told you about your husband's condition? 1) A When they found out he had cancer? 12 Q Yes. I 13 A Dr. Kolb told Jim that he had cancer, and it was 14 caused from the use of Tordon 101. 15 Q Now, did Mr. Greenhill keep a diary? 16 A Yes, sir. 17 Q And I hand you Plaintiff's Exhibit -- see if you can 18 read it -- 19 A 33. 20 Q -- 33 and ask you if you would examine that? Do you 21 recognize the handwriting on that document? 22 A Yes, sir. 23 Q Is that the handwriting of Mr. Greenhill? 24 A Yes, sir. 25 Q Your husband? 1357 D - i 3 / ] A Yes, sir. -165- 2 Q What is that? 3 A It's a day-to-day diary on how he felt from the 4 time November the 19th, 1979 when he started treatments. 5 Q And did he keep it from day to day? 6 A Yes, sir. 7 Q And make the entries at or near the time that were 8 shown there on the document? I j 1 i i 9 A Yes, sir. 10 Q Is that something you found just very recently? I 11 A Just shortly, yes. j i 12 MR. BALDWIN, SR.: Your Honor, we offer that into 13 evidence. 14 MR. ORTEGO: Judge, I am going to object. This is 15 the first time I have ever seen this document. It wasn't 16 produced at Mr. Greenhill's deposition; it was not produced 17 in response to my discovery requests. I asked Mrs. Greenhill 18 if she had any such documents at her deposition she would I 19 produce it to me. And, secondly, it is just duplicative, 1[ i 20 and it talks about his pain and suffering in his diary. ' j 21 This is the first time I have ever seen it. I have been ! 22 asking if any such documents exist, and I think it is 23 duplicative. 24 THE COURT: I sustain the objection. 2S MR. BALDWIN, SR.: Just for the record -- ; 1 \ i \ 1358 P-1382- - 166- I THE COURT: Was t-hi-s e_x_h_i_b_i_t m_a_d_e a part o f the 2 Pre-Trial Order? 3 MR. BALDWIN, SR.: No, it wasn't, Your Honor, 4 because it wasn't found until very recently, this week, as 5 a matter of fact. I gave Mr. Ortego a copy of it. 6 THE COURT: I am going to sustain the objection. 7 MR. BADLWIN, SR.: That's all we have. Judge, mayj 8 we offer that for purposes of appeal? 9 THE COURT: Yes. IO RECROSS EXAMINATION 11 BY MR. ORTEGO: 12 Q Just two quick questions. Mrs. Greenhill, you 13 mentioned what the doctor told you. Were you with Mr. -14 your husband at all his sessions when he went to the 15 doctor? 16 A Most of them, yes, sir. 17 Q You are aware also that Dr. Kolb never in his medical 18 records said our product caused it? And are you also aware 19 that Affidavits were signed and he never put in those 20 Affidavits that our product caused your husband's illness? 21 Are you aware of that, ma'am? 22 A I haven't seen any affidavits to say that. 23 THE COURT: Anything else? 24 MR. ORTEGO: No, Your Honor. 25 THE COURT: You may be seated. 1359 p- 1383 I THE WITNESS: Thank you. -167 2 THE COURT: Call your next witness. 3 MR. BALDWIN, SR.: Your Honor, may I approach 4 the bench? 5 THE COURT: Yes. 6 (At the bench, off the record discussion, out of 7 the hearing presence of the jury, with Mr. Ortego and Mr. 8 Bal dwi n , Sr.) 9 (Open court) 10 MR. BALDWIN, SR.: May we proceed? 11 THE COURT: Yes, I am ready whenever you are. 12 MR. BALDWIN, SR.: Your Honor, before we begin, 13 may we explain to the Jury what this is? 14 THE COURT: Yes. 15 MR. BALDWIN, SR.: This is the deposition of Mr. 16 Greenhill which was taken pursuant to the rules of the court, i 17 both sides being present with the opportunity to ask 18 questions, and it was taken of Mr. Greenhill under oath 19 during his lifetime. 20 MR. ORTEGO: Your Honor, just for the record, 21 the direct examination was conducted by Mr. Miller, an 22 attorney in Mr. Baldwin's office, not by us. 23 MR. BALDWIN, SR.: That's correct. 24 (Videotaped deposition of James E. Greenhill; jury and 25 all parties viewing:) 1360 - 168- 1 . JAMES E. GREENHIi.J, (BY VIDEOTAPE DEPOSITION) 2 DIRECT EXAMINATION' 3 "Q Mr. Greenhill, would you please state your name for 4 the record? 5 "A James E. Greenhill. 6 "Q All right, Mr. Greenhill, you are the same James E. 7 Greenhill who is a plaintiff in a suit that has been filed 8 in Federal District Court in the Eastern District of Texas, 9 Marshall Division, which has been styled: Allen Peteet vs. 10 Dow Chemical Company? II "A Yes, I am. 12 "0 Tell the .jury where you live, Mr. Greenhill. 13 "A I live in Ozark, Arkansas. 14 "Q For those of us who are not too familiar with Arkansas IS geography, where is that? 16 "A It's about 60 miles east of Fort Smith. 17 "Q That's in thenorthern part of the state? 18 "A Yes, sir. 19 "Q All right. How old a man are you, Mr. Greenhill? 20 "A I'm thirty-seven. 21 "Q And where were you born? 22 "A I was born in Cleveland, Ohio. 23 "Q Where did you grow up, so to sneak? 24 "A I grew upbetween California and Ohio. I was in 25 Ohio until I was about seven or eight, and then I moved to T7-Ii 1 Ca]i fornia. - 169- 2 "0 Did you have a healthy childhood? 3 "A Yes, normal childhood. 4 "Q Nothing outside of mumps or measles, other than I 5 think you mentioned you had pneumonia back when you were 6 five or six? 7 "A Yes, sir. 8 "Q 9 "A Did you recover from that fully? Yes, I did. 10 "Q 11 "A Has it ever given you any trouble? No, sir. 12 "Q Are you a married man, sir? 13 "A Yes, I am. 14 "Q IS "A What is your current wife's name? Ann Irene Greenhill. 16 "0 Is that your only marriage? 17 " A I was married previously. 18 " D All right, what was your first wife's name? 19 "A My first wife was Sandra Patricia Greenhill. 20 "Cj 21 "A All right, and were you divorced from your first Yes, I was. 22 "Q When was that, roughly? 23 "A 24 "0 In the early '70s. Do you have any children? 25 "A Yes, I do. 1362 1 "Q j- 170- All right, tell us about your children. I guess 2 starting from the oldest to the youngest giving their ages. ; 3 "A The oldest is my stepdaughter, Michelle. She is 4 nineteen. i iI j 5 "Q Does she live at home with you and your wife? | j 6 "A No, she doesn't. She lives in Clarksville, Arkansas. j I [ 7 "Q Is she married? 8 "A No, she is not. 9 "Q 10 "A Did she grow up in vour home? Yes, she did. I i i 11 "Q Even though she is your stepdaughter, do you consider j 12 her your daughter? i 13 "A Very much so. j 14 "Q Go ahead. What is the next child? 15 "A The next child would be my son, Jimmy, and he is my ' 16 son from my first marriage. He is seventeen now; he will be 17 eighteen next month. 18 "Q 19 "A I guess he still lives at home? He lives at home, yes. j 20 "Q What is the final child? j 21 "A The final one is Soren Christian Louvring. He is ! i 22 my stepson; he is thirteen years old, and he has lived with 23 me since he? was three. ' 24 "0 Okay. And he, I take it, is the oldest girl's brother? ; 25 "A Yes, he is. j 1363 i v-ml j -171- i ] "Q . And do you likewise consider him to be your son? | 2 "A Yes, I do. j 3 "Q Are all of your children healthy for their age? 4 "A All of my children are in good health. 5 "Q What about brothers and sisters? Do you have any \ 6 brothers and sisters? 7 "A I have two sisters, and they are both in good health. 8 "Q What aboutyour parents? Are they still living? 9 "A My parents are still living, and have no health ! 10 problems. II "O 12 "A 13 "0 How old are they? In their 50s. And you say they have no health problems out of the i 'i 14 ordinary for someone that age? 15 "A 16 "0 Not that I am aware of, no. j What about your educational background, Mr. Greenhill? 17 How far did you go in school? 18 "A I completed 9th grade. 19 "Q Okay. Without going into too much detail, just tell 20 us why it was that you left school. 21 "A My parents were having family problems and they had 22 split up. My father had some problems dealing with it, and 23 he was drinking, and he moved and left the state. I had no 24 choice but to go to work. 25 "0 What was the first job you held after you quit school? 1364 D-l3fSi -172- j1 "A The first .job was in an uoholstery -- furniture 2 manufacturer. j ;i 3 "Q Okay. By this time were you in California? 4 "A I was in California at that time. 5 "O ''/h e re in C a l i f o r n i a ? 6 "A I was living in Covina,California. 7 "Q I am no more familiar with -- 8 "A It's in the Los Angeles area. 9 "Q Okay. You say it was an upholstering shop for a 10 furniture maker? 11 "A It was a furniture manufacturer, and I was an j 12 upholsterer. 13 "Q Just give us a shorthand sketch of what your job 14 duties were there. 15 "Q I put uoholstery on the inside and backs of chairs j i 1 i 16 and couches. 17 "Q If you can recall, what did you make at that job? 18 "A Around SI.25 an hour. j ij 19 "O 20 " A How about your next job? What was it? I The next job was for a discount department store calledj 21 Zodie's, a chain operation. ! 22 "Q 23 "A Was this also in California? This was in Covina, California. And again, it was I 24 around minimum wage. Probably about SI.35 an hour. 25 "Q What did you do for them? Just a sales clerk? ! 13651 i P-I311 j - 173- 1 "A . I began as a clerk, and later I worked as a cashier, 2 and later I managed the snack bar. 3 "Q How long did your employment there with -- Jodie's, 4 was that the name of it? 5 "A Zodie's was the name of it. It was probably a year, 6 approximately. 7 "Q Where did you go after that job? 8 "A After that job I moved to Alabama and got married, 9 and I went to work for a short period -- about two weeks -- 10 pumping diesel at a truck stop. 11 "Q May I ask, why did you move to Alabama? 12 "A I moved to Alabama to be closer to my family core. 13 My father was now in Alabama, and all my relatives were 14 there. 15 "MS. MINTZER: Could I get a time frame on 16 this, please? 17 "MR. MILLER: As to how long this will last? 18 "MR. MINTZER: No, no, where we are in time. 19 "Q Mr. Greenhill, Ms. Mintzer pointed out that it may 20 become important as to what year this was? 21 "A It was the early 60s, orobably mid-sixties, when I 22 moved to Alabama. 23 "Q All right. Can you get it any closer for us than 24 that? 25 "A Uh, '66, I would guess. 1366 V- 13% 1 "Q -174- All right. I understand that that has been a long 2 time, and that is just your best estimate. 3 "A Yes. 4 "Q When you moved to Alabama what kind of line of work 5 did you follow? 6 "A I worked for approximately two weeks pumping gas, or 7 diesel, and then I went to work for K-Mart stores. 8 "Q I take it the diesel pumping job was just a job 9 until you found a better one? 10 "A Yes, indeed. 11 12 "Q "MS. MINTZER: Objection. At any rate, what did you do after you Dumped gas? 13 "A After I pumped gas I went to work for K-Mart as a 14 sales clerk. And within about six months I was managing the IS camera department. 16 "Q And that was inAlabama again? 17 "A This was in Florence, Alabama. 18 "Q How long did you stay with K-Mart there in Florence? 19 "A I was with K-Mart a year and a half to two years, and 20 then I transferred to a K-Mart in California. 21 "Q Okay, you remained employed by the K-Mart people? 22 "A Yes. 23 "0 24 "A Why was it that you were transferred? If you transfer with the company you automatically 25 got a raise, and it was also considered in your best interest 1367 P-13?/ -175- 1 because it showed that you were interested in advancing 2 with the company. 3 "Q Had you intended to go ahead and advance with that 4 company? j 5 "A Yes, I did. 6 "Q You moved from Alabama to where, again? 7 "A Santa Ana, California was the first store that I 8 transferred to. I ; 9 !,Q From your last answer I gather you transferred more 10 than once? il "A I transferred a number of times. From Santa Ana I 12 went to Montclair, California, with K-Mart again, with the I ! i 13 camera department. From there I went to Thousand Oaks, 14 California and managed the jewelry department, and later 15 the camera department. And from there I moved to Medford, ji j ii j 16 Oregon to that K-Mart store and managed the camera and : 17 jewelry departments. And that was in the early 70s -- 18 '71, *72. 19 "Q And was that your last assignment with K-Mart? 20 "A That was my last assignment with K-Mart. 21 "Q Let me just ask you this, without going into a great 22 deal of detail, what work did you do at each of those jobs? 23 "A Primarily I merchandised camera and jewelry 24 department -- sold and merchandised the deDartments. 25 "Q And you were the manager of those departments? p-(3fc i 1 "A 2 "Q Yes, I was. - 1 7 6 - iI j How much were you making, if you can recall, during i 3 this period with K-Mart? ; i 4 "A At the end I was making approximately $800.00 a month, j 5 "Q And so we will have this in time frame, as best you can I 6 recall, what oeriod of years was it that you were moving up 7 in the K-Mart organization? 8 "A Probably until 1973, from the mid-sixties when I 9 started in Florence. 10 " Q I believe earlier you mentioned that Medford, Oregon 11 was your final stop there? 12 "A Yes. 13 "0. I take it you and K-Mart parted company? 14 "A Yeah. I left K-Mart in Medford, Oregon because 15 the only chance that I had with the company of furthering 16 mvself was to become a district manager. This position I j { i j ! 17 I did not want at the time because it would take me away 18 from my family all but a couple of days a month. ;i [ 19 "Q All right, you mentioned your family. You mentioned 20 that you were married when you first went with K-Mart? 21 "A Yes. 22 o Had your son been born by this time? 23 'A Yes, he was. 24 'Q Roughly, how old was he, if you can recall? 25 'A He was about five years old. ; 1O3-6193?3 1 "Q 477- You didn't want to be away from home a month during 2 this time period? 3 "A That is correct. 4 "Q Where did you go afterthe K-Mart job? 5 "A After K-Mart I went towork for the laborers union, 6 also out of Medford, Oregon. 7 "Q How long did that last? 8 "A There were a number ofdifferent jobs that I went out 9 on with the laborers' union, and it was probablyunder a 10 year's time that I worked there. 11 "Q What -- and I don't want you to go into each job you 12 had, even if you can remember them, but what type of jobs 13 were these? 14 "A Mainly labor jobs -- going to get items for 15 carpenters and the professional tradesmen. 16 "Q I believe you stated that you stayed there roughly 17 a year? 18 "A Approximately. 19 "Q Where did you go after that? 20 "A I took a construction job just as something that was 21 lucrative. I later found a job in approximately a year. 22 I went to work for a company called Buv-Mart, again, a 23 discount department store chain. 24 "0 Back in the previous line of work that you followed? 25 "A Yes, it was. I was in camera-jewelry. 1370 P-137? 1 "Q . Is that, what you did for Buy-Mart? -1 73- 2 "A Yes, I did -- ramera, jewelry, records management. 3 "Q How long did you stay at work with Buy-Mart, is it? 4 "A Buy-Mart. I worked there for two to three years. 5 "Q And what location was this? 6 "A That was in Ashland, Oregon. 7 "Q At the end of that three years what was your next 8 job? It's been a long time -- just tell us as best you can 9 recall. 10 "A From Buy-Mart -- yes, I went to work for Al-Bea- 11 Co Paint Company. 12 "Q Okay. 13 "A I was a route salesman. My job primarily consisted of 14 servicing customers. I went out, I sold hardware and paint 15 items and delivered them. 16 "0. You had a certain route or territory, I take it? 17 "A Yes, I did. 18 "Q T.7hat were you making at that job? 19 "A Five hundred a month, plus commission. 20 "Q What was your commission? 21 "A I never made a commission while I worked for the 22 company. 23 "Q How long did you work for them? 24 "A Not long. Five months, I believe. 25 "Q Where did yougo after that? 1371 V I3 f^ 1 "A -179- , After that I went to a lumber company as a salesman, 2 called Copeland Lumber, in Medford, Oregon. 3 "Q How Ions were you at that job? 4 "A Several months; under a year. I'm not sure. 5 "Q What was your next job? 6 "A My next job was with the Forest Service. 7 "Q Let me just stoo there and ask a question* encompass 8 ing all of the jobs that you had had up to this date, I guess 9 all the way back from the uoholstery shop on to the -- was 10 it a lumber company there at the end? II "A Yes, sir. 12 "Q During the course of any of these jobs did you work 13 with herbicides of any kind? 14 "A Except for the Forest Service, no. IS "Q Well, I am talking about ununtil the Forest Service 16 job? 17 "A No, I did not. 18 "O What about pesticides? i j 1 19 "A No, I did not. No, I have never used any chemicals. 20 "Q Do you know of anything that you did at any of those 21 jobs, or anything that you might have been exposed to, which 22 would endanger your health? 23 "MS. MINTZER: Objection. 24 "MR. MILLER: What is your objection? 25 "MS. MINTZER: He is not competent to know that. 1372 P-I - 180- ; 1 "Q Anything that you know of that endangered your , 2 health? , 3 "A Nothing that I am aware of. j 4 "Q I believe you stated that the next job you went to was 5 the U. S. Forest Service? 6 "A Yes, sir. j1; 7 "Q Why did you make that change? 8 "A I've always been an outdoors' person and into back 9 packing, hiking and what-not. I was involved in conservation 10 efforts, and the Forest Service seemed to be a likely place 11 for me to find a job that was suitable. It also was about 12 a block from my house. 1 13 "Q When you Were hired by the Forest Service what kind 14 of work did they have you doing? 15 "A I went to work with the Forest Service as a fire 16 fighter during fire season, at which time I was on a tanker, i 17 a water tanker truck, shuttling water, basically, to fires. ! 18 During the off-season I would work in any number of 19 different types of jobs, including timber stand improvement, j 20 which would be either planting trees or defoliating trees j 21 with poison. i i 22 "MS. iMINTZER: Objection to the characterization. 23 "Q Let me back up. You mentioned the fire fighting and ; 24 the fire season. What is the fire season? ij 25 "A The fire season in Oregon was a period with less than 1373 v-mt 1 -181- normal rainfall, where the fire was at a higher than normal 2 risk. 3 "Q I take it that the other jobs took a back seat to 4 that -- were done when they could be done? 5 "A Right. Exactly. 6 "Q Was this, by the way, a full-time job you had 7 with the Forest Service? 8 "A I was on a temporary appointment. I could work nine 9 months out of the year. My appointment started June 2 IO and ran until I used up nine months. 11 "Q All right, and then you would take how long off? 12 "A Three months. 13 "Q 14 "A Then what would you do after that? I'd be called back. 15 "Q For how long? 16 "A For nine months. 17 "Q For the record, where was this? Somewhere in Oregon, 18 I believe you said, but could you be more specific? 19 "A Yes, it was outside of Medford. Medford, Oregon 20 was the main office I worked out of, but I worked in the 21 Applegate District, a forest just outside of Jacksonville, 22 Oregon. 23 "Q 24 "A 25 "Q Does that forest have a name? Yes, it is the Rogue River National Forest. The Applegate Division? _,,~ . 1374 P - 13?S' ] "A Yes. -182- | i| 2 "Q Go ahead. j 3 "A I'm sorry. It was called the Star Ranger District. I 4 "Q If we wanted to talk to somebody with the Forest 5 Service, that's how they would know it? 6 "A They would know it by either of those. 7 "Q Okay. What time frame was this, also? When was it 8 that you went to work for the fire service, Forest Service, 9 as best you can recall? 10 "A I went to work for the Forest Service in about -- 11 I think it was about '76, as near as I can remember. 12 "Q During the period that you were there in Oregon, 13 how long were you there, total? II 14 "Ms. MINTZER: I'm sorry, I -- 15 "Q How long were you there in Oregon with the Forest 16 Service? 17 "A To the best of my recollection, it was two or three i , 18 years. 19 "Q When you say a year, I take it you mean nine months 20 on and three months off? I 21 "A Yes, seasons. 22 "0 During the course of your employment there in the Rogue 23 River National Forest, Star Ranger or Applegate Division, 24 whatever it is known by, did you have occasion to apply 25 herbicides to plants? 1375 P-137? I "A 2 "Q Yes, I did. -183- What do you understand a herbicide to be, just for 3 the benefit of the jurors who may not be familiar with that f 4 term? 1 5 "A A herbicide is a chemical defoliate that kills the I 1 6 tree. 7 "0 Okay. j 8 "MS. MINTZER: Objection. 9 "Q I normally don't think of the Forest Service as 10 killing trees. Why were they killing trees? 11 "A In Oregon hardwood tress don't grow as rapidly as iI I ii ; i j 12 Douglas fir trees. And the Douglas fir tree is the i 13 primary product that the U. S. Forest Service puts out in j 14 Oregon, and therefore we kill most deciduous trees in favor ; IS of the Douglas fir so that they could take a stronger hold. 16 "0 What is a deciduous tree? 17 "A A leaf-bearing tree1. 18 "Q As opposed to an evergreen or pine type tree? 19 "A Yes. 20 "Q How was this accomplished? 21 "A We would take a hand ax and chop around the tree 1i i i j 1! 22 approximately an inch and a half or two inches apart, and 23 squirt in the herbicide into the gashes that we made in j 'j j 24 the tree. 137625 "Q Did you all have a shorthand way of referring to this I ] operation? -184- : i 2 "A Yes, it was referred to as "hack and squirt." ; 3 "Q Okay. I realize that this has been some time ago, but 4 as best you can recall, how long a period of time did you 5 do this? 6 "A Approximately three to four months, to the best of 7 my recollection. 8 "Q Was that during one year, or spread out over several 9 years? IO "A I did it for approximately three or four months in one 11 year. There were other times that I may have used chemicals 12 on an occasional basis. ! 13 "0 But you did it fa:Lrly steadily for that three or 14 four month period? 15 "A Yes. 16 "O To 1 1 us t h e f a c t s ahoul it. 17 "A . For approximately three or four months I used 18 herbicides on a daily basis. 19 "Q When you say "daily," is that five days a week? 20 "A It was five days a week, unless I was called to a fire. 21 "Q Whose decision was it that a certain area would be 22 treated with this hack and squirt treatment? 23 "A That would have been up to the forester. 24 "Q Somebody above you, at any rate? 25 "A Yes. 1377 P- Hoi -185- | I "Q Okay. Once that decision was made and word got j I 2 passed to your level, what would be the procedure, say, when i 3 you reported to work in the morning? 4 "A When we reported to work in the morning, the crew 5 boss would take us down to the warehouse. We would, load 6 up the herbicides. 7 "Q Okay, let me stop you there and ask you a few questions 8 about that. 9 "A Yes. 10 "Q Describe the warehouse for us. 11 "Q The warehouse was a garage-like building with a j 12 sliding door on it, cement floors, with herbicides stored j 13 inside in barrels. 14 "Q Do you know by any kind of name or description of 15 the type of herbicide you used? 16 "A ii Yes. Tordon 101 I used approximately 98 or 99 percent ; 17 of the time:. 18 "Q What kind of containers did this Tordon -- and 19 for the benefit of the court reporter, would you spell that 20 for us? If you know how. 21 "A I will make an attempt at it. It was T-o-r-r-e-d-o-n 22 101 . 23 "O Tordon? (correct spelling) 24 "A Tordon. 25 "Q Okay. What kind of container did the Tordon 101 come 1 in? -186- 2 "A Large barrels, 50 gallon barrels. 3 "Q Just a barrel, a metal barrel? 4 "A Yes, sir. 5 "Q Would you have occasion to put it into a smaller 6 container at any time? i 7 "A Yes. We would put it into a five-gallon container, 8 and most often load one or two of those, along with our 9 other equipment, into the vehicle. 10 "Q i Let me back up to that barrel. Could you physically i II describe the barrel beyond just being a metal barrel? Did : 12 it have anything written on it? 13 "A To the best of my recollection, it was white i 14 55 gallon drum with "Tordon 101" on the label, "Dow Chemical : i IS Company" towards the top. , 16 "Q Did you see any warnings of any kind on this barrel? 17 "A Not to my recollection, other than possibly a skull 18 and crossbones. 19 "Q Did you see anything that was designed to call your 20 attention as to how it should be used, or caution you not 1 i j Ii 21 to use it in a certain way? 22 "A No. 23 "Q I believe I interrupted you when you stated that it i1 ; I j 24 was common practice to load the chemical from these barrels I 25 into a five gallon container? ! 1379 v-tyc>3 ! 1 "MS. MINTZER: Objection. -187- 2 "Q What would you do with it when you pot it out of the 3 barrel? 4 "A It would normally be out into small containers and 5 loaded into the back of a stationwagon type vehicle that I ! 6 we drove out to the job site. ! i i 7 "Q How many of you would ride out there in that vehicle? j I i 8 "A Oh, five or six. i i 9 "Q Let me ask you a little bit about that vehilce. You ' i i 10 described it as a stationwagon type vehicle? | | 11 "A Yes. I believe it was called a carry-all. It was | 12 about a nine passenger stat iomvagon, similar to a Bronco. 13 "Q Was it enclosed? 14 "A Yes, it was. 15 "Q Where would you carry the Tordon 101 in the smaller i 16 containers in that vehicle? 17 "A Directly behind the rearseat. 18 "Q Well, that could mean in a trunk. Is it a trunk19 like enclosure? 20 "A No, it's not, it's open like a stationwagon. i1i j ! j I 1 21 "Q And where would the people sit? ; 22 "A The people would sit in the two seats ahead of it. ! 23 "Q Did the Tordon 101 have an odor? 24 "MS. MINTZER: Objection, Counsel, he has 25 referred to other herbicides, too. ; iI 1380 v -/yoy -188J "0 Okay, Mr. Greenhi 11, how often would you use Tordon 2 101 as opposed to others? 3 " A Ninety-eight(98) to 99 percent of the time. i 4 "Q All right. I want you to, for the moment, ignore that ; i| 5 other 1 percent for me. The Tordon 101, do you recall if it : 6 had an odor? i ; 7 " A Yes, it did. j 8 "Q Okay. With regard to thatodor, describe it forus ; 9 if you could. 10 "A It was a rather strong, pervasive odor that couldn't 11 be missed. | 12 "0 Okay. Could you smell it when you went into that 13 warehouse or storage room? 14 "A I can't recall. ji j IS "Q ( What about when you would load it from the barrels intoj 16 the smaller containers? 17 "A Yes. Anytime we were transferring it from 18 containers, it was -- 19 "Q On the subject of transferring it from containers, 20 how was that accomplished from the barrel to the smaller -- 21 "A It was a pump o n the top, a hand-operated pump on 22 the top of the large barrel. 23 "Q After you put it in the enclosed carry-all or Bronco 24 type vehicle you spoke of, could you smell the odor of the 25 Tordon 101? V- I 2 "Q "MS. MINTZER: Objection. -189- Go ahead and answer the question. That's for the 3 court. 4 "A After we loaded the herbicide Tordon 101, we could 5 smell the chemical, the herbicide, in the car. i 6 "MS. MINTZER: Objection again. The witness 7 has testified that he put other chemicals in there, too. 8 "Q Let me clear that un, Mr. Greenhill. The other 9 chemicals that you from time to time worked with, did they 10 also have an odor? !i j 11 "A I don't recall any odor, and that's all I can say. Ii 12 I don't really recall any odor of other chemicals. 13 "Q Do you specifically recall, as you sit here today, 14 what that car would smell like when you had Tordon 101, IS not any other herbicide, in the back of it? 16 "MS. MINTZER: Objection. He hasn't testified 17 that he only had one herbicide there, ever. 18 "Q All right, did you ever have Tordon 101 alone in 19 the back of that vehicle? 20 "A I never had Tordon 101 in the vehicle with any other 21 chemical. 22 "Q Okay. Now tell us what that car smelled like. 23 "A The car smelled like Tordon 101. 24 "Q How would you characterize the odor? 25 "A It was Dungent and it was strong. You couldn't get 1382 g- | 4 o b ! i i 1 away from it. 2 "Q What time of year was this, 3 "A It was in the fal 1 of the ye 4 "Q Would the windows on the car 5 down? 6 "A On the way to the sites they -190- 7 rolled up because the temperatures were falling at that 8 time. And on the return they would be rolled up. 9 "Q Okay. Where were these locations where you would 10 spray this chemical located in relationship to this 11 warehouse? 12 "A Oh, anywhere from 12 to 30 miles from the warehouse. 13 "Q What kind of roads connected the two sites? 14 "A There was approximately five miles of pavement, 15 and the rest of it were dirt, mountain roads. 16 " Q How long would it take to get from your storage 17 room to the site where you would apply the herbicide? 18 "A On the average, 30 to 45 minutes. 19 "Q Would that odor of the herbicide, and I am only 20 speaking of Tordon 101 at this point, go away at anytime 23 during that trip? 22 "A No. 23 "Q Would you smell it the whole way? 24 "A Yes. 2S "Q Would you breathe those fumes in? 1383 D-/Y0 7 I 2 "A "MS. MINTZER: Objection. -191- I suppose I would have to breathe the fumes in, being 3 in a closed vehicle, yes. 4 "Q And after the 30 to 45 minute ride to the site where 5 the herbicide was sprayed, what would happen next in this 6 hack and squirt operation? 7 "A When we got to the location we would fill one quart 8 spray bottles, the type that you see at gas stations for 9 cleaning windows, etcetera. 10 "Q II "A Were these glass bottles or plastic? They were plastic bottles, and you unscrewed the 12 sprayer out of the top of them, poured the Tordon in, and 13 put the little top back on. 14 "Q Something similar to a Windex bottle? 15 "A Yes. 16 "0 How would you transfer the chemical, and again I only 17 speak of Tordon 101 at this point, from those five gallon 18 containers into the one quart squirt jugs? 19 "A Pour it in. 20 "Q All right. Was this accomplished -- describe it for 21 us. 22 "A We would pour in the chemical into the bottle. 23 "Q Would you hold the bottle, or was it sitting on a 24 tray, or what? 25 "A I think that varied with the individual. Whatever was 1384 P - //<>$ -192- I 1 i easiest to accomplish the task, I suppose. We transferred 2 it from one container to another as simply as possible. 3 "Q Okay. Did you have a funnel for this operation? 4 "A Yes. 5 "Q Did you wear any kind of protective clothing? i jij i | I 6 "A We wore gloves. 7 "Q Describe the gloves to the jury. 8 ''A The gloves were similar to surgical gloves, the type 9 you see a physician wear. 10 "Q I'm not sure if the jury is all going to be 11 familiar with that. Describe them a little more fully 12 for us. j 1l j 13 "Q Very, very thin latex type gloves that you could 14 see through. IS "Q How high up on your arm would they come? We have j j 16 video here, why don't you just tell us and gesture at ! 17 the same time? 18 "A About three inches above my wrist. ii 19 "Q Would this plastic glove keep the Tordon off of your 20 hands? 21 "A No, it would not. 22 "Q How could it get through that glove? 23 "A When you were walking through the forest carrying the 24 container, or when you were using it, often you had your 138525 arm in a position that would allow the Tordon to run down i -193- 1 your arm. And when you dropped your arm to your side, * *** i 2 the only way it could go v/as down in the glove. 3 "Q Okay. I take it from what you .just said you used I ! i | 4 those gloves not only when you were transferring the 5 chemical, but also during the hack and squirt operation 6 itself? ! 7 "A At all times during the hack and squirt operation. 8 "Q Other than the clear, thin surgeon type gloves 9 that you mentioned, did you wear any other protective 10 clothing? 11 "A Not designed toprotect us fromthe chemical. We 12 did wear hard hats and safety shoes. 13 "Q Okay, that would be, of course, to protect your 14 head and feet? 15 "A Certainly. j i | i 16 "Q Did you wear a mask or a resnirator of any kind? 17 "A No. 18 "Q Did you wear a handkerchief over your face of any | i 1 19 kind? 20 "A No. 21 "Q Just breathing like you're breathing now? 22 "A Yes. I 23 "Q Describe -- after you loaded the Tordon 101 into the j 1 24 individual jugs, what would you do? ; 25 "A We would fan out across the area that we were going to i D1-3m86o -194- I defoliate, and begin going through trying to hit every 2 single tree that we wanted dead. 3 "Q What size were these leafy trees? 4 "A Anywhere from four inches in diameter to, maybe, 5 ten or twelve inches. 6 "Q And once you found a tree of the type that you were 7 looking for, what would you do? 8 "A We would place slashes with the hand ax around the 9 tree at approximately an inch to an inch and a half 10 intervals. 11 "Q When you say a hand ax, is that similar to what I 12 call a hatchet? 13 "A A hatchet about this long, with a small head on it, 14 a single bit. 15 "Q And you would dig down with that hatchet into 16 the tree? 17 "A We would make a hack into the tree, and roll the 18 hatchet somewhat, and then squirt the herbicide into 19 the cut. One squeeze being the proper amount for each cut. 20 "Q Okay. Somebody told you that's what they decided 21 they needed for each cut? 22 "A Yes. 23 "Q In an average tree, you say you'd make a cut every 24 how often? 25 "A Approximately every two inches. 1387 V - ihii I "Q 2 "A -195It would be three or four cuts to a tree, probably? Depending on its size, yes. | ! 3 "Q When you would squirt this herbicide from a spray l 4 bottle on to the tree, would you get any of the herbicide S on you? 6 "MS. MINTZER: Objection. 7 "MR. MILLER: Why the objection? 8 "MS. MINTZER: You are leading the witness. 9 "Q Okay, tell us what would happen when you applied 10 the herbicide. 11 "A When using the herbicide, we would make the incision 12 with the hand ax, we would squirt with the bottle. In 13 passing from tree to tree, and sometimes in the squirting 14 it would reflect back on to you. And walking from tree 15 to tree, the squirt bottle, if you are familiar with the 16 use of squirt bottles, they often drip. And it was 17 normally consistent that I would come with my pant leg wet 18 from the knee down, as would the other timber stand 19 improvement personnel, from the dripping bottles. 20 "Q You say your pant leg. What kind of pants were you 21 wearing? 22 "A I wore cotton work pants or a Levi, both about 23 similar thickness. 24 "Q Just plain old work pants? 25 "A Yeah. It would be wet to the point that you would 1388 P-iij-a -196- 1 be able to tell that it was wet from a distance, and 2 primarily just on the outside of my leg. And it would 3 penetrate to my leg and cause my leg to be wet. 4 "Q When you say leg, I take it -- or clarify that for 5 us. Is that one leg or both legs? 6 "A Primarily -- well, entirely. My left leg below the 7 knee. 8 "Q How would it be on your left leg but not on your 9 right leg? | I 10 "A I was right-handed. I used the ax in my right and 11 the squirt bottle in my left hand. 12 "Q How many hours a day would you all do this hack and 13 squirt procedure? 14 "A Eight (8) to 12 hours. 15 "Q It was over a period, I think you said, of three to 16 four months? 17 "A Yes, sir. ! | 18 "Q About what time would you get out there in the 19 morning, usually? 20 "A Well, we'd be out at 8:00 o'clock in the morning. 21 "Q How long would it take before your pant leg became 22 wet? 23 "A By 9:00 o'clock in the morning. 24 "Q How wet would it be? 25 "A By nine it'd be damp. Before lunch it would be -- 1389 -197- j 1 not wringing wet, but certainly wet to the touch and to ! 2 the appearance. 3 "Q Okay, would it be wet enough that it would be wet i j 4 on the inside as well as the outside? 5 "A If you are referring to the inside of the pant leg, 6 yes. 7 "Q Okay. Yeah, that is what I was referring to. Would 8 it get on your skin? 9 "A Yes. IO "Q Describe for us, as best you can, the extent to It which it would get on your skin, paying particular attention 12 to where it would get on your skin. 13 "A Primarily, it would be on my left lower leg below 14 the knee, and it would be wet. IS "Q On the outside or the inside? 16 "A The outside. 17 "0 Just the outside, or primarily the outside? 18 "A Primarily the outside. It would wick around 19 somewhat in the normal action of the material, but it was 20 primarily on the outside. 21 "Q Would you break forlunch? 22 "A Yes, we did. We would break for lunch after 23 approximately four hours, at which time they would give 24 us a bar of soap and some water and tell us to wash up. 25 That was about it. 1390 V-iliy- 1 "Q . Did you do that before you ate your lunch? -198- 2 "A We'd do it before we ate lunch, and at the end of 3 each shift. 4 "Q Okay. When you say shift, does that mean awork day? 5 "A Yes. 6 "Q Whenyou would wash your hands withthat soap before 7 you ate your lunch, did that get all of the Tordon off of 8 your hands? 9 "A I don't know whether all of the Tordon was gone, but 10 the smell was still there. 11 "Q How long a break would you take for lunch? 12 "A I believe we had 30minutes. 13 "Q Okay. And after that you put the gloves back on 14 and go back to work? IS "A Yes. 16 "Q Doing the same thing in the afternoon, I take it? 17 "A Yes. 18 "Q What time would you break off then? 19 "A Generally around 4:00 o'clock. Some days it would 20 be longer; it would depend on the job that we were working 21 on. 22 "Q What would you do when you were all finished that 23 day? 24 "A When we finished for the day we would take the 25 chemicals back to the warehouse. We didn't pour them back 1391 V-l H15 1 j -1991 in the barrels, We most often .just put the chemical that 2 was left back into the building, along with the tools 3 ! involved, went home, took a bath and got clean clothes on. 4 "0 And then you came back to the same thing the next 5 day? 6 "A The next day, yes. 7 "Q Let me back up a little bit. I meant to ask this 8 earlier. When you are hacking and squirting, if that's 9 the proper way to phrase it, how long would that bottle 10 last you? The quart size individual sprayer. 11 "A It would be difficult to determine that, because 12 it would depend on the size of the trees that we were 13 defoliating, and the amount of trees that were to be 14 defoliated. 15 "Q Let me ask you this. During the course of a working 16 day would you have to refill the little bottle? 17 "A On occasion-- on a number of occasions, depending 18 on the area, again, we would carry quart canteens with 19 the herbicide Tordon 101 inside, and we would refill our 20 bottles in the field. 21 "0 Okay, so you wouldn't have to go back to the 22 truck? 23 "A Yes. 24 "Q When you say canteen, what kind of -- 25 "A It was a plastic container inside of a canvass bag 1392 D-IHKe 1 that, we attached to our belt. -200- 2 "Q Just like a canteen that you might drink out of? 3 "A Yes. 4 "Q All right. Now, let's get back in the sequence of 5 where we were. I believe we had just come to the end of 6 the work day, so to speak, and you would put the chemicals 7 back in the truck? 8 "A Yes. 9 "Q All right, then I take it you would go where? 10 "A Back to the warehouse, and we would unload same II and put them inside. 12 "Q Okay, and I guess if it takes 30 minutes to 45 13 minutes to get out there, it takes about the same to get 14 back? 15 "A Yes. 16 "Q And once again, would this be in the same type 17 Bronco? 18 "A It would be in the same vehicle, yes. 19 "Q Would the windows be up or down? 20 "A Normally they would be up, because of the 21 temperatures. 22 "Q And once again, could you smell the Tordon 101 on 23 the way back? 24 MS. MINTZER: Objection. 25 "A At anytime that I was in the vehicle on the way to 1393 -2011 or from the job I could smell the herbicide Tordon 101. 2 "Q Did you breathe it in? 3 "MS. MINTZER: Objection. 4 "A Anytime that you were in the vehicle you had to 5 breathe, and when you breathed you breathed in the Tordon 6 101. 7 "Q Was it a mild aroma, or was it a stronger? 8 "A It was pungent. It was strong and you couldn't get 9 away from it. If you were prone to nausea at all it )0 would nauseate some people at times. 11 "Q Once again -- I think this has been on the record, 12 but how long did you do this hack and squirt on a regular, 13 five-day a week basis? 14 "A Three to four months. IS "0 And other than that, how often would you do it? 16 "A Just very occasionally. 17 "Q Which is? 18 "A Just as the need arised. Usually when there wasn't 19 other work they might give you something like that. 20 "Q Now you mentioned that you believe you used Tordon 21 101 98 to 99 percent of the time. Correct me if I 'm wrong 22 about that. 23 "A Yes. 24 "Q What other chemicals do you have a memory of using, 25 as you sit there today? 1394 1 "A I believe that I used Silvex. ji- 2 0 2 - I But I didn't see Silvex 2 written, I just heard the name mentioned. ' 3 "Q Do you remember how often you ever used it? 4 "A Very few times. I'd say under five. 5 "Q When you would come home in the afternoon, after 6 doing the hack and squirt operation, what would you do? 7 "A When I returned to my home? 8 "Q Right. 9 "A 1 When I returned to my home I would come in and take a 10 bath and change clothes and have dinner. 11 "Q By the time you left the job site and driven back 12 to the warehouse and driven home and got ready to change 13 clothes and take your bath, would that left pants leg still 14 be wet? 15 "A Oh, yes. 16 "MS. MINTZER: Objection. 17 "Q All right. I'm sorry, your answer my have been cut 18 out by her objection. I was asking you about the status of 19 your left pants leg when you got home and changed clothes, 20 for the record. 21 "A When I got home from the job my pants leg was still 22 wet, wet to the touch and to the appearance. 23 "Q Would you wear the same pair of trousers on more 24 than one day? 25 "A No, not while we were doing hack and squirt. 1395 V -ilif I "Q Who washed your pants? -203- 2 "A My wife. 3 "Q What other type of work did you do while you were 4 with the Forest Service there at the Rogue River National 5 Forest? 6 "A I was primarily a fire fighter, with my duties being 7 self-explanatory. I fought forest fires, although I would 8 do other forestry work at times. General labor work, I 9 suppose. 10 "Q I take it from what you said that fighting forest 11 is a big concern of the Forest Service? 12 "A Yes, it is. 13 "Q Did you ever get hurt in the course of working there 14 at the Rogue River National Park? Any ki nd of an on- the- 15 job injury? 16 "A Yes, I did. 17 "Q Tell me a lit tie bit about that. 18 "A I was injured at the Forest Service during my second 19 season, and I was -- what we referred to as "busting 20 weeds." 21 "Q I don't know what that is, and I would imagine that 22 the folks on the jury may not know. Tell us about that. ! I j j 23 "A Okay, busting weeds consisted of taking a long j 24 tool with a blade on the bottom and slashing it back and 25 forth in order to cut down the weeds. ! iI 1390 ii V 'H ^ o ! 1 'Q 2 "A Okay. -204- While I was doing that I pulled a muscle in my left 3 shoulder, and I went to a doctor in Medford, Oregon, who 4 diagnosed it as a strained muscle, and they gave me 5 ultrasound treatments. 6 "Q How much time did you miss from your job as a result 7 of this injury? 8 "A I don't believe I actually missed any full days 9 of work, except to attend a physician. 1 IO "Q Just a trip to the doctor here and there? li "A Yes. 12 "Q Let me ask you that -- while Imentioned that ! ji ` 13 on-the-job injury. Have you had any other significant 14 on-the-job injuries in any other job that you have had up 15 to this point? j I j 16 "A No, I haven't. s 17 "Q Was your health such that you were able to work 18 regularly? i | 19 "A Yes, it was. 20 "Q And you say that thismuscle pulled inyour left 21 shoulder? | I Ii j 22 "A Left shoulder, yes. 23 "Q That really didn't keep you from working other than i 24 a trip or two to the doctor? ! 25 "A Yes. 1 1397 P-14.2./ -205- I "Q , Did you fill out an accident report with regard to 2 that shoulder injury? 3 "A I filled out an accident report, but the accident 4 report is contrary to what I just told you. 5 "Q All right. 6 "A The reason for this is that the ranger, and those 7 higher up than myself, decided that it didn't look good for 8 somebody to have a back injury on a government job while they 9 were cutting down weeds, when their primary job was a fire 10 fighter. So, it was decided by someone higher than me that 11 my injury actually took place while making a diversionary 12 channel in the river for fire fighting purposes. 13 "Q What got put down on the official accident report i 14 as -- 15 "MS. MINTZER: I am going to object to that. 16 "0 What was put dowrn on the form as the official cause 17 of the accident? 18 "A The official cause was put down that I was lifting 19 rocks in an effort to make the diversionary channel and 20 injured my shoulder. 21 "Q Did you want to do this? 22 "A No, I didn't. I was told that -- my first objection 23 was that it made me look like I didn't know how to lift 24 weights. And they said no, that actually all I had to 25 worry about was not rocking the boat, because people that V 'W S Q - 1 rocked the boat often fell in. -206- 2 "Q All right. I am going to hand you what will be 3 marked as Plaintiff's Exhibit No. 1, as soon as we get a 4 break. I am going to ask you to look at that and see if 5 you recognize that? 6 "A Yes, I do. 7 "Q Tell us what it is. 8 "A This is the accident report that I filled out on the 9 day of the accident. 10 "Q Okay, is that in your handwriting? 11 "A Yes, it is. 12 "Q Mr. Greenhill, we have just taken a break for every 13 body to get up and stretch their legs. And now that we are 14 all back, let me backtrack just a wee bit so I can make sure IS we've got all of this on the record. I will hand you what 16 the court reporter has now marked as Plaintiff's Deposition 17 Exhibit No. 1. Do you recognize that? 18 "A Yes, I do. 19 "Q Tell us what it is. 20 "A It is my -- it's the paper that I filled out when I 21 was injured at the Forest Service. 22 "Q Up there in Oregon? 23 "A Up there in Oregon. 24 "Q And that's when you hurt yourshoulder? 25 "A My left shoulder. V -N 2 3 1 "Q Swinging a thing to cutthe weeds? 2 "A A weed buster, yes. -207- 3 "Q Under that there is acolumn -- let's see what number 4 it is. I think it's No. 13, says, "The cause of injury." 5 I believe you have described for us already the circum 6 stances as to why that shows what it does? 7 "A Yes. 8 "0 Have you reviewed that document at my request earlier 9 today? 10 "A Yes, I have. 11 "Q Is everything else in there true to form, so to 12 speak? 13 "A Yes. 14 "Q Thank you, sir. Let me hand that back to the court 15 reporter. Mr. Greenhill, I believe you described for us 16 your work background up there at the Rogue River National 17 Forest. Did you develop any other injuries or conditions 18 that you attribute to your working there? Other than, 19 of course, your underlying problem which we are going to 20 get to here in a minute? 21 "A Yes, I did. 22 "Q Tell us about that. 23 "A My lower left leg developed a rash. A doctor looked 24 at it and prescribed cortisone cream and said that it was 25 eczema. 1 "Q -208- All right. Let me back up and get you to be a little 2 more specific. You mentioned your lower left leg. When you 3 say "lower leg" I take it you mean below the knee, or so? 4 "A Below the knee and to the ankle. 5 "Q Okay, was it that whole part of your leg? 6 "A The outside portion of my left leg. 7 "Q Is that the same area that the Tordon or the herbicide 8 got on your pants leg? 9 "MS. MINTZER: Objection. 10 "A The area that I am speaking of is the area that the II Tordon soaked daily. 12 "Q Okay, what happened to that rash? You say the doctor 13 prescribed cortisone treatment? 14 "A Yeah, and he said that it would probably clear up in a 15 few weeks. It never cleared up, not while I was in Oregon. 16 "Q What kind of symptoms did you have with this rash? 17 "A It was an itching, flaking rash. And it was sort 18 of -- I'd lost some of the feeling under the rash, because 19 I would wake up with blood on my leg, often from scratching 20 it in the night. The itch never went away. 21 "Q 22 "A You say the sensation was diminished? The sensation was diminished in my leg. When I would 23 scratch I could not really feel the intensity of my 24 scratching. When f was awake, I was able to keep from 25 bloodying my leg, but when I was asleep I would often scratch 1401 -209- 1 it in t he n i g h t a n d w a k e u p w i t h b l o o d on m y s h e e t s and my 2 leg. 3 "Q How long did this rash persist? 4 "A Two, maybe three years. 5 "Q Would it clear up and go away, and then maybe 6 reappear? 7 "A It would never completely clear up; it would diminish 8 somewhat in the amount that it itched. But it always 9 itched and it never did clear up at any point. 10 "Q What would you do in the three-month period that you 11 were not working for the Forest Service up there in Oregon? 12 "A The only time that I was unemployed with the Forest 13 Service I cut firewood, both for my own use and for sale. 14 This firewood that I cut was purchased on a timber sale 15 contract from the Forest Service. 16 "Q So it would be wood that was in the national forest? 17 "A Yes, it was. And it was defoliated. 18 "MS. MINTZER: Objection. 19 "Q When you say it was wood in the national forest, let 20 me back up, and I will explain to you by way of clarifica 21 tion, that you are only allowed to answer the question I 22 ask, as opposed to relating the story in a narrative form. 23 "A I see. 24 "Q What kind of wood were you allowed to cut? Just 25 anything? 1402. 1 "A -210- Only dead wood. Only wood that had been killed with i ! 2 herbicide. j 3 "MS. MINTZER: Objection. j 4 "Q How do you know that the wood had been killed with 5 herbicide? 6 "A Because that's how it was sold to me. It was deadened I 7 wood, deadened by herbicide. This is what the contract said. 8 "MS. MINTZER: Objection. 9 "A This is what the contract said. 10 "Q Okay. Could you tell from looking at a tree why 11 it might have died? 12 "A In some instances. If it was killed by the hack and 13 squirt method you could see the hacks. If it was aerial 14 sprayed we weren't able to see anything except that all 15 the leaf-bearing trees were dead. 16 "Q You say you could see the evidence of the hack and 17 squirt. What would that look like? i 18 "A There would be gashes around the tree in a perfect 19 circle. 20 "Q Other than that, how would the tree differ from a 21 plain old living tree? 22 "A It would just be dead and very dry; no leaves on 23 it. 24 "Q And these were the only type of trees that you were 25 allowed to cut was the dead trees? 1403 IH a 7 1 "A Yes, it was, standing dead timber. -211- 2 "Q You mentioned aerial spraying. Were you ever involved 3 in aerial spray, by the way? 4 "A The only time that I was ever involved with aerial 5 spraying I was with a man named Jeff Lever, and he was 6 flagging in the helicopter to do the spraying. 7 "Q Were you an official part of that operation, or did 8 you just happen to be in the same area? 9 "A I was a part of his crew that day. 10 "Q What was your task? 11 "A To do whatever I was asked. We were defoliating 12 timber, and we were just pulled in to guide the helicopter 13 into an area. 14 "Q So I take it there was a certain area they wanted 15 sprayed, and they couldn't tell that as readily from the 16 air as from the ground? 17 "A Yes. We were supposed to be protecting creeks. 18 "Q Do you know what they were spraying on that occasion? 19 "A No. I heard rumors, but I don't know personally. 20 "Q Okay, you can't -- as you sit here today, tell us from 21 your own personal knowledge what it was? 22 "A No, I can't. 23 "Q Tell us about your proximity to the spraying operation, 24 where you were standing? 25 "A I was near enough to where when the herbicide was 1404 -212- : ] dropped from the helicopter I could feel a spray or a mist. i 2 "Q 3 "A Did it have an odor? Yes, it did. ! I 4 "Q Did you recognize the odor? 5 "A Not actually, no. 6 "Q How long a process was this? Was it just one load 7 or was it over a period of several weeks? Tell us about i i i j i 8 it. 9 "A It was one day for, I believe, two loads, to the best 10 of my recollection. 11 "Q How much of the day would that have consumed? If i i j 12 you can recall. ! 13 "A An hour and a half. 14 "Q Was that your only direct experience with aerial 15 spray? 16 "A Yes, it is. 17 "Q Other than that you simply cut timber in an area 18 that you believe may have been aerially sprayed? 19 "A Yes. 20 "Q You stated that the defoliated -- the standing dead 21 wood that you would cut, you would use some of that for 22 your own use? 23 "A Yes, I burnedfirewood entirely for my heat. 24 "Q That was theonly kind of heatyou had in your house? 25 "A Yes, sir. 1405 V -IH 3 -1 ] "Q I take it on the basis of what you just said, -214- 2 you didn't do anything like hack and squirt in Arkansas? 3 "A I didn't do any hack and squirt in Arkansas. 4 "Q Did you do any kind of chemical deforestation? 5 "A No, I did not. 6 "Q Did you use herbicides, insecticides, pesticides or o 7 chemicals in your job duties as a forest service agent? 8 "A No, I did not. 9 "Q So is it a fair statement, and correct me if I'm 10 wrong, that the last time you did that was when you 11 were in Oregon? 12 "A That's true. 13 "Q Were you exposed in areas where herbicides or 14 other similar chemicals were used while in Arkansas? 15 "MS. MINTZER: Objection. 16 "MR. MILLER: On what basis? Leading? 17 "MS. MINTZER: The question is to his knowledge, 18 wasn't it? i i 19 "MR. MILLER: Yes. 20 "Q If you know, tell us if you were in any of those areas. 21 "A When I came to the Ozark National Forest they weren't 22 currently storing or using chemicals on my district, or 23 herbicides. I was, however, in and out of a building which 24 had been previously used to store chemicals, and I did come 25 in contact with equipment that was used in the Ozark 1406 P-H 3o -215- | 1 National Forest to defoliate timber. I cleaned and i I 2 maintained some of that equipment during my stay. i 3 "Q Did the room or that equipment have a noticeable 4 odor? 5 "A No. 6 "Q I believe you alsosustained an on-the-job injury 7 in this hitch with the Forest Service here in Arkansas? 8 "A Yes, I did. 9 "Q Tell us about that, if youwould. 10 "A We were working planting trees, and as I went to clear 11 some debris away with my foot, I slipped and fell on my rear 12 end. The ground was snow-covered at the time. j i j 13 "Q j It was snow covered. I take it it was in the winter 14 months? IS "A Yes. 16 "Q When you first fell out there in the forest, what 17 happened? 18 "A I fell in the forest, and when I tried to get up I 19 experienced a great deal of pain. 20 "Q Where was that pain? 21 "A In m y lower right-hand side of my back. 22 "Q Okay, now where was the injury that you sustained 23 up in Oregon? 24 "A Just below my left shoulder. I called my shoulder; 25 it was just slightly below it. 1407 P-*4 3) 1 "Q We were briefly interrupted there, Mr. Greenhill, if 2 I can try to place us back in the line of questioning, 3 I believe you just told us that the pain with this second 4 injury was in your, and correct me if I'm wrong, lower 5 right back? 6 "A Yes, sir. 7 "Q And the other one in Oregon was where? 8 "A My left shoulder. 9 "Q Were the two kinds of pain you felt the same type 10 of pain? 11 "A No, sir. 12 "Q Describe the difference for us as best youcan. 13 "A The pain in the leftshoulder was only when I 14 attempted to use it. And it was, as best I can recall, 15 a rather sharp pain when I would attempt to use it. The 16 pain in my lower right side was there continuously, and 17 it was more on the order of heartbeat type of a sharp pain. 18 "Q More of a throbbing? 19 "A Yes. 20 "Q Let me ask you this. I may not have asked it pre 21 viously, and if I didn't I intended to. The injury you 22 sustained in Oregon to your -- I believe you said your back, 23 below the left shoulder? 24 "A Yes, sir. 25 "Q You stated you went to the doctor and had some P-W32- 1 treatment? 2 "A Yes, sir. -217- 3 "Q Did that clearup and go away? 4 "A Yes, it did. 5 "Q Did it ever bother you again? 6 "A No, it did not. 7 "Q Did it ever hamper your ability to earn a living for 8 you and your family? 9 "A No, it did not. 10 "Q Let's now concentrate on the second injury here in II Arkansas, to the lower right-hand part of your back. Did 12 you continue to work that day? 13 "A Yes. 14 "Q When did you first seek medical attention? 15 " A Excuse me. I did not continue, I stayed on the job 16 because I was the only one on the job besides the boss that 17 had a driver's license for the government vehicle. And I 18 was in charge of the vehicle. At the end of the shift, 19 at the end of that day's work, I wasn't able to drive the 20 vehicle. I had to request one of the others to drive it in. 21 "Q Okay. When you went to the doctor tell us what 22 happened, what they found. 23 "A I went to the doctor the following morning in 24 Russellville, Arkansas, Dr. Teeter, and he told me that I 25 was suffering from a badly bruised or strained muscle in my P-1H43039 1 lower back. I believe he said lumbar region. - 218- : : i 2 "Q 3 "A Did that clear itself up? No, it didn't. The pain increased. \ j\ i 4 "Q What kind of treatment did Dr. Teeter give you after 5 it didn't clear up? 6 "A Dr. Teeter prescribed some muscle relaxers and 7 aspirin, and total rest. 8 "Q What kind of doctor is Dr. Teeter? i 9 "A Dr. Teeter is a family practice physician. 10 "Q Was he your family doctor? 11 "A No, he wasn't. I didn't have a family doctor; we 12 hadn't had any need for one. 13 "Q How did you come by Dr. Teeter? ! i 14 "A We just looked in the phone book for a doctor in 15 Russellville. 16 "Q Did Dr. Teeter continue to treat you with muscle 17 relaxants and aspirin? 18 "A For a period of time, which I believe was approximately 19 two to three months, at which time he referred me to Dr. 20 Kolb, an orthopedic surgeon. 21 "Q Where is Dr. Kolb located? 22 "A Dr. Kolb is also in Russellville, Arkansas. 23 "Q Okay, what did Dr. Kolb find? 24 "A Dr. Kolb at first found nothing different than Dr. 25 Teeter, and he concurred with his diagnosis. 1410 V'-Uzy -219- 1 When the pain continued beyond the two weeks that he 2 expected it to, he ran additional x-rays at which time 3 he told me I had arthritis in my spine. 4 "Q This was over a course of how long, from the time 5 of the injury? 6 "A This was probably about a five months interval. 7 "Q Were you off work completely? Were you working 8 sometime, or would you intermittently miss work? What 9 was the status of that? 10 "A My temporary assignment had run out. I missed some 11 work prior to it running out, and I was on light, light duty 12 for some time before. 13 "Q I believe before 1 interrupted you, you were still 14 under the care of the orthopedic doctor? 15 "A Yes. 16 "Q What was his name again? 17 " A Dr. Kolb. 18 "0 Is that C-o-b-b? 19 "A K-o-l-b. 20 "Q And you just told us the extra tests that he had 21 run determined that you had some kind of spinal arthritis? 22 "A Yes, sir. 23 "Q Okay, did that diagnosis everchange? 24 "A Yes. 25 "Q What else did they find, andwhen did they find it? 1411 A . jl. : I "A - 220- | They put me in the hospital, I believe, June 3, I l 2 and treated me for the spine condition while they were : 3 running tests. 4 "Q You say June 3. What year was this? 5 "A I believe that would be '79. 6 "Q Go ahead. What did they find when they ran those 7 additional tests? 8 "A When they ran the additional tests, including a 9 bone scan, they said that I had deterioration of the 10 spine, which was a common problem for older people. And 11 that had he looked at my x-rays and not known me as an 12 individual, he would assume that I was about 65 years old j 13 and worked hard all my life. | 14 "Q Did they discharge you from the hospital? 15 "A No. Just as he was telling me this information, 16 I mentioned to him a lump or a swelling on the left side 17 of my neck that had come up during the time that he was i1 18 treating me. 19 "Q Okay, did they examine that lump or swelling on 20 the left side of your neck? 21 "A As soon as he examined the lump he told me that it 22 was a lymph node and that it needed to be biopsied right 23 away. 24 "Q Did they do that? 25 "A The next morning I went into surgery and they removed 1412 D-HSi -221- j 1 the :lymph node which they determined was malignant lymphoma. 2 "Q Now this was around I believe it was June, 1979? j 3 "A Yes, sir. 4 "Q In time could you locate that in contrast to when 5 it was you used the Tordon 101? 6 "M S . MINTZER: Objection. 7 "MR. MILLER: What is your objection? 8 "MS. MINTZER: Sorry. 9 "Q Answer the question. 10 "A I would estimate it was about two years. 11 "Q Two years later that this was diagnosed? 12 "A Yes. 13 "Q Other than cancer in your lymph node, did they ever 14 come up with any more concrete or more specific diagnosis? 15 "A Yes, specifically I was diagnosed as Hodgkin's 16 type lymphoma, Type B, Stage 4. 17 "Q I'm not going to ask that you go into any detailed 18 description of what that is, because we will be talking to 19 doctors who can, I'm sure, tell us a great deal about it. 20 But generally, what is that, as you understood it? 21 "A As I understand my condition, I have cancer of the 22 lymphatic system, and at the time of this discovery 23 it had spread to other portions of my body. 24 "Q What other portions? 25 "A To my spine, my lowerspine. 1413 P-/V37 1 "Q What course of treatment did you undergo for 2 Hodgkin's disease? -222- 3 "A Initially, I began a regimen of chemotherapy, which 4 is a chemical injection. 5 "Q What did that entail? 6 "A It entailed being injected with chemicals that would 7 destroy cancer cells, and oral medications that I would 8 take for approximately two weeks out of the month. 9 "Q Okay, and again I am not so much interested in the 10 medical details because we are going to be talking to your 11 doctors concerning that. 12 "A Yes. 13 "Q I'm more interested in its effects on you, and what was 14 involved for you. You mentioned injections. How often IS would you have an injection? 16 "A The treatment consisted of aninitial injection, 17 followed a week later with another injection. During this 18 two-week period I would be taking two or three types of 19 oral medications. That's what the treatment consisted of. 20 "O What kind of side effects did it have? And once again, 21 I'm not talking so much in medical terms, just tell me how 22 it affected you. 23 "A I lost a lot of my hair. 24 "Q I take it some of that has since grown back? 25 "A Oh, yes. V -IH -3S -223- ; I "Q It looks like you have a full head of hair as we , 2 sit here today. 3 "A I lost a great deal of my hair at that time, and j I 4 I was nauseated, vomiting, dry heaves and diarrhea. 5 "Q How long would this last? 6 "A For approximately three weeks out of the month. | i i j 7 And that would be approximately one week before I began the 8 next month's treatment. 9 "Q Would the treatment be the same month after month? 10 "A Yes, sir. 11 "Q So each time you took this treatment you would be 12 ill for three weeks, and then relatively better for the 13 final week? ! i 14 "A Yes. IS "Q How long did this go on? 16 "A Approximately five tosix months. 17 "Q During this five to six month period -- (Strike) j ! ! ! 18 Prior to this diagnosis of cancer in June of '79 had your 19 wife worked outside the home? 20 "A Yes, she did. j 21 "Q At some point did she quit working outside the 22 home? 23 "A Yes, she quit. I was injured early in December, 24 and she quit late in December of that same year. 25 "Q How often would you have to go to the doctor in 1415 V -IH 3 J -224- 1 the course of this first five to six months of chemotherapy? 2 "A During the first five to six months I'd say on the 3 average I went once a week. 4 "Q Were you able to drive yourself? 5 "A No. During this time I was confined to bed with 6 pain, on doctor's orders. And the pain would get so 7 intense that I would just have to see the physician to 8 see if there was anything to be done. I was unable to drive 9 because of the severity of the pain, and my wife would drive 10 me to and from. 11 "Q I take it your wife would help take care of you at 12 the house, also? 13 "A Yes. I was supposed to stay flat of my back during 14 a portion of this time. 15 "Q Was your wife supportive throughout this? 16 "A Yes, she was. I suspect that she left work because 17 of my condition, and possibly other reasons. 18 "Q All right, you say you suspect. I take it that means 19 you don't know for sure? 20 "A We've talked about it, and I believe that's it, 21 but I don't know for sure. 22 "Q We'll talk to her on that, then. Who were your 23 doctors during this period of time? 24 "A During that period of time I was firstly with Dr. 25 Teeter and then with Dr. Kolb. And I remained with Dr. Kolb 1416 V -H fo 1 until I began to see Dr. Fecher. -225- 2 "Q I believe Dr. Kolb was the orthopedist. Dr. Fecher, 3 what kind of doctor is he? 4 "A Dr. Fecher is an oncologist, a hematologist- 5 oncologist . 6 "Q As a result of this case I know what an oncologist 7 is, but tell those on the jury what you understand an 8 oncologist to be. 9 "A An oncologist is a doctor that specializes in 10 the cancers, leukemias. 11 "Q Treating of cancer? 12 "A Yes, sir. 13 "Q You say you took this first chemotherapy regimen 14 for a period of five to six months. What did you do after IS that? 16 "A At the end of that period they had to stop my 17 chemotherapy because they suspected it was causing nerve 18 damage, which was causing extreme pain in my legs. 19 "Q What did they try next? 20 "A They next put me on 26 radiation therapy treatments. 21 "Q All right, 26 as a number, asopposed to a name for 22 it? 23 "A Yes. There was 26 treatments, given one right after 24 the other, on a daily basis. 25 "Q Was that in the hospital or as an out-patient? j[^ j 7 V-HHI I "A -226- iI It was done as an out-patient at the oncology-radia- j 2 tion portion of Holt-Krock Clinic. 3 "Q During that month of treatment, 26 days, or whatever 4 it might be, what kind of side effects, if any, did that 5 regimen of treatment have on you? 6 "A I would begin vomiting, at the outset, approximately 7 45 minutes after treatment. At the end I would begin 8 vomiting often before I left the office. I continued 9 vomiting the entire time and lost an enormous amount of 10 weight. I would vomit until I cleared my system, and 11 then I would have dry heaves the rest of the time. 12 "0 When would this vomiting stop? 13 "A It didn't stop until I quit treatments. 14 "Q What about your ability to sleep? Was that 15 affected? 16 "A My ability to sleep was affected due to the nausea, 17 the vomiting, the diarrhea, as well as th fact that I 18 was no longer able to lay flat in bed. From that point 19 to this I am sleeping in a hospital bed, separate from 20 my wife, with the head elevated and the legs and feet 21 elevated. 22 "Q Why is that? 23 "A Because of the damage to my spine. 24 "Q Has the doctor told you this, or is this something 25 that you do for your comfort? ] "A -227- ! This is something that the doctor told me to do. i 2 ! He contacted the Cancer Society and got me a hospital bed. 3 "Q At the end of this 26 days of the second round of 4 treatment, if you will allow me to call it that, why was 5 that terminated? 6 "A I completed the regimen at that time. 7 "Q What did the doctors say about your condition at 8 that time? 9 "A They really didn't tell me very much about my 10 condition at that time. There were no follow-up x-rays, ' i 11 but they assumed that the cancer was gone, and I was in 12 100 percent remission. 13 "Q Does that mean that you are cured for life? j 14 "A ! No, sir, remission means that they can -- at that point, 15 find no cancer in your body, although they are relatively 16 certain that it still exists. 1 17 "Q At this point, after that first two rounds of j 18 treatment, how would you describe your mental attitude? 19 "A At the end of the radiation treatment they gave me 20 one more chemotherapy treatment. 21 "Q Was this shortly thereafter? 22 "A Yes, they gave me approximately two or three weeks 23 to recuperate from the prior treatments, and then they put 24 me in, just to make sure, and began another treatment, 25 which required me to spend five days every three weeks i1419 D-W/3 1 the. hospital. 2 "Q How long'did that go on? -228- 3 "A One treatment. One three-week period. 4 MQ Okay, the first week or five days, you say, 5 of being in the hospital? 6 "A The first five days I was in the hospital taking 7 injections on a daily basis. 8 "Q Did this have similar side effects? 9 "A They were worse. They were similar but worse. 10 "Q Tell us about it. 11 "A Within about 45 minutes after the injection, I began 12 vomiting and I would vomit almost to the minute, eight hours. 13 During that time, of course, I would clear my system of any 14 food that I might have had in it and dry heaves would result. IS I also had diarrhea sporadically. 16 "Q Okay, within that eight-hour period how often would 17 you vomit? 18 "A Every three to five minutes. 19 "Q I believe you said this cycle of therapy, where you 20 would vomit every, three to five minutes for approximately 21 eight hours, was five days duration? 22 "A Yes, sir. 23 "0 What did they do in the remaining period of that 24 three-week period of the regimen? 25 "A After that period I would go home for a week, at 1420 1 "Q -213- I Would it burn as any normal wood would? Could 2 you tell a difference? 3 "MS. MINTZER: Objection. i 4 "A The firewood would -- 5 "MR. MILLER: What is your objection? 6 "MS. MINTZER: You are leading the witness. 7 "Q Tell us how the wood would burn, and compare it with 8 other wood if you can. 9 "A I could really tell no difference in how it burned. 10 "Q How long were you there at the U. S. Forest Service 11 there in Oregon? 12 "A Two, possibly three seasons. j 13 "Q Where did you go after that? 14 "A I came to the Ozark National Forest, Pleasant Hill IS District, in Clarksville, Arkansas. 16 "Q Okay, what was the reason for that move? i 17 "A I moved to Arkansas to be closer to my family core, 18 which was in Alabama at this time. Although I could 19 have moved to Alabama, this area was more suitable. 20 "Q What were your duties with the forestry service 21 here in Arkansas? 22 "A I was a forestry aid, which meant I did a variety, 23 including planting trees, although I never killed any 24 timber in this area other than with a chain saw. A lot of j 25 my duties involved thinning timber, surveying. 1421 -229- 1 which time I would come back to Dr. Fecher's office and have 2 an injection as an out-patient, which would again make me 3 nauseated for a period of approximately eight hours. I 4 would usually begin vomiting before I left his office, and 5 I had to make a 60 mile trek to my home, which I had to 6 continually stop, or carry something to vomit in. 7 "Q After this first three rounds of treatment did they 8 start something else immediately, or was there a break, 9 so to speak? 10 "A No, I had a break. 11 "Q Okay, let me stop there and ask why that happened? 12 "A They assumed that I was in total remission at that 13 point. 14 "Q How would you describe your mental attitude at IS the end of that first -- 16 "A At the end of that three-week period, I was depressed 17 and weakened to a point to where I felt that the quality 18 of life was deteriorating at such a pace that I did not 19 wish to continue treatments, and, in fact, had discussed 20 whether suicide would be rational. 21 "Q Who did you discuss this with? 22 "A I believe I discussed it with my doctor and my family. 23 "Q Did you ever reach a resolution as to whether, in 24 your own mind, life at this rate was worth it? 25 "A Let me say that at that point in time I determined 1422 -230- | 1 that it was not. Dr. Fecher felt that probably my cancer 2 was gone, so he stopped treatments. 3 "Q Did your condition, or your life, improve when that 4 treatment was stopped? 5 "A When the treatment was stopped I felt as if I had 6 licked it; I thought I had the battle won, and I immediately 7 began trying to get back into a health state. My nausea 8 disappeared to a great extent. I retained some of it, and 9 some other side effects, like dizziness and joint Dains. 10 "Q What about your back pain? 11 "A The back pain continued and still continues. Ii l 12 "Q How often would you have the back pain? Would it be a I 13 once a week, once a month, kind of occurrence, or would it I 14 be more often? IS "A The back was every day. 16 "Q Were you prescribed any drugs to help alleviate the 17 effect of that pain? 18 "A Yes, I was. I was prescribed Percodan. Excuse me, 19 initially it was Tylox, which is a similar drug. 20 "Q And then it was Percodan? 21 "A Yes. 22 "Q How often would you take these pain relievers? 23 "A They were prescribed every three hours -- two, 24 initially every three hours as needed for pain. At this 25 point in time? 142^ 1 "Q Certainly. -231- 2 "A I take four to five tablets a day. 3 "Q Does that make the pain completely vanish? 4 "A No. 5 "Q What effect does it have? 6 "A I am taking Percodan now, and it makes the pain 7 tolerable, and sometimes a little better than that. Some 8 times not that well. The Percodan on its own won't get rid 9 of the pain. It is necessary for me to get in a semi-reclini n 10 position, which I have described. 11 "Q You've described for us the first three rounds of 12 your treatment, in a process where -- at the end of that, 13 you stopped having the chemotherapy and the side effects 14 disappeared to a large extent. What was the next medical 15 treatment you received, other than follow-up visits? 16 "A Approximately three months later the cancer recurred. 17 "Q Where did it recur? 18 "A The only place they located it was in my lymph nodes 19 in my neck. 20 "Q What did they do for you then? 21 "A After they biopsied the lymph nodes they gave me 22 chemotherapy treatments. 23 "Q For how long? 24 "A I believe about three to four months. I really can't 25 pin it down any closer than that. 1424 D-J W 1 "Q -232- Did you experience any side effects in this fourth 2 round of treatment? 3 "A Once again I was nauseated during the majority of 4 the time. I vomited, had dry heaves and diarrhea, loss 5 of sleep, nervousness. 6 "Q Would that be a once a week kind of occasion? 7 "A It would last forapproximately three weeks. 8 "Q Every day? 9 "A Every day. 10 "Q At the end ofthis three tofour-week treatment 11 regimen what happened? 12 "A I began having leg pains to a point that they were 13 having to eliminate drugs that were involved in the 14 treatment, which by the time this came about they stopped IS giving me the chemotherapy because my blood would not recover. 16 The blood count would stay low, and they weren't able to 17 treat me. And he said that he couldn't remove anymore of the 18 drugs that were in the treatment. Otherwise, we would be 19 wasting our time with the treatment, and I would just have 20 to deal with the pain. They were unable to get me out of 21 the pain with my legs. 22 "Q So I take it they discontinued that treatment? 23 "A They discontinued the treatment because of my blood 24 problems. 25 "Q Did they start up another one at that time? 1425 ] "A At that time I began taking radiation. -233- 2 "Q Did that cause any side effects? 3 "A Yes. The radiation I took at that time was in the 4 upper portion of my body to my lower chin, from about here 5 to here. I lost my voice almost entirely; I was not able 6 to swallow solid foods for a period of time during and 7 after the treatment. I had a full beard at this time. I 8 lost all of the hair on my face below my chin; I still had 9 difficulty swallowing; my mouth becomes dry and I have to 10 have liquids to facilitate swallowing. 11 "Q I take it you had not had that problem before the 12 treatment? 13 "A No, I had not. I also lost about 40 pounds during 14 this treatment. IS "Q Was Dr. Fecher again your doctor? 16 "A Dr. Broadwater and Dr. Erickson and Dr. Miller were 17 the radiation doctors. Dr. Fecher was still my doctor, 18 but they were the doctors that were in charge of my 19 treatment once it became radiation. 20 "0 In other words, Dr.Fecherreferred you to them? 21 "A Yes. 22 "Q Does Dr. Fecher remain your doctortoday? 23 "A Yes,he does. 24 "Q How many bouts -- rather, how many instances of 25 therapy have you had, total? If you know. 1426 P-I4SO 1 "A -234- If you count the different types, including the 2 radiation, I have had, I believe, five to this point. 3 "Q At any point during the last six years, five years, 4 that you've been undergoing these treatments, have you ever 5 been what a normal person would consider well? 6 "A No, I have not. 7 "Q What problems do you have day in and day out, 8 irrespective of whether you're having a flare-up or 9 recurrence of the cancer? 10 "A I have daily pain, regardless of what I do. The 11 pain is affected by what I do, of course. It limits my 12 activities, my physical activities, extremely. I used to 13 hunt and fish, hike, backpack. I can't do any of those 14 activities any longer. I'm not able to stand on my legs 15 long enough because of the back pain. I still suffer from 16 nausea somewhat; loss of appetite, loss of sleep. I 17 mentioned that I no longer share the same bed with my wife 18 because of my physical condition. 19 "Q Let me ask you how this has affected your relationship 20 with your family? How has it affected your relationship 21 with your children? Let's take them one at a time. 22 "A My youngest son was probably affected stronger than 23 anyone. 24 "Q 25 "A How young was he when you were diagnosed? He was about six, maybe seven, when I started. 1 "Q -235- At each stage of your medical care have you been honest 2 with your children about the seriousness of your problem? 3 "A We decided from the onset that the best way to deal 4 with it was to be honest with ourselves and everyone involvec. 5 And certainly my children were involved. Yes. 6 "Q How has it affected your relationship with your 7 youngest son? S "A My youngest son is preoccupied with my condition to a 9 great extent. He will very rarely mention it to anyone 10 outside the family, but he continually questions me about 11 how I'm feeling, if I'm hurting. He wants details. He 12 wants to know how bad I'm hurting, and what I can do. And 13 he is also afraid to leave me on my own. 14 "Q Do you know why he is afraid to leave you? 15 "A He is afraid that I might die when he is not there. 16 "Q What about your older son? Your natural son. 17 "A My natural son was living in Oregon, although he 18 came on regular summer visits and spent the entire summer. 19 The first year that I was taking treatments Jimmy came and 20 stayed for the three-month time, and during which time I 21 was taking treatments. 22 "Q Once again, were you open with him about the gravity 23 of your condition? 24 "A Yes, I was. It hurt me. It hurt me emotionally that 25 a condition that I had and that I had no control over 1423 V-1M 5 1 could hurt my family in such a way. i -236- ; : 2 "Q At some point did your son come to live with you 3 full- time? 4 "A Yes, a little over a year ago he began living with 5 "Q 6 "A So he has lived with you since then? Yes, sir. 7 "Q 8 "A How old is he? He is seventeen. 9 "Q How has this affected your relationship with your 10 wife? 11 "A My wife has been very nervous and depressed since 12 this time. She is very supportive. We haven't really 13 experienced any marital problems because of it. We may 14 have been drawn closer, although I do express some concern IS that at some point she may become tired of caring for a 16 sick man and wish for someone else. 17 "Q Is that something you all have discussed? 18 "A Yes. 19 "Q Is it something that you are concerned about? 20 "A It is something that I feel I shouldn't be concerned 21 about, but I am. 22 "Q What is a typical day in the Greenhill home like? 23 "A As far as I'm concerned, I get up out of my hospital 24 bed and I move to my recliner. 25 "Q What time do you get up, usually? 1429 P- H53 I 1 "A , Six-thirty. 2 "Q Have you always been an early riser? -237- 3 "A I've always been an early riser, and my son goes to 4 school at 7:00 o'clock in the morning, and I get up to 5 visit with him in the morning. 6 "Q What happens after that? 7 "A After that, I wait until my wife takes care of the 8 chores. 9 "Q What kind of chores are you able to do? 10 "A Virtually none. I can't put my finger on one H chore that I'm able to do on a consistent basis. 12 Occasionally I may be able to help pick up a little bit, 13 but not on a regular basis. 14 "Q Are you able to help with the grocery shopping or 15 anything? 16 "A I like to go with my wife when she does groceries, 17 although I most often end up laying down in the car. I have 18 recliner seats in the car, because I'm not able to spend an 19 hour walking around in a grocery store due to my back pain. 20 "Q How often do you go grocery shopping with your wife? 21 "A 22 "Q Once a month. Is that something you look forward to? 23 "A An outing of any type I look forward to, and I 24 enjoy coming to town, certainly. 25 "Q What happens after you get up and your wife has v -n sif 1 finished the chores? -238- 2 "A After chores she brings me breakfast. Most days I 3 eat breakfast in my recliner. 4 "Q Why is that? S "A Due to back pain. I can sit at a regular chair or 6 table if I'm taking medication, but I generally end up 7 being in pain because of it. So therefore, I just generally 8 sit in my chair. 9 "Q After your breakfast what do you do? 10 "A I generally sit in my chair and read or watch TV. 11 "Q How long do you do that? 12 "A Most of the day. I very rarely do anything else. 13 "Q Do you feel like doing anything else? 14 "A No, I don't. 15 "Q Do you ever feel better and feel good enough to get 16 out and do a little something? 17 "A Occasionally I am able to get out and make a visit, 18 go to town, ride in the car -- simple things. And whenever 19 I feel at all able to I do. 20 "Q What time do you usually end up going to bed? 21 "A Approximately 9:00 o'clock. 22 "Q You mentioned that you read in your spare time. 23 "A Yes. 24 "Q What sort of thing do you read? 25 "A Novels and magazines, primarily. 1431 v -hss I "Q -239- How has this cancer affected your relationship with 2 your friends and acquaintances? 3 "A It has had a great deal of effect on my friends. I 4 live rurally, and in my area one of the major forms of 5 recreation is we call it neighboring, visiting with your 6 neighbors. I am very rarely able to visit my neighbors any 7 longer because I have to have a recliner to sit in. And 8 the neighbors don't particularly like to come anymore because 9 they witnessed me during the times when I was sickest, and 10 they don't really know whether I feel like company, and it 11 puts them in an awkward position, so they just don't come. 12 "Q Before the onset of your cancer is this something that 13 you would do fairly frequently? 14 "A Yes. IS "Q When you say rural, I guess different people have 16 different ideas. How rural an area do you live in? 17 "A I live approximately 20 miles by dirt road to the 18 nearest town, which is Ozark, Arkansas. The immediate area 19 that I live in, the community that I live in, has probably 20 15 homes, with the average home being situated on 40 acres. 21 And it is surrounded by national forest. 22 "Q So I take it not many people pass your house on the 23 way to town? 24 "A I live a half a mile back into the woods from the main 25 dirt road, and I don't see any traffic. 1432 -240- ! ] "MR. MILLER: Let's take a short break. j i 2 "Q Mr. Greenhill, once again we have taken a short break 3 so everyone could get up to stretch their legs. When is 4 the last time you saw a doctor, or your doctor? 5 "A Last Friday the 13th. 6 "Q Okay, which doctor was that that you saw then? 7 "A Dr. Fecher was gone and there was a doctor standing 8 in, and I believe Dr. Malony was his name. 9 "Q Some associate of Dr. Fecher's? 10 "A Yes. II "Q Was this a routine check-up, or was therea specific 12 problem that brought you in to the doctor? 13 "A It was both. I have a routine monthly check-up, and 14 during the last several months I had noticed some problems 15 and they had been running some tests. This particular 16 visit I was to get all the information from the tests that 17 they had been running. 18 "Q The tests, I gather, had been taken over the several 19 prior weeks or a month or two? 20 "A Yes. 21 "Q And once again, I don't want to get into too much 22 medical knowledge because, first of all, you're not a doctor 23 and, secondly, there are other sources of information. But 24 generally, what sorts of tests were they? 25 "A I had a bone scan, I had a CT scan of my liver, O1-4i3f357 -241- 1 I had x-rays of my skull and x-rays of my spine on three or 2 four views, and a chest x-ray. 3 "Q What do you understand the purpose of these monthly 4 visits to be, and the tests? 5 "A The monthly visits are designed to diagnose cancer 6 at its earliest onset so that treatments can begin. 7 "Q This last visit, when you got the news of all the 8 tests, was the news good or bad? 9 "A The news was bad. 10 "Q Tell us about it. 11 "A The CT scan had revealed that the cancer was present 12 in my liver in three locations. 13 "Q Was this the first time you've had cancer in your 14 liver? 15 "A Yes, it is. 16 "Q Have the doctors givenyou any indication as to 17 what the future might hold? 18 "A They say thatthe condition is terminal, although 19 they haven't given me any numbers. They hold out high hopes 20 that I will have a meaningful remission at the end of 21 treatment. 22 "Q When you say "terminal" that means it is going to 23 kill you? 24 "A Yes, sir. 143425 "Q How long have you been living with the knowledge that 1 you are a dying man? -242- 2 "A Since last Friday, for certain; before that it was 3 a good probability, for the last six years. 4 "Q You say they have held out -- I believe the words you 5 used was high hopes for a remission and meaningful life? 6 "A Yes. 7 "Q Did they placeany percentages on that? 8 " A No, they didn't really place any numbers on that. 9 "Q Are you scheduled to begin treatment for this 10 condition shortly? II "A Yes, just after the first of the year. 12 "Q What kind of treatment do you understand that it 13 will be? 14 "A The treatment that they have proposed is the one 15 that I was ready to quit treatment with, where I spent 16 five days in the hospital, and I'm apprehensive about it. 17 "Q Was this the one where you were nauseous for eight 18 hours afterwards? 19 "A Yes, it is. 20 "Q They told you it was going to be the same treatment? 21 "A The same treatment, yes, sir. 22 "Q As you sit here today, what plans do you have for 23 the future? 24 "A All through this disease it has been difficult to 25 make long-range plans. At this point it is probably more so. 1435 -243- I Right now the only thing that I can say is that I am going 2 to attempt to take the full course of treatments, and just 3 try to make it through until next summer when I get finished 4 with them. S "Q Have you, since this most recent diagnosis, considered 6 taking your own life again? 7 "A At this point I haven't actively considered it, 8 although it is in the back of my mind at this time. 9 "O But right now what is your goal? 10 "A Right now my goal is to do my best to take these 11 treatments and try to beat it again, and live until next 12 summer when I am able to feel like myself again. 13 "Q I may be asking the obvious, but have you worked 14 outside the home any since your diagnosis of cancer? 15 "A No, I haven't. 16 "Q Have you sought employment? 17 "A No, I haven't. 18 "Q Do you feel that you are able to do a full day's 19 work? 20 "A No, I'm not. 21 "Q Do you know any work that pays any amount of money 22 that you are able to do? 23 "A No, I do not. 24 "Q What plans dia you have with regard to work in the 25 future? Had you planned to work for a long time, or retire 1436 V- !4ko 1 early, or what? -244- 2 "A I planned to work until retirement age or until I 3 didn't need the money any longer. Certainly, I had dreams 4 like everybody else. 5 "Q 6 "A What were some of those dreams? Some of those dreams? A few weeks before I was 7 injured I bought some property. I bought 15 acres of mountai 8 property and planned to build a log house myself upon the 9 property. 10 "Q Did that dream become a reality? 11 "A Somewhat. I am living in an unfinished log house at 12 this time. My neighbors pitched in and we had, I guess, 13 an old fashioned house raising. I wasn't able to do much 14 of the work, but the ones that could did. 15 "Q Thank you, Mr. Greenhill. For the record, I believe, 16 and it may have been on the record previously, you have 17 agreed to compile a list of all doctors or other health 18 care providers, hospitals, or anything of that nature, 19 that you can remember being treated by at anytime in your 20 life, is that correct? 21 "A Yes, sir. 22 "Q All right. And you will furnish that list to Mr. 23 Jones as quick as you can put that together? 24 "A Yes, I will. 25 "Q All right, and we will forward it to all other counsel. 1437 .- -2 4 5 - I "MR. MILLER: On the record, do we agree that 2 the signature on this deposition could be before any Notary? 3 "MS. MINTZER: Yes. 4 "MR. MILLER: Okay, and if for any reason it is 5 not signed at the time of trial or hearing, as it may be 6 needed, it can be used without a signature? Is that the 7 agreement? 8 "MS. MINTZER: I have no trouble with that. 9 10 time. "MR. MILLER: Okay, that's all I have at this II "MS. MINTZER: I am going to forego the opportunity 12 to cross-examine at this time, until we are able to 13 complete our discovery and we can resume the deposition 14 at that time. IS "MR. MILLER: I thought of something I need to 16 ask. Let's go back on the record. 17 "Q Mr. Greenhill, from your testimony it is obvious 18 that you have undergone a great deal in the way of medical 19 care. Is that correct? 20 "A Yes, it is. 21 "Q Do you happen to know, or are you able to give us 22 a ballpark figure as to what your medical expenses in 23 connection with your cancer are at this time? 24 "A I'm sorry that I can't give you a dollar figure. I 25 know it is tremendous. 1438 I "Q -246- By tremendous, can you say over "X" number of dollars, 2 or in the neighborhood of such and such? 3 "A I'm sure it is in the neighborhood of $100,000.00 4 at this point. 5 "MR. MILLER: That's all I have." 6 (Video deposition completed at 3:37 p.m.) 7 THE COURT: Ladies and gentlemen, as I indicated 8 earlier today, we are going to quit at three o 'clock -- we 9 are going to quit a thirty-thirty. Be back in the jury 10 box in the morning at nine o'clock. You should know no 11 more about this case at nine o'clock in the morning than 12 you know right now. Don't discuss it with each other. I 13 know there is a tendency to want to do that, but don't do 14 it. It's not time for that yet. Don't allow anyone to IS discuss it with you. Don't look at it on television, if 16 it happened to be there; I don't think it will be. But 17 if you see something that deals with anything like this 18 case, don't look at it. Turn it off. You will not see 19 anything in the newspaper, I am sure, but if you do don't 20 read it. If anyone tries to discuss this case with you, 21 on a direct basis or an indirect basis, through somebody 22 else, contact me immediately. I don't think that is going 23 to happen, but just on the safe side. 24 So, I am going to excuse you now, and be back in 25 the jury box in the morning at nine o'clock. And we stand 1439 D'N3 1 in recess until nine o'clock tomorrow. 2 (Proceedings concluded at 3:40 p.m.) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -247- 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE EASTERN DISTRICT OF TEXAS 3 4i -248- \ 5 6 REPORTER'S CERTIFICATE 7 8 I certify that the foregoing is a correct 9 transcript of the record of proceedings in the above10 entitled matter. 11 12 January 18, 1988 13 14 15 16 17 18 19 20 21 22 23 24 25 1441 D-N&S 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS 2 MARSHALL DIVISION 3 4 ANN I. GREENHILL, Individually and on 5 Behalf of the Heirs of the Estate of James 6 Edward Greenhill, Deceased, 7 Plaintiff, 8 VS. 9 DOW CHEMICAL COMPANY, 10 Defendant. 11 0 0 0 & 0 0 NO. M-79-79-CA 0 Marshall, Texas December 1, 1987 9:00 A.M. 0 0 12 13 TRANSCRIPT OF TRIAL PROCEEDINGS 14 BEFORE THE HONORABLE SAM B. HALL, JR., UNITED STATES DISTRICT JUDGE, 15 AND A JURY. 16 VOLUME 2 of 3 17 APPEARANCES: 18 FOR THE PLAINTIFF: 19 20 21 22 23 BALDWIN k BALDWIN By: Mr. Scott Baldwin, Sr. Mr. Scott Baldwin, Jr. Mr. Gill Gillam P.O. Drawer 1349 Marshall, Texas 75G71 MR. ROBERT L. JONES III Attorney at Law P.O. Box 2023 Ft. Smith, Arkansas 72902 24 (Continued:) 25 O fficial C ourt R eporter U .S. District C ourt - Eastern D istrict of T exas 1442 5 00 STATELINE AVENUE ROOM 309 TEXARKANA. TEXAS 75501 OFFICE: 2 1 4 /7 9 4 -4 0 6 7 HOME: 214/838-4160 D-y/tc, 1 APPEARANCES CONTINUED: 2 FOR THE DEFENDANT: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 1- RIVKIN, RADLER, DUNNE k BAYH By: Mr. Joseph J. Ortego Mr. Josh Kardisch EAB Plaza Uniondale, New York 11556-0111 RAMEY, FLOCK, HUTCHINS, JEFFUS, CRAWFORD k HARPER, P.C. By: Mr. Alan Brown P.O. Box 629 Tyler, Texas 75710 * MR. MICHAEL A. MAKULSKI Attorney at Law The Dow Chemical Company Washington Street Bldg. Midland, Michigan 48640 i ! ! l I j 0 - ini 1 2 WITNESSES FOR THE PLAINTIFF: 3 INDEX -li- DIRECT: CROSS: REDIRECT: RECROSS 4 DR. DANIEL T. TEITELBAUM 10 123 227 232 5 6 7 8 DEFENDANT'S MOTION RE: TESTIMONY OF DR. TEITELBAUM.: 2 9 PLAINTIFFS' RESPONSE: 5 OVERRULED: 6 10 PLAINTIFF RESTS: 233 11 DEFENDANT'S MOTION RE: TESTIMONY OF DR. TEITELBAUM 234 - 241 12 DEFENDANT'S MOTION FOR DIRECTED VERDICT: 241 13 PLAINTIFFS' RESPONSE: 242 14 DEFENDANT'S RESPONSE: 245 15 OVERRULED: 246 16 DEFENDANT'S MOTION RE: PUNITIVE DAMAGES: 241 17 PLAINTIFFS' RESPONSE: 244 18 GRANTED: 246 19 20 21 22 23 24 25 Q 'lH ( o -- ii i-- 1 EXHIBITS 2 FOR THE PLAINTIFFS: O F F E R E D : ADMITTED 3 No. 1 a Pathology Report of Mr. Greenhill made by A. S. Koenig, 6-14-79 40 41 4 No. 1 b Letter to James Butler from 5 A. S. Koenig, 6-26-79 42 42 6 No. 1 c Report of tissue diagnosis of Mr. Greenhill by A. S. Koenig, 7 6-29-79 42 42 * 8 No. 1 d Report from Denver Clinic, *5-31-87 45 45 9 No. 1 e Report of Mr. Greenhill's tissue 10 from Dr. D. T. Teitelbaum, 6-12-84 47 47 11 No. 1 f Report from Dr. T. W. Morgan to 12 Dr. D. T. Teitelbaum, 6-5-87 50 51 13 No. 1 g Pathology Report of 7-7-80 of Dr. R. G. Gerkin re: Mr. Greenhill 50 51 14 No. 3 Remainder of Mr. Greenhill's 15 personnel records 67 16 No. 3 a Attending Physician's Report by Dr. Dennis Fecher, 7-30-79 7 9 17 No. 3 b Record of Leave Data of Mr. 18 Greenhill, 3-29-78 79 19 No. 3 c Personnel record of Mr. Greenhill, 3-31-78 79 20 No. 3 d Notification of Personnel Action 21 re: Mr. Greenhill, 1-13-79 7 9 22 No. 3 e Application for Temporary Employment of Mr. Greenhill, 23 Jan. '78 79 24 No. 5 Video taped deposition of Mr. Greenhill 67 25 (Continued:) 144.5 ' D-iYfcl - 1v- 1 EXHIBITS CONTINUED: 2 FOR THE PLAINTIFF: OFFERED: ADMITTED 3 No. 19 a R&D Report, Dow Chemical, Organic Chemicals Research 4 Re: 2,4-D 115 115 5 No. 20mm Report of K. J. Olson and K. S. Rao re: 2,4-D 115 115 6 No. 20 u R&D Report, Dow Chemical USA 7 from Toxicology Research Laboratory * 115 115 8 No. 20 x Documents furnished Plaintiff 9 by Dow during discovery 9 10 No. 20 y Documents furnished to Plaintiff by Dow during discovery 9 10 11 No. 30 Mortality Tables; Com. of 12 Standards 1980 9 13 14 15 16 17 18 19 20 21 22 23 24 25 V-H70 -2- December 1, 1987 i 2 (Open court; jury not present.) i }3 THE COURT: Please be seated. Hold the Jury out 1;l 4 until we finish this matter. I believe there has been a ) 5 Motion filed by Dow. You may present your Motion. 1 1 16 MR. ORTEGO: Yes, Your Honor. Judge, I would ask 7 could the witness be excluded who the Motion is about since 8 he is in the courtroom now? I'll be quick. The witness, 1 ! 9 Dr. Teitelbaum, who I am moving is in the courtroom now. 1 10 Could he be excluded? 11 THE COURT: Yes. Doctor, you may go outside, 1! 12 please. i 13 (Witness retiring from the courtroom.) 14 THE COURT: Any other witnesses in the courtroom 1 15 at this time? All right, go ahead. S 16 MR. ORTEGO: Your Honor, Dow Chemical Company has moved to exclude the testimony of the Plaintiff's expert, 1 17 18 Dr. Daniel Teitelbaum, pursuant to Federal Rules of Evidence 19 702, 703 and 403. And the basis for this Motion is that Dr. Teitelbaum is not an expert in any medical area or J1 21 specialty which is relevant to this litigation. His J 2 2 opinions would not assist the Jury in understanding the evidence presented, and should be excluded under the Federal JI 24 Rules of Evidence Rule 703. j 25 ) One of the cases that I would like to point the 1447 -P-N7 / 1 Court to, which I pointed out in my Motion for Summary 2 Judgement, was Viterbo v. Dow which was decided by this 3 Court by Judge Cobb and affirmed by the Fifth Circuit, 4 in which primarily the Fifth Circuit stated that it is a 5 duty of the district court to police the use of experts. 6 And in re: New Orleans Aircraft Case the Fifth Circuit 7 did the same thing previously saying that it's becoming too * 8 easy for experts to come on the witness stands and say 9 something. And in Viterbo the court said basically just 10 because an expert says it's so does not make it necessarily 11 so. 12 And it doesn't go to the. weight of the evidence in 13 this particular case, Your Honor. .Dr. Teitelbaum said he 14 is not a chemist; that 95 percent of all Hodgkin's Disease 15 is idiopathic; no one knows the cause of it. His opinion 16 would be pure speculation and should not go to the jury. 17 And the Rule 703 clearly states forth that the type of data 18 in which an expert must rely upon to render an opinion, 19 Dr. Teitelbaum does not render an opinion on the type of 20 data which experts are allowed to rely upon pursuant to 21 Rule 703. 22 And in the Viterbo case Dr. Johnson was properly 23 qualified' as an expert, but his testimony was excluded in 24 a motion for summary judgement on the grounds that the data 25 he relied upon was not that which is normally relied upon. -4- 1 In the alternative, Your Honor, if you do not 2 preclude Dr. Teitelbaum from testing, even though he admits 3 the cause of Hodgkin's Disease is unknown and cannot state 4 to a reasonable degree of medical probability that 2, 4-D 5 is the proximate cause, what I am asking the Court is to 6 limit his testimony to whatever area you feel he is 7 qualified to. My concern is that I think Dr. Teitelbaum 8 will testify to many things -- chemistry, epidemiological 9 studies, dermatology. I would like him to be limited, 10 because at his deposition he said -- he stated quite clearly 11 that he isn't a chemist; so he should not be allowed to talk 12 about chemistry. He said he is not a dermatologist; he 13 shouldn't be allowed to talk about skin disorders. He said 14 he is not a hematologist; he is not an epidemiologist, and 15 he is not an oncologist, nor is he an expert in occupational 16 and preventive medicine, neurology, psychiatry. 17 What I am concerned about, Your Honor, is that 18 Dr. Teitelbaum will start talking about the internal docu 19 ments of my client, passing judgement on what occupational 20 health is involved, what he would do, what the chemistry 21 of this product is, besides the basic understanding, how 22 the process how the chemical is manufactured. He's just a 23 medical doctor not qualified or certified in any area, and 24 I ask him to be precluded, or in the alternative, his 144925 testimony be limited to specific areas which he can be . 1> 1 -5- ! I 1 qualified to. ) | I| 2 MR. BALDWIN, SR.: Well, Your Honor, I just got a copy \ 3 of that Motion about a minute ago, and all it is is a 4 rehash of the Motion For Summary Judgement which Your Honor | 1 5 has overruled. Rule 704, it is, and not 703. 702 is a 6 rule that covers experts, and it says: | il 1 f 7 i . "If scientific, technical, or other specialized 8 knowledge will assist the trier of fact to understand 9 the evidence or to determine a fact in issue, a witness 10 qualified as an expert by knowledge, skill, experience, 11 training, or education, may testify thereto in the form 12 of an opinion or otherwise." 1 13 Ml Dr. Teitelbaum is a medical doctor. He is a 14 Board certified toxicologist, and he is highly qualified 15 in his field to testify about these matters. Even though \i 16 Mr. Ortego would like to think that this case rises and 17 falls on whether this is Hodgkin's Disease, that's not the 18 fact and certainly not Plaintiff's contention; and I think ^] 19 he is highly qualified as toxicoTojtPst and as a ^nedical^ 20 \doctop/to testify about those matters to which he has skill s 21 and training. J 22 MR. ORTEGO: Just one brief reply, Your Honor. 23 This is not the same as the Motion For Summary Judgement j 24 in that now we are at trial and I am asking for his testimony J 25 to be limited or precluded, and I am not asking for summary 1450 j v -m i s judgement. -6- ! j 2 THE COURT: The Motion is overruled. Call the '1 l > 3 Jury in. Who is your first witness? li 1 MR. BALDWIN, SR.: Dr. Teitelbaum, Your Honor. We have ; ] 5 some documentary, housekeeping matters to take care of. 11 !6 THE COURT: All right. |7 MR. ORTEGO: Judge, I am happy to report that Mr. * Baldwin and I had a discussion and I think we are not going 1 j 9 to have the same trouble we had yesterday with documents. 11 { I We have come to some agreements. There are certain things ij " that I might have problems technically getting in and Mr. 1 Baldwin might have technically getting in, but I think we i 13 have worked out a lot of the problems today. 14 THE COURT: All right. 15 (Jury in at 9:04 a.m.) 1 16 THE COURT: I see you ladies are bringing some heavy coats this morning. If it gets a little bit chilly, i J 18 we will try to get the heat a little bit better regulated. J 19 You might turn it up a little bit, Mr. Lee. It's a little l 20 bit chilly in here this morning. 1 J 21 Let's proceed. ! 22 MR. BALDWIN, JR.: Your Honor, at this time Plaintiffs would offer Plaintiff's Exhibit No. 5, the videotaped i I 24 deposition of Mr. James Greenhill. | 1 25 THE COURT: What number? 1451 V -H % 1 MR. BALDWIN, JR.: No. 5 -7- 2 THE COURT: All right. 3 MR. ORTEGO: No objection, Your Honor. 4 THE COURT: It will be admitted. 5 MR. BALDWIN, JR.: Your Honor, we would next like 6 to offer Plaintiff's Exhibit 3 A, 3 B, 3 C, 3 D and 3 E. 7 They are the personnel records of James Greenhill. 8 MR. ORTEGO: Your Honor, I will have no objection, 9 but atthe same time I would like tooffer the remainder of 10 the file in the same exhibit. So to save time, I would like 11 to put in the rest of the documents that go into the 12 personnel file. 13 THE COURT: All right, you may do so. 14 MR. ORTEGO: This will all become part of 15 Plaintiff's 3. 16 MR. BALDWIN, JR.: That's fine with me. 17 MR. ORTEGO: Is that all right with the Court? 18 THE COURT: It will be all right. 19 MR. ORTEGO: Thank you, Your Honor. 20 MR. BALDWIN, JR.: Your Honor, if I may, I'd like 21 to read certain portions off these personnel records. 22 THE COURT: You may proceed. 23 MR. BALDWIN, JR.: Plaintiff's Exhibit No. 3 A, 24 U.S. Department of Labor Employment Standards Administration 25 Attending Physician's Report, James Edward Greenhill, Star 1452 D - iH1Q> 1 Route 2, Ozark, Arkansas. -8- 2 "What history of the injury? Patient fell while 3 working for the U. S. Forestry Service on 12-11-78 and 4 suffered acute onset of low back pain which persisted to 5 the present. Also while working for the U. S. Forestry 6 Service in Oregon in 1975 and '77 he was exposed to Tordon 7 101 and 2, 4-D on multiple occasions. 8 "What are your findings? He has a malignant 9 lymphoma that is involving multiple thoracic lumbar vertebrae 10 in addition to involvement of multiple lymph nodes. 11 "What is your diagnosis? Malignant lymphoma, 12 number one; number two, back pain to the vertebral collapse 13 to a fall on 12-11-78." 14 This is Plaintiff's Exhibit 3 B, Record of Leave 15 Data: 16 "James E. Greenhill, 3-15-78. Carryover balance 17 from prior leave year ending 12-31-77. Current leave year 18 accrual through pay period ending 3-25-78." 19 This is Plaintiff's Exhibit 3 C. It's a 20 Certification of Application of James Greenhill at the U. 21 S. Forestry Service, .Russellville, Arkansas, 3-27-78. This 22 is Notification of Personnel Action: 23 "James Greenhill, Regional Forester, Region Height 24 Pleasant Hill Ranger District, Ozark, St. Francis National 25 Forest. Base salary: $8,366.00. 1453 o-m? i1 3 E, this is the Application for Temporary -9- j tI 2 Employment with the U. S. Department of Agriculture. ! i! I3 "Available for work: 0-1-78 to 12-30-78." j 4 We would offer these at this time, Your Honor. i 5 THE COURT: They will be admitted. 6 MR. ORTEGO: Your Honor, I will offer the remainder 7 of the records and comment, if necessary, during my case, [ I 8 if that's all right. 9 THE COURT: All right. 10 MR. ORTEGO: So the remainder is received as 11 well? 12 THE COURT: Yes. 13 MR. ORTEGO: Thank you. 14 MR. BALDWIN, JR.: Your Honor, we would next like 15 to offer Plaintiff's Exhibit No. 30. It's the Commissioner's 16 1980 Standard Mortality Tables, and I would like to read 17 from those, if we may? 18 THE COURT: You may. 19 MR. BALDWIN, JR.: The life expectancy of a 38 20 year old male is 42.15 years. We would offer this at this 21 time, Your Honor. J 22 THE COURT: It will be admitted. J 23 MR. BALDWIN, SR.: Your Honor, we have one other 24 document, Plaintiff's Exhibit 20 Y which is a document 1 25 furnished to us by Dow Chemical, which shows the label- ) V -M li registered with the FDA. -10- MR. ORTEGO: May I just see it? j (Mr. Baldwin tenders document to Mr. Ortego and returns.) MR. ORTEGO: Thanks. Judge, the only objection I have at this point in time is that I don't know if this is the correct label for the correct years in question. They seem to be late, but subject to that connection, I have no 0 objection. THE COURT: It will be admitte.d. i MR. BALDWIN, SR.: Dr. Teitelbaum, please, Your Honor. (The Witness is sworn.) MR. BALDWIN, SR.: May I proceed? THE COURT: You may proceed. I il DR. DANIEL T. TEITELBAUM having been duly sworn, testified as follows: i DIRECT EXAMINATION j BY MR. BALDWIN, SR.: Q Would you give us your name, please, sir? A Yes. It's Daniel T. Teitelbaum. T-e-i-t-e-l-b-a-u-m. Q And could you tell us what your business or profession is? A I am a physician. Q And where do you practice? A My practice is in Denver, Colorado, at Denver Clinic 1455 V -rfll I -11- 1 Medical Centers. For this academic year, I am Director of 2 the Israel National Poison Information Center, and professor 3 of medicine at the Technalin (pho) Medical School in Haifa, 4 Israel. 5 Q Could you tell us, Doctor, your professional -- first 6 of all, what type medicine do you practice? 7 A I am a toxicologist. 8 Q Are you also an M.D.? * 9 A Yes. Iam an M.D. I had training .in internal medicine, 10 and following that I did specialty training in toxicology, 11 which is the part of medicine that deals with poisons; and 12 that's the area I practice in now. 13 Q We will come to that in more general, but would that 14 also embrace herbicides? 15 A Yes, it would. 16 Q And what, if you can tell us some of your professional 17 experience that qualifies you as a clinical -- in clinical 18 toxicology? 19 A Yes. After I did my internship and my residency in 20 Internal Medicine, I did a fellowship at the University of 21 Colorado Medical Center in Toxicology. A fellowship is a 22 postgraduate period of training in which the physician works 23 specifically in the area of his major interest. And 24 following that I became a full-time faculty member at the 25 University of Colorado and ran the Poison Control Center 1458 D -W so 1 j 1 ! ) , 1 i 1 '* i -121 in Colorado, and also the Physicians Poison Consultation 2 Service in Colorado, as well as the Emergency Service at 3 the University of Colorado Medical Center. 4 Q How long have you been qualified as a toxicologist? 5 A In 1975 I first was Board certified and then recer 6 tified in 1976. 7 Q Do you consult with any bodies or commissions? 8 A Yes. I have been a consultant to many different 9 agencies, both at the state and the federal level. I have . 0 been a consultant to the United States Food & Drug Adminis 11 tration. During this past year I have been a consultant 12 to the United States Department of Labor, the Occupational 13 Safety & Health Administration. I have been on the Colorado 14 State Pesticide Advisory Committee and the Poison Control 15 Committee and the Emergency Services Committee, and so on. 16 Q Have you consulted with industry? 17 A Yes, I have, extensively. During this past year, I 18 have consulted with Intel (pho) Corporation, a national 19 semiconductor company, on handling of poisonous materials in their work places. In the past, I have consulted with many other companies -- IBM and Coors. Not in the beer industry, in their porcelain factory, and Xerox, and Dresser Industries - - many other industries. 24 Q Are you a lecturer in your field? 25 A Yes. 145? v-nvi 1 Q In what subjects have you lectured and taught on? fa A Well, this year, as I said, I am living in Israel as 3 Professor of Medicine and Director of the Israel National 4 Poison Information Center, and I am giving a course in 5 Occupational Toxicology in the engineering and the medical 6 schools. In addition to that, I have given extensive 7 lectures, many on subjects in toxicology, ranging from 8 problems in environmental poisoning to the management of 9 patients who have been acutely poisoned by various kinds 10 of drugs and other toxins. 11 Q Would that include carcinogens? 12 A- It certainly would. 13 Q What experience have you had in the field of biomedical 14 and occupational-environmental toxicology? 15 A Well, I have both investigated problems in environmental 16 toxicology, that is to say problems where people living in 17 the area of a particular kind of exposure, perhaps near a 18 toxic waste site, a dump, a water pollution problem, where 19 there was some question as to whether people were ill because 20 of the materials which are in the water or in the dump and 21 so on. I have done that kind of work. I have done work 22 on investigation and solution of problems within factories 23 where people have been exposed to various kinds of poisons 24 or dangerous materials, and we have outbreaks of single 25 cases of illness. And I have also looked at specific problem -14- 1 of such things as lead poisoning both in the environment and 2 individuals and so on. 3 Q Does your specialty, Doctor, include the diagnosis and 4 evaluation of illnesses resulting from exposure to various 1 i 5 toxins -- 6 A Yes, it does. 7 Q -- by the human being? 8 A It certainly does. I see about 1,500 patients per year 9 myself. Our department at Denver Clinic sees about 5,000 10 patients per year who come to the clinic because of problems 11 associated with some material or some substance with which 12 they may have been exposed. 13 Q Do you do any work in industrial hygiene? 14 A Yes, I have. I ran an industrial hygiene laboratory 15 for about eight years. Industrial hygiene, of course, is 16 the supporting science for the medical diagnosis just the 17 way you use a laboratory in the hospital to find out what i 18 bug somebody's got. The industrial hygienist provides that 19 kind of information for the physician who is trying to treat i 20 a toxic disease. And I have done both the field investigation! ! 21 and run the laboratory services involved with doing that kindj 22 of work. II j 23 Q And are you affiliated with any industrial hygiene 24 body, like the AIHA? j I j 25 A Yes. I am a full member of the American Industrial 1459 1 Hygiene Association. -15- 2 Q Now tell us briefly, Doctor, what your academic 3 affiliations are. 4 A Yes. I am currently Professor of Medicine, as I 5 indicated to you, at the Medical School in Haifa, Israel 6 on a one-year appointment. My usual academic appointments 7 are as Professor of Environmental Sciences in the Department * 8 of Environmental Sciences at the Colorado School of Mines 9 where I teach the engineering graduate students in the course 10 on occupational and environmental toxicology; and I am 11 Associate Professor -- Associate Clinical Professor of 12 Preventive Medicine at the University of Colorado Medical 13 Center. 14 Q Are you a consultant at any hospital? 15 A Yes. I am on the consulting staff of most of the 16 large hospitals in Denver, including Denver General Hospital, 17 which is the city hospital; St. Joseph's Hospital, Children's 18 Hospital, Rose Memorial Hospital, and so on. 19 Q Are you a consultant in clinical toxicolgy at the 20 Denver General? 21 A Yes, I am. At the Poison Control Center, I am senior 22 consultant in toxicology. 23 Q And you teach a medical course, Preventive Medicine? 24 A Yes, I do. 25 Q And where is that? A At the University of Colorado Medical Center. -16- Q Is that the medical school? A That surely is. Q That1's medical students you teach? A Yes. Q Tell us, then, basically what type degrees you obtained, beginning with your Bachelor's Degree? A Well, I received the Degree of Bachelor of Arts from Hamilton College in 1956. I then received the Degree of Master of Hebrew Letters & Rabbi from the Jewish Theological Seminary of America, and then the Degree of Doctor of Medicine from the Albert Einstein College of Medicine in New York City in 1964. Q And where did you do your intern? A At Montefiore Hospital. I had better spell that. M-o-n-t-e-f-i-o-r-e, Montefiore Hospital, which is one of Albert Einstein's teaching hospitals in New York City. Q And your residency? A At the University of Colorado Medical Center. Q And what was that done in? A Internal medicine. Q And what, briefly, isinternal medicine? A Internal medicine is the branch of medicine which deals with the diagnosis and management of diseases of the internal organs. 1 Q Would that include lymphomas? 2 A Yes, it surely would. 3 Q And are you a fellow in medicine and toxicology? 4A I was fellow in medicine and toxicology at the 5 University, but I have advanced now to an associate 6 professor at the University. 7 Q All right. 8A 9Q 10 A They let me get promoted. I have lived long enough. You are a full professor, then, at the -- I am an associate professor at the medical school, and 11 am a full professor at the School of Mines. 12 Q- All right. Now tell us then briefly what committees 13 and bodies you have served on in your profession? 14 A Well, I have been on most of the committees of the 15 American Academy of Clinical Toxicology -- the Education 16 Committee, the Standards Committee, the Certification 17 Committee. I have been on the various standards committees 18 of the American Association of Poison Control Centers. I 19 have served on the United States Food k Drug Administration 20 Advisory Committee on Diagnostic Products and Toxicology. 21 I have served on the Colorado State Pesticide Advisory 22 Committee and so on. 23 Q Do you belong to any societies connected with your 24 profession? 25 A Yes, I do. I am a member of the American Medical D - 1 '/> i -18- 1 Association and of the county and state medical societies, | i 2 and in addition, I am a member of most of the societies in j I 3 toxicology, such as the American Academy of Clinical 4 Toxicology, the American College of Clinical Pharmacology, 5 the Forensic Science Society, the American Industrial 6 Hygiene Association, and so on. i i i' 7Q 8A Have you been chairman of any committee or committees? ^1 Yes. I've been chairman of most of the committees I've 9 served on at one time or another. 10 Q Would that include the Therapeutics Committee of the 11 American Academy of Clinical Toxicologists? iI j 12 A- Yes, I did. 13 Q Now what -- have you received any honors, Doctor? 14 A Yes, I have. I was World Health Organization Traveling 15 Fellow in Toxicology, and I received the Founder's Award 16 from the American Academy of Clinical Toxicology; and was 17 also a student fellow at the Jacks Memorial Laboratory in 18 1952 and 1953, and won a few academic prizes along the way. 19 Q 20 A Are you board certified? In toxicology, yes. 21 Q 22 A And what does that mean? Well, the American Board of Toxicology is an independent 23 body which examines physicians who claim to have special 24 skills in toxicology; and after taking a written and oral 25 examination and having appropriate qualifications, if you 1463 V -H -i 1 I pass the examinations, then you are considered board -19- 2 certified. i 3 Q How many toxicologists in the United States are Board 4 certified? 5A 6Q About 140 now. Is that a subdivision of the American Medical 11 7 Associ ation? 0 8 A No, it's not, and it's not a part of the American 9 Board of Medical Specialties yet because there aren't 600 10 members. We'll have to have 600 Board certified members 11 before it will be a part of that organization. 12 Q. Are you a fellow in any institute or groups? 13 A Yes, I am a Fellow of the American College of Clinical | 14 Pharmacology, and I am also a Fellow of the American Academy i! 15 of Clinical Toxicology. \ 16 Q 17 A 18 Q Have you written publications, Doctor? Yes, about 38 or 39 publications in toxicology. And have they been published in your field? i j I 19 A Yes, they have. 20 Q In various journals? 21 A Yes. 22 0 Have you put together teaching aids or video tapes? 23 A 24 Q Yes ,'I have. If so, describe very briefly. I 25 A I have made quite a series of video tapes teaching 1464 p- -20- 1 various kinds of people, ranging from video tapes dealing 2 with the clinical diagnosis of asbestoses to the management 3 of acute poisoning, which I made for Bio-Science Laboratories 4 when it was a Dow subsidiary, and a number of other teaching 5 video tapes for various purposes -- Xerox Corporation, and 6 so on. 7 Q Now, Doctor, at my request have you investigated the * 8 case involving the death of Mr. James Greenhill? 9A 10 Q Yes, I have. You are a licensed physician? I failed to ask that. 11 A Yes, I surely am. 12 Q- And before I get into Mr. Greenhill's case, have you 13 had experience in evaluating patients with various types 14 and forms of lymphomas? 15 A Yes, I have. 16 Q And what experience has that been? 17 A Well, earlier in my career I had experience both 18 evaluating and treating patients, but over the last, oh, 19 probably eight to ten years I have not been treating 20 lymphoma patients but I see lymphoma patients regularly 21 where the question is asked whether there may or may not 22 have been an environmental or occupational cause for the 23 lymphoma. 24 Q All right. How many patients would you say you have 25 seen? V --)^ & 1 1 Q All right. -45- i | 2 MR. BALDWIN, SR. : We will offer that into evidence!Ij 3 Your Honor, Plaintiff's Exhibit 1 D. 4 THE COURT: Any objection? 5 MR. ORTEGO: No objection, Your Honor. 6 THE COURT: It will be admitted. 7 (Mr. Baldwin, Sr. continuing:) 8 Q What is 1 E? 9 A 1 E is a further report from the same group after 10 the tissue blocks which we received from Dr. Stolz's office 11 were recut, restained, and looked at again now by two 12 different sets of pathologists, one at St. Joseph's 13 Hospital in Denver and one again in our group. And 1 E 14 is the report of our group's re-consideration of the 15 diagnosis based on the new slides which had been prepared. 16 Q And what did they say? 17 A The diagnosis on the new slides was "malignant 18 lymphoma, see comment." And the comment was "I now believe 19 that my original diagnosis of small cell lymphoma was 20 incorrect after reviewing the additional material. I am 21 unable to find a cell that I would accept as a Reed-Sternberg 22 cell, and thus cannot make a definitive diagnosis of 23 Hodgkin's disease. I believe, however, that the type of 24 infiltrate and histologic progression of the disease with 25 its various patterns are most compatible with a diagnosis V -H fb 1 -46of Hodgkin's disease and are less compatible with a diagnosis 2 of non-Hodgkin's lymphoma. I do not believe that it is 3 possible to accurately subclassify the process, but believe 4 that the differential includes lymphocyte predominance and 5 nodular sclerosing subtypes." 6 Q So is he saying that he's changing his earlier opinion, 7 but he is not saying it is Hodgkin's disease? * 8 THE COURT: Just a minute. 9 MR. ORTEGO: Judge, I would just ask that the -- 10 I know Dr. Teitelbaum can read what he wants, but there is 11 another paragraph that follows that I think when taken out 12 of context it would be unfair to read it this way. If he 13 can just finish reading the remainder of that section, I 14 think that would be appropriate. 15 MR. BALDWIN, SR.: I have no objection to that. 16 THE COURT: Read the rest of it, Doctor. 17 A "I took the liberty to show the sections to Dr. Henry 18 Chu, hematopathologist at the University of Colorado School 19 of Medicine. He was also unable to classify the lymphoma, 20 but favored Hodgkin's disease. Drs. Alt and Meyer have 21 reviewed the sections with both now favoring a diagnosis 22 of Hodgkin's disease, probable nodular sclerosing variant." 23 Q And I was coming to that, Doctor, before he said that. 24 Did they also have Dr. Chu look at these sections? 25 A Yes, they did. 17 - l `t f / 1 Q And Dr. Alt and Dr. Meyer? -47- 2 A Right. 3 Q And none of them were able to find this diagnostic 4 Reed-Sternberg cell, were they? 5 A That's right. 6 MR. BALDWIN, SR.: We offer that into evidence 7 as Plaintiff's Exhibit 1 E. 0 8 MR. ORTEGO: The reported date? I just want to 9 make sure, Mr. Baldwin. 10 MR. BALDWIN, SR.: 6-12-84. 11 MR. ORTEGO: No objection. 12 THE COURT: It will be admitted. 13 (Mr. Baldwin, Sr. continuing:) 14 Q What is 1 F, Doctor? 15 A 1 F is the report of Dr. Tim Morgan, who is pathologist 16 at St. Joseph Hospital. It's on the stationery of the 17 Denver Metropolitan Pathology Consultants, P.C., and it is 18 his report of June 5, 1987. 19 Q And what does he say? 20 A Dr. Morgan says: "I concur with Dr. Stolz' inter 21 pretation and that of his outside consultant that these 22 slides represent a form of Hodgkin's disease, best subtyped 23 as lymphocyte predominant, diffuse (so-called L and H 24 variant). In my opinion, the only reasonable differential 25 consideration would be another form of Hodgkin's disease 1468 V -I^ Z - _ 4 8 "\ 1 such as a peculiar variant of nodular sclerosing. I strongly 2 favor the former interpretation. Diagnosis: Left cervical 3 lymph node (excisional biopsy): Hodgkin's disease, 4 lymphocyte predominant, diffuse." 5 Q Did he find the Reed-Sternberg cell, or did he mention 6 it? 7A 8Q He did not. * Now back to 1 E when the doctor said that he favored 9 a diagnosis -- he says: "I thus cannot make a definitive 10 diagnosis of Hodgkin's disease," and says "it's compatible 11 with Hodgkin's disease, is that a definite diagnosis or is 12 that -- what is that in the medical community? 13 MR. ORTEGO: I am going to object to the form of 14 the question. The document speaks for itself. 15 THE COURT: I sustain the objection in the manner 16 in which the question is asked. 17 MR. BALDWIN, SR.: All right. 18 (Mr. Baldwin, Sr. continuing:) 19 Q What do you mean as a doctor when you or some other -- 20 when you read a statement by another doctor that says the 21 diagnosis is consistent with, for example, Hodgkin's disease, 22 lymphoma, or any other condition? 23 MR. ORTEGO: Objection to the form of the question, 24 leading and compound. 25 THE COURT: Overruled. V-MV3 -49- A I interpret that to mean that the physician is not able to find those elements which he requires in order to make a clear diagnosis. And he says, "Well, in the absence of the required criteria, the best second guess is this." Q All right, now what -- MR. ORTEGO: Just continue my objection in that he is now interpreting what he thinks the doctors mean in their writing, and it does call for speculation. THE COURT: Overruled. (Mr. Baldwin, Sr. continuing:) Q 1 G, would you look at that, Doctor? A. I am sorry, I don't have a copy of 1 G. Q I happen to have one. A Thank you. Q Would you tell us what 1 G is? A Yes. 1 G is a Pathology Reportby Dr. Girkin, dated 7-7-80. It's on the stationery of the Pathology Report of the Sparks Regional Medical Center. The diagnosis is "Lymph node, changes consistent with recurrent Hodgkin's disease." The comment is: "The lymph node shows all of the necessary changes for a diagnosis of Hodgkin's disease except for the presence of Reed-Sternberg cells. The extensive scarring of the node is presumed to represent treatment changes. The lymph node used to establish the diagnosis originally shows a much greater component of well differentiated lymphocytes 1470 1 -50and a lesser component of histiocytes. However, this may be 2 due to treatment of the disease." l 3 Q So that was no -- this report noted no Reed-Sternberg 4 cells? } 5 A That's correct. i 6 Q And if it is the opinion of you or any other doctor 7 that you can't make the diagnosis of Hodgkin's disease * 8 without a Reed-Sternberg cell, you couldn't make it with this i 9 report, could you? 10 MR. ORTEGO: I am going to object to the form of 1j 11 the question. The report says: "Diagnosis: Hodgkin's 1i 12 disease." Now he is asking him to speculate again. I think l 13 the report speaks for itself. 4 14 THE COURT: Overruled. 1ij 15 (Mr. Baldwin, Sr. continuing:) 16 Q Can you, Doctor, with that criteria? j 17 A I think the report says "consistent with Hodgkin's j! 18 disease." And in the terms that we've discussed, I would 19 agree with that. It's consistent, that without the findings j 20 that are characteristic, he can't make the absolute statement. - 21 THE COURT: Did you offer 1 F into evidence? iI 22 MR. BALDWIN, SR.: Yes, Your Honor. I will offer 23 1 A through G at this time, just to make sure that we have j 24 gotten them all in. i 25 MR. ORTEGO: Can I just look to see if I am all v1-4m71s -51- !j 1 caught up with your numbers, Mr. Baldwin, if you don't mind? | 2 (Brief pause; Mr. Ortego examing exhibits.) i i 3 THE COURT: They will all be admitted. 4 MR. ORTEGO: Fine, Your Honor, no objection. I 5 (Brief off-the-record discussion at side bar between 6 Mr. Ortego and Mr. Baldwin.) 7 (Mr. Baldwin, Sr. continuing:) * 8 Q All right, now, Doctor, I believe we have gone through 9 all of the Pathology Reports, I hope so. Can you as a I 10 doctor, based on your view of these medical records and 11 these Pathology Reports, make a diagnosis of Mr. Greenhill's 12 condition? 13 MR. ORTEGO: I am going to object, Your Honor. I 14 don't think there is a foundation, and I don't think he has I 15 looked at the slides; and I think the other documents speak | | 16 for themselves, and there is no foundation. 17 THE COURT: Overruled. 18 (Mr. Baldwin, Sr. continuing:) 19 Q Before you answer that, Doctor, I will ask you have you 20 looked at the slides? 21 A I have. 22 Q Go ahead, sir. 23 A In my opinion, the diagnosis would be a malignant 24 lymphoma most consistent with Hodgkin's disease. 25 Q Could you make a definite diagnosis of Hodgkin's disease' 1472 P- 1 1 % 1A I -52- !I I wouldn't make a diagnosis any stronger than that at | 2 this point. 3 Q Now let's talk generally about, very briefly, about 4 2, 4-D and picloram. You've told us you thought 2, 4-D was 5 a hazardous substance? 6 A Yes. 7 Q Is it hazardous to man? 8 A Yes. 9 Q In what respect? 10 A Well, it's hazardous to man to the degree that in large 11 doses it can kill. There are cases of ingestion of large 12 amounts of 2, 4-D which have resulted in fatalities, and 13 in much smaller doses it's capable of producing skin rash, 14 it's capable of producing other kinds of disturbances, and, 15 in my view, it's very likely carcinogenic. 16 Q Is it -- is it capable of producing neurological 17 disorders? 18 A It certainly is. 19 Q And you say it was carcinogenic? 20 A That's right. 21 MR. ORTEGO: Objection to the mischaracterization. 22 He said "likely carcinogenic." 23 (Mr. Baldwin, Sr. continuing:) 24 Q Do you have an opinion as to whether or not -- 25 THE COURT: Just a moment. What is your objection? MR. ORTEGO: Objection to the phrase in Mr. -53- Baldwin's question because he said -- it was misphrased -- mischaracterizing the witness's answer. MR. BALDWIN, SR.: I will withdraw the question, Your Honor. May I ask another one? THE COURT: All right, rephrase it. (Mr. Baldwin, Sr. continuing:) * Q Do you have an opinion, Doctor, as to whether or not 2, 4-D is carcinogenic? A I believe that it is carcinogenic in animals, and it's a likely human carcinogen. Q- All right. The same questions about picloram, do you have an opinion whether it is harmful to humans? A Harmful, yes, I think it is harmful. Q All right, is it a hazardous substance? A I think so, yes. Q Should picloram be used with caution? A Yes. Q Should 2, 4-D be used with caution? A Yes. Q What aboutTordon 101? A Yes. Q Now, Doctor, Iwant to ask you about some of the literature. In your field as a medical doctor do you rely on treatises written by others? A Yes. -54- Q Periodicals? A Yes. Q Reports that are published? A Yes, depending on the quality of the report, of course. Q Medical journals, medical articles? A Yes. Q Textbooks? A Yes. Q And in connection with the subject here, the 2, 4-D, have you reviewed the literature and the periodicals like I-have just described to you? A Yes, I have. Q First, then, let'stalk about some ofthat. Would you have you reviewed a study done for theStateof California? A Yes, I have. Q And would you give us the title of that? A Yes, I will. It's called "2, 4 Dichlorophenoxyacetic Acid," and then in parens under that "(2, 4-D) Evaluation of Human Health Hazards." Q All right. Could you tell us what that report found? A Yes. Basically, the report is a report which was compiled by the Department of Health in the State of California which reviewed all of the literature that they could find on the subject of 2, 4-D prior to their findings. V-lH11 I -55They concluded that the material was hazardous, that it caused neurological disease, and that the evidence concerning the causation of cancer was such that there was reason to conclude that it might very well be a carcinogen. There was not sufficient evidence to say that it was not a carcinogen, and that therefore caution had to be used in handling the material. * They further concluded that the labels which were then in use in California were inadequate and needed revision. Q All right. Now.let's go back over that in a little bit more detail, if you would. Would you describe the neurologi cal findings that the report describes? A Yes. MR. ORTEGO: I object. Again, I don't think Dr. Teitelbaum is a neurologist, and I don't think that Mr. Baldwin is claiming that Mr. Greenhill had anything wrong i I with him neuroiogically. Not that I'd say that it is true that these allegations are correct, but I object to this | line of the question. What is the relevance? THE COURT: Overruled. (Mr. Baldwin, Sr. continuing:) Q Go ahead. A The report begins by reviewing the literature which goes all the way back to the 1950s, 1959, the first cases that were reported of neurological damage due to 2, 4-D. -561 There were altogether approximately six or seven reports, 2 and a subsequent case was actually examined by one of the 3 members of the panel that wrote the report as a current case 4 in California at the time this report was written and -- 5 excuse me -- they concluded that 2, 4-D did cause the 6 neurological damage and that the route of exposure was 7 primarily through the skin, and that it was necessary to 8 label the product, warning that this was a risk with 2, 4-D. 9 Q Did -- tell the Jury what you mean when you use the 10 term "neurological damage"? 11 A Well, in this case the kind of neurological damage, 12 the damage to the nervous system that occurred, is called 13 a peripheral neuropathy. A peripheral neuropathy is a 14 disorder of the nerves which are outside the brain or the 15 spinal cord, and they are the nerves that go to the skin 16 or to the periphery that help you to sense what's going on, 17 cold', warm, feeling; and also the nerves which go to muscles 18 and control motion. 19 Q Did this report describe cases of paralysis? 20 A Yes, it did. 21 Q And did it. describe cases of severe nerve damage? 22 A Yes. And -- as well, that's correct. 23 Q All right. Now, could you turn to page -- you mentioned, 24 let me see if I can find that -- Page 19 of the report. 25 MR. ORTEGO: Mr. Baldwin, what report is that? 1477, \S0\ Could I see the number? -57- MR. BALDWIN: It's -- (tendering to Mr. Ortego). MR. ORTEGO: Thank 37ou, sir. MR. BALDWIN: It's 20 W. (Mr. Baldwin, Sr. continuing:) Q And would you just read the first paragraph on Page 19 to the Jury? A It says: "Representative current label precautions are shown below -- as shown below are deemed insufficient to convey the importance of these messages to workers. They do not include a warning about delayed neurotoxicity. A recommended label warning is appended below." Q And is this a Dow label that they have described? A Well, it's a typical label for that period. It's similar to the Dow label that was used in that period of time. Q All right. i MR. ORTEGO: Judge, I am going to object. If it criticizes the label and it's not the Dow label and it's similar, what relevance does that have, and what fairness is that? THE COURT: I overrule the objection. (Mr. Baldwin, Sr. continuing:) Q Now, turn to Page 32, if you would, please, and there they talk about conclusions and recommendations? v - 1s f f - 2 - 1A 2Q That's right. And would you read paragraph three of that? -58- 3 A "Products containing 2, 4-D should be labeled to warn 4 users of the herbicide's potential for causing neurotoxicity 5 and how to protect against it. Present labels are inadequate!. 6 Educational information should be provided for anyone who 7 works with this substance." * 8 Q Would you read, Doctor, the conclusions and recom 9 mendations in that first paragraph? I want to ask you a 10 question about it. 11 MR. ORTEGO: What page is that, Mr. Baldwin? 12 MR. BALDWIN: Page 32. 13 A It says: "Exposure to 2, 4-D has caused peripheral 14 neuropathy. Additional cases of peripheral neuropathy may 15 not have been correctly diagnosed. Animal studies suggest 16 that potential risk of cancer and possible low-level hazard 17 of birth defect in humans, though the degree of risk to 18 humans following exposure to 2, 4-D cannot now be estimated. 19 The following recommendations are made as minimal nrec.autions 20 to protect the public health." 21 Q What do they mean by peripheral neuropathy? 22 A Peripheral neuropathy is, as I've explained it, a -- 23 it's damage. It's an illness of the nerves outside the 24 central nervous system. 25 Q And then the next paragraph? 1479 V ' 1503 I A I'm sorry, I don't know which. -59- I j j 2 Q Paragraph one. i i I 3 A Current work practices are inadequate to protect ! it 4 against potential neurotoxicity; that it should be reviewed fj 1 5 and corrected, is what they say. i 6 Q And then paragraph two, the final thing I'll ask you 7 about that. * 8 A "The scientific data are sufficiently suggestive of 9 a carcinogenic effect, and demonstrate a weak teratogenic 10 effect, that 2, 4-D should be restricted to areas in which 11 human exposure can be kept to the minimum. Contamination 12 of open water must be monitored and prevented. Broadcast 13 methods of application that could directly expose the 14 general population should be strongly discouraged. Greater 15 consideration must be given to alternate methods for removingj 1 16 unwanted plants." 17 Q Now the word "teratogenic effect," what does that mean? 18 A Teratogenic means that it causes or may cause birth 19 defects. 20 MR. ORTEGO: Judge, I am going to object again to, 21 first of all, I disagree with the study, the way it is being 22 paraphrased; but what relevance does this have to this law 23 suit if it's talking about birth defects? 24 THE COURT: Overruled. Let's take a fifteen 25 minute break. Be back in the jury box at ten thirty. D - l-S'O'i i (Recess at 10:17 a.m. , until 10:30 a.m.. Open court, jury and all parties present.) THE COURT: Please be seated. You may continue. MR. BALDWIN, SR.: Your Honor, before we get back into the examination of Dr. Teitelbaum, we have now got confirmed data on the medical bills and the funeral bills, and I would just like to read that amount to the Jury. MR. ORTEGO: Judge, I spoke with Mr. Baldwin about this, and even though there aren't any records, I just under stand he has verified it and I will just take his word for it. THE COURT: All right. MR. ORTEGO: And for that purpose I will let him read it in., THE COURT: Go ahead. MR. BALDWIN: The medical bills that we have been able to verify to date are '$62,497.60. The funeral bills were $2,298.00. THE COURT: That will be admitted. DIRECT EXAMINATION CONTINUES BY MR. BALDWIN, SR.: Q Now, Doctor, you've talked about page 19 of the study done for the State of California, and I have a blow-up of that page so we can all talk about it at the same time. It shows the tyoical -- well, I'll ask vou what it shows? 1481 1A i i -61- j It's a page out of the text of this report, and it | 2 shows a sneciman label which contains the tynioal informa- J i j 3 tion that appeared on 2, 4-D products at that time. j 4Q I Doctor, were you familiar with in a general way, or any 5 other way, with the Dow label on their Tordon 101 during the 6 time frame 1975 through 1979? 7 A Yes. * 8 Q And I hand you what is Plaintiffs' Exhibit 20 Y and j 9 let you look at it. 10 A (Examining) 11 Q Does that typically convey the information that was on 12 the Dow label, as you understood it, during the time frame 13 we talked about? 14 MR. ORTEGO: Judge, I am going to object. I don't 15 want a general, but specifically does he recall whether 16 that's the language for the particular year? I think that 17 would be an appropriate question. 18 THE COURT: Rephrase your question. 19 (Mr. Baldwin, Sr. continuing:) 20 Q All right, I'll just go back for a little bit, Doctor. 21 You have told us you are familiar in a general way with the 22 Dow label for Tordon 101 between -- during the time frame 23 1975 to 1979? 24 A That's correct. 25 Q And do you profess to be able to tell the exact language 1482 O' 1 here today of the label? -62- 2 A No. 3 0 Do you know generally what type warnings those labels 4 contained? 5 A Yes. 6 Q And do you know what type hazards or illnesses they 7 warned against? 8 A Yes. 9 Q And do you know what type hazard or. illness they did not 10 warn against? 11 A Yes. 12 Q- And is the Dow label in front of you now generally of 13 the type that you were familiar with? 14 A Yes. 15 Q Now, is that label or not similar to the one on the 16 board there on 19? 17 A It's generallysimilar, yes. 18 Q And what does that label warn against? 19 A Which label, this oneor -- 20 Q Yes, that one. 21 A It warns about -- that it can be generally harmful if 22 swallowed; it warns that it can damage your eyes and your 23 skin, and'it warns to avoid contact with skin or eyes, and 24 to keep your clothing away from it, and then to wash 25 thoroughly afterwards. 1Q -63Did you ever see a Dow label that warned that you 2 should wear protective clothing? 3 A No. 4 Q Does that one? 5 A Other than eye protection which is on this. 6 Q I am talking about protective clothing? 7 A No. 8 Q Did you ever see a Dow label that suggested that it 9 would cause serious neurological problems? 10 A No. 11 Q Does that one? 12 A- No. 13 Q Did you ever see a Dow label that suggested that it 14 might cause cancer? 15 A No. 16 Q Does that one? 17 A No. 18 Q Did you ever see a Dow label that suggested that it 19 might kill a person -- 20 A No. 21 Q -- or cause death? 22 A Well, it says "harmful if swallowed," but it doesn't 23 say "fatal." So it doesn't. 24 Q And this is a blowup of Page 32, and does this para 25 graph 3, the one that you read, talk about these labels 1484 >- ISO?! being inadequate? -64 A Yes. Q ''Present labels are inadequate"? A That's what it says. Q Is that referring to the type label here as shown on Page 19? A Yes. < Q Now, Doctor, I want to go oversome otherliterature with you, please. Do you have -- well, these will not be offered into evidence, so we will justrefer tothem by 1i !j ! ij ! j!j iI i title. For our purposes, Doctor, Ithink we cancoordinate it if I just use an exhibit number that we have on there. Do you have before you 16 A? |i j j 1 A Yes. i\ have? MR. ORTEGO: Mr. Baldwin, can I just see whatyou I IJ (Mr. Baldwin tenders to Mr. Ortego for examination.) MR. ORTEGO: Thank you. THE COURT: Mr. Baldwin, you numbered number Page | i i i j 19 and Page 32 that's on the board? j MR. BALDWIN,. SR. : Yes. THE COURT: Now I don't think you ever delineated the number on what the Doctor was looking at here at the j j ; j i table. MR. BALDWIN, SR.: Thank you, Your Honor. We O - I w O "? -651 were referring to what's been marked "Plaintiffs' Exhibits 2 No. 20 W." 3 THE COURT: All right. 4 (Mr. Baldwin, Sr. continuing:) 5 Q Now would you look at 16 A, please, sir, and tell us j 6 what that is? < i 1 7 A 16 A is the article byGoldstein from 1959 which j -! 8 described the peripheral nerve damage after 2, 4-D exposure, j 9 Q And what date is that? !i I1 10 A It was in the Journal of the American Medical Associa 11 tion November 7, 1959. j 12 Q. And what does it say about peripheral nerve damage? 13 A It saysthat a group of threecasesweredescribed. J 14 These were patients who were exposed to 2, 4-D on the skin, * i 15 and they developed severe neurological damage, including -- j I 16 up to and including paralysis, and that this improved some 17 what in some of the patients but persisted in others. And j1 i 18 their conclusion was that it was caused by the 2, 4-D. ; j 19 MR. ORTEGO: Your Honor, I am just going to I | 20 continue my objection against anything with neurological j I 21 damage. There is no claim in this lawsuit that neurological | ( 22 damage is involved in any way whatsoever. It's just 23 Hodgkin's disease or forms of cancer, and I don't see how j I I : 24 this paper in 1959 is relevant, and I would like to object. 25 THE COURT: Overruled. 1486 D- I$to MR. O R T E G O : T h a n k you, sir. -66 (Mr. Baldwin, Sr. continuing:) Q Is that a paper that talked about the severe paralysis that was described in theearlierCalifornia report? A Yes. Q I am going to call the "Hazard Report." A Okay. * Q And is there any statement about the cause of the neurological damage? A Yes. It says: "There was little doubt that the neurological damage was done by the percutaneous," through the skin, 'kbsorbtion of spilled 2, 4-D." Q And do you have an opinion as to whether or not Mr. Greenhill, based on your history of his exposure and your review of the medical records and your review of his depo sition, suffered a percutaneous absorbtion of 2, 4-D? A I have an opinion about that; Q What is your opinion? A My opinion is that he did. He describes the wetting of his pants' leg on the left side, and the irritation of his skin on that side, and he describes getting it on his skin, and I believe he did have percutaneous absorbtion. Q What does percutaneous mean? A Through the skin. Q Cutaneous means skin? D-151 / 1 A Yes. i - 6 7 Ii *> Q So that would be -- would or not that be the same 3 mechanism of exposure as described in this paper? 4 A Yes. ;i i iI j 5 MR. ORTEGO: Judge, I am going to object. The j 6 mechanism -- they are talking about neurological damage and 7 the possible exposure to the skin of 2, 4-D. There's nothing 8 talking about his exposure. Mr. Greenhill doesn't have a 9 neurological disorder. Exposure is a general term which ! 10 can be specifically applied. He is just taking aut the term 11 of what exposure means out of this document and -- 12 THE COURT: Overruled. 13 MR.ORTEGO: Thank you, 14 (Mr. Baldwin, Sr. continuing:) Your Honor.j j 15 Q Now the next paper, 16 B -- j 16 THE COURT: Take the Jury out, please, just a 17 moment, and the attorneys approach the bench. Well, that 18 isn't necessary since they are going to be out. i i : J 19 (Jury out at 10:40 a.m; open court continues, jury not 20 present; the witness remains in courtroom.) 21 THE COURT: Is the Plaintiff claiming that the 22 deceased suffered any neurological damage? 23 MR. BALDWIN, SR.: Your Honor, the medical records 24 show that he did. The Plaintiff claims that he died from 25 lymphoma. Now, I think the lymphoma -- he had neurological 1488 D-I513- -68 ] damage. Whether it was a result of lymphoma or 2, 4-D or , i 2 what, that's, I guess, for the Jury to decide. We are 3 offering these documents on the basis that this chemical i j i 4 is harmful. On the question of causation, they are taking ;I 5 the position that their chemical didn't do it -- that it ! 6 can't cause these problems that we are talking about. And !i 7 we are offering this testimony on the issue both as to 0 8 causation and as to whether the product is defective, and I 9 also as to whether the warning was adequate. The law doesn't \ 10 require that they warn of a specific hazard. All the law j 11 requires is that they give an adequate warning. 12 So we are offering this on the question to show 13 that Dow knew or should have known that it had these 14 hazardous and dangerous propensities, starting out with 15 neuropathy. i i I 16 THE COURT: All right. 17 MR. ORTEGO: Judge, can I briefly respond? 18 THE COURT: Yes. 19 MR. ORTEGO: There is no evidence that the 20 Plaintiff had neuropathy. As a matter of fact, Your Honor, 21 when we asked all the experts what the man suffered from, *> including Dr. Teitelbaum, including his previous other 23 expert, Dr. Hay, no one ever mentioned peripheral neuropathy, 24 I served a specific interrogatory asking what the 25 claims and allegations were, and peripheral neuropathy was D-15/3 I A The Journal of the American Medical Association. 2 Q Tell the Jury what the Journal of the American Medical 3 Association is. 4 A It's a weekly journal put out by the American Medical 5 Association. It's a peer review journal which is dis 6 tributed to all members of the AMA, plus the many libraries 7 throughout the world. * 8 Q Does virtually every doctor in the United States get a 9 copy of that every week? 10 A I am glad you didn't say read it. They get it. Whether 11 they read it or not, I don't know. 12 Q- All right. Now all of these -- we are going to be 13 talking about some more medical articles, and I'll ask you 14 this one general question to save time. Are all of these 15 articles that we are discussing and going to discuss the 16 type peer review articles and critical articles that you as 17 a scientist and as a medical doctor would consider in your 18 practice and rely on? 19 A Yes. 20 Q Now, looking at 16 B very quickly, what is that, 21 Doctor? 22 A It's an article that appeared in 1967 in Lancet 23 by Dr. Milham, who was associate professor of epidemiology 24 at that time at the University of Hawaii. He pointed out 25 that he did a study first in 1967 and then repeated it and -71- 1 did some further depth, and the title of the article is *> "Hodgkin's Disease in Woodworkers," found that there was 3 an increased risk of Hodgkin's disease if you worked with 4 wood. 5 Q And what is Lancet? 6 A It's a journal published in England, a medical journal. 7 Q Now what is the significance of that finding? 8 A This was the first article that pointed out that 9 Hodgkin's disease and some environmental, characteristic 10 of wood was associated. There have been a number of studies 11 which have followed that, all of which have been consistent 12 in finding the same thing. 13 Q Now, Lancet is a widely read medical journal in 14 Britain, or is it an obscure journal? 15 A No. 16 Q Or how would you characterize it? 17 A It's widely read throughout the world. 18 Q And is it given great weight and authority in the 19 medical community, or little weight? 20 A I think it is a highly respected journal. 21 Q 16 C? 22 A 16 C is an article by Dr. Grufferman published 23 in the Journal of the National Cancer Institute, Volume 57 24 November 1976. Dr. Grufferman did a study of occupations 25 and Hodgkin's disease, and he said "as in previous studies QMS' (S' -72- woodworkers have an excess risk of Hodgkin's disease, but the reason is obscure." Q What is the significance of that article? A Well, it's again the same finding that Dr. Milham made that there is some environmental factors associated with working with wood, and one could say it's either the wood itself, something that's carried on the wood like a chemical residue or some bacteria that's associated with the wood; but whatever it is, wood and Hodgkin's disease are positively associated. Working with wood seems to cause Hodgkin's disease. Q- And what does that mean to you as a scientist? A It means that this is a second supporting study which supports the two pieces of work Dr. Milham had done before, and others which have come since that time. Q And do or not these studies suggest that Hodgkin's disease is caused by some outside agent? A Yes. 0 Is that significant? A Yes. Q And why is wood significant in this study? A Because Mr. Greenhill was a forestry employee working with the chemicals which are carried on the wood as residue. MR. ORTEGO: I am going to object, Your Honor. This now calls for more speculation. 1492 'P'- \ S 1(0 I 1 THE COURT: Overruled. -73- i 2 (Mr. Baldwin, Sr. continuing:) 3Q i Now, would you tell us -- we have seen these articles, | 4 the examples of them. Here is one here that you just 5 referred to as a medical article, an entire article in a 6 journal. Now, is there such a thing in the medical 7 community as abstracts of articles? * 8 A There are abstracts published in many different 9 journals, yes. 10 Q And what is meant by the term "abstract"? 11 A An abstract is a, per se>- is a short statement like we 12 used to write in elementary school of what a story is about. 13 It's usually written by the author, and it summarizes the J 14 findings. 15 Q Do you read habitually abstracts? 16 A Yes, I read several journals which are justcomposed 17 of abstracts every month. 18 Q Now, what is 16 D? ! j j 19 A 16 D is an abstract of an article by Magnusson 20 that appeared in Hereditas, which is a journal dealing with 21 genetics and heredity. It's been published for 87 years, 22 approximately. 23 Q When did that articleappear? 24 A In 1977. 25 Q And what's the title of the article? 1493 35-1517 -74- A It's "Mutagenic Effects of Chlorinated Phenoxyacetic Acids and Drosophila Melanogaster." Q And do we remember that chlorinated phenoxyacetic acids is 2, 4-D? A ' Right. And Droso -- MR. ORTEGO: Objection, Your Honor. That's an improper classification. Form of the question. * THE COURT: Overruled. A And Drosophila melanogaster is fruit flies that we all studied in high school. 0 And what's the significance of that article, Doctor? A It says that when you expose fruit flies to chemicals like 2, 4-D and 2, 4-D, changes in the genetic material of these animals occurs, and substances which are mutagenic, or cause these changes, are likely to be substances which are cancer causing. Q Now that's another term, mutagenic. What does that mean? A Mutagenic means changing the genetic material, causing a change in the genes. Q And this study suggested that it did that, that it had the capacity to change genes in the fruit flies? A Right. Q And is that significant to you as a medical doctor? A Yes. O-l 1 Q Why is that? -75- 2 A It's significant because the fruit fly is a standard 3 organism for testing for this type of change. 4 Q 16 E, could you tell us what that is? 5 A Yes, 16 E is a paper translated from Swedish by Dr. 6 Lennart Hardell. It appeared in the Swedish medical 7 journal, and I won't attempt to pronounce the Swedish; 8 and it deals with the occurrence of soft-tissue sarcoma 9 and exposure to phenoxy acids. Dr. Hardell observed seven 10 cases of soft-tissue sacroma and found that there was a 11 consistent history of working with phenoxyacetic acid 12 derivatives in these seven workers. He reported them and sai 13 "I think we need to do some serious epidemiologic study 14 because here are seven cases that have that common factor." 15 Q What common factor? 16 A That they were exposed to 2, 4-D and like compounds -- 17 2 , -4-D and 2, 4-D like compounds. ' 18 Q And had cancer? 19 A That's right. 20 Q Of the soft tissue? 21 A Right. 22 Q And when was that article published, Doctor? 23 A The article was published in 1977. 24 Q Is that a respected journal? 25 A It's the Swedish equivalent of the Journal of the 1495 -76- 1 American Medical Association, and it is respected, yes. 2 Q Would it be fair ,to characterize that as the first 3 clear evidence of a relationship between 2, 4-D and cancer? 4 MR. ORTEGO: Objection to the form of the question. 5 THE COURT: Overruled. 6 A I think it's the first study where a physician said 7 pointedly, "I believe there is a relationship," yes. 8 Q And has Hardell come to be respected in the community, 9 the medical community, on the question of the relationship 10 between phenoxy acids and cancer,specifically of the lymph 11 system? 12 A- I certainly respect him, and I think he is generally 13 respected. There are people who disagree with him. 14 Q Do you know anybody who has done more work than he 15 has in that field? 16 A No, I do not. 17 0 What is the next article? 18 A 19 Q The next one is 16 F, in my grouping, and that is the -Just a minute before you read the -- just read the -- 20 well, could you read that or just the title up here of that 21 article? 22 A "Some Fumigants, the Herbicides 2, 4-D and 2, 4-5-T," 23 is that what we are talking about? 24 Q No, IARC -- 25 A IARC Monographs on the Evaluation of the Carcinogenic 1496 D-iffa-o Risk of Chemicals to Man." -77- Q And does it include herbicides 2, 4-D? 3 A Yes. 4 0 Now what is the IARC, Doctor? 5 A The IARC is the International Agency for Research 6 Against Cancer. It's a world health organization body. 7 It is based in Lions, France, and it has the specific 8 responsibility of developing programs and policies 9 internationally for the prevention and treatment of cancer. 10 Q And what's the date of that article? 11 A 1977. 12 Q- And what, to you, is the significance of that article? 13 A Well, they review all of the literature which appeared 14 concerning 2, 4-D prior to the 1977 date. They come to the 15 conclusion that there are animal studies which support the 16 occurrence of the toxic problems, for instance the 17 neurological disorder and muscle disorder. They come to 18 the conclusion that there are studies which suggest in 19 animals that the material is cancer-causing in animals, 20 that additional work needs to be done, and that the material 21 is not at that time able to be classified clearly as a human 22 carcinogen. j 23 Q Is a neurological disorder a common sequela of a toxic 24 problem? 25 A It certainly occurs very commonly. It's one of the thin ,;s >-ISl I we see most often. -78- 2 Q All right, sir. Does it refer to any 1951 studies? 3 A Oh, yes, it goes all the way back to the 1945 work 4 that the Japanese did on toxicity, work that was done in 5 the United States in the early forties, and then work after 6 that in the fifties. 7 Q And that's relating to the toxicity of 2, 4-D? 8 A That's right. 9 Q Going back to the forties? 10 A 11 Q 12 13 14 That 's right, forties and fifties. Now, 16 G. MR. ORTEGO: Mr. Baldwin -MR. BALDWIN, SR.: Yes? MR. ORTEGO: I think you passed me. ; i ! 1 j ! J jj 15 (Mr. Baldwin, Sr. tendering exhibit to Mr. Ortego 16 for examination.) 17 MR. ORTEGO: I'm sorry. Thank you. 18 (Mr. Baldwin, Sr. continuing:) 19 Q 16 G? 20 A 16 G and 16 U are the same thing. One is the abstract 21 and the other is the actual article. It's a letter that 22 Dr. Hardell and Dr. AxeIson who' are the two peoole j i ' 23 in Sweden who have done most of the work on herbicides and 24 cancer, to the editor of the Lancet discussing another : i ; 25 article with appeared on the subject. Dr. Hardell discusses j 1498 | V -\sa .o - \ 1A -80It's another study which indicates that there is an 7 increased risk and that it likely does cause Hodgkin's 3 disease. 4 Q 16 H, Doctor? 5 A 16 H is an abstract of a paper. I have read the entire ; 6 paper as well. Dr. Zetterberg demonstrated that in yeast, ! i 7 yeast compounds, that 2, 4-D related compounds are capable : * 8 of causing mutations, and that in order to test the system i 9 properly you have to make some adjustments in the pH in ; 10 order to promote the absorbtion of the material into the ; 11 cell. This is particularly important because the pH that 12 he came to was 4.5. The pH of the skin is around 5, and I i j 13 when 2, 4-D gets on the skin it does penetrate the skin j i! 14 because of the fact that the skin pH is close to the ideal j 15 pH for penetration. \ 16 Q Does it refer to any effect it has on genes? , 17 A Yes. It says that it was mutagenic. It causes gene 18 changes in the yeast, as well. i 19 Q 16 J? 20 A 16 J is a paper by Hardell, another one of his papers . I j 21 in the British Journal of Cancer. It's the same paper that 22 we have a 16 K, and it's a paper which is a case control j tj 23 study, meaning that Dr. Hardell went back after he saw the j iI 24 seven cases of soft-tissue sarcoma and he did an epidemiologit i1I 25 study where he matched cases and people who didn't have the I I am not, going to try and pronounce the name of -- -83- 2 Lakartidningen. 3 Q And is that the one -- 4 A And I apologize for that. I can spell it if you'd like 5 me to -- L-a-k-a-r-t-i-d-n-i-n-g-e-n. 6 Q Is that the one that Hardell published his paper in 7 originally? 8 A Yes, that's right. 9 Q And what date was that? 10 A That was Volume 77, 1980. 11 Q All right. What is 16 N? 12 A 16 N is the English version of the same paper. It's 13 called "Herbicide Exposure and Tumor Mortality." It 14 appeared in the Scandinavian Journal of Work Environment 15 &. Health in 19 -- Volume 6, 1980. And he found -- again, 16 he restates that he found the increased risk, and his final 17 conclusions were the result being in agreement with animal 18 data and other epidemiologic studies suggets the need for 19 careful handling of amitrol and phenoxy acids as increasingly 20 suspicious carcinogens. 21 Q And the next is 16 0? Could you tell us -- I'm sorry. 22 Did we get the date and where that was published? 23 A We did. A 1980 Scandinavian Journal of Work Environment 24 & Health. 25 Q I'm sorry, go ahead. 16 0? 1500 >-153.4 1A 2Q 16 0 is a paper -- -84 Start out with the date and where it was published. 3 A It's a paper which appeared in the Journal of 4 Occupational Medicine, which is American Journal Volume 5 22, No. S, June 1980. It's by Christer Edlirig 6 and Sven Granstram. It's called "Causes of Death 7 Among Lumberjacks, a Pilot Study." And again, this paper 8 shows an increased proportional mortality ratio, an 9 increased risk of death from cancer of the lymphatic 10 and hematopoietic system, which would include the malignant 11 lymphomas. 12 Q' Now why is this paper significant, Doctor? 13 A Well, because this was a study that was done which 14 showed that overall -- overall lumberjacks had less deaths 15 than most people. They live a healthy life except for two 16 things: 1) they die violent deaths, accidents and mayhem; 17 and, 2) they die of cancers of the lymphatic and hemato 18 poietic system at rates greater than normal people. So 19 even through there was a health worker effect in that 20 population, the malignant lymphomas were increased. 21 Q And what's the significance of the fact that they are 22 lumberj acks? 23 A Well again, they were exposed to the 2, 4-D and 24 amitrol. That's exactly what it says. 25 MR. OR T E G O : I am g o i n g to object, Your to 1 this speculation, unless he knows firsthand. -85- 2 THE COURT: I sustain the objection. 3 (Mr. Baldwin, Sr. continuing:) 4 0 Well, did the article refer to that, Doctor? 5 A It refers to -- I'll have to give you the exact 6 statement. "Particular attention was paid to deaths from 7 certain types of cancer, as an exposure to phenoxyacetic 8 acids of a great many lumberjacks in Sweden has occurred 9 since the early 1950s, and therefore could be reflected 10 in the increase of some of the relatively rare tumors as 11 indicated in the former studies." That's on Page 403, the 12 second paragranh. 13 MR. ORTEGO: I am going to object to the question 14 again. I think, as Teitelbaum knows, there are many 15 phenoxyacetic acids -- many. And in addition, that's just 16 a line taken out of that study, I think out of context, 17 and of course I will do it during my cross if I think it's 18 necessary. But I object to these inferences in lumberjack 19 studies that they were exposed to 2, 4-D. I think it calls 20 for speculation, and it's not even my client's product. I 21 think it's really calling for speculation and unfair at this point, Your Honor. 23 'THE COURT: Overruled. 24 (Mr. Baldwin, Sr. continuing:) 25 Q Is phenoxyacetic acid 2, 4-D? 1502 O -isat A It includes 2, 4-D, as we indicated before. -86- Q The next article, 16 CC, British Journal of Cancer, 1981, Hardell and Eriksson? A I'm sorry, I am out of order. I don't think I have a copy of that at this point in this packet. Q I'll give you my copy (tendering). A Okay. Okay, yes. This is a paper which appeared, the * same group, Hardell, involved from Umea, in Sweden, published in 1981, in which he went ahead and did his further case reference study. He did a match case control study has been performed with cases of malignant lymphoma, I including Hodgkin's disease and non-Hodgkin's lymphoma. The study included 169 cases and 338 controls, and the results indicate that exposure to phenoxyacetic acids, chlorophenols and organic solvents may be a causative factor malignant lymphoma. Combined exposure to these chemicals seems to increase the risk. Exposure to various other agents was not obviously different in cases and in controls. Q Does that study then suggest a correlation between exposure to 2, 4-D and Hodgkin's disease? A Yes. Q Next is 16 P, and this is Edling, 1981? A Yes, this is Edling's paper. ! Q Again, it's in that -- A Yes, in the Swedish Journal, and it's in Volume 78, 1981. 1503 D-1^3.7 -87- And what he did here was to look at the possibility that some of the impurities in these chemicals, the chlorophenoIs, might have been responsible for the tumors; and he comes to the conclusion that whether there are impurities or not, the data supports the fact that the association is with the phenoxyacetic acids themselves. Q And what are the phenoxyacetic acids? * A That's this group including 2, 4-D. Q And next is 16 R is the British Medical Journal of Industrial Medical. A The British Journal of -- Q- Let me start over. The British Journal of Industrial Medicine, 1981. A That's correct. This is a paper by Eriksson and Hardell, Berg, Moller and Axelson. It's a review in 1981 of the 1977 data. They did a further study, and the conclusion of this study was that the further case reference study of soft-tissue sarcomas has now been performed to confirm the earlier findings and also obtain further information on the effects of phenoxy acids. The new investigation gave an increase of the same magnitude in the risk for soft tissue .sarcomas after exposure to phenoxy acids or chlorophenols, but this risk also related to exposure to phenoxy acids free from impurities. Q AIL right. Now if I understand it, the significance of 1504 -88I this is two-fold. One, it reaffirmed the earlier Hardell 2 studies, is that correct? 3 A Yes. 4 MR. ORTEGO: I am going to object. It's leading 5 and it's testifying. He can ask the expert questions and 6 not tell him what he thinks it is. 7 THE COURT: Overruled. 8 (Mr. Baldwin, Sr. continuing:) 0 90 10 A Did it provide any new information, Doctor Teitelbaum? Yes. It provided the information that it appears the II association is with the chemical itself, not with the 12 contaminants in the chemical. 13 Q I believe we got the date, 1981, on that. The next one 14 is 16 S. Could you tell us what that is, and the date of it 15 and where it appeared? 16 A Yes. This is a paper which appeared in the Scandinavian 17 Journal of Work Environment and Health in 1981 by Dr. Hardell 18 He reviews his study following criticism which other people 19 have made of the study. He feels that he finds no investiga 20 tional bias, arid that based on the study as ho reads it, an 21 association between exposure to organic solvents and 22 malignant lymphoma has been demonstrated, and in addition, 23 an association between exposure to phenoxy acids or 24 ch1oropheno1s and soft tissue sarcoma and malignant lymphoma 25 has been demonstrated. 1505 P - lS a ? -89- Q When it says "phenoxy acids and chlorophenols," what is he referring to? A The same group of chemicals, including 2, 4-D. Q And did they balance this off with a group of people who had colon cancer? A Yes, they did. Q And why did they do that, and what's the significance of that? A Well, that problem that was raised was whether people who have cancer when asked the question would be more likely to recall an event which they thought caused the cancer. And so they took two groups of people who had cancer, unrelated kinds of cancer, and they asked the same kinds of questions and found that in the group that had the malignant lymphomas and in the group who had the Hodgkin's disease and the softtissue sarcomas, they still reported the exposure to the chlorophenoxy compounds and ohenoxvacetic acid, whereas the people that had the colon cancer did not have that. So there was no association between colon cancer and phenoxyacetic acid and there was between soft-tissue Sarcoma, Hodgkin's disease and malignant lymphoma in general. Q So would I be correct in saying they picked a group of people that have cancer that's not likely to be associated with herbicide, colon cancer? MR. ORTEGO: I am going to obyect to the form of th 1506 CH3d question, Your Honor. -90- THE COURT: Overruled. A They made the assumption that it wouldn't be, and that was what they were testing; and indeed, based on the experimental test, there was no relationship. Q And the reason -- A I'm sorry. And there was a relationship with the other side. Q And is the reason they did that is that a person who had colon cancer is less likely to go back and say, "Well, that was my herbicide thing," because there was no associa tion between them? A They didn't know that. They just said -- because people have said if you have cancer they are likely to recall something which you want to blame it on, they wanted to see if people who had colon cancer would also recall that they had herbicide exoosure and blame it on that. They did not find that. Q Okay, sir. Did that validate the Hardell Report or not ? A Yes. THE COURT: Well, wasn't 16 S a Hardell Report? MR. BALDWIN, SR.: There are a couple. THE COURT: Scandinavian, in 1981? 1 5 0 7MR. BALDWIN, SR.: There are three so far. X7"(531 1 THE WITNESS: Yes, Your Honor. -91- 2 MR. BALDWIN, SR.: 1979 there is one, and in 3 19 -- 4 THE COURT: All right. Okay. 5 THE WITNESS: He is validating his prior study, 6 Your Honor. 7 THE COURT: All right. 8 (Mr. Baldwin, Sr. continuing:) 9Q 16 V, Doctor. 10 THE COURT: "V"? 11 MR. BALDWIN, SR.: "V" like in victory. 12 MR. ORTEGO: Let me catch up with you, Mr. Baldwin. 13 J 14 MR. BALDWIN, SR.: I'm sorry? MR. ORTEGO: I just need to catch up with you. 15 Where are you, here? 16 THE COURT: You are about to run out of letters. 17 MR. BALDWIN, SR.: I am about to run out of 18 reports, thank goodness. 19 (Brief pause, Mr. Ortego comparing exhibits.) 20 Q While he is looking, can you tell us what that is? 21 A Yes, it's an article by Korte and Jalal, 22 J-a-l-a-1. It appeared in the Journal of Heredity in 23 Volume 73, 1982. Dr. K o rte and his colleague looked at 24 another effect on the reproductive material of cells. They 1 5 0 825 looked particularly at the chromosomes, and they demonstrated that after exposure to 2, 4-D the number of damaged -92- chromosomes which were observed was significantly increased. And the way they put it was that chromosome damage, though statistically significant, statistically insignificant, occurred at dosages as low as .2 micrograms per mil. Chromosome damage was increased at a statistically significant level whenever the concentration was 50 micro grams per mil. or higher. Mutagenicity based on rates of Increase in sister chromogenic changes was significant that 10 micrograms per mil. or higher; and then finally, it seems imperative, therefore, to avoid any indiscriminate use of 2; 4-D, and to test the compound for long-range, low-level exposures. Q Now, what does that mean to you? A It means that there is an increased risk of damage to the genetic material, and that means that it is more likely to be a carcinogen than not. O Additional evidence that it is a carcinogen? A Yes. MR. 0RTEG0: Object to the form of the question, Your Honor. THE COURT: Overruled. Q 16 DD -- two Ds. Did we get the date of that? THE COURT: 1982. MR. BALDWIN SR.: Good. 1509 V- iS33 1 THE COURT: And 16 V was 1982. -93- 2 MR. BALDWIN, SR.: Thank you, sir. 3Q 16 DD is 1983 British Journal of Cancer. Do you have 4 that, Doctor? 5 A No, I think I am going to need your copy of that, 6 Mr. Baldwin. 7 (Mr. Baldwin tendering.) 8 A Okay. This is another paper by Hardell and Bengtsson. 9 And here they've gone back to look at the study from another IO point of view. He reports his previous cases, and his II conclusion now is that the particular point that they were 12 trying to deal with was as follows: there is an observation 13 that Hodgkin's disease is more likely to occur in persons 14 of upper class than in persons of lower class, and in persons 15' of greater education than in persons of lower education. 16 So one of the accusations that was made of bias in the 17 study was that there were too many people of higher class 18 in the cases and not enough people in the higher classes 19 in the controls, so that the net result was that there was a 20 bias because of educational and social class level. 21 He went back. He redid the study again, looking at 22 that particular question. He said "the influence of previous 23 diseases and socioeconomic factors was analyzed through a 24 supplementary questionnaire. No differences were found in 25 cases and controls for such variables, except for tonsillecton 1510 -941 w hich was o v e r - r e p r e s e n te d among th e c a se s, as w ell as a -1 h i s t o r y o f p r e v i o u s d u o d e n a l u l c e r o r v e n t r i c u l a r u l c e r a t i o n . .1i 3 T h e s e f i n d i n g s w e r e i n s i g n i f i c a n t . 40 W hat does th a t m ean to you, D o ctor? 1 5 A - W hat i t b a s ic a lly m eans is th a t th e stu d y , even on th a t p o in t w hich was being c ritiq u e d was v a lid , and th a t the 6 7 ris k s s t i l l held up even if you trie d to say th a t th e reason >j ! 8 it happened was because of in a p p ro p ria te and so c ia l c la ss ! 9 m atching of the c o n tro ls. i Q When you s a y " t h a t s tu d y ," a r e you r e f e r r i n g to i1 1 11 t h e H a r d e l l ? 12 A . Y e s , t h e H a r d e l l M a l i g n a n t L y m p h o m a S t u d y . 13 Q A ll r ig h t, 16 AA. J 14 THE COURT: E ig h t, No. 8? 15 M R . B A L D W I N , S R . : " A " l i k e " a t . " " A A , " t w o " A s , " iiI 16 d o u b l e " A . " 17 T H E C O U R T : O h , " A , " a l l r i g h t . 18 M R . B A L D W I N , S R . : " A A . " 19 ( M r . B a l d w i n , S r . c o n t i n u i n g : ) 20 Q I t 's the H ardell E pidem iological S tudies of S o ft-T issu e 1 Sarcom a, M alig n an t Lymphoma, N asal -- J1 A 23 I th in k we have a lre a d y gone o v e r th a t one. (M r. B aldw in, Sr. ten d erin g to w itn e ss.) ] 24 A O kay, th is is a c h a p te r from a book. 1 1511Q F i r s t o f a l l , w h e r e a n d w h e n w a s t h a t p u b l i s h e d ? ] - 95- A It's a chapter from a book on occupational exposure and effects of phenoxv acids and ch1oropheno1 exposure. I am sorry, I don't have the date of publication. Q 1983. A Okay. And here Dr. Hardell reviews all of his previous work and restates the risks as he has calculated them. In particular, in Page 370 he gives his risks as he's calculated for Hodgkin's disease for phenoxy acids is five times increased; for high grade chlorophenols, a six point five times increase; and he gives as the reference for that a paper which we have previously talked about, that's the Hardell and Bengtsson study. Q So is Hardell in 1983 still sticking to his opinion that 2, 4-D causes Hodgkin's disease? A Yes. 0 18 A. Do you have it, the weed study? The Scandinavian Journal of Work Environmental Health, 1986? A Well, I don't have a copy of that in front of me, but 1 have -- that's the article on the rice weeders, and it's an article that appeared in the Scandinavian Journal of -- Q Please hold your voice up. A I'm sorry. It's an article which appeared in the Scandinavian Journal of Work Environment and Health. It was done in Italy. In Italy, the people who weed rice are all women. It's not a job that men do. The paper demonstrated 1512 V- -96- bv studying the official statistics what materials were used.i ! They demonstrated that more than 4.8 tons of 2, 4-D were usedj li in the three provinces studied, and what they found was that ! ! the women who did the rice weeding had an increased incidence of soft-tissue sarcoma, as had been found in other studies previously. There are some problems with the study because of the age distribution and so on, and the fact that there are no men in the study, but it's one more confirming study done in a different country but where there is information as to the amount of 2, 4-D that was used. Q And what does that mean to you? A- It means that the same risk that's been seen was confirmed again. Q All right, sir. Now has there been a study -- well, 16 Y? A Okay. Q Do you have it before you? A Yes. Q Can you tell us what it is, please, sir? A It's a study by Dr. Shelia Hoar and Aaron Blair and colleagues from the Occupational Study Section, National Cancer Institute, published in the Journal of the American Medical Association 1986. Q And what does that study suggest? A What this study did is it looked at all the new cases P-\f3'7 -97- 1 of soft-tissue sarcoma, Hodgkin's disease and non-IIodgkin's 4-> disease in Kansas at a certain period of time. The definitic 3 was that men who had -- men who were exposed to herbicides 4 more than twenty days per year had a six-fold increased 5 risk of non-Hodgkin's lymphoma relative to non-farmers. 6 Frequent users who mixed or applied the herbicides them 7 selves had an odds ratio of eight for non-Hodgkin's lymphoma. 8 They did not find an increase for Hodgkin's lymphoma. 9 Q Would it be fair to characterize that study as saying 10 that there is a relationship between 2, 4-D and malignant II lymphoma? 12 A- Yes. 13 Q Non-Hodgkin's? 14 A Yes. IS Q But they did not find a relationship between 2, 4-D 16 and Hodgkin's? 17 A Yes. 18 Q All right.. Now, do you have any criticism of that 19 study and the way it was conducted? 20 A Well, the general study is reasonably well designed. 21 The problem with the study is exactly the problem we've 22 seen in this case, that trying to classify cases of 23 Hodgkin's disease or non-Hodgkin's lymphoma, unless you 24 are dealing with single pathologists at a very high-level 151425 institution, are likelv to be very problematic. We know D- iS 3 f -98- that there is an approximately twenty-five percent error in the diagnosis. If you apply the number of cases which Dr. Hoar couldn't find material, plus the number jf cases which were questionable for Hodgkin's disease, you :ome back up with the same twenty-five percent that we have been dealing with that are uncertain. Once you take the twenty-five percent uncertainty factor into consideration, then it's highly questionable whether she can make the statement that there is no relationship with Hodgkin's disease, because if you put all those cases in and say that there were Hodgkin's disease and they were exposed, you would come out with exactly the conclusion opposite to what she concluded. So I think what it says and what I would be willing to accept is that there is an association between lymphoma and exposure to 2, 4-D. Q Well, let's talk about those numbers a little bit. A Okay. Q How many people did they review altogether? A There were a total of 670 patients involved. Q Does the study -- can you tell from reading the study how many specimens were not able to review, or what percent? A Thirteen percent she said she couldn't find. Q Thirteen percent of the specimens. (writing at easel) Thirteen percent of the specimens were not available? D-15.37 1A R igh t. As they put i t , "P a th o lo g y specim ens for -99- 2 e ig h t y -s e v e n percent o f the c a se s were re vie w e d ." 3Q A ll righ t. 4A So th irte e n percent. Specim ens for the rem aining 5 c a s e s e it h e r c o u ld not be o b ta in e d , eleven p e rce n t, or were 6 p o o r o r o f i n s u f f i c i e n t q u a l i t y to a llo w re v ie w , two p e rc e n t. 7Q A ll righ t, t h a t ' s th irte e n percent? 8 A Right. 9Q And then w h a t' s the o th e r c a te g o ry ? 10 A Then, for the th ree d is e a s e s , the co n firm a tio n ra te s 11 w e r e e i g h t y - o n e p e r c e n t f o r s o f t - t i s s u e s a r c o m a , e i g h t y - 12 f i v e p e r c e n t f o r H o d g k i n ' s d i s e a s e , a n d n i n e t y p e r c e n t f o r 13 n o n - H o d g k i n ' s l y m p h o m a . S o w h a t we a r e n o w l o o k i n g a t i s 14 f i f t e e n p e r c e n t o f t h e H o d g k i n ' s d i s e a s e c a s e s c o u l d n ' t b e 15 c o n f i r m e d o f t h o s e t h e y a c t u a l l y l o o k e d a t , a n d i n a d d i t i o n 16 t o t h a t , t h e r e a r e t h i r t e e n p e r c e n t t h a t t h e y c o u l d n ' t f i n d . 17 Q So i f you add th a t - - in o th e r w ords, you had f if t e e n 18 p e r c e n t o f t h e H o d g k i n ' s d i s e a s e c a s e s t h a t w e r e o r i g i n a l l y 19 d i a g n o s e d c o u l d n o t b e c o n f i r m e d , r i g h t ? 20 A T h a t 's r ig h t . So they were som ething oth er than 21 H o d g k i n ' s d i s e a s e . 22 Q (W r it in g at e a s e l. ) That g iv e s you a t o t a l of what? 23 A A to ta l of, w ell, tw enty-seven percent. 24 Q Twenty-seven percent o f the specim ens in th is study that 25 c o u l d n o t b e d i a g n o s e d o n e w a y o r t h e o t h e r - - 1516 P-l 1 A Right. -100- 2 Q -- whether it was Hodgkin's disease or not? 3 A Right. 4 Q And how does that tally with what you found in the 5 literature and in your experience? 6A 7Q 8A 9Q It's about the same. And if you put that -- And for the same reasons. If you put that bias in that study, what does that 10 study, what does that mean? 11 A Well, what it means is that if you then -- you can 12 make a number of assumptions, that they are evenly divided 13 among all the categories, that they were all Hodgkin's 14 disease or they were all non-Hodgkin's lymphoma. Or any 15 one of some -- you know, anything between that. But what 16 it does is it says that the basic contention of the study, 17 that there is an association with lymphoma is supported, 18 but the second contention of the study that there is no 19 association with Hodgkin's disease is not supported. 20 0, All right. Now is there -- 16 X? 21 A 16 X is an editorial which appeared in the same issue 22 of the JAMA by Dr. Colton who is at the Boston University 23 School of Public Health. Dr. Colton acknowledges Dr. 24 Hardell's studies, he acknowledges Dr. Hoar's studies. Says 25 he thinks Dr. Hoar's study is better than Dr. Hardell's 1517 D-I5V/ -101- study because the case finding was better and there was no, quote, "no bias," and that he agrees that there is an associa tion with lymphoma. He does not critique the issue of whether or not the study was able to distinguish between Hodgkin's and non-Hodgkin's lymphoma. He simply observes that Dr. Hoar says that there did not appear to be an association with Hodgkin's disease. Q Did he also say that the debate goes on? A Oh, more than that. He actually gives the number of studies that favor one position and the number of studies that favor the other position, but he doesn't list all the studies. So I think that he does agree that there is an increased risk for lymphoma, in general. THE COURT: What is the date of that, please? THE WITNESS: That's 1986, Your Honor. September 5th, 1986, JAMA. (Mr. Baldwin, Sr. continuing:) Q Have you before you 20 BB, like in boy? MR. ORTEGO: What is that? MR. BALDWIN, SR.: That's the Krummel Report. MR. ORTEGO: Okay. A I am sorry, I do not. Which paper is that? Q Krummel, Krummel Report. A Yes, that I do have, 20 BB. I am sorry. I have it listed as 21 A, but -- 1518 D -lS ^ - 102-; Q Well, let's keep the same designation as was in the j I Watson deposition of 20 BB. j A Thank you. Q We'd better remark that 20 B-4, or whatever it was. ! i MR. BALDWIN, JR. : It should be 19 A. MR. BALDWIN, SR. : My lawyer over here tells me I'm wrong. I had better change it or we'll have the record * fouled up. This should be 19 A. (Mr. Baldwin, Sr. continuing:) Q Could you look at 19 A, Dr. Teitelbaum, and tell us J j II i i i I what it is? A- Yes, it's a document which comes from the Central Report Index of the Dow Chemical Company. It's entitled an R & D Report, Dow Chemical Company U.S.A., and it's dated October 27, 1978. Q And what does it relate to? | i 1 A It's a report of a study that was done within Dow Chemical Company concerning the removal of impurities in | iI the process for making 2, 4-D. That it had been observed that two impurities which are highly toxic had been found in 2, 4-D, that they were present as a result of the process. They describe the impurities. They describe the theory of what results in the making of these impurities, and then they propose what might be done to reduce the presence of these impurities in the 2, 4-D. 1519 P -ISV 3 -103 Q And when in the process would these impurities have been in the 2, 4-D? A They were in the 2, 4-D prior to 1978, and they were introduced into the 2, 4-D as a result of the chemical process involved in making the 2, 4-D. MR. ORTEGO: I am going to object unless he knows the process changes at Dow or he is just guessing, and we will object unless he has foundation. (Mr. Baldwin, Sr. continuing:) Q Are you generally familiar with -- THE COURT: Is this a Dow Chemical document? MR. BALDWIN, SR.: Yes. MR. ORTEGO: Yes, it is. THE COURT: Overruled. (Mr. Baldwin, Sr. continuing: ) Q You are general 1y familiar with the general way or chemical process of manufacturing these herbicides? A It's specifically stated in this document -- Q Well, go ahead. A -- exactly how it's done. In this particular instance, the acid was reacted at high temperature in the presence of perchlorethvlene, and the chlorines were transferred to the phenoxy acid; and in the course of this happening, a series of side compounds were formed which were of the type which are highly toxic and are what this report is all about. 1523 D-isW ] And there's a -- -104- 2 Q Would that -- 3 A -- discussion of the whole process. 4 0 -- mean that these impurities were in the Dow product, | 5 2, 4-D, prior to that time as it was manufactured in the 6 manufacturing process? 7 A That's correct. 8 MR. ORTEGO: Your Honor, this is pure speculation. 9 He doesn't know what was in a product. He is reviewing a 10 document which is an analytical method to analyze our product. 11 THE COURT: Well, I'll let him testify if he knows. 12 Q- Based on that report and your knowledge, would those 13 impurities have been in the Dow product the years before 14 that report -- they were found -- which gave rise to that 15 report? 16 A It indicates that the particular process they ar$x 17 concerned about was started in May 1977. s' 18 Q All right, so that would mean -- 19 A And it indicates, quote: "Shortly after the start-up 20 of the new 2, 4-D process in 948 Building, a new and 21 unexpected class of nonacetic impurities were isolated in 22 which two of the major components were tetrachlora xanthone 23 and octochlorospirobyxanthene. These impurities were causing 24 problems in the subsequent formulation of the 2, 4-D as amine 25 salt." 1521 X)- iSHb 1 Q A]] right, let's take that one at a time. Does it say V 2 then that those impurities have been in that process at least 3 from 1977? 4 A Yes. 5 6Q MR. ORTEGO: Objection, Your Honor. Does it describe the type impurities? i 7 THE COURT: Wait -- what is the objection? 8 MR. BALDWIN, SR.: I'm sorry. 9 MR. ORTEGO: The objection is it doesn't say that, 10 Your Honor. It says: "Shortly after the start-up of a new 11 2, 4-D process in 948 Building a new and unexpected class 12 of nonacetic impurities were isolated." It's dated October 13 27, 1978. It talks about a new chemical process of a company, 14 and it's different from the previous process so how can it 15 be before if it's a different process? It's just developing 16 a new process. How can you say what happened before that? 17 THE COURT: Overrule the objection. 18 (Mr. Baldwin, Sr. continuing:) 19 Q Didn't you refer to 1977, Dr. Teitelbaum? 20 A The statement says: "A new process for preparing 21 high purity 2, 4-D was started in May 1977 at 948 Building." 22 Q All right. And so then my question again is according 23 to that report these impurities were in the 2, 4-D manu 24 facturing process going back to 1977? 25 A That's correct. That's what it says. 1522 1Q *> . A -106- Now then, what type impurities did they describe? These compounds are called heterocyclic polynuclear 3 compounds, the two particular compounds are xanthone 4 derivitives, and they are chlorinated and they are of the 5 type which are highly likely to be carcinogenic. 6 Q Are they the type -- well, do you have anopinion \ 7 whether or not they are of the type that would cause the * 8 condition of Mr. Greenhill, as you found it? 9 A I have an opinion about that. 10 0 And what is your opinion? 11 A I think they would be contributing causes. ' i j !i i ! i j 12 Q- Now, is there any evidence that Dow ever toldanyone ! 13 about finding these impurities in their manufacturing 14 process? i I ! iii j ii 15 MR. ORTEGO: Objection, Your Honor. It calls for j 16 speculation. 17 THE COURT: If he knows. 18 A None of the reports which were furnished to us indicate 19 that they ever notified anyone. In all the reports 20 listed as "unpublished," in the bibliography of the paper. 21 Q And confidential? 22 A That's correct, and marked confidential. 23 Q Is that one done the same way? 24 A It says -- the bibliography is attached to it, and all 25 of these are unpublished reports that are in it. 1523 D-IS-/7 - 107- Q Does Dow have an obligation to report such a finding of such impurities to the EPA? MR. ORTEGO: Judge, I am going to object. First, there is no evidence that Dow didn't report this. It calls for speculation because he thinks the report is unpublished; and, two, now we are going to an area of what he thinks the duty of Dow Chemical Company is. THE COURT: I sustain the latter part of your objection as to'the duty of Dow to do anything with the Environmental Protection. MR. BALDWIN, SR.: Let me phrase it another way, and I may be able to get to it and I may not. (Mr. Baldwin, Sr. continuing:) Q Are you familiar with the rules and regulations of the EPA? A In general, yes. Q Do they have reporting requirements? A They do. Q And do they have reporting requirements relating to impurities that might be toxic, hazardous to human health, in products manufactured? A They do. Q And do those reporting requirements require a manu facturer to report finding of- impurities in their product? A They do. 1524 p-iSV f +08- Q Did you find any evidence that Dow ever made any such report to the EPA? MR. ORTEGO: I am going to object unless he can set a foundation how he would know what the Dow Chemical said. THE COURT: I will let him testify what he knows, if he knows. If he doesn't know, he can so state. Q The EPA records are public, are they not? A Yes. Q Do you have any evidence or have you ever seen any record or report where Dow reported this to the EPA? A- No, I have not. Q Have you ever seen in the published literature, like what we've gone through today for the first hour or so, any published report by Dow in the JAMA, Journal of the American Medical Association, Cancer Journal, British Medical Journal, British Cancer Journal -- any legitimate medical journal where Dow reported the finding of these impurities? A They did not, and I have not found it; and 1 have looked very, very carefully for it. Q Was the fact that they had these impurities, or found them in their manufacturing process, ever reported in the 1iterature? A The first finding of these chemicals at all and their toxicity appears in Nature in 1986, and it came from a group 1525 D-isvf 1 entirely different from the Dow group. -109- 2Q Is this something that would be of significant interest 3 to the scientific community to know about the finding of 4 these type impurities in the process of making 2, 4-D? 5 MR. ORTEGO: This calls for even more speculation, 6 and it is building on a house of cards that have a falling 7 base, and I think it is very unfair and prejudicial at this 8 poi nt. 9 THE COURT: Overrule the objection. 10 A Yes. Yes. II Q And explain. 12 A' Well, you go to the scientific literature and you 13 continually read about studies that are done with 2, 4-D, 14 and they talk about various impurities. I have never seen 15 that anyone was aware that these particular impurities were 16 present in the substances. Because of the nature of the 17 impurity, they are of the company of highly dangerous 18 materials, and the fact that the investigators never knew 19 and never knew where to even begin to look for these com 20 pounds, they were never told that they could be present, 21 would be a very serious problem in the testing of these 22 materials of 2, 4-D. 23 Furthermore, because all the tests which are done today 24 are being done on compounds which it appear have been cleaned 1 5 2 625 up, and I don't know that for a fact, but the process P-/5S6 - 1 10 memorandum indicates that it's been -- that processes have been developed for taking it out. Studies which are done now would not fairly represent the carcinogenicity of materials made prior to the time that these materials were taken out of the 2, 4-D. MR. ORTEGO: I would ask that the answer be striken, Your Honor. I think it is speculation. He does * not know for a fact, he even said it in part of his answer, and he is just speculating what he thinks. THE COURT: Overruled. It goes to the weight, not to the admissibility. (Mr. Baldwin, Sr. continuing:) Q Does that study, then, establish in your mind beyond any question that there are highly toxic impurities found in the 2, 4-D manufacturing process prior to 1978? A Yes. THE COURT: You are still speaking of 19 A? THE WITNESS: 19 A, Your Honor. 0. I'm sorry, 1980. A No, 19 A. THE COURT: 19 A, Exhibit 19 A. MR. BALDWIN, SR.: Right. I thought you said "1980." A Yes. Q Is the answer to the question yes? 1527 P-1 ^ i IA 2Q That's correct. -1 1 1 - And if Dow is testing their products now and telling 3 people of results of impurities, would that truly reflect 4 what was going on back in 1977 and '78 when Mr. Greenhill 5 was being exposed to 2, 4-D? 6 MR. ORTEGO: I am going to object to the form of 7 the question. I don't see how he can make this connection. 8 It is really calling for speculation. 9 THE COURT: I sustain the objection in the manner 10 in which that question is asked, Mr. Baldwin. Rephrase your 11 question. 12 (Mr. Baldwin, Sr. continuing:) 13 Q If Dow is making tests of its products now, that is 14 the products manufactured after the date of that report, 15 1978, would that truly reflect the state of the impurities 16 in the 2, 4-D process prior to 1978, that is from the time 17 they found these problems in 1977 forward? 18 MR. ORTEGO: I am going to object to the form of 19 the question, Your Honor, and also it assumes facts that 20 are not in evidence. 21 THE COURT: Well, as I understand, this 1980 report is dated 1978, is that correct? 23 I 1 24 THE WITNESS: That's correct, Your Honor. THE COURT: And you are asking whether or not if they came up with some problems in 1978 are they talking 1528 1 about problems that existed before 1978? -112- 2 MR. BALDWIN, SR.: No, sir. My question is let's 3 say Dow tested their product today, 1980 -- let's just say- 4 in 1980 -- and they reported the result of their product 5 as it was made in 1980. Now I am trying to make the point 6 that that would not be the same product that was being 7 manufactured prior to the time they found these impurities 8 when they changed their product. 9 THE COURT: I sustain the objection to that 10 question. 11 (Mr. Baldwin, Sr. continuing:) 12 Q- Now, do you have the carcinogenic report? 13 A I have 20 UU, which is the rest of the Dow reports. 14 Q Okay, what is 20 UU? 15 A 20 UU is dated October 10th, 1978, and it's called 16 the "Acute Toxicological Properties and Industrial 17 Handling Hazards of 2, 4-5-7 Tetrachloroxanthone. " It 18 shows that based on animal studies which were carried out 19 in the laboratory -- 20 Q By who? 21 A -- by Dow Chemical, that applications of the test 22 material in dilutions as low as .001 percent, ten parts 23 per million in the chloroform, resulted in a positive 24 reaction on the rabbit ear chloracne test. Application 25 of .000 1 and .00001 resuI Led in a negative chloracne ^ 1_u w & D-IS53 -113-' I response. Skin irritation tests indicated that it is not | 4*> likely to be absorbed through the skin in acutely toxic ; 3 amounts. Precautions such as wearing protective clothing 4 must be taken to prevent skin contact. If contact occurs, 5 wash the affected area with soap and plenty of water, 6 thoroughly clean the contaminant clothing before reuse or 7 discard. And at the beginning it says this material also * 8 known as 2, 4 -5 - 7 tetrachloro-9-H-xanthene--9-one is an impurity 9 at 20 to 100 parts per million in 2, 4-D. 10 Q Now in just plain old, everyday language, is that 11 referring to the impurity that was found in the process that 12 you just talked about in the Krummel report? 13 A Yes, sir. 14 Q And does it say that it's a carcinogenic? 15 A It says it's chloracnogenic, it can cause chloracne. 16 Q And that's Dow saying this? 17 A That's correct. 18 Q And does it say that protective clothing must be worn? 19 A Yes. 20 Q Do you find that language on any Dow label? 21 A 22 Q I do not. And the next is 20 MM? 23 A Yes, sir. 24 O And what is it? 25 A 20 MM is a report from the laboratories, Toxicology D -IS3 y -1141 Research Laboratory Health and Environmental Sciences USA, 2 Dow Chemical, Midland, Michigan. The date of this report 3 is 2-27-80. And it says that nine samples related to the 4 2, 4-D nrocess were submitted for evaluation of ch ior acnogen ir. 5 potential. It reviews what chemicals were present, and it 6 comes to the conclusion -- I'll go to the last page, the 7 final conclusion -- "Materials containing tetrachloro * 8 xanthone in excess of 75 parts per million should be 9 considered potential human chi oracnogens-, and human skin 10 contact with these materials must be prevented." II Q Is that again relating to the impuritiy that was found 12 in the Dow nrocess? 13 A This is 1980, yes. 14 MR. BALDWIN, SR.: Your Honor, it's almost noon, 15 and I believe if we can adjourn a little early I can collect 16 everything during the noon hour and be through very shortly 17 after lunch. 18 THE COURT: All right. 19 MR. BALDWIN, SR.: I want to just kind of check to 20 make sure I have covered everything. 21 THE COURT: All right. Ladies and gentlemen, we 22 are going to recess until one thirty. Don't discuss the 23 case among yourselves, don't allow anyone to discuss it with 24 you -- the same admonition I have given you heretofore. Be 25 back in the jury box at one thirty and we will commence at 1531 O I Sirs' 1 that time. We stand in recess until one thirty. -115- *> i. (Recess at 11:48 a.m., until 1:30 p.m.; open court., 3 jury and all parties present. 1 4 THU COURT: Please be seated. Would the lawyers 5 approach the bench, please? 6 (Off the record discussion at the bench, very brief.) 7 (Open court) * 8 THE COURT: You may continue. 9 MR. BALDWIN, SR.: Thank you, Your Honor. At this 10 time we will offer into evidence Plaintiffs' Exhibit 19 A, 11 which is the Dow Krummel Report that the witness just 12 testified to; and Plaintiffs' Exhibit 20 UU and 20 MM, which 13 are the other two reports that the. witness just testified 14 about. 15 THE COURT: Anv` objection? i 16 MR. ORTEGO: Just the objections I have previously 17 stated with regard to time frame, Your Honor, but you have 18 ruled on those. 19 THE COURT: They will be admitted, and your 20 exception is noted. 21 (Mr. Baldwin, Sr. continuing:) 22 Q I think we can finish up very quickly, Dr. Teitelbaum. 23 I have prepared purely as a trial aid, h kind of list of 24 some of the more prominent documents that you have talked 25 about, and 1 will ask you if you will direct your attention 1532 P-iS"5fc 1 to it and let me just go over it. -un 2 MR. BALDWIN, SR.: Your Honor, may I stand here 3 (at easel)? 4 THE COURT: Yes. 5 (Mr. Baldwin, Sr. continuing:) 6 Q Up at the top is the 1959 JAMA article you told us 7 about, the Journal of American Medical Association? 8 A That's right. 9 Q Where -- what does that first do? 10 A That article tells about the causation of the 11 neurological disease following skin absorbtion of 2, 4-D. 12 Q And '67, the Lancet, which is the British article? 13 A That was the first article that tied up exposure to 14 wood and wood products and Hodgkin's disease. 15 Q And then 1976 JNCI, what is that? 16 A That's the Journal of the National Cancer Institute, 17 and that was a second study which confirmed what had been 18 reported in 1967, that Hodgkin's disease and working with 19 wood were connected. 20 Q And 1977, the next item? 21 A This was the first of Hardell's studies that showed 22 seven patients who had soft-tissue sarcoma who had been 23 exposed to phenoxv acids, including 2, 4-D. 24 Q Which would be cancer? 25 A Yes. D- i * s 7 ]Q *> A And that's that journal nobody can pronounce -Right. -117- 3 Q -- fromSweden? 4 A Right. 5 Q In 1978? 6 A 1978 was -- he went back, based on his seven cases, 7 and actually did a controlled study and found that there 8 was an increased risk of soft-tissue cancer in people who ; * 9 had worked with'these products. 10 Q All right. And 1979, the British Journal of Cancer? xI II A Again, he looked at the study and cleaned up some of | 12 the details and published in English now the six-fold risk i | 13 of soft-tissue cancers following exposure to chlorc.phenoxy ! 14 acids. 15 Q Is there another Hardell study in 1979 that's not on 16 thischart? 17 A Yes, there is. There was a '79 article that was 18 published in Lancet that dealt with Hodgkin's and non- 19 Hodgkin's lymphoma showing that there was a six times 20 increase in relative risk of getting cancer if you worked 21 with the ch 1oro.phenoxv -- getting Hodgkin's or non-Hodgkin's t: 22 lymphoma if you worked with these materials. \ 23 Q And that showed an association between 2, 4-D exposure jI 24 and Hodgkin's disease? I j 25 A Right. 1534 0 -I \I I 0 And then 1980? -118- A 1980 was the article which indicated that -- summarized the entire situation, and indicated that the evidence was such that you would have to conclude that 2, 4-D may be carcinogenic and also may cause birth defects, in addition to other ill effects on humans. Q On humans? A Right. ii Q And 1980? A In 1980 this is the paper by Hogstedt from Sweden from the Occupational Health & Safety Board which showed that 2, 4-D apoeared to be both mutagenic and to cause an increase in birth defects. 0 In 1980, again? A 1980 this is now Edling's work and Axelson showing that in the railroad workers who used 2, 4-D and other j | phenoxyacctic acids to clear the right-of-way there was an increase in death due to cancers, and that there was need to be extremely careful in handling these materials. Q Is tumor another way of saying cancer or malignancies? ! iiI ! j i A In this case it was, yes. Q And the next? j ! j i A The next was the paper by Edling, and it appeared in j the Journal of Occupational Medicine in the United States, indicating that there was an increased risk of cancer in 1535 -119 I lumberjacks, and particularly of cancer of the lymphatic j 2 and hematODoietic systems, including lvmphomas. 3 Q And did that -- was the paper that said that was of 4 particular interest in view of Dr. Hardell's work? ! j ji 5 A That's correct. 6 Q And 1980? 7 A 1980 is the California summary indicating that they * 8 considered the substance to be hazardous, that it causes 9 neurological disease, that there wras evidence suggesting 10 that it was carcinogenic and no evidence to indicate that II it wasn't, and that the labels were inadequate and the 12 product had to be handled with great care. 13 Q Is that referring to 2, 4-D? 14 A Yes, it does. 15 Q I am going to put 2, 4-D up there later. In 1981? 16 A 1981 is an epidemiol ogic study again, an update 17 of -- now o f Hardell's studies showing that the soft-tissue 18 sarcomas and the lvmphasarcomas were increased in people 19 who had chloro.phenoxy acid exposure, including 2, 4-D, 20 and this was an attempt to answer some of the critiques 21 which had been made by others concerning these studies. 22 Q And the next study? 23 A The same kind of thing, except now he focused on the 24 issue of lymphoma and Hodgkin's disease, and in particular 1 5 3 625 on the question of social class and the association with Q -ii=>ioO risk of lymphoma and Hodgkin's disease. -120- Q And in 1981? A In 1981 he went back again and recalculated using the cancer patient as the control, I believe that's the study, and he found the same six-fold risk there. Q Confirmed his earlier studies? A Yes, that's correct. Q In 1982? A In 1982 again the paper by Coggon and Achson' indicating that it would be unwise to discount all the studies that had been published up to that time, and although the evidence wasn't definitive proof positive, it certainly was very suggestive that cancer, including lymphoma and Hodgkin's disease, were caused by exposure to chlorophenoxy compounds, including 2, 4-D. Q And '82? A And in '82 in Lancet Hardell has a letter indicating that he considers the editorial to have been a very balanced editorial, and he points out the increased risk of Hodgkin's disease again in that paper. Q And in the Journal of Heredity? A In 1982 we have the issue of the potential genetic damage, the fact that this is a compound which is capable of producing mutagenic and chromosomal changes, and that this would lend support to the idea that it's a carcinogen. IQ 2A And create serious concern about 2, 4-D? That's correct. -12 1- 3 0 Now is there an article in 1983by Hardell or a book 4 that he wrote a chapter on? 5 A He did, he wrote a chapter in abook, and he summarized 6 all of his previous conclusions, restated the risks as he 7 saw them, and confirmed that in his opinion the risk for 8 Hodgkin's disease was about five times what it would have been 9 for people who were not exposed, and approximately six times 10 for non-Hodgkin's lymphoma. 11 Q How many articles has Hardell written all told relating 12 to lymphomas? 13 A Well, I haven't counted them all up, but it's about 14 six or seven at this point. 15 Q And was it his early opinion that there was an associa 16 tion between exposure to 2, 4-D and Hodgkin's disease -- 17 A Yes. 18 0 -- as well asother lymphomas? 19 A Yes. 20 Q And did he everback off that opinion? 21 A No. 22 Q Does this list that we have here comprise some of the 23 more important articles that you have testified to earlier 24 this morning? 25 A Yes. 1538 C-15'fcS- ] A Several hundred altogether. -21- 2 Q With one type of lymphoma or another? 3 A That's right. 4 Q Would that include Hodgkin's disease? 5 A Yes, it would. 6 Q Now what have you done to prepare yourself to testify 7 in this case, Doctor? * 8 A Well, I've reviewed the mimical records of Mr. Greenhill, 9 as much as we have been able to get. I have reviewed his 10 deposition. I have reviewed the medical literature on the 11 subject. I've looked at th#.'&lides. I had the slides looked 12 at by colleagues, and I feel that I've had a good overview 13 of what happened to Mr. Greenhill.. 14 Q Could you tell us in your opinion what Mr. Greenhill's 15 illness was? 16 A Yes, I think he had a malignant lymphoma, and the 17 consensus of the academic pathologists who looked at the 18 slides is that this was probably Hodgkin's type. The 19 consensus of the non-academic pathologists, I think who are 20 kind of two to one to the academic, was that if that's what 21 they say that's probably what it was. But they themselves 22 didn't make that diagnosis. I think he had a malignant 23 lymphoma that's perhaps most consistent with Hodgkin's 24 type. 25 Q All right. Would you tell the Jury what you mean by the 1539 V-l^(o3 ) 1 term '"'malignant lymphoma"? -22- 2 A Sure. I guess we have to start with an understanding 3 of what a lymphoma is. A lymphoma is a cancer of the 4 lymphatic cells. Now, the lymphatic cells are specialized 5 cells in the body which have as their role the protection j! 6 of the body against attack from the outside. Usually they 7 are involved with killing bacteria, stopping viruses, * 8 producing antibodies, and in other ways protecting the body. 9 There is a very extensive system of lymph nodes. The lymph 10 nodes are little glands that are distributed throughout the 11 body, and in each of those little glands, which are connected 12 up by lumph channels, there are these specialized cells of 13 various types which have that special role of protecting the 14 body. 15 In some cases, those cells, or one cell in that group, 16 becomes malignant, and when that one cell becomes malignant, 17 it gradually takes over the lymphatic system and spreads fromj j 18 the.lymphatic system to other organs and eventually, 19 unfortunately, can kill the patient. 20 Q Could you tell us, Doctor, briefly, how -- where the 21 lymph system, the lymphatic system, as you call it, is in 22 the body? 23 A It's everywhere. It's a system like the blood vessels. 24 It often runs parallel to the blood vessels. These chains 25 of lymph glands, the ones we most commonly think of are the 0 - IS \ o H -231 ones that the pediatrician always feels for in little 2 children up here in the neck; but if you make a special 3 dye study, you find that there are lymph nodes, these little 4 lymph glands, throughout the body, and that each major organ 5 has drainage to a group of these lymph glands, which in a 6 sense, offer protection to that organ. 7 Q In other words, we think of the lymph node, as you 0 8 talked about in the neck, that has a little tiny string 9 of vessels, like blood vessels, that go .down, for example, 10 to the liver? 11 A That's quite right. It's all connected. 12 Q- Or the kidneys? 13 A Well, it's all connected. It doesn't go directly, but 14 there is a major connecting duct; and when that all is 15 connected up, then it's possible for lymph from the liver 16 to reach that node there in the neck, yes. 17 Q Because it's got a passageway to go -18 A That's right. 19 Q -- just like a blood vessel? 20 A Yes. 21 Q Now, what's the purpose of the lymph system? 22 A Well, it is protective. As I said, it cleans up and 23 drains and protects the body from infection, mostly. It has 24 other purposes. For instance, it provides all of the anti 25 bodies. When you vaccinate someone, what you are doing is D " \5 lo S 1 you are activating the lymphatic system and certain parts , ! I 2 of the lymphatic system so they produce antibodies and have j ! 3 the capacity then to fight off some organism, like smallpox, j 4 if it were to come along in the future. 5Q 6A Does it carry fluid? It does. jj 7Q 8A And does it carry cells? Yes, it does. 0 9 Q And are cancer -- describe the connection between cells 10 of the body and cancer. 11 A Well, cancer is a disease of cells of the body. If 12 cells, any cell of the body, becomes changed, it's genes, i 13 now these are not the genes that involve our having children, 14 these are the genes that each cell reproducing itself -- if IS the genes in that cell are in some way damaged, that cell 16 may then begin to reproduce. And when it reproduces, it's 17 no longer a normal cell. It loses the capacity to live 18 within its own boundaries; it gains the capacity to live ! 19 in some other place in the body where it doesn't belong, to 20 bring in or to induce blood supply so that it can support 21 itself, and eventually it will overcome or overtake the 22 ability of the normal cell to grow, and it will kill the 23 patient, or kill the cells and eventually kill the patient. 24 Q So if you get a cancer cell in the lymph system, is it 25 possible for that cell to go to other parts of the body, 1542 !P -15>(d (& for example, the liver? -25- A Yes, that's one of the characteristics of cancer cells, that they can reach another organ where they didn't start and survive there. Most cells, normal cells, if they got to the liver would be just destroyed. But a cancer cell is able to set up shop and grow there. Q And can go there through the lymph system? * A Right. Q Can it get into the bone through the lymph system? A Yes, it can. Q And did we see that in Mr. Greenhill, and we will talk about later? A Yes. Q Sir? A Yes. Q Now, I want to talk about some terms that may be foreign to the Jury. We have already described lymphoma. It's a cancer of the lymph system -- A Right. Q -- that has cells in the lymph system? A Yes. O What is Hodgkin's disease? A Hodgkin's disease is a particular kind of lymphoma. There are some studies which have been made over the years in an attempt to classify what we see under the microscope. D1'15S4V37 -26- i There is a big group of lymphomas that are called everything else, or non-Hodgkin's lymphomas; and then there is a group of lymphomas which are called Hodgkin's lymphoma. ! Today, there is a fair amount of study being done as to exactly which cells the various lymphomas come from, and there are three types of cells we know -- T lymphocytes, B lymphocytes and histiocytes. And Hodgkin's disease is thought to be a cancer of the histiocytes. That's Dr. DeVito's (pho) work. Q But is it a form of lymphoma? A Yes, it surely is. Q- And who is given credit for describing Hodgkin's disease? A Well, Dr. Hodgkin described it in the 1830s, and then Dr. Wilks in the '60s, although he wasn't sure what he was looking at; and then finally Drs. Sternberg and Reed, and i if you call it a "Reed-Sternberg cell," you are probably a feminist because Reed was Dr. Dorothy Reed, so you give her precedence. But if you call it a "Sternberg-Reed cell," you are probably from Germany because Dr. Sternberg worked in Germany. So, that's the way it went. But one was 1898 and one was 1903. Q But the point is when it was described first in 1832 did Dr. Hodgkin call it a cancer? A He wasn't sure, but he thought it was. 1544 V-lsu? 1 A He wasn't sure, but he thought it was. -27- 2 Q Now some other terms that are going to be foreign to 3 the Jury I would like to ask you about. What does the term 4 "soft tissue sarcoma" mean? 5 A Okay. A sarcoma is a cancer of the supporting tissues 6 of the body. Now that is differientiated from a cancer of \ j 7 the functional tissues of the body, the glands and the j ' 8 organs which do some purpose for the internal function of I j ii I 9 the body. So, sarcomas are cancers which arise from the !1 !i) 10 muscles, the bones, the cartilage, all of the fat, all of j 11 j11 the supporting tissues. And they actually are derived, if ! 12 we go way, way back to the earliest development of the \ i 13 embryo, they are derived from the same layer of the embryo i j 14 that the blood is developed from and that the lymph is j j 15 developed from. ' 16 Q The embryo being the fetus or the child before -- 17 A The earliest, earliest time when there are sixteen ( 18 cells and we are talking about the little round embryo ; 19 when it first begins to take shape. At that point there 1 20 are three layers of tissue, ectoderm, which is going to j 21 form the skin and nerves, endoderm, which is going to j J 22 form the gut, and mesoderm which is going to form all of j i 23 the supporting tissues, including the blood lymph and the j 24 muscles. And the relationship between the lymphomas and j 25 the sarcomas is that they come from that same very, very i i 1545 I I D-IS&f I 1 primitive tissue. ] 2 Q Being what? -28- 3 A The mesenchyme or mesoderm. 3 4 Q And what is non-Hodgkin's lymphoma? 5 A Well, non-Hodgkin's lymnhoma is everything else. That 6 is to say that all of the lymphomas that aren't classified 7 as Hodgkin's disease are non-Hodgkin's lymphomas, and those 8 are usually the B and the T cells and some other histio 9 cytic lymphomas: 10 Q Now, what is a phenoxy acid? 11 MR. ORTEGO: Object to the form of the question, 12 Your Honor. 13 THE COURT: Overruled. 14 A I'm sorry, I -- 15 Q Go ahead. 16 THE COURT: Go ahead and answer. 17 A A phenoxy acid is a chemical which is composed of a 18 benzene ring to which oxygen has been added making phenol, J 19 and then to which an acid has been joined, an acid being 20 a group which has available hydrogen. J 21 Q Is phenol a large chemical group? 22 J 23 THE COURT: Just a minute. An objection? MR. ORTEGO: I am objecting to these questions J 24 in that Dr. Teitelbaum is not qualified as a chemist nor 25 is he a chemist. ] 1546 V-\51o 1 THE COURT: Overruled. -29 2 (Mr. Baldwin, Sr. continuing:) 3 Q Go ahead, Doctor. 4 A I'm sorry, I don't know where we are -- the question? 5 Q The phenols, is that a large group of compounds? 6 A Well, phenol is a single compound, but because it is 7 very reactive it can be derivitized and you can make many * 8 things from phenol. 9 Q What is a chlorophenol? 10 A Chlorophenol is a compound which contains the benzene 11 ring, the oxygen and hydrogen and chlorine attached to the 12 ring in several -- one or several places. 13 Q All right. Now could you tell uswhat 2, 4-D is? 14 A 2, 4-D is a bichlorinated, meaning it has two chlorines, 15 phenoxy acetic acid. So it is composed of chlorine, the 16 benzene ring, the oxygen and the acetic acid. 17 Q Is it sometimes referred to as a chlorophenol? 18 A Yes. 19 Q What, Doctor, is Tordon 101? 20 A Tordon 101 is a trademark product manufactured by Dow 21 that contains 2, 4-D and picloram. 22 Q And what is picloram? 23 A Picloram is a herbicidal substance which is incorporated 24 in this compound. 25 Q So if you put 2, 4-D and picloram together you have got 1547. D-157/ 1 Tordon 101? -30- 2 A Yes. 3 Q And 2, 4-D is an integral part of Tordon 101? 4 A Yes. 5 Q And it is sometimes referred to as chlorophenol? 6 A Yes. 7Q Is it also sometimes referred to as a phenoxy acetic * 8 acid? 9A 10 Q Yes,sometimes inshorthand. Now, would you rank 2, 4-D as a hazardous substance? 11 A Yes, I would. 12 MR. ORETGO: Object to the form of the question. 13 THE COURT: Overruled. 14 (Mr. Baldwin, Sr. continuing:) 15 Q -16 A Would you? Yes, I would. 17 Q And on what basis? 18 A On the basis that it is a substance which has the 19 capability of killing both animals and humans. In addition, 20 in lower doses, it has the ability to injure animals and 21 humans, and the injuries are both acute, meaning they occur 22 in a very short period of time, mid-range, and they may have 23 long-range consequences as well. That is they may persist 24 long after the chemical exposure has stopped. 25 Q And would you rate picloram -- I may be mispronouncing D- 1*73-  1 it -- a hazardous substance? 2 A Yes. I j!It -31- ; | ; 3 Q And did I hear you -- do you know who owns the trade 4 mark for Tordon 101? 5 A Yes, I believe it's Dow Chemical Company. 6 Q And that's just a generic name, like aspirin or 7 something, for 2, 4-D and picloram? * 8 A Well, it's not a generic name. I think it's a trade 9 name. 10 Q A trade name. 11 A I think they ownthat. 12 Q- Okay. 13 A I think Bayer once ownedaspirin, too, but I'mnot sure 14 they do anymore. 15 Q All right. Now, what is a carcinogenic? What does thatj 16 term mean, Doctor? I j 17 A A carcinogen, orcarcinogenic, means a substancewhich 18 is capable of causing cancer. 19 Q Would it be accurate to say, then, as we go through the 20 literature of today and if we see the term "carcinogenic" 21 that means that whatever that is has the ability to cause 22 cancer? 23 A Yes. 24 MR. ORTEGO: Objection to the form of the question, 25 Your Honor. 1549 o -1=73 I THE COURT: Overruled. -32- 2 (Mr. Baldwin, Sr., continuing:) 3 Q Now, Doctor, let's talk a little bit about pathology. 4 Is pathology -- what is pathology? 5 A Pathology is the study of the behavior and appearance 6 of sick tissues. 7Q All right. And do pathologists usually look under 8 slides and microscopes? 9 A Well, they look at sick tissues. They may do it lots 10 of different ways, but we have pathologists who work only 11 in the laboratory; we have pathologists who work in using 12 microscopes; and today there are pathologists doing electron- 13 miscroscopy and many other' kinds of very sophisticated -- but 14 the unifying thing is that they are looking at structural, 15 anatomic and functional alnormalities -- how sick tissues 16 function. 17 Q Is it or not true that the only way one can make a 18 diagnosis of lymphoma is by a histiological diagnosis? 19 MR. ORTEGO: Objection. Leading the witness, Your 20 Honor. 21 THE COURT: Avoid leading. 22 A In my opinion, the commonest way to do it is to use a 23 microscopic diagnosis. There are now some very sophisticated 24 immunologic studies which help in the diagnosis. 25 Q Can one make a definitive diagnosis of Hodgkin's disease 1550 JJ-l 5 7*i 1 without using the microscope? -33 2A 3Q I don't believe so, no. ii Now tell us a little bit about Hodgkin's disease. Very j ' 4 briefly, is it -- what type disease is it? Is it well 5 understood, not well understood, or what are the facts? I i j 6 A I would say that it's agreed that it's a cancer of the 7 lymph system. I think after that everything is probably not * 8 agreed. What causes it has been the subject of many, many 9 discussions. Certainly there are physicians, and we can 10 look at some of the literature where -- who believe that tI 11 there are chemical causes; there are some people who believe 12 that there are viral causes, and there are even people who 13 think that there is a bacterial cause and that it is related 14 to tuberculosis. It's one of the old, old theories, but 15 they have never been able to disprove it so it is one of the 16 theories that's still on the table. It's generally agreed 17 that it's a disease-which has an environmental factor as 18 its cause. 19 Q Does that mean an outside cause? 20 A Yes. 21 Q Is the mechanism of Hodgkin's disease understood even 22 today? 23 A No. ' 24 Q And is there a difference in the medical community as 25 to the very nature of the disease? 1551 D -iST S" 1A -34- Very, very strong difference. It's a subject that is 2 under very intense study. Whatever book you pick up, you 3 will find the author's particular point of view about it as 4 to what the nature of the disease is, what the biology. The 5 basic, life biology of the cell that is Hodgkin's disease 6 is not today well understood. There are ideas, but no 7 consensus. * 8Q Is there any authority for the proposition that it is 9 caused by outside forces or agents? 10 A Yes. I think the authorities go all the way back to 11 the early twentieth century, the work that was done by Reed- 12 and Sternberg, and right up to today there have been numerous 13 papers dealing with causes ranging from virus, to chemicals, 14 wood dust, tuberculosis bacillus and others, all of which 15 have reasonable and moderate scientific opinion and good 16 basis. 17 Q Now,. Doctor, let's talk a little bit about the 18 difference between Hodgkin's disease and non-Hodgkin's 19 isease. 20 A Okay. 21 Q Is there an authority that you recognize on Hodgkin's 22 disease, first of all? 23 A 24 Q Well, the -- Do you have one of the books there in front of you? 25 A The greatest authority was Dr. Kaplan who passed away 1552 D-IS7 -35- 1 last year. There Is a recent text which has been written 2 by Selby and McElwain (pho) published this year, 1987, which 3 updates Dr. Kaplan's book, and was written specifically to 4 bring the information up-to-date from Dr. Kaplan's edition, 5 which was 1980. So we have a 1987 edition by that group. 6 Q Are those the type of authorities that you as a 7 scientist would rely on? 8A 0 They are certainly authorities in the field of Hodgkin's 9 disease. 10 Q What does Dr. Kaplan's book say about Hodgkin's disease, 11 just very briefly, the nature of it? 12 A- He says it's a bizarre disease, and the nature is not 13 really understood. 14 Q All right. And the other book? 15 A Just about the same thing. 16 Q What does Dr. Kaplan say about the ability of one to 17 make a -- to distinguish between Hodgkin's and non-Hodgkin's / 18 lymphoma? 19 A Well, Dr. Kaplan points out that it is an extremely 20 difficult diagnosis to make, and that pathologists frequently 21 disagree about the diagnosis, that in any given series of 22 cases pathologists often differ by as much as 25 percent 23 in their interpretation. So, he recognized that there was 24 a great deal of difficulty making this diagnosis even among 25 experienced pathologists. 1553 'D -\sn  1 looked at, Harrison? II I -38- 2 A Well, Harrison's textbook has a chapter by Dr. DeVito- 3 Dr. DeVito was head of the N.C.I., and he comes to just 4 about the same conclusion, that about 25 percent of the 5 diagnoses are questionable, and you can read it in any one 6 of three textbooks. He has his own book. He has a chapter 7 in Harrison and he has a chapter in a book on lymphomas. * 8Q (At easel.) Is that 25 percent figure supported or 9 substantiated anywhere else, either in practice, or by 10 writings, or any of the things you have talked about? 11 A Oh, yes. In Selby and McElwain they actually give you 12 the references. The studies have been done. 13 Q Just one minute. 14 MR. ORETGO: I am going to object to this line of 15 questioning. It is really calling the witness to speculate 16 what happened in other cases. If he has an opinion what 17 happened in this case, I think it would be appropriate, but 18 speculating on what textbooks say -- if he has an opinion 19 on Hodgkin's or non-Hodgkin's, I think that's fine. If 20 he thinks the diagnosis of Hodgkin's disease in this case 21 is incorrect, that's fine. But to speculate and talk about 22 other cases is just going to confuse the Jury. What's his 23 opinion on this case? 24 THE COURT: Overruled. 25 (Mr. Baldwin, Sr. continuing:) 1554 v-x'sns' 1Q Does that 25 percent figure, Doctor, agree with -39- 2 pract ice? 3 A Yes. I think we have just that experience right here 4 where -- 5 Q We'll come to it. And does it agree with the 6 literature? 7 A Yes. * 8 Q Now, do you havebefore yousome pathology reports, 9 Doctor? 10 A Yes,I do. 11 Q I think wecan do thisfaster if we -- 1 A, Plaintiff's 12 Exhibit 1 A, could you tell us what that is, Doctor? 13 MR. ORTEGO: Judge, I haven't seen it. Could I 14 just see what it is? Mr. Baldwin, I didn't mean to interrupt. 15 MR. BALDWIN, SR.: Your Honor, I told them last 16 night that we were going to offer these. j iI 17 MR. ORTEGO: I just want to see which one it is. ; 18 I don't have the numbers you put on them. 19 MR. BALDWIN, SR.: I am going to offer all of the 20 Pathology Reports. 21 MR. ORTEGO: Okay, if I can just see which one, 22 because there are a lot of them. 23 (Mr. Baldwin, Sr. tendering exhibit to Mr. Oretgo.) 24 MR. ORTEGO: Thanks. I appreciate it, Mr. Baldwin. 1 5 5 525 MR. BALDWIN, SR.: You can be looking through 1>I57 f J these others, if you like. 2 MR. ORTEGO: Fine. I appreciate it, sir. -40- \ 3 MR. BALDWIN, SR.: Try not to mixthem up. 1 4 MR. ORTEGO: I wo n't for you, don'tworry. 5 (Mr. Baldwin, Sr., continuing:) j i ! 6Q Would you look at -- I'll try to expedite things. You | ij 7 have a copy of these Pathology Reports? 0 8 A Yes, I do. I have 1 A right here. j I j 9 Q Would you refer to 1 A, please, sir? 10 A Yes. 11 Q And tell us what that is? 12 A. That's a Pathology Report dated 6-14-79, over the 13 signature of Gerald A. Stolz, a pathologist. And it 14 says: "Lymph node, left side of neck, malignant lymphoma, 15 lymphocytic type, diffuse." And there are three slides and 16 three blocks that were apparently looked at. 17 Q Did he call that Hodgkin's disease? 18 A No, he didn't. 19 Q All right. He did call it a "malignant lymphoma"? ji ! j i i 20 A Yes, he did. 21 Q 22 A And that was cancer of the lymph system? Yes. j j 23 MR. BALDWIN, SR.: We will offer that into 24 evidence, Your Honor. 25 THE COURT: Any objection? 1556 il -41- 1 MR. ORTEGO: On 1 A? No, Your Honor. 2 THE COURT: It will be admitted. 3 (Mr. Baldwin, Sr. continuing:-) 4 Q Would you look at 1 B, please, sir? 5 A Yes, I have it. 6 Q And what is that? 7A It's a letter by A. S. Koenig, M.D., pathologist, to 8 James Butler, M.D., at M.D. Anderson Hospital, requesting 9 Dr. Butler to look at the accompanying tissues, that is 10 the tissues previously referred to by Dr. Stolz. 11 Q What does he say with reference to his group and those 12 tissues? 13 A He says: "None of our group is in complete agreement 14 with the diagnosis which was made originally. We all feel 15 that this is more characteristic of a Hodgkin's disease, but 16 we are unable to find characteristic Reed-Sternberg cells." 17 And so they are sending this to Dr. Butler to look at it. 18 0 And what does Dr. Butler's report say? 19 A Dr. Butler wrote a report dated 6-29 -- he received the 20 tissue 6-29; he completed his work on 8-24-79, and his 21 diagnosis is "Hodgkin's disease with lymphocytic pre 22 dominance, diffuse lymphocyte and histiocyte type. And 23 his comment is "sections show a diffuse proliferation of 24 lymphocytes and histiocytes with easily found LiH variance 1 5 5 725 of Reed-Sternberg cells. A rare diagnostic Reed-Sternberg V -1 -42- 1 cell is present." And then he attaches a letter to it 2 where he says: "I agree with your diagnosis of Hodgkin's 3 disease and believe that this represents the lymphocytic 4 predominant type. As is usually the case in that type, 5 Reed-Sternberg cells are difficult to find." 6 MR. BALDWIN, SR.: All right, now I offer these 7 Exhibits 1 B and 1 C, Your Honor, that we just referred to. 8 THE COURT: An objection? 9 MR. ORTEGO: No, Your Honor. I O THE COURT: They will be admitted. 11 (Mr. Baldwin, Sr. continuing:) 12 Q- Now, apparently some reference was made to Reed13 Sternberg cells? 14 A Right. IS Q Could you tell us the significance of the so-called i I i ! j iI j ! i * 16 Reed-Sternberg cell and the diagnosis of Hodgkin's disease? ! 17 A Well, the Reed-Sternberg cell was diagnosed or described- 18 by these two physicians I mentioned earlier, and it's 19 generally agreed that in order to make the diagnosis of ! i iI 20 Hodgkin's disease you have to find either typical Reed- 21 Sternberg cells or something awfully close to typical. 22 Q And were the people in Arkansas the first group of 23 patholog ists Le to find Reed-Sternberg cells? 24 A No, they sre not. 25 Q And what id Dr. Butler find? 1558 D - \S$X 1A -43- He said he found a few -- he said ''a rare diagnostic 2 Reed-Sternberg cell is present," and he easily found L&H 3 variance of Reed-Sternberg cells. 4 Q What does the term "variant of a Reed-Sternberg cell" 5 mean, Doctor? 6 A Well, I think you really have to ask the pathologist 7 who said that what he means by that. As I read it, it means * 8 it didn't look like a -- exactly like a Reed-Sternberg cell, 9 but with a little bit of creative imagination you could call 10 it a Reed-Sternberg cell. 11 Q But can you make a diagnosis-- 12 MR. ORTEGO: I am going to object to his inter 13 pretation of what he thinks the Doctor meant in this report. 14 THE COURT: I sustain the objection. The Jury is 15 instructed not to consider that last remark for any purpose. 16 (Mr. Baldwin, Sr. continuing:) 17 Q Can you make a diagnosis, Doctor, of Hodgkin's disease 18 with a Reed-Sternberg cellvariant? 19 A Well -- 20 MR. ORTEGO: I am just also going to object to 21 this line of questioning, Judge, because I think Dr. 22 Teitelbaum testified he is not a pathologist and not 23 capable of diagnosing Hodgkin's disease on a slide. And 24 asking how you would diagnose Hodgkin's disease when he's 25 neither a pathologist nor qualified to do so would be 1559 p-1^3 -44- 1 improner, unless he can say he's a pathologist that can do it 2 THE COURT: Overruled. 3 (Mr. Baldwin, Sr. continuing:) 4 Q Doctor, you are qualified to read slides, are you not? 5 A I am. I am an interstate laboratory director and a 6 general supervisor in hematology, and I am qualified to 7 look at slides and -8 Q Have you looked at many slides? * 9 A I surely have. I -- I wouldn't make a diagnosis 10 without seeing a Reed-Sternberg cell, and if I saw something 11 I thought might look like it, I would send it to one or two 12 pathologists and see what they thought. 13 Q What is Plaintiff's Exhibit 1 D, Doctor? 14 A 1 D is exactly that kind of thing. It's a report of 15 the Denver Clinic's pathologist to whom I sent these slides 16 after I had looked at them. 17 Q Were they able to find Reed-Sternberg cells? 18 A 19 Q They were not in the original material. All right. And what is the last sentence of the 20 comment to that Pathology Report? 21 A Based on those slides which they looked at, none of us 22 feel that this process represents Hodgkin's disease. 23 Q Now, how many of "us" was that? 24 A Three physicians, Doctor Hanley, Dr. Meyer and Dr. 25 Howland. D- 1Q -122- Now, Doctor, I am going to ask you a question based on 2 some facts. I am going to ask you based on the review of 3 Mr. Greenhill's medical records, and Mr. Greenhill's history 4 of exposure to 2, 4-D, as you've understood it from the 5 testimony in this case, his deposition, the slides of Mr. 6 Greenhill that you reviewed, the pathological reports that 7 you've seen, had an opportunity to review, the other medical 8 records of Mr. Greenhill, the literature that you have 9 reviewed here today and other literature., and the Krummel 10 report which was a Dow report about the impurities that you 11 testified about just before lunch, and further, based on 12 your knowledge and your experience and skills as a physician 13 and a toxicologist, I am going to ask you, sir, based on 14 that do you have an opinion, based on reasonable medical 15 certainty, that the exposure of Mr. James Greenhill to 16 Tordon 101 manufactured by the Dow Chemical Company was a 17 significant, contributing cause of his cancer and death? 18 A Yes, I have an opinion about that. 19 Q And what is your opinion? 20 A My opinion is that to a reasonable medical certainty, 21 Mr. Greenhill's exposure to Tordon 101 and 2, 4-D was a 22 significant, contributing cause to his cancer and his death. 23 MR. BALDWIN, SR.: We pass the witness, Your 24 Honor. 25 MR. ORTEGO: May I, Your Honor? 1561 D- 1585 1 THE COURT: Yes. Surely. -123- 2 MR. ORTEGO: Ii' I can wait just a couple more 3 minutes, I waited before -- if I could just pet set up. 4 CROSS EXAMINATION 5 BY MR. ORTEGO: 6 Q How are you, Doctor Teitelbaum? I j 7 A Fine, thank you, Mr. Ortego. j 8 Q If I can just get over here so I can get some of this ; 9 stuff here. I am not as good at this. Dr. Teitelbaum, I 10 have a lot of questions for you after while, but I am going j j 11 to start off kind of simple. j j 12 The first question for you is it'smy understanding j j 13 that Tordon 101 has both 2, 4-D and picloram in it, is that ! i 14 correct? i 15 A That's correct. I i 16 Q Those are the two herbicides that are in the product 17 Tordon 101? ; 18 A That's correct. i ! j 19 Q Now you do not believe that picloram causes cancer in j 20 humans, do you? 21 A That's correct. 22 Q And you do not believe that picloram caused Mr. 23 Greenhill's Hodgkin's diseaseor cancer? ! i tI j I 24 A That's correct. 25 Q So when we talk about your opinion today, and we talk 1562 $ j; -124- I about T-ord_o_n _301,, _i.t c_o_n_s_i_s_t_s o..f. _2,7 4.-D_ _an_d picl or am. So 2 your opinion is based on the 2, 4-D and not the picloram, is 3 that correct? 4 A My opinion is based on the 2, 4-D primarily, that's 5 correct. 6 Q Well, when you say "primarily," you don't believe that 7 picloram causes cancer, do you? * 8 A No. But I believe that it is hazardous, as I indicated 9 in the previous examination. ]0 Q But for our purposes, so we can start ruling out and 11 understanding, in this case you do not believe that the 12 picloram caused Mr. Greenhill's Hodgkin's disease, or cancer? 13 A That's correct. 14 Q Can you tell the Jury, Dr. Teitelbaum, what the United 15 States Environmental Protection Agency is? 16 A Yes. It's a special agency -- a regulatory agency, 17 part of the Department of the Interior, and it is charged 18 with the responsibility for protecting the environment. 19 Q Now instead of talking about Tordon 101, since we are 20 only going to talk about 2, 4-D, I am .just going to use 21 2, 4-D genericallv so the Jury doesn't get confused, but 22 we've ruled out the picloram. Does the Environmental 23 Protection Agency regulate 2, 4-D in Dow's product Tordon 24 101 in the United States? 25 Yes. D-ISS7 -123I Q And they also regulate the labeling, what goes on the ,i 2 label of a herbicide like Tordon 101 and products containing 3 2, 4-D? 4 A Yes, both the EPA and the state agencies, that's | i 5 correct. 6 Q Now the Environmental Protection Agency, which regulates 7 what goes on the label and what products can be sold, has a 8 staff of scientists, doesn't it? i 9 A Yes, it has a staff of scientists. 10 Q Which includes medical doctors? II A I don't know that they have any medical doctors. 12 Q- Toxicologists? 13 A They have some non-medical toxicologists, that's 14 correct. 15 Q Scientists? 16 A Well, if you tell me what you mean by scientist, I'll 17 be able to agree with you. 18 Q Well, let me put it a little simpler. The United 19 States Government, including the Environmental Protection 20 Agency, has some scientific folks with PhDs and medical 21 degrees, don't they? 22 A Yes. 23 Q And as a matter of fact, doesn't the EPA have access 24 to all the other government agencies' information, including 25 NIOSH? 1564 D -1?? 1A - 126Not necessariI y. Only if it's suDp lied with it and 2 only if it requests it. 3 Q Now, what is NIOSH? 4 A The National Institutes of Occupational Safety & Health. 5 Q And the EPA does have access, if it wants, for any 6 information that NIOSH has, doesn't it? 7 A Well, that's by interagency agreement, and I'm not sure 8 what the details of their interagency agreements are. One 9 is the Department of Health, Education L Wei -- or Health JO & Human Services Agency, and one is a Department of Interior II agency, and they are sometimes very protective of their 12 information. So, I couldn't as a general rule agree with 13 you. 14 Q Oh, you can't generally agree with me. Let me be simple 15 about it. You have testified that you've acted as a consul 16 tant for various government agencies? 17 A Yes. 18 Q Doesn't the EPA hire people who are scientists and 19 doctors to assist them in their work? 20 A Sometimes. 21 Q And the EPA evaluates and regulates herbicides? 22 A It has that responsibility, yes. 23 Q And would it be fair to say, because I think you've 24 drawn some other conclusions today, that the EPA has access 156525 to the information it wants from other agencies within the 1 government when it pertains to science? -127- 2 A I can't answer that question. You would have to ask 3 them. Generally speaking, they can get information. Whether 4 than can get all information, I really couldn't say. SQ Would it be fair to say you don't know exactly what the 6 Environmental Protection Agency has on 2, 4-D? 7 A No, that would not be fair to say. I have seen the 8 file. I have seen the Rebuttal Presumption File, and I think 9 I know what they had as of the last time I looked at it, 10 which was about two years ago. 11 Q But there are things in there that you might not know 12 what they have? 13 A Yes. There are areas in the file which are listed as 14 "trade secrets," and because they are listed as trade secrets 15 they don't appear in the public files, which are all I have j 16 access to. 17 Q Okay. So there is information that the Environmental ii ! i!! 18 Protection Agency has about products that you don't have 19 access to? 20 A There is information which they may have which I don't 21 have access to. I have no idea if they do have such infor 22 mation, only that they may keep it protected. 23 Q Let me ask you a couple of questions. That's a chart 24 that Mr. Baldwin made up for you. This is one through 25 eighteen. Let me take this out of here real quick -- a little jl5 Jp- \51D -128-j I acrobatics here -- and put it back up (at easel). These j ] 2 articles, Dr. Teitelbaum, one through eighteen, are they 3 aJ1 published? 4 A I think everything that's on there is a published 5 article, yes. i 6 Q Open to everyone in the public? 7 A Yes. 8 Q The data that's contained in these articles is open 9 to everyone in the public? 10 A Yes. 11 0 So all the information on all these scientific theories 12 in which we discussed this morning are available to everyone 13 in the public? 14 A With the exception of the Dow documents that we 15 discussed this morning, that's correct. j | Q16 jAnd all the data that's contained in those papers could i l 17 be reviewed by anyone who wanted to read the papers? 18 A Yes. 19 Q Thatincludes the scientists and the people in the 20 Environmental Protection Agency, doesn't it? 21 A 22 Q Yes. And isn't it a fact that the Environmental Protection 23 Agency reviews all the papers and information that's out on 24 a particular product? 25 A It has thatresponsibility. Whether itdoes that or not, D15-6i57^i I I can't answer. - 129- -> Q But it has the responsibility to review the literature 3 that's out in the open public when thev review the herbieidesf i i 4A Yes. 5Q So would it be fair to say -- you've made some 6 assumptions today -- that the EPA did its duty and reviewed 7 those articles? 8 A No, I wouldn't make that assumption. I have no way of 9 knowing if they did or didn't. 10 Q But you did make the assumption that my client did not 11 send certain information to the EPA, but you will not make 12 the assumption, Dr. Teitelbaum, that all that information, 13 that the EPA didn't follow its duty and review it? 14 A I don't see any parallel between the two. I can only 15 tell you that having seen the file as late as two years ago, 16 I found no information regarding any of this, nor have I 17 ever seen a publication regarding the Dow information -- 18 any publication, anywhere, in any language. 19 Q Let me get back real quick. Let me get back so we'll 20 stick to my question, if you can answer those. Do you have 21 any reason to doubt that the Environmental Protection Agency 22 shirked its dutv and did not review those articles? 23 A I have no ooinion about that. 24 Q 25 A You have no opinion about that? That's correct. P- 1573. 1Q -130- Despite all these theories that are contained in those n papers, and all the data that's out there in the public 3 information, the EPA has never taken 2, 4-D off the market, 4 has it? 5 A Correct. 6 Q It has never suspended theuse of 2, 4-D? 7 A That's correct, also. * 8 Q And never taken 2, 4-D off the shelves? 9 A Well, it has restricted certain uses, but that's correct, 10 it's never said you couldn't use it at all. 11 Q So would it be fair to say that despite all that 12 literature, 2, 4-D has been allowed to be sold in this 13 country, the Environmental Protection Agency made that 14 decision, and you have been able to buy it from the IS inception when it was invented until today? 16 A That's correct. 17 Q And despite all the theories that are contained in 18 there, the EPA also determines what warning labels go on 19 the product, is that correct? 20 A I'd rather say despite all the facts that are concerned 21 in there. 22 Q 23 A 24 Q Well, let me -- And I agree with you -- Let me ask you another question so you don't have to 25 argue with me, Dr. Teitelbaum. EPA has not changed its 1569 IP-1543 1 labels to conform to what you think is necessary, isn't that j , 'i 2 correct ? i 3 A That's correct. It's what the California department 4 felt was necessary. 5 Q Now, that's including the California. They haven't 6 changed their labels on 2, 4-D, have they? 7 A That's correct. 8 Q Let's come back there and look. Put this one away for 9 a second (at easel, moving charts), and put it back here. 10 This big document Mr. Baldwin blew up for you, this is from II that California report, isn't it? 12 A Yes. 13 Q When was that California report issued? 14 A 1980. 15 Q And that was a public report? 16 A Yes. 17 Q And would it be fair to say that it would bethe duty 18 of the EPA to review that report? 19 A I would certainly expect they would. 20 Q The recommendations listed in that report havenot 21 been accepted by the Environmental Protection Agency, have 22 they? 23 A That's correct. 24 Q And California, despite thatreport, has notaccepted 25 those recommendations either, have they? 1570 D-\s^4 1A T h a t 's c o r r e c t . -132- 2 Q As a matter of fact, let's take a look at this one. 3 Now is this the label for 2, 4-D products as it appeared in 4 1980? 5 A That's what California used as its speciman label, 6 that's correct. 7 Q And that's the label below it is what was recommended 8 by the report and the label you say should be on 2, 4-D? 9 A That 1s right. 10 Q Now the label that should be on 2, 4-D products, you H think that label should be on Dow's products as well as 12 everyone else who makes 2, 4-D? 13 A That's correct. 14 Q The EPA has never required those warnings? 15 A That's right. 16 Q 17 A And that report has been out since 1980? That's correct. 18 Q And isn't it fair to say that this label right, here 19 (indicating), the label that was in effect in 1980 on 2, 4-D 20 products, is basically the same label which the EPA requires 21 to be put on today in 1987? 22 A It's about right, yes. 23 Q As a matter of fact, the EPA has made very few changes 24 or required anymore warnings on Tordon 101 or 2, 4-D labels 25 since 1975? 1571 1A Thai's right. -133- Q Dr. Te itel baum, you believe in what is known as the 3 "one-hit theory" when it comes to cancer, isn't that correct? 4A 5Q Yes. So your belief is that one molecule of a carcinogen I 6 substance, meaning one molecule of any cancer-causing 7 substance, can cause cancer in a human being if that molecule 8 is at the right place and the right time? 9 A It's a very simplified version, but, in general, that's 10 correct, that the ultimate trigger for the development of 11 cancer is the interaction between one molecule of the 12 carcinogen and one molecule of DNA, that's correct. 13 0 Let's talk a little briefly about -- we'll get back to I 14 that. When was the first time that you were contacted in 15 this case? 16 A In 1985, December, I believe. i 17 Q And you didn't do anv work on this case until the spring I i 18 of 1987? 19 A That's correct. 20 Q And you never spoke to Mr. Greenhill, did you? 21 A 22 Q That's right. You never spoke to Mrs.Greenhill? 23 A That's correct. 24 Q You never spoke to anyof Mr. Greenhill's family 25 members? ,1 P- 1A That's correct. -134- I 2 Q And you never spoke to any of his doctors? 3 A That's correct. 4 Q In fact, you didn't even know that you were named as a 5 witness in this case until we took your deposition in June 6 of 1987? 7 A That's correct. 8 Q But back in December of 1985 you and Mr. Baldwin both 9 signed a retainer agreement? 10 A That's correct. 11 Q That agreement isn't good today, is it? 12 A It's -- 13 Q Well, let me rephrase it. 14 A I am not sure I understand the question. 15 Q Your rates have gone up since 1985? 16 A I don't know what -- my rates have not changed in about 17 two years-. If you will tell me what rates are quoted there, 18 I will tell you whether the Denver Clinic has raised the 19 rate or it hasn't raised the rate. 20 Q Let's talk about a little how much you charge. How much 21 do you get a day? 22 A The Denver Clinic charges $3,500 per day for every 23 senior physician's time; that's myself and anyone else. 24 Q Let's stop a little with the Denver Clinic. You are a 25 partner of the Denver Clinic? 1573 D -m ? j -135-1 A No, let's not stop, because I don't make the fees and ! i I don't collect that money. That's collected by the Clinic, j and I get approximately 46 percent of what's col lectcod. Q Okay. So even though the fees are payable to the clinic, you get 46 percent of what goes to the clinic? A Approximately. Q And you also share with your partners at the Clinic * some of the money as well, don't you? A There is no sharing. There has never been a surplus. Q You get $3,500 a day? A The Clinic gets $3,500 a day. Q- How much do you get an hour? A Four hundred dollars ($400) an hour is what the Clinic charges. Q Now according to your Retainer Agreement, after five p.mj your rates go up to S600 an hour?| A That's correct.. Q And anytime you work on a Saturday or a Sunday or a weekend, you get $600 an hour? A No, that's not correct. It's only by the daily rate. If the daily rate doesn't apply, then the Clinic charges the additional rates. The same thing we charge if somebody goes in the intensive care unit and the doctor goes in at night and sees the patient in the middle of the night. Q Okay. But why don't we stick to my questions. You get 1574 V-lftf $600 an hour after five o'clock? - I 36- A No, sir, because if I am working after five o'clock it's because we've got a full day's work, and that's at the daily rate. Q Okay. Take a look at this. And you have paralegals who work for you? A I have one paralegal who works for the Denver Clinic, not for me. Q How much does the paralegal charge? A I really don't know what rate was quoted there. About $80 an hour, if I recall. Q- So your paralegals get approximately -- your paralegal -- gets approximately $80 an hour? A That's what the Clinic charges, yes. Q Do you have any lawyers in your Clinic? A No. Q Just doctors? A Just doctors. Q Now you also charge for your travel time, don't you? A The charge for travel time is the same as any other time. Q Do you charge for your expenses? A Expenses are charged for. 0 Okay. And expenses other than travel, you had a 50 percent surcharge} on that? P-11557I5e? 1A -137- No, that's not correct. The only thing we charge 2 50 percent is for data base searching where we have over 3 head charges that we absorb. There is no charge over the 4 original charge. That is simply an error. 5 Q That's an error, but it does appear in your Retainer 6 Agreement ? 7A Yes, but it's never been charged since the day the * 8 retainer was written. 9 Q So the Retainer Agreement in which you signed with Mr. 10 Baldwin that says "travel expenses cost, expenses other than 11 travel, cost plus 50 percent," is an error? 12 A- That's an error. It only relates to data base searching. 13 Q Well, this Denver Clinic is pretty well geared to do 14 legal-medical litigation, isn't it? 15 A Denver Clinic is a very large organization. There are 16 eighty physicians, and we, unfortunately, are all of us oftenj 17 in court. It's .just the way medicine is these days, and so i I 18 we are well geared, we have to be. 19 Q We'll talk about this, but let's talk about your 20 operation that you have. You charge for Xerox copying? 21 A We charge for everything. 22 Q How much do you get per page for Xeroxing? 23 A I have no idea. 24 Q Maybe I can refresh your recollection. 25 A Thank you, please do. 1578 U -lbC O iQ 2A Thirty-five cents a page for Xeroxing? That sounds like what they charge. i 138-! 1 3Q Inter-library loans, cost plus S2.00. Secretarial 4 S40.00 an hour. Does that sound about right, what you charge 5 the lawyers? 6 A That's what Denver Clinic charges. That's what it 7 says; that's what they charge. 8 Q And technical reference consultant, they get $115 an 9 hour? 10 A That's right. 11 Q Copies from microfiche, $.50 per copy. AndI think 12 you also have indicated here expenses, but you say that's ! ! 13 an error. And of these expenses there is a 50 percent 14 surcharge, according to this Retainer Agreement? i 15 A Only on data base searching. 16 Q But that's a 50 percent charge for that? i ! I 17 A Correct. That's on what generally runsaround $2.00 j i 18 an hour for data base searching, so we charge $3.00 because j 19 of our subscription costs. 20 Q Let's talk about you personally, Dr. Teitelbaum -- 21 A 22 Q Please do. -- you know you mentioned your patients. You make aboutj 23 50 percent of your income from this legal-medical functions, 24 don't you? 25 A No, I make 50 percent of my income from total consulting 1577 D -lfc o i -139 1 which includes medical-legal, government agencies, business consulting -- anything other than direct patient care. 3 Q Okay, we will go on with that more. Now, you have a 4 flat rate, isn't it correct that when you have one of your 5' cases if you are scheduled for a deposition, there is a 6 minimum half a day charge? 7A 8Q That's correct. And if it goes after a certain amount of time, it goes 9 to the full day charge? 10 A That's right. 11 Q If the deposition gets cancelled, I think you have an 12 elaborate system here. If the deposition gets cancelled 13 more than one week prior, you still charge $300; if it gets 14 cancelled forty-eight hours before, you charge one-half 15 the schedule charge agreement; and if it gets cancelled 16 less than forty-eight hours, you must pay a full amount for 17 the day, is that correct? 18 A That's correct. 19 Q Is it fair to say, Doctor, that you average -- you are 20 deposed on the average of 25 times a year? 21 A That's about right. 22 Q And when I say "deposition," that's testimony that you 23 give in a' legal proceeding? 24 A Not necessarily. It may be a regulatory agency; it may 25 be some other kind of thing. But it's a legal, formal 1578 P - Ifc 9-. I activity. -140- nQ Well, Doctor, how many lawsuits have you been involved 3 with last year? 4 A I'm not sure I understand the question. 5 Q How many lawsuits were you hired by by lawyers last 6 year? 7 A The Clinic, our group -- S Q You personally, Dr.Teitelbaum? * 9 A No, I can't. Idon't know. 10 Q You don't know? 11 A What I can give you is what the group, the three 12 toxicologists have. We currently are at approximately 13 number fourteen hundred. When I came to the Clinic in 14 1982 we started the series at eight hundred; so that means 15 there are six hundred cases that have come in since 1982 16 among three physicians. That's the best I can give you. 17 Q Well, let's go to you personally, because you say 18 you've been deposed about twenty-live times this year. 19 A Right. No, not this year. 20 Q Last year? 21 A That's last year. 22 Q Because you have been in Israel? 23 A That's right 24 Q Twenty-five times last year. Would 25 that most of those depositions go a day? V ~1\5k7093 1Q *> A -142- In addition to the lawsuits, you do consulting? Right. 3 Q And you charge for that. You do reviewing of medical 4 records that aren't in a lawsuit yet, and you do literature 5 searches for lawyers to get their lawsuits ready, and that 6 doesn't consider a case that you have for a year? 7A No, that's not my work. That's other peoples' work, 8 so don't put that on me. * 9Q 10 A 11 Q It's in your clinic? But that's not mine. I don't get that money. You also review your paralegal's work at your 12 don't you? 13 A I don't review her work.' She does her own work. 14 And I don't get that money, either. 15 Q Well, wouldn't it be fair to say, Doctor, that you make 16 a pretty good living out of testifying? 17 A I make a pretty good living but not out of testifying. 18 My income is about $150,000 a year, total income from every 19 thing that I do. 20 Q And more than half of that income is from testifying? 21 A No, about half of it. 22 Q About half of it. 23 A And'not from testifying. From all of my medical- 24 legal work. 25 Q How did you get to Marshall, Texas? 1580 p-iuw IA Mr. Baldwin called me up. -1 43- 2Q 3A And how did you come here, by commercial flight? I came here by commercial flight, yes. ! Ii 4Q On other occasions has Mr. Baldwin brought you to and ] 5 from? How did you get home from your deposition? 6 A Never -- never. I wouldn't go in his airplane. He's a 7 lovely man. I don't fly in private airplanes, and we had a * 8 nice discussion about that, but I wouldn't go in his airplane. 9 0, You fly commercial? j 10 A Right, I fly commercial. I trust United Airlines 11 better than anybody else. 12 Q But not the Environmental Protection Agency? 13 A I don't think United Airlines is a government agency, 14 and I do trust the Environmental Protection Agency. But I t 15 you asked me some questions that I have no information about. 16 Q Why don't we stick with the questions so we don't have ; i 17 to argue. You are not a pathologist, is that correct? 18 A That's correct. 19 Q You personally could not make a diagnosis of Mr. 20 Greenhill's disease from the slides? 21 A On the contrary. Any physician can make that diagnosis 22 if he knows the. criteria and he looks at the slide. I 23 explained to you that I am a licensed, interstate laboratory 24 director in hematology. I looked at the slides. I could 25 not make a diagnosis because I couldn't find Reed-Sternberg 1581 P -Ihos -144- 1 cells, so I sent it to other people. 2Q As a matter of fact, in this particular case you felt 11 3 that you were not qualified to make a diagnosis of Mr. iI j I 4 Greenhill's illness? | 5 A Based on the slides, that's correct. j 6 Q And you sent it out to other people because you felt 7 you weren't qualified to analyze the slides? 8 A That's correct, I sent it to two other pathologists 9 because I wasn't happy. j i 10 Q Now, you are not Board certified in internal medicine, 11 are you? 12 A- Correct. 13 Q You are not Board certified as a hematologist, are you? 14 A That's correct. 15 Q And you understand what I mean by "Board certified," 16 Doctor? ' 17 A Yes. 18 Q That means you are certified by the American Board of 19 Medical Specialties, that's what it means? 20 A That's what you mean,yes. 21 Q You are not certified by that Board for oncology, the 22 study of cancer? 23 A That's correct. 24 Q And that's a specialty, oncology, which deals with 25 tumors and cancers, isn't that correct? 1582 1A 2Q 3A Treatment of tumors and cancer, yes. You are not certified in that? That's correct. -145- j I j 4 Q Now what is epidemiology? 5 A Epidemiology is the science of diseases in large 6 populations. 7 Q You are not certified in that either, are you? 8 A There isn't any certification in epidemiology, so I 9 don't think anybody is certified in it. 10 Q Well, you don't consider yourself an epidemiologist? 11 A No. 12 Q You are not Board certified, Dr. Teitelbaum, in 13 occupational or preventive medicine, are you? 14 A Correct. 15 Q Now what is dermatology? 16 A Dermatology is a skin disease, a study of skindiseases. Q17 You are not Board certified in the study of skin 18 diseases, either? 19 A Certainly not. 20 Q There was a lot of talk this morning about neurology. 21 You are not Board certified in neurology, are you? 22 A N o , I 'm not. 23 Q And that's the specialty that involves nervous disorders' 24 A That's correct. 25 Q Psychiatry, you are not Board certified in that either? V~ll>07 1A -146- I don't think that psychiatry is involved in this case, 2 but you are correct, I am not a psychiatrist. 3 Q Wouldn't it be fair to say, so I won't bore the Jury, 4 that you are not Board certified by the American Board of 5 Medical Specialties in any area? 6 A I think we agreed on that way back in direct examination. 7 I am certified only by the American Board of Medical 8 Toxicology. 9 Q Now let's talk about chemistry. You talked a lot about 10 chemistry today. You, yourself, are not a chemist? 11 A Correct. 12 Q. Now moving on to an area I am going to go nice and slow 13 so I can understand it and the Jury can. Now, in your 14 opinion, Doctor, the cause is the same for all cancers, 15 isn't that correct? 16 A I haven't the faintest idea what you mean by that 17 question. 18 Q Okay, that's good. If you don't understand it, the 19 Jury won't understand it. In your opinion, the etiology 20 is the same for all cancers -- cancers are caused by 21 carcinogens and a carcinogen can cause any form of cancer? i 22 A That's your testimony. I never said that, and I don't 23 believe that. 24 Q Let's go -- let's go through this again. I'll go back 25 again. Causation -- 1584 D-/66S 1A 2Q Okay. -147- -- is it your opinion that a causation is established 3 through an association, a mere association? 4 A Sometimes. 5 Q So if a study is done on animals, like rats or mice?, 6 and showed that the rats and mice get malignant tumors, 7 that's good enough for you to say that it would cause tumors # 8 in men? 9 A Not necessarily. 10 Q That's a pretty broadgeneralization? 11 A Well, wait a minute. Let me answer, finish answering 12 the question. 13 Q Well, let me -- I'llrephrase the question. 14 THE COURT: Let the witness answer the question. 15 MR. ORTEGO: Okay, Judge. 16 A When you asked me whether tumors appearing in animals 17 has anything to do with cancer in man, I would have to say 18 to you, what kind of tumors, what kinds of animals, what 19 kind of study, what dosage levels? And if whnt we found 20 were malignant tumors in two animal species in a properly 21 done study, I would conclude that there was at least a 22 reasonable probability that that substance would at some 23 dose cause cancer in humans -- not tumors, malignant tumors. 24 Q Let me go back to something that I understand. Just 25 because a substance causes cancer in animals in a laboratory 1585 J doesn't necessarily mean it causes cancer in man? -148- TA It's highly likely to do so. Unless man happens not 3 to have a particular enzyme system, a particular enzyme 4 system which a very special animal species has, it is likely 5 that that substance at some dosage will cause cancer in man. 6 Q Let's pick some substances because you draw the 7 association from these studies, because it causes cancer * 8 in animals it must cause cancer in man. Trichloroethylene 9 is a cleaning solvent, isn't it? 10 A I don't believe that trichloroethylene causes cancer in 11 man. It has only been shown to cause it in one animal 12 specie, not in two; it's not a well done study, and it will 13 not stand up to review. I do not happen to think trichloro 14 ethylene causes cancer in man. 15 Q But it does cause cancer in some animals, but doesn't i 16 cause cancer in humans? 17 A In one single animal specie does not meet the criteria 18 of two animal species at varying dosage. It is not a valid -- - 19 it would not be a substance I would make that conclusion. 20 Q Now for you the strongest evidence that a substance 21 can produce cancer is if you can produce cancer repeatedly 22 in one or more animal species with a particular chemical 23 or virus, isn't that correct? 24 A I never said that, and I certainly don't agree with it. 25 Q Maybe I will rend your deposition testimony and see if 1586 -149- 1 this helps you out. I'll come back to this. I'll give you 2 the pages when I can come back to it; it will be easier. 3 Now the weakest evidence for cancer in your mind, Doctor, 4 is epidemiological evidence? 5 A That's correct, unless it is so clear, as with benzene, 6 that there can be no reasonable doubt. 7 0 Okay. But except for cases like benzene, you think 8 that's the weakest evidence? 9 A In general, I think that's weak evidence, yes. 10 Q Epidemiological evidence comes from the study, from II studying the history of a disease in the human population, 12 doesn't it? 13 A That's not what I said. I said it's the study of 14 diseases in large populations; not history of diseases, 15 or anything of that sort. 16 Q Well, you are not an epidemiologist, so you wouldn't 17 be qualified to interpret these things, would you? 18 A Well, I disagree with you. I taught epidemiology for 19 two years. I'm certainly competent to interpret those 20 studies. I was a medical school professor in epidemiology, 21 and although I do not practice as an epidemiologist, I 22 certainly can read the literature and understand it. 23 Q Let's go on to another area. Generally speaking, 24 Doctor, you believe that anything which increases the risk 25 of cancer is capable of causing Hodgkin's disease, isn't that 1587 1 correct? - J 50- 2 A In a general sense, that's correct, yes. 3 Q Besides 2, 4-D, besides that, you also believe that 4 any substance which is carcinogenic, meaning cancer-causing, 5 would also be a contributing cause to Mr. Greenhill's 6 Hodgkin's disease? 7 A That's certainly a possibility. 8 Q Now regarding 2, 4-D, you believe that it causes cancer 9 in humans, isn't that correct? 10 A That's correct. 11 Q But despite your belief, isn't it a fact that the 12 Environmental Protection Agency allows certain levels of 13 2, 4-D on our food? 14 A That's their problem, not mine. 15 Q But they do allow it, sir, don't they? 16 A They have tolerances for it. 17 Q They do, don't they? 18 A That's correct. 19 Q And you base that belief of yours,that 2, 4-D causes 20 cancer, on animal studies that show it as mutagenic and 21 clastogenic in animals, isn't that correct? 22 A And studies which have shown that it causes lympho- 23 sacormas and reticulum-cell sarcomas. 24 Q And you base that on the basic science on animals 25 that suggests it appears to be carcinogenic in animals? 1588 D-lklP- ] A That's one of the pillars ol the belief, yes. -151- 2 Q And from one of these studies you conclude that if 3 one of the causal factors for -- and from these studies 4 you conclude that it is one of the causal factors for 5 lymphomas, isn't that correct? 6A I am not sure I follow your logic. I think you will 7 have to explain to me what it is you are asking me. 8 0 Well, I guess it's your opinion, Doctor, if 2, 4-D 9 produces cancer in animals it must produce cancer in human 10 beings, is that your testimony? 11 A No, it can produce cancer in human beings. 12 Q It can produce cancer? 13 A Yes. In other words, at some dosage in some people 14 a substance which has caused cancer in two animal species 15 at varying doses has the potential to cause cancer in humans, 16 That's what I believe. 17 Q So there are a number of substances which you believe 18 that can cause cancer in humans, isn't that correct? 19 A Yes. 20 Q Now you believe that ifone of thosesubstances, which 21 are cancer-causing substance, hits you at the right time in 22 the right place, you can get cancer, isn't that correct? 23 A That's correct. 24 Q So that means if aperson gets onemolecule of a cancer- 25 causing substance in the right place in the right time, P-lfel3 ; 1 according to you, cancer can develop? - 152- ; 2A 3Q Yes. I think I have agreed with that three times, now. So any molecule that could be cancer-causing in your iJ '4 opinion, if that molecule gets our bodies at the right time , 5 in the right place, it can cause cancer? i ! 6 A I guess I've said it four times now. Yes, I agree with | 7 that general statement. ! 8Q ! And it's your opinion, Doctor, if it can cause cancer, | 9 it must cause Hodgkin's disease? 10 A No, it might cause Hodgkin's disease. 11 Q Might cause Hodgkin's. 12 A- Hodgkin's disease is a cancer, it's a cancer of the 13 lymphatics, and therefore a substance which has the potential i 14 for causing cancer could, in theory, cause Hodgkin's disease.: 15 Q So with your theory, the one-hit theory, one molecule , j 16 in the right time, it doesn't matter what substance gets you.I l 17 If it's a carcinogenic substance and it gets you at the right!iIi 18 place and the right time, you are going to get cancer? 19 A Well, it does matter, because the opportunity for 20 coming in contact with carcinogens varies for many people. 21 A vinyl chloride worker, for instance, is going to be exposed 22 to enormous amounts of vinyl chloride in comparison to the 23 average person, and he may get angiosarcoma of the liver, 24 and the most probable cause of that angiosarcoma of the 25 liver is the vinyl chloride. So that's how one makes the 1590 JD-I&IV I -1531 conclusion that the vinvl chloride is the likelv cause in I !' 2 ! that case. However, in somebody who doesn't work with 3 vinyl chloride, to assume that it's vinyl chloride that | ! i ! | 4 produced it would be ridiculous, and I don't make that kind !II j 5 of an assumption. j 6 Q Let's go back a little. One molecule in the right place 7 at the right time can do it, correct? It doen't matter * 8 whether you work with vinyl chloride, but if that one 9 molecule gets you at the right time and in the right place 10 you can get cancer, that's your theory? 11 A Well, I think that you now have distorted my theory, 12 and I -- I don't think I can agree with you now. I have 13 stated it. I'll be happy to restate it, if you'd like me 14 to. I IS Q Okay. We'll come back to that a little later on your 16 i theory. The Hardell papers that you discussed earlier 17 say that 2, 4-D is associated with lymphoma, isn't that 18 correct? 19 A The Hardell papers say that the risk lor cancer in 20 people who have worked with chlorophenoxy acids, including 21 2, 4-D, is substantially increased to the rate of six or so. 22 I don't know what you -- where you are quoting associated 23 with, but'if you show me that I'll be happy to consider 24 the phrase or the sentence that he said that in. 25 Q And that paper came out in 1979? V -lfo l? 1 A Which paper? -154- 2 Q Hardell papers? One of them came out in '79? 3 A Well, you have to show me which paper. As you know, 4 we've said he wrote seven papers. Now you have to show me 5 which paper you want to talk about. 6 Q And, as we discussed earlier, those papers have been 7 available to the scientific community world-wide when they * 8 came out? 9 A That's correct. 10 Q And isn't it a fact scientists and doctors in general 11 could have gotten a copy of these studies? 12 A- I would assume that anybody who was interested has read 13 the papers. They are available in any library. 14 Q Scientists and doctors from the International Agency 15 for Research on Cancer could have gotten a copy of this 16 document -- these documents, too? 17 A In what year? 18 0 In the '70s? 19 A In the '70s, yes. I think they did their report in 20 1977, and I think Dr. Hardell's work was mostly after 1977. 21 Q 22 A Okay. So I don't think -- 23 Q Now that agency -- 24 A I'm sorry, I didn't quite finish. So I don't think that 25 they had an opportunity when they did their review to look at 1532 P-lMk -155- 1 his papers which came after 1977, which is the majority of 2 them. 3 Q But they've had an opportunity, in your opinion, since 4 then to review those papers? 5 A I don't believe they have ever addressed 2, 4-D again 6 since that date. 7Q Isn't it a fact, sir, that that agency has never fully * 8 accepted Hardell's papers? 9 A I have no idea. There is no report since 1977, so I 10 couldn't make that assumption. 11 Q In fact, these Hardell papers, haven't they been severely 12 criticized by the scientific community for having built-in 13 biases and faulty scientific techniques by various scientists? 14 Isn't that a fact, Doctor, yes or no? 15 A I think that I have answered that in great detail during 16 the direct, that each time he was criticized, and he has been 17 criticized repeatedly, he has come back, republished studies 18 which answer the criticism. The most comprehensive summary 19 of that is Coggon's paper, and Coggon says that we cannot 20 ignore what Hardell says. That's the current status of 21 Hardell's information. I would say that it is generally 22 accepted that the risk which he described is real, that it 23 exists, it was confirmed by Hoar's study; I don't think any 24 body seriously doubts it. There are arguments about how he 25 did his study; those are all technical. But every study 1593 P-ifei7 1 since it has confirmed what he said. -156- 1 Q Well, isn't it a fact, Doctor, that there has been no 3 study that has been able to duplicate his conclusion on 4 2, 4-D and Hodgkin's disease? 5 A I think that's what Dr. Hoar's study did. 1 iI 6 Q Well, didn't Dr. Hoar's study specifically say that she 7 was unable to substantiate his findings that 2, 4-D causes 8 Hodgkin's disease? 9 A She certainly did, and we have discussed that also. 10 But -- 11 0 Her conclusion was -- 12 A- -- she agreed with the lymphoma portion. 13 Q But her conclusion was that there was no evidence to 14 support the fact that 2, 4-D was associated with Hodgkin's 15 disease? 16 A From her study. From her study. 17 Q- And that was her conclusion? 18 A From her study, that's correct. Not from his study. 19 She didn't critique his study. She didn't answer that. 20 Just her study, she couldn't make that statement. 21 Q She couldn't make that statement? 22 A And I agree with that, she couldn't make it fromher 23 study. 24 Q Now we discussed earlier about the Environmental 25 Protection Agency. Dr. Teitelbaum, if you know, are 2, 4-D 1594 P-JMff -157- 1 products still sold and used today in this country? 2 A Yes. 3 Q Aren't they used in enormous quantities? '4 A I don't know the quantities. I haven't looked at this 5 year's sales .figures, but they are substantial. 6 Q Can anyone, including a nine year old child, go down 7 to the store right here at Brookshire's or whatever, and 8 buy a weed killer with 2, 4-D in it today? 9 A I don't know what the laws in Texas, and Ireally don't 10 know whether they would sell it to a child or not. But I 11 suspect any adult could go in and buy it anytime. 12 Q Isn't it highly probable, Dr. Teitelbaum, as you sit 13 here now, every one of us here in this room, people in the 14 jury box, have been exposed to 2, 4-D somewhere? 15 A At some time in our lives, perhaps. I wouldn't say 16 it's highly probable, but it's perhaps so. 17 Q Isn't 2, 4-D used widely across America today to kill 18 weeds in our home, or lawns, golf courses, right-of-ways, 19 and a lot of other grassy areas? 20 A Goodness, you sound like an advertising brochure. 21 No, I -- I don't think so. 22 Q You don't think so? 23 A I don't think so. I think there is less and less use 24 of it. I think that it's certainly used on right-of-ways; 25 it's certainly used on railroads, but I can tell you that in 3?1-5if9e5n -158- I my part of Colorado, almost nobody uses it around the home 2 because of the problems that the people are aware of, even 3 if you don't seem to be so aware of them. 4 Q Well, I am aware of them and I use them. Let me ask 5 you this: don't farmers use 2, 4-D on crops that we eat? 6 A Some farmers use 2, 4-D, but again, in Colorado 7 relatively little 2, 4-D compared to other herbicides. 8 Q And as a matter of fact, didn't Dr. Hoar study the 9 farmers who used 2, 4-D in Kansas and she found that she 10 could not conclude that the farmers who were exposed to 11 enormous amounts of 2, 4-D there was any association with 12 Hodgkin's disease, isn't that correct? 13 A Well, I think we'd better define what "enormous amounts" 14 are. We are talking about farmers v'ho were exposed twenty 15 days a year. 16 Q For years. 17 A That's not enormous. 18 Q It's not? 19 A No. Her study is anyone who was exposed at least 20 twenty days, and I don't know how many of her people were 21 exposed only twenty days. Now, Mr. Greenhill was exposed 22 for at least two years, and perhaps a third season, three 23 months, daily, a lot more than twenty days. 24 Q Are you sure about that? 25 A That's about what I got from his deposition. 1536 D'-itao 1Q - 159Okav. Did you ever review his records that indicate 2 exactly what he used in the Forest Service? 3 A No, I have not seen his records of what showed exactly 4 what he used in the Forest Service. 5 Q Now it's your opinion, also, that radon gas causes 6 lymphomas, isn't it? 7 A Yes. I think that's generally accepted, and it 8 certainly is my opinion. 9 0 And that radon gas has caused lymphomas since man 10 existed, isn't that right? 11 A I would think so, yes. 12 Q- And isn't it fair to say that you would find radon gas 13 all over this country wherever there is subsurface granite 14 formations? 15 A Generally that's believed to be so. 16 Q Now Hodgkin's disease, it's named after Dr. Thomas 17 Hodgkin, isn 't it? 18 A Yes. 19 Q And Dr. Hodgkin described that disease in the late 20 1800s? 21 A 1832. That's early 1800s. Dr. Pearce pointed that out 22 to me some time ago. 23 Q And that disease that Dr. Hodgkin discovered has been 24 around long before he ever discovered it, isn't that correct? 25 A Well, there is absolutely no way of knowing that. I 1597 -1601 mean, perhaps that was the first time the disease ever - existed. I really couldn't answer that question. 3 Q Well, would it be fair to say, I mean I'm just trying ! i ' 4 to be reasonable, that if he discovered it in the 1800s it 5 must have existed some time before? 6 A I have no opinion about that. That may have been the ! i 7 first case that ever occurred. j 8 Q Would it be fair to say that Hodgkin's disease, the i j I 9 disease that was described, existed long before 2, 4-D was j 10 ever put on the market? I11 A would certainly agree with that. I i j 12 Q- And in the 1930s there was no 2, 4-D on the market, 13 was there? i | 14 A Not before 1941, I think. 15 Q And before the 2, 4-D was put on the market, people got : i j 16 Hodgkin's disease and people got lymphomas? 17 A That's correct, for many reasons. ! 18 Q | And you think the reasons were they were probably caused I i 19 by radiation or benzene? 20 A That's among the reasons. I think that there are many 21 other suggestions that have been made, ranging from j I i j i j 22 tuberculosis, to viruses, to arsenic, to other kinds of | 23 environmental chemicals. I would agree with you that there 24 are external causes, something outside the person, which 25 has caused Hodgkin's disease long before 2, 4-D was -- came -161- 1 on the market. 1 do not think it is the only cause of j j 2 Hodgkin's disease, by anv means. 3Q All those factors which were present before 2, 4-D ! i j j 4 ever came on the market, are generally still present today \ 5 in the environment, aren't they? ! 6 A No, not necessarily. It's very rare to have tubercu 7 losis rampant, within the American population. For instance, "1 8 it's extremely rare to have arsenical treatment. You almost 9 don't see it anymore. Many of the things which were 10 associated with Hodgkin's disease prior to, let's say, 11 1920, are not used in any industry any longer. And I would 12 say that your assumption is an incorrect one, that most of 13 those things are still present. 14 Q How about this assumption: that the things that might 15 have been causing Hodgkin's disease before 2, 4-D ever came I I 16 around are still here today, some of those? You have to 17 agree to that? 18 A I would agree that some of them are still here and still 19 cause Hodgkin's disease. 20 Q And all the kinds of cancer-causing substances which 21 exist today and which you say may cause cancer, they were 22 all present in the environment long before 2, 4-D was around? 23 A Oh, no, certainly not.. Certainly not. 24 Q They weren't? 25 A Well, for instance, all of these products which are 1 62 1 present as impurities, which are unique to the process of 2 ch]orination of phenols, weren't around. Those are manu 3 factured products, and many of the chemicals which can be ' 4 associated with the causes of cancer, like vinyl chloride, 5 did not exist before some chemical company produced them and 6 put them in the environment. 7 Q Why don't we, so we don't argue over this, let's go * 8 back to another area. I can come back to this. Mr. Green9 hill died of Hodgkin's disease, didn't he? 10 A Mr. Greenhill died of a malignant lymphoma, most 11 consistent with Hodgkin's disease. 12 Q Most consistent of Hodgkin's disease? 13 A Right. 14 Q Now you sent these slides when you got them, when you 15 couldn't read them and you felt you weren't qualified to 16 render a diagnosis, to two pathologists, correct? 17 A That's correct. 18 Q Who were the two pathologists? 19 A Dr. Howland and to Dr. Morgan. 20 Q Dr. Morgan found Mr. Greenhilldied of Hodgkin's 21 disease? 22 A That's correct. 23 Q And you sent the slides -- 24 A He said "it's most consistent with Hodgkin's disease." 25 Q And you sent the slides to him? 1A 2Q 3A That's correct. -163- You a]so sent the slides to someone else, Dr. Howland? ; i! \ Right. 4 Q And he found -- at first he wasn't sure, but then 5 later he determined he felt it was Hodgkin's disease, 6 isn't that true? 7A No, he felt it was most consistent with Hodgkin's * 8 disease. He found none of the Reed-Sternberg cells. He 9 did not feel that it was characteristic, and he would not 10 make that diagnosis. You see the record as well as I do. 11 Q He felt it was consistent with Hodgkin's disease, he 12 showed it to all his colleagues and they felt it was con 13 sistent with Hodgkin's disease? 14 A But that they never saw any Reed-Sternberg cells, which 15 are essential for making the diagnosis. 16 MR. ORTEGO: Judge, could I have a ten minute 17 break? Would that be appropriate now? 18 THE COURT: All right. 19 MR. ORTEGO: I think I might be able to organize 20 a little and be more speedy. 21 THE COURT: All right. We will take a ten minute 22 break. Be back in the jury box at twenty minutes till three. 23 (Recess at 2:30 p.m., until 2:40 p.m.; open court, 24 jury and all parties present.) 25 THE COURT: Please be seated. P-IWiT 1 *> BY MR. ORTEGO: CROSS EXAMINATION CONTINUES -164- 3 Q Dr. Teitelbaum, one thing I left off earlier, isn't it 4 your opinion that the strongest evidence that a substance 5 could cause cancer in man is if you can produce the cancer 6 repeatedly in one or more animal species with a particular 7 chemical or virus? Wouldn't that be the best evidence that 8 a particular substance is cancer-causing? 9 A It wouldn't be the best evidence that it is cancer- 10 causing in man if it were only in one animal specie. 11 Q Let me read from"your deposition. The question I 12 asked you -- 13 MR. BALDWIN, SR.: What page? 14 MR. ORTEGO: Page 15. 15 0 And the answer you gave. "What is the strongest 16 evidence?" "The strongest evidence is if you can produce 17 cancer repeatedly in one or more animal species with a 18 particular chemical or virus, that would be the best 19 evidence that a material is carcinogenic." 20 A Yes, but that is not in humans. That's that it is 21 carcinogenic, period, not in humans. You have to have two 22 animal species before you can conclude that it is 23 carcinogenic in humans. I don't think there is any question 24 in my mind, anyway, that trichloroethylene is carcinogenic 25 in one mouse specie where it's been tested. 1602 3?- /s ]Q -165- Well, as a lay person, let me ask you a simple question. -> If animals -- if you produce cancer in animals, it doesn't 3 necessarily mean man is going to get cancer from that 4 substance, isn't that correct then? 5 A Well, at the dosage that it was used in the animals 6 and under certain circumstances, you could come to that 7 conclusion. But, if you take a particular substance, for 8 instance, one of the amines that causes bladder cancer in 9 man, and you test it in animals, particularly let's say in 10 rats and mice, you never get bladder cancer; and the reason 11 you don't get bladder cancer is the mice don't have the 12 enzyme system which allows the substance, it's called 13 anhydroxylation, of the vinyl chlor -- of the -- of the 14 amine to be protected so that it reaches the bladder in 15 those animals. What it does is it causes liver cancer 16 in those animals, but it doesn't cause liver cancer in man 17 because man handles it differently. 18 Q Well, let me get back because I really don't understand 19 what you said to me, so I will try to get it into my terms 20 here. So a lot of times when you have studies that show 21 that cancer was produced in rats, you inject them with 22 things, it doesn't necessarily mean that man could get cancer 23 from those same substances. There are a lot of factors that 24 come into play, is that fair to say? 25 A I think I've tried, and I guess I haven't quite gotten 1603 1 it across to you -- -166- ii 2 THE COURT: Just answer the question, Doctor. 3 Q Is that correct? 4 A You have to have two species. 5 Q Is that correct, my statement? 6A 7Q 8A No, it's not correct. Fine. I'll move on. You have to have two species. # 9 Q I'll move to my next question, Doctor, so we can keep 10 going. Now Doctor Morgan, the doctor you sent the slides 11 to to diagnose, made up new slides from the tissue? 12 A That's correct, he recut the block. 13 Q What he did was -- is take the tissue and recut. the 14 block to get a better look at the tissue, isn't that correct? 15 A That's correct. 16 Q And when he got a better look at the tissue, when he 17 was able to examine it by creating new slides of Mr. 18 Greenhill's body, he found Hodgkin's disease, isn't that 19 correct? 20 A That's what he said. 21 Q Have you ever heard of M. D. Anderson, M. J. Anderson 22 Cancer Center? 23 A M. D. Anderson. 24 Q 25 A Thank you. You have heard of it? Yes. 1604 P-/6A6' IQ -167- Pretty renowned hospital for cancer here in Texas? 2 A Very goodhospital, yes. 3 Q As a matter of fact, you have heard of Dr. Butler, ' 4 haven't you? 5 A Yes. 6 Q He is a very famous pathologist? 7 A I guess I don't know what you mean by "very famous." 8 He is certainly a well-known pathologist. I -- I don't 9 know what that-means. 10 Q Well-known enough that you working in Israel and you 11 in Denver, and he's from Texas, you know who he is? 12 A- Sure do. 13 Q Dr. Butler, who is not an expert in this case, the 14 people in Arkansas sent him Mr. Greenhill's slides to find 15 out what kind of disease he had, isn't that correct? 16 A 17 Q That's what they did, yes. And unlike yourself, he wasn't an expert in this case. 18 One of Mr. Greenhill's treating physicians sent the slides 19 to Dr. Butler at Anderson and asked him, "What does my 20 patient have?" Isn't that correct? 21 A That's what he did, yes. 22 Q And Dr. Butler, from that famous cancer institute in 23 Texas, looked at the slides and he diagnosed Hodgkin's 24 disease? 25 A I believe that's correct, yes. P-lf1ca6.0?5  l -168- ] Q Would it be fair to say that Dr. Butler is more , i 2 qualified than you are -- ! 3A 40 Than I am --- a pathologist, to analyze Mr. Greenhill's slides? ! i I 5 A Certainly more qualified than I am. 6 Q Do you still think that the diagnosis of Hodgkin's 7 disease is stil 1. in doubt? 8 A I think so. I think that the fact that the pathologists 9 at Denver Clinic -- 10 Q Well, the question I guess is -- I'll ask you to 11 explain it. 12 THE COURT: Let him answer the question. 13 MR. ORTEGO: Okay, Judge. 14 A I think that the pathologists at Denver Clinic who had 15 the opportunity to go back and look at the new slides which 16 Dr. Morgan prepared and could not find diagnostic Reed- 17 Sternberg cells, leaves the diagnosis still in question; 18 and that they gave their best opinion, which is that It's 19 most consistent with. And I think there is some doubt, yes. 20 Q Dr. Butler, he diagnosed -- he made a diagnosis on his 21 report, Hodgkin's disease, correct? 22 A Yes. 23 Q Do you think he's incorrect? 24 A I think that based on the tissues which are currently 25 available that there is reason for doubt. P -1630 1Q 1A And you think he might be incorrect? I think it's possible yes. -169- 3 Q Dr. Morgan, who you hired to send the slides to to 4 examine them, who diagnosed Hodgkin's disease, do you think 5 he's incorrect? 6 A I think that there is reasonable doubt among a group 7 of approximately ten pathologists who have differences of 8 opinion. That's typical of what happens, and I think there 9 is doubt left there. I think that it is clearly a malignant 10 lymphoma, and it's most consistent with Hodgkin's disease. I I That's what I said, and that's what the pathologists at 12 Denver Clinic said, and that's where I think the diagnosis 13 lies. 14 Q The two pathologists, not to beat a point to death, that 15 you sent the slides to, both gave the diagnosis of Hodgkin's 16 disease? 17 A No, I think you have to reread what Dr. Howland said. 18 He said "most consistent with Hodgkin's disease." I really 19 think it's not fair to not read his diagnosis exactly as he 20 put it: 21 Q Okay, most consistent? 22 A Right, most consistent. 23 Q At your deposition didn't you state that Mr. Greenhill 24 had Hodgkin's disease, Stage 4-A, the worst and last stage 25 of that disease? 1607 37-/43/ IA -170- i 4-B is the worst and last stage, and I think that's 2 very likely at a Stage 4-B 1ymphoma, mo.st consistent with 3 Hodgkin's disease. lI 4Q I am going to give you a copy of Dr. Howland. Dr. 5 Howland originally sent you a report, did he not? 6 A I have the reports here, yes. 7 Q And the second report he sent to you. Can you read that * 8 to the Jury, the second report he sent to you? 9 A Which part of the second report? I have it. 10 Q You can read from "comment," here first. Read that 11 section right there, "Comment." i 12 A Wait, wait, wait. Let's make sure I have the same 13 report you have. This is which one, the June report? 14 Q The second report. 15 A This is 6-12, okay. 16 Q The report that was completed two days after we took 17 your deposition. I ! j 18 A I think I read it before. I will read it again. 19 0 Could you read it again for us? 20 A "I now believe that my original diagnosis of small 21 cell lymphoma was incorrect after reviewing this additional 22 material. I am unable to find a cell that I would accept 23 as a Reed-Sternberg cell, and thus cannot make a definitive 24 diagnosis of Hodgkin's disease. I believe, however, that 25 the type of infiltrate and histologic progression of the 1608 -171- 1 disease with its various patterns are most compatible with 2 diagnosis of Hodgkin's disease, and are less compatible 3 with the diagnosis of non-Hodgkin's lymphoma. I do not 4 believe that it is possible to accurately subclassify the 5 process, but believe that the differential includes 6 lymphocyte predominance and nodular sclerosing subtypes. 7 I took the liberty to show the sections to Dr. Henry Chu, 8 hematapathologist at the University of Colorado School of 9 Medicine. He was also unable to classify the lymphoma, but 10 favored Hodgkin's disease. Dr. Ault and Meyer have reviewed 11 the sections, with both now favoring a diagnosis of Hodgkin's 12 disease, probable nodular sclerosing varient." 13 Q He also put an addendum to the report, did he not, 14 on the second page? Can you read that as well? 15 A That's the whole report that I have. That's where it 16 ends. 17 Q Well, let me show you the second page of the report. 18 A That is the second page. 19 Q Didn't Mr. Baldwin give you this page, or have you not 20 seen this (tendering)? 21 A I -- I -- 22 Q Well, I think you are missing a part. That's Dr. 23 Howlandis signature, isn't it, Doctor? 24 A Sure. 25 Q Can you read the other section that you didn't have? 1609 U -l(*33 -172- ! 1 A "After reviewing reprocessed tissue from this case, 2 along with additional slides and clinical history, the 3 original diagnosis of small cell lymphoma and the subsequent | i ! 4 comment no longer adequately convey my impression with 5 regards to the entire case. See Report 87DC784 for further 6 details,"which is what we just read. It's just a cover memo. 7 Q Now, you've -- I'll take that back from you. You have 8 reviewed or read Mr. Greenhill's deposition? 9 A Yes. 10 Q What did he describe the illness he said he had? 11 A He said he had lymphoma, and he thinks he has Hodgkin's 12 disease. I don't have the report exactly in front of me, 13 but if you give me the deposition I'll be happy to find the 14 section. 15 Q Isn't if a Tact that he said he had Hodgkin's disease, i ) 16 and gave the specific stage, number and letter in his j i 17 deposition, if you've read it? 18 A I think he did, 4-A, if I recall. No, 4-B. lie snid 19 "4-B." 20 Q So would it be fair to say after you've just read Dr. 21 Howland's report, that afti er he had a chance to review the 22 new slides, he changed his mind and felt it was Hodgkin's 23 disease? 24 A 1 can only road what Dr. Howland said, and I have read 25 it now three times. I'll read it a third time. He says that 1610 -173- I it is less compatible -- what he says again is "I believe that 2 the type of infiltrate and histologic progression of the 3 disease with its various patterns are most compatible with 4 a diagnosis of Hodgkin's disease and less compatible with 5 a diagnosis of non-Hodgkin's lymphoma. That's what I agreed 6 to. That's exactly what Isaid seems to be thesituation. 7Q 8A Do you still have anydoubt that it'sHodgkin's disease? # I have doubt that this group of approximately eight to 9 ten pathologists have reached a consensus that this is 10 Hodgkin's disease of a clearly acceptable type to all of 11 them. 12 Q Okay. Now you have talked about xanthones today, this 13 morning, as an impurity in2, 4-D? 14 A That's correct. 15 Q Do you know of a single scientific paper, Doctor, that 16 says "Tetrachloroxanthones are carcinogenic in humans"? 17 A I know that there are scientific papers which include 18 the tetrachloroxanthones among the heterocyclics which are 19 considered to be carcinogenic in animals. I know of none 20 in humans. 21 Q ' You know of no study in humans that says that xanthones 22 are carcinogenic, is that correct? 23 A There was never an identification until the month of 24 April of '87 of this chemical compound, and there are no 25 studies of it. 1611 ]Q 2A There are no studies? That's correct. - 174- 3 Q Do you know of any single, scientific paper that says 4 that octochloroxanthones are carcinogenic in humans? Do 5 you know of any papers? 6 A I know of no paper that says that. 7 Q Do you know of any papers which say any of these i i i j 8 substances caused lymphomas in man? I ii 9 A Yes, I know of papers which indicate that heterocyclic j 10 hydrocarbons cause lymphomas in man, and that derives from 11 extensive work that's been done on benzopyrenes and all of the i 12 related compounds. And that is in the literature. I didn't 13 happen to bring those with me today, but I think that there j 14 are numerous papers which we certainly could supply if you 15 wanted them. 16 Q Let me ask you this question. You don't know of any 17 papers that say and I will get the substances down, I 18 took them down this morning -- totrach1oroxanthones and 19 octochloroxanthones that say specifically that they are 20 carcinogenic in man, or cause cancer? 21 A I know of no such papers, that's correct. 22 Q I And you know of no such papers that say "these chemicals! i 23 cause Hodgkin's disease or non-Hodgkin's lymphoma in man," 24 isn't that correct? 25 A That's correct. 1612 1Q - 175- Xanthones, this thing that you talked about today, this 2 terrible thing, xanthones, don't they naturally occur? 3A 4Q Chlorinated xanthones do not naturally occur. Other xanthones naturally occur? 5 A Chlorinated xanthones don't occur, and these are 6 chlorinated xanthones, and they do not occur naturally. 7 Q But aren't xanthones used in medicine? 8 A Jension (pho) violet a xanthone, but it's not chlorinated 9 and it is quite a toxic substance when taken internally. 10 Q Aren't there xanthones that you give to humans to kill 11 worms when they get worms? 12 A Yes, and occasionally they kill the humans. 13 Q But they give it to humans to kill worms? 14 A Yes, they sure do, but they are not very safe drugs, 15 and they are certainly not used very often. 16 Q But they are given to humans? 17 A That's correct. 18 0 Now, Doctor, xanthones are even used on people's teeth, 19 aren't they? 20 A Well, you/ got me there. I don't know of any xanthones 21 that are used on people's teeth. 22 Q Do you recall when we took your deposition we asked you 23 to produce in this matter all the information you knew about 24 xanthones? 25 A That's correct. 1613 P-IC37 1 Q And you produced that to us? -176- J i 2 A I asked my office to send vou what we had. As far as I i] 3 know there is only one reference. 4 0 Are you aware of this United States' patent to use j 5 xanthones to bond human's teeth? | ! 6 A That has nothing to do with chlorinated xanthones, and j i 7 that is the only thing I was talking about. And I know of 8 no information at all, except a single literature entry on 9 chlorinated xanthones. Xanthones in general, there is tons 10 of information. 11 Q Let me show you this. Are these chlorinated xanthones 12 right here on that page, those substances? 13 A 14 Q No, sir. But those are xanthones? j 15 A One is an isopropylthyoxanthone. The next one is an , ! 16 isopropylthyoxanthone, then a trifluromethy1thyoxanthone; i I 17 the next one is a nitrothyoxanthone; here is a two chloro -- , i 18 single chloroxanthone; then a chlorothyoxanthone. There are i 19 three monochlorothyoxanthones. 20 Q And what is that patent for? What do they want to 21 use the xanthones for in that patent, Doctor? 22 A Looks like it's a primer. 23 Q For teeth? 24 A To bond teeth, that's what it looks like. 25 Q Yes. Thank you, Doctor. I will take it back from you. 1A 2Q Well, I'd like to just read it for a second. - 177- Well, if there is a question on it, your lawyer can 3 ask you questions. ' 4 A He's not my lawyer. 5 Q You have never seen it before? 6 A Never seen that paper. 7 Q Well, he's not your lawyer. You have a retainer 8 agreement with him, though? 9 MR. BALDWIN, SR.: Your Honor, I object to the 10 side bar comment. 11 THE COURT: Yes, we don't need that. 12 MR. ORTEGO: I apologize to the Court, Your Honor. 13 THE COURT: We are doing mighty well without all 14 that. 15 MR. ORTEGO: I apologize, sir. 16 (Mr. Ortego continuing:) 17 0, Doctor, Mr. Baldwin gave you this document. 20 UU, the 18 Dow document that you talked about, this xanthone document. 19 I'd like you to take a look at this. 20 A I have it. 21 Q You have a copy, good. This is Plaintiffs' Exhibits 20 UU. 22 Now, this document deals with the handling of 2,4,5,7 23 tetrachloroxanthone, is that correct? Am I reading it right? 24 A Xanthen-9-one, that's correct. 25 Q It doesn't deal with the handling of 2, 4-D, does it? 1615 D-lt37 1A -178- i It deals with this material, which, as it says, is an 2 impurity at 20 to 100 ppm in 2, 4-D. j 3 Q But it deals with this document, it deals with handling 4 that thing in its pure form, isn't it correct? i 5 A No, it deals with handling this in concentrations as 6 low as .00001 percent. j ! 7 Q Read the title to us. 8A It says: "Acute Toxicological Properties and Industrialij 9 Handling Hazards of 2,4,5,7 Tetrachloroxanthone." 10 Q Industrial handling, correct? 11 A Yes. Q12 jAnd doesn't that same report indicate the oral toxicity 13 which means if the material is eaten, if you eat it, the j j 14 toxicity is low. Doesn't it say that in there? j 15 A i Yes. But I am not sure that is of any consequence for j i 16 what we are talking about. j 17 0 But if you eat it the toxicity is lew? j 18 A That's correct. Acute toxicity. That means that it 19 doesn't kill acutely except in very large doses. 20 Q And when they speak about wearing orotective clothing 21 here, which you discussed, that's from lab workers working j 22 with large amounts of pure tetrachloroxanthone, isn't it? j 23 A No, sir, that is not what it's for. It says that it j 24 is for this -- working with this material which occurs as 25 an impurity at 10 to 100 ppm in 2, 4-D. And then it goes on -179- | 1 and it tells you what kinds precautions need to be taken whenj 2 those kinds of concentrations are present. And we are talkini i 3 about a 10 ppm solution which causes chloracne, and 10 ppm j i '4 is less than the amounts present in 2, 4-D. So as I read ! 5 this, it is talking about handling of 2,4-D which contains j 6 this material. j j 7 Q . Well, doesn't it talk about "a pale yellow solid sample ! ' 8 of 2,4,5,7 tetrachloroxanthone was submitted to the Toxi- ! | 9 cology Research Laboratory"? Aren't thev doing lab tests 10 with this? i i 11 A Mr. Ortego, I think you need to turn to the next page -- 12 0 Yes. 13 A -- where is says "Not handled as a pure compound but as 14 a contaminant." I think -- 15 Q Okay. 16 A -- that's the same problem I had with Dr.Howland's 17 report, you don't have a whole report, maybe. !| | i ij j 18 Q No, Dr. Teitelbaum, I haye the whole report. 19 A 20 Q Oh. ' I lI But they are really talking about xanthonesthemselves, I 21 not the product 2,4-D. You don't have to wear protective -- 22 it doesn't say you have to wear protective clothing with you 23 use 2,4-D in this document, does it? 24 A Mr. Ortego, it certainly does. It says "Not handled il 2S as a pure compound but as a contaminant." I -- I can't see -1801 that. there is any other question but that that's what it 2 says. 3 Q Does it talk about dealing with 2,4-D, the final product 4 here, sir? 5 A Yes. 6 Q In your opinion it does? 7 A It says: "This material, also known as 2,4,5,7 8 tetrachloro-9H," so on and so on, "is an impurity at 20 to 9 100 ppm in 2,4-D." It's right there in the first paragraph. 10 Q I don't want to spend the whole time arguing, but 11 doesn't it say "A pale yellow solid sample of 2,4,5,7 12 tetrachloroxanthone was submitted to the Toxicology Research 13 Laboratory," and doesn't it also go and say that skin tests 14 indicate that it's not likely to be absorbed in acutely 15 toxic amounts? Doesn't it also say that in there? 16 A I agree with that. There is no question about that in 17 my mind. 18 Q There is no question, okay. Lot's move on to another 19 area for now. In your opinion, Dr. Teitelbaum, there are 20 numerous substances which you believe are capable of causing 21 cancer, aren't there? 22 A 23 Q Yes. And as far as you're concerned, Dr. Teitelbaum, you 24 believe that if a substance could cause cancer it may cause 25 Hodgkin's disease? 1618 D-/44a- I A That's correct. -181- Q Benzene, in your opinion, can cause cancer? 3 A That's correct. 4 0 So would it be fair to say that one molecule of benzene, 5 according to your theory, could cause career? 6 A With the considerations that we previously discussed -- 7 in the right place at the right time, yes, it can cause 8 cancer. 9 Q Has benzene been found in strawberries? 10 A Yes. 11 Q So if a person ate a strawberry with only one molecule 12 of benzene on it, it's possible, under your theory, that 13 one molecule that I ate on my strawberry got to the right 14 place at the right time, it can give me cancer and Hodgkin's 15 disease? 16 A It's extraordinary -- extraordinarily improbable, but 17 it is possible. 18 Q It's possible, according to your one-hit theory? 19 A It is extraordinarily improbable, but it ispossible. 20 Q Cigarette smoking causes cancer? 21 A Yes, it does. 22 Q And under your opinion, then, if it causes cancer, it 23 can cause Hodgkin's disease? 24 A There is an association between cigarette smoking and 25 Hodgkin's disease, yes. D1- 6l i1H93 1Q -1 82- So when I go outside in the hallway and breathe in > someone's ci garotte smoke, I could be breathing in carcinogen 3 can't I? 4 A In a very theoretical sense, the answer to that is yes. 5 Q And according to your theory, if I breathe in someone 6 else's cigarette smoke and that one molecule carcinogen gets 7 me at the right place and the right time, I can get cancer? 8 A Again, very improbable; certainly possible. 9 0 But according to your theory it's possible that I can 10 get cancer that way -- 11 A Yes. 12 Q -- and I can also get Hodgkin's disease? 13 A It's certainly possible. 14 Q One molecule of radiation, in your opinion, at the 15 right time and the right place, according to your theory, 16 could give me cancer too, couldn't it? 17 A There is no such thing as a molecule of radiation. So 18 1 guess I don't know what you are asking me there. 19 Q Well, a molecule is a very small thing, isn't it? 20 A No, no - but radiation isn't measured in molecules, so 21 we've got to talk about some other term. 22 Q There are thousands and maybe millions of molecules in 23 one puff of cigarette smoke, aren't there? 24 A Yes. 25 Q So when I inhale that cigarette smoke out in the hallway 1620 C-IW -183- 1 I w ould be in h a lin g m illio n s of m o lecu les of c a rc in o g e n s, i *> t h a t , a c c o r d i n g t o y o u r t h e o r y , m i g h t g i v e m e c a n c e r ? 3A T h at's right. j j ! 4Q Now t h e sam e is t r u e f o r t h i s ra d o n g a s . I inhale one j I I 5 m o le c u le o f radon g as, and i f i t ' s in th e r i g h t pla.ee at the i i 6 rig h t tim e, I can get cancer or H odgkin's disease? A T h at's correct. ; i ! I 80 And when I go o u t s i d e in th e summer and b a rb e q u e m y self 9 a n i c e s t e a k , a c c o r d i n g t o y o u , t h e r e a r e c a r c i n o g e n s on my j ii 10 s t e a k , a r e n ' t t h e r e ? 11 A Not ju s t a c c o rd in g to me. I d o n 't th in k t h e r e 's any i: a r g u m e n t t h a t t h e b a r b e q u i n g o f b e e f p r o d u c e s s o m e c a r c i n o g e n ^ 13 a n d , y e s , t h a t ' s c o r r e c t , i t d o e s . j 14 Q ! So when I d ecid e to eat th a t nice s te a k and I ea t th a t j 15 c h a r c o a l b r o i l e d s t e a k , I a m i n g e s t i n g t r i l l i o n s o f m o l e c u l e s ! 16 o f c a r c i n o g e n s ? j ! 17 A The v a s t m a j o r i t y o f-w h ic h w i l l bo i n a c t i v a t e d and w i ll j 18 h a v e n o e f f e c t , b u t s o m e o f w h i c h m a y h a v e s o m e e f f e c t , 19 t h a t ' s c o r r e c t . 20 Q And a c c o rd in g to your th e o ry th a t if one o f th o se 21 m o l e c u l e s g e t s m e a t t h e r i g h t t i m e , I a m g o i n g t o g e t can cer and maybe even H odgkin's d ise a se -- i t ' s p o ssib le? 23 A Poss ib ilitv . 24 Q Now t h i s o n e - h i t th e o r y , t h i s c o u ld p e r t a i n to o t h e r 25 t h i n g s . I f I b r e a t h e s o m e s m o k e f r o m a l o c a l i n c i n e r a t o r - - 1621 -184- 1 I go by in my c u r and I i n h a l e sm oke from th e l o c a l i n c i n e r 2 a t o r , and I i n h a l e t h a t m o le c u le and i t g e t s me in th e r i g h t 3 p la ce and the rig h t tim e, acco rd in g to your theory , I can 4 get cancer or H odgkin's disease? 5A I th in k i t ' s a s i l l y exam ple, and I d o n 't th in k th a t 6 t h e r e i s an y way I c a n m ake an y s u c h a s s u m p t i o n . I am 7 not aware th a t anybody goes around in h a lin g smoke v o lu n ta rily . 8Q W ell, do you th in k th e re are c a rc in o g e n s in smoke th a t 9 comes from m unfcipal in c in e ra to rs ? 10 A C e r t a i n l y a r e . 11 Q So i f I am n e a r a m u n i c i p a l i n c i n e r a t o r and I i n h a l e 12 t h a t a i r I c a n g e t c a n c e r ? 13 A I t ' s e x t r a o r d i n a r i l y i m p r o b a b l e , b u t p o s s i b l e . 14 Q How a b o u t w hen I go t o t h e d e n t i s t and I g e t x - r a y s 15 d o n e ? A c c o r d i n g t o y o u r o n e - h i t t h e o r y , i f t h a t x - r a y g e t s 16 m e a t t h e w r o n g t i m e a n d I g e t t h a t - - w e l l , I g u e s s i t ' s 17 n o t m o l e c u l e - - b u t g e t t h a t o n e h i t a t t h e r i g h t t i m e i n 18 t h e r i g h t p l a c e , i t c a n g i v e m e c a n c e r ? 19 A I th in k th e re is ev id en ce th a t any x -ray s do in c re a se 20 t h e r i s k o f a p o p u l a t i o n , b u t t h e r e ' s n o t m u c h t h a t s a y s a n y 21 i n d i v i d u a l ' s r i s k i s v e r y m u c h i n c r e a s e d . S o , y e s , I w o u l d 22 a g r e e w i t h y o u t h a t t h a t i s a g a i n p o s s i b l e , b u t e x t r a 23 o r d i n a r i l y i m p r o b a b l e . 24 Q How a b o u t we go m ore t o y o u r e x a m p le s? L e t ' s s a y w h i l e 25 I a m e a t i n g m y c h a r c o a l b r o i l e d s t e a k 1 d e c i d e t o h a v e a b e e r 1622 ] In your opinion, are there carcinogens in my beer? 2 A Not much. -185i 3 Q But there are carcinogens? 4 A It depends. Some beers have asbestos in them because 5 they use asbestos filters to filter the beer, so there is 6 that possibility. And there are some beers that are baked, 7 and when they are baked they do occasionally make some 8 carcinogens in the baking process. But, again, it's extra 9 ordinarily improbable. 10 Q But according to your theory, if I drink that one beer 11 and I get that one molecule and it gets me at the right time, 12 I can get cancer? 13 A Yes, that's correct. 14 Q How about when I change the oil on my car? That has 15 carcinogens in it, too? I I 16 A 17 Q Yes. I! And if while I am changing the oil on my car, according 18 to your theory, and I get one molecule on me, if it hits 19 at the right place at the right time, I could get cancer? 20 A Well, you'd have to absorb that, and you see what you 21 are doing you are taking a whole series of possible risks, 22 avoiding all of the defensive activities which the body has, 23 not explaining what the right time and the right place and 24 all of that means, and then making it appear that we are at 25 risk all the time. In fact, that interaction, that one time 1623 P-IC77 -186- 1 interaction is extremely, extremely rare, considering; that ' 2 we have billions of cells and billions of molecules of ; 3 exposure, it almost never happens, but it happens sometimes. I 4 Q But it can happen? i ! 5 A That's correct, it's possible. 6 Q And it's your theory, when you adhere to the one-hit I I j 7 theory, it's one molecule, that's what does it? One moleculej 8 that causes it? 'i j i! 9A I know of no one who disagrees that it's one molecule ! i 10 and one molecule of DNA interacting that causes cancer. ! 11 Cancer is a clonal disease; it comes from a single cell and 12 a single molecule. And I think we all -- I don't know of 13 any responsible scientist whodisagreeswith that. } i 14 Q How about Sominex that used to be on the market, do you ! 15 think that was a carcinogen? 16 A I have no opinion about Sominex because I don't know i [ 17 what product you are talking about -- what year and what was 18 in it and so on. ; 19 Q How about any Sominex? I think in your deposition we j 20 discussed Sominex, do you recall that? i i 21 A We talked about Sominex that contained methvlpurine I 22 When it contained methvlpurine, it was well-known that i j 23 methylpurine caused cancer in animals in two species at a 24 dosage very similar to what people were taking on a daily j 25 basis to go to sleep. And that's why the drug was taken off D- -187- I 1 t h e m a r k e t . T h a t wa s t h e c o r r e c t , r e s p o n s e bv I.lie FDA t o LhnLLi 1 T h a t ' s e x a c t l y what should have happened, i t should have been! j 3 removed from the m ark et. j 4Q How a b o u t a s b e s t o s ? We a l l know what a s b e s t o s i s . 1 5 i n h a l e t h e o n e m o l e c u l e o f a s b e s t o s , t h a t c a n g i v e me c a n c e r , 6 to o , according to you? 7A I don't think one m olecule, but I think one f ib e r can. 8Q One f i b e r c a n g i v e me c a n c e r ? 9 A That's correct. 10 Q And you j ump f rom t h e s ame l e a p t h a t i f one f i b e r can 11 g i v e me c a n c e r t h e n g e n e r a l l y i t c a n g i v e me H o d g k i n ' s 12 d i s e a s e ? 13 A No, no, no, no. I d o n ' t think t h e r e ' s any a s s o c i a t i o n 14 b e t w e e n a s b e s t o s a nd H o d g k i n ' s d i s e a s e . 15 Q Oh, you h a v e r u l e d t h a t o u t ? I ! ! i j j 16 A Yeah, I d o n 't think th e r e i s any a s s o c i a t i o n with th a t. 17 Q How a b o u t t h i s q u e s t i o n and t h i s a n s w e r a t y o u r 18 d e p o s i t i o n : "Do y o u b e l i e v e t h a t a s b e s t o s - - j 19 MR. BALDWIN, S R . : What p a g e ? 20 MR. ORTLGO: Oh, I am s o r r y , Mr. B a l d w i n . 12 2 . 21 Q "Do you b e l i e v e t h a t a s b e s t o s i s c a p a b l e o f c a u s i n g 22 H o d g k i n ' s d i s e a s e ? " " I t h i n k t h a t t h e r e i s some a s s o c i a t i o n , 23 b u t i t ' s b e c a u s e a s b e s t o s i s s o t e r r i b l y common and b e c a u s e 24 H o d g k i n ' s d i s e a s e i s s o t e r r i b l y common. I wo u l d d o u b t i t 25 m y s e l f , b u t s t r a n g e r t h i n g s h a v e h a p p e n e d . A f t e r a l l , 1625 - 188- i there is no reason why asbestos should cause cancer, but it 2 does." 3 A That's correct. I agree absolutely with the answer 4 I gave then. There is no association on a causal basis. 5 There is an association because both diseases are quite 6 common. 7 Q How about wood stains? In your opinion, if I stain 8 some wood at home, does that have carcinogens in it? 9 A I don't know what kind of wood stain you are using. 10 0 How about stripping compounds? If I strip the wood 11 off because I want to stain my furniture at home? 12 A- Again, I don't know what you are using. If you are 13 using methylene chloride, that's a possibility. 14 Q Can that cause cancer, one molecule of that? 15 A I would say that it can, yes. 16 Q And it could cause Hodgkin's disease, one molecule of 17 that ? 18 A I think that's a possibility, yes. 19 Q Do you know what to.xaphene is? 20 A Who? 21 0 I guess I'm not too goodat pronouncing it. Toxanhene? 22 Or "toxanhene"? 23 A Toxanhene, yes. 24 Q And that's used in dipping sheep and cattle, isn't it? 25 A It was used. It's not used very much now, but it was 1626 >-/.$o ] used ay a sheep dir), y e s. -189- TQ And o ne m o l e c u l e o f t ha . t d i p i f you a r e e x p o s e d t o i t 3 at the r i g h t d a c e and the r i g h t time, a c c o r d in g to your '4 t h e o r y c a n c a u s e c a n c e r ? 5A Yes. I t ' s e x tr a o r d in a r ily improbable, but p o ssib le . 6Q Now t h e s a me w o u l d be t r u e f o r some o t h e r s u b s t a n c e s 7 t h a t we commonl y u s e . P o l y c h l o r i n a t e d b i p h e n y l s , o r P C B s , 8 can you t e l l the Ju ry what th ose are? 9A Nobody u s e s p o l y c h l o r i n a t e d b i p h e n y l s commonl y, Mr. 10 O r t e g o . I me a n, t h a t ' s r e a l l y n o t f a i r . Commonly? T h a t ' s II a m a t e r i a l t h a t was i n t r a n s f o r m e r s up on p o l e s . I t ' s been 12 i l l e g a l t o u s e i n t h e U n i t e d S t a t e s f o r t e n o r mor e y e a r s , 13 and I s u r e w o u l d n ' t s a y t h a t i t ' s common t o u s e t h a t . 14 0 Well, i t w ou ld n 't i t be f a i r , s i r , t h a t p r i o r to 1978 15 t h a t PCBs w e r e the1 f l u i d t h a t we r e i n many c a p a c i t o r s and 16 many t r a n s f o r m e r s a l l o v e r t h e U n i t e d S t a t e s ? 17 A But t h a t ' s not commonly u s i n g i t . I d o n ' t know anybody 18 who g o e s o u t and commonl y u s e s PCB c o n t a i n i n g c a p a c i t o r s 19 f o r a n y t h i n g . 20 Q W e l l , i f I t o o k a p a r t i n my o l d TV s e l , s i r , and I ; 21 had a c a p a c i t o r and i t b r o k e o p e n , i t wo u l d be PCBs i n t h e r e , 22 w o u l d n ' t t h e r e ? 23 A We l l , I t h i n k you c a n s e e how i m p r o b a b l e i t i s . T h a t ' s 24 w h a t I am s a y i n g , i t ' s p o s s i b l e you m i g h t do t h a t , b u t t h a t ' s 25 p r e t t y im p ro b a b le . 1627 p-lfefl 1Q -190- How about niLrosaminos, things that are found in beer, 2 wine and bacon, the preservative? 3 A I'm sorry, I -- I don't recognize your -- 4 Q I'm not too good at pronouncing -- 5 A I guess not. I don't recognize your pronounci at ion. 6 Q Nitrosamines? 7 A There isn't any such chemical. 8 Q Are there nitrate type chemicals found in bacon, beer, 9 and wine? 10 A In cured bacon in which nitrates have been used, there 11 may be nitrosamines, if that's what you're talking about. 12 Q And it might be nitrosamines in wine and beer? 13 A In American wine and beer, yes. In European and German 14 beer, no, because they don't allow any of the materials to 15 be used which cause the nitrosamiuos. And in wines, I 16 can't recall seeing anything, although it's certainly 17 possible. 18 Q Nitrosamines can cause cancer, in your opinion, can't 19 they? 20 A One -- dimethylnitrosamine is the only one that can 21 cause cancer; and, yes, that certainly falls in the same 22 category. 23 O And one molecule of eating my baeor. that had this in 24 it could get me at the right time, can't it? 25 A Oh, I think almost everybody in the United States knows 1628 V - &5X I -191- | 1 that that's a risk. It's certainly been all over the news 2 papers for the last five or six years. ! 3 Q So you think I am taking a risk when I have bacon of 4 getting cancer? i j 5 A I think that's a risk, yes. 1 i i! 6 Q And with your logic that I am also taking a risk when j i 7 I have bacon to get Hodgkin's disease? ! 8 A It's a risk. 9 Q Aflatoxins, they'are found in peanuts, aren't 10 they? 11 A They are found in some peanuts. Theyare natural i j j 12 mycotoxins which are found in some food, and they fall in j 13 the same category. j i 14 Q And when you say they fall in the same category, if I j Ii 15 eat peanuts that have aflatoxins in it, that could be one | 16 molecule of cancer that can hit me in the right place and i | 17 the right time? 18 A Yes, I think that that's correct, and that's one of ! 19 the reasons that peanuts are monitored to make sure they 20 aren't contaminated with aflatoxin. That's the kind of 21 thing that they should be doing is looking to see that you \ ii 22 don't eat peanuts with aflatoxins on them, and that's ! 23 exactly what's done. 24 THE COURT: How do you monitor peanuts? 162925 THE WITNESS: You take the peanut, Your Honor, you - 192- 1 extract it. And aflatoxin is extraordinary fluoro.-cor;. The FDA does it on a regular basis. They are very careful 3 about that, because it's a well-known issue. Thev won't 4 buy peanuts -- the government won't buy it for the surplus 5 programs unless they are aflatoxin-free. 6 (Mr. Ortego continuing:) 7 Q How about my gold fillings? If I have a gold filling 8 in my mouth, now the gold can give off carcinogens in my 9 mouth, can't it ? 10 A Absolutely not. 11 Q How about gold and platinum, do you think they can 12 be carcinogenic? 13 A I think platinum is carcinogenic. We know that it can 14 be used to treat cancer, and under special circumstances, 15 platinum salts and gold salts, but not the gold that's used 16 to make your fillings can be carcinogenic. They have both 17 been shown to be carcinogenic in animal species. 18 Q So I guess certain gold and certain platinum could 19 cause cancer too? 20 A Oh, but see you never encounter those except in a 21 manufactured product. You are talking about sysplatinate (; 22 which is a chemical used to treat cancer, and we know that 23 almost every chemical that can be used to treat cancer will 24 also cause cancer. So that's one. The gold compounds that 25 are used to treat arthritis are also known to be carcinogenic 1630 D -lfe S ^ -193- 1 in some species. The problem Is that there is no other 2 compound that can be used for that purpose. When you are 3 in that position, you have to make a risk assessment and 4 you have to decide whether you want to use it or not. 5 Q So when you are in that position that if you take that 6 as a medication and you get the one molecule, you could 7 get cancer or Hodgkin's disease. 8 A But you could die of your arthritis, and that's where 9 the judgement has to be made by the patient. Not by the 10 doctor, not by the drug company, but by the patient whether 11 he wants to take that risk when he's informed. 12 Q- How about if I go for a general anesthesia? I go for 13 an operation and they give me general anesthesia, can I get 14 carcinogens that way? IS A Some general anesthetics, for instance the halogenated 16 hydrocarbons have such a risk, yes. But again, the dosage 17 is relatively Low, given in a short period of time, and 18 .it's not a big risk, but it is a risk. 19 Q It is a risk, because that one molecule at the right 20 time can give you Hodgkin's disease, according to your 21 theory? 22 A That's correct. 23 MR. ORTEGO: If I could just have one second, 24 I have to get some papers, Judge. I'll continue. 25 (Brief pause.) 1631 V -it s .? ii 1Q - 19 4 - Now, Doctor, would you agree -- you've talked about a 1 lot of studies -- would you agree that certain Foods that 3 we eat contain mutagens, cancer-causing substances, and 4 there is reputable, scientific literature that says that? 5 A Yes. 6 Q And isn't there literature that says that even 7 mushrooms can cause cancer? 8 A I don't know what you mean by "even mushrooms." I -- 9 I think I would agree that mushrooms may contain carcinogens. 10 I see no reason why they shouldn't. I also know that mush 11 rooms contain anti-carcinogens, and so -- maybe yes, maybe 12 no. 13 Q How about celery, in your opinion could that contain 14 carcinogens? 15 A I don't have an opinion about celery. i 16 Q You remember reading an article -- 17 A By Bruce Ames, yes. 18 Q And that article says that there are carcinogens in 19 ce 1ery. 20 A It also says there are anti-carcinogens in celery 21 and in cauliflower and in broccoli and so. So, you know, 22 you can't take just a piece of the article. That's an 23 article on carcinogens and anti-carcinogens in foods, and 24 he makes the point that, if you eat certain foods you cancel 25 out the effect of the carcinogens. That's exactly what we 1632 D-lfcSt 1 are talking about. -195- 20 But according to your theory, I eat certain foods, like 3 grilled steaks, grilled burgers, mushrooms, I could be 4 ingesting -- peanuts, if the wrong type of peanuts -- I 5 can be ingesting carcinogens? i ! l 6 A I guess I would recommend you eat it with broccoli 7 and cauliflower, which would protect you. 8Q Okay. So I should have my mushrooms and my steak and I 9 1 could eat the cauliflower to protect me. But -- 10 A Right. 11 Q -- if I eat that hamburger, Dr. Teitelbaum, and I have 12 those mushrooms, and I have my beer and I have a little 13 peanuts, 1 am ingesting millions of molecules of carcinogens, 14 aren't I? 13 A Yes. And we certainly have lots of cases of cancer, 16 some of which may well be due to your dietary indiscretions. 17 Q j So i.f one of those molecules in that lunch I just had, j 18 which sounded better than I really had, that one molecule, 19 if that hir.s me at the right time, according to your one'20 hit theory, I can get cancer? 21 A I would agree with that. 22 Q And if I can get cancer, according to your theory, j I j i |i j 23 from eating that wonderful lunch, that one-time deal, 1 24 can also get Hodgkin's disease? 25 A It's a possibility. Very, very improbable, but possible. D1-6lk3S37 ]Q -> A According to your theory, possible? Very improbable, but possible. - 196- 3 0 We spoke about this earlier, but you never spoke to 4 Mr. Greenhill or any member of his family? 5 A That's correct. 6 Q You never spoke to his doctors and you never spoke to / his family? S A That's correct. 9 Q The only way youknew him wasthrough hismedical 10 records? II A And his deposition, that's correct. 12 Q- You knew nothing about his exposure to2,4-D, did you? 13 A Except what he said in his deposition. 14 Q Wouldn't it be fair to say before you rendered your 15 opinion that our product caused Mr. Greenhill's Hodgkin's 16 disease or cancer, you had no idea how much of the product 17 he was exposed to? 18 A I agree with that. 19 Q So when you rendered your opinion you didn't know 20 whether he was exposed to one drop or three hundred gallons? 21 You have no idea? 22 A I knew that he had worked for the Forest Service. I 23 knew the years he had worked for it, and 1 knew he had used 24 2,4-D, and that's enough. 25 Q Wouldn't it be fair to say all you knew was the 1634 D - / t 5*0 I -197- | 1 following -- Page 86: "Would you tell us your understanding j I 2 ol the exposure of Mr. Greenhill to herbicides?" This was I 3 at your deposition when you rendered your opinion. "The 4 only information I have is that he worked with Tordon 101. 5 I have no other information that was supplied to me by i ! ij 6 Mr. Baldwin's office, and someone else will have to discuss 7 his exposure." 8 A That's correct. 9 Q And the reason why you rendered your opinion about that 10 our 2,4-D caused his Hodgkin's disease is because you think 11 one molecule got him at the right time, isn't that correct? 12 A- I think that because he was exposed while working over 13 a period of at least two and perhaps three cutting seasons, 14 he had a sufficient opportunity to have many exposures, and 15 that one of those was a contributing cause to the occurrence j 16 of his 1ymnhoma and his death. That's exactly what I believe 17 that's correct. 18 Q That's your opinion today, but when you rendered your 19 opinion in this case, when we asked you what your opinion 20 was when we took your deposition, you didn't know how much 21 he was exposed to. 22 A I knew -- 23 Q The only thing you knew was that he was exposed to 24 Tordon 101? 25 A I don't know today how much he was exposed to. I know P-l1t6S3?5 -1 98- 1 how long he was exposed. I know he was exposed. I knew t then that he was exposed more than twenty days. I knew that, 3 he fell into the category which was described in flardell's 4 work. All of that I did know. I do not know today how- 5 many gallons he used, nor have I found anything in any 6 document which would give an answer to that question. 7 Q Okay. But you say you knew how long when you gave your 8 opinion? 9 A Yes. He had been exposed from 1975 until approximately 10 1978. 11 Q But you didn't give that in your answer when we asked 12 you? 13 A I don't think anybody asked me what years he was 14 exposed -- ever. 15 Q You knew -- you didn't have a complete occupational 16 history of him at that time, did you? 17 A That's correct. Igave you what I did know, which is 18 that he had worked in a camera department, that he had 19 worked in the Forest Service, that he had worked in a 20 lumber yard, and that there was some history of having 21 worked for a month or a very brief period of time in a 22 gas station. 23 Q Okay. 24 A Today, that is the exactly the same occupational 25 history which is in his deoosition. P"1|6360 10 - 199- : When y o u r e n d e r e d y o u r o p i n i o n y o u knew a b o u t h i s (it h e r : > o c c u p a tio n a l, e x p o su re th ro u gh the docum ents that Mr. B a ld w in j I 3 sent to you? 4A T h a t's correct. 5Q You, y o u r s e l f , d i d not a sk him wha^ cither m o le c u le s j i ! | 6 o f c a r c in o g e n s he m ig h t have been exposed to ? 7A I never exam ined him, so I had no in fo r m a tio n beyond 8 what I have giv e n to you before. j I i 9Q I s n ' t y o u r a p n r a i s a l when you make th e se d ia g n o s e s 10 t h a t t h i n g s c a u s e c a n c e r , i s n ' t i t y o u r b e l i e f , D o c t o r , 11 t h a t i t ' s v e r y i m p o r t a n t t o h a v e a c o m p l e t e h i s t o r y o f t h e 12 i n d i v i d u a l b e f o r e y o u m a k e t h i s t y p e o f d e c i s i o n ? 13 A 14 Q Correct. But you d i d n ' t have a co m n le te h i s t o r y of Mr. I 15 G r e e n h i l l ' s o c c u p a t i o n w h e n y o u i m p l i c a t e d o u r p r o d u c t ? 16 A I had as com nlete a h is t o r y as was a v a ila b le at that 17 t j m e . i i! ! i 18 Q Now you a l s o feel i t ' s im p o r t a n t when you e v a l u a t e 19 w h a t c a u s e s c a n c e r i n a n e r s o n t o k n o w t h e i r h o b b i e s a n d 20 t h e i r p e r s o n a l h a b i t s ? 21 A T h a t's correct. 22 O You d i d n ' t ha v e th a t in f o r m a t io n when you re n d e re d y o u r 23 o p i n i o n ? 24 A Y e s. B ut I do now, and t h e r e i s n o t h i n g ab ou t h i s 25 h o b b i e s o r h i s p e r s o n a l h a b i t s w h i c h w o u l d c o n t r i b u t e 1 significantly to the causation of his cancer. -200- I i j 2 0 You know now, but you rendered your opinion first and 3 verified the information later? 4 A Yes. I would agree even if I had known, let's say, | j ! I 5 that he worked with lead soldiers, I would still say that 6 his exDosure to the 2,4-D was by far the more probable 7 contributing cause than the working with lead soldiers. 8 1 don't think that would make any significant difference, 9 and there is no history of his having worked with any other 10 significant toxic material; there just isn't any. 11 Q You never spoke to him. He was alive when you were 12 retained. You chose not to speak to him and ask him these 13 questions? Is that correct? 14 A I was never asked to interview or examine him. And I I 15 was asked to do nothing until 1985, at which time I was 16 asked to evaluate his records. I j 17 Q When you say you were never.asked, he wasn't your i j 18 patient, was he? 19 A Certainly not. 20 Q He was just a legal file that Mr. Baldwin asked you 21 to evaluate? 22 A No, that's not fair. He was a human being who had. a 23 disease, and I was asked whether I thought that his history 24 explained how he got the disease. That's what I .was asked. 25 Q Well, would it be fair to say that you didn't treat 1638, 2- 0-/G6 -20 1- 1 him, he wasn't your patient, you evaluated and gave whatever iI *> information Mr. Baldwin sent you -- you evaluated and 3 rendered your opinion on what Mr. Baldwin sent you? 4 A I would agree with that. That's the only information 5 I had. That's what I indicated at the beginning of my 6 direct examination. 7 Q Okay. Mr. Greenhill smoked, didn't he? * 8 A Yes. But for a very brief period of time between age 9 14 and 17. He stopped at age 17, if I recall correctly. i 10 Q How many molecules of carcinogens did he inhale? 11 A A lot. 12 Q What percentage of those carcinogens, in your opinion, 13 contributed to him getting cancer? I 14 A Perhaps some. Perhaps they are the ones that set him 15 up so that when your 2,4-D came along, that's what kicked 16 him off. That's what we are talking about, being set up 17 so that the one hit takes place in the right time at the I ji ! 18 right place. He certainly didn't get Hodgkin's disease 19 at anytime close to or remotely related to his smoking 20 between age 14 and 17. 21 Q He had an occasional beer, too? 22 A Yes. 23 Q What percentage of those carcinogens set him up for his 24 Hodgkin's disease? 25 A Perhaps some. 1i Q -202- What percentage of his smoking or drinking this ) occasional alcohol contributed to his getting Hodgkin's 3 disease? i 4 A I think a very, very, very small percentage, but I 5 think it is possible that they made some contribution. 6 Q Mr. Greenhill had x-rays in his life, didn't he? 7 A All after he had his disease, so far as I could tell. 8 Q But at your deposition didn't you state that he had 9 x-rays? 10 A After he had his disease. I can't find any x-rays in 11 there before that. 12 Q When did Mr. Greenhill get his disease? 13 A Late 1973, probably. 14 Q Do you recall being asked this question? 15 MR. BALDWIN, JR.: What page? 16 MR. ORTEGO: Page 101. 17 0 "Do you know if Mr. Greenhill went to a dentist?" 18 "I have Dr. Walters' records. I am sure he went to a 19 dentist." "Do you know how many x-rays he had taken?" 20 "No." "X-rays are carcinogens, aren't they?" "Yes. 21 Just to clarify the question, I have Dr. Walters' records 22 and it goes back to 1957, and I do not recall that I found 23 a single chest x-ray or anything that would be of any con 24 sequence at all in that record. So we at least have that. 11 25 So you are aware of Dr. Walters, his dentist, aren't vou i ]A -203- Dr. Walters was his doctor, and he didn't have any 1 x-rays. 3Q Fine. Dr. Walters was Mr. Greenhill's doctor at one 4 time, correct? 5 A That's what I get from the records I had going hack 6 to 1957. 7Q Okay. What percentage of the food that Mr. Greenhill 8 ate set him up or caused his cancer? 9A I think it's just as likely that the food protected 10 him as that it caused anything. I think that now we are 11 talking about the issues of anti-carcinogens, and that what 12 he ate may very well have negated all of the beer, ail of 13 the cigarettes and everything except the 2,4-D. 14 Q So it's the 2,4-D that stands out for you? IS A It's what stands out for me. That's why I've said that I think that it is a significant contributing cause to his 16 17 disease, that's correct. 18 Q How about coffee, could that have set him up, too? 19 That's a carcinogen. 20 A No, it's not a carcinogen, and I don't agree with that 21 work. I don't think anybody else responsible agrees with 22 that work. Perhaps you do, but I really don't. 23 Q 24 A 25 Q No, 1 don't. No, I don't either. I am glad we agree on that, anyway. Thales about it, though. -20-1- ; 1 A Well, that's pood. That's a step In the right -- we | I 2 will go out and have coffee afterwards. Ij 3 Q No, we won't. Mr. Greenhill was a landscape gardner -- j '4 A Yes. | i 5 Q -- before he worked at the Forest Service, isn't that J 6 correct? | 7 A For a brief period, yes. 8 0 What percentage of his cancer was contributed by his j 9 exposure to chemicals when he worked as a gardner? 10 A Well, that may be one of the reasons he was set up 11 when the later exposure came along. I would certainly agree 12 with that. That's a possibility. 13 Q Couldn't the molecules from those chemicals that he j 14 probably used as a landscaper give him Hodgkin's disease? 15 A Well, he probably used the same 2,4-D that he used 16 later, and I would think that would be a contributing 17 cause. Yes, I would agree with that as a possibility. i i ! j j i ! 18 0 What happened if he used someone else's herbicide, 19 or 2,4-D, could that have given him cancer? 20 A Well, I don't know that that's so. And it's certainly 21 possible that it contributed, but I don't think that it 22 caused it in and of itself, because 1 think he needed this 23 last set of exposures to the chemical that we are talking | 24 about, the Dow Tordon, in order to kick things off. That's 25 what I think. 1Q - 205- | iThat's what you think, okay. So you can't tell us what 2 percentage of his cancer was caused by the landscape j| 3 gardening, can you? j 4A I don't think any significant percentage of his cancer, j i 5 I don't think he had cancer then. I don't think there is ! 6 any evidence he had cancer then. I think that it may, 7 however, have contributed to preparing the cell for that 8 final hit. I would certainly agree with that. 9 0 Now Mr. Greenhill also worked at Copeland Lumber, 10 didn't he, before -- 11 A Yes, he did. 12 Q -- he went to the -- and that's before he ever went to 13 the Forest Service? 14 A Yes. But he describes that he never worked with the 15 wood. He worked in the offices as an estimator or something 16 of that sort. He had no exposure to wood at that point. 17 Q Well, he was in the place with wood. If he worked 18 with wood, we talked about this today, but could that j i j 19 increase his exposure, increased his Hodgkin's disease? 20 A I think his deposition makes it very clear that he did 21 not work with the wood there, and I have no opinion about 22 that. I don't believe that there is any reason to think 23 that it would have made any contribution, based on what he 24 said in his deposition. 25 Q Well, let's go back to the wood. If he worked with wood 1643 -206- 1 during his lifetime, you told us about studies for that, would that increase his risks of Hodgkin's disease? 3 A It may well have prepared him for the final hit, 4 that's a possibility. 5 Q For the final hit. Schoolteachers have a higher rate 6 of Hodgkin's disease. Aren't there papers about that? 7 A The most recent papers say that that's not correct, 8 as a matter of fact, and you will find that -- I think it 9 is in one of the papers that we looked at that Hardell 10 quotes where it turns out that there isn't any increase 11 in schoolteachers, there isn't any increase in physicians, 12 there isn't any increase in nurses. All the people who 13 are around people who generally have Hodgkin's disease do 14 not have increased risks of Hodgkin's disease. 15 0 There are studies out there, aren't there, that say 16 that schoolteachers, physicians, nurses and other occupations 17 A On -- I 'm sorry. 18 Q -- have a higher incidence of Hodgkin's disease? 19 A Only social class studies. What they show, and this is 20 what Hardell was addressing himself to, that people who have 21 higher incomes, higher levels of education, smaller families, T) and are higher in the birth order have a higher risk of 23 developing Hodgkin's disease. As I read it, it seems to me 24 Mr. Greenhill doesn't fall into any of those categories. So 25 1 don't think any of those risks apply to him. ] Q Now -- -207- 2 A He wasn't a schoolteacher. He was, you know, none of 3 those things. 4 Q -- you really don't know' when Mr. Greenhill got his 5 first cancer cell, do you? 6 A That's correct. 7 0 For you, you have to speculate to tell us right now 8 when that first cancer started, wouldn't you? 9 A I think we all would have to speculate on that. 10 0 So it could have actually been years, maybe ten years II before he ever worked at the Forest Service that that one 12 cell of cancer could have been growing in his body? 13 A It seems very improbablesince thepresentation was 14 bony and it caused him difficulty very early on. I really 15 think that's unlikely. It's possible. 16 Q 17 A It's possi ble? It's possible, but I think it's very, very improbable, 18 given the nature of his disease, which was extraordinarily 19 aggressive and gave him bony disease, which is very rare 20 right at the beginning. 21 Q But for you to determine when the cancer started in 22 his body would be speculation, wouldn't it? 23 A That's correct. 24 O Now he did somethingthat was knowrn as "timberbucking." 25 Do you know what that is? 16 0 -1 I A Yes, I think so. -208- 2 Q And he did Limber bucking in 1972 and 1973? I 3 A Yes. 4 Q And that's anincreased risk factor? 5 A Yes. 6 7Q THE COURT: What is that? Why don't you tell us what timber bucking is? 8 A Well, it's a cutting and pulling out of timber from a 9 stand. 10 THE COURT: All right. 11 Q What percentage of his cancer was contributed by doing 12 this timber bucking? 13 A I don't believe he had his cancer then. I think it may 14 have contributed to his being set up so that that final hit 15 triggered things from your product. That's exactly the kind 16 of thing we arc1 talking about here. Now you have got the 17 pieces in order. 18 Q And the final hit that you say was triggered nfC with 19 my product, you don't know whether or not the cancer cell 20 was in there before he was exposed to our product, do you? 21 A I think it's very improbable based on the nature of 22 the disease that he had. 23 Q I don't want to belabor this, but you can't -- of all 24 these other items I went through -- the mushrooms, the coffee 25 all these other things we went through -- the steak, the 0 1 cigarette smoke -209- 2 A I don't accept the mushrooms, and I don't accept the 3 coffee. Cigarette smoke I wi 1] accept. ' 4 Q Okay. 5 A Okay. 6 Q You can't read ty tell uswhat percentage of these 7 different things contributed to his cancer, can you? 8 A I think that there is a possibility that many of these 9 things contributed to setting him up. None of them caused 10 his cancer in and of itself. It took your product coming 11 along to push him into the point where he got the disease. 12 Q- Would it be fair to say, though, he was exposed to 13 trillions and trillions of cancer-causing molecules through 14 his lifetime before he ever was exposed to our product? 15 A You canmake any assumption of numbers youwant. I 16 don't think there's anybody who has ever done, an attempt, 17 even, at cst.imaling that for any normal human being in the 18 United States. 19 0 You can't tell us what percentage of all these things 20 contributed to his cancer because it would be absurd to 21 speculate about that, wouldn't it? 22 A I think it would be absurd to speculate about it, yes. 23 0 Now, we talked about it a little earlier. The United 24 States Environmental Protection Agency regulates the products 25 in this country, certain products, isn't that correct? 1A - 210- No, not really. What it does is it regi'.ates the uses 2 of the product, and by regulating the uses ol the product 3 the product itself comes under regulation. 4 Q The EPA, or any other government agency, doesn't require 5 cancer warnings on beer, do they? 6 A No, but they do on gasoline. 7 Q How about wine, do they require cancer warnings on a 8 bottle of wine because it has carcinogens? 9 A No, but it's an issue that is currently very much in 10 the EPA's discussion, and they certainly now put a warning 11 regarding nutrition in pregnancy and I think that there will 12 be a cancer warning in the future -- not too distant future, 13 either, on the other. That's an FDA -- incidentally, an FDA 14 requirement not an EPA requirement. 15 0 How about the charcoal grills, are there any warnings 16 on that that when you use them you can get career? 17 A I don't recall ever seeing such a warning. 18 Q And it's possible that these things can rut carcinogens 19 in your body, but there's no warnings for those products? 20 A That's correct. 21 Q The EPA tolls the manufacturers of 2,4-D. and there are ->> others besides Dow, what goes on their labels, don't they? 23 A No, no, not at all. What the EPA does is it approves 24 what the manufacturer puts on the label. The manufacturer 25 can put anything it wants, and then the EPA will decide 1 whether I hal '.s a d e q u a t e or not. -211- 2Q 3A Okay. Iror instance, if the language that Dow has in these- j j 4 two reports were to have been put on there, I am certain ! j 5 that if the EPA knew why it was put on there they would have j 6 approved it. Dow certainly had that option, and didn't put 7 it on. 8 Q Let me ask you this, is there any -- there's no 2,4-D 9 label today as you sit here now that the EPA requires a 10 manufacturer to place a warning "Causes cancer in humans" 11 or "Causes Hodgkin's disease in humans," is there? i 12 A. No, I don't know of any such requirement at the present 13 moment. But I think if you put it on there, they'd probably 14 aoprove it. 15 MR. ORTEGO: Could I have just one second? 16 (Brief pause in proceedings.) 17 (Mr. Ortego continuing:) 18 Q Are you ready, Dr. Teitelbaum? 19 A I'm certainly ready. 20 Q I just wanted to make sure. It's getting hot in here. 21 Mr. Greenhill had bony discomfort before his Hodgkin's 22 disease was ever diagnosed, didn't ho? 23 A I think you'll have to ask me a more; specific question, 24 because I don't think he had bony discomfort. 25 Q Well, didn't, he have severe back pains before the /jiJW 1 Hodgkin's disease was ever diagnosed? -212- *> A He had disc disorder, and he had the result of a fall 3 in his upper back prior to his Hodgkin's disease, at 4 approximately two years earlier, as I recall. 5 Q But he had bone pain? 6 A No, I don't think it was bone pain. I think it was 7 thoracic pain, and it was disc type pain, and disc type pain 8 is not bone pain. Disc pain comes from irritation of the 9 nerve roots, and it's not bone pain. It's a very different 10 kind of pain. 11 Q What is bony Hodgkin's disease? 12 A It's Hodgkin's disease which settles in the bone. 13 Q And that's quite an advanced stage of Hodgkin's disease, 14 isn't it? 15 A Not necessarily. It can be the presenting stage in 16 some cases, but it's very unusual. In most patients when 17 it presents with bone involvement, it's classified as a 18 4-B, and it is a very serious prognostic sign. But it can 19 be, according to DeVito and also according to Kaplan, the % 20 presenting sign and the only sign. 21 Q Isn't it a fact that it was your opinion at your 22 deposition that the bone pain he was experiencing, 1he 23 pain in his back he was experiencing, was actually the 24 Hodgkin's disease before it was ever diagnosed? 25 A I think that's a possibility. 1Q -213- j And that he was disabled for a prolonged lime because i i 2 of the bony discomfort he had in his back before anyone \ j 3 realized it was Hodgkin's disease? i 4 A Well, that's certainly from the time when he went to i 5 Dr. Teeter to the time that the diagnosis was made in the | 6 hospital, that's correct. I don't think there's any question! 7 that there was a misdiagnosis between the time that he went 8 to his general practitioner and the time he got admitted to j 9 the hospital. That's a period of about three months or so, I 10 and they were just incorrect in what the diagnosis was. I ! 11 don't think there is any question about that. 12 Q - jWell, isn't the reason that they were able to finally j13 diagnose it is it was so bad in the bone -- his bones were 14 so bad by the time they diagnosed Hodgkin's disease, he was j i 15 in very late stages? He was in Stage 4? j 16 A By definition, when you find Hodgkin's disease in the ' 17 bone you have to put it in Stage 4, even if it's the only ji! 18 finding that you have. So, that's a Stage 4 by definition. ! i 19 I don't think it has anything to do with temporal disease. ; 20 It has to do with the aggressive nature of the disease and j iI 21 the unusual presentation which this man had. It's much more j 22 common to have the lymph nodes come up in the neck first. i i | 23 Q Let's talk about Hodgkin's disease generally here. 24 Isn't it fairly common in young adults like Mr. Greenhill? 25 A It's more common between the ages of 15 and 25. It is -214- ] considerably less common at the age of 32 than it is, let's 2 say, at the age of 27. And at the point that he got the 3 disease, he's already on the bottom of that first peak. ' 4 Q But he was within one of the peaks, wasn't he? 5 A At the very tail end of it. 6 Q And men more than women get Hodgkin's disease in those 7 peaks, isn't that correct? 8 A Sure, because that's the statistical study says more 9 men than women-, and more people between 15 and 30 than at 10 other ages, except later in life. 11 Q You don't treat people for Hodgkin's disease now, do 12 you? 13 A No. 14 Q You are only a consultant? 15 A That's correct. 16 Q Now isn't it your opinion that 95 percent of all j ! j 17 Hodgkin's disease is idiopathic or the cause is unknown? j 18 A I will agree that the cause is unknown. What you mean | Ii 19 by idiopathic is that the cause has not been determined. It 20 does not mean that there is no cause, and you have laid out 21 a whole series of causes which may, in individual cases, -ii be responsible. And I would certainly agree that in 23 individual cases they may be responsible. And if we looked i 24 carefully at those so-called idiopathic cases, more and more 25 of them could be defined as being due to a clear cause. ]Q -215Okay. But a s i t s t a n d s now, 95 p e r c e n t o f a l l H o d g k i n ' s 2 d i s e a s e t h e r e i s no c a u s e a t t r i b u t e d t o i t ? 3A T h e r e i s no c a u s e t h a t h a s been looked f o r ; t h e r e f o r e , 4 t h e r e i s no c a u s e known. 5Q W e l l , w o u l d n ' t i t be f a i r t o s a y t h a t when s o m e o n e g e t s 6 a d is e a s e a doctor does his best to look for the cause of ! 7 the d i s e a s e i f he can f in d i t ? 8A No, s i r , t h a t would not be f a i r , and i t ' s not t r u e . 9Q So m o s t d o c t o r s t r e a t t h e d i s e a s e and d o n ' t w o r r y how 10 i t came a b o u t ? II A No. When i t c o me s t o c a n c e r , u n f o r t u n a t e l y m o s t 12 p h y s i c i a n s do n o t make an e x h a u s t i v e s t u d y o f t h e c a n c e r , j 1 13 and do n o t make an a t t e m p t t o u n d e r s t a n d t h e e p i d e m i o l o g y ; 14 o r t h e f a c t o r s w h i c h a r e p r e s e n t . I t ' s more and mo r e now 15 i n o c c u p a t i o n a l c a n c e r t h a t t h i s i n t e r e s t h a s a r i s e n , and 16 mo r e a n d more o c c u p a t i o n a l c a n c e r s , l i k e a s b e s t o s c a u s e s 17 c a n c e r s , l i k e b e n z e n e c a u s e s l e u k e m i a s , t h a t h a v e b e e n d e f i n e d . 18 B u t t h a t ' s come f r om o c c u p a t i o n a l m e d i c i n e and t o x i c o l o g y j 19 and n o t f rom f a m i l y p hy s i c i a n s . II 20 Q jW e l l , b a s e d on t h e c u r r e n t l e v e l o f d i a g n o s i s , p r o b a b l y I 21 95 p e r c e n t a r e i d i o p a t h i c ? i 22 A I would agree with th at. | 23 0 Today would i t be f a i r to say t h a t the most r e a d i l y ; 1i 24 a c c e p t e d , e s t a b l i s h e d c a u s e o f H o d g k i n ' s d i s e a s e i s a v i r u s ? j 25 A N o , I w o u ld n 't a g r e e with t h a t . The most r ^ c g ^ ^ b o o k 0-11,17 -216- 1 t. hat I q u o t e d t o you b e f o r e l i s t s wood r i g h t ur, w i t h v i r u s e s . TQ Wood? 3A T h a t ' s r i g h t , e x p o su r e to wood, p a r t i c u l a r l y b e c a u se 4 of the ehloroph enols, and i t g iv e s three p o s s i b le reason s: 5 b e c a u s e o f i n f e c t i o u s a g e n t s w h i c h may be a s s o c i a t e d w i t h 6 wood; b e c a u s e o f c h e m i c a l s w h i c h may be a s s o c i a t e d w i t h 7 wood; and b e c a u s e o f a n t i g e n i c s t i m u l a t i o n which may be 8 a s s o c i a t e d with wood. A l l t h r e e o f th o se are p r e s e n t in 9 _:Uie *87 e d i t i o n o f McElwain and S e l b y . 10 Q B u t t h e r e i s a s t r o n g p o o l o f d o c t o r s who s a y i t ' s II v i r a l , i s n ' t i t ? 12 A- W e l l , t h e y h a v e b e e n s a y i n g t h a t f o r a b o u t n i n e t y y e a r s , 13 and n o b o d y ' s p r o v e d i t y e t s o I w o u l d s a y t h a t t h e r e ' s a 14 p r e j u d i c e t o w a r d s i t , b u t t h e r e ' s v e r y l i t t l e s c i e n t i f i c j 15 i n f o r m a t i o n . T h e r e ' s n o t n e a r l y a s g oo d i n f o r m a t i o n a s t h e r e 16 i s a b o u t t h e c h i o r o o h e n o x y a c i d s .*I 17 MR. ORTEGO: J u d g e , i f I w e r e a l l o w e d f i v e m i n u t e s , ; 18 I t h i n k I c o u l d wr a p t h i s up by l i m i t i n g s ome o f t h e s e t h i n g s 19 s o we c a n a l l g e t o u t . I ' d a p p r e c i a t e i t . 20 THE COURT: Do you wa nt f i v e m i n u t e s ? 21 MR. ORTEGO: I ' l l be g r e e d y and t a k e t e n , i f i t ' s 22 a l l r i g h t . 23 THE COURT: Be h a c k i n t h e j u r y b o x a t f i v e 24 m i n u t e s t i l l f o u r . 25 MR. ORTEGO: T h a n k y o u , Yo u r Ho n o r . 1654 10 -219- If you rendered an opinion on medical records that did 2 not belong to Mr. Greenhill, would that have been a serious 3 error? 4 A No, not particularly, unless they had something of 5 consequence. 6 Q Let me show you what is marked as Exhibit No. 1, which 7 is your deposition exhibit that you brought to your depo- 8 sition, medical records that you looked at. These were 9 some of the medical records that you perused at your depo 10 sition when I would ask you questions. 11 A I have no way of answering whether these have anything 12 to do with Mr. Greenhill at all. They don't look at all 13 familiar to me. 14 0 Well, in fact they aren't Mr. Greenhill's records and 15 the records that we discussed at your deposition and 1 asked 16 you questions from,and the records you brought weren't Mr. 17 Greenhill's records. 18 A These are not records which I supplied to you. I'm 19 sorry, these're not my records. I have a copy of my 20 records hereV and these are jiol^the records which I gave 21 to you. ^I have no idea where you got those. 22 Q Those records, Mr. Moss, is he another legal file of 23 you rs? 24 A I never heard his name. 25 Q And those records -- Mr. Moss is a much older man than 1655 0~tlSl<t 1 (Recess at 3:44 p.m., until 3:55 p.m.; open court, 2 jury and all parties present.) 3 THE COURT: Please be seated. You may continue?. 1 4 MR. ORTEGO: Thank you, Judge. S (Mr. Ortego continuing:) 6Q I believe you said earlier, Dr. Teitelbaum, as we 7 discussed at your deposition that Mr. Greenhill had some 8 x-rays taken of him? i | 9A 10 0 Yes. And that you knew that from his medical records is j 11 where you came up with that? 12 A. Yes. He had x-rays taken when he was admitted to the I 13 hospital, and he had some taken by. Dr. Cole somewhere along i 14 in there. j| 15 Q He also had, you described at your deposition when you J 16 were discussing Mr. Greenhill, his dental history, and you 17 described Dr. Walters' records, did you not? 18 A I think Dr. Walter was his generalpractitioner. 19 Q And at your deposition we discussed Dr. Walters? 20 A I think so7, *ves. lil 21 0 And we attached those records at your deposition, the 22 medical records you relied upon as an exhibit to your 23 deposition, and Dr. Walters' records were in there, weren't 24 they? 25 A Yeah, 1 be 1ieve so. 1656 I O -lb *0 1Q -218- And th:il was Exhibit No. 2 to your deposition in which 2 Dr. Walters' records were in? 3 A I don't know the number, but if that's what the number 4 is that's what was in it. 5 Q And one of the things we asked you when you came to 6 your deposition in June of this year was to bring all the 7 medical records you had on Mr. Greenhill? * 8 A You never asked me anything. I didn't have any of 9 those things, as you recall. I brought everything I had, 10 but it was not in response to any kind of request because 11 I never got any kind of request from you. 12 Q- What you did bring in fact to the deposition is all 13 the medical records you reviewed in this case you brought 14 with you and we marked them at the deposition, isn't that 15 correct ? 16 A That's correct, whatever I had at that time. 17 Q And the medical records is what you relied upon in 18 forming your opinion, is that correct? 19 A In forming my opinion about what? 20 Q Mr. Greenhill 's disease and the cause of hisdisease? 21 A No. Jsp'-irerlied on Mr. Greenhill's medical records to 22 describe what happened to Mr. Greenhill medically. I don't 23 think I relied on them at all to supply the cause of this 24 disease. I don't think there's any discussion of that in 25 any medical record. 1657 P-/&! 1 Mr. Greenhill, wasn't he? -220- 2 A I haven't the faintest idea whose records these are. 3 They are not Mr. Greenhi 11.'s . They have nothin" to do with 4 this case. I don't know anything about them. S Q As a matter of fact when I asked you this question at 6 your deposition -- 7 MR. BALDWIN, SR. : What page? 8 MR. ORTEGO: Page 101. 9 Q "Do you know if Mr. Greenhi]I went to a dentist?" 10 "I have Dr. Walters' records. I am sure he went to a 11 dentist." "Do you know how many x-rays he had taken?" 12 "No." "X-rays are carcinogens, aren't they?" "Yes. Just 13 to clarify the question, I have Dr. Walters' record and it 14 goes back to 1957, and I do not recall I found a single 15 chest x-ray or anything that would be of any consequence 16 at all in the record. So we at least have that." 17 Take a look at those records that are in front of you, 18 when I was asking you questions and you were referring to 19 out of your deposition, isn't it a fact that Dr. Walters 20 is in that client's file and there is no Dr. Walters even 21 in Mr. Greenhill's file? 22 A Excuse me. I don't know who Mr. Moss is. I -- I don't 23 have any record. I don't know this man. I don't know any 24 thing about it. 25 Q 1658 Those are the records that were attached' to your doposi Lion n.s Exhibit 2, and you referred -- -221- A Those are not Mr. Greenhill's records, and 1 have no idea where they came from. 0 They are not, are they? And look through quickly, is Dr. Walters the dentist in 1947 when Mr. Greenhil] was a boy, that's really Dr. Walters', when you went through those records that you personally brought to the deposition, you were referring to the wrong man's medical records? A Excuse me. These are not Mr. Greenhill's records. Q I know that. A They have nothing to do with this case. I don't know who Mr. Moss is, and I really do not know where you got this. Q I got those, the Court can take notice, it's attached to your deposition as Exhibit 2, and I'll read the lines. Is there a Dr. Walters in there, a dentist Dr. Walters? Take a look. A I don't sec it (examining file). Well, I do not see it,j and I do not recognize these records. I do not know any thing about this patient. Q So if the exhibits which were attached to your depo sition which you produced, those records, iI you relied upon them, would have been a mistake, wouldn't they? A These records don't have anything to do with Mr. Greenhill. I don't know what -- THE COURT: Just a minute. Let me. see t O 'l & 1 records. -222- 2 MR. ORTEGO: They don't, Your Honor. They have 3 nothing to do with Mr. Greenhill. (Tenders exhibits to 4 the Court.) 5 THE COURT: I am looking at Defendant's Exhibit 1. 6 MR. ORTEGO: Which is Deposition Exhibit No. 2, 7 Your Honor. 8 THE COURT: Where did these -- this is a Joseoh 9 Moss. 10 MR. ORTEGO: That's right. At the deposition of 11 Dr. Teitelbaum -- 12 THE COURT: Well, let me ask a question a minute. 13 Are you stating to the Court that these exhibits, this 14 Defendant's Exhibit 1, was a part of the deposition of 15 Dr. Teitelbaum? 16 MR. ORTEGO: Yes, it was, Your Honor. r THE COURT: Mr. Baldwin, is that correct? is MR. BALDWIN, SR.: Your Honor, I don't know. 19 At that deposition there were boxes of documents furnished. 20 They may well have been. I have never seen them before. 21 MR. ORTEGO: Judge, I think there were four 22 exhibits or so, or a little more, at the deposition. 23 THE COURT: Well, are you stating that the -- 24 MR. ORTEGO: Yes, Judge. 25 THE COURT: -- that the witness testified J^r^m^a 1! -223- 1 series of documents of a person other than the Plaintiff, 1 Mr. Greonhill, in this case? 3 MR. ORTEGO: Yes. Yes, Your Honor. 4 THE COURT: Well now, the witness says lie's never 5 seen these, this Defendant's Exhibit No. 1 before. i i 6 MR. ORTEGO: They are attached to his deposition, 7 and we have a certified copy of the court reporter. These * 8 are the exhibits he produced. The exhibits were given 9 to the court reporter at the deposition. 10 THE COURT: Who gave them to the court reporter? 11 MR. ORTEGO: She took them from the deposition. 12 She marked them and took them. I never touched them. 13 THE WITNESS: I never touched them. 14 MR. ORTEGO: And, Judge, I was at the deposition 15 and when those documents were brought in by Dr. Teitelbaum 16 I took the documents. He put them on the table, and I looked 17 at them. i i I 18 THE COURT: Where are the medical records of Mr. 19 Greenhill that the witness had before him when his deposition 20 was taken? 21 MR. ORTEGO: That was Exhibit 4, and he discussed 22 those records as well at his deposition. 23 THE WITNESS: Your Honor, I have never seen that 24 record before, and my office sent three boxes of material 25 down. The Defendants asked that that be left and jhf^J^ould -224- 1 go through it. I have no idea what was in those boxes. -> THE COURT: Have you over seen t,his exhibit, before? 3 THE WITNESS: Not that I can recall, Your Honor. 4 I don't know who Mr. Moss is, and I have no recollection 5 at all of that. 6 THE COURT: Have you ever testified from this 7 Defendant's Exhibit 1 before with reference to a man named 8 Joseph Moss? 9 THE WITNESS: I have no idea who Mr. Moss is. 10 I have never had anything to do with him. 11 MR. ORTEGO: Judge, just for the deposition (sic), 12 I did not Lake the deposition. I handed that to the court 13 reporter when Mr. Teitelbaum gave it to me and had her mark 14 it. 15 THE WITNESS: I didn't give them anything, Your 16 Honor. There wore three boxes there. 17 THE COURT: Well, Mr. Teitelbaum says he didn't i jI 18 give that to you. 19 MR. ORTEGO: Fine, Judge, I won't -- I won't 20 pursue this anymore. 21 THE COURT: Well, where did you get it? Where 22 did you get those records? 23 FR. ORTEGO: Dr. Teitelbaum at his deposition, 24 Your Honor. They were put on the table, I reviewed them, 166225 and then we questioned him. 0-/^ -225- 1 THE COURT: I mean, I don't want,any hanky-panky 2 here in this court. There is rot 3 MR. ORTEGO: There's no -' 4 THE COURT: There's not going to be any. 5 MR. ORTEGO: No, Judge, I am not being hanky-6 THE COURT: And if I find out there is some going 7 on -- 8 MR. ORTEGO: There was not, Your Honor. 9 THE COURT: -- there will be a hereafter to this 10 session -- 11 MR. ORTEGO: I give my word as an attorney. 12 THE COURT: -- today. 13 MR. ORTEGO: No, Judge, there was not. These were 14 the deposition exhibits that were marked. I was there and 15 I watched it. I'll -- I'll withdraw this line of questioning 16 anyway, because if it's upsetting the Court it's not worth 17 18 THE COURT: It's not upsetting me. I am just 19 wanting to be sure that the proper reports that this witness 20 examined are the reports that are being given to him now. 21 MR. ORTEGO: Judge, that was the exhibit that was 22 marked. It came back from the stenographer. I personally 23 looked at those exhibits at the deposition, and I was 24 as surprised as you were when I saw them. And then my 16625 partner asked him questions at the deposition, and we handed 0-IM 7 i -226- i1 those and asked if he relied on those records, and he relied T on those records. That's why they were individually marked 3 at the deposition. 4 MR. BALDWIN, SR.: Well, I can say as an officer 5 of the court, he never mentioned the fact at this man's 6 deposition about any records belonging to a Dr. Moss, nor 7 did he ask him any questions about it. His deposition is 8 here and speaks for itself. 9 MR. ORTEGO: I just asked at his deposition, 10 asked: "Did you rely on these records? Do you have any 11 x-rays?" And Dr. Teitelbaum looked through Exhibit 2 and 12 told us about Dr. Walters. That's where that came from, 13 Judge. I don't want to cause any trouble w-ith the Court. 14 THE COURT: Were any questions ever asked of this 15 witness when'"'his deposition was taken about anyone named 16 Joseph Moss? ^ 17 MR. ORTEGO: Not by name, Judge, not by name. I i 18 asked fiimfi6^i%^iew the records and asked what he had. 19 THE COURT: Well, who took the deposition for the 20 Defendants? 21 MR. ORTEGO: Mr. Pierce. 22 THE COURT: Where is he? 23 MR. PIERCE (from the floor) I am here, Your Honor. 24 THE COURT: Don 't leave. 25 MR. PIERCE: I won't. 0-/1& -2271 THE COURT: All right. Go ahead. 2 MR. ORTEGO: I have no further questions at this 3 time, Your Honor'. 4 REDIRECT EXAMINATION 5 BY MR. BALDWIN, SR.: 6 Q Dr. Teitelbaum, relating to those documents there in 7 front of you, when you -- where was your deposition taken? '# 8 A In the Hilton at Hobby Airport in Houston. 9 Q And had the Defendants made known to you that they 10 wanted certain documents and records? 11 A And we sent everything we had in our office that had to 12 do with Mr. Greenhill down, in several boxes. 13 Q Were there several boxes of documents? 14 A There were, indeed. IS Q Literally hundreds ofdocuments? 16 A That's correct. And everything was indexed by page 17 and by name, and if that was in there I haven't the faintest 18 idea how it got in there. 19 Q At the time of the deposition did the counsel for Dow 20 Chemical go through each of those documents and mark them 21 and say, "Mr. -- Dr. Teitelbaum, what is this document?" 22 A No, he did not. 23 Q Did they ask at the end of the deposition that all the 24 documents that were furnished to them be left there for 25 them? 166 /)-/^ 1 A They did. -228- 2 Q Now, those documents in front of you, have you ever -- 3 referred to -- 4 THE COURT: You are speaking of Defendant's S Exhibit 1? I want to be sure we have the record on this. 6 THE WITNESS: Yes. 7 (Mr. Baldwin, S.r. continuing:) * 8 Q Defendant's Exhibit No. 1 is relating apparently to 9 a patient, Moss. Did you ever refer to those documents 10 in answer to any question about Mr. Greenhill's condition? 11 A I have never seen these before that I can recall. I 12 don't know who Mr. Moss is. I haven't the faintest idea 13 how they got into this, other than that somebody put it in 14 a box by accident. 15 Q Is your testimony today based on the medical records 16 of Mr. Greenhill that you reviewed? 17 A Absolutely. 18 Q And I have observed your testimony -- it's pretty 19 thorough about your knowledge of the medical records of 20 Mr. Greenhill? 21 A Yes. And I have the medical records at your office, 22 and I'll be happy to bring over that file, if the Court 23 wants to see them. 24 Q Now, going on to another matter. You were asked to 25 evaluate this case by myself? 1666 1 A Yes. -229- 2 Q In connection with the question of whether or not 2,4-D 3 was the causative problem in Mr. Greenhill's death? 4 A That's correct. 5 Q After you had reviewed the records, and if you had felt 6 that it was not would you have told me? 7A 8Q 9A Absolutely. And do you often dothat? I certainly have. * 10 Q Now as to the question of smoking, I believe you told 11 the Jury that smoking causes cancer, in your opinion? 12 A . That's correct. 13 Q What are the facts with reference to whether a person 14 who smokes quits smoking and does not smoke for a period of 15 in excess of ten years -- 16 A The -- 17 Q -- what theiare the risks of that person contacting 18 cancer as a result of the smoking, as compared to the general 19 population? 20 A At the end of five years, he's back to the expected 21 cancer risk for his age. By the end of ten years, there is 22 no question that he would be perfectly normal in his risk. 23 Q So in other words, if Mr. -- let's say Mr. Greenhill 24 was my age, which he was not, wish that he was, and let's 25 say that I don't smoke. But Mr. Greenhill had smoked 1 -230age 14 to 17, and I believe he died at age 38, and quit 2 smoking from 17 to 38, and I'm 38 and I don't smoke. Is 3 what you are saying that his risk of contacting cancer is 4 the same as mine? 5 A Correct. 6 Q Now on these questions of the warnings, you were asked 7 the question if the EPA ever accepted these recommendations * 8 made here by what I call the "Hazard Study," or if the State 9 of California d-id and made changes on the warning require 10 ments? 11 A That's correct. 12 Q- And here would be the other recommendations where it. 13 said the warnings were inadequate. I'll ask you, sir, if 14 Dow ever accepted those recommendations -- 15 A No, they didn't. 16 0 -- and changed their warnings? 17 A They didn't. 1 18 Q And tell the Jury whether or not the question of 19 warnings and what goes on a warning are minimum requirements? 20 A Yes, they are. They have to have at least the minimum 21 that's in the warning text. 22 Q And if Dow had wanted to put on its warning after that 23 Hazard Study told them that their warnings were inadequate 24' back in 1980, could they have gone to the EPA and say, "Mr. 166825 EPA, we think our warnings are inadequate because the Hazard 0 ~f -231- 1 Study told us, and other things that we know. We want, to 2 change it, and we want our warning to show that 2,4-D might 3 cause neurological problems, it might even cause cancer, and 4 it might cause death, and we want to put that on our warnings 5 Would there have been anything to prevent Dow from doing 6 that? 7 A No. 8 Q Did they do that, to your knowledge? 9A 10 Q No, they did not. And is there a document, a Dow document, 20 UU, 11 that says,actually talking about these impurities they found 12 in the process in the Ramsey Test, "Precautions, such as 13 wearing protective clothing, must be taken to prevent 14 skin contact"? 15 A Yes. 16 Q 17 A Used the word "must." That's what it says. And this is Dow talking? 18 Q Did they everput that ontheir warnings? 19 A No. , 20 Q And he was talking to you about I believe a patient's 21 gold treatment might cause cancer? 22 A Yes. 23 Q At least woulda responsiblephysician inform that 24 patient that if he took the gold treatment for his arthritic 25 that it might cause cancer? 16E O-/^3 1 A Yes. -232- 2 Q And would that patient be informed -- 3 A Yes. 4Q 5A -- of his risk? Yes, he would. 6 Q And have the choice to make? 7A 8Q He would. * And did Mr. Greenhill have such a choice, 9 informed of the risk in this case? 10 A He was not, no. 11 Q One final question: whether or not you call it 12 malignant lymphoma, Hodgkin's disease, or just lymphoma, 13 would that change your opinion that you have given here 14 today that the cause of death of Mr. Greenhill was a result 15 of his exposure to 2,4-D? 16 A No. 17 Q . Is there anything that you have heard or occurred 18 during the questioning of Mr. Ortego that would change 19 your opinion that you have already told this Jury that in 20 your opin ion the cause of death of 21 exposure to 2,4-D? 22 A No, it would not. 23 MR. BALDWIN, SR. : I have 24 MR. ORTEGO: Just a quick 1625 RECROSS EXAMINATION ./iff fi 1 BY MR. ORTEGO: -233- 2 Q Dr. Teitelbaum, that report in 1980 that came out, that 3 was years after Mr. Greenhill allegedly used our product, 4 isn't that correct? 5 A The report was in 1980, which is approximately a year 6 and a half afterwards, that's correct. 7Q Besides Dow, there is no other manufacturers of 2,4-D * 8 in this country that adopted those additional warnings, 9 isn't that correct? 10 A So far as I know, you are correct. 11 MR. ORTEGO: No further questions, Your Honor. 12 MR. BALDWIN, SR.: May this witness be excused? 13 THE COURT: Not yet. You may step outside. 14 You may step outside -- 15 THE WITNESS: Thank you. 16 THE COURT: -- but don't leave. 17 THE WITNESS: Okay. 18 (The Witness retiring from the courtroom.) 19 THE COURT: Call your next witness. 20 MR. BALDWIN, SR.: The Plaintiff rests, Your 21 Honor. 22 THE COURT: Are the Defendants ready to call their 23 first witness? 24 MR. ORTEGO: Your Honor, I have some motions I 25 would like to make outside the presence of the Jury. ^ -234I THE COURT: All right, take the Jury outside. 2 (Jury out at 4:15 p.m.; open court continues, all parties 3 present.) 4 THE COURT: Are you ready to present your motions? 5 MR. ORTEGO: Yes, I am, Judge. 6 THE COURT: You may proceed. 7 MR. ORTEGO: The Teitelbaum issue, if you want me y 8 to clear that up I will because I see the Court is upset, 9 and there was no hanky-panky, and I want, to make that quite 10 clear to the Court. I would not do that nor would I care 11 to do that. I have the lines of what happened at the 12 deposition, Judge. 13 Simply put, Mr. Teitelbaum brought -- his assistant 14 sent some of the wrong medical records, and at that depo 15 sition he referred to those medical records. And the only 16 point I was trying to make, and I think it is proper to do 17 that, and I have the lines in the deposition where these 18 were marked and how they got there and when they were marked. 19 There was no hanky-panky involved. I just want the Court 20 to know that. 21 THE COURT: Was there anything said in that 22 deposition about the medical record of Mr. Moss? 23 MR. ORTEGO: No. What was said is as follows, 24 Judge: 1 6 7 225 MR. BALDWIN, SR.: What page, please, Counsel? ) ~l(ofb -235- 1 MR. ORTEGO: 49: "Can you now show us the totality 2 of the medical records that you reviewed in formulating your 3 opinion? 4 "It's right here. 5 "Could we please mark that as Exhibit 2? 6 "Exhibit 2 was marked for identification by the 7 reporter as Deposition Exhibit 2 and is attached hereto." 8 THE COURT: And are Exhibits 2 the records of 9 Mr. Greenhill? 10 MR. ORTEGO: No, Mr. Moss. Exhibit 4 are some 11 records of Mr. Greenhill. 12 "What was supplied to you at the time you were 13 contacted? 14 "The medical records were supplied to me at 15 that time. 16 "Which medical records were supplied to you?' 17 "The folder file that you have looked at before.' 18 "Let's identify it. 19 "MR. BALDWIN: Exhibit 2. " 20 I'm sorry, that's 69 through 70. 21 THE COURT: Well, now I am looking here at 22 Defendant's Exhibit 1 which was given to the witness a 23 moment ago. 24 MR. ORTEGO: It says "Trial," Judge. Trial Exhibit, 25 I marked. There is another sticker on it here. -236- 1 THE COURT: I don't see it. You car. find it for 2 me. 3 MR. ORTEGO: It's here, Judge (indi ;ating). This 4 is the Trial Exhibit sticker. I can get another copy, but 5 it's Deposition Exhibit 2. I put this on top when I marked 6 it as Defendant's 1 for trial. I will get you another copy, 7 Judge. I have another copy. Do you have another copy of * 8 Teitelbaum 2, please? 9 THE COURT: Well, were any questions ever asked of 10 Dr. Teitelbaum concerning Mr. Moss? 11 MR. ORTEGO: No. 12 MR. BALDWIN, SR.: I can state there were not. I was 13 present at the deposition. 14 MR. ORTEGO: No, there weren't, Judge, but what 15 was done was we asked him to look at Exhibit 2 and asked 16 him about x-rays -- what x-rays did he take? He went to 17 the records, and we asked him did he have any x-rays. 18 MR. BALDWIN, SR.: Where is that, Counsel? 19 MR. ORTEGO: Okay, we will go through the whole 20 thing slowly. 21 THE COURT: Why would you have asked the Doctor 22 about the medical records of Mr. Moss? 23 MR. ORTEGO: Judge, he showed up with a bunch of 24 things, didn't rely on much, and I wanted to know what his 25 opinion was. He went to his records, Judge. When we asked -236- 1 THE COURT: I don't see it. You car. find it for 2 me. 3 MR. ORTEGO: It's here, Judge (indi;ating). This 4 is the Trial Exhibit sticker. I can get another copy, but 5 it's Deposition Exhibit 2. I put this on top when I marked 6 it as Defendant's 1 for trial. I will get you another copy, 7 Judge. I have another copy. Do you have another copy of 8 Teitelbaum 2, please? 9 THE COURT: Well, were any questions ever asked of 10 Dr. Teitelbaum concerning Mr. Moss? II MR. ORTEGO: No. 12 MR. BALDWIN, SR.: I can state there were not. I was 13 present at the deposition. 14 MR. ORTEGO: No, there weren't, Judge, but what 15 was done was we asked him to look at Exhibit 2 and asked 16 him about x-rays -- what x-rays did he take? He went to 17 the records, and we asked him did he have any x-rays. 18 MR. BALDWIN, SR.: Where is that, Counsel? 19 MR. ORTEGO: Okay, we will go through the whole 20 thing slowly. 21 THE COURT: Why would you have askec the Doctor 22 about the medical records of Mr. Moss? 23 MR. ORTEGO: Judge, he showed up with a bunch of 24 things, didn't rely on much, and I wanted to kr.ow what his 25 opinion was. He went to his records, Judge. When we asked 1 him a question, he said, "Let me look . . TI -237- 2 THE COURT: Is this in the deposition? 3 MR. ORTEGO: Yes. I will read the lines that are 4 in the deposition that I can find. 5 THE COURT: All right, read what's in the deposition 6 about Moss, if there is anything in there about him. 7 MR. ORTEGO: His name is never mentioned, Judge. * 8 THE COURT: Read to me what is said about what he 9 relied upon to make an opinion. 10 MR. ORTEGO: (Reading) I I "Can you show us the totality of the medical 12 records that you'-- " 13 MR. BALDWIN, SR.: What page, Counsel? 14 MR. ORTEGO: 49: 15 "Can you now show us the totality of the medical 16 records that you reviewed in formulating your opinion? 17 "It's right here.' 18 "Could we please mark it as Exhibit 2? 19 "(Exhibit was marked for identification by the reporter 20 as Deposition Exhibit 2, and is attached hereto.)" 21 MR. BALDWIN, SR.: There is no reference that that 22 is Moss? 23 MR. ORTEGO: No, there has never been a reference 24 that it was Mr. Moss, and he produced them at the table. 25 He took them out of his box. * !7i> 1 5 f i- * 1 him a question, he said, "Let me look . . . " -237- 2 THE COURT: Is this in the deposition? 3 MR. ORTEGO: Yes. I will read the lines that are 4 in the deposition that I can find. 5 THE COURT: All right, read what's in the deposition 6 about Moss, if there is anything in there about him. 7 MR. ORTEGO: His name is never mentioned, Judge. * 8 THE COURT: Read to me what is said about what he 9 relied upon to make an opinion. 10 MR. ORTEGO: (Reading) II "Can you show us the totality of the medical 12 records that you'-- " 13 MR. BALDWIN, SR.: What page, Counsel? 14 MR. ORTEGO: 49: 15 "Can you now show us the totality of the medical 16 records that you reviewed in formulating your opinion? 17 "It's right here.' 18 "Could we please mark it as Exhibit 2? 19 "(Exhibit was marked for identification by the reporter 20 as Deposition Exhibit 2, and is attached hereto.)" 21 MR. BALDWIN, SR.: There is no reference that that 22 is Moss? 23 ' MR. ORTEGO: No, there has never been a reference 24 that it was Mr. Moss, and he produced them at the table. 25 He took them out of his box. 16 -2381 "What was supplied to you at the time you were 2 contacted in 1985?" 3 MR. BALDWIN, SR.: Where are we now? 4 MR. ORTEGO: Now we are on Page 69. 5 "The medical records were supplied at that time. 6 "Which medical records were supplied? 7 "The folder, the file that you've looked at before. 8 "Let's identify that. 9 "MR. BALDWIN: It's Exhibit 2. It's already been 10 marked. 11 "Was the entire Exhibit 2 supplied to you at 12 that time? 13 "I cannot answer that question. I do not know. 14 I can't tell you what was supplied or what was not. My 15 assistant only indexed it completely this year, so I don't 16 know when each piece came in." 17 Then we talk about the records later on, and I 18 will get that for you in a second, Judge. (Locating 19 document.) 20 MR. BALDWIN, SR.: And his answer -- I think you 21 ought to read the rest of his answer. 22 MR. ORTEGO: Go ahead. 23 ' MR. BALDWIN, SR.: (Reading) "I can't tell you 24 what was supplied or what was not. My assistant . . . " 1325 THE COURT: What page and line are you reading O - ) ? 0 '2' 1 from, Mr. Baldwin? -239- 2 MR. BALDWIN, SR.: Page 70, Line 6: "I cannot 3 answer the question. I do not know. I can't tell you what 4 was supplied or what was not. My assistant only indexed 5 it completely this year, so I don't know when each piece 6 came in." 7 And, Your Honor, I think -- 8 THE COURT: Wasn't it obvious to you before today, 9 Mr. Ortego, that these medical records of Moss had nothing 10 to do with this case? 11 MR. ORTEGO: What was obvious to me, Judge, today, 12 is that some of the records he relied on today -- 13 THE COURT: That's not what I asked. 14 MR. ORTEGO: Yeah, Judge, I knew. I knew that he 15 had made a mistake and brought some of the wrong records. 16 THE COURT: Why did you present those to him here 17 today? 18 MR. ORTEGO: Because I wanted to impeach him, 19 Judge, to show that he relied on some records that weren't 20 appropriate. And what I did was during the direct -- I 21 can read it to you. 22 "Do you know if Mr. Greenhill went to a dentist? 23 "I have Dr. Walters' records. I am sure he went 24 to a dentist. 25 "Do you know how many x-rays he had taken? 0 1 "No. -240- 2 "X-rays are carcinogens, aren't they? 3 "Yes. Just to clarify the question, I have Dr. ' 4 Walters' record and it goes back to 1957, and I do not recall 5 that I found a single chest x-ray or anything that would be 6 of any consequence at all to the record, so we at least have 7 that." 8 * So at the deposition he was making a mistake an 9 relying on things from someone else's medical records. And 10 we just asked the question, I looked at it, I saw what he 11 marked was Moss's thing, and I just wanted to show the Jury 12 and bring out that he did make a mistake and is capable of 13 making a mistake like anyone else. That's all I wanted to 14 do, Judge. 15 MR. BALDWIN, SR.: He didn't advise the witness 16 at the time of the mistake. He never advised me until this 17 moment. 18 MR. ORTEGO: Let me tell you what happened. I 19 will tell you right now. I looked at the exhibits. I wasn't 20 taking the deposition. I saw that some of these records 21 were incorrect, and that's the time I noticed it, the end 22 of the deposition. Judge, here is Deposition 2 (tendering). 23 THE COURT: All right. I don't like the way it's 24 been handled, but I am taking it at face value that nothing 25 has been done that -- well, I am not going to take it that 1 6&i - 241- I far. I'll just let it drop where it is. Go ahead and 2 present your motion. Excuse the witness if he cares to 3 leave -- if you are through with him, if everybody is through 4 with Dr. Teitelbaum. 5 MR. ORTEGO: To be excused finally, Your Honor? I 6 don't have any problem with that. 7 THE COURT: Be excused finally. Proceed with 8 your motion. * 9 MR. ORTEGO: Yes, Your Honor. Your Honor, the 10 Defendant Dow Chemical Company moves for a directed verdict 11 pursuant to the Federal Rules of Evidence 50(a), as well as 12 the other applicable Federal Rules. In this particular case, 13 the Plaintiff has failed to prove a prima facie case. He has 14 proved no evidence of negligence, breech of warranty or any 15 evidence of punitive damages. And I think that Mr. Baldwin 16 will agree that even in his opening he said it was a strict 17 liability case. There was no mention of punitive damages, 18 nor is there any evidence of breech of warranty or negligence 19 So I ask that those counts be dismissed. 20 With regard to the strict liability statute, Your 21 Honor, I also move that we be directed a verdict in this 22 matter specifically with regard to Rule 702, 703, and 403. 23 And I go back to what my motion was originally, to limit 24 ' Dr. Teitelbaum's testimony, that just because an expert 25 says it's so it is not necessarily so. And the theory that -242- 1 Dr. Teitelbaum propounds is "is likely to cause, can cause." 2 Only once did he ever mention medical probability or producing 3 cause. His theory is not based on the data that is normally 4 relied upon on experts. He admitted that 95 percent of all 5 cases you can't diagnose the cause, and it does not go to the 6 weight of the evidence and it would require the jury in this 7 particular case to completely speculate as to the causation 8 issues here in this case, and it should not go to the jury 9 because it does not go to the weight. Therefore, I move 10 for a directed verdict on all counts. 11 MR. BALDWIN', SR. : May I respond? 12 THE COURT: Yes. Are you seriously contending 13 anything on punitive damage? 14 MR. BALDWIN, SR.: Well, Your Honor, I would like 15 for it to stay in the case at this point. 16 THE COURT: Is there any evidence? 17 MR. BALDWIN, SR.: And I will cover that, yes. 18 THE COURT: Go ahead. 19 MR. BALDWIN, SR.: First of all, before I make 20 any statement in response to his motion, I would urge the 21 Court that we at this point join in the application that 22 the Court apply the law of the State of Oregon, and his 23 motion, I presume, should be governed thereby. But I think 24 obviously there is evidence to support -25 THE COURT: Some great similarities, is there not? 163 0-170^ -2431 MR. BALDWIN, SR.: Very similar to Texas. They 2 apply strict liability, 402 (a) variety. The question is 3 whether the product is defective and unreasonably dangerous, 4 the same as in Texas. They, I think, apply proximate cause, 5 which I presume the Court will instruct the Jury on. Failure 6 to warn is a specie of defect and strict liability in that 7 state. 8 So I think that the Plaintiff has met his burden 9 under that law by showing that the product was defective and 10 unreasonably dangerous on two scores: one, that it was a 11 defective product because it was hazardous; it would cause 12 a.serious illness, and in this instance, cancer; second, 13 because there was not an adequate warning. And I think the 14 evidence is clear on that, that this Defendant failed to 15 warn of the potential dangers in the use of this product as 16 evidenced by the witnesses read in the deposition testimony, 17 which was first read to the Court -- I forget the witnesses' 18 name. 19 MR. BALDWIN, JR.: Tipton and Kier. 20 MR. BALDWIN, SR.: Tipton and Kier. One of the 21 two said that there just wasn't enough information on that 22 product for the public to understand how to use it and the 23 risk involved, something to that effect. The Hazard Report 24 made by a third party says the labels are inadequate. The 25 labels themselves are, if you view them, are inadequate 1 -1 7 0 7 -244- i 1 because they don't warn of the neurological Droblems, they ! I 2 don't warn of the possibility of cancer, they don't warn of ! 3 the possibility that they might kill. 4 So I think the evidence is clear, and the Plaintiff' 5 i has made a prima facie case that the Defendant is responsible1 I 6 and they should owe the Plaintiff under the law of strict j 7 liability. 8 Now as to the question of punitive damages. I 9 think at this point there is evidence on the issue of willful,i i 10 conscious disregard for the rights of others as evidence 11 by theKrunmel Report. There is a report where Dow found 12 impurities in their product that this witness, at least, 13 has described as some of the most toxic impurities known, ! | ! 14 and the type of impurities most likely to cause cancer, yet 1 I 15 Dow has never told a soul about that, to my knowledge. They ; 16 certainly didn't put it in their literature. They certainly 17 didn't publish it in the literature. They made no effort 18 to inform the outside public of the fact that prior to 197S i 19 their products contained those impurities; and that to me Ii iI 20 exhibits a conscious indifference to the rights of others. 1 i 21 As a result of that studv, the Krummel Study, thev I .! 22 did another study on the impurities where the last document j 23 I read to this witness said that the skin must be protected ' i 24 i against these type impurities and, obviously, against 2,4-D. I 25 And, yes, that was a 1980 document, but -- I mean, '79 . -245- 1 d o c u me n t -- b u t i t e x h i b i t s t h e s t a t e o f mind o f Dow. Even 2 though t h e i r on i n - h o u s e p e o p l e a r e t e l l i n g them they have 3 a product so dangerous that they must wear p ro tectiv e 4 c l o t h i n g and t h e s k i n m us t n ot come i n c o n t a c t w i t h i t , t he y 5 have not yet made any e f f o r t to inform the p u b l i c or to 6 i n f o r m u s e r s s u c h a s Mr. G r e e n h i l l . And I t h i n k t h a t g o e s 7 t o t h e s t a t e o f mi n d o f Dow and i t s h o w s t h e i r m a l i c i o u s and 8 w illfu l disregard for the rights of others. 9 So I 'think at t h i s point at l e a s t that the punitive 10 d a m a g e q u e s t i o n o u g h t t o b e h e l d o p e n . 11 MR. ORTEGO: I f I c o u l d j u s t r e s p o n d t o o ne t h i n g 12 p a r t i c u l a r l y on t h e p u n i t i v e d a m a g e s , Yo ur Honor. 13 THE COURT: Y e s . 14 MR. ORTEGO: I f you l o o k a t t h e e v i d e n c e t h a t he 15 h a s , I d o n ' t t h i n k t h e Krummel document s p e a k s f o r what he 16 s a y s i t d o e s , but i f you lo ok at t h e d a t e s , i t p o s t d a t e s 17 Dow's s a l e o f t h e p r o d u c t t h a t the P l a i n t i f f would have used. 18 T h e r e i s no e v i d e n c e o f p u n i t i v e damages in t h i s c a s e , and 19 i t ' s only s p e c u l a t i o n t h a t can be drawn from the remarks 20 made by D r . T e i t e l b a u m , and t h e c r o s s - e x a m i n a t i o n s h owe d i t 21 w a s s p e c u l a t i o n . He d o e s n ' t know e x a c t l y what t h e EPA h a s 22 a nd what t h e EPA d o e s n ' t h a v e . And I t h i n k t h e r e i s no 23 p rim a f a c i e c a s e f o r p u n i t i v e damages p a r t i c u l a r l y in t h i s 24 c a s e , and I t h i n k we s h o u l d g e t a d i r e c t e d v e r d i c t on t h a t . 25 THE COURT: I am g o i n g t o d i r e c t a v e r d i c t f o r t h e . 1 6i: ! 0-17# . -246- 1 D e f e n d a n t on t h e i s s u e o f p u n i t i v e d a m a g e s , but I am o v e r - i ' 2 ruling the rest of the motion. j i 3 MR. BALDWIN, S R . : Y o u r H o n o r , a r e you d o i n g t h a t i 4 in accordance with the law of Oregon? 1 I 5 THE COURT: Y 1a l l a r e k i n d o f c h a n g i n g p o s i t i o n s j 6 on me h e r e now. 7 MR. ORTEGO: F o r t h e r e c o r d , Your Ho n o r , t h e l a w i i I 8 of Oregon has a higher stan dard fo r p u n itiv e damages than the 9 law o f Texas. So your burden under Oregon law would be even IO more s t r i n g e n t than your burden under T e x as' law. 11 MR. BALDWIN, S R . : I t h o u g h t he had a l r e a d y r u l e d 12 on i t . 13 MR. ORTEGO: Y e s , I know t h a t . I j u s t w a n t e d t o 14 l e t t h e C o u r t know i t d o e s n ' t m a t t e r what l a w a p p l i e s , t h e 15 b u r d e n u n d e r T e x a s ' l aw w o u l d be mo r e - - I w i l l q u i t w h i l e 16 I am a h e a d . 17 THE COURT: Of c o u r s e , you w a n t e d T e x a s ' l a w a t 18 o n e t i m e , a nd we -- 19 MR. ORTEGO: W e l l , I mo v e d , I g u e s s , J u d g e - - 20 THE COURT: I t h i n k you moved t o a p p l y O r e g o n 21 law. 22 MR. ORTEGO: I d i d . 23 THE COURT: And I a s s u m e now t h a t b o t h o f you 24 wa n t t o a p p l y O r e g o n l a w? 25 MR. ORTEGO: W e l l , I d o n ' t know. 168 D ^ /a -247- 1 MR. BALDWIN, SR.: Yes, Your Honor. 2 MR. ORTEGO: Well, I have a problem with that, 3 Judge, now I guess is that -- well, I moved for Oregon 4 law and the Court denied it and I prepared my case 5 accordingly under Texas' law. 6 THE COURT: Would you have prepared it any 7 differently had I gone originally with Oregon law? * 8 MR. ORTEGO: I would think so, Judge, but I can't, 9 give you specific instances at this point. 10 THE COURT: Well, I am going to leave it like it 11 was originally, apply Texas' law. Now, I may be getting 12 boxed in here. 13 MR. ORTEGO: That is not my intention. 14 THE COURT: And I don't want to get boxed in. 15 MR. ORTEGO: May we approach, Judge? 16 THE COURT: Yes. Well, there is no point. Every 17 body is gone. 18 MR. ORTEGO: I don't want it on the record. 19 THE COURT: Oh, you don't want it. 20 (At the Bench, off the record discussion, with Mr. 21 Baldwin, Sr., Mr. Baldwin, Jr., and Mr. Ortego.) 22 (Open court) 23 THE COURT: We will hold the ruling as to what 24 law' applies in abeyance at the moment. The punitive damages, 25 I am adhering to my ruling as to that portion of this motion. o - P `1f68 -248- 1 I am overruling everything else except whether or not the > law of Oregon or Texas will apply. 3 MR. ORTEGO: Judge, with one other respect -- I 4 don't know if Mr. Baldwin will agree. You opened up on 5 strict liability only, and I don't know if you want that 6 charge or if you still want the negligence in there; because 7 I don't think there is a case of negligence or a breech of * 8 warranty, and I think you might not even want it. 9 MR. BALDWIN, SR.: Your Honor, you have a copy of I O our Requested Charge, and so does he, and I did not request / 11 a charge on negligence. 12 THE COURT: I didn't see it, unless there has been 13 a supplement added. 14 MR. BALDWIN, SR.: There has not been. 15 THE COURT: All right. Bring the Jury back. 16 MR. ORTEGO: Judge, I won't have a witness until 17 the first thing in the morning. It's twenty-five to five. 18 I can get a witness in fifteen minutes. 19 THE COURT: You will be ready in the morning at 20 nine o'clock? 21 MR. ORTEGO: I will have witnesses lined up to 22 go in and out, Judge. 23 THE COURT: Do you think we can finish tomorrow? 24 MR. ORTEGO: I' think so. 25 THE COURT: Since I know what day of the week it is C-17L16%88 I now. 2 -249- MR. ORTEGO: Judge, I am going to do my best, and 3 I think we can. 4 THE COURT: Tell the Jury to come back in. 5 MR. BALDWIN, SR.: May we know who the witness is, 6 the first witness is, so we can be preparing? i 7 MR. ORTEGO: Absolutely. What I am going to do is 8 give you the same courtesy you gave me, I am going to tell you 9 what I am going to use in exhibits. I am going to call you 10 up and let you know the order. Is that fair enough? 11 MR. BALDWIN, JR.: That's fine. 12 (Jury in at 4:35 p.m.; open court, all parties present.) 13 THE COURT: Ladies and gentlemen, as you heard, the 14 Plaintiff has rested that side of the case, and the Defendant I 15 will have its witnesses here at nine o'clock in the morning, j 16 We have got some matters to take up out of your presence and 17 have been taking some matters up out of your presence. 18 It's not yet time to talk about this case among 19 yourselves. I give you the same instructions that I have 20 previously given you, don't discuss it with anybody, don't 21 let anybody discuss it with you. If they do, contact me. 22 Be back in the jury box in the morning at nine o'clock. You 23 may be dismissed for the day. 24 (Jury out at 4:37 p.m.; open court) 1625 THE COURT: Now, have you all gotten understood now 1 who i s g o i n g t o be up tom orrow ? -250- 2 3 on. MR. O RTEG O : T h a t i s w h a t I am m a k i n g a r r a n g e m e n t s 4 THE COURT: Be s e a te d . W e ll, l e t ' s go ahead and 5 g e t t h a t done now i f we ca n . 6 MR. O R T E G O : W h a t I am g o i n g t o d o i s d e c i d e i n an 7 hour or so, and I agreed to c a l l S c o tt, Mr. Baldw in, both of 8 t h e m , a n d l e t t h e m k n o w w h o I am g o i n g t o c a l l a n d w h a t 9 e x h i b i t s I am g o i n g t o u s e , s o we c a n m o v e a l o n g q u i c k l y 10 t o m o r r o w . S h o u l d I c a l l y o u a t t h e o f f i c e o r a t h o m e ? H MR. BALDWIN, JR.: Yes, we will be there until 12 seven o'clock. I will be there until seven o'clock. 13 T H E C O U R T : A n y t h i n g e l s e t h i s a f t e r n o o n ? 14 We s t a n d i n r e c e s s u n t i l n i n e o ' c l o c k i n t h e m o r n i n g . 15 ( P r o c e e d i n g s c o n c l u d e d a t 4 : 3 8 p . m . ) 16 17 18 19 20 21 22 23 24 25 I IN THE UNITED S T A T E S D I S T R I C T COURT *> FOR THE EASTERN DISTRICT OF TEXAS 3 4 5 REPORTER'S CERTIFICATE 6 7 I certify that the foregoing is a correct 8 transcript from the record of proceedings in the 9 above-entitled matter. 10 II December 28, 1987 12 13 14 15 16 17 18 19 20 21 22 23 24 25 b 6 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS 2 MARSHALL DIVISION 3 4 ANN I GREENHILL, Individually and on 5 Behalf of the Heirs of the Estate of James 6 Edward Greenhill, Deceased, 7 Plaintiff, 8 VS. 9 DOW CHEMICAL COMPANY, 10 Defendant. 11 0 0 0 0 $ NO. M-79-79-CA 0 0 Marshall, Texas December 2, 1987 0 8:55 A.M. VA 0 0 12 TRANSCRIPT OF TRIAL PROCEEDINGS 13 BEFORE THE HONORABLE SAM B. HALL, JR., UNITED STATES DISTRICT JUDGE, 14 AND A JURY. 15 VOLUME 3 of 3 16 APPEARANCES: 17 FOR THE PLAINTIFF: 18 19 20 21 22 BALDWIN k BALDWIN By: Mr. Scott Baldwin, Sr. Mr. Scott Baldwin, Jr. Mr. Gill Gillam P.O. Drawer 1349 Marshall, Texas 75671 MR. ROBERT L. JONES III Attorney at Law P.O. Box 2023 > Ft. Smith, Arkansas 72902 23 (continued) 24 1&TH , 25 O fficial C ourt R eporter U.S. District Court -Eastern Districtof Texas 5 00 STATEUNE AVENUE ROOM 3 0 9 TEXARKANA. TEXAS 75501 OFFICE: 2 IA /7 9 4 -4 0 S 7 HOME: 21A/S38-41SO 1 APPEARANCES CONTINUED: 2 FOR THE DEFENDANT: 3 4 5 6 7 8 9 10 11 12 13 14 IS 16 17 18 19 20 21 22 23 24 25 -i- RIVKIN, RADLER, DUNNE k BAYH j By: Mr. Joseph J. Ortego Mr. Josh Kardisch EAB Plaza ! ' ! Uniondale, New York 11556-0113 I RAMEY, FLOCK, HUTCHINS, JEFFUS, CRAWFORD k HARPER,,P.C. By: Mr. Alan Brown I ! P.0. Box629 Tyler, Texas 75710 MR. MICHAEL A. MAKULSKI Attorney at Law The Dow Chemical Company Washington Street Bldg. Midland, Michigan 48640 I 2 WITNESSES FOR THE DEFENDANT: 3 INDEX DIRECT: -li- CROSS: 4 STEVEN I. HAJDU, M.D. 5 54 5 JAMES J. BUTLER, M.D. (By Deposition) 6 ANDREW J. WATSON 7 91 120 100 140 8 9 DEFENDANT'S MOTION RE: Requested Special Instruction A: 2 I O MOTION RE: Oregon or Texas Law 7 11 DEFENDANT RESTS: 168 12 PLAINTIFF and DEFENDANT RESTS: 169 RULING: 11 13 DEFENDANT'S MOTION FOR DIRECTED VERDICT: 169 RULING: 172 14 DEFENDANT'S REQUEST RE: PROTECTIVE MATTER: 172 15 OBJECTIONS TO CHARGE: 175 - 245 16 PLAINTIFFS' CLOSING ARGUMENT: 251 17 DEFENDANT'S CLOSING ARGUMENT: 258 268 18 JURY CHARGE: 277 19 VERDICT: 311 20 DEFENDANT'S MOTION FOR JUDGEMENT NOTWITHSTANDING THE VERDICT: 312 21 RULING: 313 22 23 24 25 o -n fi 1 2 FOR THE PLAINTIFF: EXHIBITS - ii i- i i OFFERED: ADMITTED: ! 3 No. 20 j Letter to A. J. Watson from Len Smith, dated 4 1-26-79 168 168 5 6 FOR THE DEFENDANT: 7 No. 1 Medical records of James Greenhi11 11 12 8 No. 2 Employment records of James 9 Greenhill 12 12 IO No. 5 Curriculum Vitae of Dr. Steven Hajdu 36 36 li No. 12 a Report of Tissue Diagnosis 12 by Dr. James Butler 101 102 13 No. 12 b Letter from Dr. Butler to Dr. Koenig 101 102 14 No. 12 c Curriculum Vitae of Dr. | 15 Butler ' 101 102 j iii 16 17 l 18 19 20 21 22 23 i24 I 1695 25 o -n n 1 DECEMBER 2, 1987 2 8:55 A .M . -2- 3 (Open court; jury not present) 4 THE COURT: Please be seated. I have been handed 5 a Requested Special Instruction this morning by the 6 Defendant in which the Plaintiff has an objection. So 7 we will hear this motion at this time. Who wishes to 8 present it? Mr. Brown, I think it bears your signature. 9 MR. BROWN: On behalf of the Defendant Dow Chemica 10 the Defendant has requested what has been marked and provider 11 the Court as Defendant's Special -- Requested Special 12 Instruction No. A. This goes to the matter which occurred 13 yesterday in court in the presence of the Jury, primarily 14 the questions from the bench regarding whether or not there 15 was, I believe the term was used, "hanky-panky" involved 16 in regard to the medical records which were handed to Dr. 17 Teilelbaum of an individual not -- other than Mr. Greenhill, 18 I believe a Mr. Moss. 19 Outside the presence of the Jury, I believe 20 through the use of the deposition of Dr. Teitelbaum, it 21 was determined that the exhibit was in fact marked at the 22 deposition, was in fact handled by Plaintiffs' counsel, 23 was reviewed by the witness himself in that he handled the 24 exhibit, located the records involved, that is the record 25 of a Dr. Watson regarding x-rays from dental care, and 1 that also here before the 3- - in front of the Jury during 2 the testimony there was testimony, as I recall, from the 3 witness that Dr. Walters was Mr. Greenhill's family phvsiciar 4 I believe was the witness's recollection. 5 I believe outside the presence of the Jury it was 6 determined that in fact the proper procedures were followed, 7 that this in f a d was an exhibit which the witness did see, 8 he had handled, thumbed through to in fact find the very 9 record that he testified from not only on deposition but 10 that he again referred to or was the basis of his statements 11 in court that Dr. Walters was a physician of the deceased, 12 when in fact, I believe it is undisputed, that the records j 13 simply were not such records. 14 This evidence, of course, was introduced only for IS the purpose to test the reliability of the witness as far as 16 what was the basis of his opinions. Certainly the review s1 I 17 of.the medical records was a substantial foundation for his | 18 opinions given in this courtroom. And, therefore, we feel 19 because the Jury was not privy to the discussions before 20 the Court, outside their presence, which in effect cleared 21 up this matter as far as whether this exhibit was properly 22 marked, Defendant's concern is that there is prejudice to 23 the Defendant Dow Chemical in that all the Jury heard was 24 from the Court a concern -- is there something out of 25 order, is there hanky-Danky, implying someone may have done O' 1 something wrong. -4- 2 We fool that this is a curative instruction to I 3 cure that prejudice or whatever might be in the minds of 4 the jurors as they were not privy to what eventually was 5 shown to the Court; and in that regard, request the Court 6 to read before we put on our case in chief the Requested 7 Special Instruction No. A. 8 THE COURT: Thank you. 9 MR. BALDWIN, SR.: Your Honor, I just have this IO comment, that the Jury heard what went on and the Jury has 11 the opportunity to evaluate what went on. I think to give 12 an instruction would be a comment on the weight of the 13 evidence. They have waited until after Dr. -- they agreed 14 to excuse Dr. Teitelbaum to bring these matters up, that he 15 could very easily have answered; and so we oppose it. 16 But I would say this, that if the Court feels 17 disposed to give the instruction, I think it should be 18 changed to where it would read as follows: "You are 19 instructed that in regards to the record presented to the 20 witness yesterday of an individual other than Mr. Greenhill, 21 there was no misconduct by any witness or by any party or 22 witness, and proper procedures were followed by the attorney^ 23 and the witness at the deposition of the witness, as well 24 as during our proceedings here in court." 25 Otherwise, it would make it look like D r . ^ 0 Q Q ....___ i____ 1 Teitelbaum did something wrong, and you are instructing the Jury these guys didn't do anything wrong, and I think 3 they did because they asked him about -- they apparently 4 knew themselves that there was some record in there about 5 somebody that didn't have anything to do with this lawsuit. 6 The right thing and the gentlemanly thing and the proper 7 thing as an ethical attorney should have been: "Dr. 8 Teitelbaum, we have records here that seem to relate to 9 some other patient. Do they have anything to do with this 10 case?" And given him a fair opportunity to say that yes, 11 they do, or no, they don't. 12 But they didn't do that, they hid that fact from 13 Dr. Teitelbaum. You can read the deposition, and the 14 witness's name was never once mentioned. They say I 15 handled the documents. I don't think I did. I was there, 16 but if I did handle the documents I sure didn't see any 17 reference to any other witness; and I am satisfied I didn't. 18 They have known this, apparently, since that time. 19 They never told me about it. The Court has asked us to 20 exchange documents. They have never said, "Mr. Baldwin, 21 we are going to use these documents." Up until the time 22 they hit the stand yesterday was the first I ever knew 23 about those documents, and I think the first Dr. Teitelbaum 24 ever knew about them. And I think it borders on not fair 25 play. And so I am not prepared to agree that they a-f^e(ijj0 0-/T&3 -6- 1 properly in the matter. But if the Court feels differently and wants to Instruct the Jury, then I think the fair thing i 3 is to instruct the Jury that, the witness also acted properly. 4 MR. BROWN: Your Honor, might I respond briefly? 5 THE COURT: Yes. i 6 MR. BROWN: Three brief points: First off, I 7 believe it is within the province of the judge to comment 8 on the weight if he so chooses in federal court. 9 Secondly, as far as any ethical obligation, I am 10 not aware under our canons of any ethical obligation that 11 would have been put on the counsel for defendant to in fact j 12 correct a mistake of the Plaintiff when his counsel was 13 present -- I mean the Plaintiff's witness. i 14 As far as Mr. Baldwin's handling the documents, 15 I don't know that he handled them. I believe that the < 16 deposition transcript reads from Mr. Baldwin's statement: 17 "No. 2, that's already in evidence. Here it is." Something 18 to that effect. ! 19 Defendant has no problem with the change requested 20 by Plaintiffs so that there will be no question there was 21 no conduct either on the part of Dr. Teitelbaum or any 22 parties. 23 THE COURT: Mr. Baldwin, prepare the -- present 24 to the Court what you just indicated and I will grant it. 25 But I will read it not at this time but I will read it at 1700 C ~ i 7 t f -7I the time the C o u r t ' s C h a r g e is Riven. So p r e p a r e what you 2 h a v e .just i n d i c a t e d a n d s u b m i t it to t h e C o u r t . 3 MR. BALDWIN, SR.: All right, sir. 4 THE COURT: Call the Jury in. Anything else? 5 MR. ORTEGO: No, Your Honor. Mr. Baldwin, I am 6 going to introduce 1 and 2, the medical records we- talked 7 about and the Death Certificate before I call my first 8 witness. 9 MR. BALDWIN, SR.: Your Honor, while the Jury is 10 out -- 11 (Jury entering courtroom) j 12 THE COURT: Wait a minute. Go back out. Something- 13 has come up, please. 14 (Jury exiting courtroom) 15 MR. BALDWIN, SR.: While the Jury is retired it i j16 would seem to be an anpropriate time to take uo the question ll 17 that was brought up late yesterday afternoon, and that is I 18 told the -- on the question of whether the Oregon law or 19 Texas' law applied. I told Counsel for the Defendant that I 20 would agree that either the Texas' law applied or the Oregon 21 law applied, whichever they wanted. And he was to talk to 22 his client and inform the Court as to what his position was. j 23 And I think that we ought to get that matter cleared up. 24 We arc certainly agreeable to let the Oregon law 25 apply. They seemed to indicate yesterday they now wanted 17010-/7?*" -8- 1 the Texas' law to apply, and if they will agree to waive 2 any question as to whether it's the proper law that applies, 3 that's all right with me -- to either let the Texas' law 4 apply or the law of Oregon, whatever the Defendant wants to 5 do. But I do think we ought to have it cleared up at this 6 point. 7 THE COURT: Mr. Ortego, I think you were going to 8 contact your client. I assume you did? 9 MR. ORTEGO: I did, Your Honor. May we approach? 10 MR. BALDWIN, SR.: No, I would rather this be on 11 the record, Your Honor. 12 MR. ORTEGO: You'd rather have it be on the record? i 13 MR. BALDWIN, SR.: Yes. 14 THE COURT: Yes. 15 MR. ORTEGO: Judge, I originally filed a Motion 16 requesting Oregon law. I thought Oregon law would be 17 appropriate. I thought, it was the appropriate law that 18 would be applied under the significant relationship test 1 19 as in Texas. I have prepared this case pursuant to Texas' i i 20 law. I have looked at some of the provisions of Oregon i 21 law and Texas law as well, Your Honor, and the state of the i 22 art defense seems to be the same in both. 23 And, Your Honor, at this point in time I will leave 24 it up to the discretion of the Court whether it wants to 25 renew or revise the Motion's previous ruling on the law. 1702 Q - I T l i '* 1 THE COURT: Well, Mr. Baldwin said he is willing 2 to go either way, provided it's agreeable with Defense 3 counsel if you continue going under the Texas' law. Is 4 that agreeable with you? 5 MR. ORTEGO: May I have a second, please, Judge? 6 (Off the record discussion at side bar between Mr. 7 Ortego and Mr. Brown) 8 MR. ORTEGO: Why don't we, Judge, go with the 9 Texas' law? I think at this point I have, prepared accord 10 ingly, and it might be the right thing to do and it might 11 be easier for everybody. 12 MR. BALDWIN, SR.: That is quite agreeable with I 13 me, Your Honor, provided we have the understanding that they 14 here and now waive any objection that they might have for. IS the Court not following the Oregon law. I i i i 16 MR. ORTEGO: I am not going to waive any objection., 17 Up and to this point in time, I think it's the bestthing to 18 do under this circumstance. I don't want my appellant -19 I am not going to waive any rights, but I think up and to i fI | i 20 this point in time it's the right thing to do, since we have j 21 all prepared under Texas' law. And I think if anyone ever 22 compares the two laws, we could see if there's any difference. 23 But, I am not going to waive any rights of my client. I think 24 Texas' law i I 25 THE COURT: Well, now I'm in this.dilemma, with want 1703 ( - m l I of a better word -10- 2 MR. ORTEGO: Uh-huh, I know 3 THE COURT I mean, everybody all at once is 4 kind of switched sides here, in one way, and in one way the S Defendant hasn't. I don't want to be put in the position 6 of knowing that if we continue applying Texas' law that it 7 is going to be a flagrant overture to have this case reversed 8 and tried over again, assuming that it is appealed. 9 MR. ORTEGO: I think 10 THE COURT: I would be agreeable to keeping it on 11 the Texas' law basis provided that the defense agree to it. 12 MR. ORTEGO: I think, Judge, the way to put it at | 13 this point in time, I agree to Texas' law. If there was 14 any prejudice whatsoever before, I am on notice that it is 15 Texas' law and I will agree to Texas' law at this point in i I j 16 timo. 1 17 THE COURT: You'd waive any objections you might 18 have to the applicability of Texas' law if this case is 19 appealed? 20 MR. ORTEGO: Could I have one second, Judge? I 21 am not going to do that without my client. 22 THE COURT: All right. 23 (Off the record discussion at side bar between Mr. 24 Ortego and Mr. Makulski) I 25 MR. ORTEGO: Judge, the best I can'do is that I will 11 1 not waive any rights, but as I state here now I am agreeable 2 that Texas' law should apply in this case at this point in 3 time. And I think that's the best I can do. I don't want 4 to waive any rights that I have, but I am agreeable at this 5 point in time, before summation and before I put my case on, 6 I am trying this case pursuant to Texas' law. 7 THE COURT: And you are agreeing to try the case 8 before the Court on the basis of Texas' law being applicable? 9 MR. ORTEGO: Right now, yes, Your Honor, I am 10 agreeing. 11 MR. BALDWIN, SR.: Well, that to me would imply 12 that he has waived -- 13 THE COURT: The Court is taking the position that 14 by the statement just made by Mr. Ortego that this case will 15 be tried with the consent of all parties by applying Texas' 16 law, and that's the basis upon which we will proceed. 17 MR. ORTEGO: Yes, Your Honor. 18 THE COURT: Bring the Jury in. 19 (Jury in at 9:10 a.m.; open court, all parties present) 20 THE COURT: All right, the Defense will call their 21 first witness. 22 MR. ORTEGO: Yes, Your Honor. Before I call my 23 first witness, Your Honor, I'd like to offer into evidence 24 Defendant's Exhibit No. 1, which are certain medical records of the Plaintiff, James Greenhill; and Defendant's Exhibit 1705 1 No. 2, which is the Death Certificate and attaching -) correspondence regarding Mr. Greenhill's death. -12- 3 THE COURT: Any objection? 4 MR. BALDWIN, SR.: No, Your Honor. 5 THE COURT: It will be admitted. What is No. 2 6 again, please? 7 MR. ORTEGO:. That is the Death Certificate, 8 Your Honor -- 9 THE COURT: All right. 10 11 doctor. MR. ORTEGO:. -- and attached letter from ; 12 MR. BALDWIN, SR.: May I see the medical records? ! 13 (Mr. Ortego tendering exhibit to Mr. Baldwin, Sr.;) 14 MR. ORTEGO: Judge, my first witness is just leaving 15 the men's room, I understand. He will be right here. 16 THE COURT: All right. 17 (The Witness enters courtroom, and is sworn) 18 STEVEN I. HAJDU, M.D. 19 having been duly sworn, testified as follows: 20 DIRECT EXAMINATION 21 BY MR. ORTEGO: 22 Q Good morning, Doctor. 23 A Good morning. 24 0 Can you please state your full name for the Jury, 25 please? 1706 0 - 1 7 9 0 IA 2Q My name is Steven I. Hajdu. And how old arc' you, I)r. Ila.jdu? -13- 3 A I am fifty-five year old. 4 Q And are you married? 5 A I am married. 6 Q Do you have any children? 7 A I have two children. 8 Q And what does your wife do? 9 A My wife is a physician in New York. 10 Q And where do you currently reside? 11 A My home is on Long Island in New York State. 12 Q W h e r e d i d y o u r e c e i v e y o u r uncle* r g r a d u n t e d e g r e e , 13 Dr. Hajdu? 14 A i I finished my high school education, and from there I. ! IS entered medical school in Hungary in 1952. And I almost 16 completed my medical education in Hungary in East Europe. i! 17 Q j Is there a reason why you did not complete your medical j 18 education in Hungary? 19 A Yes, there is a reason. 20 Q Can you tell us why? j 21 A The reason is that in 1956 the Hungarian people and 22 students were involved in an uprising against Communist 1 I j 23 Russia. And I'd been a senior medical student at that 24 time in the Hungarian medical school, just north of the I i i 25 Yugoslovian border, and I'd been elected to be one of the i 1707 0 - 1 7 1 1 1 student leaders fighting against the Russian Army. -14- 2Q And is there a particular reason why you then left ; 3 Hungary? ! j 4A i Well, we succeeded at the end of 1956 to throw out the ; i 5 Russians from Hungary, but ultimately Kruschev sent back | i 6 another army and we were defeated. And during the winter of ! 7 '56 and early part of '57, the workers and students continued; 8 the activities against the Russian invading army; but when 9 the snow melted away, we had no chance because the hill 10 country was open to them. And we hud to make a decision, j i ! i II all of us, that we stay there and die or try to find a way 12 out of the country. 13 Q Did you flee the country? j I I 14 A Yes. Ultimately, I chickened out and left the country 15 in early spring of '57. 16 Q Where did you go after you left Hungary in '57? 17 A Because of my city was just on the other side of the 18 Yugoslavian border, I crossed the border to Yugoslavia where 19 I was a guest of the Yugoslavian state in a confined setting 20 for about eight months. 21 Q And where did you go to finally complete your medical 22 education? ii 1 23 A With the help of some American citizens who were working 24 for such an organization in that part of the country and the 25 world at that time, I'd been brought out from Yugoslavia and J n m a -i7 f z - -15- ! put back in medical school in a French university in Western j Europe in Belgium. Q And did you complete your medical education there? A I did. I had to repeat the clinical subjects, beginning with pharmacology and two or three other subjects, gynecology and so forth, and graduated from that school with distinction in 1960. And after that I elected to serve one year in the same university as intern. Q After you completed your internship, what did you do? A During my internship I met American students in our 1! school, and shortly after I arrived from Yugoslavia to 12 Belgium, I received an American immigrant visa with no l 13 date on it. And I had the option to enter the United States : i 14 as political refugee with that visa, and I used that. And I IS although I had a job in cancer hospital waiting for me, I 16 decided to come over and take a look at what this country ; 17 is all about. 18 Q And where did you go when you came to the United States 19 after you graduated medical school? 20 A I chose to go to Jacksonville, Florida. Out of the 21 offers I received, I found the offer from the Baptist 22 Hospital in Jacksonville, Florida is the best offer for 23 my continuing education as a resident physician. 24 Q What is a fellowship, Dr. Hajdu? 25 A The fellowship is a sort of honored position to a person 1709 & - / 7 Z 2 -16I who want to specialize to bo export in certain areas in 2 medicine, and usually offered to trainees in the residency 3 programs in surgery and pathology and chemotherapy, to spend 4 a year or two years or a number of years in a specialized 5 institution to learn about certain things seriously. 6 Q Can you briefly Loll us the different fellowships that 7 you've had in the United States? 8 A I've been invited to go, after two years of training 9 in Jacksonville, Florida at the Baptist Hospital, to go 10 up to New York and be a fellow at the Memorial S 1oan-Kettering 11 Cancer Center. And from -- i: Q What year is this, Dr. Ha.jdu? 13 A That is '63 and '64. I accepted that because from vn-y 14 early lime, even back in Europe, I fell that my area of 15 interest is in or about cancers. 16 Q How long did you stay at Sloan-Kettering in New York? 17 A That was a one-year fellowship. And after that year, | i !i j i 18 and during that year, I took the Now York State license 19 exam for physicians and I received my license to practice 20 medicine. And after that yeur, I had been offered another 21 fellowship in Cleveland, Ohio. >> Q What did you do in Cleveland, Ohio? 23 A In Cleveland, Ohio I'd been there' for three years, and 24 I had a cancer fellowship from the American Cancer Society 25 and rhe Public Health Service of the UniLed.States to complete 1710 O - U f f -171 my education along the saint' lino, and carrying out additional training in clinical pathology. } 3 Q Why don't you tell us when you talk about clinical j y i 4 pathology, what is a pathologist and what docs a pathologist j 5 do? 6 A The pathologist is a physician who alter being a i! / physician will continue to study the etiology of diseases. 8 O Stop one second. What does the etiology of diseases 9 mean? 10 A Well, different diseases are caused by different things, II and in many situations we do know because of research work 12 in the field what are those causes. And it is the duty of 13 pathologists to work in this area and constantly bo alert to 14 find now otiologic causes of old and now diseases, and con 15 stantly bo alert to pass on that information about the causing 16 agents and the etiology of diseases to other physicians. 17 That's basically one role of the pathologist. 18 Q What are the other roles, Doctor? 19 A The other role is that the pathologist is a consultant 20 to a number of physicians and institutions as a diagnostician. 21 It is the role of the pathologist t.o decide what type of >T disease a human being has. The person may enter in the 23 office of a doctor, but actually Lite tyoe of tumor, for 24 example, a person has or doesn't have is going to be? decided 25 by a pathologist. In many cases the patient doesn't even 1711 D ~ / 7 ? 5 ~ .i. -181 know that. And, of course, a number of other things pathologists must do, like leaching and research. 3 Q Pathologists get involved with treatment as well? 4 A Yes, pathologists are involved in treatment in several 5 ways. Among the most important contribution of pathologists 6 to treatment is by discussing the ease or the problem with the physicians, and very often members of the- family, when ,S the pathologist is called upon to make a diagnosis. The 9 pathologist is part of the team in institutions when 10 ultimately somebody will undertake Li'e actual physical 11 treatment. Pathologists are consultants to chomotherapists, I i: surgeons, and radiation therapy,when it comes to tumors. 13 Q Hr. lia.idu, what is an attending pathologist? 14 A The attending pathologist is a title that physicians 15 carry at ma.jor institutions, or tumor hospitals like Memorial 16 Sloan-Kettering Cancer Center in New York, or at MD Anderson 17 Tumor Hospital in Houston, Texas, is the highest title in 18 qualifications. It is equal to senior full professorship 19 in a medical school. 20 Q What professorships do you have? j i : i ji 21 A After I been invited to return to Memorial Sloan- ^"1 Ket ter ing Cancer Center from Cleveland in 19 6 G , I had been ! i 23 upgraded as "assistant, professor at Cornell University i I 24 M e d i c a l C o l l e g e i n N e w Y o r k C i t y ; a n d f r o m i ! i - r e I o b t a i n e d ' 25 t h e h i g h e r a n d h i g h e r t i t i e s , a n d a t p r e s e n t t i m e I a m a 1712 D - ! 7 ? & \ j -19I ful 1 P r o f e s s o r in teaching at Cornol1 Medical School in *> New York Ciry. i i 3Q 4A What , i f a n y , c e r t i Ti r a i i o n s do you huv(.>? I am c e r t i t i e d by t ho S l a t e B o a r d o f New Y o r k t o i ; S practice medicine as a physician. I am certified by the 6 Ohio State Board as a physician, and I am certified by the | ii i 7 American Board o f P a th o lo g y in anatomic and c l i n i c a l 8 pathologv. 9 Q Let's stop there. What does it mean when a doctor is ; i i I 10 certified, and what is anatomical and the other type of II pathology you .just mentioned? i; A Certification is, in this country, is carried out by j ii 13 certain organizations under the supervision of the American I 14 B o a r d o f M e d i c a l S p e c i a l i s t s . T h i s o r g a n i z a t i o n i s u m b r e l l a 15 organization that is overseeing the physicians who are 16 practicing in surgery, or in radiation, or pediatric or 17 pathology, are qualified physicians to attend to- patients 18 and diagnose and treat patient's problem. And the anatomic 19 and c l i n i c a l p a t h o l o g y a r t ' two p a r t s o f t h e s a me B o a r d :o ('.\ami i i ;i 1 i o n . :i Q What a r c , v e r y b r i e f l y , D o c t o r , I hos t ' two t y p e s o f ^ "i p a t h o l o g y ? Do you L a k e e x a m s ? Or d o e s t h i s wor k? i :3 A Thi> a n a t o m i c p a t h o l o g i s t i s a p h y s i c i a n p a t h o l o g i s t :4 who i s p r i m a r i l y i n t e r e s t e d in t h e e t i o l o g y and d i a g n o s i s 25 o f c a n c e r , and t u m o r s , and o t h e r d i s e a s e s u n d e r t h e 1713 0-I7T7 -20- microscope when a biopsy is obtained from a patient. li - i'i! The clinical pathologist is a physician who is primarily 3 | i nLtM"c*si(*d in til1 p u l i ( M i l ' s i n U * r n a l p r o b l e m s , how t h e ij 4 1 p a t i ( ' n t ' s i m m n n o p r o b l e m i s w o r k i n g , h o w t h e p a t i (m i l ' s ij 5 j immune system is working, how the patient's obtained and 6 |j why an infection, for example, what are the blood problems, 7 jj or chemical problems of the patients. That's the clinical 1 x ! pathology. 0 Doctor, are you certified in both of those types of 10 . pathology? j, 11 A Yes, I am certified by the American Board of Pathology i 12 in anatomic and clinical pathology. 11 Q I.el's go back -- lei's not go back, lei's come to today. 14 ! Tell us exactly what you do today, and where you work, and 15 what your duties are. 16 A I am a senior attending physician and pathologist at 17 Memorial SIoan-Kettering Cancer Center in New York City, I X and I am on the staff of surgical pathology. I am on the 19 staff of the autopsy pathology, and I am the head of one 20 of the 27 departments in Memorial S Ioan-Ket. ter ing Cancer 21 1 Ci'll! er. :: i! o F o r m o s t o f I lu* f o l k s w h o d o n ' t kn ow a b o u t t h e S l o a n - 21 K e t t e r i n g , c a n y o u t e l l u s w h a t t y p e o l h o s p i t a l i l . i s , 24 where it is and a lillle about Ihe hospital? -5 A It is a tumor hospital and is an old one dating back to 1714 D ~ / 7 ? ^ -21- 1 late 1800s in New York City. And it is a tumor hospital very much like1 the tumor hospital in Houston, Texas. It 3 is a referral center whore wo r e c e i v e patients and pat finis' 4 problems from o t h e r physicians and o t h e r institutions from 5 across the country for second opinion or for treatment, and 6 from around the world. 7 Q How large is the hospital itself? 8 A It takes up three city blocks in New York City, and jiI 9 it's 26 story of each building. And we have in the hospital 10 unit 650 bed for cancer patients, and we are seeing in our I 11 outpatient clinic, nearly half a million cancer natients per 12 year. 13 Q And what -- 14 A It is the biggest cancer hospital in the I'nitedStates. 15 Q What exactly do you do with these cancer patients at 16 Sloan-Ket tori ng? 17 A I am a consultant to physicians and institutions. i 18 Patients are referred to us, and when patients are approachedJ j 19 any one of us it is required by the bylaws of the institution 20 l h a l 1 , m y s e l f , o r a c o l l e a g u e o f m i n e , a n a s s o c i a t e o f m i n e , I 21 m u s t r e v i e w i h e m e d i c a l r e c o r d s o f t h e p a t i e n t s f r o m w h e r e v e r ; t h e p a t i e n t s corn' f r o m , t h e r a d i o l o g y f i l m s a n d o t h e r i 23 laboratory findings, the operative findings, what, was deno 24 te the patient, and ultimately to review the biopsy material, 25 the tissues removed from the patient, or whether the patient 1715 Q J 7 ^ -22- I has got cancer and whether it was diagnosed correctly by > somebody, that disease, some other place. 3Q You talk about this learn approach, you are the head of , i! 4 a team. What does the team do, who is on the team, and what , 5 do you do on a dailv basis? i j Il 6 A The team, in almost every patient's situation at our j i i 7 institution, is composed of four parties. One is an oncology 8 pathologist, like myself. i 9Q 10 A What is an oncologist? Tell us what that is first. The oncology pathologist who specialize for tumors, iI j 11 or cancer problems, and the other is an oncology radiologist, 12 a radiologist i- radiation therapies, at the same time in 13 many situations, who is a radiation therapist for cancer. 14 The third member of the team is an internist, or medical 15 oncologist, who is most often known as a ohornotho ranisi. And 16 the fourth member of the loam is an oncologic surgeon, a 17 surgeon who are doing nothing else than surgery on patient 18 who got tumor, or cancer. 19 Q How many people are on your team in total? 20 A This basic four art' the four that I outlined, although Ii 21 w e m a y c a l l i n o t h e r s a s n e e d e d . A n d i n t i n i n s t i t u t i o n l i k e >^ o u r s , w e a r e w a l k i n g d i s t a n c e w i t h o u r p a t i e n t s a n d t h e 23 p a t i e n t ' s r o o m f r o m e a c h o t h e r . l a e v e r y c a s e , w h e n e v e r w e i i 24 m a k e a d e c i s i o n a n d c o l l e c l i v e l v* d* s i gr . w h a t s h o u l d b e d o n e I 25 t o t h e p a t i e n t , w h e t h e r p a t i e n t s h o u l d s l a y w i t h u s , w h e t h e r 17160 -!? \ -23- I a pationt will have surgery or chemotherapy, it is decided by this team. And the pathologist is one of the four people 3 in every team who actually is the, as locally call them, 4 is the policeman over others, or traffic controllers. The 5 pathologist is the one who is supposed to direct, attention 6 of others where it is needed. ' I j iI j 70 8A Do you actually see patients? Yes, I do. 9 Q How do you see them? What do you do? 10 A Through this system of ours that in every patient's 11 problem is reviewed by attending physicians, and one of I 12 those physicians will be always an oncology pathologist, 13 that's the routine, daily operation. And recently, in the 14 last few years, hardly a week goes by that T don't got a 15 call from one of my col ('agues or directly from members of 16 the family from the country who would like to talk to me 17 or see. me, because' they learned about what I am doing or 18 they learn about that I made the diagnosis in somebody in 19 the family, and they want to talk to that person, in this case 20 myself, who made the decision whether the patient will have 21 an extra seveial years ctiemotherapy and radiation or whether we have to take off somebody's leg because of a condition 23 that calls for that. 24 Q l e t m e a s k v o n t. h i s , i s S l o a n M e m o r i a l I f i s p i l a l K e t t e r i n g | 25 a teachi ng hosp ita 1? -/Ml IA -2 4- II is a teaching hospital, at the same time a research *) hospi tal. 3 Q What do you do with regard to the medical school and the 4 research at SInan-Kettering? 5 A The institution, the Memorial S 1oan-Kettering Cancer 6 Center, is a private cancer instil at ion, are two parts. 7 It is built almost the same way the tumor hospital, MD 8 Anderson Tumor Hospital, is structured in Houston. There 9 is a hospital unit. There we have our 650 beds with patients,; 10 and the clinics. The second component is a research unit. : 11 And many o I' ours have dual position: inpatients' care and i: in research. And right across the street from us is our I j j 13 medical school, the Cornell University Medical College. So 14 this two an' in the same structures, same city block, and 15 the medical school is across the street. 16 Q Do you teach medical students at Cornell Medical School i | 17 with regard to cancer? | 18 A Yes, I do. U p t o t) r e s e n t y e a r s , I h a d l o r m a n y y e a r s I 19 every ye a r tw enty s tu d e n ts who worked p r a c t i c a l l y d a i l y w ith ii 20 m e i n p a t h o l o g y . A n d now t h a t I am g e t t i n g o l d e r a n d o t h e r 1ac t21 ( s p o i l s i b i 1 i L i e s 1 h a v e t o f u l f i l l , I 1 e r t u r e . A s a ,i | ju s t two weeks ago I le c t u r e d to o u r s t u d e n t s . i 23 0 Very b r i e f l y , what o th e r p r o fe s s io n a l posit ions have you i 24 h e l d l a . i d e s I h e m e d i c a l c o l l e g e a u< i 5 b i a n - K i I I e r i n . g ? W h a t 25 other hospitals? A r e you a c o n s u l t a n t to o i li e r h o s p i t a l s now 1718 /%02- } 1 and what, art* the positions? -25- A I am a nmsul lanL in a number "I hospitals and 3 institutions across the country, and institutions in foreign 4 countries, 1ike* the Cancer Inst.itul ion in Canada. I am 5 consultant to University of Chicago, and I am consultant 6 to a practicing grouD here in Texas. I am consultant to 7 local hospitals, in small and big hospitals, all the way 8 to California, and I am an advisor to the city and state 9 Public Health Service, and to the commissioner of the State 10 of New York in cancer matters. 11 0 Very briefly, Doctor, can you tell us what i:ro I'ossion al i: societies you belong to, and what role you have in them? 13 A I belong to at least a dozen or so professional 14 associations, and the associations are ranging from societies 15 for pathologists in the United States, and then international 16 associations, to association of surgical oncologists and 17 clinical oncologists. 18 0 Whai is oncology, and what is an oncologist? 19 A Oncology is the field or science of neoplasms. In the :o broad sense, it is the field of science of tumors, or cancer. :i T h e o I K ' o ! o g i s t s a r e l h< t ) h y s i c i a . t s `lit) art caring about i p a t i e n t s w h o a r e h a v i n g o n e o r t h e other of those three 23 t h o u s a n r i c r ' c e r s , a n d w k e t c o r t. h >y are surgeons, radiation 24 t h e r a n i s i s , ' .i: m * i * a ! o i t o 1 1 >g; i s ! s o oncology i.at.ho 1og is s , j i ' 25 i s j u s ; a s o i l o f m i n o r d i f f e r e n c e . 0-ltP? 1 Q What are these societies that you are in, or a member ofj deal with oncology? jI 3 A The oncology societies, as we I! as the other associa 4 tions, meet regularly in local soilings, usually with the j 1 S support o !' the American Cancer S o c i e t y , and at state level, ' i i6 at national level, and international level. And those people, j / who are senior in these societies, like myself, are called 8 upon to chair different sessions and different meetings, and 9 oversee the proper discussion by younger physicians, and 10 supervise the conclusion reached and. made by others. II Q What positions have vou held, besides the ones you i: mentioned, in these societies? 13 A I am the oast, one of the past presidents of the t ji i Ii | I 14 American Society of Cytooathology. I am the oast chairman IS of the American Association for Pathologists in control of 1 16 practice of laboratory medicine in the United States, and 17 I am the vice-president of the International Board of 18 Cytopathoogv, and I am the chairman of the certifying 19 body of cytooathologists. 20 0 ".'hat i s cy Lo p a Lho 1o g y f o r u s I'i nst ? I s h o u l d h a v e 21 a s k e d you t h a t f i r s t . T > A C y t o p a t h o Io g y i s a n a r r o w , s m a ll f i e l d but an im p o r t a n t 23 f i e l d u n d o ! - o n c o l o g y . I t b e lo n g s to the a n a to m ic p a th o lo g y 24 c a r t o ' p a t h o l o g i s t s . F o r e x a m p l e , t h e c y t o p a t h o 1 o g i s i ' s d a i 1 \ 172025 r o u t i i n 1 w o r k w i I 1 b e t o r e v i e w , l e t ' s s a y , p o l y p o u s , t a k e n -27- I 1 from ladies by gyneco 1og ists. And it is the cytopathologist 's j i duty and role to decide whether that lady will need addi- | i 3 L i o n a l e x a m i tin t i o n , t ' o l l o w - u o e x a m i mm I i o n , w h e n , a n d 4 consult with the gynecologist or the gynecologist consult ! I 5 with the cy topa thoi og is t to decide' what is the next move 6 or best modality of treatment, if treatment is needed. ! 7 0 Very briefly, what professional honors and awards have 8 you received? 9 A I received during the last two decades several honors 10 from my colleagues and associations across the country and ! ! j 11 from foreign countries. One of the highest ones I treasure, 12 a recent recognition I received from the North and South 13 Carolina Associations of Pa thologi st.s, who gave mo the honor 14 to receive the Shelley Award of those two state associations. 15 Q What is the Shelley Award? We don't, know. 16 A It is an annual ledureshio award given to somebody on 17 committee who feel worth to receive that award. In this 18 narticular setting, they asked me deliver a seminar, a one- 19 day seminar, in Charlotte on sarcomas, lymphomas and Hodgkin's 20 disease. 21 O Okay. A ik! do you meet wi t h sc ieat i l i e groues r e g u la r l y and make oresentat ions or give presentations to those 23 groues ? 24 A That's oai't of our teaching activities at home and in 25 different earts of the country. I have lectured here in the 1 1 2 1 ^ '^ ^ -23- State (if Texas at least every other year, and all the way i ; from Tokyo to Australia, because we I'eel that what we believe I in and what we practice we must pass on to other physicians, so they will do the same or will Col low what we do. It is an obligation, with some hardship to fly in from one place | ! to the other and sitting on those small chairs in the airplane. j I : Q Now, are vou the editor of any learned, scientific Journals? l j A I am. ^ And what does an editor do, and what scientific .journals! are you involved in? iVhich ones art' you the editor of? A I am on the editorial board of a number of medical .journals, and consultant to at least a dozen others. I am the associate editor of the American Journal in CytopathoLogy that is devoted exclusivelv to early detection or detection of cancer at the cellular form. And I have been .just elected to be the co-chairman of the oldest natholoyy .journal, Acta Scandinavica (pho). nc You've served on boards and committees on cancer issues? A Yes, in several, as outlined, and it's ranging from loon' teaching to international meetings, and through the various c.;">mittees as oncology societies and societies in nathology arc structured, we are in constant communication with othc"r societies. The committee chairman is usually the 1722-^-^05- -2 9] lia is o n t h a t 's in the oth e rs, lik e surgeons, lik e r a d ia t io n I 1 .1 t h e r a p i s t s , a n d I s e r v e d i n t h a t c a n u o i i y i n m a n y s o c i e t i e s . I! 3Q B r i e f l y , a n d I h a t e to d o t h i s all the t i m e , g e t y o u r 4 resume, your C .V ., and d e s c r ib e the areas of research you 5 1 have done in the I 6 ;j A 'Vhen I been i 7 I begin to think o a s t twenty y e a r s in cancer. i n J a c k s o n v i l l e at the B a n t i s t . H o s n i t a l , about i n f e c t i o u s agents and v i r u s e s as 8 c a u s i n g a g e n ts in a number o f t h i n g s , and I c o n t in u e d th a t 9 t v o e o f w o r k '.vhen I h a d n y f e l l o w s h i p u p i n New Y o r k . I t 10 s t a r t e d o u t f r o m a n e x p e r i m e n t a l w o r k i n l i v e r . T h e r e o n I 1 1 w e n t t o C l e v e l a n d w h e r e we h a d a f e e l i n g a t t h a t t i m e t h a t 12 i s o m e o f t h e g y n e c o l o g y c a n c e r s m a y i 13 | like Herpes, and things like that; i 1 a .14 o n t l i al a r e be c a u s e d by v i r u s e s , and I continued my work 15 ;; On r e t u r n t o Now Y o r k , 1 r e t u r n e d t o my o l d i n t e r e s t , 16 b e c a u s e , f i r s t o f a l l , I g o t i n v i t e d b e c a u s e I n e e d e d s o m e 17 b o d y i n t e r e s t e d i n s a r c o m a s , l y m p h o m a s a n d H o d g k i n ' s d i s e a s e . 18 \ S o w h e n I r e t u r n i n 1 9 6 7 , f r o m t h e r e o n i n my c l i n i c a l 19 r e s e a r c h a n d i n b a s i c r e s e a r c h I s o e n t , w h e n e v e r I h a d t i m e 20 f o r r e s e a r c h , a f t e r h o u r s a n d d u r i n g w e e k e n d s , o n r e s e a r c h :i i n v o 1v i n g s a r c o m a s o r c o i i n o c t i v o l t> i n These are cancers ? 1 !A Y e s , many o f t he c o n n o c l i v o l i SSUO t issue t umo r s . t umo r s a r e , 24 un f o r . u n a t e l y , a f o r m o f c a n c e r . 25 H a v e y o u a u t h o r e d a n y s c i e n t i f i c m e d i c a l b o o k s o n a n y o f n 1723 0 - ! ^ 1 thcsc areas? -30- A I did. 0 What subjects are I'ovi'red in the books that you have* authored? A Mv first book I wrote with mv wife -- I Q Mavbe I can help you a little'. ; A -- a fellow doctor, is on the cells, or the cytology ; of connective1 tissue? tumors that incluelos soft tissue tumors, bone tumors, arid lymphomas, with the inclusion of Hodgkin's disease. That was published in the mid-seventies on the i science of connective tissue cancers. The second one is this blue book that was oublished on soft tissue' tumors I wrote in 1979. It is dealing with se:f't-t issue sarcomas e-:e-1us ivo 1v. The oncology part and the pathology part of that, and it is today regarded as the ! I \ j j ij : I first textbook on that subject. The third book I oublished last year. It is a com- narat ivo review of all the* cancers that one1 can find in soft tissues and connective tissues. It is written with the intent to no ini. out to physicians the difficulty that is involved in the diagnosis of some of tlfsc tumors, and i j the overlapping clinical and microscopic appearances of some of these tumors. The fourth one is in preparation right now by my ; i publisher, hopefully it will be out in '<SH, is dealing with 1724 0 - I W 7 1 - 3 1 the cell biology aspect of these tumors, sarcomas, lymphomas i and including Hodgkin's disease. | 0 And it includes Hodgkin's d i s e a s e . Now, those are the books, the three books you have there. Have you authored anyj chapters of books edited or out out by other scientists? A Yes, I been invited to contribute to the books of j I | others in surgery and oncology in at least a dozen or more occasions. And I have a chapter on the same tonic in a medical oncology book edited by Professor Caulibrasy (pho) from Rhode Island University; and I have a chapter in a surgical oncology book with the chairman of surgery from Memorial 5 loan-Kottering Cancer Center that is about to be released from Philadelphia. lI InI Q And what do these' chanters deal with? A The oncology chapter deals with the background, tho i evolution, the development, tho appearance and distribution of connective tissue cancers in the human body, and link the microsconic appearance, as pathologists see it, with the i i | clinical appearance. The same is for the other one, basically from the surgeon's point of view. O have you authored any scientific articles that have boon published, in addition to your honks and tho chanters? i A I did. 'I 0 Approximately how many, and what were the subjects? j| A Oh, something in the range of 300, nr by now, if it 1725^"/^ ii 1 would bo undated, over 200. -32- 1O What tonic.--, do *vou deal with ia *vour over 200 articles? 1i I 3 A Almost all of the article's are {leal ini; with or another I j 4 form of the cancer. Most of them are doa 1init with connect ivej 5 tissue cancers, sarcomas. IiiI 6 0 Mow, what is a peer review nub 1icat ion and .journal? ; I 7 A The peer review is a type of review process that is very S much needed. Members of the editorial boards of medical 9 journals have editors, co-editors and editorial board members; 10 and a manuscript or an article written by somebody wi 11 be 11 submitted to tit least two members of the board for review. i: And if that is found to be such an article that it carries 13 some information that should be known by others or should 14 bo ne i'll!iiic:i to be published 1o call aII.en t.ion lo the 15 substance of that article, the editorial board will publish -i! 16 it. Now that is different from letters that are sent to 17 editors from different parts. 18 Q Are you a nart of this peer review? 19 A Yes. :o Q Approximately how many times have you published books :i or articles for the scientific-medical community in which >i Iloditkin's disease is discussed? j 23 A At 1eust three dozen, or probably more occasions, because 24 it s a con iuh -tive tissue tumor, so it belongs to that -- 25 0 It is a con nee live* tissue tumoi Q -JK oy 1A - Q -- particular area. -33- Approximately how many times have vou publishod books, 3 articles or scientific materials involving lymphomas, 4 generally? I ; } 5 A It's about three or four dozen different contributions. 6 0 Approximately how many times a week or a year, whatever 7 it is best for you to put it in, have you diagnosed Hodgkin's 8 disease and participated in the treatment and investigation 9 of Hodgkin's disease? I I 10 A I diagnose Hodgkin's disease about three or four cases i 11 per week. It may be more than that. That is my feeling 12 about it. And with that of course I see about twice as many 13 lvmohomas per week, about six or seven lymphomas of non14 Hodgkin typo. i 1 I ! 15 Q Now the patho 1ogists, as you stated, as part of this 16 team you diagnose the disease, you participate in seeing if j 17 there.is a cause, and you also are involved in the treatment? 1 18 A That is the pathologists at our institution, all the 19 major tumor hospitals, is part of the team that is designing 20 the treatment and the type of treatment the patient will 21 receive, whether it is surgery and what type of surgery, > whether it is radiation therapy and surgery, or medical 23 oncology treatment and surgery, and to what extent. Yes, 24 it is my daily du ty. j 25 Q Have you testified as an expert in any other litigationsj 1727 jo- m f \ th n t you know o f ? -3-1- 1A I t e s t i f i e d in about i igh t or nine cases d u rin g the j1 3 ip e r io d o f twenty- f iv e yea rs 4jn Wh e n i s t h e I a s t i i rot; t h a t y o u r e c a l l t e s t i f y i n g ? 5I A ' I t e s t i f i e d 1a s t t irno h e r e i n T e x a s a b o u t t h r e e o r f o u r 1 years ago in a federal court in A ustin, Texas. 7Q A p p r o x i m a t e l y how many o f t h o s e nine t i m e s o v e r the 8 l a s t t w e n t y - f i v e y e a r s , how many tim e s have you t e s t i f i e d 9 f o r p l a i n t i f f s and how many t i m e s have you l e s l i f i o d f o r 10 j t h e d e f e n d a n t ? 11 A Most o f the tim e I t e s t i f i e d a g a i n s t d o c t o r s and i: ! i n s t i t u t i o n s i n b e h a l f o f t h e p a t i e n t s o r t h e s u r v i v o r s o f 13 t h e p a t i e n t . ll 14 THE COURT: Mr. O r t e g o , let 's t r y to s t a y as c l o s e 15 ; t o t h e l e c t e r n a s we c a n . 16 i- ! MR. ORTEGO: I 'm s o r r y , J u d g e , I was w a n d e r i n g . T T1E C O U R T : We a l l w a n d e r a t t i m e s . 18 ! ( M r . O r t e g o c o n t i n u i n g : ) 19 Q We w o n t o v e r t h i s , a n d I w a n t t o g o o v e r i t o n e more- :o t i m e t o m a k e s u r e w e g e t i t r i g h t . !I :i i1 3 1 o a n - K e t t e r i n g , h e i s r e f e r r e d t o A n atie n t comes in to you by a n o t h e r d o c t o r , 22 i'! w h a t g o e s o n wh e n y o u a r t ' d i a g n o s i n g t h e c a n c e r , t h e e t i o l o g y 't ii a r e i :4 . A you p a r t i c i p a t i n g I have to. That, in a ll of those [u nctions? i s my d u t y t o f ' u i f i I 1 e v e r y day, and 25 ; e v e r y e a s e I am a p p r o a c h e d by my c o 11e a g u e s ' o r o u t s i d e p a r t i e j 1728 0 - 1 ;! wh o a r e r ( ' f ( ' r r i n ; : t o n o r a s e s f r o m j!J 2 I indicated to you e a r l i e r , in a l l 1 -35a c r o s s Lhc? c o u n t r v . A s the i n s t i t u t i o n s , including; ou rs, .just li k e at the tumor h o s o i t a l in H ouston, a team approach i s the p r e v a i l i n g approach and i s the p ro pe r approach to d i a g n o s i s and management o f p a t i e n t s . Nobody knows e v e r y th in g , th e re fo r e the team i s s a f e g u a r d in g the p a t i e n t ' s r i g h t s a n d t h e p a t i e n t ' s r i g h t t o In; t r e a t e d t h e m o s t a p p r o p r ia t e wav. 9jQ ;i A t t h i s t i m e I am g o i n g t o s h o w y o u D e f e n d a n t ' s E x h i b i t 10 , 5 w h i c h i s y o u r C u r r i c u l u m V i t a e . 1 ' o u l d " o u t o l l t h e - J u r y 11 w h a t t h a t i s ? A I t i s my C . V . t h a t i s n o t c o m p l e t e l y u p d a t e . T h e r e a r e 13 !j s o m e m i s s i n g p a r t s b e c a u s e mv s e c r e t a r y h a d n o t i m e t o w o r k i! 1- ji o n i t . She got p re g n a n t and d e l i v e r e d the bahv and to o k o i l 1 15 f o r s i x m o n t h s , a n d I h a v e n o s e c r e t a r y f o r s i x m o n t h s . 16 Q IVh y d o y o u m a i n t a i n a C . V . , o r r e s u m e o r w h a t e v e r ? A I t i s a document th a t i s r e q u i r e d by the e d u c a t i o n a l 18 ! o f f i c e i n n i I i n s t i t u t i o n s a n d t h e m e d i c a l s c h o o l t o he 19 f i l e d a n u p d a t e ' I f o r m o f t h i s d o c u m e n t , w i t h t h e p e r f o r m a n c e 20 a n d c o n t r i b u t i o n o f t h e n h v s i c i a n m e m b e r s o f t h e s t a T f a t 21 t h e e n d o f e v e r y y e a r . A n d a t t h e s a m e L i m e i t g i v e s a c ro ss-se c tio n of one's background. 23 0 ".'hat, .just b r i e f l y , what i s m i s s i n g in the resume i f -9 ;i v o u 1\ad a c h a n c e 1 t o u p d a t e 1 i t ? 25 A .':v l e c t u r e s h i p s ancl c o n t r i b u t i o n s t o v a r i o u s s o c i e t i e s ' 1729 ; 1 -36- ! act ivi ties in 1DB7 are not included. My honors and awards I received iron others in 'N7 is not listed, and the 1 3 nublished articles or the articles that, wore submitted 4 for publication and accepted for oui>1icat ion by various j | 5 medical journals are not complete. It's not un-to-date. 6 There are several other things there, should be there at -7 the end of the year. j ! s MR. ORTEGO: Your Honor, I now move Dr. Hajdu's 9 C.V. into evidence. 10 THE COURT: It will be admitted. i ' 1! MR. ORTEGO: And I request that Dr. Steven Hajdu 12 be qualified as a Physician and exocrt in the areas of 13 diagnosis, etiology and treatment of Mod-kin's disease, 14 1y t i o h o ma s , and c a n c e r s g e n e r a l l y a s tlu-y o c c u r in h u ma n s . 15 THE COURT: Any objection? 16 17 Honor. .MR. BALDWIN, MR.: We have no object ion, Your 18 THE COURT: He will be admitted as such. 19 (Mr. Orte?to cont 1nuimt: ) 20 Q Do you have any occasion to do any work or do any 21 review about a man named James Greonhill? A Yes, l did. 23 0 Whai .lid you do with regard to -James Greenhill? 24 A Somewhere early part of this vear, in Februarv or March, 25 1 be e n c a l l e d by i ) r . p i e r c e t o -- and a s k e d ' me w h e t h e r I am 1730 0 ^ ( 3 -37- 1 will inn; to review some medical records and some doctors' 1 notes and some other documents about a case that patient 3 had some sort of tumor, or tumor as a problem. And I said 4 yes, I am will inn; to accent those documents for my review. 5 Q When you talk about Or. Pierce you mean someone from 6 my office? 7 A Yes, from the office of your law firm. a Q And did you review these records? i ! 9 A Yes, I did. He passed on to me those records earl}' part | 10 of this year, and also -ent alona, as I requested, Mr. ] j 11 Greenhill's statements about his illness, and two doctor's 12 depositions, conies of their statements. 13 O Dr. Ua.jdu, do you have an opinion, within a reasonable 14 decree of medical probability or certainty, as to what 15 disease Greenhill had up to the time o' his death? 16 A Mr. Greenhil: unfortunately had a very advanced 17 Hodgkin's disease diaanosed in the summer of 1973. And he 18 was treated for this disease, and I think the doctors who 19 cared for him did an excellent job that he was alive with 20 such an advanced disease f'or seven years, althouah 21 unfortunately and ultimately he died with the disease. >1 So he had Hodgkin's disease. 23 Q Whai do you base your opinion on that he had Hodgkin's 24 disease? 25 A Well, the documents I received from various hospitals 1731 -33- 1 and from the doctors' notes I found in the medical records indicated that the patient had Hodgkin's disease diagnosed. 3 \s a fact, one of the local doctors, a pathologist, diagnosed 4 his disease as a Hodgkin disease, a Ilhough some other local S doctors, oat ho 1gists, had some other thought about this 6 gentleman's tumor. The pathologists had the foresight to 7 use the ootion for second opinion t.o send the material, the 8 bioosv material obtained in the summer of 1979, to a ma.ior 9 tumor hosoital, or one of the major tumor hospitals in the 10 country, to Houston, Texas. And an old colleague of mine, 11 Dr. Butler, who is the fore-eminent authority on the i 12 diagnosis of Hodgkin's disease, confirmed the diagnosis on 13 the bioosy material of Kr. Greenhill as Hodgkin's disease 14 in 1 9 7 9 or so. 15 In addition, the course of the disease, the way it 16 developed and progressed in the oaiient as documented in 17 medical records, shows that the doctors, the radiologists, 18 the oncologists, were correct when they felt that the 19 patient had Hodgkin's disease. And ultimately the treatment 20 applied to the patient's disease, the protocol, the patient 21 reacted lo the treatment as expected, and the patient died, unfort nonleIv, again with the almost prescribed progression 23 of the- disease, the way it spread to the lung, for example. 24 And finally, as a Pathologist I requested during the 25 summer, I assume, the biopsy slides, the microscopic slides 1732 -/y/r 1 th:it. wore nronured from tho tissue's of Mr. Greenhill. And that was .^ivrii to mo, reviewed it, and diagnosed it that 3 indeed in 1379 the bioosy material removed from Mr. Green4 hill's left neck shows Hodgkin's disease. 5 0 Without getting too technical, what did you review on 6 his slide that made you come to the determination that it 7 was Hodgkin's disease as omosed to another disease? 8 A Hodgkin's disease has at least four known micro.sconic 9 forms. One form will rise from the other under the micro 10 scope as we see from that cell to that cell. And Mr. 11 Oreenhill had one of those four forms, the lymphocytes 12 predominate type of Hodgkin's disease in his neck area. 13 That diagnosis is rendered by Dr. Butler and myself because 14 wo rocogn i/.(' tho pattern of the cellular changes, the way 15 tho cells are relating to each other in the lymph gland, 16 lymnh node; and ultimately, tho presence of a highly unique 17 type of coll in this setting, we call "Reed-Sternberg cell." 18 Q Now, I think wo had bettor exnlain this a little. When 19 you say there is a highlv unique cell, is that involved with 20 Hodgkin's disease? 21 A it is a coll wo identify in Hodgkin's disease, and >1 look for it and search for it in the microscoping biopsy 23 material. It has a characteristic aonearance, and combining 24 that with Lite overall cellular changes that surrounds that 25 cell, that lead us to diagnose Hodgkin's disease, one or 1733 1 another type. *1 Q Did you find that Reed-3tornborg cell? -40- 3 A Ves, I did. 4 0 And did Dr. Dutler find that? 5 A Yes, he did. 6 0 Can a Reed-S ternbe rg i*t?I1 be different for some 7 pathologists not to find? 8 A Well, I guess wo arc all diN'oronl., and di I'f'orent at 9 level of our preparation or expertise, and some may find it, 10 some may not. Some may look for it ; some mav not. I 1I sincerely hope that all the pathologists who art,- practicing i: in tumor hospitals when ultimately most tumors are diagnosed 13 and the fate of Patients' decided would recognize in this 14 microscopic material that there arc Reed-Stern berg cells 15 on those bioosv slides. 16 Q And the Roed-Sternberg cells is conclusive that it is 17 Hodgkin's disease when looking at the cells in their whole? 18 A With the additional components oT the pattern and the 19 relationship within those other cells. The two together 20 makes it Hodgkin's disease. :i Q Mow did you review another report from a Dr. Stolz suggesting early on that another diagnosis besides Hodgkin's 23 disease? 24 A Yes, I saw that report, and I think his report preceded 25 the gentleman's report, the pathologist's report, who thought 1734 I -41- i I that it wa.- Hodgkin's disease and referred it. properly to \ i *> somebody with higher authority or expert iso like Dr. Butler. ! 3 Yes, I saw that report. He was -- ho made a mistake, and 14 I am glad that was not remained uneha I onged, because if i , j| 5 thoy follow that diagnosis Lh(' patient, would have been i 6 mistreated. i} !I ! 7 Q Subsequent to Dr. Stolz's original diagnosis, when does 8 Dr. Butler's diagnosis fit in? How did he get it, and how 9 aid that work? 10 A I think the1 gentleman you .just mont ioned, Dr. Stolz, 11 was the or inary custodian of the bionsy material, and he i: was not rendering the diagnosis of ilodgkin's disease. He j Ii j i 1 I 13 called it some sort of other type of lymphoma, if I am 14 correct, with all the built-in danger of mistreatment of' 15 Mr. tireenh i!1. And at the same time' he was for--s igh led i 16 to consult with another nalhologist, and that was the 17 gentleman, Dr. Koenig, I think was the name, who was con 18 sultant to the first one. And the second pathologist 19 thought that it is Hodgkin's disease', and having this two :o different views, they sent the cast' to Dr. Bui ler. And :i Dr. Butler has certainly seen more Hodgkin's disease in > the country than practically any pathologist in the United 23 S t a t e s . !k is th e d e a n o f th e f i e 1d o r 1y m p h o m a s . 24 0 i l r . H a ; d u , w e h a v e t a l k e d a b o u i t . h i s !'< >r a w h i 1 e . W h 25 d o n ' t y o u t . ! 1 u s w h a t l l o d g k i n ' s ci i s< a s < i s . ' 1735 o-fcft \ I 1A - 12- Hodgkin's disease is a lumor, or tumor-like process, that is involvin': the 1ymoh nodal system, to bon in with, in 3 the human body. It usually begins in one area in the body, 4 and will spread from the 1ymoh nodal structures to surrounding 5 areas, soft tissues and bones, and will travel to distant 6 sites and ultimately will involve the whole body. It is 7 a disease that is very much discussed what is causing it, 8 and with our present understanding, it belongs to the 9 lymphomas, although we like to call it different from other 10 lymohomas; this is why wo call it "Hodgkin's disease," and 11 that is the proper way to name this disease. i: O And that disease has been distinguished from other 13 1ymphomas ? 14 A It is (list inguishod and must ho distinguished because 15 the natural history of the disease, the way it develops and 16 the way it will progress in certain patients, the way the 17 patient is react to treatment, and the way this tumor, as 18 we feel originated, is different from all or practically 19 most of the other diseases called "lymphomas." ':o' 0 Dr. Ma.jdu, do you have an on in ion, within a reasonable 21 degree of medical probability or certainty, as to whether 1T Tordon 101 or 0,-1-D caused or contributed to Mr. Greenhill's 23 Hodgkin's disease? 24 IM.AM: Objection, Your Honor, until a 25 foundation has been laid for that opinion. 1736 1 t (Mr. O n TUE COURT : Overruled. foul inning:! -43- 3 Q Do you havi' an opinion, D o c t o r ? 4 A I have an opinion. 5 O And what is your opinion? 6 A Mr. Cireenh i1l's disease', his Hodgkin's disease, was not 7 caused by any of those chemicals you mentioned. Contrary 8 to that, with all medical probability, Hodgkin's disease, 9 as we understood it for many, many years, almost from the IO beginning in history of the disease1, up to today, we feel 11 that the disease is induced or caused by a viral agent or 12 a virus, or some infectious agents in combination with virus. 13 Q Tell us a little about Hodgkin's disease -- who it 14 affects, male, female, age's? Can you tell us a little about 15 that ? 16 A Hodgkin's disease is a ubiquitous disease, a world-wide 17 disease. It's affecting the human-beings at two peaks, one 18 peaks in age 16 and roughly age 32; that's the highest peak; 19 and second, smaller Peak will follow later part ol' the life 20 in other patients, 55 plus age patients. It is a disease 21 predominately of male sex. Q When was Hodgkin's disease first discovered, or when 23 was it first documented? 24 A Tt was described the first time by a Dr. Hodgkin of 25 England in IvC? when he nresenled a handful, of cases of 1737 D-/tu> 1 this kind of disease to his colleagues at Royal Societv *> meeting, and ultimately that was transcribed and published. 3 0 And was the disease named after him? 4 A Honoring him for his identification and description, 5 the disease was named "Hodgkin's disease." 6 Q Did Hodgkin's disease exist nrior to his discovery of 7 it? 8 A Oh, yes. Hodgkin's disease1, ,jusi like most other tumors 9 dating back to ancient time, from the beginning of the origin 10 of the human race. 11 0 How about lymphomas other than Hodgkin's disease, how 12 long have they existed? 13 A Oh, back to hundreds of -- or thousands of years. In 14 ancient scriiuures and writings hack to before the time of IS Christ people described glandular swellings and enlargement 16 of glands, although it can be discussed that they had some 17 other typo of disease, but neverthe 1ess, they did know that 18 glands in different parts of the body do swell up and kill 19 oeop1e . 20 Q Well, wo talked about Mr. Greonhill. You read his 21 medical records, and you say he was diagnosed, to your recollect ion, as Hodgkin's disease in 1D7D. Did ho have 23 any synvnoms of the Hodgkin's disease, in your opinion, 24 o r i o r t o 1DTP7 25 A Cell, the earliest 1 found that one can think about as 1738 / 0 - / * V - 45- 1 a sign of a silent, cryptical, latent disease in his system was at the end of '78, if I am correct , he had some sort of 3 accident on a road or hurt himself, anyway, and had some hio ' 4 problem or pelvic problem which brought him to some doctors. 5 They did not know precisely what is happening to him. They 6 were thinking about a number of possibilities, but now it 7 is apparent when the disease was diagnosed about six, seven 8 months later as Hodgkin's disease involving his pelvis, his 9 bones in his back and ribs, that actually that pain, that 10 inconvenience that happened to him in '73, was a sign of a 11 progressing disease. ! 12 And thinking about the evolution of Hodgkin's disease, I 13 he had this disease well before that time. 14 0 Without suggesting that this is really correct, would | I i 1 15 your opinion change if Mr. Greenhill had a lymphoma and not | 16 Hodgkin's disease? j 17 A No. If .Mr. Greenhill had a lymphoma, the signs and {li| 18 symptoms would be more or 1ess the same as it was with his 19 Hodgkin's disease. 20 Q Without really suggesting it is really so, would you 2! have an opinion whether or not. 2, !-) could have caused a >-> lymphoma in Mr. Greenhill? 23 A There is no scientific evidence? in any credible ! | 24 scientific publication that 2,4-G or related nhenoxv 25 herbicides causes Hodgkin's disease or lymphoma. 1I I 0 -1 z * 7- 45- 0 Are you familiar with the frequency of Hodgkin's 2 j riisi aso and non-llodgk in 1 ;i 3 I A Yes, I am. i 4 : Q Abou t what is the f i CO CD 5 j |ii 6iA 1i population? There are about six 7 annually. Most of the cases are diagnosed in two big 8 clusters in the country as to geographic distribution. 9 One is the northeast and Mew England states, Rhode Island 10 area, where' we have at least hundreds of orep schools and 11 colleges in one confined area; and the second cluster is 12 in northern California in the San Francisco area. And it 13 is less -- far less common in the Southern states of the 14 | C n i t >d S t a t e s t h a n 15 q Then you say l 16 A That they are found, Hodgkin's east's, Hodgkin's disease, 17 found far, far more commonly in those areas, as I described, 18 in the New England states, Rhode Island area, and in San 19 Francisco area. And this is in certain ways i'!>viousl y :o puxx.ling to all of us. At the same' time it Iits into 21 ' tht' m a o p i n g o f an o l d d i s e a s e , what, wo f ound Fn t h e s a m e 22 ; a r e a in h i g h n u mb e r , t h a t was no l i omye 1i t. i s , up t o t h e l a t e ! 2 3 ! forties. I 24 ; Q That s i g n i f i c a n c e is that? 35 i A That poliomyelitis was ultimately proven and the virus 1740 0 -47- ] was isolated as a viral infection. It is a paralytic disease that caused the dead and paralyzed many people 3 before' we knew about it, what is behind it. But, my good 4 colleague, Dr. Robbins from Cleveland and others with him, 5 isolated the virus for which they received the Nobel Prize. 6 And Hodgkin's disease it seems is appearing with high 7 proportion in the same area where we found polio at the old j 8 time. ii 9 0 About what is the frequency of lymphomas in the United ! 10 States 1 popu1ation? 11 A About four times or five times the number of Hodgkin's 12 disease, so it would be something in the range of 24,000 13 lymphomas diagnosed per year. i 14 0 i Dr. Ha.jdu, do you have an opinion, within a reasonable 15 degree of medical certainty or probability, of the medical 16 probability as to when Mr. Greenhill's cancer began? ! 17 A As we know his disease, I would say that having that ! 18 advanced Hodgkin's disease in his pelvis, in his pelvic 19 nodes and pelvic bones as shown on x-rav films, he must 20 have had the disease for a few years before 1979, '7H, 21 because the ('volution of Hodgkin's disease' is, as is ; | i ji i described, is a process that is progressing from one type, ' 23 from one area ro the other. And that takes time to reach 24 that stage of a disease whar he had, which was the highest 25 stage at that point. 1741 j I ! I ! I 1Q -48- Dr. Ila.jdu, are you familiar with the .so-called Hardell paoers on Hodgkin's disease and non-Hodgkin's lymphoma? 3 A Yes, I am familiar with Hardell's naoers. 4 Q What is your opinion with regard to those papers? 5 A Dr. Hardell's study concerning this particular group of 6 tumors is a type of study that was not verified or repeated 7 by anybody anywhere in the scientific world for the time 8 Dr. Hardell published his study on Hodgkin's disease and 9 lymphomas. 10 I find it unfortunate that Dr. Hardell was permitted 11 as a young physician out of medical school in his country i: to get involved without supervision, because in his paper 13 his department head of directors are not listed. To permit 14 to publish a scientific report, what he thought is a correct 15 one, he, himself, si net? then failed to repeat the same study 16 with a new grout? of patients and a new cluster of patients. 17 And certainly as time goes by and as we reach the year now 18 of 'SS, more and more papers and scientific studies are 19 pointing out, and national commissions and committees showed 20 that Dr. Hardell's study had no ground. The Swedish Commission on the Swedish Academy of Science at the highest >-> level, with the supervision of the Nobel committee, released 23 the report in 1384. Checking into it in Sweden, indeed it 24 is true an unusual high number of patients are suffering 25 from Hodgkin's disease and lymphomas. And the Sv/edish 1 7 4 2 '^ ^ -49- I Commission, under the Academy of Science, concluded that it 2 is not so. There is no ground to it to believe so. Dr. 3 Hardell's study was refuted by the ministry in Great Britain 4 in the fishery industry when they reviewed the same type of 5 material and exposure histories in England and concluded that 6 Dr. Hardell's type of claim cannot ho substantiated in 7 Eng 1and. 8 Dr. Hardell's study brought, the Kennedy administration 9 and some people in Canada into confrontation in 1983-84 in 10 Nova Scotia in the form of a trial. 'V'-en Dr. Hardell came 11 to testify the people concluded in Canada 12 0 Well, I think we should -13 A -- that Dr. Hardell's study has no scientific value. 14 A n d il c a n g o o n and o n . 15 0 He is widely criticized? 16 A Yes, it is. He is criticized. As a fact, we criticize 17 him very much by his not appearance in 1984 in New York City 18 when under the Academy of Science of New York and the United 19 States, with the sponsorship of Rockefel1or University, 20 Columbia Universityj Memorial S 1oan-Kot tori rut, an inter 21 national symposium was put. together by invit.ation, inv.it. ins >-> all those scientists who art* involved in work in this area. 23 They came all around the world, all the way from New Zealand, 24 all expenses paid from our sponsor's money. Only one person 25 declined to come, Dr. Hardell. ] Q Now, has this study been cont rad icled? -50- A No. The syrr.oosium proceedings by all the 3 some 200 of us, been pul together and published in the ' 4 proceeding of that symposium as it was transcribed in early 5 1985. It is a heavy volume, and it is available to anybody 6 who wants to see it or read it. 7 Q What is the difference, first of all, between an 8 association and cause, and how does it fit in this picture 9 here? 10 A D r . M n r d e l l ' s c l a i m w a s tlial H o d g k i n ' s d i s e a s e a n d II lymphomas are linked to those chemicals he studied, or 12 thought he found in different parts of Sweden. So the 13 cause is direct linking something to that something that 14 is causing it. 15 The association is that the things are all around us 16 and with us, and we exist with it or co-exist with it, but 17 at the same time those associating components, agents, 18 viruses and fungi, bacteria, are not necessarily the 19 causative, inducing or causing agent. So it's two different 20 things. 21 0 V.'hal tyoc' of associations have b<-en drawn beiween Hodgkin's disease and other -- and what type of associations 23 have been drawn other than the* one's Mardell. tried to draw? 24 A -ell, nobody found any form of cause and effect link 25 of the kind what Dr. Hardel1 was coming up with in his 5 1- - ] paper published in 1981 in the British Journal. As a oathologist, I am reading that paper and seeing it over and 3 again, I am very much concerned about !)r. Hurdell's under 4 standing basically of the pathology part, what he was writing 5 about. He said there', for example, that out of his sixty 6 patients with Hodgkin's disease in his study, there were 7 only three people with nodular sclerosing type of Hodgkin's 8 disease. Modular sclerosing Hodgkin is one of the several 9 forms, and it is over fifty norcent of the Hodgkin's disease 10 anywhere anytime', practically, will belong to that group. ; II So I don't know 'now did Or. larch'll make' such a mistake that I r 12 only three of the' most common type of Hodgkin's disease he 13 found in his pal ienIs. 14 o All right, Hr. Ha.jdu, a couple of more questions for 15 you. 16 Mil. ORTEGO: Judge, would it bo appropriate if I 17 could take .just a five minute break so I can wrap up and 18 organ izo? 19 THE COURT: Yes, I was .going to suggest -- 20 Mil. OHTEGO: Thank you. A p p r e c i a t e i t . 21 THE COURT: --that wo Lake' a break, and the Jury 1 > be back in the .jury box at fifteen minutes until eleven. 23 (Recess at 10:25 a.m., until 10:45 a.m.; open court, 24 .jury and all parties present) i 25 THE COURT: Please be sealed. You may continue. 1745 MR. ORTEGO: Thunk you, Your Honor. -52- (Mr. Ortogo continuing:) Q Dr. Ha.jdu, where wo Ioil o fC wo talked about Dr. Harriell's papers. When you say his findings have never been replicated or reproduced, what, if anything else, do you know about his findings with regard to maybe other naDers? A Well, he published his first observation .just a couple of years before he was reporting on Hodgkin's disease and lymphomas on sofi-tissue sarcomas, and he asserted that soft-tissue' sarcomas w e r e found in .Sweden in increased number in the area he surveyed, which of course since then was not substantiated by anybody, verified. They all failed to verity or r e o e a t such observal ion. O What about a Dr. Shelia Hoar, il-o-a-r? Arc- you familiar with that? A Yes, I am familiar with Dr.- Hoar's work. Q Tell us a little about that. What did she find? A Dr. Hoar reported roughly a year ago, in 1986, in the Journal of the American Medical Association a study from the cancers area where she felt that she could not verify or substan ii t.e Dr. Hardell's, the gentleman from Sweden, claim in reference to soft-tissue sarcomas ancjl Hodgkin's d is e n s e . The third component of her study included non-Hodgkin's 1746 b ' f t W -53- I lymphomas, lymphomas of the other kind, where we have about, as I said earlier, some twenty to t w e n t y - four thousand cases 3 diagnosed per your in the United States. 4 I am satisfied to see that Dr. Hoar and her team 5 came to the same conclusion when it comes to sarcomas and 6 Hodgkin's disease what many, many o t h e r p e o p l e , scientists, 7 concluded before Dr. Hoar's study. 8 I am somewhat troubled and short of verification of 9 Dr. Hoar's finding when it comes to the other type of 10 lymphomas and Hodgkin's disease, I would reserve, hold my i 11 reserved opinion and view about the validity of her observa 12 tion in the fixed sense of scientific observation. It has 13 to be verified by others. It has to be proven by others, 14 and I sav that, Counselor, because there is one component 15 in her study, with a few others, that troubles mo as a i1 * | 16 pathologist . 17 The lvm-Hodgki n 's lymphomas art? about four to five 18 times the number of Hodgkin's d i s e a s e in the United States. 19 In Dr. Hoar's study, the number of non-Hodgkin's lymphomas 20 are mathematically about the sane number with the number of 21 Hodgkin's disease in her study. And a hundred and seventy- >"> two cases oi non-Hodgkin's lymphomas are included in her J i 23 test ater'nl, and some1 hand rial thirty eases of Hodgkin's 24 disease. Ami that bothers me. I don't know whore are the i j 25 other non-llodgk in 1s lymphomas? What happened to them? Why 1747 0 - l $ 3 i 1 --o4-- 1 she did not. h a v e those p a t i e n t s , or P a t i e n t ' s p r o b l e m , f o r 2 1 her study or a v a i l a b l e for her study. There are a few other 3 t h i n g s in a d d i t i o n , but it v e r y s e r i o u s l y t r o u b l e s me, t h a t li 4 s o m e t h in g is w ro n g and it must be v e r i f i e d b e f o r e I b e l i e v e 1 5 ' in it. 6 Q Dr. Ha.jdu, what is your fee for romi ng to court to 7 jj testify? ij 8 1 A !i The same as I receive from mv colleagues in consultation, 9 physicians, hospitals and organizations like the American 10 Cancer Society. ij 11 I Q .|ji 12 ,j A And what is that? Four hundred dollars per hour. 13 ! Q One last question, Dr. Ha.jdu, have you or do you 14 personally use products that contain 12, 1--!3? 15 j. A I do. I use for a number of years in my backyard i! 16 killing with the spray-on Ortho product, dandelions that 17 I cannot control. They always come out in late spring. 18 Q Thank you, Dr. Ha.jdu. 19 MP.. ORTEGO: I oass the witness. 20 CROSS EXAMINATION 21 ;I* B Y MR. AMG 1 1,1. : ;! >1 j: 0 D " . H a . i d u , I a m n o t g o i n g t o a s k y o u a b o u t any retainer jj23 a g r e e . o n ; n o r t h o c h a r g e t h a t y o u r h o s p i t a l m a y make for 24 X e r o x i n g , b i l l I a s s u m e t h a t y o u a g r e e I r o n y o u r l a s t s t a t i ' m e n 25 o r o n e o f y o u r l a s t s t a t e m e n t s , ( . h a t i t i s f a i r for a D -ItJI p h y s ic ia n , such as y o u r s e l f , i f you arc going lo -55I ('ave y o u r p r a c t i c e and come t e s t i f y in c o u rt to be p a id lo r y o u r tim e? Would you agree w it h t h a t , s ir? A I s i n c e r e l y hope? s o . Q You expect to be p a id fo r y o u r tim e , do you n o t , s ir ? A I t rust I w i l l . Q A n d y o u r e x p e n s e s a s we? 1 1 , w o u l d t h a t be? t r u e , s i r ? A W e l l , I had to f l y h e r o , y e s , from New Y o r k C i t y , and I have to go back somehow t o New Y o r k C i t y . Q And you e xp e c t to be p a id fo r y o u r e xp e n s e s as w e ll? A Yes, I assume. I t ' s j u s t l i k e w i t h myl e c t u r e prepara t i o n f o r s c i e n t i f i c m e e t i n g s , t h e s p o n s o r w i l l r e i m b u r s e me f o r my e x p e n s e s , p h o t o g r a p h i c a n d o t h e r s c i e n t i f i c e x p e n s e s , yes. 0 You w ill be p a id fo r those? A Yes. I do th e sam e, and I assume th a t I w i l l be likew ise here. Q All right, s ir . Now yo u r fee is four hundred d o l l a r s per h o u r, is that c o r r e c t ? A Correct. Q A n d i f my m a t h i s r i g h t , t h a t ' s t h i r t y - t w o h u n d r e d d o l l a r s p e r day at an e i g h t - h o u r d a y , is th a t c o r r e c t ? A N o , I d on ' t t h i n k a b o u t my f e e s t h a t w a y . My pa r t i ci pat ion is w h e n I h a v e to come down away f rom o f i ' i c e , I cone 1 tided t h a t my a v e r a g e c o n s u l t a i ion f e e , w h a t o- -56- l !! I b r i n g i n c h a t c l a y , i s i n the? r a n k e r o f t w o n t y - f o u r h u n d r e d , : ij d o l l a r s . ' 3 || 0 Twen l y - fou r h u n d re d d o l l a r s p c ' day? I I }I | ! 4 !A Pe r d a y . 1 5 ! r e l:r. b u r s e m e , 1 So I so my assume that I col 1 ague who am h e r e a d a y t h a t s o m e b o d y i s c o v e r i n g my o f f i c e by 6 | n o w , w hom I h a v e t o o a y , i s g o i n g t o bo r e i m b u r s e d f r o m me i 7 f rom t h a t m o n e y w h a t I r e c e i v e f o r my c o n s u l t a t i o n dow n h e r e 1 8 now. 9iQ 10 |j i n ! 11 A N o w , D r . Ila.jdu, you h a v e been etained by Dow C h e m ic a l t h is p a r t i c u l a r l a w s u i t , have you not N o , I boon in c o n s u l t a t i o n about th is ease w ith i ii: !i r e p r e s e n t a t i v e s , n a m e l y D r . P i e r c e , o f t h e f i r m o f R i v k i n 13 i o n L o n ? I s l a n d . -1 14 I- Q .i 1 15 ; h e l Now let 's is not here bo f a i r , D o c t o r . to d a y but he was Dr. here P i e r c e , who - - w e l l , i I y e s t e r d a y , is an a t t o r n e y as w e l l , is he not ? 16 ! 17 i! A He has a s c i e n t i f i c d e g r e e , 18 I i s a l a w y e r , I u n d e r s t a n d . a doctorate degree, and he 19 | Q A n d hi' i s a l a w y e r w i t h t.ho l a w f i r m , t h i s N e w Y o r k 20 l a w f i r m , t h a t , i s d o w n h e r e d e f e n d i n g t h i s l a w s u i t , i s n ' t :I | he? 12 j ,i 23 'j AI lawyer assume that is the c o rre c t s i t u a t i o n . with, the Law F in n o f R i v k i n . Y e s , he is a 24 n And you u n d e r s t o o d t h a t when y o u w ere r e t a i n e d by ji25 |j J r . P i e r c e t h a t y o u w o u l d b e l e s t l y i n g o n b e h a l f o f t h e ij 1750 Defendant in this case?, didn't you? -57- I A After I reviewed the' medical records and [ saw there.- is some misunderstanding about the discussion from one.- party to the other and I said that I am willing to participate to clear up the misunderstanding, I understood that. I am consultant to the law firm. They are representing, whomever they represent, yes. Q The Defendant in this case? A I think that's the case, yes. |i 1i Q And, in fact, Dr. Ma.jdu, without getting into the specific type of litigation you were' involved with before, i isn't it a fact that you have also been retained by the < attorneys for Dow Chemical to testify on behalf of Dow Chemical in other litigation? A Your summary of that instance' is somewhat incorrect, ij i Counselor, in due resnect. I been called on to be consultant \ \jin that other case about four or five years ago, or whatever it will precisely be, a number of years, to review medical i j documents and material in certain nodical cases for the j I same law firm, whomever they represented at that time. And J after reviewing ce-tain documents, when 1 understood from the documents that there is a misunderstanding about those ; medical cast's, 1 said that il l can contribute any way to clear ur the nisunderstanding, you can depend on me. This was mv role in thm situation. 0-ttSY I Q And the attorney that, you wore contacted for in that case attain was Dr. Pierre, was it not? 3 A Dr. Pierre or his colleague. L think he was the one, 4 or somebody els' at that point. 5 Q Again, with this same New York law firm that's here 6 today, is that correct? 7 A Yes, I think Dr. Pierre and other gentleman was from the 8 same law firm in New York, yes. 9 Q And you understood that one of the defendants in that t ; 10 lawsuit was Dow Chemical Company, didn't you? 11 A Yes, I learn abour it later, yes. That was one of the J 12 several defendant peon 1e in that lawsuit, you are correct on j 13 that. i .i 14 0 And you knew that this law firm that. we are speaking 15 about, represented the defendants, or at. least one of them, 16 in that particular litigation, did you not? 17 A '.Veil, when I got involved in such a way that we begin j i | 18 to communicate about the misunderstanding surrounding those i i 19 cases, 1 learn about that Litis law firm was representing 20 one or several of the defendants in that case, yes, I knew j 1i | 21 tha t. 0 23 A 24 0 One of which was Dow Chemical? Yes, I think you are correct on that. Now, Dr. Ila.jdu, as far as the diagnosis of Hodgkin's 25 disease, as I understand it, you look for what's called a Jl i O & " / 3S -59- 1 "Reed-Sternberg cell," but that cell has to he in the proper cellular background or cellular naitorn, is that right? 3 A Correct, Counselor. 4 Q Mow, if you find what looks like a Reed-S ternberg cell 5 but it is not in the correct cellular background or cellular 6 pattern, then that is not called a "Reed-Sternberg cell," 7 is it? 8 A If you are describing a situation and those two 9 components that are needed to diagnose Hodgkin's disease, 10 the relationship between the cells and that very specific 11 Reed-S ternbe rg cells are not there, one: cannot make a 12 diagnosis of Hodgkin's disease. The cell may look like 13 Hodgkin's disease, resembling to Hodgkin's cell of the 14 Reed-Srernberg tyne, but it is not called Reed-Sternborg 15 cells in the' proper sense of the word. That, type of cells 16 we see in a number of conditions, like viral infections 17 such as infectious mononucleosis, in infections caused by 18 Herpes, infections caused by virus, such as the mumps virus, 19 infections caused by other organisms, such as toxoplasma, 20 infections such as caused by the' virus that is deposited 21 under our skin called "cat scratch disease." The cat virus is producing enlargement. The cell may look like Hodgkin's 23 disease in all of these1 viral infections, but it is not 24 Hodgkin's Reed-Siernberg cell. 25 0 The eel 1 that you are describing then would he a Reed- 1753 0 -!% 3 <o I 31ernbt'n> 1ike coll, is that correct? -60- j A Tint's how wo like to word it,o>` so-cal 1ecJ Roed- ! 3 Sternbo r>r- 1ike cell, resembling Reed-Sternber?: cell. 40 And die Recci-Sternberg cell, or the Reed-Stemberg- 1ike 5 cell, is also found in non-!lod.gkin 1s Ivmohoma, is it not? 6 A !loed-3 torn berg- 1ike cells, a;:a i;! i*71ita ting, ro.semb 1ing, I 7 true that may be found, but it is not Reed-S te mberg cells. 8 The Reed-Sternberg cell is a very snecific cell. 9 0 I understand. 10 A And that is found in Hodgkin's disease. | II Q But the Reod-Sternberg-1ike cell, or one that is verv" 12 similar or resembles a Reea-Sternbcrg cell, is found in 13 non-Hodgkin's lymphoma, is it not? |! ! I j 14 A To tin' un intreduced , it may look like the a-ed-S te rrbe rg 15 cell, but that narticular cell at that noint when it is j 0 there just like' in all thost' other conditions called viral 17 infections or nericytic infections are not entitled to be IS identified by us as Reed-3l ember;: cells. 19 0 They are just Reed-St ember::- 1ike cel Is? 20 A Very much resembling to it. hike two oeonle who are 21 resembling to each other but they are two di IIVrent peon Ic*, >, act ua11y . 23 0 Doctor, wh'- don't you draw for me, if you would, n lease, 24 sir, and i tinders iand you told no be I'or-e you are not a 25 medical art ist , but a represen i.al ion o! wha't a Uecd-3 Lo rnbe rg 1754 ~ l z 3 7 cell appears like? -61- A (At misi'l ) There are -- then* are a number ui micro scopic variations in that cell, because that cell is alive and evolved from, we feel, nononuc 1eateci single cell, as such So, the Reea-Sternber# cell can assume, for example in the evolution from that single cell, we see a specific type of cell by behavior, somethin# like* that (drawing). That's the outside shell, like an eir#shell, of the cell body. 9 And -.vhat do you see in the middle'? A In the middle is the ectoplasm, or the intercyton1usmie structures, with the two prominent structures that are about to be separated, although they may still touch to each other. This may bo broken hero ri#ht now or ar.y moment in the? evolution of this cell. Two structures that are tryin# to be verv much similar to each other in contour; these are called nuclei, tin1 inner body of the cell. Inside vou may see one or several minute structures under the microscope that are called nucleoli. N o w i n a l a l o r p h a s e , a n d t h i s " . i l l :> ><)# r e s s L o t h e next one, two more cells assume perhaps an equally typical l a t e r n hase o f that l i f e t i m e oi l he c e ll is when two m i r r o r imaye tvno of structures of that, the nucleoli will be like **'* tit a t ( d r a w i . '' rorn t i m e t o t i m e t h e r e i s a s l i g h t o v e r - 1 a .' P i n y o r b u l u i n # o v e r o n e o f t h i s n u c l e i o v e r t . h e o t h e r , o r from t i me t o t i m e t h e y r e m a i n f u s e d . It. d e p e n d s or, t h e 1755 I life timo of that cell. -02- ni Doctor, h:ive a seat. I!' you have Reed-St ornbor?;-1ike 11 3 ; c e l l s but in fact thev are not Roed-ot ernbery; c e l l s , under 4 ! the microscope they can appear very similar to those purticuli i5 c e l l s t h a t y o u h a v e d r a w n , b u t t h e y a r e . j u s t n o t i n t h e p r o n e : - 6 | background, is that c o rre c t? A I w o u ld s a y can lo o k a l i k e and be s i m i l a r , can be q u i t e sim ilar, lj 9 j| l e v e l t o b u t a p a in , i t c a l l s f o r som e d i s t i n?tu i s h t h o s e l o o k - a l i k e e x n e rtise at c e rta in c e l l s from t h i s . J u st 10 like when you walk and see someone from the back, two people ll .1I sane size, same weight, look the.' same, but when you :.ro to 1- ! face to face they are two different people. Ii 13 !: O T h a t ' s part of the problem in diarrnosiniT of 'lodekin's 14 | disease, isn't it, Doctor? 15 DR. OETEGO: Object to the form. 16 T'iE COURT : Overruled. 17 (Vr. Gill nr, coni inu ins :) 1 i n Isn 1t that part of thi' probi on 19 disease, Doctor, that, cells ap o i ar 20 cell s when they in fact may be Reed :i and vice ve rsa , depend Inti upon the 22 ;i A That 's part of the problem, Counselor, because, see, -m I!- the evo 1ut ion process in a disease it's very important to 24 undo rs tand , and those who do not see a sufficont numbe ' o r :i tliis typo of problems daily, I would say, they may tei 1756 p - / < g 3 f -63- 1 trapped in their own direction. This is why it is fortunate *) that people are referred for second opinion to a tumor 3 institution or to so-called expert before they are treated, 4 so the disease is verified at the highest level. 5 0 Now, Doctor, if I understand it, you feel, do you not, 6 that a doctor at your level of expertise, at your level, 7 can make a diagnosis of Hodgkin's disease without finding 8 a Reed-Sternberg cell? 9 A We don't like to make that statement as you .just said, 10 Counselor, in my due respect. You do see Hodgkin's-1ike 11 arrangement of the cells, particularly in the type of I2 lymphoma that Hr. Cireonhill had, that tho rolls are relating 13 to each ether, in this particular type of Hodgkin's, in such 14 a way that you have a fee 1ing, as somt.> of the ual.ho 1og is ts 15 out in the lorn 1 hospital area feIt, that it looks so, but 16 I cannot find a Reed-Sternberg cell. I cannot find a Reed 17 Sternberg cell, therefore I cannot make a diagnosis. 18 Now with proper expertise, proper laboratory techniques, 19 one will find and one is going to find those cells somewhere 20 in the biopsy material, at least one of those cells, as we 21 found in this cast'. O My question, Doctor, to you is isn't* it true; that you 23 feel, however, rhot a doctor at your level of expertise, by 24 examining the background and examining the cellular structure 25 can diagnose Hodgkin's disease without f'indi.vg a R(<-d- 1757 - M 0 1 Sternberg cell? -34- A Counselor, to answer straight lor that good question, 3 we do not do that. What wo are doin': is, under that setting 4 what you describe, a Hodgkin :!isoaso-t vne o r cellular 5 arrangement, without Reod-S ternber;; coll, we v/i 11 express 6 it that "1 suspect Hodgkin's disease, I favor Hodgkin's 7 disease, and I need more verification of the nature of the 8 disease before treatment," which calls for either re-biopsy 9 on another area or the same area, or it c a l l s for deeper 10 technical sectioning of the existing bioosy. 11 Q 'Veil, Doctor, you recall me coming up to New York City 12 and taking your denosit ion up there, do you not? 13 A Yes, I remember, Counselor. 14 Q And do you recall -- IS MR. (11!.LAM: T h i s i s " age M3, C o u n s e l . 16 Q -- do you recall mo asking you a question at that time, 17 and read along with me to make sure' I read it correctly here: 18 "That if you do not find a Reed-Sternherg cell, but find 19 this cellular background, such as you described you find in 20 Hodgkin's disease, can you make a diagnosis of Hodgkin's 21 disease without finding the' Roed-Stornberg cell?" I asked you tent quest ion, correcl, sir9 23 A I assume you read it from the transcript , it's correct. 24 '1 And ' f I r oad a l s o c o r r e c t l y I rom t h e t r a n s c r i p t , t h e 25 a n s w e r to y o u r q u e s t i o n w a s : " T h e s i m p l e s t a n s w e r to y o u r 1758 0~/tH -65- question is yes, but it's not that simolo. You need exper tise at that level to decide whether the nodal change is Hodgkin's disease or not." Is that correct, sir? A And that is what I am saying, Counselor, that you exnress it in such a way with care, to not over-diagnose the situation, that I need additional nroof, that I suspect, and this is consistent, I favor Hodgkin's disease, Counselor, but before I submit that patient to be treated with chemotherany, I need something more. So the answer is yes. I an the one who is going to indicate that this patient seemingly got, yes, Hodgkin's disease; but. let us verify it before -- before we do harm to this human being. Q And you must verify it by finding the Reed-Sternberg IT 1I ? A Or in a re-biopsy to satisfy ourself with more obvious outtern of g r o w t h of the arrangement of the cells. 0 All right. Then let me ask you that: if you re-biopsy and you find the pattern that helps satisfy you, but again you do not find the Reed-Sternberg cell, can you make the diagnosis of Hodgkin's disease? A We will make the diagnosis, yes, by suspecting it, expressing it is consistent and compatible with Hodgkin's disease. If that satisfies those four people in the team, that because of the cl ini teal setting, because' of the age of the patient, because of the radiologic appearance, and ' 759 -661 because ol' or her factors that I may consider with tho n pa tho 1og ists indicate that this patient trot Hodgkin's 3 disease*, it is un to that team to decide at that ooint 4 whether treatment will be initiated based on that consistent 5 diagnosis, consistent with Hodgkin's disease?. 6 At our institution, because we are a reference center, 7 patients are coming with problems, we cannot make a mistake 8 in decision like this, and we will wait for a re-biopsy 9 of the tissue slides and bionsv material to find those 10 cells, because if you have that material available to you, 11 in 2 9 . 9 percent of those cases you did not see Toed-S tc*rn be rg i: ce 11s ini tia 11v, you wi11 have it. 13 O Taking everything that you have said into consideration,; 14 if you have done your re-bioosy and you have sludied every- \ 15 thing that you sav you study, and all this other kind of 16 thing, when it gets down to the tail end of it, Doctor, 17 after all of that and you have still not found a Teed-Stern18 berg cell, will you make a diagnosis of Hodgkin's disease, 19 if everything else adds up? 20 A The pathologists make1 a diagnosis of consistent favor, 21 or suggestive ot Hodgkin's disease, Counselor, and at that point is u"> to the team of the physicians, hissed on those 23 comeonesns and evidence, medical facts, whether they begin 24 to t 'rat the 'guient because the Pat ient has a very advanced i ! 25 disease, although the pathologists did not call it Hodgkin's 1I II I 1 j disease. Again, I am talking about where I practice, there 2 i we need a verification, and I do not rooalI a case when i additional bioosv material or deeper cut tissue from the l". !iit 4 ij 1`xist imr biopsy was given to me, or given t.o mv c:o11eagues , 5 j we did not find Reed-Sternbor.it cell. There' is -- seemingLv, 6 : there is nc such thing in medicine, you will find it. Q Is consistent with Hodgkin's disease and favoring 8 Hodgkin's disease the same diagnosis as Hodgkin's disease? 9 A Not al the same1 level. When a pathologist make the 10 diagnosis, suspect that disease, then the pathologist state that it is consistent with Hodgkin's disease, or comoatible " 12 ili j with Hodgkin's disease, that is very close to affirmative 13 !!: diagnosis, but it is not a final, definitive diagnosis. 14 ' 0 And it leaves room for doubt, does it not 9 i 1 ! 1j ; j i; ! j ! 15 A It leaves room for that, but above all it indicate' 16 to those who received the biopsy that additional proof 17 should be rendered before we harm this patient with l 18 radiation or chemotherapy, because m r concern is ultimately 19 that one human being, the patient. 20 Q Dr. Ha.jdu, you do understand that in this particular 21 case there are other pathologists that disagree with your 1 : diagnosis of Hodgkin's disease, are you not?* A ves, Counselor, I know that some pathologists who were 24 . involved in llie diagnostic exercise in the same area where- j j 25 1 Mr. Greenhill's problem developed, they did not diagnose i70l o-ftiY -68- 1 Hodykin. Some felt it could ho, and I understand ultimately, ; I > i on re-review ot their own material, it's a fact some of the ! j 3 oa tho 1o?rists you considered, asked to review the case for 4 you, changed their diagnosis recent ly and a{treed with Dr. j l 5 Butler and nyreeri with me that. 1hey have someth inm of a i 6 kind that they are susnertiny and art; accenting as Hodgkin's j disease. 8 Q Doctor, have you reviewed the? oatholoyy reoorts that 9 were submitted to you? 10 A 1 did, I assume, all the pathologists' reports from II the medical records, yes. 12 Q As I understand it, you reviewed reoorts from the 13 clinic uo in Denver, did you not? 14 A 1 iin ilk Mini 's whore Ilie nal ienl was, and lhey oarnc i j | 15 from then' and I reviewed report of Dr. Holland, 1 reviewed i 16 the report of a Dr. Morgan, and I understand Dr. Holland and 17 Dr. Morgan were consultant to your law firm. 18 Q And were actually consults to Dv. Teitelbaum, I believe, 19 Doctor. As far as this yoes, did you also review a reoort 20 from Dr. Stolz that you testified about earlier? 21 A ^> Yes, I saw that in the medical records. Now, if I understand ii correct ly, as lar as the ' ! 23 r i - a c n o s . s that was made, the diagnosis of Hodgkin's disease - f i 24 T!IK MTNF.SS: ('an I move, Your* Honor? I cannot ` 25 see. D - l^ ri ir*f ''yi* i ] THE COURT: Vos. -69- (Mr. Gill arc coni inuing: ) 3 O -- the diagnosis o Hodgkin's disease was made by who, 4 Or. Butler, correct? 5 A No, a local doctor, Dr. Koenig -- 6 Q Okay. 7 A -- who was the second nuthologist. 8 Q iVell, Then I)r. Butler eventually diagnosed Hodgkin's 9 d isense? 10 A Yes, Dr. Butler received the material from Dr. Koenig, il il' I am correct about the name. 12 0 So you have got Dr. Koenig and Dr. Butler diagnosing 13 Hodgkin's disease , correct? 14 A I think iha t. is the case. 15 0 And then D r . Morgan a 1so? 16 A Dr. Morgan, yes, he is the local oat ho legist who was 17 retained by either you or a physician who was your consultant 18 n A 11 righ t. 19 A Dr. Teil.elbnum, yes. 20 0 And with the addition o i' Dr. Morgan, you have also 21 yourself diagnosed Hodgkin's disease, is that correct? A Yes, I did, definitely. 23 O Now, were there other ohysicians, or..you have told me 24 there are o.hers that diagnosed non-Hodgkin's, did you not? 25 A There was a ontho 1ogist before Dr. Koenig's second 1763 0-llHb opinion was sought, a Dr. -- o Stolz? A -- Stolz, right. 4 1 Q All right. But Dr. Stolz dicin'! diagnose Hodgkin's disease. He didn't find the Reod-S 1.ernbr>rg cells that you 6 say are necessary to find, did he? 7 A Oh, I don't know why he did not diagnose it. I don't know 8 Dr. Stolz' level of expertise, but he did not diagnose 9 Hodgkin's ,that1s correct, yes. 10 0 From your review of the records, he was a oathologist, 11 wasn't he? i: A He signed a nathology reoort, and I have no reason to 13 I assume that he was not a oathologist. 14 I 0 Now there was also a Dr. Rowland who diagnosed non- i15 Hodgkin's disease, is that correct, initially? i 16 i(| A Yes, that 's correct. And Dr. Howland was involved I 17 i again on the review of Mr. Greenhill's material, as Dr. 18 Morgan -- 19 Q Correct. 20 A -- that somebody red rcsonLing your law firm was ! :i '' consu1led w ith lhem. 0 Well, just like you represent their law firm, correct, H 23 1 1lie same s iiun tion? 24 RTh'CiO: O b j e c t t o t h e f o r m o f t h e q u e s t i o n , ;5 Y o u r H o n o r . I 0-1%W 1A No, I'm not -71- THE COURT: Overruled. 3 A No, Iam notretnresenting the law firm. I am 4 consu1tan t to. s Q Okay, you are aconsultant to the lawfirm? 6 A Yes. 7 Q Now, at the Denver Clinic, where Dr. Howland worked, 8 from your review of the reports, he also had two other 9 oatho1ogists , didn't ho, look at the records? 10 A Yes. 11 Q And that was a Dr. Meyer? 12 A I think that's correct, Counselor, who saw the slides 13 of material with Dr. Howland and/or Dr. Morgan. i 14 O And Dr. Meyer didn't find Hodgkin's disease, did he? IS A Well, ho did not diagnose, let's say that. He did not 16 diagnose Hodgkin's disease, .just like at initial nhase 17 Dr. Howland and Dr. Stolz did not diagnose it. 18 Q Well, in fact all of these* doctors diagnosed non19 Hodgkin's lymnhoma, didn't, they? i i 2 0 MR. ORTEGO: Ob.ject.ion to the form of the question :i a m i s e d i a r : i c t o r i z a t i o n . TI A V. ' o 1 1 , I - - 23 THE COURT: Overruled. 24 THE WITNESS: Should I answer? 25 THE COURT: Go ahead. 1765 - M * i i ]A -72- As records show this pathologists, I assume they are *> pathologists, they did not diagnose Hodgkin's disease, and 3 they made a mistake. 4 Q And non-Hodgk in 's disease or non-Hodgk in 's lymphoma 5 is a form of cancer, isn't it? 1 ! i : I j 6 A It is a form of cancer, yes, Counselor. , 7 Q Just as Hodgkin's disease is? | 8A 9Q Correct. Now also at the Denver Clinic, in addition to Dr. j i j 10 Howland and Dr. Meyer, you also noticed in the report II from Dr. Howland there was a renort from a Dr. Hanley, or 12 a reference? to a Dr. Hanley, correct? j ! ! 13 A Correct, Counselor. Dr. Howland, Dr. Meyers, Dr. 14 Hanley and Dr. Morgan, who wore basically consulting with 15 each other or belonged to the same group by showing this j | 1 i j 16 biopsy to each other. 17 0 '.Veil, you understood that they were all pathologists 18 from the report that you road, didn't you? I 19 A That 's how it reads, and they made? a mistake. 20 0. 21 A Al. l ri.ght, . thev made' a mistake? i I As fact shows, yes, they made a mistake, and I an pleased 11 to know that the patient was not treated on that diagnosis, 23 because the patient would have been destroyed. 24 Q Dr. Hanley also diagnosed, by the way, non-Hodgkin's ! 25 lymohoma, didn't, he? i) - M i IA n All those doctors, Counselor, on their review on behalf of your firm, Howland, Meyers, Hanley, came to a conclusion 3 that they cannot identify or cannot diagnose Hodgkin's 4 disease. Only one person from that team diagnosed Hodgkin's 5 disease is Or. Morgan. 6 Q And the others diagnosed non-Hodgkin's, non-Hodgkin's 7 lymphoma? 8A Counselor, I have said and I say again, in due resnect, 9 yes, they concluded, and it was a mistake; and Pathologists 10 do make mistakes, and I hooe that when we make those mistakes 11 it does not harm a human being. Hv the way, '.here is another 12 pathologist, Counselor, a Or. Chu who is on review on record 13 in the second phase of the review. See, these pathologists 14 diagnosed vital ever they diagnosed, at your request, and 15 later on they re-reviewed for you, or for somebody, the 16 same material, or related material. And Dr. Morgan, Dr. 17 Howland, Dr. ."eyers, Dr. Hanjev, and plus one more doctor 18 who was not listed before -- 19 Q That 's Chu? 20 A Dr. Chu, came to the conclusion, somewhere late this 21 summer, on re-review that they are accepting the case and can be best classify the disease,what they did not diagnose 23 correctly earlier, as Hodgkin's disease. 24 0 Have you reviewed that report as well, Doctor-? 25 A Yes, I riici. -74- 0 And in that report, as well as the others, they still didn't find Roed-S ternberg cells, did they? A If I ain correct, that they had a problem with it even now, and honestly, I don't know what is the problem. Q 'Veil, that's Dr. Stole, Dr. Howland, Dr. .'lever, Dr. Hanley, Dr. Chu and a Dr. Ault, they all had the problem, correct ? A They all had problem, and I am, as I said, I am delighted to know that two local Pathologists, Dr. Koenig and Dr. Morgan, in tho same area where they practice, in.jeciod i | a doubt in the mind of people who are involved in the1 evaluation of Mr. Greenhill's disease, that there is a clouln about it at the local level of Pathologists, who are general prac t.itioners, not two more pathologists, and seek the help of such an authority like Dr. Butler in Houston at the MD Anderson Tumor Hospital. 0 Doctor, this all- Points to what 1 am saying, the problem in the diagnosis of Hodgkin's disease is that it is a difficult diagnosis to make," isn't it? A It c;m -- D It c a n be d i f f i c u l t , c a n it. n o t ? A It can bo extremely difficult !rom tin<- to time, yes. n And you have got one, two, throe, four,- five, six, seven, eight, nine, tea pathologists that have looked at this particular case that we know of, is that correct? i7s<t p-/%?/ ] i ] .4 -75- Well, as records show, I think all of this gentlemen saw bioosy material from Mr. Green!',il I. 1 am at this point 3 not at ease to .speculate whether they saw the.* same bion.sy 4 material, what Hr. Butler saw, what Hr. Morgan saw, what 5 Dr. Koen ir sa>v and what. I saw. 6 Q They certainly saw tissue fromMr.Greenhill, didn't 7 they? 8 A I assume they did. 9 Q Okay. 10 A I have no way to verifywhether they sawthe correct 11 slides or not. What I can testify to, Counselor, seeing 12 Dr. Butler's report and the way he worded his report and 13 the way my report is worded, that we are talking about the 14 sumo disease; we are talking about a spec, ifie 1ype of 15 Hodgkin's disease, lymphocytes predominant, one of the four 16 forms of Hodgkin's disease 17 Q And you agree, Doctor, that there has boon disagreement 18 in this case among a number of pathologists as to what the 19 diagnosis is, is that Irue or not , sir? 20 A There was a disagreement at the local level by general 21 practitioners in pathology, and that, is not. unusual. This 11 is why people should go to seek second opinion, after a 23 diagnosis was rendered in a general hospital. 24 0 The local pathologists that: are treating these peon 1e 25 that come in on a day-to-day basis, those are the people that. 0 | 0 7 ^ 1 you are describing, aren't you? -76- A Well, I think these art? the pathologists who are 3 practicing on those local hospitals or clinics where they 4 practice. They are the local pathologists, yes. 5 Q People who have the responsibility of treating these 6 people who come in with Hodgkin's disease from whatever 7 locality they are located in, and they have the responsibility 8 of dealing with them from day to day and trying to treat them 9 as best they can, don't they? 10 A I hope, Counselor, you are correct that indeed the II doctors, the local doctors, are doing their utmost to assure 12 the patients about the proper diagnosis and the proper treat 13 ment. But in this case, as it was shown from the very 14 beginning, the first two pathologists, by Dr. Stolz and 15 Dr. Koenig who were local pathologists and were involved in 16 the diagnosis and care of this patient, that there was 17 disagreement, I think they did the right thing to refer this 18 case for second opinion. And this is a way of life today, 19 and I encourage it and I am for it. 20 0 Doctor, no matter whether you have got non-Hodgkin's 21 lymphoma or Hodgkin's disease, you have got. a form of cancer, 1s l ha l c o T e c t? 23 A The cancers you describe are-known to us as cancers, 24 although thert' are some schools and thought, even today, 25 that school, the British School namely in Europe, that 1770 characterize Hodgkin's disease as a granulomatous -77- disease', and they don't call it "Hodgkin's lymphoma.'' They call it distinctly "Hodgkin's disease," to draw that line between the true lymphomas of the k.nown-Hodgk in tyoe and that disease we call historically "Hodgkin's disease." Because they feel that it is a different disease, and I agree with that. Q As far as what we believe in this country, and as far as what you believe, you believe Hodgkin's disease is a form of cancer, do you not? A Until further proof, I accept it as a form of distinctly unique entity, a form of cancer that we separate in behavior, in natural history, and the way the patients react to treatment, from all the other typo of things we call "lymphomas." 0 Now, for Mr. C-reenhill's case, Mr. Greenhill's Hodgkin's disease or non-Hodgkin's, or whatever it was, was a very aggressive disease, was it not? A Well -- Q Or is it a very aggressive, progressing disease? A As records show as of 1979, he had a very advanced disease that extended in his no Iv is , in iris do 1vie area, to his back bono, to his pelvic bone*, to his spine, or vertebrae, and to his ribs. So it was an advanced disease, yes, indeed. B'/ssy -78- 1 Q Dr. Hajdu, let's talk a minute about thisHardell report. It is my unde rs tand ing that you think the Hardell 3 papers have no sc ionline value1? 4 A Counselor, that is my personal oninion -- 5 Q All right. 6 A -- and the opinion o I'all the others since Hardell 7 published that paper who work in the field, that Dr. 8 Hardell's study when he was talking about cause and effect 9 link between certain things and Hodgkin's disease, cannot 10 be and was not verified by anybody else in the world, and I1 he himself, since the publication of that study, failed to i: come out with a new second series of conditions, or patients, 13 with the same disease. 14 Q Dr. Hardell nut a link between 2 , 1-D, the chemical 15 2,4-D, and Hodgkin's disease, non-Hodgkin's lymphoma and 16 soft-tissue sarcoma, didn't he? 17 A He listed 2,4-D, he listed some chloropheno1s , he listed 18 some solvents and some other things what he? tabulated, listed 19 as the patients been oxnosed to in the forested area, or 20 wherever they belonged to in Sweden. 21 Q >* A My question, Doctor -- Yes, 2, 1-D was one of the several things he mentioned. 23 O And it was linked to non-Hodgkin's lymohoma, Hodgkin's 24 lymphoma, and soil-tissue sarcoma, was it not? 25 A That's what ho implied, as I alluded to earlier, 1772 0 ' / ? r r -79- ] Counselor. He .just went to far with his interpretation, I think. 3 Q So your opinion as to the work of his report goes to all 4 three of those, does it not, that you don't think -- or are 5 you telling us that 2,4-D does not cause Hodgkin's disease 6 or does not have a link to Hodgkin's disease, non-Hodgkin's 7 lymphoma or soft-tissue sarcoma? Does your opinion go to all X three of those? 9 A Counselor, as of today, and many, many reports and many, 10 many committees and commissions' works across the United 11 States and the world, no one proved in a scientific, credible 12 way that 2,4-D caused Hodgkin's disease or 2,4-D causes 13 non-Hodgkin's lymphoma, or 2,4-D cause soft-tissue sarcoma. 14 Q Doctor -- 15 A The proof ismissing. A verified proof is missing. 16 Q Are you telling us that there is no credible publication 17 that supnorts that, is that correct? 18 A Correct. 19 Q Well, do you consider the' publications of the National 20 Cancer Institute to be credible publications, or papers 21 issued by the National Cancer Institute to be credible n publications? 23 A It depends what was the study, who did the study, under 24 what condition, and what the scientific community would 25 on review attached to that report. -30- 0 Well, there is peer review ir. the National Cancer Institute publications, is then' not? A Oh, there is review, yes. Q Just the same? type of peer review that, you told us earlier that you have to have to make a report or a publica tion or an art ielf? some t.h ing worth printing, isn't that correc t? A True. That's absolutely so, Counselor, but at the same time, as I am one of the reviewers of many oaners, I clo know that my colleagues and my associates do not review every paper that, ultimately be published. There are such papers that somehow get to the review process and got in printed form. And there are many papers published in scientific .journals that are not reviewed by anybody, although it is published in the .journal under the supervision of the editor and chief, in the form of notes, letters and com munications. Q And you believe nub 1ieations by the National Cancer Institute to be credible publications, do you not? A Well, it, as I said, with the condition and under standing, what is the subject matter, how the- work was carried out., who are the writers, what is the professional standing of t'-e scientists involved in study, I certainly would oay attention to it, yes. o 'Veil, you are aware that the Moar report that, you talked -31- ; 1 to us about earlier was published by the National Cancer Institute,isn't it? j ii 3A | It was oublished by the Journal of the American Medical 4 Association, Counselor. 5 O nfcay. 6 A That is a different nublication. 7 D V/el 1, is the Journal of the American Medical Association 8 a credible Publication? 9A JO D with the same footnote, yes, I think it is. T.Vel 1, you would have to -- I | II A You must k n o w -- you must know who are the neonle who 12 are reporting, what do they talk about, how the study was 13 carried out, and ultimately, once we read the report, we 14 will say exactly what I feel about Dr. Hoar's elegant study, j i 15 that it needs scientific verification by others. The proof 16 of scientific work must be proven by others, because we 17 cannot accent it because of the seriousness of the matter. I i 18 Q And didn't Dr. Hoar's ranort , Doctor, say t.hat there is j 19 a six-fold increase between neon le that are exposed to 2,4-D 20 and non-Hodgkin's lymnhoma? 21 A In my recollection, Counselor, what Dr. Hoar included it in her study, included the same three clusters of tumors 23 of Dr. Hardell's study -- Hodgkin's disease, non-Hodgkin's i 24 lymphoma, and soft-tissue sarcoma. And as I indicated 25 earlier when I was answering questions, that Dr. Hoar proved A f*}M* -82- 1 it in her study that she could not find link between Hodgkin's *> disease and Dr. Harden's claim from Sweden. And the same 3 goes for soft-tissue sarcomas, Counselor. 4 O And she cot's find a link between H ,4-0 and non-Hodgkin's 5 lymohoma, does she not? 6 A Counselor, Dr. Hoar's study area involved 2,4-D, involved 7 other chemicals, chloroohenols, involved other tyoe of 8 fungicides, and by her own admission, she said and those 9 who reviewed her oapers said that 2,4-0 was one of the 10 several tilings what those neoole who were- included in his 11 study wore associated with. There' are many, many other i: things in her study referred to. But ultimately, Counselor, 13 as I indicated to you what is troubling the nathologists in 14 this country from ihe lime the oaoer came out., that in Dr. 15 Hoar's study a substantial number of non-IIodgk in 's 1ymohomas 16 are missing. She has almost the same1 number of non-Hodgkin 17 lvmohomas as Hodgkin's disease. And, Counselor, there is 18 something wrong. Something is wrong with this design. Some 19 thing is wrong with the whole first, steo in the study. 20 D And I understand what you to I1 no and I understand what 21 you said on direct oxarninat ion and whal you have .just, roeeat.ef *)T but it comes down to the fact, that 2,4-0 was one of the 23 chemicals that Dr. Hoar in her ronort said is linked to 24 nou-dodgl; in 's lyn!ih<w;i. Now, is that, statement correct or 25 not V IA - 33- V.'hat is correct, Counselor, that 2,4-D was one of the "* several chemicals for those cluster of human beings Dr. Hoar 3 was concerned about -- one of the manv. And I am sure there 4 are many others that nobody ever thought about, because a 5 farmer can be exposed to many things. 6 D That was linked directly, in her opinion in her report, 7 to non-Hodgkin's lymphoma, correct? 8 MR. OP.TEGO: Objection. Asked and answered, Your 9 Honor. 10 MR. GILI-AM: Ho, sir, it has not been answered. 11 THE COURT: Overruled. 12 A Counselor, her studyconcluded that she foundlink 13 between her non-Hodgkin lymphoma cases and those chemicals 14 that wore included in her survey, some sort, of link indeed, 15 as you expressed so well, yes. 16 0 Including 2,4-D? 17 A 2,4-D was one of the several things, yes. 18 O In fact, that was one of the most common, according to 19 her renort, is that correct.? 20 A I don't recall that, but it was one of the chemicals. 21 But in her study, I would not go as a Pathologist beyond where I- stated repeatedly. 23 Q I understand. 24 A That something is wrong with thedesign of that study. 25 Patients with disease are missing from her study, and that 1777 0-1%o I bothers mo. - 8-1- ^ And that renort of Dr. Hoar, or t.hat one finclin'j; of' 3 Di'. Hoar's report is the same finding, virtually, that Dr. 4 Haraell came uo with in his report, is it not, as far as 5 non-Hodgkin's lymnhorr.a and their association to chemicals? j !i j I 6 A More or less the same. See, we don't know precisely 7 what Dr. Hardell's study groun natients wore e.xoosed to. 8 There is a vague descriotion and reference to those, and 9 whether those were exactly the same or very much the same 10 we don't know. What I am savins:, 'ounsc?Ior, is from the i l t ! i 11 beginning of that renort. we are askin': oroof and verification! i: of Dr. Hoar's study. Without that, I think we just have i j | 13 to wait and emit inue rood work for the' hotter of our 14 natients. j I ij 15 ") Just like vou want verification of Dr. Hardell's 16 reoort , correct? 17 A Well, Dr. Hardell's reoort, as I indicated to you, was 18 verified be many, many ooonlc in this country and across 19 the universe, that Dr. Hardell made some* mistake or several :o mis Lakes. :i O Now, Dr. Ma.jdu, is it your opinion that -- or it is your J opinion, isn't it, that non-Hodgkin's lvmohoma and Hodgkin's ; i i! 23 disease are both caused bv infectious agents of some sort j 24 or another? I 25 A Counselor, the prevalent ooinion today in medicine, and 1773 3 1 that goes back to many years when it comes to Hodgkin's 1 disease, and this is tabulated from textbooks to textbook, 3 from papers to miners, to book chunters, that Hodgkin's 4 disease, with all medical nrobabi 1itv, is caused by an 5 infectious agent or several infectious agents. And we wont 6 through that before, that the clustering, the way the i oatients an.' clustered with the disease, tin.- way patients H presented an immune nrofile, the way a patient with Hodgkin's 9 disease follow the pattern of presentation of no 1iomyolitis, 10 the wav the natient with Hodgkin':; disease are exposed to 11 heroes and infectious mono in a much higher rate than 12 oatients without Hodgkin's disease has all indicate that, 1 j | j i 13 as I said, with all medical probability, that is an infectious i 14 agent induced disease. 15 And as of last week, the publication of the American 16 Cancer Society, there are two elegant studies, one from 17 Stanford sponsored by the U. S. Public Health Service, and 1 18 the oilier one is from Italy, and they are talking about the 19 markers, what they found in Hodgkin's cells and infectious f! 20 diseases. Similar cells are immuno1igica11y at the cellular i! i 21 level are marking tlie same way. Mow, this is not new because'1, in the Blood Journal, which is a ma.jor medical .journal from ; 23 West Germany, A iderson published two vears ago -- three years! i 24 ago a paper pointing out that there' is a specific marker in ; 25 Hodgkin's disease cells called "Xl-l antigen," and in patients! 0 - lt b 2- I -86- 1 who had infectious mononucleosis, ;md a number of other viral T infections, and that view was seconded .just this year in a 3 pathology publication in this country, which is the foremost j 4 .journal for pathologists in human ni\ t.ho 1ogy , slating indeed i 5 that there is a marker between cells that are caused 6 definitely and found in infectious, viral infectious con7 ditions, and Hodgkin's disease- j1i j i j 8 Q Whatever the infection is, Doctor, it is something that 9 comes from outside the body, is it not? 10 A In most cases when we? get viral infection., Counselor, , II you are correct, it comes from another person or from our i: surroundings, yes. 13 0 j And if chemicals can be related, and I understand that 14 you say they an* not, but if chemicals could be related to 15 Hodgkin's disease or non-Hodgkin's lymphoma, again those ! 16 would be something that would come from outside the body, 17 would they not? 18 A Well, I don't know what are you implying, Counselor, 19 in due respect -- j 20 O Well, what I am implying is whatever source Hodgkin's 21 disease comes from, or non-IIodgk in ' s 1 ymohoma or Hodgkin's *1 disease, as you talked about, it's something from outside 23 the body, isn't it? I Iji 24 A -V11, the agent, the viral agent or the infectious 25 agents, must enter somehow, unless somebody got it from the 17^0 0 " !% (o 3 i I mother d u r in g pregnancy. You are rig h t about i t , i t must come from somewhere, y e s , u s u a l l y from a n o t h e r p e r s o n . 3Q A ll right. Did I understand your opinion e a r lie r today 4 to be, and I t h i n k I w r o te i t down c o r r e c t l y , th a t in y o u r J 5 op in ion 2,4-D does not cause H o d gkin 's d is e a s e ? Is that 6 your opinion? ! ii |* 7A T h e r e i s no m e d i c a l e v i d e n c e f o r t h a t , C o u n s e l o r , as we 8 a re d i s c u s s i n g t h i s m a t t e r t o d a y . Th e re i s no s c i e n t i f i c j 9 p u b lic a tio n in any c r e d ib le jo urnal or p u b lic a t io n to claim j i i 10 that. i 11 Q Is it your o p in io n , Doctor, that 2,4-D does not cause 12 H o d g k i n ' s d i s e a s e ? 13 A You a re a s k i n g a q u e s t i o n in the s e n s e o f n e g a t i v e . I t 14 i s -- i t i s i m n n s s i h l o t o b e l i e v e t hat , o n t h e f a c t a n d h a v i n g ; 15 t h a t e v i d e n c e w h a t we h a v e . I t i s p o s s i b l e , s u r e l y . E v e r y - jI 16 t h i n g i s p o s s i b l e . I t i s a l s o p o s s i b l e t h a t t h e d r i n k i n g 17 w a t e r o r t h e a i r p l a y s r o l e i n H o d g k i n ' s d i s e a s e . 18 Q 19 A Well, Doctor -- B u t we h a v e , w i t h a l l m e d i c a l p r o b a b i l i t y , a d i r e c t i o n 20 o f t h i n k i n g , a n d t h i s i s n o t n e w , C o u n s e l o r , i n a l l t h e :i t e x t b o o k s w r i t t e n f r o m K u r o n e a n d t h i s c o u n t r y o n i l o d g k i ' n ' s , are s t a t i n g that, that H o d g k in 's d isease, w ith a ll medical J 23 p r o b a b i l i t y , i s c a u s e d b y i n f e c t i o u s a g e n t o r a g e n t s . A n d 24 I t h i n k i n t w o o r t h r e e y e a r s we wi I I h a v e t h e a b s o l u t e 25 p r o o f , a l m o s t c e r t a i n . 1781 o-/W / i IQ D o c t o r , I u n d e r s t a n d what you a r e t e l liner me. -88Do you r e c a l l me a s k i n g v o u v i r t u a l l y t h e s a m e q u e s t i o n s d u r i n g 3 your deposition? ' 4 \ I -- I -- 5D Do y o u r e c a l l me a s k inir y o u : " D o you know o f a n y 6 l i t e r a t u r e that s a y s the chem ical 2,'i-D does not cause 7 H o d g k i n 's d i s e a s e ? " Do you r e c a l l th a t? XA I r e c a l l , and I answ er "Why w o u ld anybody to do 9 s o m e t h i n g l i k e - t h a t o r work on s u c h an o b s c u r e p r o j e c t ? " 10 D W e l l , D o c t o r , l o t ' s r e a d y o u r r e s n o n . s e at. t h a t t i me ' 11 t o t h e q u e s t i o n : " D o y o u k n o w o f a n y l i t e r a t u r e t h a t s a y s 12 t h e c h e m i c a l 2 , 4 - 0 d o e s n o t c a u s e H o d g k i n ' s d i s e a s e ? " 13 A n d , D o c t o r , r e a d a l o n g w i t h me . W a s y o u r a n s w e r at. 14 t h a t l i m e : "'.Veil, i n s c i e n c e i n g e n e r a l , to make s u c h a 15 s t a t e m e n t w o u l d b e i m p r o p e r . S c i e n t i s t s c a n n o t r u l e o u t a n y 16 p o s s i b i l i t y , e v e n i f i t i s a v e r y s l i m p o s s i b i l i t y . " 17 A n d d i d y o u f u r t h e r c o n t i n u e a n d s a y : " I d o n ' t r e c a l l IX a n y t h in g on th a t s u b j e c t , b ecause I th in k that type o f work 19 s h o u l d n o t b e a c c o m p l i s h e d , b e c a u s e t h e p o s s i b i l i t y s h o u l d 20 lx* k e o t o p e n u n l e s s w e h a v e a b s o l u t e * ' r o o f o l s o m e t h i n g . '.Vo 21 m u s t k e e n o u r m i n d o p e n f o r d i s c u s s i o n . " I s that what you s a i d at that time, 'D o c t o r ? 23 A C o u n se lo r, I j u s t s a id b a s i c a l l y the same, that it is 24 p o s s i b l e - - e v e r y t h i n g a n d a n y t h i n g p o s s i b l e ; b u t I am 25 t e l l i n g y o u t h a t , a s I s a i d t h e n , why w o u l d a n y b o d y a n y w h e r e *w e o D-I1& -89- 1 to invest time and energy in such a project? '.Ye have hundreds of other things around us, chemicals one could take, as I ! 3 said. '.Ve could talk about why the air? Prove that why the 4 air is not causing whatever disease. 5 Q And to make a statement that 2,4-D does not cause 6 Hodgkin's disease in science would be improper, because 7 there is always that possibility which needs to be explored 8 until that is ruled out, is that correct, sir? 9A It is possible, but it is not probable?. Wo talk about 10 the other way, Counselor -- what are the Probabilities that 11 such things may cause what? And let us and scientists 12 be concerned about that, not the negative one. Because 13 negative says numberless things may occur to anybody. And 14 again, as a reviewer of scientific papers, of negative 15 claims would come for mo, I would be very critical about 16 it and ask the writers to concern about the positive one, 17 what is causing it? 1 18 Q And there have been studies on that, as well. Studies 19 to try to show or at least have investigated the link 20 between Hodgkin's disease -- whether you agree with them 21 or not -- Hodgkin's disease and exposure to wood, Hodgkin's i disease and exposure to chemicals, Hodgkin's disease and 23 exposure to infectious agents, such as you have talked about. 24 There have been studies in that area, have they not? 25 A V.'e have plenty of that, and so far in all those studies, Q -W M -20- 1 and alm o st e n d l e s s number o f p u b l i c a t i o n s and s t u d i e s , the iI c o n c l u s i o n i s c o m i n g home c l e a r a s we g e t o l d e r and o l d e r j 3 in a few y e a r s , H o d g k i n ' s d i s e a s e i s c a u s e d by i n f e c t i o u s 4 agents. j j i j 5 MR. fiILLAM: T h a t ' s a l l . I b Mil. ORTEGO: No r e d i r e c t , Vour H o n o r . / THE COURT: May t h i s w i t n e s s bo e x c u s e d ? 8 THE WITNESS : T h a n k y o u , Your Ho n o r . 9 MR. ORTECO: Y e s . 10 THE COURT: You may b e e x c u s e d . Do you h a v e any 11 w i t n e s s you c a n c o m p l e t e by n o o n ? i: MR. ORTEGO: J u d g e , wha t I t h i n k I c o u l d d o , I h a v e 13 some d e p o s i t i o n t e s t i m o n y t h a t I can r e a d now. 14 THE COURT: Be f i n e . 15 MR. ORTEGO: J u s t one? s e c o n d , Yo u r H o n o r , a nd I 16 w i l l g e t o r g a n i z e d . 17 THE COURT: L e t ' s do t h i s -- I h a v e a m a t t e r t h a t 1S l i a s bet'll b r o u g h t t o my ai t e n t i o n . We a r e g o i n g t o t a k e a 19 r e c e s s u n t i l 1 :3 0 . I t i s s t i l l not time to t a l k ab out t h i s 20 c a s e w i t h e a c h o t h e r o r a n y o n e e l s e , and I e x p e c t you b a c k 21 i n t h e j u r y box a t 1 : 1 5 and we wi l l c o n t i n u e on at t h a t t. i tnt.*. i I We s t a n d i n r e c e s s u n t i l 1 : 1 5 . 23 ( Ret: e s s at 11 :4 5 a. m. , u n t i l 1:15 p . m . ; onen c o u r t , 24 j u r y and al I nart i e s p r e s e n t ) 178425 THE COURT: P l e a s e be s e a t e d . C a l l y o u r n e x t 0'/M7 1 witness, olease. -91- 1 MR. ORTEGO: Your Honor, wo would like to read 3 some deposition lines of Dr. Butler at this point. This is 4 the deposition and answers of Jamos J. Butler, M.D., taken 5 before Laurie V. Carlisle, a certified shorthand reporter 6 and notary public in and for Harris County in the State of 7 Texas, in the offices of M. D. Anderson Hospital, 1100 8 Holcomb, Houston, Texas, beginning at 2:45 o.m. , on the 9 4th day of August, 1987. 10 JAMES J. BUTLER, M.D. BY DEPOSITION 11 "0 Dr. Butler, did there come a time when you were called 12 upon to make a diagnosis of James Edward Greenhill? 13 "A Yes. 14 "Q And when was that? 15 "A That was in June of 1S73. ! i i 16 "0 And in what wav were you brought into, the diagnostic 17 procedure? 18 "A I got a letter from the pathologist in question with 19 the material that a pathologist needs for the diagnosis. 20 O And who was the pathologist who contacted you? 21 " A D r . K o e u i g . "Q What did you then do when you received the letter from 23 Dr. Koenig? 24 ^ I looked at the material, had additional sections prepared and after 25 a long study made the diagnosis and wrote him. X 32 1 In terns of the material you looked at, could you please i 11 describe in detail what material you looked at? 3 "A I received the slides that had been nrenared from the 4 lymph node bioosy and paraffin block in which the tissue was 5 imbedded and from which the slides were cut. 6 "0 '.'.'hat did you do with the slides? 7 "A I looked at them under the microscone. i 8 "0 Did you stain them or do anything to them other than 9 examine them microscopically? 10 "A Well, I had the blocks. I had additional sections cut 11 and staim'd with the routine stain, which is a homo toxin i: and eosin. The diagnosis made can be a difficult one, and 13 you need frequently to got only sections to look for the 14 cell that 's necessary for the diagnosis of Hodgkin's disease.| 15 " Q And what is the specific cel 1 necessary for the j 16 diagnosis of Hodgkin's disease? 17 "A It's called the "Reed-Sternberg cell." 18 "Q Did you find these Reod-Sternberg cells in the tissue? 19 "A Eventually, I did. Very rare. 20 "O And did you make a diagnosis of the materials that you 21 ^> "A Yes, Hodgkin's disease, lymphocytic predominance type. 23 "Q What is lymphocytic predominant type of Hodgkin's 24 d i s e a s 1? 25 "A That's the tyno of Hodgkin's disease in which, as the I i 86 -93- 1 name implies, there are many lymphocytes. There are also many histocytes. There is a particular type of variant of 3 the Reed-Sternberg cell called the "I.&M cell," and it's very 4 difficult to find Reed-Sternberg cells. 5 "O Did you find the variance both in the slides that were 6 sent to you as well as the slides that you had sectioned? 7 "A I found them more easily in the slides that I sectioned. 8 That's the reason that I generally ask that blocks be sent 9 because we have technicians who are particularly good at 10 cutting the lymph nodes, sections of the lymph nodes. 11 "Q When you made the diagnosis, did you fill out any 12 reports as to the diagnosis or out into writing in some form? 13 "A Yes. I made a report and sent Dr. Koenig a letter. 14 "0 Do you have a copy of the r o o o r t that you made at that 15 time? 16 "A Yes, I do. 17 Could we please have this marked as Defendant's 18 Exhibit No. 1? 19 "Q Doctor, can you tell us what the document we have 20 marked as Defendant's Exhibit 1 is? 21 "A That's my report to Dr. Koenig of the diagnosis on Mr. 11 Greenhil!. 23 "Q And above the place where it says "James Butler, M.D., 24 there is initials. Are those your initials? 25 "A Yes. I7 I "0 n "A And what was the date when this report was prepared? The 2-ith of August, 1979. 3 "Q And does this report accurately reflect your diagnosis 4 after review of the slides of Mr. James Greenhill? 5 "A Yes, it does. 6 "Q I note in that report that you mention what you .just 7 said, that you found, you easily found, L&H variance of 8 Reed-Sternberg cells. 'Vhen you say you easily found, could 9 you explain that, please? 10 "A I found it with ease. I found it without looking. I 11 found it on, I don't know how to say it, except that it's i: not difficult to find. 13 "0 In addition, you did find some more typical Reed- 14 Stern berg cel Is? 15 "A I found a rare' one. It was very difficult in a number 16 of sections. 17 "Q Were there any other bases upon which you reached the 18 conclusion that James Greenhill had Hodgkin's disease? 19 "A No. The diagnosis of Hodgkin's is established 20 histologically . 21 "Q When you say established histologically, could you 1 please explain what you mean by that? 23 "A The cells present and the pattern are those typical 24 o f H o d g k i n ' s d i s e a s e . A c e r t a i n p a t t e r n , c e r t a i n cellular 25 m a k e - u p t h a t ' s c h a r a c t e r i s t i c o f H o d g k i n ' s d i s e a s e when one 1 identifies Reed-Sternberg. -95- > "Q Dr. Butler, is this the Lyoieal way in which pathologist, 3 skilled in analysis of Hodgkin's disease, come to their 4 conclusions, diagnostic conclusions? 5 "A Yes, right. There is really no other way to make the 6 diagnosis. There certainly was no other way in 1979. 7 "Let's mark this as Exhibit ", please. 8 "Q Dr. Butler, could you please take a look at what -.ve 9 have marked as Defendant's Exhibit 2? What is that? 10 "A That is the letter that I wrote to Dr. Koenig in 11 August of 1979 giving the diagnosis on Mr. Oreenhill. 12 "Q By the way, Doctor, when you make your diagnosis are 13 reports of this kind typically made in your activity as a 14 pathologist at the University Texas Medical Branch? 15 "A Yes 16 "0 And are reports of this type regularly maintained in 17 the course of your activities at the University of Texas 18 Medical Branch? 19 "A It's not really the medical branch. It's the Cancer 20 Center. Medical Branch is in Galveston. Yes, I do. 21 "Q For both of these questions we are talking about the University of Texas Cancer Center. In your letter to Dr. 23 Koenig you mention that you agree with his diagnosis of 24 Hodgkin's disease, is tlial eorrerl? 25 " A Y e s . -9 6 - I "0 Dr. Butler, is it fair to say that most cases of T Hodgkin's disease? are considered idiopathic? i J 3 "A Yes. 4 "0' Cou1u "vou pi case explain what idiopathic moans? 5 "A That we don't know the cause of it. ! ! !1 6 "0 Dr. Butler, is it also fair to say that many investi 7 gators in the area have the posture that Hodgkin's disease 8 can be caused by viruses? 9 "A Along with most of the other cancers, that has been 10 postulated, ves. II "Q Dr. Butler, what is the sex distribution of Hodgkin's t | | j i: disease, if you are familiar with it? | 13 "A It's more common in males. It deoends on the age j j 14 group. Overall, though, it's more common in males. i i i 15 "0 And in terms of the age group, is it fair to say there : 16 is a bimodal curve in terms of Hodgkin's disease in the 17 United States population? 18 "A United Statius, yes. 19 "0 Aiui is one of thost' two peaks in the bimodal curve in 20 the population between 15 and 35 years oT ago? 21 "A Yes. "Q Was there any particular reason, Dr. Butler, that other 23 than his acquaintanceship with you, why Dr. Koenig sent the 24 materials to you, Dr. James Butler? 25 at M. D. Anderson 700 H 73 ,' s - W P -37- 1 and of course M. D. Anderson is a cancer hosoital known in the area. 3 "Q Have you yourself done work on Hodgkin's disease?? 4 "A Yes. 5 "Q In fact, are you not the Butler of Lukes and Butler? 6 "A Yes. High t. 7 "Q And what is Lukes and Butler? 8 "A That 's the classification of Hodgkin's. It's the 9 classification from which the "rye" classification, which 10 was a modification of that classification, was made in the 11 mi d-1350s. 12 "Q Without bein^ immodest, and I know it's difficult for 13 yoxi to answer that, you are among the bettor known research 14 on Hodgkin's disease in this country, are you not? 15 A Well, as a result of doing that, I think noople know 16 my name associated with the classification. 17 "Q And about how many times are you called uoon in a year 18 to make a diagnosis of Hodgkin's disease? 19 "A Oh, I would say at least a hundred time's. 20 "Q And this in your standard activity at the M. D. 21 Anderson Cancer Center? "A It is. 23 "0 Doctor, could you very briefly outline your educational 24 background? 25 "A I went, to the University of -- well, my ore-medical Q~\ -98- I education was mainly at the University of Tennessee in > Knoxville. Then I attended the University of Michigan 3 Medical School, and I interned at Cincinnati General 4 Hospital. S "0 You received your medical degree in '52, is it? 6 "A 1952. I interned at Cincinnati General Mosptial 19527 53, then I spent three years at the University of Iowa 8 Hospital in pathology as a resident in pathology, one year 9 at the University of Cincinnati in the Department of 10 Pathology, then three years at the Armed Forces Institute 11 of Pathology in the Hematopathology Branch. 12 "0 Are you certified in pathology? 13 "A In Anatomic Pathology, yes, in 1238. 14 "Q And you are certified by what group, sir? 15 "A By the American Board of Patholory. 16 "Q And that's part of the American Board of Specialties 17 of the American Medical Asssociat ion, is it not? 18 "A It is. 19 "0 How did you become certified? 20 "A By taking the examination. 21 "0 Havi1 you published any materials in respect to "71 Hodgkin's di sense? 23 "A Yes, I havc>. In a.idi tion to the article.' with Dr. Lukes, 24 I published several articles on Hodgkin's disease. 25 "O How long have you been at M. D. Anderson? "A Twenty-five years. -99- "0 Doctor, I notice that you brought with you another document. What is that? "A That's my Curriculum Vitae. ''Could we please mark this as Exhibit 5? "O Now, Doctor, what we had marked as Exhibit 5, could you describe what it is? "A Well, it's a description of my education, training and work I have done while in medicine, and the organizations I belong to. j "Q And what caused you to prepare this document? "A The University requires you to have a curriculum vitae, and there are certain timc?s when you have to have one to J ji I give to people. So it's easiest .just to prepare it ahead ( of time. "Q And is it fair and accurate representation of your training and activities? "A It is. i "0 When was this one prepared, do you know? "A Well, it was updated last week." jij '111. ORTliGO: That concludes the questions by our j office. The following questions were hy Mr. Baldwin. MR. GILLAM: Your Honor, before we continue this, we have' been provided by Counsel a list of linos he wishes to introduce from our cross-examination. if I am correct here, t* -100- 1 jj they i' intend to offer parts of four pages of our cross- 2 l' examination. Our cross-examination totals twenty-four pages, j! 3 >! and under Rule 32 of the federal Rules of Civil Procedure, 4 we would like to offer our entire cross-examination at this 5 time. 6 THE COURT: Under the Rule of Completeness? 7 MR. GILLA.M: Pardon me? 8 THE COURT: Under the Rule of Completeness? 9 MR. GILLAM: Yes, sir. 10 THE COURT: All right. 11 MR. ORTEGO: .ludge, I have no nvoblem. I will 12 read the lines I wish to designate and they ran read whatever 13 lines they want after. I don't have any problem with that. 14 THE COURT: Go ahead and do it that way. 15 MM. ORTEGO: Okay. 16 CROSS EXAMIMATION OF JAMES J. BUTLER, M.D., BY DEPOSITION 17 (Read by Mr. Ortego and Mr. Brown:) 18 "O And isn't it true it's a diagnosis that reasonable 19 pathologists might disagree on? 20 "A I think pathologists will disagree on many diagnoses. 21 I think the combination that we've talked about is diagnostic n and I don't think anyone? would disagree with this combination 23 "Q My question is, don't you agree with me, sir, that 24 t h e r e i s a d i a g n o s i s l h a l r e a s o n a b l e p a t h o l o g i s t s might 25 d i s a g r e e a b o u t ? n 77 734 D- 1 "A *> "Q Are you talking about this individual case? Yes. -101- | 3 "A I don't think so. 4 "Q As a mutter of fact, you don't propose to tell us or the 5 jury anything about the cause of Hodgkin's disease here? 6 "An objection. 7 "0 As you sit here, do you? 8 "A I don't, think anyone knows the cause of Hodgkin's 9 disease. 10 "O One other thing, Doctor, would you look at your C.V. 11 and tell me the numbers of papers that relate to Hodgkin's i: disease that you've written? 13 "A Seven, eight, nine, sixteen, twenty-two, twenty-three, i 14 twenty-five, twenty-seven, twenty-nine, thirty-two, thirty- ! 15 nine, forty-eight, forty-nine, fifty, sixty, seventy, seventy- 16 five, seventy-eight, seventy-nine, eighty-one, eighty-nine, 17 and then there are others in books. Theyare the primary 18 articles, and there are some in books,- some things like that. 19 "Thank you." 2 0 MM. ORTEGO: At this time, Your Honor, I would like :i to offer into evidence Defendant's Trial Exhibits 12 a, 12 b *> ar.ri 12 c , which are the exhibits which we referred to during 23 the reading of the deposition lines. It's the report from 24 Dr. Butler regarding the diagnosis of Hodgkin's disease; 25 it's his letter to Dr. Koenig advising Dr. Koenig of the -102I Hodgkin's disease diagnosis, and his Curriculum Vitae is "c." *> THE COURT: Any objection? They will be admitted. 3 Are those attached to the deposition? 4 MR. ORTEGO: They were, Your Honor. 5 THE COURT: All right, they will be admitted. Do 6 you wish to enter at this point -- MR. GILLAM: Yes, Your Honor. 8 THE COURT: -- your portion of the deoosition? 9 MR. GILLAM: Yes, sir. 10 THE COURT: All right. 11 MR. GILLAM: For benefit of the Jury, this is i: the entire cross-examination of Dr. Butler conducted by 13 Mr. Baldwin right after the questions by those lawyers. 14 CROSS EXAMINATION OF JAMES J. BUTLER, M.D., BY DEPOSITION J5 (Read by Mr. Gil lam and Mr. Baldwin, Jr.) 16 MR. GILLAM: Beginning on Page 23: 17 "Q Doctor, I have a few questions for you. First I want 18 to ask you general questions about Hodgkin's disease. Do 19 you agree that Hodgkin's disease is a form of lymphoma? :o "A Yes. :i "Q Really, there's no difference between it and other i lymphomas except the histologic appearances? 23 "A That's a very broad statement. Hodgkin's has some 24 characteristics aside from the histological findings. If 25 you mean by that that they are both malignancies of the.* -103- ] lymphoreticular system, they are similar. But Hodgkin's I disease has certain characteristics that you don't i'ind 3 in the other types oi' lymphoma. ' 4 "0 You mean by histologic characteristics? S "A No, no, characteristics of the patients' in general, 6 certain immunologic differences. 7 "Q Like what? 8 "A That they generally have a defect in long-term 9 reactions, in reactions involving key lymphocytes, that i I I i1 iI j ! } I 10 is the lesions, such as a reaction to tuberculosis and 11 other antigens, and chronic antigens such as that. i ! i i: "Q Do you agree that Hodgkin's disease is a form of cancer?] 13 "A Yes. 14 "Q Do you agree it's a form of cancer that involves the 15 lymph system? 16 "A Yes. 17 "0 Do you agree that it is a form of cancer that's of the 18 soft tissue? 19 "A Well, I think soft tissue to a physician, to most :o physicians, would indicate the tissues outside the lymph 21 nodes and other perimeter organs, so that it may involve >1 soft tissue at times, I think the characteristics, it's 23 best slated as involving the' lymphoid system. 24 "Q Well, it dot's involve other organs at t.imes, does it 25 not ? 1797 1 "A 2 "Q Yeah. Like the spleen and the liver? -104- 3 "A The spleen and the liver is both part of what in the 4 old days was called the reticuloendothelial system. 5 Well, is the spleen a soft tissue? 6 "A 'Veil, if you mean it's not hard, it's soft in that 7 sense. But in medicine wo don't soeak of the spleen as X being soft tissue. Soft tissue are the tissues from which 9 sarcomas arise, muscle, fibrosis tissue, nerve tissue, like 10 that. 11 "0 The spleen is not bone? 12 "A In that sense, it's soft tissue. 13 "0 Sir? 14 "A In t ha 1 s e n s e , you know, in the gross s en se , il ' s not 15 hard. 16 "Q That's what I am talking about. 17 "A Yes. Well, of course the bone marrow is part of the 18 1ymphoreticu1ar system, so that's an area that you normally 19 find Hodgkin's, you may find Hodgkin's. 20 "0 When you find it there, it's advanced, isn't it? 21 Yes. "Q Would you agree that lymphoma is a can.cer of the lymph 23 system? 24 "A Yes, I would. 25 "Q Would you agree that the cause of lymphoma is the -105 I interaction of some environmental factor to material cells 1 of the Datient? 3 "A What was that again -- interrouct ion of -4 "Q Some environmental factors to the tissue, or cells, of j 5 the patient? 6 "A I don't think we know that. 7 "Q You can't say that it is or isn't, can you? 8 "A That's right, it's uncertain. 9 "Q And the same would be true of Hodgkin's disease, isn't 10 it? 11 "A That's true. i; "Q Don't know whether or not it's the interaction between 13 environment and the cells or the tissue of the patient, do 14 vou? 15 "A I'd agree, we don't know. 16 "Q As a matter of fact, you don't know anymore about the 17 cause of Hodgkin's disease than you do the cause oT other 18 cancers, do you? 19 "A That's right. 20 "0 Now isn't it true, then, that, I believe you said this, 21 but I'll ask you again because I'm nol sure' I asked you specifically, isn't it true that Hodgkin's disease is a 23 form of lymphoma? 24 "A Hodgkin's disease is a form of lymnhomu, yes. 25 "0 Which we characterize as cancer of the lymph system? I "A *> "0 Yes. -106- And do you agree that the typical way of diagnosing j 3 differentiating Hodgkin's disease from other tyoes of 4 lymphoma, is the characteristic Reed-Sternberg cell? 1 j 5 "A You have to have the Reed-Sternberg cell in the proner I I 6 background of one of the types of Hodgkin's disease. So j I 7 it's a combination of the cell being in the right background. S "Q And that's this type we are talking about now? 9 "A This is one of the types of backgrounds that you need, 10 yes. 11 "Q This is one of the types that you have to have, the i: Reed-Sternberg, to make the diagnosis? 13 "A Any type of Hodgkin's, you have to have the Reed- 14 Sternberg in the right background. I is "0 I thought that's what I asked you, but maybe you 16 misunderstood me, so let me ask you -- 17 "A No, my understanding of your question was the finding 18 of Reed-Sternberg would establish the diagnosis, and I don't 19 think the Reed-Sternberg alone would establish the diagnosis. 20 "Q But you can't make the diagnosis without the Reed- 21 Sternberg oo 11? "A I'd agree with you, yes. 23 "0 So you must have the Reed-Sternberg cell in order to 24 make a diagnosis of Hodgkin's disease? 25 "A That is correct. -107- I "0 Excuse me. If my questions are awkward, I'm not a "> doctor. And the typical Reed-Sternberg characteristic cell 3 is not hard to identify, is it? 4 "A I would say that there are different criteria for 5 Reed-Sternberg cells. 6 "Q I am talking about typical? 7 "A Typical is not hard, that's right I would agree. 8 "O First, second year medical students can do that, 9 can 't they? 10 "A No, I don't think so. I say that because I am involved 11 in teaching. We have fellows in training, pathologists i: in training, and some of them seem to have some difficulty 13 in recognizing what I think Reed-Sternberg cell is. 14 "Q I am talking about the typical Reed-Sternberg cell? 15 "A Yes. 16 "O When you teach histology in medical school? 17 "A Histology in medical school is normal histology. It's 18 only in pathology, and in some modi cut1 students speaking, 19 it's difficult enough for pathology, people in pathology 20 to learn to recognize the Reed-Sternberg. I think that the 21 medical students in general if shown a cell and said "this is a Reed-Sternberg," would agree with you. But to have 23 them recognize it, I think it would be? very difficult. 24 "O What is a Reed-Sternberg? 25 "A 'Well, that's a good question, too. There is no 1801 O-t&t -108- 1 agreement as to what type c e ll a R c e d -SL e m b e rg c e ll is . 2 "Q So th e re i s no agreem ent? 3 "A You know w h a t i t l o o k s l i k e , but t h e c e l l of' o r i g i n ' 4 i s n ' t known. j I j 5 "Q So i f I u n d e r s t a n d what you a r e s a y i n g , t h e r e i s no 6 c r i t e r i a by w h ic h you as a p a t h o l o g i s t can i d e n t i f y a Reed- 7 Sternberg cell? 8 "A No. N o , n o . T h e q u e s t i o n a s I u n d e r s t o o d i t i s do we 9 know what the R e e d - S t e r n b e r g c e l l i s ? And th a t i m p l i e s to 1 10 me t h a t we k n o w w h a t t y p e o f c e l l . I s i t a l y m p h o c y t e , i s i t ! 11 a h i s t i o c y t e , w h a t t y p e o f c e l l i s i t ? We d o n ' t k n o w t h a t , I2 b u t l h o a p p e a r a n c e o f t h e R e e d - S l e r n b o r g c e l l we k n o w . S o 13 t h e r e a r e t w o d i f f e r e n t q u e s t i o n s t h e r e . 14 " O I s t h a t t y p i c a l ? 15 " A 16 " Q I t 's typical. Is it easy to see what the c r i t e r i a i s as far as i !i I 17 i d e n t i f y i n g a R e e d - S t e r n b e r g f r o m a p p e a r a n c e ? 18 " A R i g h t . Y e s , t h e c r i t e r i a a r e w e l l - d e f i n e d . 19 " 0 And what i s t h a t ? 20 " A I t ' s a c e l l th a t has one o r more th at has two o r more 21 n u c l e i s e g m e n t s , e a c h o f w h i c h c o n t a i n s a n u c l e u s , a l a r g e n u c l e o l u s , w h ic h i s g e n e r a l l y s a i d to be a t l e a s t a q u a r t e r 23 o f t h e s i z e o f t h e n u c l e a r s e g m e n t i n w h i c h i t i s l o c a t e d . 24 " 0 Are Reed-Sternberg c e l l s sometimes referred to as 25 g i a n t c e l I s " ? 1 "A They are giant cells, yes. -109- 2 "Q They are very large, aren't they? 3 "A Yes. 4 "0 Can you have a Reed-Sternberg cell with only one 5 nucleus? 6 "A No. '.Veil, we are talking about -- when you talk about 7 a Reed-Sternberg cell to establish a diagnosis, you are 8 talking about the diagnostic Reed-Sternberg cell. There 9 are variants of the Reed-Sternberg cells that have certain 10 meanings. The cell that has the single nucleus, mononuclear 11 cell. 12 "Q That's one, right? 13 "A Is one -- is one in which put in the proper background 14 alerts you that this is probably Hodgkin's disease and that 15 you should look longer. Some people call them "look-longer 16 cells." You look longer to find a diagnostic Reed-Sternberg 17 cell. 18 "Q Well, do you agree that mononuclear forms of Reed19 Sternberg cells are found in the typical lesions of Hodgkin's 20 disease? 21 "A Yes, but they are found in viral diseases, also, so they cannot be used for diagnosis. 23 "Q So when you said that you had to have two nuclei, you 24 didn't mean that? 25 "A Yeah, they have to have -- well, I said they have two or -110- I rr.ore nuclear segments. Thev mav or r.av not be Joined. 1 "C Mononuclear implies one, doesn't it? 3 "A Rimht. But 1 have had -- there are oeoole that say 4 if you section a paraffin, which is the block you out the 5 tissue in, that cells that look 1ike they have separate 6 nuclei will orove to be onlv one. ".'hen you talk about a 7 mononuclear cell you are talking about a nucleus that's 8 round, has a nucleus in it, is not lobated. You have to 9 have nuclear segments for a Reed-Sternber^ cell. 10 "O But it's generally resumed as one nucleus, mononuclear 11 cell ? 12 "A Mono is. Yes, mono means one. Not all Reed-Sternberej, 13 or at least from the sections you look at, contain only one 14 nuc1p u s . 15 "0 But they can contain one nucleus? 16 "A They can contain one lobulated nucleus, ri.yht. 17 "0 So you weren't entirely correct a minute ar;o when you 18 said they contained two nucleus or more always? 19 "A Two or more' nuclear segments. Bv common understanding, 20 mononuclear cel 1 rel'ehs to, as l say, a round nucleus that 21 contains a sinyle nucleus. Vihen you have a cel I that, has only one nucleus but is lobated, then pathologists don't 23 refer to that a- a mononuclear cell. 24 "Ci And what else is characteristic of the Reeci-Sternbertt 25 cell? -1111 "A The cytoplasm is. It's generally said to be amphophilic, n that's sort of a bluish oink, but it deoends so much on the 3 staining characteristics o f the c a s e , which goes back to the 4 fixation, etcetera, so that I don't think you can depend on 5 that part of it. 6 "O You can't depend on what? 7 "A The aooearance of the cytoplasm. 8 "0 Would you draw me a gross drawing on this? Let's mark 9 'Plaintiff's 1, just a gross drawing of a typical Reed-Stern- I 10 berg cell, and would you draw another cell out beside it so ) 11 we can contrast the size, since you said it was a large cell i: or a giant cell, I believe? 13 "A That would be a lymphocyte. 14 " L e i ' s m a r k o n t h e r e ? P - 1 . 15 "0 Now what is it? You have written on Plaintiff 16 Exhibit 1 "R.S. Cell," have you not? 17 "A Reed- Sternberg, yes. 18 'D And "lymphocyte" here? 19 "A Lymphocyte, yes. :o "Q Tha t's typical lymphocyte?? :i "A Vos. "0 :-Vhere is the nucleus of the lymphocyte roll? 23 "A Here. 24 "0 A rat her large' nucleus? 25 "A Wei 1, it's not too largo, but it's verv little Qi D ~/m cvtonlasm. " Q Is the cytool asm the area outside the nucleus? -112- "0 And here you have shown two nuclei? v "A No, no nuclei. There are nuclei and the nucleus. Actually that's wrong. "0 So you have a typical shaped nucleus? "A Right. "0 And this tyoe is "U" shaped. Are they always "U" shaped? "A No. "0 They nay be any tyne shape? "A You can have these not .joined here. "0 In that event you'd call it. two nucleus, wouldn't you? "A Two nuclei. You can have multiple. They .just have to have the large nucleus. "Q What is difficult about that for a pathologist to distinguish? "A It's not difficult if he sees one that looks like that. "Q That is the one? "A It's making certain you have one that looks like that. "Q ^o you remember or did you have one like that in this? "A I don't remember it was exactly like that. n vwi 1 -- "A It was close to that. It was a diagnostic cell. OU'-OJ *'*}> "0 It was not a true Roed-Sternberg cell, was it? -113- "A Yes, it was. You can't make the diagnosis without it. "0 I thought you said in your report it was a variant? "A No, no, a rare diagnostic cell. "Q Said you easily found L&H variants of the Reed- Sternberg cells? "A Right. "0 So you wouldn't characterize those as true, typical Reed-Sternberg? "A No, they are variants. "O Can you read this reoort, quote: 'The proliferation of lymphocytes and histiocytes with easily found L&H variants of Reed-Sternberg cells'? "A R ig h t . "0 And that's not a typical Reed-Sternberg coll then, is it "A That 's riglil. "Q And you cannot on that alone -- on that alone, Doctor, you can't make the diagnosis, can you? "A No. "Q The only way you can make Liu* diagnosis is that you found a rare Roed-Sternberg cell? A Ri-ht. O Is that what you said? A That is correct. q Now when you say rar', how many did you find? 1807 /)-/?#? -114- "A I cannot tell you. Less than two or less because -"Q You found two or less? "A Yes. I don't remember whether it was one or two the first slide. "O What you referred to as Reed-St ornberg cells? "A Yes, diagnostic Reed-Sternberg cells. "Q And were they in the slides that had already been sent to you or were they in the sections you had cut? "A The sections that I cut. I think the outside pathologists had a oroblem, and that's the reason he sent them. He couldn't find them in his slides. "Q At the very best, this is a sonhisticated diagnosis, isn't it, Doc:Ior? "A Yes. " Q I t ' s a d i f f i c u l t d i a g n o s i s t o make.*, i s n ' l i t ? "A Yes. "0 And isn't it true that it's a diagnosis that reasonable pathologists might disagree on? "A I think pathologists will disagree on many diagnoses. I think the combination that we talked about is diagnostic, and I don't think anyone would disagree with this combination "Q My question is don't you agree with me, sir, that this is a diagnosis that reasonable pathologists might disagree about ? "A Are you t a l k i n g about t h is in d iv id u a l case? j I 1 "0 Yes. -115- ; "A I don' t think s o . 3 ; "Q 1 4 ; "A 1 1 5 ' "Q Well, they did, d id n 't they? They did not have the s l i d e s that I have. W e l l , I am t a l k i n g a b o u t m a k i n g a d i a g n o s i s o f t h i s i 6 ; case and whatever means at hand. They had the same t i s s u e - ^ you had, d i d n 't they? Did they have the same or d i f f e r e n t 8 ; t i s s u e than you had? 9 "A They had the same t i s s u e . They d id not have th e same 1 ;i s l i d e s . i i11 ii ! " 0 B e c a u s e you c u t y o u r own t i s s u e ? 1 : ii i: i "A Yes. 13 1 " 0 S o at l e a s t t h e p a t h o l o g i s t s t h a t s e n t t h i s t o yo u w a s 14 a D r . K o e n i g , a p a t h o l o g i s t ? 15 j " A i Yes. ! 16 - " Q He w a s n ' t s u r e what th e d i a g n o s i s was, was he? i ! . 1? "A A p p a r e n t l y n o t. O t h e r w i s e he w o u l d n ' t have s e n t i t . ! 111 | 18 j " 0 And as a m a t t e r o f f a c t , he had a p a t h o l o g i s t lo o k at 19 | i t h i m s e l f , d i d n ' t h e , a n o t h e r p a t h o l o g i s t ? | "A I t h i n k he had a l l the members o f h i s g r o u p l o o k at o1J ; t hem. " Q A n d t h e i r d i a g n o s i s w a s 1ymnh n o d e , l e f t s i d e o f t h e jii j 23 n e c k , m a l i g n a n t l y m p h o m a , l y m p h o c y t i c , t y n e , d i f f u s e ? "A \'o , t h a t was not t h e i r d i a g n o s i s . T h a t ' s no t t h e l e t t e r . : That i s from the o th e r p a t h o lo g i s t . ;5 i i ! 1 T h a t ' s r.ot f r o m D r . | j ' Koenig:, if you will notice the signature on that. -116- 2 "0 I understand that. My question was that it came from 3 the pathoj ogists that he had up there with his group, didn't 4 it? 5 i' "A "0 No. Where did this come from? "A I don't, know if they say. St. Mary':s Hospit. a. "0 In Arkansas?" 9I 10 ji " G 11 "A MR. GILLAM: Continue on Rage 43. You see this report from Gerald Stolz? Yes. "Q 12! 13 i I "A Is he a pathologist? He says he is. I don't know him personally. 14 ' " O That was sent to y o u , wasn't, it? 15 "A Dr. Koenig sent it to me. 16 "Q It came out of your file, didn't it? 17 "A Yes. 18 "Q This is Do fondant's Exhibit 4. What is he saying in 19 | di agnosi s? 20 "A He says: 'Lymoh node left side of the neck, malignant 21 lymohoma, lymphocyte type diffuse.' " Q Does it say anything about Hodgkin's disease? "A He just says he can't identify cells that have 24 characteristics of Rood-Sternborg cells, so he didn't see 25 any. ii j i! 0 ~/t?3 -1 171 "0 As a matter of fact, he said 'no cells are identified "> which have definitive characteristics for Reed-Stembers 3 cells,' didn't he? 4 "A Right. S "0 And that's what you listed as a minimum criteria for 6 diagnosing Hodgkin's disease, didn't vou? 7 "A Correct. 8 "0 So that pathologist did not diagnose Hodgkin's disease, 9 did he? 10 "A No, he didn't. 11 "Q And Dr. Koenig wasn't sure, was he? 12 "A Correct. 13 "Q So now we've got Dr. Koenig as a nathologist -- 14 "A Yes. IS "0 -- we've got three oatho legists looking at the tissue 16 and three different ooinions, don't wo? 17 "A They did not see the sections that I cut. 18 "0 '.Ye've got three doctors looking at the tissue from this 19 man? 20 "A Y e s . 21 "Q ^*> "A And three different opinions? They weren't looking at the same material, so I don't 23 think they are comparable. 24 "0 I will reask my question. V.'as their opinions the same 25 or different than yours? O-ffl1/ "A They are different, certainly. -118- "Q All right. Have you ever heard ol a Dr. Kevin Hanley in Denver? "A No, I haven't. "Q Or Dr. Meyer in Denver? "A No, I haven't. "Q Or Dr. Howland in Denver? "A No, I haven't. "Q And if they wrote a reoort that said it was not Hodgkin's disease, that would still be different, wouldn't it? "A It would, certainly. "0 Do you agree, Doctor, that the special literature states that Hodgkin's disease is an environmental disease? "A I don't knew that the literature says that. "0 You don't know whether it is or isn't? "A R i ghl . C o r r e c t . "0 As a matter of fact, you don't pronose to tell us or the Jury anything about the cause of Hodgkin's disease here, as you sit here, do vou? "A 1 don't titink anyone knows the cause of Hodgkin's disease. "Q But you do know that Hodgkin's disease is a form of i cancer of the lymph nodes? iI "A Yes. . 1812 O-Kfr -1191 "'1 A n d t h a t l y m p h o m a i s a T o r n o f c a n c e r o f t h e l y m p h - nodes? Is that righ t? 3 "A i 4 T hat's correct." MR. GILT,AM: And I b e l i e v e ' t h e r e s t o f t h e 5 ! d e o o s i t i o n was o f f e r e d by - - 6 MR. ORTEfiO: W i l l you f i n i s h t h e l a s t two 7 q ue stion s? There are i 8 i! g o i n g t o r e a d a l l t h e I! 9 ii MR. G I L L A M : two q u e s t i o n s l e f t , and you w ere cross. T h ose two you a l r e a d y rea d ? 10 :: MR. ORTEGO: Y e s . 11 j| 1 MR. G I L L A M : O ka y . 1- || MR. BALDWIN , S R . : Y o u r H o n o r , I o b j e c t t o i t i f I! 13 i t h a s a l r e a d y b e e n r e a d . N. THE COURT: Go ahead.Read i t . 15 MR. G I L L A M : I am g o i n g t o r e a d i t a g a i n , s u r e . 16 " Q O n e o t h e r t h i n g , D o c t o r , w o u l d y o u l o o k a t y o u r C . V . 17 a n d t e l l me t h e n u m b e r s o f t h e p a p e r s t h a t r e l a t e t o I 18 j H o d g k i n ' s d i s e a s e t h a t y o u h a v e - w r i t t e n ? I 1 19 ! " A Seven, eight, nine, sixteen, twenty-two, tw e nty-th ree, :o t w e n t y - f i v e , t w e n t y - s e v e n , t w e n t y - n i n e , t h i r t y - t w o , t h i r t y - 31 ; n i n e , I ' o r l y - e i g h l , f o r t y - n i n<*, f i f t y , s i x t y , s e v e n t y , s e v e n t y 33 | f i v e , s e v e n t y - e i g h t , s e v e n t y - n i n e , e i g h t y - o n e II 33 ,j A n d t h e n t h e r e a r e o t h e r s i n b o o k s . They are and the eighty-nine p rim ary 34 a r t i c l e s , a n d t h e r e a r e s o m e i n b o o k s a n d t h i n g s l i k e t h a t . " MR. G I L L A M : Y o u r H o n o r , t h a t c o m p l e t e s t h e r e a d i n g i of the entire deposition. -1 20- THE COURT: C u l l yo u r next w i t n e s s . MR. O.RTEGO: Y o u r H o n o r , t h e D e f e n d a n t c a l l s Andrew J. Watson. (The 'Witness is sworn.) MR. 0RTE0Q: May I , Y o u r H o n o r ? THE COURT: Yes, you nay proceed. A N D R E W .J. WA T S O N h a v in g been duly sworn, t e s t i f i e d as fo llo w s: DIRECT EXAMINATION BY MR. ORTEGO: Q S i r , can you p l e a s e s t a t e y o u r f u l l name f o r th e r e c o r d ? A My name i s A n d r e w J. W a t s o n . 0 And how o l d a r e you, s i r ? A S i x ty- s i x . Q And when were you born and where' were you b orn ? A I w a s b o r n i n "'av i s b u r g , M i c h i g a n , a s m a l l t o w n i n s o u t h e r n M i c h i g a n , A u g u s t 1, 19 21 . Q And what i s your e d u c a tio n a l background, s i r ? A 1 grew up on a s m a ll farm in s o u t h e r n M i c h i g a n . F o l l o w i n g h i g h s c h o o l 1 went Lo M i c h i g a n S t a t e U n i v e r s i t y and re c e iv e d a B a c h e lo r o f Science' Degree in A g r i c u l t u r e . F o llo w in g that I went in to the Army, U.S. Army, d u r in g W orld War I I f o r about th ree and a h a l f y e a r s . Went back to grad u ate school at M ichigan S ta te U n iv e r s it y for three 1C 1 A _ 1 y e a r s a n d o b t a i n e d my P h . D . -121- 0 And what d id you r e c e i v e vou Ph.D. in? 3A T h e ^rPh 0 . w a s i n t h e S c h o o l o f r i cu 1tu re in the f i e l d 4 of S o il Science. 5 D A f t e r you re ce iv e d your P h .D ., I ttuess you are Dr. 6 Watson -- Dr. Watson, what d id you do? 7A I i m m e d i a t e l y j o i n e d the Dow C h e m ic a l Comnany. 8D And what y e ar was th a t ? 9A 10 Q 11 A 12 Q In June o f 1949. What i s your c u r r e n t s t a t u s ? My c u r r e n t s t a t u s , I am r e t i r e d . And when d i d you r e t i r e from th e Dow C h e m i c a l C om pan y? 13 A 14 Q I r e t ir e d in January o f '86. And how many y e a r s w e re you w i t h th e co m p an y? i IS A T h i r t y - s i x and a h a l f y e a r s . j 16 Q v;hat do you do now l o r a l i v i n g ? 17 A I am r e t i r e d , a n d e n j o y e v e r y m i n u t e o f i t . 18 0 Okay. What do you do with your time in retire m e nt 19 b e s i d e s -- 20 A M o s t l y v o l u n t e e r w o r k . I am v e r y a c t i v e i n t h e l o c a l 21 L i o n s C l u b , a n d d o , h a v e d o n e , a srna i 1 amount , o f c o n s u l t i n t i fo r Dow. 23 Q W h a t t y p e o f c o n s u l t i n g have; y o u d o n e f o r D o w s i net* 24 y o u r r o t : r e m o n l ? 25 A Mv c o n s u l t i n g e f f o r t s have b o o n i n t h e a r e a a s a ji -122- ! I technical adviser for agricultural chemicals relating to o.laims in 1itiga t.ion. 3 0 When you started with Dow in 1949 what did you do with 4 Dow ? 5 A I was a field researcher with weed killers, with 6 herb icides. 7 Q And did that include 2,4-D? 8 A Yes. In fact, the very first chemical I ever worked 9 with was 2,4-D with Dow-. JO Q What kind of field research would you do? 11 A Well, of course field research with herbicides, 12 especially new products, involves applying these chemicals 13 through usually spray machines to the weeds and crops on 14 wh ich you are st udy ing. 15 oV 16 A And wha l would you do with the data? The data accummu1ales, our reports v/ould be prepared ' ii 17 at the end of the project, and they would be reported into i 18 the company and they in turn would bo used for -- normally, j j 19 they would be used for application for registration to the 20 Environmental Protection Agency. 21 O And the type of things you were testing, what were you testing about these weed killers? 23 A Well naturally as you are developing new products 24 you had to test for efficacy and safety of them on the* crops i 25 and the effect on tho weeds, the* effect on the plants. b c-/m 1Q 2A How long were you in field research? I was in field research until 1966. -123- 3 Q AncUihat time between 1949 and 1966 were you working 4 in the field testing the efficacy of these herbicides? 5 A Yes. And much of the time with 2,4-D. 6 Q Would that be about aDproximately seventeen years? 7 A Yes. 8 Q Have you personally actually used them and applied them? 9 A Yes, I have, but most frequently during that period 10 especially I was working with 2,4-D products. II Q Did you mix them? 12 A Yes. 13 O Why don't we talk about what is a herbicide or a 14 weed killer? IS A Herbicides are, technical 1v , are any chemical that will 16 control weeds or will kill plants is the term for herbicide. 17 Q How does it work? 18 A Well, 2,4-D in particular is what I would like to 19 address. First we need to realize that plants have a 20 naturally occurring chemicals in their systems which control 21 the growth of the plant. And those chemicals are known as plant auxins. 23 Q Can you spell that for us? 24 A A-u-x-i-n-s. And they regulate the growth pattern or 25 the growing system of the' plant. 2,4-D is a synthetic plant f i Iff O 'l f d o -1241 growth re g u la to r, and th a t's what these th in g s are c a lle d , " p l a n t g r o w t h r e g u l a t o r s . " And 2 , 4 - D i.s a s y n t h e t i c m a t e r i a l 3 which is^ v e ry , very a c tiv e as a p lan t grow th re g u la to r, and 4 when 2,4-D is a p p lie d to s e n s itiv e p la n ts, it a c ts as the 5 plant growth r e c u la to r, it o v e rrid e s the normal p lan t growth 6 reg u la tin g system and the p lan t ju s t goes -- so rt of goes 7 w ild. N orm ally i t ' s o v erly stim u late d , term inal growth sto p s, 8 t h e p l a n t s t e n d t o t w i s t a n d c u r l a n d t h e l o a v e s c u r l . Ar.d 9 if anyone has a p p lie d th e se ch em icals to t h e i r lawn, to 10 d a n d e l i o n s i n t h e i r l a w n , y o u h a v e o b s e r v e d t h e t w i s t i n g 11 a n d c u r l i n g . A n d f o l l o w i n g t h i s , n o r m a l l y t h e c o n d u c t i v e 12 t i s s u e s o f t h e p l a n t a r e b l o c k e d a n d t h e p l a n t s l o w l y d i e s . 13 D Now is c e r t a i n h e r b i c i d e s o r wood k i l l e r s l i k e 2 ,4 - D 14 s o 1 o c t i V O ? 15 A Yes. 16 0 '-hat '.lot's t h a t m e a n ? 17 A I t m e an s t h a t i t a f f e c t s some' p l a n t s m uch m o re th a n 18 o t h e r p l a n t s , a n d 2 , 4 - D i n p a r t i c u l a r i s v e r y a c t i v e , h i g h l y 19 a c t i v e . I n t h e s e n s i t i v e p l a n t s t o 2 , 4 - D a r e t h e h r o a d l e a f 20 t y p e p l a n t s , i n c o n t r a s t t o g r a s s - t y p e p l a n t s . 21 Q A f te r you l e f t th e f i e l d r e s e a r c h what d id you do Dow n e x t? 23 A I jo in e d a group known as the A g ric u ltu ra l Product 24 25 r e s p o n s i b l e f o r c o o r d i n a t i n g r e s e a r c h p r o g r a m s w i t h o t h e r -125- I field research people1, as we 11 ;is university research people. pO A'hat ty p e o f u n i v e r s i t y r e s e a r c h p e o p l e would you 3 c o o rri i n,*J p v.'i t h ? 4 A V/e11, in the area that I was working, frequently we 5 would work with the university people, like Texas A&M 6 researchers, or other university research people who were j 7 interested in the sane projects and programs that we were. 8 Q How long were you in the ag development grouo, 9 agricultural? 10 A II Q I was there until 1974. Now when you say you were doing this research, this j 12 was for the efficacy or the effectiveness of the product? 13 A And the response of plants to our herbicides. 14 Q After 1974 where did you go next with Dow? 15 A I was still in the Agricultural Products Department, 16 but I served as a technical adviser for the department as 17 it related to herbicides. 18 0 V*'hat type of technical advice would you give? 19 A Well, I was involved primarily at that time, or during 20 that period, with the technical aspects relating to product 21 damage complaints and claims, troubleshooting, you might say. n 0 Can you give us an example? 23 A As it relates to, oh, possibly there would be a 24 comnlaini of sprav drift from an aerial application of 25 2,4-D into a sensitive crop. 1$ 19 ]0 -126- Can you tell us -.'.hat spray drift is for those of us > who don't know? 3 A A 1^ right. Of course, in this part of the country 4 much of the spraying is done by aircraft as they snr-ay 5 range and pasture in particular. Very small amounts of 6 liquid are used, o fttintimi's maybe Cron one <> five gallons 7 of spray oer acre. The oarticles are very small as they 8 come out of the aircraft, and of course if there is a cross 9 wind or a little' wind, these particles tend to be blown and IO move with the wind. And if there isn't, extreme care under II those conditions, they can move into a soybean field or a i: neanut field which -- and those crons are highly sensitive 13 to 2,1-D. 14 Q And are those the type of things that you would 15 investigate? 16 A Yes. As well as crop injury cases or even efficacy 17 cases where it would not -- it didn't control the weeds 18 properly. There usually was a reason, and that was what 19 1 was attempting to find out. 20 Q Besides getting involved in those property damage 21 east's have you ever been in any personal injury cases? A Very few. I have worked on a few. I have testified 23 in one or two. 24 Q '.'hat was the basis of your testimony in those one or 25 two cases? 0~rt3 IA -127- As it related to efficacy of the cron -- or efficacy t of the product. 3 Q Ok^ 1. Just so we let the .jury know, a r e you an expert 4 on the human effects of 2,4-D? 5 A Absolutely not. I have not done testing. I have not 6 done work in the toxicology or human effects area. 7 Q How about animal effects of herbicides? 8 A No, I've not worked in that area. 9 Q You are not a doctor? 10 A I an not a medical doctor. II Q You are not a cancer -- 12 A Let's make that clear. 13 Q Okay. Okay. You are not a cancer doctor or a 14 toxicologist? 15 A Absolutely not. 16 n Okay. Are you familiar with any analytical research 17 or manu fac.tur ing nrocess or the tox labs? 18 A '.Veil, I am not a chemical engineer. I am not a process 19 chemist, so I am not an expert in that area, no. 20 0 Do you know any testimony or do you have any testimony 21 about how Nr. Greenhil1 died? T*> A N o , I do not. 23 0 And do you know what caused his cancer? 24 A Absolutely not. 25 0 When vou started with Dow -- now we know what you're 1821 o-w i -1281 not, let's talk about what you are. When you started with * Dow in 1949 what was 2,4-D used for and 2,4-D products? 3 A 2. IrD was first used commercially back in 1945, so that 4 the whole program with 2,4-D was just nicely getting going 5 and getting momentum. But at that tim(' it was already being 6 used extensively on small grain crons, such as winter -- 7 spring weed in the Great Plains area, used on corn and 8 grain sorghum, sugarcane, pastures and rangeland -- many 9 of the uses that are in current use. 10 0 Okay. And what kind of weeds back in '49 were they II trying to get rid of? 12 A Well, with 2,4-D of course they were still after the 13 broadleaf weeds, and wild mustards in the Great Plains area, 14 and pigweed, ragweed, dandelions in lawns, and all the 15 typical ,jimson weed, lhe common, broadleaf type weeds. 16 0 And the type of testing that was done during those 17 years again? 18 A 'Veil, the testing, o !' course, was on Plants, depending 19 on whether we were working on rangeland or whether we were 20 working in crops, the type of testing varied; but of course 21 you we re 1tvjkin g fo r ou r chem ica 1, stud ying t.h<; dos age and i the timing, the proper time to put them out, how to put 23 them out, what the response of the weeds was, and if you 24 were working in a crop, of course you had to evaluate the 2$ effect on the crop to be sure you weren't injuring the? crop, -1 9 a s - 1 either. -129- *> Q And tox studies, or toxicological studies involving 3 humans,*that would be someplace else at Dow? You had nothing 4 ' to do with that? 5 ! A Yes, I had nothing to do with that. 6 Q Today, who would use' 2,4-D products, and what would they use it for? il 8 A '.Veil, 2,4-D is even way back since '45, and especially since about 1350, 2,4-D Droducts are used very extensively. 10 There are about approximately 55 million pounds a year is 11 used commercially in the United States alone, and about half 12 of that 55 million pounds is used on cereal crops, such as 13 the wheat, the grain croDS, corn, sugarcane, grain sorghum. 14 About a quarter of it is used for pasture and rangeland 15 weed control, and the rest is used for utility rights-of-way 16 weed and brush control, highway roadside work, lawn areas, 17 golf courses, all those type of places where? you have a 18 problem with broadleaf weeds and grass, or grass crons. 19 Q Why would you use weed killer, for example like 2,4-D, 20 on grains and corn? What does it accomplish? 21 A 'Veil, back in i'.e '50s and before we had 2,4-D you'd travel in the Northern Plains area in the spring of the year 23 when they had spring wheat growing and the fields would be 24 solid yellow with wild mustard. You could take an airplane 25 at the orooer time and spray a swath through the field and 1823 D - > ?o b -130- 1 just release that grain, and the rest of the field would be solid yellow with wild mustard. So it's a ma;ter of con 3 trolling tne weeds, controlling competition, allowing the 4 crop to provide maxinun yields. So you are really trying 5 to increase your croo, your yield, your food production. 6 It's a production technique that's very efficient and it's 7 very economical. 8 0 Prior to 1970 was 2,4-D regulated by the Government? 9 A Yes, 2,4-D has always been regulated. 10 0 '.Vho regulated it, to your knowledge? 11 A Prior to 1970 the United States Department of 12 Agriculture was responsible for regulating and registering 13 2,4-D type products. 14 ^ After 1970 who became responsible? 15 A The responsibility was turned over to the Environmental 16 Protection Agency in 1970, and they have been responsible 17 since that time. 18 0 What did the U.S.D.A. require when it was responsible? 19 A V/ell, the typical things, as one would expect. You had 20 to provide information on the composition of the material 21 you are selling, you had to show that what you wore selling *>^ was what was on the label, also you had to provide data on 23 the efficacy, that it would do what the label says it would 24 do, you also had lo provide toxicology information to show 25 that the* product was safe to use as labeled. -131- 1 Who supplied the data to the U.S.D.A. on 2,4-D products? A 11Worries from various sources. Most of' the -- much of 4 :i the data on 2,4-0 to support label cones from the manu 5 facturer himself. Of course at that time there were several 6 ; manu far.l urers. Data came from different. places. Bui in ! 7 ii addition to that, our university people were extremely 8 interested in developing 2,4-D, because it was the first 9 time that we'd had a new, organic chemical that was practical .0 i for good weed control. So much of the data came from 1I II detailed studies from university people. Their reports i: normally are published in scientific journals, and that data, 13 1 as well as company data, funnels in to the Environmental j 14 Protection Agency to provide' the data package to support label registration. 16 Q And the type of data on 2,4-!) that you worked on would 17 be the efficacy, correct? 18 A Yes, and crop safety. 19 0 Could 2,4-D products be sold to the public without, the 20 EPA approval? 21 A No, not 1(gully. 0 During your thirty-seven years with Dow, and to your 23 knowledge now, has 2,4-D been approved by the use of the 24 Gove rumenl? A Yes. -/9t 1O Is it still anoroved today? -132- A Vos, it is. 3 Q isA&r4-D products still widoly used in the United 4 States and the world? 5 A Yes, we discussed that, right. 6 0 Can any member of the public, general oublic, go out ; j iIi i ; i 7 and buy a product, a 2,4-D product? 8 A Any 2,4-D product that's 2,4-0 by itself, they can. 9 And many combinations with other chemical products they can. II 10 There are some that they cannot. 11 0 Okay. Did you go on a shopping trip this week in 12 Marshall? 13 A Yes, I did. 14 O And what dir! v n u do? j ! 15 A It was interesting to me, Monday afternoon when I got 16 in town I was curious to see if these products, such product? 17 as we are talking about., were available to the general 18 public here in Marshall. So we wont on a -- I went on a 19 little shopping trip and found these products available on 20 the shelf available to the public in several stores. 21 Q Okay. At this time I am going to give you a shopping 1T bag and help you with it. 23 MR. BALDWIN, SR.: Your Honor, we have never seen 24 any of this, and it wasn't listed on the Witness List. 25 MR. ORTEGO: It's demonstrative evidence, Your b-tW I onor. I am not 1nt roduc ing it into ovi donee. > THE COURT: Go ahead -133- 3 (Mr. Or^rgo 'continuing: ) 4 Q Can you tell us what you bought and where you bought 5 it? 6 A Well, first -- first I found products at the Wal-Mart 7 Store right on the shelf, open to the public, and there we 8 picked up four different 2,4-D containing products. First 9 of all here is- one called "Spectricide," which is a liquid 10 weed and feed type of product. It has 15 percent, nitrogen, 11 and it also, according to the label, contains 2,4-D. 12 Q And who manufactures that? 13 A This product was manufactured -- it's manufactured 14 for the Kenco, X-e-n-c-o, Chemical and Manufacturing 15 Corporation at Jacksonville, Florida. 16 Q And does that have an E?A registration number on it? 17 A Yes, it dot's. The El)A registration number is 18 2217-SS1-8345. 19 Q And does it have any warnings on it? 20 A Yes, it does. 21 Q What does it say, if you can read it? A I've got to find them. The cautions that relate 23 to handling properties say as follows: " K e e n out of 24 reach of children. Caution. Statement of practical 25 treatment: in case of contact, 'wash skin with plenty of -134- 1 soap and water, and for eyes, flush with water for fifteen - minutes and fret medical attention." 3 Th# caution, the precautionary statements themselves, 4 as it relates to humans, it says: "Caution: Harmful if 5 swallowed. Avoid contact with eyes, skin or clothing. 6 In case of contact, immediately flush eyes or skin with 7 plenty of water. If irritation develops, get medical 8 attention. Do not inhale. Avoid contamination of food 9 or fee<;l stuffs." 10 0 Okay, nut that one down. V.'hat is the next one that n you found? 12 A The next nroduct is also Specticide brand of lawn 13 weed killer, and it has on the label: "For dower weed, 14 dandelions, chick woods, clover plant and .ground ivy." 15 Q Okay. 16 A And this is one that you would dilute with water and 17 spray on your lawn. 18 Q Is the warning similar on that as in the other product? 19 A The warning appears to be exactly the same. It 20 says: "Danger. Corrosive. Causes eye damage. Do not 21 gel in eyes or on skin or clothing. '.'lour goggles and face n shield when handling. Harmful if swallowed or inhaled. 23 Avoid exposure to spray mist. Wash thoroughly after 24 hand1ing." 25 Q Okay. Does that have an EPA registration number on it? 1A ! -135- ! Yes, it does. That's also supplied by the chemical i i and manufacturing corporation, thesame? as the previous ! 3 product^-And t-re registration numberis EPARegistration 4 No. 2217-597-8845. I \ i j 5 O Let's see, briefly we will go through the others 6 that you found. ! Ii ; 7 A This is an aerosol can, actually, for -- and it's 8 called "v/eed-B-Gone Jet '.Veeder," bv the Ortho brand. This : i I 9 product also contains 2,4-D, as well as some other weed j | 10 killers. The -- if I can find the -- the cautionary 11 statement reads as follows: "Avoid contact with the skin, 12 eyes and clothing. Washhands after use." 13 0 Okay. 14 A And then ith;is a notefor physicians. For emergency 15 information !hi'rr is a call number for the company. This 16 product is put out by the Chevron Chemical Company in San 17 Francisco. 18 0 Okay. It also has an EPA registration number? 19 A Yes. The EPA registration number of this product is 20 No. 233-2324-AA. 21 Q i Okay. T:1E COURT: What is the significance of that il 23 number? 24 THE WITNESS: The significance of the EPA 25 registration number identifies and demonstrates that that 1.829 -136- I 1 product has been registered and approved by the Environmental Protection Agency. And once that product is approved, the 3 EPA assj^gns that number so that the manufacturers can 4 indicate such on the product. I 5 THE COURT: All right. 6 (Mr. 0 rtego continuing:) 7 Q Just briefly go through the other products you had, 8 and you don't have to read all the labels. Tell us what 9 you got and where you got it, too, by the way. I don't I 10 think you told us where you bought some of this other stuff. 11 A All these that I've shown so far have been -- were on i: the shelf at Wal-Mart, 13 o Okay. 14 A This was a Wal-Mart product also. This is a Weed-B- 15 Gone similar to the aerosol, but this is a ready-to-use 16 with a little pump bottle that you use on your lawn for 17 dandelions, just pumo it, ready to use. And it's also by 18 the Chevron Company, and the EPA Registration No. is 19 239-2499-AA. ! :o 0 And the warning, we won't bore the Jury. :i A They art' similar. Very similar. Q They art' similar? 23 A Very similar. Then wewent nextdoor to Brookshire's, i 24 right in the grocery store, and it was interesting because :s on the shell' right across the isle from the produce departmen -137- 1 Here we have the Ortho Weed-B-Gone, the same product that wepicked up or bought there' at the V.`al-Hart Store. And 3 I am sn-y ir. has Phe same EPA registration, because it's the 4 same product. 5 Q Okay. 6A Another product from Brookshire's was one, a Spectrum 7 brand of product called "33-PIus Lawn and Weed Killer." And 8 And it too was one that would be diluted with water and 9 sprayed on your lawn to control dandelions and a whole list 10 of weeds that are shown here on the label. 11 q Without reading it, does it also have an EPA registra i: tion number? 13 A Yes. The EPA registration number of this product is 14 22175Q7-101'. And this product is manufactured for the 15 Spectrum Homo and Garden Products by the Subigigi (pho) 16 Comorat ion. 17 q Do you have anymore in there, Mr. Watson -- Dr. 7/atson? 18 We will go through them just quickly because I think you have 19 done enough. 20 A I have one different one. We nicked up two products 21 at the Kroger Store right here in town. One was the same ^> we just discussed, this 33-Plus Lawn and Weed Killer. But 23 one that's a different package and a different company from 24 Kroger's is one put out identified as "Green Light Wipe-Out 25 Broadleaf Weed Killer." This too has 2,4-D in it, and it 1831 j -1381 | would be used similarly to the other products we talked -> about. This product, EPA registration number of this 3 j product^! j. 36E-123-ZA. And this is j;ut out by the Green t 4 Light Company in San Antonio. 5 0 Thank you. 6 A That's all. 7 0 I'll take that from you. Just put that back in. 8 (Removing box and tendering to Mr. Gil lam.) Now, all of 9 these products, that you bought 2,4-0 is one of its active 10 1ngred ion is, correct? 11 A Yes, it is. i: 0 Does Tordon 1C1 have 2,4-D as one of its active 13 ingredients? * 14 A i 15 I Q Yes, it dors. Y.'hat other active ingredients does Tordon 101 have 16 besides 2,4-D? 17 A The product Tordon 101, in addition to 2,4-D, there 18 is a newer chemical known as oicloram. 19 Q Is Tordon 101 available to the general public like 20 those other products? 21 A No, it is not. 22 Q And why is that? 23 A Because Tordon 101 is what's known as a restricted use 24 pesticide, and that is a term applied or determined by the 25 EPA for certain pesticides that need special handling. And i 1832 p ^/? /r -133- I Tordon 101 nereis special handling because the picloram that's in the product is extremely active. On some weeds 3 and olaifctrs it is-at least ten times as active, as far as the 4 weed killing properties, as 2,4-D. And besides, 2,4-D 5 degrades quickly in soil. Picloram lasts in the soil for 6 extended periods of time. So because of this, in order 7 that users can handle it safely as far as not killing 8 undesirable, or desirable, crops and plants, they need 9 special training. So it does require certified applicators 10 with special training in order to buy it and use it. 11 O What would happen -- what would be the; difference of 12 picloram if it got on a bean crop? Or how does that work? 13 A "'e11 -- 14 O When you say it's persistent in the s o iI, you 1d bettor 15 explain that. 16 A I will try to explain it. First of all, say you 17 were applying it to a pasture and it drifted into another 18 field, 2,4-D would normally degrade in the soil under warm, 19 moist conditions in two or three weeks. If there was any 20 significant amount there, picloram could last even into 21 the next season. So if peanuts or soybeans were planted 22 the next year, you could get a carryover effect. So, it 23 needs to be handled prooerly, and that's why they require 24 special training through certified applicators. 25 0 IVho has the final say in what goes on the labels of I.S33 1 these products containing 2,4-D? -140- A EPA is the controlling agency as far as labeling is 3 concern^tf;'' 4Q In addition to using 2,4-0 in the research area, have 5 you personally used the product over the last thirty-seven 6 years? 7 A Many, many times, various products. S MR. ORTEGO: I pass the witness, Your Honor. 9 THE COURT: You may cross-examine. You haven't 10 run across anything that will kill fire ants, have you? 11 THE WITNESS: It's not 2,4-D. i: CROSS EXAMINATION 13 BY MR. BALDWIN, SR.: 14 O If you do, I know some local citizens that would run 15 you out of town. Now, Mr. Watson, how long were you with 16 Dow? 17 A I worked for Dow for approximately thirty-six and a 18 half years 19 Q The proper name is "The Dow Chemical Company"? 20 A That 's the correct title, yes. 21 Q And v.aat's your background, your -- A 23 Q 24 A I am a soi i scientist by academic training. . Wou 1d that be close to a botanist? I've had botany. I have had some botany, quite 25 of bot any. 0-/V7 1' Q -141Is that the study of plants and soils and grasses? A Plants and soils and crops. I am really an agronomist 3 i which i:f^iuus' n specialist in crons and soils. 1 4iq You don't pretend to be a toxicologist? i 5 ; A Absolutely not, sir. 1 6Q Or a medical doctor? 7 A That's right. 8 Q And you are not rendering any opinions here today 9 about the toxicity of 2,4-D as it applies to human beings, 10 are you? i 11 A That's correct. 12 0 Nov; you were with Dow how many years? 13 A Thirty-six and a half years. 14 q You are now retired? 15 A Yes, sir. 16 q But you still do consulting work for Dow? 17 A Yes. 18 0 And you charge them, don't you? 19 A Yes, sir. 20 n And what's your rate?? 21 A Tt o 1 gel fifty dollars an hour. Plus your expenses? 23 A I 24 I1,i Q 25 A Plus expenses. Now when did you come to Marshall for this trial? I came Monday. 1835 D - Z f / 'S l 1o ) A 3Q 4A You 've been here since Monday? Yes, sir. .w. -- Do you know a Mr. Newton? I 've known Dr. Newton professionally -- -142- 5 0 Dr. Newton, excuse me. 6 A -- through the years through ihr V/eed Science 7 of America. V 8 0 Is he here in Marshall? 9A 10 Q I saw him this morning. The first time you've seen h in1.? ii 11 A Yes. i: Q Where did you see him? 13 A 14 Q I saw him at the hotel. Do you know a Dr. Chezezs (pho)? j IS A I do not. 16 Q Or Dr. Reed? 17 A I do not. 18 Q Have you seenDr. Reed since you've been here? 19 A No. I do not know Dr. Reed. 20 Q I believe youtold us that -- told moearlier -- do you 21 remember when we took your deposition?' ii A Yes, sir. 23 Q That I81 , 1 believe it was, you .joined the Litigation 24 Dopa rtmeiu o f Dow? 25 A Yes, I did. 183g i 1Q -143- And you stayed in the T.itigation Department of Dow from 1931 to 1936, didn't you? 3 A Yes, sir. 4 Q And you spent all your time working on lawsuits, 5 didn't you, or complaints? 6 A I worked on complaints, claims, and some lawsuits, yes. 7 Q You either worked on lawsuits or potential lawsuits, 8 didn't you? 9 A I worked on claims and litigation, yes. 10 0 .Full-time, didn't you? M A Yes, sir. i: 0 And you worked on cases involving claims where 2,4-D 13 had harmed individuals, didn't you? 14 A No, sir. IS O You never worked on a case where it was alleged that 16 2,4-D harmed an individual? 17 A No, sir. 18 Q You didn't tell us that you worked on such a case in 19 Maine and another one in Tennessee? 20 A I did not testify in those cases. I -- 21 O 1*> A Well, you knew about it. You knew about them? Yes, yes. I do recall the one in Maine, right. 23 0 And you were consulted about it, weren't you? 24 A I consulted as far as -- this was a spray drift case, 183725 and I did testify, not testified, but I worked in the area D-IW -144- 1 of the effect of the spray drift on the orooerty and on the crop. 3 Q Whatever you did, you worked on a case involving a 4 personal injury to a human being involving 2,4-D, didn't 5 you? 6 A It was an alleged -- it was an alleged nroblem, yes. 7 O And you did another one in Tennessee where the claim 8 was that it was a neurological damage that was caused? 9 Isn't that what you told us on your deposition? 10 A Yes. 11 Q All right. And so you worked full-time in the 12 Litigation Department on the litigation team of Dow Chemical 13 ComDany until you retired in 1986, didn't you? 14 A I worked essentially full-time in the nroper tv damage 15 area with the agricultural chemicals and the effects on 16 plants and crops. 17 0 I say you worked full-time with the Dow litigation 18 team, didn't you? 19 A Yes, I did. 20 Q All right. Now you are Mr. A. J. Watson, it is? 21 A Yes, I am. THE COURT: Mr. Baldwin, let's take a break a 23 minute. I think we need a fifteen minute break. Be back 24 in the jury box at twenty minutes till three. 25 (Recess at 2:25 p.m., until 2:40 p.m. open court, jury O -iW 1 and all parties present) -145- TIIE COURT: Please be seated. You may proceed. 3 CROSS EXAMINATION CONTINUES 4 BY MR. BALDWIN, SR.: 5 Q Mr. Watson, I was about to hand you a letter that 6 has been marked -- 7 MR. ORTEGO: The number, Mr. Baldwin? 8 9 10 Q MR. BALDWIN, SR.: 20 j . MR. ORTEGO: 20 j. -- and ask you if you recognize that? 11 A Yes, I recognize it as a Dow letter. 12 Q Well, it shows -- you received a copy, doesn't it? 13 A Yes, I did. 14 Q And as a matter of fact, it appears to mo it was 15 addressed to you? 16 A Yes. 17 0 And does it have a Dow stamn on it? 18 A Yes, it does. 19 Q A stamp that says "Dow" with a number behind it? 20 A Y'es. 21 O Is that right? A Dow stamp similar to the one on this document, which is Page IS of the Hazard Report? Is that 23 not correct? 24 A Thai 's a different, number. 25 Q Well, is that a Dow stamp? !A -146- It appears to be. I don't know for sure, but it appears to be, yes. It's got a Dow -- says "Dow" and some 3 numbers. 4 Q Now your letter says: "As promised, following are 5 my thoughts pertaining to the phenoxy RPAR situation." 6 What does "RPAR," that acronym, stand for? 7 A The -- our -- the intitials, or the letters -- the 8 initials "RPAR" stands for a term that relates to the 9 Environmental Protection Agency called "Rebuttable 10 Presumption Against Registration." 11 Q All right. And y'all were kind of having a controversy 12 along about that time with the EPA, weren't you? 13 MR. ORTEGO: Objection; Vour Honor, form of the 14 quest ion. 15 THE COURT: Overruled. i 16 A I wouldn't -- I'd -- I wouldn't say it was a controversy 17 0 When it refers to phenoxy, it's talking about 2,4-D, 18 among other things, isn't it? 19 A Yes. 20 Q It says: "fortuitously, we recently had a discussion 21 with registration personnel on the status of 2,4-D and silvex.' 22 Is that another phenoxy? 23 A It's in the -- it's another chemical in the phenoxy 24 family of compounds, yes. 25 0 " -- which helped locus some of the issues." And it P '/?*3 1 says: "It was the consensus of registration personnel," that would be the' Dow registration personnel, wouldn't it? 3 MR. ORTEGO: Objection, the document sneaks for 4 itself, Your Honor. 5 THE COURT: Overruled. 6 A I -- I am not following you -- 7 0 All right. Can you readwith me the first sentence -- 8 A -- Mr. Baldwin. 9 0 -- in the second paragraph? "It v/as theconsensus 10 of registration personnel," referring to Dow personnel? 11 A Yes. 12 0 " -- that 2,4-D is no longer on the "front burner," 13 front burner being in quotes, "but instead will be evaluated 14 according to generic standard criteria." 15 Now, what did he mean when he was talking about 2,4-D 16 being on the "front burner" with the EPA? 17 MR. ORTEGO: Judge, I am going to object to what 18 someone else means. He knows what he knows and not what 19 someone else knew. 20 THE COURT: Me can testify if he knows. If he 21 doesn't know, he can so state. 22 (Mr. Baldwin, Sr. continuing:) 23 O Mr. 'Vatson, this letter was written to you, wasn't it? 24 A v,>. 25 Q Did you understand what the man meant when he wrote it 1 to you? *> A Yes. -148- 3 Q What did he mean, then, when he said it was on the 4 front burner? 5 A He meant that 2,4-D, the -- any continuing registration 6 questions with 2,4-D and 2,4-D products with the EPA would 7 relate to the generic compound itself. In other words, 8 the 2,4-D itself. 9 0 Well, he referred in the next sentence about the 10 toxicological properties of 2,4-D, didn't he? 11 A Yes. i: Q And you, even as a botanist, know that toxicological 13 properties means that it might be harmful, don't you? 14 'R. OP.TEGO: Objection, Your Honor. This is 15 beyond the scope of this witness's expertise. 16 THE COURT: If he knows. 17 0 Do you know that, sir? 18 A Well, I -- I -- it's -- I think the document speaks 19 for itself here. I -- I am certainly not a toxicologist, 20 and -- 21 O >> A Didn't I hear you say you were* a Ph.V).? Yes, sir. 23 Q Do ,-ou know what the term "toxicological properties" 24 means? 25 A Yes, I do. Z4Z O' IQ *> A 3Q V7ell, what does it mean? It means the effect of chemicals on animals. Adverse effect? -149- 4 MR. OitTEGO: Objection. 5 A Any type of effect. 6 70 THE COURT: Overruled. Then it goes on and it says: "Since a major potential 8 question on 2,4-D will likely concern the 1966 FDA oncogeni 9 city study." Doesn't that relate to a study that the FDA 10 did in 1966 about cancer? 11 MR. ORTEGO: I am going to object again, Your 12 Honor. He is not familiar with this type of area, and he 13 is not a toxicologist and not qualified to interpret these 14 studies. IS THE COURT: He can testify if he knows. If he 16 doesn't know, he can so state. 17 A I do not know, and I am not qualified to -- to even 18 discuss the toxicological properties of these compounds. 19 Q Do you as a Ph.D. know what the word "oncogenic" 20 means? 21 A 22 Q It relates to cancer. All right. And do you as a Ph.D. know what they mean 23 when they say "a 1966 study of the FDA on.oncogenicity"? 24 Wouldn't that mean to you, or just a plain old everyday 25 person, that that was a study relating to cancer in 2,4-D? 18.|3 D-tfzc* -1501 MR. ORTEGO: Judge, I urn going to object- It 1 calls for this witness to speculate. He already says he 3 is not familiar or qualified to deal with this, and now he 4 is asking him to speculate. 5 THE COURT: Overruled. You can answer the quest iot 6 if you can. If you can't, you can so state. 7 A 'Veil, it -- it so stated that it's referring to that 8 study, and that's as far as I can say. 9 Q All right. Then you can agree with me, my question, 10 from the outset -- they were talking about a study, a cancer 11 study, about 2,4-D and cancer that the FDA ran in 1966, 12 isn't that true? 13 MR. ORTEGO: Objection, Your Honor. It assumes 14 facts not in evidence, and it's boon asked and answered. It's 15 argumentative. 16 THE COURT: Overruled. 17 (Mr. Baldwin, Sr. continuing:) 18 Q Isn't that true? 19 A Well, it stands -- it speaks for itself, that it 20 relates to that study. 21 0 Well, can you answer my question, please, sir? A All right, it just speaks for itself. 23 0 Let me just ask it one more time very simply. Does or 24 not this letter relate to a cancer study that the E?A did 25 in 1966 relating to 2,4-D? 1844 d -//-27 -151- 1 MR. ORTEGO: Objection. Asked and answered, Your Honor. 3 THE COURT: Overruled. 4A That's what the document states that. S Q So you agree itdoes? 6 A Yes. 7Q All right. Now, it says a little bit further, so at 8 least in 1966 somebody was concerned that 2,4-D might be a 9 carcinogen, weren't they? 10 MR. ORTEGO: Objection, Your Honor. It calls for 11 speculation. 12 THE COURT: Overruled. 13 A Well, this isout of my area. 14 0 But, can you answer my question, sir? This is nlain, 15 English language here. 16 A That -- 17 Q Doesn't it suggest to you, Mr. Watson, that in 1966 18 somebody in the Government, at least, was concerned about 19 2,4-D being a carcinogenic agent? 20 MR. ORTEGO: I will object again, Your Honor. 21 THE COURT: Overruled. Answer if you can, sir. A It indicates -- it indicates that in the report, in 23 the letter, yes. 24 0 All right.' And then it says: "It was felt that prior 25 to committing to a two-year study with new production material -152- ] v/e should obtain some indications as to the potential of impurities to cause increased toxic effects in chronic 3 studies." Do you see that sentence? 4 A No, I don't. 5 THE COURT: Are you still on the first page? 6 A I don't see it here, sir. 7 Q It's on the first page in the last paragraph near the 8 bottom. "It was felt . . . " 9A I see -- I see the statement. 10 0 You see it now? II A Yes, I see the statement. i: Q So there they are talking about impurities causing 13 toxic effects, aren't they? 14 "R. ORTEGO: Judge, I am going to object again. 15 This witness is being called to speculate for the document. 16 The document speaks for itself. He is not a chemist, he is 17 not a manufacturing processor, and Mr. Baldwin is asking him 18 to interpret this document. 19 THE COURT: Hr. Watson, was this letter written 20 to you bv someone at Dow- Chemical? 21 THE WITNESS: Yes, it was written to me by a man ii at Dow Chemical, yes. 23 THE COURT: All right, overrule the objection. 24 T H E W IT N E S S : He w a s t he clove 1o p m o n t m a n a g e r . 25 THE COURT: Go ahead. Overrule the objection. 1846 ] !j (Mr. Baldwin, Sr. continuing:) 0 >Vho was it written by, Mr.Watson? 3 A Mr. Len Smith. 4 Q And who is he? 5 A At that time hewas the productdevelopment manager 6 in the Agricultural Products Department. 7 Q And it was written on Dow stationery, was it not? 8 A Yes. 9 Q And it was dated January 26, 1279, was it not? 10 A Yes. 11 Q And it contains the Dow stamp that we have already 12 talked about, does it not? 13 A Yes. 14 Q And it contains what some people refer to as a "Dow 15 man number," does it not? 16 A Yes. 17 Q And what is a Dow man number? 18 A That's a number assigned by the company to identify 19 a particular person. 20 Q And what is the Dow man number on that document? 21 A "022777." 22 Q V/hat's your Dow man number? 23 A That's mynumber. 24 Q Sir? 25 A T h a t ' s my m an n u m b e r ! 1 ii i ! i S -/ 9 S O 1O -154- All right. Now then let's so back to the document. It does talk about impurities in 2,4-D, ar.d having increased J 3 toxic effects, does it not? i i I 4A It mentions impurities. I don't -- I can't interpret ! S what it says about that. ii iI 6Q V/ell, it says the word "impurities to cause increased ! 1 7 toxic effects." Do you see those words? 1 8 A But we need to read the entire sentence. "It was 9 felt -- 10 0 11 A Please feel free to. -- that prior to committing to a two-year study with j i j ! 12 new production material we should obtain some indications I j13 as to the potential of impurities to cause increased toxic I 14 effects in chronic studies." !I 15 0 Now then, that was January of 1879, wasn't it? 16 A Yes. 17 Q And I will hand you Plaintiff's Exhibit No. 20 bb. 18 MR. ORTEGO: Mr. Baldwin, may I see that first 19 so I can see what it is? 20 MR. BALDWIN, SR.: You have seen it. 21 MR. ORTEGO: I just want to know your numbers. j (Mr. Baldwin, Sr. tendering exhibit to Mr. Ortego.) 23 MR. ORTEGO: Okay, I know what this is. Fine, 24 I just didn't know your number system. 25 MR. BALDWIN, SR.: It's been introduced into 1848 i evidence. -155- MR. ORTEGO: Fine. 3 THE COURT: Let's go. 4 (Mr. Baldwin, Sr. continuing:) 5 Q Have you seen this Xrumel Report? 6 A I saw this report at the time of deposition. 7 Q And that's a report talking about impurities that were 8 found in the Dow 2,4-D manufacturing process, isn't it? 9 MR. ORTEGO: Objection, Your Honor, mischaracleri10 zation of the evidence. The document sneaks for itself. 11 A This is a -12 THE COURT: Overruled. 13 A This is a report written by .two analytical chemists 14 from the Organic Chemicals Research Department. IS Q And doesn't it refer to impurities found in the 2,4-D 16 manufacturing process? 17 A The title -- the title of the report "A Study of the 18 Formation and Removal of Impurities in the Semi-hydrous 19 process for 2,4-D." 20 Q Now then, can you answer my question? 21 A '.V'ould you repeat your question? 0 Does that document refer to impurities found in the 23 Dow 2,4-D manufacturing process? 24 A '-Veil, the document speaks for itself; the title itself 25 states that 1Q -156- I can read the title, sir. I am asking you a question. 1 A I think it states -- 3 0 Does it ordoesn't it? 4 MR. ORTSCiO: Objection, Your Honor. 5 Q Si r? 6 A The -- the reoort speaksfor itself.It's right here. 7 Q Then you agree it talksabout impuritiesin the Dow 8 process? 9 10 A MR. ORTEGO: Objection, Your Honor, argumentative. It's in the title -- 11 THE COURT: Overruled. 12 A It's in the title of the report. 13 0 I understand what's in the title of the report. 14 A Yes, yes. IS Q But I am asking you if you can answer my question? 16 A Yes. 17 0 Yes what? 18 A Yes, it relates toimourities. 19 O All right. And that was just a counle of months 20 before this letter in January 1S72 talking about impurities 21 in the Dow manufacturing orocess, wasn't it? 22 A What's the date on the -- I didn't catch the date of 23 the report. 24 Q October of -- just a minute an`d I y \ II get it he~e. 25 October 27, 197S, about two months be lore? 18-0 i ] AYes. Yes. -157- Q This letter here still talking about impurities in the 3 2,4-D, is thatright? 4 A Yes. 5 0 And. this document talks about impurities in the Dow 6 process going back to 1977, doesn't it? 7 MR. ORTEGO: Objection, Your Honor, beyond the 8 scope of this witness's expertise, an analytical chemical 9 document, to interpret it. 10 THE COURT: He can testify if he knows. If he 11 doesn't know, he can so state. For the record, Mr. Baldwin, 12 identify what document you have reference to. 13 MR. BALDWIN, SR.: Thank you, Your Honor. It's 14 a Kruno 1 Reoort dated -- I mean, Exhibit No. 20 bb Watson. 15 Q Let me try to help you in order to save time. 16 MR. BALDWIN, JR.: Your Honor, that's Trial 17 Exhibit No. 19 a, though. 18 THE COURT: All right. Is this exhibit already 19 in evidence? 20 rs?l. BALDWIN, SR.: Yes, it is, Your Honor. 21 THE COURT: What number? it MR. BALDWIN, JR.: 19 a. 23 THE COURT: All right. 24 HR. ORTEGO: Can I see what you marked? 25 MR. 3ALDWIN, SR.: I didn't mark anything. Q-nsf -158- I MR. ORTEGO: Det me see (examining exhibit) Fine. *> (Mr. Baldwin, Sr. continuing:) 3 Q Do you see that reoort where it says the imDurities 4 going hack to 1977? 5 A Yes. 6 0 And the same report talks about those impurities as 7 being highly toxic. Do you agree that there were highly 8 toxic imDurities in 2,4-D? 9 A I certainly do not. Again, I am not a -- I am not a 10 toxicologist. I am not caDable of evaluating or even judging 11 that matter. 12 Q Well, can you read with me, sir, on this same exhibit: 13 "2,4-D dichlorophenol." That's 2,4-D, isn't it? 14 A No, that is not 2,4-D. 15 0 Is that one of the impurities? 16 A That's one of the -- that's not an impurity. 17 G What is it? 18 A That's one of the components for making 2,4-D. 19 Q All right. "50* NaOH and cn 1oroacet ic acid are highly 20 toxic and corrosive raw materials." Does it say that? 21 A That's what it says, yes. T-i Q And it says: "When handling, the protective clothing 23 should include lab coat, rubber gloves, goggles, and when 24 possible, all operations were performed in a fume hood." 25 Is that what it says? 0~lfSS~ 1A 2Q That's in the research laboratory, yes. -159- Nov.- he asked you about warning labels in the EPA. I 3 hand you another Dow document which is marked "20 uu." 4 MR. ORTEGO: Is that Trial Exhibit 20 uu or 5 Deposition Exhibit, Mr. Baldwin? 6 MR. BALDWIN, SR.: Trial Exhibit 20 uu, as far as 7 I know. I don't see any other number on it. 8 (Mr. Baldwin, Sr. continuing:) 9 Q And that talks about these same imnurities, doesn't it? 10 And it says: "Precaution, such as "/earing protective 11 clothing, must be taken to prevent skin contact." Do you 12 read that? 13 A I'd have to read the whole page. I don't even know 14 the content of this document. 15 Q Well, that's where after they found these impurities 16 in the manufacturing process, they ran some tests to find 17 out how toxic, they were. 18 MR. ORTEGO: Objection, Your Honor. Mr. Baldv/in 19 is now testifying. 20 THE COURT: I sustain the objection for the 21 question asked, or to the statement made. 22 MR. BALDWIN, SR.: Withdraw- the statement. 23 (Mr. Baldv/in, Sr. continuing:) 24 Q 25 A Just read the document. It sneaks for itself, sir. (Examining) Okay. O-HSC 1Q -160- Now that statement makes the statement we talked about, does it? 3 HR. ORTEGO: Objection to the form of the question, 4 Your Honor. 5 A What statement are we -- olease repeat. I'm not -- 6 0 "Precautions, such as wearing nrotective clothing -- 7 8O THE COURT: Overruled. -- must be taken to nrevent skin contact." 9 A That's what the reoort says, yes. 10 Q Now, you said something about the Dow label and the j 11 EA. To your knowledge, did Dow ever 50 to the E?A and say i: "We want to nut on our label that this nroduct should 13 never come -- "that nrotective clothing must be worn"? 14 A That, was -- r.;r. Baldwin, that never was a nroduct. 15 That was what the -- what that refers to is a trace ! 1I 16 contaminant. 17 Q It was an imourity that ivas found in the nrocess, 18 wasn't it? 19 A Yeah. But the testing was done on the compound itself. 20 Q Nevertheless, it was in the 2,4-D manufacturing 21 nrocess, wasn't it? 22 MR. ORTEGO: Objection, Your Honor, argumentative. 23 THE COURT: Overruled. 24 A That's what the reoort indicates, yes. 25 0 This is an imourity found in the 2,4-D manufacturing 1854 0 - 1 9 3 7 -161- 1 Drocess, which meant that the nroduct contains this impurity 2 | in it? 3 A May I see those documents again? i 4 I are even the same compound. I I am not sure those 5 MR. ORTEGO: Objection, Your Honor. 6 THE COURT: T7hat is the objection? 7 MR. ORTEGO: The objection is it's not the 8 testimony it's in the comoound. The document speaks for 9 itself and it doesn't state that. And I think the witness 10 has answered that, was trying to answer that. 11 THE COURT: Overruled. 12 (The Witness examining documents.) 13 A Okay, what was your question- again, Mr. Baldwin? 14 0 Doesn't that relate to the impurities that were found IS in the Dow manufacturing process? 16 A The report refers to the handling precautions that a 17 laboratory person would have to have if they were handling 18 this contaminant in the cure form. 19 O Right. But that contaminant is the contaminant that 20 was found in the manufacturing process, wasn't it? 21 MR. ORTEGO: Objection, Your Honor. It's beyond his expertise at this point. 23 A It is beyond my expertise, and I don't -- 24 0 "hat does it say it relates to? 25 THE COURT: Just a minute. 0->?3T 1A -162- I can't -- I can't -- I'm confused. I can't -- I 2 can't 3 THE COURT: C::n you answer the question, sir? 4 THE WITNESS: No, I can't. 5 THE COURT: All right. 6 MR. BALDWIN, SR.: I will go to somethin?? else. 7 THE COURT: Go to somethin?? else. 8 (Mr. Baldwin, Sr. continuing:) 9Q In any event, whatever it relates to, do you know of 10 any occasion where Dow went to the EPA and said "we want 11 to put on our label language that said 'this nroduct must 12 not come in contact with the skin'"? 13 A I would have to refer to the product label. V/hat 14 nroduct are we talking about, sir? 15 O Tordon 101. 16 A The label would speak Tor itself, and I don't recall 17 whether that statement is on the Tordon 101 label or not. 18 Q All right. Well, let me shorten this. Did you ever -- 19 did anybody in Dow ever show you this reoort? 20 A I don't ever recall seeing that document before. 21 THE COURT: Is that 20 uu? 22 MR. BALDWIN, SR.: Yes, 20 well, it's 19 a, 23 Your Honor. 24 THE COURT: All right. 1 25 MR. BALDWIN, SR.: It's the Krmel Report. 1853 -163I THE COURT: Let's be sure and designate these 2 documents -- 3 MR. BALDWIN, SR.: I appreciate it, Your Honor. 4 THE COURT: -- so we know what we are talking 5 about. 6 MR. BALDWIN, SR.: I tret lax about that. Anoreciate 7 your reminding me. 8 (Mr. Baldwin, Sr. continuing:) 9 0 So you never saw the document I .just identified as I O 19 a before? 11 A I don't recall ever seeing that document. 12 Q Even though you were in the legal department, no one 13 ever -- 14 MR. ORTEGO: Objection, Your Honor. 15 A I don't recall seeing the document. 16 THE COURT: What is your objection? 17 HR. ORTEGO: Whether he is in the legal department. 18 This is an analytical lab laboratory. It doesn't matter 19 at one time he was in the legal deoartment. There is no 20 reason why he would have to see that. That's argumentative. 21 THE COURT: Overruled. 22 (Mr. Baldwin, Sr. continuing:) 23 Q Now one other thing. This exercise you went through 24 bringing these nroducts up here I presume was to demonstrate 25 to the Jury that anybody off the street can go buy them, is 1857 p - m 1 that your purpose? 2 A That's what it indicates, yes. -164- 3 Q Do any of those nroducts contain oicloram? 4 A No, they do not. 5 0 Tordon 101 contains picloram, doesn't it? 6 A Yes, it does. 7 Q And it contains 2,4-D? 8 A Yes, it does. 9Q 10 A You didn't bring us any Tordon 101, did you? No, I did not. 11 Q And nobody -- to make it clear -- you are not trying 12 to leave the impression with this Jury that anybody off the 13 street can walk in and buy Tordon 101 off the shelf at 14 Wal-Mart? 15 MR. ORTEGO: Objection, Your Honor, asked and 16 answered during direct. He testified they can't. 17 THE COURT: Overruled. 18 A That's right, it's a restricted use nesticide. 19 Q It's a commercial pesticide, isn't it? 20 A It's a restricted use pesticide, available for purchase 21 and use only by certified annlicators v/bo'vc had that soecial 21 training. 23 Q And don't you think that it's important that those 24 applicators who are using this commercial solvent be fairly 25 and adequately warned of the dangers associated with using 18PS C-llif 1 it? 2 -165MR. ORTEOO: Objection to the tern "commercial 3 solvent," Your Honor. That's incorrect. 4 THE COURT: Overruled. S A That -- that requires an intornrotation in the 6 toxicological area that I don't feel qualified to - 7 0 You don't have any opinion as to whether people ought 8 to be warned about using the product of its hazards? 9 A The type of warning that's necessary is -- depends on 10 a lot of reports and a lot of studies t:at go into this. 11 And all those types of studies are provided to the EPA, and 12 when the label, application for label is made, the EPA 13 reviews that data and it's a consensus of the thinking of 14 their scientists as to what tyne of precautions are necessary IS 9 And you \nd Dow would certainly listen to an independent 16 agent about what kind of information should go on your label, 17 wouldn't you? 18 A We certainly would listen to EPA, yes, sir. 19 Q Well, what about some other agency that was a valid, 20 independent agency in the field? 21 A If we had that information, it would be provided to 22 EPA and it would be judged there totally, with the total 23 data package, as to whether or not that was appropriate 24 for the circumstances. 25 Q Well, I am talking about you at Dow. Y'all had 13 59 - 166- 1 suggestions that go into the input of the labels, don't you? 2 :IR. ORTEGO: I arr. going to object to the "you at 3 Dow." This is one person at Dow who has limited ability 4 to testify in certain areas, and 1 will object to "you all 5 at Dow" as him referring to the whole company. 6 THE COURT: Overruled. 7 (Mr. Baldwin, Sr. continuing:) 8 Q Mr. Ortego asked you some questions about labels here 9 a minute ago, do you remember that? I O A Yes. 11 Q All right. And my question is isn't it true that you 12 people at Dow have input with EPA as to v/hat goes on those 13 labels? 14 A Dow has input, yes. 15 0 And if someone told you or made a suggestion to you 16 about your label, certainly you would listen to it if you 17 felt it was valid? 18 A I am sure it would be listened to, right. 19 Q Well, were you familiarwith thestudy run for the 20 State of California by people, an outfitI call "liax.ards 21 Outfit"? I can't remember the proper name of it. But here 22 is a copy of the reoort, at least a blowup of a portion of 23 the report, and I will get you the report. 24 O R T E G O : f.iy o b j e c t i o n i s c o n t i n u i n g , Y o u r 25 Honor, as it pertains to anything outside his expertise. 186 1 THE COURT: Overruled. -167- 2 MR. BALDWIN, JR.: Here it is, 20 w. 3 (Mr. Baldwin, Sr., continuing:) 4Q 20 w, a renort done on 2,4-Dichlorophenoxyacetic acid. S That's 2,4-D, isn't it? 6 A Yes, that's 2,4-D. 7 Q Evaluation of the Human Health Hazards. Hazard 8 Alert System, Epidemiological Studies Laboratories, State 9 of California, Department of Health Services, Department I O o f Industrial Relations. That's the type of individual 11 you would give some credence to, isn 't it? 12 A Yes, I am sure Dow would listen to an agency like that. 13 q And if they issued a report that said 'present labels," 14 talking about labels on 2,4-D, "are inadequate," would you 15 at Dow take that into consideration and have at least some 16 conferences about whether you ought to change your label? 17 A Yes, I think Dow would consider that, yes. 18 Q Do you know whether they ever did or not? 19 A No, I do not. 20 Q They haven't changedtheir labels, have they? 21 PR. ORTECiO:Objection to the time frame, Your 22 Honor, and the product. 23 Q On 101? 24 THE COURT: He can answer if he knows. 25 A I don't know. I haven't seen a label in the last two ISM b-iwy 1 years. -168- > Q Well, if they did they didn't tell you about it? 3 A Right. 4 Q Now one final thing. You are not here telling this 5 Jury or trying to render any oninion as to whether or not 6 Mr. Greenhill's death was a result of his exposure to 2,4-D, 7 are you? 8A 9 No, sir, I am not MR. BALDWIN, SR.: I have no further questions. 10 MR. ORTEGO: No redirect, Your Honor. 11 THE COURT: May this witness be excused? 12 MR. BALDWIN, SR. : As far as I am concerned. 13 THE COURT: Mr. Watson, you nay be excused. 14 THE WITNESS: Thank you. 15 MR. ORTEGO: Judge, may I have just five minutes? 16 THE COURT: Yes. 17 MR. BALDWIN, SR.: Your Honor, at this time could 18 we offer 20 j, which is the letter he referred to? I don't 19 think I formally offered it into evidence. 20 THE COURT: All right. It will be admitted. 21 MR. ORTEGO: Let me see it a secon L 22 THE COURT: 20 j . 23 MR. ORTEGO: No objection, Your Honor. 24 THE COURT: It will be admitted. 25 MR. ORTEGO: Your Honor, that will conclude the 1862 O'/Wsr 1 Defendant's case in this matter. 2 THE COURT: The Defendant rests? -169- 3 MR. ORTEGO: Yes, we do, Your Honor. 4 THE COURT: Any rebuttal? 5 MR. BALDWIN, SR.: I don't think we do, Your Honor. 6 I will just say we don't. 7 THE COURT: All right, take the Jury out, please, 8 for a minute. 9 (Jury out at 3:10 p.m.; open court continues) 10 THE COURT: Both the Plaintiff and Defendant 11 rests on the entire case? 12 MR. ORTEGO: Yes, Your Honor. 13 MR. BALDWIN, SR.: Yes, Your Honor. 14 THE COURT: All right. IS MR. ORTEGO: Judge, I would like to move for 16 another directed verdict. 17 THE COURT: All right. You may proceed. 18 MR. ORTEGO: Again, Your Honor, as I did after the 19 conclusion of the Plaintiff's case, Dow Chemical Company 20 again moves for a directed verdict. 21 The first area in which I would like to move 22 a directed verdict is with regard to any allegations in 23 regard to the chemical picloram. As you recall, that is not 24 in this case and should not go to the Jury, because when I 25 asked Plaintiffs sole expert, Dr. Teitelbaum, if it could 1863 -170- cause cancer or Hodgkin's disease or lymphomas, it was his opinion that picloram was not responsible for Mr. Greenhill's injuries, was not responsible for causing his lymphomas, and responsible for causing any injury. He based his opinion solely on 2,4-D. So I think that oven Plaintiffs will have to concede that picloram should not be the case, and the sole issue should be on 2,4-D. THE COURT: I don't recall any requested issues dealing with picloram, so I don't think that's -- I am not going to submit it because it's not here. MR. ORTEGO: Good. Then I am not going to argue then on that. THE COURT: You can quit v/hile you are ahead on that one. MR. ORTEGO: I know when to shut up on that issue, / Judge. IVith regard to negligence, Your Honor, there has been no proof by the Plaintiff on this, plus Mr. Baldwin's opening -- MR. BALD'.VIN, SR.: He doesn't need to argue that, either, Your Honor. THE COURT: I think he said earlier that he was not asking for any submission on negligence, and I didn't see any in the Charge. MR. ORTEGO: That will make my life easier. One final thing, Your Honor. IVith regard to the sole and 1864 -1 7 1 1 remaining count of strict liability, it is the Defendant's 2 position that the Plaintiff has not met his burden of proof 3 to go to the jury even on a prima facie case. Dr. Teitelbaum 4 the only expert, himself said it would be idle speculation S to say when Greenhill got his first cancer; he has no idea. 6 Also,"he himself named numerous substances which 7 can cause cancer and Hodgkin's disease and lymphomas, all 8 which he says were possible causes for the cancer of Mr. 9 Greenhill. These substances included: cigarettes, beer, 10 wine, bacon, celery, peanuts, diesel fuel, grilled steaks, 11 hamburgers -- a long list of everyday items, which the 12 record shows Dr. Teitelbaum attested that Mr. Greenhill 13 had some exnosure to. 14 . Greenhill also testified to these everyday 15 exposures by Mr. Greenhill. Additionally, Dr. Teitelbaum 16 espouses the one-hit theory of cancer, the right molecule 17 at the right time and the right place can cause cancer. 18 It would be absurd, according to Dr. Teitelbaum, if that's 19 true, it takes one molecule in one spot, to determine what 20 percentage legally is responsible for Mr. Greenhill's cancer. 21 Vvas it what percentage of cigarette smoke? What percentage 22 of all those carcinogens caused his cancer? And what Dr. 23 Teitelbaum is asking us to do, and should not be allowed, 24 is to sneculate which molecule did it? There is all these 25 molecules and one could do it, and this man was exposed to 1865 1 trillions of molecules. -1 7 2 - 2 I don't think we should ask the Jury to speculate 3 like Dr. Teitelbaum does. It should not go to the Jury; it 4 doesn't go to the weight; his testimony really is not 5 legally sufficient to go to the Jury; he has not made out 6 a prima facie case from its proofs on a,,ny failure to warn 7 or defect in the product. And I would then ask for a 8 directed verdict. 9 THE COURT: Overrule the last portion. 10 MR. ORTEGO: Judge, I also have one other request 11 with regard to the Jury. I have done it in Waco Federal 12 Court. There are seven people on the Jury, and when I was 13 before Judge Walter Smith one of the things he suggested, 14 and it worked out fine, is that il' an alternate has sat 15 here for two weeks, why not let them sit in the jury delib 16 erations? And if there is no objection, I would request 17 that Juror No. 7 be submitted and participate in the jury 18 deliberations, if she is still here. 19 THE COURT: I don't know that I am going to do that 20 I am going to go ahead and excuse the seventh person at the 21 proper time. 22 MR. ORTEGO: Okay, Your Honor. 23 THE COURT: All right. Now I have given copies 24 of the Charge to each of you. 1 believe you have a 25 Protective Order? 0~M1 -1 7 3 1 MR. BALDWIN, SR.: Matter, yes, Your Honor. 2 THE COURT: All right, orotective matter at this 3 time. I am just getting it. Let me see what it says. 4 (Examining document) All right, I assume that this has 5 been presented to the attorney for the Defendant? 6 MR. BALDWIN, SR.: Yes. 7 THE COURT: It's agreeable? 8 MR. ORTEGO: It's agreeable, as long as the Court 9 will endorse it and protect my client's interests. And I 10 think for the record -- 11 THE COURT: Is this the original? Is this the 12 only one here that I am^looking at? 13 MR. BALDWIN, SR.: No, there are all kinds right 14 here. I don't know which is the original. My eyes aren't 15 that good. Here is one copy. 16 THE COURT: Let me just sign, aporove this, the 17 one that I am approving now. 18 MR. ORTEGO: And I SDoke with Mr. Baldwin -19 MR. BALDWIN, SR.: In view of that, there will not 20 be a Protective Order. 21 THE COURT: That is correct. 22 MR. ORTEGO: Okay, in lieu of that. And I did 23 speak to Mr. Baldwin and he has agreed that Dr. Teitelbaum 24 will not disslminate that report. He has had access to it. 25 And I would request to the Court that -- does Dr. Teitelbaum, 0 -i?so 1 did he ever get the unredacted copy? -174- 2 MR. BALDWIN, SR. : I don't think so. 3 MR. ORTEGO: Okay. And at the conclusion of the 4 trial that 1 get the cony back. I will worry about that 5 later. I withdraw that request. 6 THE COURT: All right, here is the Order approving 7 it. 8 MR. BALDWIN, SR.: Your Honor, I have a request. 9 It doesn't rise to the dignity of a motion, but -- 10 THE COURT: We have had a lot of those. 11 MR. BALDWIN, SR.: I am getting old and feeble, 12 and I sure would like to argue this case in the morning 13 rather than this afternoon. Maybe we can get the Charge 14 worked out and behind us today and come in here fresh in 15 the morning. 16 THE COURT: Have you gentlemen had an opportunity 17 to look at the Charge yet? 18 MR. BALDWIN, SR.: No, sir, I haven't. 19 MR. ORTEGO: I haven't yet, but Mr. Brown has. 20 We will do what the Court wishes. I can sum up in thirty 21 minutes. 22 THE COURT: I have got a jury, this other jury, 23 and one of the men on the jury here is on the jury coming 24 in tomorrow, Mr. Brian Wright. And I just feel like I have 25 got to try to finish this case today. O 'lfsrl I MR . BALDWIN, SR.: All right, sir. -175- 2 THE COURT: So I will be happy to give you thirty 3 minutes to take a look at this Charge -- if it takes that 4 long. If you want to come back in in fifteen minutes, or 5 we can go over it now if you have had a chance to look at 6 it. If you haven't -- 7 MR. BALDWIN, SR.: We have not. Gill has gone 8 to the office to get -- 9 THE COURT: Why don't we just stand in recess 10 until fifteen minutes until four. We all report back here 11 at that time and see if we can take a look at this Charge 12 and try to argue this case this afternoon. 13 MR. ORTEGO: Sum it up this afternoon? 14 THE COURT: Yes. All right, we stand in recess IS until fifteen till four. 16 (Recess at 3:30 p.m., until 2:45 p.m.; open court, 17 jury not present) 18 THE COURT: Please be seated. Do each of the 19 attorneys have a copy of the Charge? 20 MR. BALDWIN, SR.: Yes, Your Honor. 21 THE COURT: Have you had an opportunity to look 22 at it? What I would like to do is just start with page 1 23 and try to go down. Number 1 and 2 -- number one, of course 24 this is just the usual onening that we have on any charge. 25 Now, number page 2 is Plaintiffs' page 2, and page 3 is 1869 0 -176- 1 Defendant's page 2. My page 4 is Defendant's page 3, and \ thenon Plaintiffs' page 3 and number 5, and Plaintiffs' 3 requested on page 4 is my 6. And Defendant's page 4, my 4 page 7. If you have any objection now, speak up as we go 5 along. That is why I am calling it out. 6 MR. BALDWIN, SR.: These look all right to me, 7 Your Honor. They are just plain, old boilerplate. 8 THE COURT: Just boilerplate, all of it. My 9 page 8 is Plaintiffs' page 5. My page 9 is Plaintiffs' 0 pages 5 and 6. I MR. BROWN: Your Honor, that's page 9 of -- THE COURT: Yes, sir. 3 MR. BROWN: -- of the Court's copy? The Defendant 4 will have an objection to the first sentence of the second, 5 complete paragraph, where it states: "When more than one o claim is involved." THE COURT: Are you on my page 9? S MR. BROWN: Yes, Your Honor. 0 THE COURT: Now tell me again where you are. :0 i'!R. BROWN: The first sentence, the second : paragraph. THE COURT: "In the absence of such proof"? .3 MR. BROWN: No, Your Honor. "When more than one claim . . ." THE COURT: I'm sorry, see. Go ahead. -177I MR. BROWN: "iVhen more than one claim is involved, 2 as in this case, you should consider each claim and the 3 evidence pertaining to it separately as you would had there 4 been a separate trial on each claim." As we have now gotten 5 this down to just strict liability, I think we need to 6 delete that. 7 8 9 10 li claim, and there would be only one trial on that matter. 12 MR. BALDWIN, SR.: If it will make them happy, 1 3 it's all right with me to come out. 14 THE COURT: Take that sentence out, and just go 1 5 ahead and start that last paragraph with the words: "In 1 6 determining whether any fact in issue. . ." Does that 1 7 satisfy you? 1 8 MR. BROWN: That's agreeable, Your Honor. 1 9 THE COURT: All right. I don't think that is 20 going to be earth-shattering either way. Page 10, that's 21 a continuation. My cage 11 is Plaintiffs' page 6. My 12 22 is Plaintiffs' 7. My 13 is Plaintiffs' 8 and 9. 2 3 MR. BROWN: Your Honor, that's your page 12? 24 THE COURT: Yes, sir. 2 5 MR. BROWN: The Defendant would object to t'ne 1871 D-tfsrf -178- I third paragaph, the second sentence, I believe, beginning 2 "The law i.mnutes to a manufacturer knowledge of the harmful 3 character of his product, whether he actually knows it or 4 not." 5 We object to this only to the extent that we would 6 have the state of the art language which holds the manu 7 facturer to the knowledge held by the scientific community 8 at the time. 9 THE COURT: I think that's in here. 10 MR. BROWN: Okay, but subject to that being in -- II THE COURT: I will make a check by that paragraph 12 on page 12, and I think we will find that I have seen this 1 3 in this somewhere. 14 MR. BROWN: Yes, sir. IS THE COURT: I usually give it. 16 MR. BALDWIN, SR.: I thought I saw something 1 7 marked "state of the art." 1 8 MR. BROWN: Yes, there is a later instruction 1 9 we have requested. But subject to its entry, then -- 20 THE COURT: I think it's in here, your state of 21 the art instruction. 22 MR. BROWN: Yes, Your Honor. 2 3 THE COURT: All right. Thirteen (13) is 24 Plaintiffs' pages S and 9. My page 14 is Plaintiffs' 9 25 and 10. My 13 is Defendant's page 7. My page 16 is 6-tffX 1 Defendant's Page I beg your pardon? -1 7 9 - 2 3 Honor? 4 HR. BROWN: May we have just a moment, Your THE COURT: All right. Now these are your S instructions I am reading now. 6 MR. BROWN: Yes. All right, Your Honor, no 7 objections. 8 MR. BALDWIN, SR.: Wait just a minute, Your Honor. 9 On page 16 we object to the reference to the Hodgkin's 10 disease, and we are going to have that objection throughout. 11 I don't know when you want to be heard on that. But it's 12 our contention that neither the law of Oregon nor the law 1 3 of Texas allows them or requires us to prove that he died 1 4 of any specific disease. The question is whether he died IS and whether their defective product was a producing cause, 1 6 or whether their failure to warn was a producing cause. 1 7 And the jury may speculate about whether he died of 1 8 Hodgkin's disease. 1 9 THE COURT: Is this the first time in the Charge 20 on my page 16 that the word "Hodgkin's disease" appears? 21 MR. BALDWIN, SR.: Yes, Your Honor. 22 MR. BROWN: I believe it is, Your Honor. 2 3 THE COURT: All right, why can't we handle -- I 24 see what he is talking about. Why can't we handle that 2 5 by taking out on the top of page 16 after the "magnitude 1873 0 - l 9 r b -1 8 0 - 1 of the danger" period. T a k e o u t -- or "if on e e x i s t s , " 2 take out everyt h i n g beyond that. 3 MR. BROWN: But, Your Honor, Defendant wo u l d 4 c o n c e d e t h a t w h e t h e r o r n o t it w a s H o d g k i n ' s d i s e a s e m a y 5 not be the c o n t r o l l i n g issue, although the full day of 6 testimony today has been on that point, apparently. We 7 believe that the case, certainly the entire thrust of 8 the case has been on cancer. So the Defendant would request 9 that it be c h a n g e d to read: " M a g n i t u d e of the d a n g e r , if 10 o n e e x i s t s , t h a t i t c a u s e s c a n c e r . " Certainly that is the 11 i s s u e i n t h i s c a s e . 12 M R . B A L D W I N , S R . : I would say "disease" or 13 "death." I mean, I don't think the law requires us to 1 4 s h o w it c a u s e d c a n c e r . I t h i n k it h a s -- I t h i n k t h e IS e v i d e n c e i s o v e r w h e l m i n g i n t h i s c a s e . 16 THE COURT: O v e r w h e l m i n g e v i d e n c e in h e r e that 1 7 it c a u s e s -- t h a t ' s y o u r c o n t e n t i o n , that it c a u s e d can c e r . 1 8 MR. BALDWIN, SR.: W e l l , t h a t it c a u s e s d e a t h . 19 THE COURT: It a p p e a r s to m e t h a t t he P l a i n t i f f 20 w o u l d w a n t t h a t i n h e r e , a n d I a m g o i n g t o p u t i t i n h e r e . 21 M R . B A L D W I N , S R . : All right. 22 M R . B R O W N : Can we also specify -- 23 THE COURT: " I f o n e e x i s t s , t h a t it. c a u s e s c a n c e r . ' 2 4 MR. BROWN: In h u m a n s ? 2S THE COURT: T h a t is all w e are d e a l i n g w i t h , i s n't 1874 0-19'7 it?, -1 8 1 - MR. BROWN: Well, there has been a lot of t e s t i m o n y that wh a t c a u s e s c a n c e r in h u m a n s m a y or m a y not -- o r in a n i m a l s , m a y o r m a y n ot c a u s e it in h u m a n s . THE COURT: Well, I am going to assume that we a re t a l k i n g a b o u t h u m a n s in t h i s C h a r g e , a nd it c a u s e s c ancer. Does that satisfy the objection? MR. BA L DWIN, SR.: Well, we are going to have an o b j e c t i o n to it, a n d it is g o i n g to be b a s e d on this, that I don't think the -- THE COURT: W e l l , j u s t m a k e it n o w a s w e g o along. Let's make your objection. MR. BALDWIN, SR.: T h a t i s v/hat I t h o u g h t I w o u l d m a k e it known to the Court. THE COURT: Yes. MR. BALDW I N , SR.: And I will try to be very brief. I don't think the law requires the plaintiff to prove that this product causes cancer. I t h i n k all the law requires t h e p l a i n t i f f to p r o v e is that t h i s p r o d u c t w a s u n r e a s o n a b l y dangerous, that the warning was insufficient and that was the producing cause of the man's death. N o w it h a p p e n s to be, in t h i s case, that the e v i d e n c e is that the m a n d i e d of cancer, and we are claiming that that was the cause of his death. But some juror may get h u n g up out there, "Well, I don't think 2,4-D causes cancer." And I don't think that 1875 D-ifrs 1 that's our burden. -1 8 2 - 2 THE COURT: Well, what else could a juror find? 3 MR. B ALDWIN, SR.: Somebody may get back there 4 and say "We don't think that what he had was cancer, but 5 w e t h i n k it w a s c a u s e d by 2 , 4 - D . " 6 MR. BROWN: Y o u r H o n o r , from Mr. B a l d w i n ' s 7 opening statement Monday, I quote: "He contacted lymphoma, 8 w h i c h is c a n c e r . " So the case has been opened on cancer; 9 all of the testimony has been cancer. I think we need to 10 f o c u s t h e j u r y ' s a t t e n t i o n o n w h a t t h e c a s e i s a b o u t , i t ' s 11 a b o u t c a n c e r . 12 T H E C O U R T : I a m g o i n g to go a h e a d and o v e r r u l e 13 t h e P l a i n t i f f s ' o b j e c t i o n t o t h e u s e o f t h e w o r d " c a n c e r " 14 o n p a g e 1 6 . 15 Pago 17, which is Defendant's page 3. Page 18, 16 which is Defendant's page 10. 17 ?iR. 3ALDWIN, SR.: Your Honor, we again -- 18 THE COURT: Let me make this comment, Mr. Baldwin. 19 I am going to use "that the product 2,4-1)," I am not going 20 to try to pronounce that every timo I read this. 21 MR. BALDWIN, SR.: I don't know why you don't just say "2,4-D." 23 THE COURT: That's what I just said I am going to 24 say. I am just going to say "2,4-D" throughout this Charge. 25 Any objection? 1876 -183- 1 MR. BALDWIN, SR.: No objection. 2 MR. ORTF.OO: No objection. 3 THE COURT: Any objection on nage 18? 4 MR. BALDWIN, SR.: Your Honor, again the reference 5 to Hodgkin's disease. Again, you see -- and also the law 6 does not require us to show that the defendant knew that 7 the product would cause that. That is why it's strict 8 liability. Whether the defendant knew it or not has nothing 9 to do with it. 10 MR. BROWN: Your Honor, we would turn the Court's 11 attention to the basis of our strict liability in Texas 12 402(a), to Comment (j) under that section which deals 1 3 basically with this. And I believe this language is, if 1 4 not directly from Comment (j), it is -- I S MR. BALDWIN, SR.: I would like to see that 1 6 language. 1 7 MR. KARDISCH: We don't have it. 1 8 MR. BALDWIN, SR.: I know you don't have it 1 9 because I don't think it exists. 20 THE COURT: You are objecting to Paragraph No. 1 21 on page 13, Mr. Baldwin, and the word "Hodgkin's disease" 22 in number 4 on oage 18? 2 3 MR. BALDWIN, SR.: I am objecting to in Paragraph 2 4 1 on oage 13 to the requirement that the plaintiff show 2 S that the defendant knew or should have known that the 1877 0 -M C .O -184- 1 exnosure to the product would cause Hodgkin's disease. 2 The law doesn't require that. And also I am objecting to 3 the use of the term "Hodgkin's disease." 4 MR. BROWN: The Defendant has no objection to 5 the change of "Hodgkin's disease" to "cancer," as the Court 6 has previously indicated. Again, primarily this case being 7 one of warning. Without knowledge of the defects, how can 8 a manufacturer warn? 9 MR. BALDWIN, SR.: I think a more appropriate term 10 would be if v/e are going to do it do it in the language of 11 my opening statement and the way the case has been tried 12 is whether it would cause malignant lymphoma, and I think 1 3 that is a much better word than "cancer" to be used through 1 4 out there. IS THE COURT: Well, couldn't we say "caused the 1 6 defendant's death"? 1 7 MR. BALDWIN, SR.: The Plaintiff's? You mean 1 8 the decedent's? 1 9 THE COURT: Caused the Plaintiff's death? 20 MR. BALDWIN, SR.: Yes, sir. 21 THE COURT: Take out the word "cancer," and just 22 say "caused the Plaintiff's death." 2 3 MR. BALDWIN, SR.: That's the way it ought to be 2 4 submitted. 2 5 MR. G i l l AM: v o u r H o n o r , in fact I t h i n k tha t is 0-/961 -185- 1 our burden is to orove the nroriucing cause of death. If *> you .just oroduce cause of cancer, then there is no link to 3 logical lv go uo -- 4 THE COURT: Where I out the word "cancer," I am 5 going to change that to "the Plaintiff's death." And I 6 will note your exception to that, if you have one. 7 .SR. BROWN: The Defendant would object. Vie 8 believe as the case has been tried, cancer would cover both 9 Hodgkin's, lymohona, all the areas. But the issue is hotfc 10 what caused his death, not that he died. 11 HR. BALDWIN, SR.: Well, that goes to the -- that's 12 argumentative, the question of what caused his death. 13 THE COURT: I can't say "Plaintiffs death," 14 because he is not the olaintiff. 15 UR. BALDWIN, SR.: "The decedent." 16 THE COURT: The decedent. Caused the death of -17 NR. BALDWIN, SR.: Or caused James Oreenhill's 18 deal h . 19 THE COURT: That it. caused Mr. Oreenhill's death, 20 on oage IS. 21 MR. BALDWIN, SR.: Are ve on 1C now? THE COURT: I went back there. 23 HR. BALDS IN, S R .: All righ t. 24 THE COURT: `"hero I had the word "cancor" on the 187925 too of nnce 1-5, I have changed, to "i!' one exists, that it o-i -185- I caused Mr. Greenhill's death." And on page 18, number 1, 2 I am going to leave number 1 as is, except I am going to 3 change "used by the Plaintiff that exposure to the product 4 caused Mr. Greenhill's death." And number 4, "that the 5 product was a producing cause of Mr. Greenhill's death." 6 MR. BEC'iVN: Also ori number 1, I believe we need 7 make the change "manufactured and sold the product used 8 by Mr. Greenhill." 9 THE COURT: I 'm sorrywhere? 10 MR. 5R0WN: The latter part of number 1 on page 11 18 where we have "Plaintiff," probably need to substitute 12 "fir. Greenhill," once again. 1 3 MR. BALDWIN, SR.: Yes. And then on -- 1 4 THE COURT: I'm sorry, I have lost you there. IS Are you on page 18? 1 6 MR. BROWN: Yes, Your Honor, number 1 -- 1 7 THE COURT: All right. "The Defendant knew or 1 8 by the application..." 1 9 MR. BROWN: Okay, and the third line beginning 20 "manufactured and sold the product used by," I believe it 21 should read "Mr. Greenhill." 22 THE COURT: Ail right, yes. "And that exposure 2 3 to the product caused Mr. Greenhill's aeat." 2 4 MR. BROWN: Your Honor, that causes another 2 5 ^roble-!, because here you are talking about -- 0-1963 -187- 1 7HS COURT: "/ell, this is your submission. 2 MR. BR0-7N: Tell, but since v/e have changed the 3 instruction from causing a specific injury, cancer or 4 Hodgkin's or lymphoma or whatever, cancer I believe is S correct, we are talking about what the Defendant knew 6 or by application of reasonable care should have known at 7 the time that it manufactured and sold the product that 8 it caused -- 9 THE COURT: That exposure to the product would 10 cause Mr. Greenhill's death, or could cause. II Mr.. GILLAM: Could. 12 ?!?.. 3P.0WN: Okay, v/e need to add something in 1 3 there. 1 4 COURT: Riat the product could cause Mr, 1 5 Greenhill's death. 1 6 MR. BROWN: Could we have just a minute, Your 1 7 Honor? 1 8 MR. BALDWIN, SR.: Then you have "Hodgkin's 1 9 disease" in that next paragraph twice, paragraph 2. 20 MR. BROWN: Your Honor, one last comment. Pursuant 21 to our objection on the use of "Mr. Greenhill's death" 22 versus "cancer," as to the matter of the warning issue in 2 3 the case, it has not been the Plaintiff's contention that 2 4 any warning should say "this product causes death." The 2 5 emphasis of the Plaintiff's entire case has been there should 1881 D - ! % i -188- be, a warning that 2,4-D can cause cancer. So again to sunnort our contention that ''cancer" should be the proper iii terminology rather than pulling out the specific individuals] a specific individual's injury, I don't think a manufacturer is to foresee each individual person; but the manufacturer, with the knowledge and scientific community should know whether the product is capable of causing a particular disease -- can it cause cancer? Can it cause -- THE COURT: What you are objecting to is severing out "Mr. Greenhill"? MR. BROWN: Yes. I believe we should go back, II as the Court had previously ruled, to go back to just use "that it caused cancer." Cancer is the issue in the case -- MR. B A LD W IN , S R . : N o , no. MR. BROWN: -- and they should noi foresee a particular man's death. Dow Chemical, when they sold this in '77, it doesn't make sense that they should foresee that this might kill a man named Mr. Greenhill. MR. BALDWIN, SR.: I don't think the law requires us to show that they foresaw cancer. The question is whether it was harmful, whether it was a hazardous product so as to make it unreasonably dangerous, and whether the failure to provide a warning was the producing cause of the death, whatever the death was. And the law doesn't say anything about cancer. 1882 p * i ? 6 r -189- I 1 MR. BROWN: Your Honor, without belaboring the ! point, without knowledge how can we warn? ' 3 THE COURT: I see the point you are making. 4 I see the point the Defendant's are making, and I think 5 that it is good. I think I am going back to the use of 6 the word "cancer." j 1 j j i 7 MR. BALDWIN, SR.: Well, if you are going to do 8 that, would you use instead of "cancer" a "malignant 9 lymphoma" which is more precise? 10 THE COURT: Well, isn't all the testimony to the li effect that that is cancer, cancerous? 12 MR. BALDWIN, SR.: Yes. 13 MR. BROWN: Cancer I believe covers all of the 14 s p e c i f i c s w e h a v e g o n e t h r o u g h i n t h e t. r i a I . 15 THE COURT: It appears to me that that's a broader. i 16 term that would include what the Plaintiff would want. j I 17 MR. BALDWIN, SR.: All the Plaintiff wants, and 18 I think all the law requires, is that the Court to instruct j 19 the jury if this product is unreasonably dangerous, and did j i 20 thev fail to issue a proper warning, and was that a producing I 21 cause of this man's death? And I don't think the law ! "J" requires us to show that they anticipated it would cause i j 23 cancer, or measles, or mumps, or anything else. AL1 we are \ 1 j 24 required to show is the product was dangerous and it caused 25 this man's condition, whatever it is. It just happened in 1883 -190- 1 this case it was cancor. In another case it might have been > nerve damage or something. 3 THE COURT: I am going back to page 16. I am 4 going to rework -5 MR. BALDWIN, SR.: Your Honor, I think that -- 6 THE COURT: -- I am going to make it read as 7 follows: at the top of page 16, "magnitude of the danger, 8 if one exists, that it could cause cancer." 9 All right, I am going over to page 18, number 1: 10 "The Defendant knew or by the application of reasonably 11 developed human skill and foresight should have known at 12 the time it manufactured and sold the product used by Mr. 13 Greenhill that exoosuro to the product could cause cancer." 14 MR. BALDWIN, SR.: Your Honor, you know what this 15 is doing is putting us to the burden of proving that this 16 product causes cancer in every instance, and I don't think 17 that's the law. It .haopens to be that this man had cancer, 18 and the evidence is that this product along with something 19 else may have caused his cancer. So we have got the burden 20 now, if you do it this way, of showing that 2,4-D causes 21 cancer. THE COURT: Isn't that what you are attempting 23 to show? 24 MR. BALDWIN, SR.: I ;im attempting to show that 25 2,4-D was a contributing cause of his death. His cancer 1884 o-sn 7 -1911 may: have come partly from some other source. I just think it puts a burden on us, and it's a "buzz" word. You know 3 I have not been able to use "Agent Orange" or "Vietnam" 4 or "napalm" or anything like that because oi the inflammatorj S nature of the word, and this is another one just like it. 6 And the jury is going to go bad; in and their whole argument 7 is going to be, "Well, my gosh, can 2,-1-D cause cancer?" 8 THE COURT: Well, isn't your argument going to 9 be that it could? 10 MR. BALDWIN, SR: It's going to be that it was a 11 contributing cause, but it 'ain't' going to be my argument i: that it was the only cause, I don't think, and that's what 13 this -- the burden this puts on me is to show that it was 1 4 the only cause. 15 THE COURT: Off the record a minute. 16 (Brief off-the-record discussion by The Court and 17 attorneys) 18 THE COURT: I think number 2 could read as follows, 19 we are back on the record now: "That the Defendant failed 20 to provide adequate warnings," because when you talk about 21 "safeguard the product," to me that doesn't mean anything. Make it read "That the Defendant Jailed to provide adequate 23 warnings that exposure to that product," wait just a moment, 2 4 "or failed to provide adequate instructions on what pre 25 cautions should be observed when handling the product when 1885 -192- 1 it -left the Defendant's possession." Leave out your 2 "Hodgkin's disease" reference in both instances. 3 MR. BALDWIN, SR.: I would not object to that. 4 THE COURT: All right. "That the Defendant," 5 it will read as follows, number 2: "That the Defendant 6 failed to provide adequate warnings," take out "that exposure 7 to that product caused Hodgkin's disease, "to provide 8 adequate warnings, or failed to provide adequate instructions 9 on what precautions should be observed when handling the 10 product when it left the Defendant's possession." 11 Any objection to that? 12 MR. BROWN: None, Your Honor. 13 THE COURT: Any objection for the; Plaintiff? 14 MR. BALDWIN, SR.: No, sir. IS THE COURT: Any objection to number 3? Number 4? 16 MR. GILLAM: Number 4 again, we changed -- 17 MR. BALDWIN, SR.: From "Hodgkin's disease" to 18 "the proximate' cause of Mr. G reonh i11's death," isn't that 19 what you changed that to? 20 THE COURT: I have it hero now "That the product 21 was a producing cause of Mr. Greenhill's death." Any T objection to that? 23 MR. BALDWIN, SR.: No. 24 THE COURT: I think it protects everybody. 25 MR. BROWN: Again, all the other prior instructions 1886 p-mv -193- 1 have focused the causal issue on this could cause cancer. 2 I think we should remain consistent. 3 THE COURT: Now I am going back to page 16, at 4 the ton of page 16, and make it read: "if one exists, 5 that it could cause cancer." I don't think you can use 6 that in that context on page 18, number 4. 7 MR. BROWN: Okay. 8 THE COURT: I think you have got to use the words 9 "Greenhill's death." You couldn't make it read "That the 10 product was a producing cause of cancer." That would not II make any sense. 12 MR. BROWN: We withdraw our objection to number 4, 13 page 13. 14 THE COURT: All right. N o w , num ber 1 on p a g e 13 15 is: "The Defendant knew or by the application of reasonably 16 developed human skill and foresight should have known at the 17 time it manufactured and sold the product used by Mr. 18 Greenhill that exposure to the product could cause cancer." 19 That is the way I am going to present it, subject 20 to any exception on the part of the Plaintiff. 21 Page 19 is Defendant's page 11. 22 MR. GILLAM: Your Honor, that has already been 23 stated in shorthand on page 16, I believe. In other words, 24 the state of the art defense is incorporated into the first 25 full paragraph where it talks about manufacturer's knowledge 0- ] based upon the prevailing -- -194- THE COURT: I think essentially it's in here. 3 MR. BROWN: Your Honor -4 THE COURT: There may be a little hil of u 5 derivative that you put on my page 19. 6 MR. BROWN: Your Honor, the Defendant would j | ! i ! i ii j 7 request the lull instruction on page 19. Your Honor, the X Defendant would agree to delete the second paragraph of j 1 j 9 page 16, which they are referring to as a 'shorthand 10 rendition of state of the art,' but surely it does not II fully state the defense; and in this case certainly that i ii i 1 i: is a very crucial matter in light of the dates of the j 13 publications of the articles. i j j 14 THE COURT: You are agreeable to taking out the j IS paragraph, the last paragraph on page 16? 16 MR. BROWN: The next to the last. 17 THE COURT: The next to the last paragraph -- ! 18 MR. BROWN: "That an unreasonably dangerous 19 propensity -- 20 THE COURT: -- on page 16, but leave in all of 21 page 19? . .I i > | MR. BROWN: Yes, Your Honor, so that wo have the 1 23 full state of the art instruction.. 24 THE COURT: All right. Any objection to t.hal? I J i j 25 MR. BALDWIN, SR.: No, sir. 0-197/ -1951 THE COURT: All right, the .second paragraph on T page 16 is omitted; the last paragraph on page 16 remains 3 as is. No objection to page 17. We have already passed 4 18 two or three times. Page 19 remains as is. Page 20. 5 MR. BALDWIN, SR.: The' words "strong and substantia 6 should come out. 7 THE COURT: I agree. 8 MR. BALDWIN, SR.: And instead it should be 9 replaced with the word "some evidence." I O THE COURT: Just "constitutes evidence." 11 MR. BALDWIN, SR.: All right. 12 MR. BROWN: Your Honor, we would cite the Court 13 to the case of Gideon v. Johns Manville. 761 F.2d 1129 at 14 1144, where "strong and substantial" is used by the Fifth 15 Circuit in its quotation. I believe from the Fifth Circuit 16 that would be their interpretation of the law. 17 If I could read from page 1144 -- 18 THE COURT: Give me that cite again. 19 MR. BROWN: Gideon v. Johns Manville, 761 F.2d 20 1129 at 1144. 21 THE COURT: What does it say? ">1 MR. BROWN: Reading from page 1144: "Compliance 23 with such government safety standards constitutes strong 24 and substantial evidence.' that a product is not defective." 25 This is an asbestos case regarding the, as I understand it, a - i97?~ - 196- I regard ing the duty on the manufacturers of asbestos to warn *> of the dangers inherent therein, and went to whether at the 3 time of exposure of the plaintiff they had knowledge, or 4 whether they were meeting standards at that time. But the 5 ! Fifth Circuit clearly states it had to be a strong and i 6 | substantial evidence. 7 MR. BALDWIN, SR.: There they were not proving 8 or ruling on an instruction that said that. That was .just 9 dicta in an opinion. 10 MR. GILLAM: Certainly if you put that in there, 11 Your Honor, you have an extraordinary comment on the weight. 12 THE COURT: I am not going to put that "strong 13 and substantial." I am going to make it "constitutes 14 evidence that a product." I am going to let the Jury decide 15 whether it's strong and substantial. I will note yop.r 16 exception to that. 17 MR. BROWN: Thank you, Your Honor. 18 THE COURT: Page 21 is Defendant's page 13. 19 Twenty-two (22) is Defendant's 14. 20 MR. BALDWIN, SR.: Well, wo have got all of those 21 Hodgkin's disease problems in that. THE COURT: On page what, page 22? 23 MR. GILLAM: 23. 24 MR. BALDWIN, SR.: 23 25 THE COURT: I haven't gotten there vet. 1890 0-19 72 1 2 "23. " -197- MR. GILLAM: Oh, I'm sorry. I thought you said 3 THE COURT: All right, number 23. 4 MR. BALDWIN, SR.: No, it's not our claim. 5 THE COURT: This is Defendant's page 15, the 6 Defendant's submission. 7 MR. BALDWIN, SR.: Well, the Defendant has got a 8 right to submit their contentions, and I think the Plaintiff 9 ought to have the right to submit their contentions. This 10 is not our contention. 11 THE COURT: This is the Defendant's -12 MR. BALDWIN, SR.: Idea of what our contentions 13 are. 14 THE COURT: That is correct, yes. 15 MR. BALDWIN, SR.: And I think the contentions 16 in the Charge ought to be pretty much in the language that 17 the parties submit them. 18 THE COURT: That's what I hope to do. I can make 1 9 that read: "The Defendant contends that the Plaintiff is 20 claiming." 21 MR. BROWN: That will be fine. n THE COURT: What is the objection, or who is 23 objecting to page 23? 24 MR. BALDWIN, SR.: The Plaintiffs are, Your Honor. 25 THE COURT: What part are you objecting to? 1891 D-!??1/ -1981 MR. BALDWIN, SR.: The w h o l e l h i rue. I just think it ought to be what the Plaintiffs contentions are ought 3 to be in the language submitted by the Plaintiffs, because 4 if you start taking out "Hodgkin's disease" you are going to i 5 get back in that cancer business, and that is not the 6 Plaintiff's contention. It may be that the Court may instruc 7 the jury to that, but that 'ain't' our contention. 8 MR. GILLAM: Your Honor, if I could point out to 9 the Court on page 11, and this was our page which we ! 10 entitled "Contentions of the Party," it sets out very \ 11 plainly what our contentions were, not in the language that i i: the Defendant uses -- we haven't claimed that 2,4-D causes 13 Hodgkin's disease. That's on page 11. It sots out in our j 14 language what we contend our contentions to be, and it is I S not what the Defendant submitted. 16 MR. BALDWIN, SR.: I don't know why that page 17 even ought to be in here. 18 THE COURT: Why do we have to have that in here? 19 MR. BROWN: Your Honor, we would agree to take 20 out the first paragraph where we refer to the Plaintiff's 21 contentions, and we further agree to remove the references *> to Hodgkin's disease and just again go back to cancer. Also, 23 we have a negligent, the term 'negligent,' I believe we 24 could change to that -- 25 MR. BALDWIN, SR.: Your Honor, I really think n -199- 1 you have said all of this in other places in the Charge. 2 THE COURT: I am going to omit page 23 and 24. 3 I don't think it's necessary to be in here. Page 25, which 4 is Defendant's page 17. 5 MR. BALDWIN, SR.: Well, I believe we have gotten 6 these pages kind of numbered wrong here or something. 7 THE COURT: Twenty-two (22) is still in. 8 MR. BALDWIN, SR.: Judge, which is -- is that 9 what you are calling the strict liability issues? 10 THE COURT: Yes. We will be taking out page 23 11 and 24. And 25 is Defendant's page 17. 12 MR. BROWN: Twenty-five (25) is -- 13 MR. BALDWIN, SR.: I want to comment on 22 before 14 we get away from it. 15 MR. GILLAM: Our pages are in reverse order. 16 MR. BALDWIN, SR.: It was stuck behind 23. 17 MR. BROWN: There is one page out of order in 18 here, the way it was submitted to us. 19 MR. BALDWIN, SR.: You have got an instruction 20 here on misuse, and you are submitting comparative under 21 Duncan; and there is no reason to do both. MR. BROWN: Your Honor, we agree. 23 THE COURT: Take out 22, and 23 and 24. Now we 24 arc to 25. Twenty-six (2 G ), 2G is the Defendant's page 18. 25 MR. GILLAM: Hold on .just a second on that, Your 1893 o- mi* 1 Honor. 2 -200- THE COURT: Do we have- anything in this case that 3 would cover on that intermediary? 4 MR. BALDWIN, SR.: I am going to tell you this, 5 there is no law in Texas on that. 6 MR. BROWN: Certainly it's in the case. 7 .MR. BALDWIN, SR.: Do you have a case to support 8 this? 9 MR. BROWN: I don't have one with me, no. 10 MR. BALDWIN, SR.: There are not any. That's not 11 the law. 12 THE COURT: Where do we have that in this case on 13 page 26? 14 MR. BROWN : That the product that the plaintiff 15 in this case, or Mr. Greenhill used, came through the Forest 16 Service. lie worked in the Forest Service and the product 17 was sold to the Forest Service. As this product is one 18 that is commercially restricted product, it is sold to those 19 who have particular knowledge in the handling, etcetera. 20 Thai would lx* lhe Forest Service*. Then the ForosL Service 21 then allowed its employees. The* duty goes, if it's supplied i-> to the intermediary, it's much the same thing as such as a 23 bulk supply case. The manufacturer supplies in bulk to the 24 one with the knowledge of that product, then they have the 25 duty, whatever they do with it, mix it with other products, 6-1977 1 etcetera, to then pass on whatever warning. -201- *> THE COURT: Are you say inti that the manufacturer 3 has no duty when they sell to an intermediary to protect 4 the -- 5 MR. BALDWIN, SR.: Ultimate user. 6 THE COURT: -- the ultimate user? That's what 7 this says. 8 MR. BROWN: If you have a learned intermediary 9 in between. 10 THE COURT: What is a learned intermediary? j 11 MR. BROWN: One who has the expertise or similar 12 expertise as the manufacturer, that is one who should have 13 the knowledge of any potential hazards or dangers in the 14 product, as well as the manufacturer; and then that person, i 15 having that knowledge, uses that product or allows his 16 employees. The same situation where a manufacturer, as we 17 know in a bulk supply case, there is no duty for the bulk 18 supplier to supply warning to the intermediary when he then 19 takes it, mixes it, whatever he does, changes it, it Loses 20 the ability to maintain that warning to get to the ultimate 21 user. So in comparison, the learned intermediary has the n knowledge, then he has the duty to pass that knowledge on. 23 MR. BALDWIN, SR.: Your Honor, not only is that 24 not the law of Texas but it is contrary to the law, the* 25 case being -- 1895 o-tjn -2021 THE COURT: I am going to take out page 26. I will note your exception. Page 27. Page 28. i 3 MR. BALDWIN, SR.: Maybe that should come out of j 4 there. tI j i i 5 THE COURT: Yes, this is out. Take out page 28. | 6 MR. BALDWIN, SR.: Well now I presume you have 7 defined negligence on the issue. I think I remember you did 8 that. 9 THE COURT: Somewhere I have. Whether this case 10 or not, I am not sure. 11 MR. BALDWIN, SR.: I think you do. 12 THE COURT: Take out 29. 13 MR. BALDWIN, SR.: And 30. i 14 THE COURT: And 30. 15 MR. BALDWIN, SR.: Thirty-one (31) and 32. 16 THE COURT: Take out 31 and 32. Thirty-three (33) 17 I think is all right. 18 MR. BROWN: Other than the last half dealing 19 with negligence again. 20 THE COURT: That comes out. 21 MR. BROWN: The second paragraph. 22 THE COURT: Yes. 23 MR. MAKULSKI: YourHonor, there is going to be 24 need for some change in that language on 33 regarding the 25 Plaintiff. I think you have* to put "decedent.," regular -I7 1 chnges made in the 2,4-D. -203- 2 MR. BALDWIN, SR.: No, the Plaintiff must prove -- 3 MR. GILLAM: No, the next sentence. 4 THE COURT: "Was the producing cause of Defendant's 5 I mean, "was the producing cause of Mr. Greenhill's -- 6 was the producing cause of Mr. Greenhill's injury, or death.' 7 Which do you wish to use, "injury" or "death"? 8 MR. BALDWIN, SR.: Either. I don't care. 9 THE COURT: Make it "producing cause of Mr. 10 Greenhill's injury." All right, the rest of 33 goes out, 11 the last paragraph. 12 Now I have got a questionmark by this next one 13 on page 34, "Alternate Causation." If there is no objection, 14 I will 1cave it in. 15 MR. BALDWIN, SR.: Your Honor, I am reading it. 16 Well, if you are going to give it, there is one that we 17 ordinarily request and that is -- I think it ought to come 18 out -- but if you are going to give it, then I think you 19 ought to give the additional charge that if there are two 20 causes of an event, one of which was the defendant and the 21 other was some third party, and the plaintiff need only ->2 prove that the causation of the defendant was a producing? 23 cause of the accident in order to recover. 24 THE COURT: Isn't that in here by inference, what 25 you just dictated? 0-/T8& -204- I MR. BALDWIN, SR.: Well, yes, but so is this 1 other by inference; and I think if you are going to highlight 3 that, then you ought to highlight the other side of it. 4 THE COURT: Let's go back to page 33 a minute, 5 on the bottom of that paragraph that we left in, "which, in a 6 natural sequence, produces," take out the word 'Plaintiff,' 7 "produces Mr. Greenhill's injuries or damages complained 8 of, if any." Page 33. 9 MR. BALDWIN, SR.: I think that adequately covers 10 causation. II MR. BROWN: Your Honor, we would agree to submit 12 the additional instruction as requested by Mr. Baldwin, and 13 add that to page 34. 14 THE COURT: Dictate it and we will put it in. IS If you have one, you can just get it and give it to us and 16 we will put it in. 17 MR. BALDWIN, SR.: All right, sir, do you want 18 me to go ahead and dictate? 19 THE COURT: Yes. 20 MR. BALDWIN, SR.: And then if I can find one 21 that's a little better language, I will bring it to you. "You are further instructed that in the event 23 there are two causes to the injury or death of Mr. Greenhill, 24 and that one of which causes was that of the Defendant and 25 the other which cause was that of a third person, the 1898 O ' / f t l -205- I Plaintiff need only prove that the Defendant's cause was 2 a producing cause of the event, and this cause may concur 3 with any other cause to produce the event." i 4 THE COURT: (to Miss Jordan, secretary) Sue, , 5 type that up, doublespaced, and bring it back in here. And j j 6 we will make any changes after we look at it. I think there { 7 is a word or two that should be transposed toward the 8 beginning. 9 MR. BALDWIN, SR.: I could have done it cleaner -- 10 MR. BROWN: Do you want me to wait and make * 11 objections once we get that typed up? \ i ! 12 THE COURT: Get that typed up right quick. Let's \ 13 just wait until we get this typed up, just a second, while j 1 14 Miss Jordan is preparing this submission of Mr. Baldwin. ji 15 Any objection to 35, page 35? I . 16 MR. BROWN: May we have just a moment? I don't 17 believe we have read these last few pages. 18 MR. BALDWIN, SR.: Judge, that sets forth the 19 as it is. 20 THE COURT: Beginning on the fifth line of the 21 next to the last paragraph, beginning with "then your 1 22 verdict will bo for the Plaintiff and against any such 23 Defendant." I think that should be "against the Defendant." t j 24 MR. BALDWIN, SR.: Yes, that is right. j 25 THE COURT: Page 36 and 37, it's a eontinuation 1899 b - m * ~ 1 ! of,Plaintiff's request on page 10, 11 and 12. -206- t MR. BALDWIN, SR.: I don't have any objection to 3 -I 35, 36 or 37. 4i l 5 THE COURT: That's your submission. MR. BALDWIN, SR.: Thai's my submission, and I 6 think it's correct. It came right out of the cases. 7 THE COURT: You are going to agree to that? 8 MR. BALDWIN, SR.: Yes, sir. I can provide the 9 Court with the cases it came out of, if you would like for i10 me to. n THE COURT: All right. 12 ! MR. BROWN: The Defendant has no objection to tS u j! those, 35, 36 and 37. 1- THE COURT: Thirty-eight (38) is Defendant's page 15 28. Of course, that's duplication, really, of what the 16 Plaintiff has already said, to some extent. 17 MR. BALDWIN, SR.: I think that could come out. 18 THE COURT: Do you need that page 38 in view 19 of what the Plaintiff has already said? You have pretty 20 well said it over again, haven't you? 21 MR. BROWN: The? only purl, on page? 38 the Defendant would rc'que'st would be' the.' first two sentone-.es. 23 | THE COURT: All right. "Does not in any way mean >4 :| that you should award damages to the.* plaintiff," period? !-! I 25 MR. BROWN: Yes, from the beginning to that point. 1900 0 - I T 2 3 -207- 1 THE COURT: And then cut out the rest of it? *> MR. BROWN: Yes. 3 THE COURT: All right, I will do that. Any 4 objection by the Plaintiffs to taking out the remainder 5 of that portion on page 38 at the beginning of the ending 6 of the second sentence? 7 MR. BALDWIN, SR.: We have no objection. 8 THE COURT: Page 39 is Plaintiff's -- 9 MR. GILLAM: Your Honor, there is some problem 10 with that, and that's what's been redone. These damage 11 categories here were the categories prepared under Oregon 12 law. And we have prepared some additional ones under Texas. 13 The elements of damage are slightly different under Oregon 14 1aw. 15 THE COURT: Do you have the Texas that you wish 16 to submit? 17 MR. GILLAM: Yes, sir. 1 8 THE COURT: Let me have them. 1 9 MR. GILLAM: Could I have just a moment, Your 20 Honor? 21 THE COURT: Have* you given the Defendant a copy 22 of this charge? 23 MR. BROWN: Was that in the stuff you gave us? 24 MR. GILLAM: I don't know that it was. 25 (Mr. Gil lam tendering document lo Mr. Brown) 1901 O - l f t f -208- MR. BROWN: Is this what you are now proposing under Texas? THE COURT: Yes. (Brief off-the-record discussion at side bars) THE COURT: Have you looked it over, the Defendant MR. BROWN: No, Your Honor. (Off-the-record discussion continues at side bars) THE COURT: Just a basic submission of damages shouldn't be any big problem on this issue we are talking about now. MR. BROWN: We just want to make sure we get the correct instructions under the Supreme Court recent case, Lillibow (pho), which basically sets out those specific instructions, Your Honor1. I think wo have about got it, Judge. THE COURT: All right. (OfT-tho-reeord discussion continues at side bars) THE COURT: Do you have it? MR. BROWN: Yes, Your Honor. THE COURT: Give to me what you have agreed to in substitution of 39 and 40. Art' you making any change to the Charge' on page 39 and 40? MR. G11,LAM: Yes, sir. After the first paragraph ! and after the colon, where on the copy you have it says 1902"a through d," we will be substituting -- this will be the -209- 1 language we substitute: "a) the necessary medical, > nursing, and hospital care received by James Edward 3 Greenhill for the treatment of injuries sustained by 4 him as a result of the occurrence in question." That the 5 first word after "a" should be "include," I suppose. 6 "b) include the reasonable amount oI' expenses 7 for funeral and burial for James Edward Greenhill. 8 "c) would include the conscious physical pain, 9 if any, and mental anguish, if any, suffered by James 10 Edward Greenhill before his death as a result of the 11 occurrence in question. 12 "d) include the emotional pain, torment and 13 suffering that Ann Greenhill, would, in reasonable 14 probability experience from the1 wrongful death of James 15 Edward Greenhill. 16 "e include the pecuniary loss to the spouse 17 and child of James Edward Greenhill as a result of this 18 injury and death. 19 "You arc instructed that pecuniary loss is r 20 defined as lost earnings to the time of his death and lost 21 earning capacity, if any, that he would have; contributed to his wife and child had he lived, care, maintenance, 23 support, services, advise, counsel and reasonable contri 24 butions of pecuniary value that the spouse and child of 25 James Edward Greenhill would, in reasonable probability, 1903 P ''/?%' 1 have received from James Edward Greenhi11." -210- *> MR. BROWN: Should I hold my objections until we 3 complete? 4 THE COURT: Yes. 5 MR. GILLAM: "f) include the loss of companion 6 ship and society of James Edward Greenhill to his spouse 7 and child. 8 "You are instructed that loss of companionship 9 and society is defined as the positive benefits flowing 10 from the love, comfort, companionship, and society that 11 the spouse and child of James Edward Greenhill would, in 12 reasonable probability experience if James Edward Greenhill 13 had 1ived." 14 And then the rest of the page 39 would continue IS on as is the last full paragraph on that page. 16 THE COURT: Beginning "You may award such sum 17 of money"? 18 MR. GILLAM: Yes, sir. 19 THE COURT: Begin there? 20 MR. GILLAM: Yes, sir. So essentially what we 21 have done is delete "a" through "d" on this page, and add 22 a new "a" through "f. i 23 THE COURT: "A" through "f"? 24 MR. GIIJ.AM: Yes, sir, and I dictated those. 25 THE COURT: All right. Any objection? 1904 O ' l f i 7 Ij -211- MR. BROWN: Yes, Your Honor. The Defendant would 2 object to, as dictated, Section "e," the definition or 3 instruction "e" reads: "The pecuniary loss to the spouse i4 and child of James Edward Greenhi11 as a result of this 5 injury and death." 6 It goes on: "You are instructed that pecuniary 7 loss is defined as," from that point which begins "lost 8 earnings to the time of his death and his lost earning 9 capacity that he would have contributed to his wife had 10 he lived," wo object up to that point, in that the II instruction allows for a double submission in that the 12 instruction continues on and says: "care, maintenance, 13 suoport, services, advise, counsel and," beginning here, 14 I "reasonable contributions of pecuniary value." 15 It's the Defendant's position that, as dictated 16 by Plaintiff, this allows a double submission as to the 17 earnings. They are submitting earnings on one point, both 18 earnings that he lost while he was alive, as well as the 19 earning capacity in the future. But yet they allow the 20 double submission, and they come back and say: "reasonable 21 contribution of pecuniary value that the spouse and child >^ of James Edward Greenhi11 would, in reasonable probability, 23 have received from James Edward Greenhi11." I 24 | MR. BALDWIN, SR.: Maybe we can save some time. 25 If y'all would agree with me that the term "pecuniary value" 1905 -212- I that you are speaking of there' includes lost earnings and > lost earning capacity, then I have no objection. 3 MR. BROWN: Your Honor, we cannot agree that it 4 includes lost wages, because if we start talking about 5 lost wages you then have to consider the -6 MR. BALDWIN, SR.: Well, then do you want us to 7 submit that separately? 8 MR. BROWN: No, we'd still have a double 9 submission. 10 MR. BALDWIN, SR.: Well, are you saying we can't 11 submit the question of lost wages? 12 MR. BROWN: Well, we either need to submit wages 13 and allow for the discussion or argument on the issue of 14 what Mr. Greenhill would have expended of those lost wages, 15 or leave it as they had original ly -- as it was originally 16 typed here, "reasonable contributions of a pecuniary value." 17 MR. BALDWIN, SR.: I say if you agree that those 18 terms include his lost earnings and lost earning capacity, 19 that's okay with me. We will pull out all that other 20 language about -21 MR. GILLAM: Pull out lost earnings. 22 MR. BROWN: The wages that would have -23 MR. BALDWIN, SR.: We'll just go as printed 24 before we added anything. 25 MR. BROWN: As printed -- 1906 -213- 1 MR. BALDWIN, SR.: I wasn't sure that that term, pecuniary loss, included lost earnings. And if y'all will 3 stioulate with me that it does, then that's fine, that cures 4 it. And I think it does after I read it again. 5 MR. GILLAM: Is the Jury going to understand it? 6 M R . BALDWIN, SR.: No, we are going to have to 7 explain it. 8 MR. BROWN: And thereby will we be able to exolain, 9 not his entire lost wages, but the benefits that would have 10 flowed to the spouse and child; therefore, you get to 11 consider what he would have spent, etcetera? 12 MR. BALDWIN, SR.: Sure. 13 THE COURT: Of course you can argue that, yes. 14 MR. BROWN: So as -- 15 THE COURT: Now, dictate' it to me in the final 16 form like you want it. 17 MR. BROWN: Just as it's written. 18 MR. BALDWIN, SR.: Just use it like that, and take 19 all that garbage out that we put in it. Use the printed form 20 MR. BROWN: Do you want us to give you a copy? 21 MR. GILLAM: Do you want us to go ahead and 22 dictate it into the record? 23 THE COURT: Dictate it into the record. If you 24 have a copy there -- 25 M R . B A L D W I N , S R . : H e ' s g o t a c o p y . 1907 0-1996 -214- 1 , THE COURT: If you've got a copy, give us a i 2 cony that you wish to have submitted in place of -- 3 | MR. BALDWIN, SR.: Here's a clean one right here. 4 THE COURT: Just a moment now. If you have a copy 5 that you wish to put in the place of our "a" through "d" 6 give it to me and we will out it in. 7 (Off the record discussion at side bar between Mr. 8 Gillam and Mr. Brown) 9 THE COURT: All right, have the attorneys agreed 10 I on the substitution that will appear on page 39 of the II 11 Court's Charge that you have, taking out the "a" through 12 "d" and adding some new material which you have just given 13 to Miss Jordan, is that correct? Is that agreeable? 14 MR. BROWN: Agreeable to the Defendant. 15 MR. BALDWIN, SR.: Agreeable to the Plaintiff. 16 THE COURT: All right. So that will take out 17 "a" through "d" on page 39, insert what you have agreed 18 upon, pick up with the last paragraph on page 39 -- are 19 y'all with me? No, you're not. 20 MR. BROWN: The last naragraph on page 39. 21 THE COURT: Pick up the last paragraph on 39. 22 All right, on cage 40, I think that will remain as is. 23 MR. BROWN: Your Honor, the Defendant would move 24 to delete page 40. It's basically comparative fault. 25 M R . B A L D W I N , S R . : Y o u d o n ' t w a n t t o s u b m i t V~lfV I comparative fault? n MR. BROWN: (Shaking head negatively) -215- 3 MR. BALDWIN SR.: Okay. In other words, you are 4 withdrawing any issue that Greenhill committed any wrongful 5 act? 6 MR. MAKULSKI: According to that instruction, 7 that's correct, it's not our contention. 8 MR. BALDWIN, SR.: Okay. Well, then I agree it 9 should come out. If you are not going to submit any Duncan 10 issues, then it should come out. 11 THE COURT: Do you want 40 out, page 40 and 41? 12 Not 41, but page 40? 1 3 MR. BALDWIN, SR.: Based on what their representa 14 tion is. 15 THE COURT: Well, I want to be sure what that 16 representation is. 17 MR. MAKULSKI: Make sure I have got the right 18 page 40. 19 THE COURT: If you do that, that then takes out 20 Special Interrogatory No. 5. 21 MR. BALDWIN, SR.: Right. I don't think it's 22 raised, but in an abundance of caution, I was going to. 2 3 I don't think there is a stitch of evidence ia' i here. 24 THE COURT: There is no evidence that the decedent 25 did anything improperly, is it? / ??!- -216- MR. MAKULSKI: No, correct, Your Honor. We will | take 40 out. j THE COURT: Take page 40 out, and also just while we are talking about it, we will take out Special Interroga tory No. 5, which you have dealing with -MR. BALDWIN, SR.: Your Honor, I want to make it understood -- I want to have it understood, at least, that they are not going to object for the failure of the Court to submit that. MR. MAKULSKI: No, we are not going to object. THE COURT: I understand they are the ones, the j Defendants are the ones who have asked that page 40 be j taken out. MR. BALDWIN, S R . : T a k e n o u t . B e c a u s e i f t h e y want it, then out of an abundance of caution -- THE COURT: Forty-one (41) will remain in, 42 is just boilerplate, as is 43, 44, 45. All right, Special Interrogatory No. 1. (Brief off the record discussion between The Court and Miss Jordan, secretary) THE COURT: Miss Jordan says go back to page 34. This is the paragraph that Scottie typed up. MR. BALDWIN, SR.: I have got another one. THE COURT: You have got another what? MR. BALDWIN, SR.: A cleaner one that I got out 1910 0-1993 I of ,a charge I gave in another case > THE COURT: All right. -217- 3 MR. BALDWIN, SR.: Do you want me to read it to 4 the Court? 5 THE COURT: Read it. Give them a copy of it, 6 and both of you read it together. 7 MR. BALDWIN, SR.: Can you get us a copy made of 8 this? 9 THE COURT: Yes. 10 MR. BALDWIN, SR.: Let me see, when it got typed 11 up we have got a word left out. I may have left it out 12 myself. 13 THE COURT: I retyped it. It made it read: "You 14 are further instructed that in the event there are two 15 causes to the injury or death of Mr. Greenhill, and that 16 one of which causes was that of the Defendant," no, it's 17 not done right yet. Here it is -- this is what Mr. Baldwin 18 dictated. 19 "You are further instructed that in the event 20 there are two causes to the injury or death of Mr. Greenhill, 2! and that one of such causes was that of the Defendant and the other cause was that of a third person," I have changed 23 up the wording a little -- take out the word "which" in 24 1)01h instances, "the' Plaintiff need only prove that the 25 Defendant's cause was a producing cause of the event, and 1911 )-my -218- this cause may occur with any other cause to produce the event." I j What is wrong with that? MR. BALDWIN, SR.: Well, this is .just a lot cleaner. ! i THE COURT: All right, if you have got something j that's better, we will take that. MR. BALDWIN, SR.: And it's much shorter. Let me just read it to the Court. THE COURT: All right. j i j i I ; 1i ! MR. BALDWIN, SR.: "You are further instructed that the manufacturer or seller of a defective product, which Droduct is a producing cause of an injury or death j l j i ! of one' is liable for the injuries or death caused thereby, j even though the injured person," and that would come out due to the fact they are taking it out, "or some third person may have contributed to said injuries or death." It's much shorter and clearer. We will take i out the words "injured person" or leave it in -- however you want to do it. MR. BROWN: Your Honor,- we would request the j submission as you read it. ' MR. BALDWIN, SR.: I'll give you both of them ! j i to look at. This is a cleaner one. (Tendering to Mr. Brown) I It's not quite so wordy. 1912 0-!9fr -2191 TUE COURT: I am glad we are getting concerned -> about that at this late date. I don't care, really. It's 3 saying the same thing only different terms. 4 MR. BALDWIN, SR.: It's my request, and I would 5 like the second one. 6 THE COURT: You object to the second? 7 MR. BALDWIN, SR.: No, I say I request the second. 8 MR. BROWN: We would object to the second and 9 request the first -- IO THE COURT: Well, that's as usual. 11 MR. BROWN: -- just to be consistent. 12 THE COURT: I am going to give the first instruct ic 13 that Mr Baldwin gave That is page' 34, is it not the 14 second paragraph of page 34. 15 Let's go to the Interrogatories. 16 MR. BALDWIN, SR.: Let me make a suggestion at 17 this point. What about in the first page of the -- 18 THE COURT: Where are we now, what page? 19 MR. BALDWIN, SR.: We are on page -- well, "1" 20 should come out. 21 THE COURT: Are you on Special Interrogatories? 22 MR. BALDWIN, SR.: Yes. 23 THE COURT: A H right. .. * 24 MR. BALDWIN, SR.: The one I think should come out 25 is the negligence. 1913 D ~ /7 ? 6 1 TIIE COURT: One (1) comes ou* . -) MR. BALDWIN, SR.: Right. -220- 3 THE COURT: All right. 4 MR. BALDWIN, SR.: I think the Court somewhere in j 5 the very first page of his Charge, the first time he refers 6 to "2,4-D, di c.hlorophenoxvacet ic. acid, say "this term will 7 hereinafter be referred to as "2,4-D," and from then on the 8 Jury knows what you are talking about, and we can shorten 9 this issue by just calling it "2,4-D." JO THE COURT: All right, let's look at Special 11 Interrogatory No. 1. 12 MR. BALDWIN, SR.: "Hodgkin's disease" should 13 come out. Just "decedent's death." 14 THE COURT: Wei I , my S p e c i a l I n t e r r o g a t o r y No. 1 15 makes no comment. 16 MR. BALDWIN, SR.: Oh, that comes out, Judge, 17 that's negligence. 18 THE COURT: I know, I think that's out. I am 19 trying to keep going on it. 20 MR. BALDWIN, SR.: I'm sorry. 21 THE COURT: No. 1 c o me s o u t . MR. BALDWIN, SR.: I thought we had passed that. 23 THE COURT: No. All right., No. 2 I think stays in, 24 but not the word "Hodgkin's disease was a producing cause 25 of Mr. Greenhill's. . . " 1914 0 ' / & 7 -2211 MR. BALDWIN, SR.: I don't know why that issue > belongs. I mean, "producing cause" comes after the Jury 3 has found whether it was defective or not. 4 MR. BROWN: If it's not a producing cause, all the 5 other issues are moot. They need not answer any other 6 issues. 7 MR. BALDWIN, SR.: What you are doing is asking 8 the Jury to find producing cause finding before it finds 9 anything else. In other words, you are reversing the order 10 of submission. And I don't know of any case holding that. 11 MR. BROWN: Judge, the ultimate issue in the case 12 is causation -- did it cause it? 13 MR. BALDWIN, SR.: The two questions for the Jury 14 to decide: "Was the product defective?" And by the way, IS I don't see an issue on that. And the other one: "And was 16 that a producing cause of the man's death?" 17 THE COURT: Where are the Plaintiffs' Requested 18 submissions on Interrogatories? 19 MR. BALDWIN, SR.: Let me tell you what we did, 20 we submitted ours on general instructions; and what we 21 did we instructed -2> THE COURT: Well, who did you give them to? 23 MR. GILLAM: I gave them to somebody. 24 MISS JORDAN: You picked them up. 25 MR. GILLAM: I did what? 1915 )'-/< ? ? ? -222- 1 MISS JORDAN: You picked them up off my desk. *> MR. GILLAM: I picked up your draft of our issues? 3 MISS JORDAN: Yes. 4 THE COURT: I would kind of like to have an idea 5 of what you want. 6 MR. BALDWIN, SR.: Let me see if I can .just kind 7 of shorthand render it. 8 MR. GILLAM: Here it is. 9 MR. BALDWIN, SR.: Wo said in the general Charge -- 10 THE COURT: Well, may I see it? Does anybody care 11 if I look at a copy? 12 MR. BALDWIN, SR.: I thought we gave you a copy. 13 THE COURT: I haven't seen it. 14 MR. GILLAM: I brought it over, Judge, and then 15 took it back this afternoon to look at it. (Tenders document 16 to the Court) 17 MR. BALDWIN, SR.: And here is the other form 18 THE COURT: It does cut it back pretty much, 19 doesn't it? 20 MR. GILLAM: It's .just a general submission, 21 Your Honor. 22 MR. BROWN: Is that not what you submitted to me 23 the other day, the Verdict Form? 24 MR. GILLAM: Yes. 25 MR. BALDWIN, SR.: Gill, have you got the 1 instructions on how to submit it generally? > MR. GILLAM: That's pursuant to Rule 49. -223- 3 MR. BALDWIN, SR.: No, I am talking about does he 4 have our Requested Instructions? 5 MR. GILLAM: Yes. In fact, Your Honor, that's 6 in page -- I will tell you what page that is on the Charge 7 as it now exists. 8 THE COURT: Well, you have got on page 6, page 5 9 and 6. Of course, I think 5 probably comes out now, in 10 view of the causation business. 11 MR. BROWN: What page are we referring to, Judge? 12 THE COURT: Let's go to Special Interrogatory No. 13 2. Is this the requested submisstion that I am looking at 14 j here that the Plaintiff's wanted that I have .just been i 15 handed? 16 MR. GILLAM: Yes. 17 THE COURT: Has this boon given Li) the Defendant? 18 MR. G ILI,AM : Yes, Your Honor. 19 THE COURT: Do you have objections to it? 20 MR. BROWN: Yes, Your Honor. 21 THE COURT: All right, let me read what the 22 Plaintiffs are asking for. Do I understand that we are not 23 going to submit, that the parties do not wish to submit 24 Special Interrogatory No. 2? 25 MR. BALDWIN, SR.: No, the Plaintiff doesn't want 1917 >-2,000 1 to do that. -224- 2 MR. BROWN: The Defendant has requested that 3 Interrogator y. 4 THE COURT: That's vour second request. That's th 5 second request you made is my Interrogatory No. 2. Do you 6 still want that in here? 7 MR. BROWN: Yes, Your Honor. 8 THE COURT: All right. All right, we are going 9 to change that "Hodgkin's disease" to something else. IO MR. BROWN: We would request to "decedent's 11 cancer and death," or -- 12 THE COURT: Was a producing cause of decedent's 13 death. 14 MR. BROWN: Well, to keep it consistent with our 15 Charge, again we focused on causing the cancer. 16 THE COURT: "Was producing cause of Mr. Green- 17 hill 's death." That's the way it appears on page 18, the 18 last sentence dealing with producing cause. 19 MR. MAKULSKI: The problem we have with this, 20 Your Honor, is when Dr. Teitelbaum testified both in 21 deposition and also from the' stand here' in court, Mr. >-> Baldwin handed him two things and asked him two questions, 23 said: "Do you have an opinion, within a reasonable- degree 24 of medical certainty, as to what caused Mr. Greenhill's 25 cancer?" "Yes, I do. Dow's 2,4-D." 0 "R O o! -225- 1 Then he asked him: "And, do you have an opinion, 2 to a reasonable degree o 1' medical probability, as to what 3 caused his death?" "Yes, I do. 2,4-D." 4 So he had two charges from his expert over here 5 saying it was both, and that's why we had this problem 6 and that's why we had to submit it the wav we did, that 7 it's not just an injury, it's not just anything that 8 happened to Mr. Greenhill, it's not just his death. 9 Obviously he died. 10 THE COURT: "Was a producing cause of decedent's 11 injury and death." 12 MR. MAKULSKI: Thank you. 13 MR. BALDWIN, SR.: Well, Your Honor, let me -14 THE COURT: That's the Special Interrogatory No. 15 2. 16 MR. BALDWIN, SR.: At the right time, I'd like 17 to be heard on that. 18 THE COURT: You can be heard now. 19 MR. BALDWIN, SR.: In the Court's Charge -- well, 20 let me back up by saying the Plaintiff has two theories 21 of strict liability in this case. One was that the product 22 was defective and unreasonably dangerous and that was the 23 proximate cause. The second is that they failed to warn, 24 that was a producing cause of the accident. 25 Now the Court has already instructed the Jury on 1919 3 -226- 1 page 35 that if they find that the product was defective *> and unreasonably dangerous and that was a producing cause, 3 then their verdict would be for the Plaintiff and against 4 the Defendant. 5 The Court goes further and says if they find that 6 the product was -- they failed to give' a proper warning and 7 that that was a producing cause, their verdict will be for 8 the Plaintiff. Either one of those. So there is no need 9 in submitting producing cause again. The only thing to 10 submit or have the Jury to do now is say if you have found 11 either one of those, your verdict will be for the Plaintiff 12 and you will so state. And if you have not found either one 13 of those, your verdict will be for the Defendant and the 14 lawsuit is over. And you have instructed the Jury about 15 that. The only thing that remains to submit to the Jury 16 besides those two forms you have -- 17 THE COURT: I think you are right. 18 MR. MAKULSKI: That would be a general instruction 19 then, Your Honor. 20 MR. BALDWIN, SR.: That's right. 21 MR. MAKULSKI: We want a specific instruction to 22 this Jury. 23 THE COURT: I think what he says j^s essentially 24 true. I am inclined to give what we have, what has been 25 submitted to me. 1920 0 -2 0 0 3 -227- ] MR. MAKULSKI: I haven't seen it yet. i 2 MR. BALDWIN, SR.: You have a copy of it. 3 MR. MAKULSKI: I haven't seen it. May I have a 4 copy, please? S THE COURT: If there is not another copy, we will 6 have one made. 7 MR. BALDWIN, SR.: The only thing to submit then 8 is the damage. 9 MR. MAKULSKI: Your Honor, that is the ultimate 10 issue in the case - - i f the product did not and was not a 11 producing cause of his injury, cancer, and his ultimate 12 death, then there is no liability. Whether the product 13 was defective or whether the product was improperly labeled 14 | makes no difference. II 15 MR. BALDWIN, SR.: And the Court has instructed 16 them of that, right here. 17 THE COURT: That's already in here. 18 MR. BALDWIN, SR: Yes, you have. 19 MR. MAKULSKI: Well, we want a specific 20 interrogatory on the ultimate issue in this case. That's 21 what we request. 22 THE COURT: Well, I am going to give it to you. 23 I think it's duplicitous to a certain degree, but I am 24 going to give Soecial Interrogatory No. 2 as I have it t 25 here now, but show it was a producing cause of Decedent's -228- injury and death. Answer yes or no. If you have answered it yes, then answer 3. Otherwise, do not -- MR. MAKULSKI: That should be changed, Your Honor. MR. BROWN: Change our numbers. That would now be, I guess -THE COURT: If you have answered Special Interrogatory No. 2 -- MR. BROWN : Well, we don't have a No. 1 now. THE COURT: Well, there is no No. 1 on my page 2 MR. BROWN : We Look off No. 1, so this would now THE COURT: This will be No. 1 now MR. MAKULSKI: Yes, Your Honor. MR. BALDWIN, SR.: We are going to object to it being a duplicitous submission, and putting a more onerous burden on the Plaintiff than the law requires. THE COURT: Now I think on page 2 -- MR. MAKULSKI: Your Honor, may I just ask on page 2, where the instruction is: "If you have answered "yes" to Special Interrogatory No. 1," should be changed to No. 1, "then answer Special Interrogatory No. 2. Other wise, sign the Verdict Form and return to the Court." THE COURT: I don't think "otherwise sign the verdict business" should be on here. MR. MAKULSKI: Where else can they proceed, Your 1922 0 '^ O r -229- ] Honor? They don't go to damages if the ultimate issue has been decided. They don't go to Interrogatory No. 2. They 3 don't go to Interrogatory No. 3. They sign the Verdict 4 Form. 5 MR. BALDWIN, SR.: I don't think they even ought 6 to be submitted. 7 THE COURT: I am going to submit it. I will note 8 your exception to that. 9 MR. BALDWIN, SR.: All right. 10 MR. GILLAM: Judge, art' you still going to submit 11 the two general? 12 MR. BALDWIN, SR.: Are you going to submit the 13 general form that we requested, also? 14 THE COURT: You moan about finding for the IS Defendant and against the Plaintiff, and finding for the 16 Plaintiff and against the Defendant? 17 MR. GILLAM: That's the general charge. 18 THE COURT: That's just a general charge, and I 19 am not inclined to give it. Because what we are doing, if 20 we give that and give this too -- 21 MR. BALDWIN, SR.: You shouldn't give both. 22 THE COURT: You shouldn't give both of them. I 23 am going to go ahead and give? the Special Interrogatories 24 as requested by the parties, and I am going to give what 25 the Plaintiffs have requested but not the general verdict 1923 -230- I form about finding for the Plaintiff and against the > Defendant, and against the Plaintiff and for the Defendant. 3 All right, Special Interrogatory No. 3 -4 MR. BALDWIN, SR.: Now, 2, what did you do about 5 Hodgkin's disease? 6 MR. MAKULSKI: Injury and death. 7 THE COURT: On Special Interrogatory No. 2 is 8 now No. 1 -- "was a producing cause of decedent's injury 9 and death." If you answered Special Interrogatory No. 1, 10 then answer Special Interrogatory No. 2. Otherwise, sign 11 the Verdict Form and return it to the Court. 12 Now, Special Interrogatory No. 3 will be changed 13 to No. 2, while we discuss it. 14 MR. BALDWIN, SR.: No. 2 became No. 1, is that 15 right? 16 THE COURT: Right. Any objection? 17 MR. BALDWIN, SR.: Yes, we object. That is not 18 the proper definition of warn. It puts a burden on the 19 Plaintiff that the law doesn't require. It's an improper 20 statement of the law, and it is contrary to what the Court 21 has already told the Jury. 22 MR. BROWN: Your Honor, I believe this is entirely 23 consistent with what we have already provided for in the 24 Charge, specifically in the state of the art instruction. 25 THE COURT: Where did you get this interrogatory? 1924 -231- 1 Is this out of the Pattern Jury Instructions? Is this some 2 case or what? I haven't seen it submitted this way. 3 MR. BROWN: It's just consistent with the state 4 of the art language in the Charge. 5 MR. BALDWIN, SR.: There is no law requiring us 6 to prove that you knew your product was defective. I will 7 take a free ride if you want to give it to me. 8 MR. BROWN: No, that's right, it's not your proof, 9 but state of the art becomes the defense on our behalf which 10 we can assort. 11 MR. BALDWIN, SR.: You are not entitled to an 12 issue on the state of the art. 13 MR. BROWN: The Court, if he is going to submit it 14 on special interrogatories, under the Rule can submit -15 MR. BALDWIN, SR.: You are not even entitled to 16 that in state court. 17 MR. BROWN: The Court can submit whatever special 18 interrogatories it l'eels necessary. 19 THE COURT: I am not going to submit Special 20 Interrogatory No. 3, and I will note your exception. That 21 comes out. I think it is already in here, and I think it 22 would be an improper placing of the burden of proof. 23 Go to page 4, which is now Special Interrogatory 24 No. 2. 25 MR. BALDWIN, SR.: No. 4 is negligence. 1925 0~?oo$ 1 'i 1i - :! MR. BROWN: That should be out. -232- THE COURT: That comes out. That's the negligence 3 charge. No. 5 comes out, in view of the agreement of the 4 ' parties. I 5! ,i 6 l| MR. BROWN : Yes THE COURT: Now Your Honor. No. 0, have you got -- wait, I 7 think I have that here. 8 MR. BROWN: That we have already included in the 9 Charge. That was the "a" through "f." 10 THE COURT: I understand. 11 I MR. GILLAM: Could we have a minute, Your Honor? !i 13 ! THE COURT: Yes. (Brief off the record discussion at side bar among 14 ! ! Plaintiffs' counsel) 15 THE COURT: We are now down to Special Interrogator y 16 No. 6, which, as I understand it, that has been changed 17 by what was given to me earlier that's been agreed upon. 18 MR. BROWN: It is contained in the Charge, and 19 therefore would not need to be in the Interrogatories. We 20 have already instructed the issue on the elements. We just 21 need for them to put in the figure. Having considered the n elements, the Verdict Form needs to ask "What sum do you 23 I I find, considering the elements as you have b-^tyi instructed, 24 I would reasonably compensate the Plaintiffs for the.1 damages," referring back to the elements that you have already 1926 -233- l 2I1 i1 i n s t r u c t e d o n . THE COURT: L o t 's get the P l a i n t i f f s input here. 3 I t h i n k we a r e g o i n g t o h a v e t o o u t i n t h e S p e c i a l I n t e r 4 iii 5! rogatory, w h a t h a s b e e n h a n d e d me by t h e P l a i n t i f f . MR. BROWN: Y o u r H o n o r , we h a v e i t i n t h e C h a r g e . 6 THE COURT: You have ch arged what they can take 7 i n t o c o n s i d e r a t i o n . Now you a re g o i n g to have to f in d 8 w h eth e r o r not th e y d id o r d id not f in d on th o s e p a r t i c u l a r 9 i s s u e s . We h a v e t o l d t h e m w h a t t h e y c a n c o n s i d e r . 1 ; i 11 MR. BROWN: The e le m e n t s . THE COURT: The e le m e n t s . They may not t h i n k 12 t h a t t h e r e i s d a m a g e o n s o m e o f t h o s e e l e m e n t s . 13 M R . B R O W N : T h a t ' s f i n e . T h e y c a n p u t i n a 14 f i g u r e a n d d i s r e g a r d w h a t e l e m e n t s t h e y b e l i e v e t h e r e i s l IS no e v i d e n c e o n , and p u t - - 16 T H E C O U R T : W e l l , t h a t ' s w h y I t h i n k we a r e g o i n g 17 t o h a v e t o s u b m i t i t . 18 M R . B A L D W I N , S R . : I m i g h t j u s t a g r e e . I n o t h e r 19 w o r d s , y o u w a n t o n e b l a n k o n w h a t y o u f i n d t h e d a m a g e t o b e ? 20 T H E C O U R T : I f y o u w a n t t o d o i t t h a t w a y , t h a t ' s 21 f i n e . 22 M R . B R O W N : Y e s . 23 M R . B A L D W I N , S R . : 24 s i m p 1 i f v i t . 25 ' THE COURT: Sure. T h a t ' s f i n e w i t h me. I t w i l l I f you want to j u s t go ahead 0'70/d -234- and say "What, sum of money, i f now paid in cash, do you find from a preponderance of the evidence such-and-such. Answer: dollars and cents, or none." MR. BALDWIN, SR.: Including all of the elements of damage listed. THE COURT: Including all of the elements of damage that have heretofore been given to them. Now, they are not going to have a copy of these Instructions. They will have a copy of the Interrogatories. MR. BALDWIN, SR.: That's line. I think that will simplify things. Your Honor, Mr. Gil lam has just raised a question I think is right, and that is you have instructed them in your general charge that if they find that the product was defective their verdict will be for the Plaintiff. Nowhere do you have an opportunity for them to indicate that. All you are asking them to do is find did the Plaintiff prove by a preponderance of the evidence that that was the producing cause. Now, if they want to stipulate that if they answer this yes we are entitled to a verdict under this Charge, I think that is all right. Otherwise, I think you have got to have a form for them to indicate that they found for the Plaintiff. THE COURT: Well, 1 thought we had agreed that if they find that this was a producing cause of this man's injury and death, that the Plaintiff recovers. 1928 Q -ZoH I fine. 2 -235- MR. BALDWIN, SR.: Okay. If that's so, then that's THE COURT: Isn't that a correct statement of the 3 Court? If the Jury finds that this was a producing cause, 4 that 2,4-D was a producing cause of this man's injury and 5 death, that's a Plaintiff's verdict. Then you have got 6 to find -- and if they find that it was not a producing 7 cause, that ends this lawsuit. 8 MR. BALDWIN, SR.: That's right. 9 MR. BROWN: That's correct. 10 THE COURT: If they find that it was a producing 11 cause, then they have got to go on further and find how 12 much money. 13 MR. BROWN: That's correct. 14 THE COURT: And I understand that's what he is 15 agreeable -- the Plaintiff is agreeable if they find 16 producing cause, then what sum of money, if now paid in 17 cash. Answer: dollars and cents, or none. 18 Suppose they find producing cause but no damage? 19 They can do that. 20 MR. BALDWIN, SR.: Well, what I don't want to 21 happen, I don't want the Court and me to be sandbagged ->2 for the Jury to come back and find yes to this and award 23 damages, and then them raise the question on anneal and 24 say, "Well, there were no findings in favor of the Plaintiff. 25 All they did was answer a special interrogatory that it was 1929 Q - 0) 1 a producing cause." -236- -> MR. BROWN: Judge, the Defendant's are aware 3 that the Court is submitting the case on Soecial Inter 4 rogatories rather than a [general verdict, and that's what 5 we request. Therefore, we will not have any objection 6 that there was not a general charge, if it is submitted as 7 requested by the Defendant. 8 MR. BALDWIN, SR.: Then you do agree that if they 9 answer yes to that it is a plaintiffs' verdict? 10 MR. BROWN: No. If they answer that yes they 11 will go on and answer the damage issue. 12 MR. BALDWIN, SR.: Well, I mean say they answer 13 that yes and award damages, do you agree that it's a 14 plaintiffs' verdict? 15 MR. BROWN: They do not have to award damages. 16 MR. BALDWIN, SR.: I see. And if they do award -- 17 MR. MAKULSKI: No, Mr. Baldwin, no, because the 18 Judge has stricken the interrogatory relative to the failure 19 to warn and the unreasonably dangerous. We have to have 20 those charges in there with the order that we had it. 21 Interrogatory No. 1, which is right now the ultimate issue,' 22 we still want them -- Mr. Baldwin has requested to go 23 through, and his whole case has been premised on the fact i 24 that we have failed to warn. They have to make a detormina- ! 25 tion of that, that we have an unreasonably dangerous 1ooo G '2 0 l 3 1 product -237- *> MR. BALDWIN, SR.: In this case you almost have 3 to use a general verdict form. 4 MR. BROWN: Your Honor, if I could maybe simplify 5 the matter. As I understand, the Court has stated he intends 6 to instruct Snecial Interrogatory No. 1: "Did Plaintiff 7 prove by a preponderance of the evidence that Defendant's 8 product, 2,4-D, or full name, was a producing cause of 9 Decedent's injury and death?" 10 The next issue the Defendant would agree could 11 be a damage issue with a single submission: "What sum 12 of money, if naid now in cash, would fairly and reasonably 13 compensate the Plaintiff for the injuries?" 14 THE COURT: That is what I thought we had agreed 15 to twenty minutes ago. 16 MR. BROWN: I think so. 17 MR. BALDWIN, SR.: You have got to have an 18 agreement out of them that that's a Plaintiffs' verdict, 19 because otherwise you have not got a finding in here that 20 the product was defective; you have not got a finding in 21 here there was a failure to warn. THE COURT: Which one do you want in that was 23 taken out? 24 MR. BALDWIN, SR.: You know, if the Court wants 25 to submit it to them on special interrogatories -- 1931 tf - Z c n f 1 -238THE COURT: I am going to submit it on special > interrogatories. 3 MR. BALDWIN, SR.: I will agree to it, but let 4 me tellyou how I think it ought to be done. It's a very 5 simple form: Interrogatory No. 1: Do you find the product 6 was defective as the Court has charged you? Answer: yes 7 or no. If you have answered that yes, answer the following: 8 No. 2: Do you find that the defect was a producing cause 9 of this man's injury and death? Answer:yes or no. No. 10 3: Do you find that the Defendant failed to warn, to give 11 a proper warning, as the Court has instructed you in this 12 Charge? Answer: yes or no. If the answer is yes, answer 13 the following, producing cause, and then the damage issues. 14 MR. MAKULSKI: Your Honor, wo have combined -15 MR. BALDWIN, SR.: You don't get into all that 16 language again that you have already instructed the Jury 17 about. 18 MR. MAKULSKI: We have combined in Interrogatory 19 No. 2, which the Court had said was out, both elements of 20 what Mr. Baldwin has just stated. Did the Plaintiff prove 21 by a preponderance of the evidence the Defendant knew, or 22 by the application of reasonably developed human skill and 23 foresight should have known, at the time Defendant manu 24 factured and sold the product 2,1-Dich1orophenoxyacetic 25 acid, which the Decedent used: 1) that the product was 1332 -239- 1 defective and unreasonably dangerous by reason of Defendant's -> failure to warn that such product causes his injury and 3 death? We'd have to strike the "Hodgkin's disease" to be 4 consistent with Interrogatory No. 1. 5 MR. BALDWIN, SR.: The Court has already instructec 6 on that, and it's our contention that that's erroneous. 7 But, whether it is or isn't, the Court has already instructec 8 on that. 9 MR. MAKULSKI: It contains exactly the same 10 elements that .Mr. Baldwin has .just said. 11 MR. BALDWIN, SR.: All the Court needs to do is 12 inquire whether there was a failure to warn, as the Court 13 has previously instructed you. 14 THE COURT: All right, you are- saying that No. 3 15 on page 3 should remain in? 16 MR. MAKULSKI: Yes, Your Honor, with the 17 exception that we change -- 18 THE COURT: With the change "caused Decedent's 19 injury and death? Answer yes or no." 20 MR. MAKULSKI: Yes, Your Honor. 21 THE COURT: If you have answered that Interrogatory 22 yes, then answer Special Interragotory No. 4, which was also 23 taken out. 24 MR. MAKULSKI: Yes. "If you have answered yes 25 to Special Interrogatory 2," which is the one above, we are 1933 f t- a o l b -240- 1 changing to 2, then proceed to what would be the last 2 interrogatory, which would be the damages interrogatory, 3 Your Honor. "Otherwise, sign the Verdict Form and return 4 it to the Court." 5 THE COURT: Are you saying that what appeared 6 on the Court's page 4 should remain in or out, regardless 7 of the number that it bears now? 8 MR. MAKULSKI: Four (4) is out. Page 4 is out. 9 THE COURT: Page 4 is out? 10 MR. MAKULSKI: Yes, Your Honor. II THE COURT: Page 5 is out? 12 MR. MAKULSKI: Yes, Your Honor. 13 THE COURT: Page 6 would be "What sum of money, 14 if paid now in cash, do you find from a preponderance of 15 the evidence, such-and such, Answer: Dollars and cents, 16 or none." 17 MR. MAKULSKI: Yes, Your Honor. Thatwould be 18 now called "Special Interrogatory No. 3." 19 MR. GILLAM: Your Honor, essentially all they have 20 done is trying to reurge within an issue a state of the art 21 defense. 22 THE COURT: Well, I think this, I mean as Mr. 23 Baldwin pointed out, unless they agree that you've got a 24 Plaintiffs' verdict for the answering of these two issues, 25 you have got to have this in there X *3 O i t 0-20)7 -241- 1 MR. JONES: Not worded exactly this way. *> MR. GILLAM: An issue or two issues, but that's 3 a lot more prone r than to rehash whal the Court has already 4 charged the Jury with. He has already charged them about 5 state of the art. You have already charged them about 6 unreasonably dangerous, defective', warning and everything. 7 They have already been charged about that. 8 THE COURT: I am going to go ahead and give it 9 to them on special interrogatories, though. I am going to 10 do that. 11 MR. GILLAM: Oh, yes, sir, I agree with that, 12 but if you do it -13 MR. BALDWIN, SR.: I think you ought to simplify 14 them. IS MR. GILLAM: -- .just simply: Do you find there 16 was a failure to warn? Do you find there was a defective 17 product, as instructed by the Court? That way we don't 18 have to get back into their defenses and everything within 19 an issue. 20 THE COURT: I am going to give what I have 21 originally shown on page 3 dealing with "human skill and 22 foresight, should have known." 23 MR. BALDWIN, SR. : On page 3? 24 MR. GILLAM: That 's right. 25 MR. BALDWIN, SR. : Mine "Is what sum of money." 1935 Q -d O K -2421 THE COURT: No, I am talking about what I had > given originally. 3 MR. BALDWIN, SR.: Oh, I see. Do you mean page 4 2, Your Honor? 5 THE COURT: No, page 3. 6 MR. MAKULSKI: It's the Verdict Form. 7 MR. BALDWIN, SR.: Okay. Well, let me see that. 8 THE COURT: On the Verdict Form. The only problem 9 I have got with that is as you have submitted it from the 10 Defendant's standpoint is whether or not it changes the II burden of proof? 12 MR. MAKULSKI: No, Your Honor. "Did the Plaintiff 13 prove by a preponderance of the evidence." And we state 14 very clearly to the Jury exactly what -15 THE COURT: I am going to give it, but that is the 16 only thing that bothers me. 17 MR. BALDWIN, SR.: I don't think we are required 18 to show that the Defendant knew -19 THE COURT: Do what? 20 MR. BALDWIN, SR.: I don't think we are required 21 to show that the Defendant knew that the product was -** THE COURT: Well, here is what I am giving, and 23 I will let you shoot at it all you want to. Go to my 24 Verdict Form. I am taking out No. 1, No. 2 will be No. 1, 25 No. 3 will be No. 2, with the same "If you have answered 1936 0 'Z *tf 243- 1 Special Issue then answer others," just like is there. 2 MR. BALDWIN, SR: Did you take out "Hodgkin's 3 disease"? 4 THE COURT: It makes it read "Such product caused 5 Decedent's injury and death." 6 MR. MAKULSKI: Yes, Your Honor. 7 THE COURT: The Interrogatory on 4, 5, and 6 is 8 omitted, and 7 is omitted. In place of page 6, I am going 9 to put following is Special Interrogatory No. 3. IO Take this down: "What sum of money, if paid now H in cash, do you find from a preponderance of the evidence 12 would fairly and reasonably compensate the Plaintiff for 13 the injuries to and the death of James Edward Greenhill 14 resulting from his exposure to the chemical 2,4-D? Answer 15 in dollars and cents, if any, or none." That will be 16 Special Interrogatory No. 3. 17 MR. MAKULSKI: Thank you, Your Honor. 18 MR. GILLAM: Your Honor, may we object on the 19 record to that? 20 THE COURT: Oh, of course. 21 MR. GILLAM: Your Honor, the Plaintiff objects 22 to -23 MR. BALDWIN, SR.: Are you taking our objections 24 now? 25 T H E C O U R T : Y e s , l e t ' s t a k e u p t h e o b j e c t i o n s n o w . 1 2 No. 2? -244MR. GILLAM: Which Interrogatory is that now, 3 THE COURT: We have got three Interrogatories now. 4 MR. GILLAM: All right. Your Honor, Plaintiff 5 objects to Interrogatory No. 2 submitted to the Court in 6 the following: No. 1, that it places undue emphasis upon 7 the state of the art defense urged by the Defendant; No. 2, 8 that it places an incorrect burden of proof upon the 9 Plaintiff in that the -- well, that the law is incorrect, 10 that there is no burden upon the Plaintiff to show that the 11 Defendant knew, or by the application of reasonably 12 developed human skill and foresight at the time of manu 13 facture that there was a defect in the product. That's 14 not the burden upon the Plaintiff to prove that fact. 15 No. 3, it combines the warning claim by the 16 Plaintiff with the defective product claim, also urged 17 by the Plaintiff. We had two separate claims: one is 18 a defective product which was a producing cause, and 19 another, a failure to warn, which was a producing cause. 20 This issue improperly combines those two allega 21 tions by the Plaintiff. 22 And I think I have objected to this, Your Honor, 23 but for purposes of clarity, we dp believe it is an 24 incorrect statement of the law as it applies to this case. 25 The Court has already instructed the Jury within the 1938 Q -S07-I -245- 1 Court1s Charge and the instructions as to the law in this 1 case. This issue is not a proper statement of the law as 3 already instructed within the Charge. 4 MR. BALDWIN, SR.: It requires us to prove they 5 knew. 6 MR. GILLAM: I said that earlier, it requires us 7 to prove that they knew about this, and that is not our 8 burden and that is not the law. In fact, it is contrary 9 to what the Court has already put in the Charge. 10 MR. BALDWIN, SR.: And we further object because II the Charge nowhere in no way submits the Plaintiffs' 12 alternative ground of recovery that the product was 13 defective, which was a producing cause. 14 MR. MAKULSKI: Your Honor, if we look at what IS they have done for the last three days, including today 16 with the final witness that we put on, "Dow knew, didn't 17 it? Dow knew, didn't it? Look at these documents, 20 uu. 18 Look at these documents, 20 j , 19 a, you knew about this, 19 didn't you, and you didn't do anything different?" 20 THE COURT: Well, this is the Court's Charge. I 21 am just taking the Plaintiffs' objections to it. 22 MR. MAKULSKI: Thank you, Your Honor. I am not 23 going to reargue it. We accept the Court's Charge. 24 THE COURT: All right.. Now what I propose to 25 do to let Miss Jordan finish this Charge with the corrections -246- I we have made, and I am going to have the Jury -- call the Jury in, please. I want to try to argue this case tonight 3 and get through with it. 4 MR. ORTEGO: Are we going to argue it, Judge? 5 THE COURT: Yes, sir. 6 MR. ORTEGO: I am ready. 7 THE COURT: I am going to give thirty minutes to 8 the side. 9 (Jury in at 5:30 p.m.; open court, all parties present) 10 THE COURT: Please be seated. Ladies and gentle 11 men, we have been working on this Charge since we saw you 12 earlier and let you go out. We haven't been resting, by 13 any means. I want to ask you at this point, the Court has 14 another case set for trial beginning in the morning at IS nine o'clock. As a matter of fact, one of the jurors here 16 is on that case, too -- two, okay. 17 I don't want to work you and I don't want to 18 create any hardship on anybody, the lawyers or the Jury 19 either. We are typing up the Charge, and we are going to give 20 each side thirty minutes to argue their side of the case; that's an 21 hour. So assuming that we started in another fifteen 22 minutes, that is going to take us pretty close to six 23 thirty, and then I will read the Charge, which will take 24 forty-five minutes at least. And at that point you go 25 into your deliberations. -2471 NOW, if you tell me that you do not wish to try *) to finish up this case tonight, I am inclined to adhere to 3 your wishes. I hope you don't feel that way. When we get 4 down to the time of the thing being completed where you can 5 go to the .jury room and start your deliberations, at that time 6 I will excuse the alternate juror, which is the lady on the 7 back seat, and you can go home. But I can't do that until 8 we get to that point. 9 Now, do y 'al1 want to kind of get together there 10 and talk a minute and tell me what you want to do? If we 11 didn't have that case starting in the morning, we could come 12 back in the morning and not have that problem. But we have 13 got the problem. 14 MR. JUROR: Well, first off, Your Honor, say if IS we didn't decide to stay tonight, when would it get 16 completed? 17 THE COURT: You would have to come back in the 18 morning at nine o'clock, and I would have to postpone the 19 other case until a later time. 20 (Brief off the record discussion among jurors.) 21 22 cal Is? MR. JUROR: Will we have time to make some phone 23 THE COURT: Yes, sir. 24 MR. JUROR: All right, we will stay. 25 THE COURT: All right. We are going to let you 0 - l'J -248- 1 go out again, and let's come back in here at six o'clock. 2 And that will give the lawyers time to look at what they 3 want to do, and then we will pick this case up and continue 4 and get through with it tonight. '.Ve stand in recess until 5 six o'clock. 6 (Jury out at 5:35 p.m.; open court continues, .jury not 7 present) 8 THE COURT: Everybody be seated. 9 MR. BALDWIN, SR.: It won't take but -10 THE COURT: No, you go ahead. Just everybody else 11 can sit down. 12 MR. BALDWIN, SR.: I just want the record to be 13 clear that we have submitted a requested Form of Verdict, 14 the general form, those two that we gave the Court. I S THE COURT: Yes, I am familiar with that. 16 MR. BALDWIN, SR.: I didn't know whether those 17 papers had gotten lost in the process. 18 THE COURT: No, I had them, and I am not going to 19 submit it on that basis. I will submit it in the manner in 20 which I have already talked to the attorneys. 21 MR. BALDWIN, SR.: I .just felt like I needed to have those to preserve the point. 23 THE COURT: We stand in recess until six o'clock. 24 And wo-will have thirty minutes to the side to argue this 25 case. /0 " ^ O ^ - S 1! want to? MR. BALDWIN, SR.: -249- Can we cut that up any way we (Brie! ofl' the record discussion with The Court and Counsel.) THE COURT: I am going to give you forty minutes to the side to argue this case, and I am going to expect the Plaintiff to open his case and not have any long period of time afterwards, after the Defendant has completed. 9 1 MR. BALDWIN, SR. : What, about twenty minutes? 10 ! !i THE COURT: I will give the Plaintiff fifteen 11 jj minutes to close. 1 12 MR. BALDWIN, SR. : Could we just have twenty- 1! 13 i twenty, Judge? 14 MR. ORTEGO: N.o, I don't think that's fair. 15 ! MR. BALDWIN, SR. : If we don' t use -- in other 16 words, if we don' t use the twenty to open , you still don't 17 get but twenty to close. 18 MR. ORTEGO: No, that's not fair, because the 19 burden of proof is on you. 20 MR. G ILLAM: Sure it is. 21 MR. BALDWIN, SR. : Because what I plan t.o do is 22 1 Scott was going to ope n and I was going to close, and, you 23 know, I would like to have at least twenty minutes. That's 24 ha1f and ha 1f. 25 MR. ORTEGO: Judge, that's not fair. -250MR. BALDWIN, SR.: And if he doesn't go twenty, why then we have lost that. MR. GILLAM: There is no rule, Your Honor, that says that we -THE COURT: I am just trying to be fair with everybody concerned. I just don't want to see the Plaintiff end up having a long period of time after the Defendant has completed. That's not customary, and I don't want to change the custom. MR. BALDWIN, SR.: I don't, want to do that. MR. ORTEGO: It should really just be rebuttal, Mr. Baldwin, because the whole reason why -THE COURT: Well, I am going to lot. them decide that. We are not getting into that. All I am going to say is that I will give you ten minutes -- fifteen minutes to close. MR. ORTEGO: I think that's fair. THE COURT: We are recessing again. (Recess at 5:37 p.m., until 6:00 p.m.; open court, jury and all parties present) THE COURT: Please be seated. MR. GILLAM: Your Honor, could we approach the bench? THE COURT: Y e s. (At the bench, out of the hearing presence of the Jury, 1944 I with Messrs. Gillam, Ortego and Brown:) -251- 2 MR. GILLAM: Your Honor, just to perfect the 3 record, Mr. Baldwin has already orally stated the Special 4 Interrogatories that we felt should be applicable in this 5 case; but to perfect the? record we thought we needed to 6 submit them to you in writing, and so these, this is my 7 handwriting, but these are the Special Interrogatories that 8 we believe should have been submitted rather than that one 9 that they have submitted. 10 THE COURT: Have you seen this? 11 MR. ORTEC.O: No, sir. 12 MR. GILLAM: I just drew it up. 13 MR. ORTEGO: I'll just object to this, Judge, 14 and I would like to leave it the way it stands. 15 THE COURT: Overruled, or denied. 16 (Open court) 17 THE COURT: We can let the argument proceed, and 18 the parties have the stated time which the Court has already 19 given to them to argue this case. Mr. Baldwin, you may 20 proceed. 21 MR. BALDWIN, JR.: May it olease the Court and 1 1 ladies and gentlemen of the Jury, and Mr. Ortego. I would 23 like to thank each and every one of you today for your 24 kind attention during the last several days of this trial. 25 I know that Ann Greenhill and James Greenhill appreciate it 1845 1 verv much. -252- 2 Now, Mr. Greenhill died a very untimely and 3 uncalled for death at the age of thirty-eight, not to 4 mention the miserable and emotional way that ho died. He | 5 left a widow and a young boy. James Greenhill loved his | 6 family, and he loved the outdoors. All of this, along with I ii 7 his life, has been taken away from him, and that's why we 8 are here today. 9 And there are two parts to this case: liability, iI 10 was Dow liable for his death? And damages, what damage theyj 11 are responsible for as a result of his death. 12 Let's talk a little bit about liability. In 13 laymen's language, we must only prove by a preponderance 14 of the evidence, that's the slightest tipping of the scales, I S that Dow Chemical failed to give a proper warning to Mr. 16 Greenhill and users of that product, and that that failure 17 to warn him produced his injury and his death. 18 Now, there's no question that Dow did not warn 19 of any of the problems associated with their product. You 20 heard Dr. Teitelbaum. He sat right there for a morning 21 and listed articles upon articles from back in 1959 when 22 they knew they were having Droblems that were associated 23 with the use of 2,4-D. Dow has yet to come along and 24 adequately warn anybody of those problems that were listed j i25 on that board since 1959 to present date. The literature 1946 -253- j ] s a y s 2 , 4 - D c a n c a u s e c a n c e r and t h a t i t w i l l k i l l y o u . And ; 2 t h e y h a v e n e v e r w a r n e d a n y b o d y a b o u t t h a t . D o w ' s own i 3 l i t e r a t u r e s t a t e s t h a t i t ' s h ig h ly t o x i c , the Krumel r e p o r t 4 t h a t Mr. Wa t s o n h a s n e v e r e v e n s e e n , and he w o r k e d t h e r e j ii 5 fo r t h i r t y som ething y e a r s . They d i d n ' t warn anybody about , 6 that. i 7 Now i t ' s u n c o n t r a d i c t e d , I b e l i e v e , t h a t Dow j j 8 C h e m ic a l h a s not b r o u g h t vou one s t i c k ol' e v i d e n c e to p r o v e I i i 9 th at that warning was adequate, not one s t i c k of evidence, I 10 n o t o n e d o c u m e n t , n o t o n e p e r s o n f rom t h a t s t a n d . j 11 MR. ORTEGO: Y o u r H o n o r , I am g o i n g t o o b j e c t . i: We d o n ' t h a v e t o p r o v e a n y t h i n g , and I t h i n k t h a t i s a 13 m i s q u o t e o f t h e l a w . 14 THE COURT: L e t t h e a r g u m e n t p r o c e e d . 15 MR. BALDWIN, J R . : B e f o r e I wa s i n t e r r u p t e d , 16 i t ' s g o i n g t o b e u n c o n t r a d i c t e d t h a t Dow f a i l e d t o b r i n g 17 you o n e s t i c k o f e v i d e n c e t o p r o v e t h a t t h e i r w a r n i n g was 18 a d e q u a t e , not f r o m t h e s t a n d , n o t f rom t h e l i t e r a t u r e , n o t 19 f r o m a n y w h e r e . 20 Now, Mr. G r e e n h i l l d i e d o f c a n c e r from h i s 21 e x p o s u r e t o 2 , 4 - D . No m a t t e r wha t l a b e l you want t o g i v e 22 i t , he d i e d o f c a n c e r f r o m e x p o s u r e t o 2 , 4 - D . D r . 23 T e i t e l b a u m t e s t i f i e d a b o u t t h e H a r d e l 1 S t u d y . The H a r d e l l 24 S t u d y s a y s : t h e r e i s an a s s o c i a t i o n b e t w e e n 2 , 4 - D and 25 c a n c e r . The w h o l e r e p o r t , w h i c h t h e D e f e n d a n t s r e l y u p o n , 1947 q - 26 3o -2541 comes right along and says: there is an association between 1 1 2,4-D and cancer. The'Krumel Report, which I have talked I 3 about, Dow's own report, says there's impurities in 2,4-D, 4 and that this is a highly toxic chemical. 5 Now, Dow has known about these problems, but they i 6 failed to do anything about it, and people, like Mr. Green- s 7 hill, have to suffer from their decisions not to tell people. 8 You remember the deposition of a Mr. Tipton. He 9 was a hack and squirter. He used Tordon 101. We went out 10 to Oregon and we talked to him about it. Do you remember I I what he said? "It seems to me that the chemical companies { 12 put out a product without giving the users enough informa 13 tion about the possible harmful consequences of using those 14 products." Mr. Tipton is a layman that used Tordon 101 just 15 like Mr. Greenhill. He also stated -- the question was 16 asked: "Now there has been some discussion about labels 17 here today, and I have got a question for you as a person 18 who has read those labels, and as a layman, and as a layman 19 are all supposed to read the labels. Do you feel you were 20 given adequate information as to the uses and given fair j i 21 warning from the labels you read?" Answer: "No." i > I think that Dr. Hajdu came along -- Mr. Ortego 23 made the statement that just because someone says it's so 24 doesn't necessarily mean it's so. Ho made.' thut statement 25 in opening argument. Dr. Hajdu comes in here today. lie 1948 q-0.031 i -255- | ] says: "It doesn't matter who wrote it, whether it was ! Dr. Ilardell or Dr. Hoar, or whoever, that there is no 3 credible evidence as to the association between 2,4-D and i 4 cancer," as far as his opinion is concerned. The American 5 Institute of Cancer says there is. Now, I don't know how 6 you received Dr. Hajdu. He was a very impressive man, but I 7 I believe that the only way that he would accept any kind 8 of theory or study is if it was his own. i 9 Now, I want to talk to you a little bit about : 10 this failure to warn. Mr. Ortego has not questioned the i j } 11 warning that we put up on the bulletin board, the caution. I ! 12 He's not gotten up and introduced one piece of evidence i i j | i 13 that contradicts it, or even says that it's right. He says \ i 14 the EPA has to control those. Well, the EPA standards are j I 15 the minimum standards. They give the EPA what they want 16 on the warning, and if the EPA thinks it's all right then 17 they approve' it. Now, Mr. Ortego could have put more on 18 that warning to warn people about the hazards of 2,4-D if 19 he and Dow had chose to do so. Did they? No, they did not. 20 They failed to do so. 21 I feel, on behalf of Mrs. Greenhill, that when > you are submit tod the Charge and you are asked the question, 23 "Did Dow fail to warn Mr. Greenhill and users of the i 24 o o t e n t i a l h a z a r d s and d a n g e r s of i t s p r o d u c t s , " t h e answer | 25 should be "ves." The evidence is overwhelming. When the j O-'Xo -256- question comes along: "And was that failure to warn a producing cause of his injury and death? Yes, it was." And I would like to talk to you a little bit about damages. THE COURT: Are you keeping track of your time? You are keeping track of your own time? MR. BALDWIN, -JR.: Pretty much so. THE COURT: A11 right. MR. BALDWIN, JR.: We all saw the video of James Greenhill. We heard about his pain that he lived with for many years. We heard him talk about his dreams that he had for him and for his family. We heard him talk about the love that he had for his family. We also heard him talk about the fact that he know that ho was ultimately going to die. He was a dying man. Now, Mr. Greenhill liad to go through stages of chemotherapy and treatments for his cancer. They were miserable. There is no way in this world that you can give that man enough money for what he had to go through as a result of being exposed to 2,4-D, and that 2,4-D getting in his system and causing the problems that he had that ultimately caused his death. There is not enough money. He stated that he loved the outdoors. He never got to get out much. Ho went to town every now and then 1950 3^^533 -257- to the grocery store with his wile, but he stayed in the car. He was almost a he In less cripple there1. He could not do anything. Now when we talk about damages, we are going to be asking, as we said on opening statement, for a sub stantial amount, and the Judge is going to charge you with what you are allowed to give the Greenhill family for the death of James Greenhill. I would like to go through some of those with you. You will consider the necessary medical, nursing and hospital care received by Mr. Greenhill for treatment of his injuries sustained by him as a result of the occurrence in question. That's one thing you get to consider is all the medical bills that we have been able to find and prove up. The reasonable am ou nt of expenses for funeral and burial of James Edward Greenhill. That should not be a problem. That amount was $2,298. You will be allowed to consider the conscious pain and mental anguish suffered by James Greenhill for his death as a result of the occurrence in question. You heard Mr. Greenhill. You heard him talk about vomiting consistently day in and day out, and when he wasn't vomiting he was dry-heaving, and he was in pain all the time. He suffered, ladies and gentlemen. He suffered a. miserable1 death. THE COERT: You have used fifteen minutes. -258- I MR. BALDWIN, JR.: And we would ask that for his i*> l o s t w a t t e s , p a i n a n d s u f f e r i n g , t h e l o s s o f s o c i e t y a n d lI j 3 co m p an io n sh ip fo r h is w ife and h is son th a t you re tu rn a 4 v e r d i c t in th e am ount o f $3 m i l l i o n . And I t h i n k i f M r. 5 Ortego doesn't agree with that amount, I think he should I ! ! 6 get up here and tell you. Thank you very much. : i 7 MR. ORTEGO: If it please the Court, Plaintiffs' 8 Counsel, and ladies and gentlemen of the Jury. On behalf 9 of everyone, I'd like to thank you, too. It's late, but we ; 10 discussed how important your function is, and we appreciate : 11 you staying. i 12 What you are about to do is become the judges of 13 the facts of this case. And this isn't a mysterious 14 procedure. I guess maybe sometime when you heard some of 15 the testimony, if I could have read your minds maybe you i 16 were saying to yourselves "What's going on?" You are ; 17 capable of judging this case. This is a common sense 18 decision, and it's like any other decision -- important 19 decision -- that you make in your lifetime. Objectively 20 evaluate the facts, the evidence, and in this particular 21 case also, ihe lack of evidence. And let's put sympathy >> aside. It is a terrible thing. And I asked you during I j i 23 voir dire, you knew I was concerned about it, and you should j 24 h a v e f e l t t e r r i b l e w a t c h i n g Liu - t a p e . B u t t h a t ' s n o t a n i ' 25 i s s u e h e r e ' - - h a r d , c o l d f a c t s . -259- 1 What has the Plaintiff proven in this case, *1 really, by a preponderance of the evidence? The Plaintiff ii 3 has proven that James Greenhill died and suffered. We have 4 never contested that. What he hasn't proven is that we j 5 are responsible, because we are not. We are not responsible! 6 for what happened. It is terrible, but we aren't respon i sible . 8 Now, during the trial I asked you not to be 9 tricked. I have asked you to be careful. In some ways, 10 please don't fall for smoke screens throughout the trial. i| 11 A lot of times things could be read out of context. Some 12 times you can get a particular line you want out of a 13 document out of context. 14 Let's talk about a c o u p l e of things, and I am not | 15 going to comment on everything that happened here. It would j I 16 be ridiculous, but let's talk about some of the things -- 17 that California report. Dr. Teitelbaum said it was never 18 adopted. No other manufacturer adopted it. It's been out I 19 there for seven years. This is something that's been going I i 20 on for a long time. This product has been here for a long j 21 time, thoroughly investigated, never accepted. Why? Because >% it wasn't necessary. 23 He hasn't proven the product to be defective, I 24 unless he wants you to speculate and start guessing what's ! 25 wrong with it. It's been approved by the Environmental 1953 a-ao3b II -260- Protection Agency for years. It's been out there for years. Those are responsible people. If it was causing this epidemic of cancer, it wouldn't be out there, and there would be plenty of literature to support that. If it's true what the Plaintiffs say, why isn't there an epidemic of Hodgkin's disease or cancer from all these millions of pounds that are around? You heard Dr. Hajdu say, "There is no epidemic." One other thing -- two other things I would like to touch on -- xanthones, chioroxanLhones, whatever you want to call them. No real proof that they are in the product. And even so, the product is what the product is. The 2,4-D that's being used out there is the same thing that is being made and it's going out there. There is no epidemic. There is no epidemic of Hodgkin's disease. And I think kind of interesting with Dr Teitelbaum, I said to him, "Well, if I picked out this document, basically a needle out of a haystack of thousands of documents, xanthones, is there any study that says it causes cancer?" "No, no." "Well, give me a study. Tell me where it causes cancer or causes illnesses." "No." Then when I asked him, I said, "When you produced your list, someone is using it for bonding teeth." "Oh, that's not ch1oroxanthones." So I brought the document up to him and he read a bunch of ch1oroxanthones, and I said, D -Z 0 3 7 -261- ] Dr. Teitelbaum, they are using it on peoples' teeth." *> Be careful. The product is what it is, it's out there, 3 it's being used, people are getting exposed to the product 4 as a whole. 5 And I am not going to go over all of these studies. 6 I am not going to touch the list, but as you saw what was 7 happening, everything. When things weren't going well, 8 we picked out studies about everything. And those studies 9 are very interesting, all open to the public. Everybody 10 knows about it. They are not even Dow studies, and they II are not accepted. What I think you could simply say is here 12 there are thousands of articles and thousands of things 13 written about 2,4-D and other products, and, no, it is not 14 credible. They have not been accepted. The EPA knows about 15 it, manufacturers know about it, the world knows about it, 16 because they are not credible; they are not reliable. 17 The sole issue in this case is did they prove 18 by a preponderance of the evidence that 2,4-D causes cancer 19 or Hodgkin's disease, in this case? The answer is no, no. 20 You are going to have to evaluate the testimony here. How 21 are you going to do this? 22 Well, two things that happened in the case is 23 Dr. Teitelbaum came in and Dr. Ha.jdu came in. Who do you 24 believe? Think about that. I thought of a way that maybe 25 would be a good way to test on who you want to believe. 1955 0 '1 0 3 - -262- ; 1 God forbid, but one of us is sick, a family member : i 2 is sick, which doctor would we go to to find out what was ! 3 wrong with us, find what caused it, and who we'd want to i 4 treat us? I think the answer is very simple, it is Dr. 5 Hajdu. 6 Let's talk a little about the only witness that j 7 came in here for Plaintiffs who testified that in his opinion 8 this 2,4-D caused it. Let's talk about the man a little. .* 9 It's a man who makes 50 percent of his living in medical- j|i ! 10 legal work. It's a man who is not Board certified in any 11 field that's recognized by the American Medical Association, j 12 What does he say to you, really? He's got this one-hit 13 theory: it's one molecule at the right time. And keep in 14 mind when he rendered his opinion, I asked him and he didn't j 15 even know how much James Greenhill was exposed to. "It's i j 16 one molecule at the right place at the right time." It's i 17 very convenient, because you pick whatever you went to i ; 18 testify to and it's got to be that one molecule. You pick 19 what you want to hear. And what's today? What's the 20 chemical de jure? What's the product de jure? Well, ! j 21 pick it, because it's one molecule anytime. It fits in ; 22 perfectly. He has no idea when Mr. Greenhill's cancer 23 started. He can't tell us that. i i 24 And then he talked about other things. According j 25 to his one-hit theory, not Dr. Hajdu's one-hit theory, one 1956 j I -263- hit theory is one molecule at the right place at the right time. And maybe it got redundant, but what about the 3 cigarette smoke? What about the celery? Beer? I went for 4 my lunch analogy -- this whole list of things? And why did 5 I do it? Well, the reason I asked Dr. Teitelbaum is if it 6 takes one molecule, according to your theory, can you tell 7 us what percentage was caused by the beer? It only takes 8 one; it doesn't matter how much. Do you know whether that 9 right one hit at the right time? That grilled steak could 10 have hit at the right time? What about the celery, the 11 mushrooms, the peanuts? Could it hit at the right time? 12 No. 13 But what did he do? A couple of things: he can't 14 give you the percentage, which caused what, who is I S responsible, but one thing he is always very particular 16 about, "Your 2,4-D did it, Mr. Ortego. Your 2,4-D did it, 17 Mr. Ortego." 18 Well, Dr. Teitelbaum, this man was a landscaper 19 prior to working in the Forest Service in 1973. He must 20 have been exposed to molecules of carcinogens, particularly, 21 I am sure they used weed killers. "No, it had to be your 2.4- D, Mr. Ortego." Because then that's his whole theory, 23 he could have been exposed to someone else's product. "Your 24 2.4- D." That's what he did. Ask yourself, really is he an 25 advocate for a particular cause? And what is his cause? 1957 0 ^ o y c -264- 1 I submit to you that his cause is his medical-legal practice 2 where he gains 50 percent of his income. And I ask you not 3 to be fooled. Look at the evidence. 4 Let's talk about Dr. Hajdu, and let's compare him. 5 You heard his qualifications. I am not going to read you 6 all the qualifications again, but he has spent his life and 7 devoted his entire life to the study, research and diagnosis 8 of cancer. That's what he has devoted his life to. That's 9 what his practice is. He takes care of people that are 10 sick with cancer, in a special cancer hospital. That's 11 what he is all about. That's how he makes his living. 12 And what does he say? I talked a little about it 13 in opening: Hodgkin's disease has been around as long as 14 man. It hits men in that bimodal group. I don't remember 15 the ages exactly, but it was like 15 to 32 or whatever, and hits 16 them a little later on in age. It's that group that gets 17 hit. And he says he has Hodgkin's disease. And you 18 probably wonder why you know all of a sudden Dr. Teitelbam 19 can't -- it's either Hodgkin's disease or non-Hodgkin's. 20 Well, that's sort of a shifting position you can take. If 21 I can find one paper that says non-Hodgkin's lymphoma might 22 be caused by 2,4-D, maybe that will help me more. Makes 23 me bring in more papers or whatever things I can find. The 24 man died of Hodgkin's disease, and Dr. Hajdu said to you, 25 "Mr. Greenhill fit right in the group that gets it." It's 1953 -ae>Y/ -265- 1 a silent disease, Dr. Hajdu told you. You can have it for 2 a long time and you don't even know you have it. But in 3 1978 when he was having that back problem, that disease was 4 years in the development, because he was already in Stage 4. 5 His back and bones, unfortunately, were rotting out already, 6 and he had that disease a long time before he ever went to 7 the Forest Service. 8 And what causes Hodgkin's disease? Dr. Hajdu 9 says it's going to be a virus. Two years from now it's 10 going to be a virus. And his diagnosis is in agreement with 11 the one person here who wasn't called as an expert witness, 12 Dr. Butler, the dean of pathology from Texas, M. D. Anderson. 13 He's not being paid by anybody. And what does he say? "It's 14 Hodgkin's disease." And when questioned by Mr. Baldwin 15 during the deposition to try to shake him. "No." "Will 16 you disagree on this diagnosis, reasonable pathologists?" 17 "No. " 18 What's the causes of Hodgkin's disease? Dr. 19 Butler said, "No one can tell you the cause. We believe 20 it's a virus." Not 2,4-D, it's a virus. 21 Dr. Teitelbaum wants you to speculate. The real 22 doctors in this case tell you "no." And Dr. Hajdu told 23 you, "I have reviewed all the literature." The man is 24 all over the world going to symposiums on cancer, fellowship.5;, 25 in the National Institute of Cancer Society, a consultant 195.9 a-zoV** -266- 1 all over the country. He is speaking everywhere, on top of all of the theories. If you mentioned a name to him on 3 cross-examination : well, my friend, this doctor, who just 4 got the Nobel Prize. He is on top of his field because 5 he loves what he does. I have reviewed all of the litera 6 ture, and there is no evidence to support it. 7 And then it gets sort of like chasing a ghost, 8 well, where are the studies that say the negative? You 9 prove the negative. And what does Dr. Hajdu say, "Well, 10 there's no study to disprove air." And then do you want me 11 to say the same thing -- Dr. Hajdu said unequivocally, 12 "I don't care if he had Hodgkin's disease or non-Hodgkin's 13 lymphoma, but he had Hodgkin's disease. There is no credible 14 science. I have interpreted it for you. I have looked at I S it. There is no doubt. These Hardel1 papers, I am not the 16 only one -- widely criticized; never replicated." 17 He talks about Dr. Hoar very briefly. He 18 unequivocally told you, "No, that is my opinion. The man 19 died of Hodgkin's disease, and, no, 2,4-D contributed in 20 no way whatsoever." 21 Now let's try to step back from this a little. We >> talk about the scientists. Let's talk a little common sense. 23 Why can you go to the supermarket, and 2,4-D is the issue 24 in this case and only 2,4-D, why can you go to the super 25 market and still buy a product containing 2,4-D, right here 1 -267- in Marshall, right near the produce department -- all over 2 the place? Because it doesn't cause cancer. It's not 3 bad. It doesn't do what Dr. Teitelbaum says it does. Use 4 your common sense. You don't need to know complex chemistry 5 to decide this case. What you need is your common sense to 6 think about it. We have all probably used it. It's all in 7 the food we eat. 8 I do emphasize believable scientists, please stick 9 with that. Doctors, chemists, toxicologists all around this 10 country have determined that it is safe to sell this product, 11 and we can all use it. A nine year old child can buy 2,4-D. 12 Yes, picloram has some restricted uses. Mr. Watson was very 13 honest with you. But you can get 2,4-D -- your daughter, 14 your child. My daughter can go buy 2,4-D. The product 15 is not unreasonably dangerous. It is not defective. It 16 doesn't cause cancer, and that's what the man died of. 17 There's no evidence of that. And manufacturers of 2,4-D 18 don't have to warn about these things on their labels. And 19 look at all the other manufacturers that came in, do they 20 warn about it? Why don't you have to warn about it? Because 21 they don't need to warn about something that doesn't exist. 22 If it doesn't cause it, why should I have to put it on the 23 label? 24 When I spoke to you during jury selection, we all 25 promised a couple of things. You promised that you would -268- I hold the Plaintiff to his burden of proof. You promised that you wouldn't be overtaken by sympathy, that you would 3 | fairly and objectively give us a fair shot, and I ask you j! 4 to keep those promises and keep that in mind. I 5 Now, I have about concluded what I have to say. 6 Mr. Baldwin is going to get another opportunity to speak 7 to you. I am not. I want you to just please promise me 8 that if Mr. Baldwin says something, anticipate what I would 9 have said if I had the opportunity to speak to you. And 10 I tell you again, Plaintiff has not proved his case. 11 Plaintiff cannot prove this case, because it's not so. And 12 I ask you to return a verdict on behalf of us, the Defendant. 13 Thank you. 14 MR. BALDWIN, SR.: Your Honor, may I get set up j 15 a little bit, please? 16 THE COURT: Yes. 17 MR. BALDWIN, SR.: May it please the Court -- and, 18 Your Honor, would you lot me know when I have* throe minutes 19 left? 20 Ladies and gentlemen of the Jury, the afternoon 21 is late, I don't have much time, and I know you are tired. 22 On behalf of Mrs. Greenhill and her son, Jim, I want to 23 thank you for the attention you have given this case. You 24 have been a very attentive, hard-working jury. 25 I am going to jump right into what we are here 198? 0-*K -269- 1 about, and it's just like I told you Monday morning, the 2 Plaintiff, in just plain old cornbread language, has got 3 j to do one thing and one thing only, and it is to prove by j4 a preponderance of the evidence that the Defendant failed 5 to give a proper warning of the hazards of this product. 6 I told you that Monday. I am telling you that again today. 7 You shouldn't be caught in a smoke screen by the Defendant. 8 They came in here, and it reminds me of "my dog didn't 9 bite you" defense. When they get sued -- the man gets 10 sued for his dog biting me, he said, "Well, my dog didn't 11 bite you." When you prove that his dog bit him, he says, 12 "Well, it wasn't my dog." Well, you prove it was his dog, 13 he says, "Well, he didn't bite you." And you prove he bit 14 you, and he says, "Well, it didn't hurt." And that's the 15 way the defense has been in this case. 16 Mr. Ortego started out on Monday morning. He said 17 it again the very last thing he said this afternoon when he 18 objected to something that Scott said, "We don't have to 19 prove anything." And that is the attitude of Dow Chemical 20 in this case, and that is the attitude of Dow Chemical's 21 lawyers in this case. You don't have to -- we don't have 22 to prove anything except was this warning inadequate, and 23 was that a producing cause of this man's death? 24 I Oh, they start out, w e 've got to prove it's 25 Hodgkin's disease. And the Judge is going to tell you what 1963 -2701 the law is in a moment. You are not going to hear Hodgkin's 2 disease mentioned one time, so don't get off on that tangent. 3 Now, what is the evidence? Have we discharged 4 our burden? Not only have we discharged our burden; it's 5 overwhelming. It's uncontradicted. You heard the layman 6 that Scott read you the testimony. Mr. Tipton said, "These 7 chemical companies put those products out there, and they 8 don't give us people in the field enough information to know 9 how to use them." 10 And here is what cinches it, this chart right in 11 front of you. This is an independent study done for the 12 State of California by a company, a reputable company. And 13 what does it say? "The present labels are inadequate." Now 14 that should foreclose the question of labels in this case. 15 That's what the Court is going to ask you: were the labels 16 adequate? And that's not me. That's not some expert. 17 That's an independent laboratory that made that suggestion, 18 finding. And what has Dow done? Nothing. They have not 19 changed that label to this very day. 20 Now I want to talk to you a little bit about 21 lymphomas. You heard Dr. Hajdu come in here from 22 Hungary, and he knows everything. And to hear he and Mr. 23 Ortego tell it, doesn't anything happen this side of New 24 York. There is at least eight or ten pathologists that 25 examined these materials at one time or another. And you -271- 1 have got a report right in front of you here by the Denver 2 Clinic that said: "None of us feel that this process 3 presents Hodgkin's disease." That's what it says at the 4 bottom line. And isn't it strange to have eight or ten 5 pathologists that look at that speciman of Mr. Greenhill, 6 and it's more than passingly strange to me that two of them 7 claim they saw a Reed-Sternberg cell. The other eight or 8 ten there is not a single one of them that saw a Reed9 Sternberg cell, and even Dr. Hajdu said that you've got 10 to have a Reed-Sternberg cell before you can make the 11 diagnosis. Do you remember that? And Dr. Butler said the 12 very same thing. They are above everybody else. But you 13 know, he asked who would you rather have to treat you? I 14 am going to tell you, I'd rather have a practicing physician 15 like that guy down there in the Denver Clinic that treats 16 people and sees them every day with hands-on treatment than 17 somebody like Dr. Hajdu who sits up there and talks in 18 platitudes about what it ought to be, and how everybody else 19 has made a mistake. 20 And, oh, he is hired in another case for Dow to 21 clear up a misunderstanding, and he's hired in this case 22 to clear up a misunderstanding. I stand corrected -- he 23 didn't know who he was testifying for. Who hired you, 24 Dr. Hajdu? Well, this lawyer over here hired me, Dr. 25 Pierce. He tried to pass him off. Well, didn't Dow hire 1965 -2721 you? Well, I don't know. Here is a man who came all the 2 way down here from New York City, $32.00 (sic) a day, that 3 don't know who hired him. Now, do you believe that? And 4 what I want to know is where was he -- where was Dr. Hajdu 5 when all of these publications were being published telling 6 about the dangers of Dow starting in -- I mean, of 2,4-D 7 starting in 1959 in JAMA, J-A-M-A. Every doctor in the 8 United States has one of those on his desk right today, 9 going all the way down here to 1982, and he hasn't questionec 10 a single, solitary one of those documents, and neither has 11 Mr. Ortego with all of his resources up there in New York. 12 He hasn't brought a single witness in here to tell you that 13 any of that is wrong, not one. And the reason is, he can't. 14 He wanted to cause a smoke screen, and said, "Oh, 15 well it's Hodgkin's disease or it isn't. Well, I am going 16 to get off that. Whether it is or it isn't, I am not going 17 to get in an argument about that. I don't think it was, 18 but you heard Dr. Teitelbaum. Dr. Teitelbaum, I don't care 19 what you call it, non-Hodgkin's lymphoma, Hodgkin's disease 20 or whatever, did the exposure to the 2,4-D cause this man's 21 death? Answer: yes. And that's all the Plaintiff has got 22 to prove. The Plaintiff has met his burden. 23 So now I want to talk to you a little bit about 24 the Krumel Reoort. To me, I've been practicing law a long 25 time, that is the most serious piece of corporate -273- 1 irresponsibility that I believe I have ever seen. They 2 found impurities in their product going back to 1977, the 3 time Mr. Greenhill was working with it, impurities that 4 Dr. Teitelbaum says are the most toxic known to man, and 5 the kind of impurities that are the most likely to cause 6 cancer. They ran tests on them and they confirmed that. 7 They told their own lab men that it must not touch the 8 skin. You must wear protective clothing. Did they warn 9 it must not touch the skin? Did they warn you must wear 10 protective clothing? Did they warn it might cause cancer? 11 Did they warn it would cause serious neurological problems? 12 Did they warn it might kill? No. And if they had done that, 13 Mr. Greenhill would have had the choice, and I venture to 14 say he would be here today. IS So, your verdict should be for the Plaintiff. You 16 have got two issues you must answer yes, and then you will 17 come to the damage issue. 18 I think that your damages in this case ought to 19 be enough to say to Dow Chemical Company, we don't like 20 this kind of conduct. We don't like you coming to Marshall 21 and conducting yourself the way you have. 11 MR. ORTEGO: Judge, I am going to object. That is 23 an improper damage. There are no such damages in this case. 24 MR. BALDWIN, SR.: We are asking for full, 25 adequate damages in this case. 1967 0 '- 3 0 ? -274- 1 THE COURT: I overrule the objection. Mr. 2 | Baldwin, stay within the limits of the prooer argument 3 on damages. 4 MR. 3ALDWIN, SR.: Certainly I am. Now, I am i 5 i suggesting to you that it should be $3 million, and let me 6 just tell you why. I just want to take this last few 7 minutes to talk to you about damages, kind of like stump 8 talk, one neighbor to another. Three million dollars sounds 9 like a lot of money, but think abo"Ut it. You all have had 10 fathers. Most of you have had husbands or wives. Here is 11 a man capable of earning -- I don't think there is any 12 question had he lived he would have earned anywhere from 13 a half a million to a million dollars over the score of 14 his life, taking into consideration his raises and job j 15 advancements. 16 You have heard talk about care, nurture and 17 guidance, loss of services.' What is it worth to have a 18 husband around the house? What's it worth for the wife 19 to be at home at night by herself? Did you hear that 20 noise? And nobody to say, "What do you think that is?" 21 Nobody to say, "Go see what that is." n What's it worth to have a husband to counsel, 23 to help discipline the children, to help make decisions 24 j about buying groceries, the budget, the car? 25 You know you were given a unique opportunity. You O-aorl -275- 1 and each of you had the opportunity to see through the 2 magic of video this man and get to know him a little bit, 3 this man that was dying, this man that knew he was dying, 4 and to face it like a man up front. He talked about it 5 to his wife. He talked about it to his boy. They discussed 6 it. And can you imagine the misery he went through from 7 '79 to '86, five -- seven years? He would have a twenty8 eight day treatment of chemotherapy, and vomited on the 9 order of every five to eight minutes, eight hours a day; 10 tremendous pain, agony, suffering. He even thought about 11 taking his life, and I wonder what you would have done? 12 But he was a good man. He was a simple kind of a 13 man. He had dreams like all of us. His dreams weren't 14 extraordinary. He wanted to have a log cabin, and they 15 almost had a log cabin. The neighbors helped build it 16 to a liveable condition. He lamented the fact he couldn't 17 chop wood, do the chores, bring the wood in. He fretted 18 about the fact that his son didn't understand that he was 19 dying, and wanted more information. He really couldn't 20 accept it. 21 And you know James is a plaintiff in this case, 22 his boy. He is right on, not on top of, but almost on top 23 of what I call "fool's hill." And he needs a daddy. You 24 know there is a time in every boy's life when his daddy is 196925 going to sit down with him, I had to do it, and say, "Have l0-ZOS~2- -276- i J you ever stopped to think what you are going to do with j 2 your life? Do you know what you want to do with your life? 3 Have you given that any thought?" That's parental guidance. 4 My daddy did it to me. James won't have that opportunity. 5 He will need his daddy's steady shoulder to lean 6 on when he starts out in the uncertain days of life. He 7 will need to know that if he gets in trouble he can go to 8 his daddy and he will help him out. He will need to go to 9 him and say, "Daddy, what should I do under these circum 10 stances?" And that is a real element and item of damages, 11 and each of you said Monday that you could return a verdict 12 for that type damages. 13 And each of you said Monday that you could return 14 a verdict for that type damages. I wish -- would if you I S could just punch a button and the whole nightmare would be 16 over and he would appear, but you can't. You can only do 17 the next best thing and that's award money damages, and say 18 to Dow Chemical Company we are going to require you to 19 respond in full damages. 20 And you know, it told me something about this 21 man, that video, just watching him. Is S3 million too much 22 for the loss of a father, for the suffering he went through, 23 for what that widow has lost? Think about that. I wonder 24 if it's enough. And I say to you that you should return a 25 verdict in that amount. The Defendant has had all this week -277- J and this afternoon to suggest to you what they think are 2 proper damages and they did not. Why? Because they know that 3 what I am suggesting is a reasonable amount. 4 And you know, I will sum up by saying that I know 5 you are going to do what is right in this case, something 6 you can be proud of. And you and I both had a little bit of 7 a unique opportunity to get to know this man through the 8 video, and I don't know about you, but I think my life is 9 better for it and I think each of your lives will be better 10 for it. 11 And I will close by saying that do you remember 12 his last words? "I love my wife and I love my children, 1 3 and I hope God will forgive me." Well, I know that wherever 1 4 he is God has forgiven him. Thank you very much. 1 5 THE COURT: (to Bailiff) You can move this. 1 6 (Bailiff removing charts from easel) 1 7 THE COURT: Do you have something, sir? 1 8 MR. ORTEGO: No, Judge, I thought you wanted us 1 9 for something. 20 THE COURT: No. 21 MR. ORTEGO: Judge -- 22 (At the bench, out of the hearing presence of the 2 3 Jury, with Mr. Ortego and The Court) 2 4 MR. ORTEGO: Judge, could we just take all the 2 5 exhibits down, too? 1 THE COURT: Pardon? -278- MR. ORTEGO: Could we just take all of the 3 demonstrative evidence down? There is another piece right 4 in front of the Jury, before the Charge? i 5 THE COURT: Where? !i! j6 MR. ORTEGO: Oh, I was wrong. I am sorry, Judge, 7 (Open court) \ 8 THE COURT: Ladies and gentlemen, you have heard ! ii 9 the evidence presented by the different parties and the J 10 ii argument of their attorneys in support of their positions. 11 I will now give you the Charge, or instructions, which will 12 explain the law that you will follow to decide this case and 13 reach a fair and impartial verdict. You will not have a copj 14 of this Charge with you, so 1 ask that you pay close attentic 15 to what I say. 16 At the beginning of this trial, I gave you some 17 general instructions and definitions which I will not repeat 18 now again, but I ask that you keep those instructions in 19 mind as you listen to this Charge and as you consider the 20 case in the jury room. 21 During your deliberations, you are not to be 22 governed by sympathy or prejudice. The court and the 23 parties expect you to carefully and impartially consider 24 all of the evidence, follow the law as I will explain it 25 to you, and reach a just verdict. You and I are not here 1972 p - z o s r -279I to take sides. We are judges, and our .job is to remain 1 neutral 3 As I told you at the outset, it requires both | 4 the .jury and the court to try this case; it's the court's 5 responsibility to preside over the trial, rule on the 6 admissibility of evidence, and insure that the applicable 7 law is followed. Now you will be bound in vour delibera 8 tions by the law as I am about to instruct you. You will 9 not question whether or not it is a good law or bad law, nor ; 10 will you deliberate upon the correctness of the law. You 11 must accept the law as defined to you by the Court, and 12 you will be bound by it during your deliberations. 13 On the other hand, it is the responsibility of the 14 Jury to determine what facts have been established by this i 15 case, or in this case. It is your sole and exclusive 16 province to weigh all of the evidence which has been 17 introduced, pass upon the credibility of the witnesses who 18 testified, and decide what facts you feel worthy of your 19 belief. It is your duty to decide the facts based on the 20 evidence which has been admitted in this court. The 21 evidence consists of the sworn testimony of the witnesses, yi all exhibits which have been received in evidence, and all 23 facts which have been admitted or stioulated to by the 24 parties. Now whore facts are stipulated, of course, you 25 then should regard that fact as conclusively proved. 1973 -280- 1 Regardless of any opinion you may have as to what 2 the law is or ought to be, it would be a violation of your 3 sworn duty to base a verdict upon any view of the law other 4 than that given in the instructions of the court, just as 5 it would also be a violation of your sworn duty, as judges 6 of the facts, to base a verdict upon anything other than the 7 evidence in this case. 8 In deciding the facts of this case you must not be 9 swayed by bias, prejudice or favor to any party. Our system 10 of law does not permit jurors to be governed by prejudice, 11 sympathy or public opinion. But the parties and the public 12 expect that you will carefully and impartially consider all 13 of the evidence in this case, follow the law as stated by 14 the Court, and reach a just verdict regardless of the 15 consequences. 16 This case should be considered and decided by you 17 as an action between persons of equal standing in this 18 community, and holding the same or similar stations in life. 19 Now a corporation is entitled to the same fair trial at your 20 hands as is a private individual. The law is no respecter 21 of persons, and all persons, including corporations, stand 22 equal before the law and are to be dealt with as equals in 23 a court of justice. 24 As stated earlier to you, it is your duty to 25 determine the facts, and in so doing you must consider only I q7 O -ZofJ -281- 1 the evidence I have admitted in this case. Now the term 2 "evidence" consists of the sworn testimony of the witnesses 3 and the exhibits admitted in the record. 4 Remember now that any statements, objections 5 or arguments made by the lawyers are not evidence in this 6 case. The function of the lawyers is to point out those 7 things that are most significant or most helpful to their 8 side, and in so doing, to call your attention to certain 9 facts or inferences that might otherwise escape your notice. 10 In the final analysis, however, it is your own 11 recollection and interpretation of the evidence that con 12 trols. What the lawyers say is not binding upon you. 13 While you should consider only the evidence 14 elicited in this case, you are permitted to draw such IS reasonable inferences from the testimony and exhibits as 16 you feel are justified in light of common experience. In 17 other words, you may make deductions and reach conclusions 18 which reason and common sense lead you to draw from the 19 facts which have been established by the testimony and the 20 evidence. 21 Now, I have said that you must consider all of the 22 evidence. Now that does not mean, however, that you must 23 accept all of the evidence as true or accurate. 24 It is your privilege as the jury to determine 25 the credibility and weight to be given to the testimony 1975 -282- 1 of these witnesses. By credible testimony, we simply mean > such testimony as you deem to be worthy of your belief. 3 In weighing the testimony of the witnesses, you 4 may consider the circumstances under which the witness 5 has testified, their appearance and demeanor on the stand, 6 their candor and fairness, or the lack thereof, the logic 7 or reasonableness of their testimony, and their interest S or lack of interest in the litigation. 9 Since in every lawsuit there are usually conflicts 10 in the testimony, it is your duty to reconcile these 11 conflicts, and you may attach such weight to, or completely 12 disregard if you choose, the testimony of any witness. Or, 13 you may accept such parts of the testimony you believe to be 14 true and reject that part which you believe to be untrue. 15 In this connection, you are not bound to decide any issue 16 of fact in accordance with the number of witnesses that 17 either side might present as to any particular issue. 18 The Court will also inform you that there are 19 two types of evidence, these being circumstantial and direct 20 evidence. Direct evidence is such that goes to the proof 21 or disproof of any particular fact, such as the testimony of 22 any eyewitness, or something of that nature. Circumstantial 23 evidence is the proof of a chain of circumstances which 24 logically point to the existence or non-existence of certain 25 facts. A fact may be established by circumstantial evidence 1976 Q-305? -283- 1 when it may be fairly and reasonably inferred from all the 1 facts proven in the case. Now as a general rule, the law 3 makes no distinction or preference between direct evidence 4 and circumstantial evidence, but simply requires the .jury 5 to decide the facts in accordance with a preponderance 6 of all the evidence in the case, both direct and circum 7 stantial. And preponderance of the evidence means the 8 greater weight and degree of credible, believable testimony. 9 You have heard expressed in this case the opinions 10 or conclusions of several witnesses who are referred to as 11 expert witnesses. Any witness who, by education and 12 experience, has become learned in some art, science, 13 profession or calling, may state an opinion as to any rele 14 vant or material matter, and also state the reasons for 15 that opinion. You should consider each expert opinion 16 received 'in evidence in this case and give it such weight 17 as you may think it deserves. If you should decide the 18 opinion of an expert witness is not based upon sufficient 19 education or experience, or it you should conclude that 20 the reasons given in support of the opinion are not sound, 21 you may reject the opinion entirely. You are not bound by 22 the testimony of any expert and you have the privilege of 23 weighing their testimony just as you would that of any 24 other witness. 25 As I said earlier, the weight of the evidence is 1977. -284- 1 not necessarily determined by the number of witnesses 2 testifying as to the existence or non-existence of any 3 fact. You may find that the testimony of a smaller number 4 of witnesses as to any fact is more credible than that 5 testimony of a larger number of witnesses to the contrary. 6 A witness may be discredited or impeached by 7 contradictory evidence, by a showing that he testified 8 falsely concerning a material matter, or by evidence that 9 at some other time the witness has said or done something, 10 or has failed to say or do something, which is inconsistent 11 with the witness' present testimony. If you believe that 12 any witness has been so impeached, then it is your exclusive 13 province to give the testimony of that witness such 14 credibility or weight, if any, as you may think it may 15 deserve. 16 Now any evidence to which an objection was sus 17 tained by t.ho Court must be d isregarded and not considered 18 in your deliberations; and I said that at the outset. 19 Likewise, anything which you may have seen or heard outside 20 of the courtroom touching on the merits of this case is not 21 evidence and must not be discussed, and should be entirely 22 disregarded in your deliberations; and I said that at the 23 outset. However, you are permitted to draw reasonable 24 inferences that you feel to be justified in the line of 25 your experience from the facts which have been proved in the j3 & ( I courtroom. -285- 2 And in a civil action such as this, the plaintiff 3 has the burden of proving every essential element of her 4 claim by a preponderance of the evidence. As I said earlier, 5 the preponderance of the evidence is the greater weight and 6 degree of credible testimony. In the absence of such proof, 7 she cannot prevail as to her claim. A preponderance of the 8 evidence also means such evidence as, when considered and 9 compared with that opposed to it, has more convincing force 10 and produces in your minds a belief that what is sought to 11 be proved is more likely true than not. In other words, to 12 establish a claim by a preponderance of the evidence merely 13 means to prove that the claim is more likely so than not so. 14 A mere possibility is not enough. If, upon any question I S or essential element in the Plaintiff's case, the evidence 16 appears to be equally balanced, the matter remains one of 17 speculation or conjecture, or if you cannot say upon which 18 side it weighs heavier, you must resolve the question against 19 the Plaintiff and in favor of the Defendant. 20 In determining whether any fact in issue has been 21 proved by a preponderance of the evidence, the greater weight 22 and degree of credible testimony, you may consider the 23 testimony of all of the witnesses, regardless of who may 24 have called them, and all of the exhibits received in 25 evidence, regardless of who may have produced those exhibits. 197 Q-30&2- / // -286- 1 1 If the proof should fail to establish any essential element of Plaintiff's claim by a preponderance of the evidence, 3 you should find for the Defendant as to that claim. Now I will give you the contentions of the parties. 5 ;; This suit was instituted by the Plaintiff, Ann I. Greenhill, 6 for personal injuries sustained by her deceased husband, 7 James Edward Greenhill, which resulted in his death, sus 8 tained as a result of being exposed to the chemical 2,4-D 9 manufactured and placed in the stream of commerce by the 10 Defendant herein. i 11 I The Plaintiff's suit against this Defendant is 12 ;'ii based on what is commonly referred to as the theory of 13 products libability. Generally, the Plaintiff contends 14 that the chemical 2,4-D to which James Edward Greenhill was 15 | ! exposed was manufactured and sold by the Defendant and that 16 it was defective. The Plaintiff further contends that the 17 defect rendered the chemical 2,4-D unreasonably dangerous 18 to users and consumers. The Plaintiff contends that James 19 Edward Greenhill's injuries occurred as a result of his 20 being required to work around and in proximity to the 21 chemical 2,1-D manufactured and sold by the Defendant. The Plaintiff contends that such product was defective and 23 i unreasonably dangerous in that it is known to be injurious | 24 .I; to one's health. The Plaintiff further contends that said 11 25 | product was defective and unreasonably dangerous because it 1980 d -9 0 (3 -287- 1 fail ed to provide an adequate warning to persons situated as 2 the Plaintiff. The Plaintiff further contends that such 3 defect as described herein was a producing cause of his 4 resulting personal injuries and physical damage. 5 As in every case, it is the responsibility of 6 the court to charge or instruct the jury as to the require 7 ments of the applicable law governing the theories of the 8 respective parties to the case. In this connection, I will 9 now give you some additional definitions and charges as to IO the applicable law, and you are instructed to bear these 11 definitions and instructions in mind during the course of 12 your deliberations. 13 Under the applicable law, one engaged in the 14 business of manufacturing and selling products, such as 15 the Defendant in this case, who sell products in a defective 16 condition, which makes the product unreasonably dangerous 17 to users such as James Edward Greenhill, is subject to 18 liability for the physical harm to a user. 19 Under the principle of products liability law 20 the Defendant in this case is liable for injuries caused 21 by its defective products even though it exercised all 22 possible care in the preparation and sale of same and even 23 though said defendant had no knowledge of the existence 24 of the defective condition at the time of the sale. The 25 law imputes to a manufacturer knowledge of the harmful 1981 D-lObi 1 -288- character of his product whether he actually knows of it or 2 not. He is presumed to know of the harmful characteristics 3 of that which he makes. Therefore, a product is dangerously 4 defective if it is so harmful to persons that a reasonable 5 prudent manufacturer with this knowledge would not have 6 placed it on the market. The liability of the Defendant 7 attaches without regard to the question of negligence. It 8 is no defense in connection with Plaintiff's products 9 liability claim that the Defendant was not negligent. 10 Furthermore, under the circumstances, the Defendant is 11 liable to the Plaintiff even though James Edward Greenhill 12 did not buy the product or enter into any contractual 13 relationship with the Defendant. 14 The Plaintiff is required to prove by a prepon 15 derance of the evidence that a defect in the product 16 existed at the time it left the control of the Defendant, 17 that the defect made the product unreasonably dangerous, 18 and that the defect was a producing cause of the injuries 19 arid resulting death sustained by James Edward Greenhill. 20 You are further instructed that a product is 21 defective if it exposes a user, such as James Edward 22 Greenhill, to an unreasonable risk of harm when used for 23 the purpose for which it was intended. A manufacturer or 24 seller, such as the Defendant, must anticipate the 25 environment in which its product will be used and the 1982 0 ~ M i> s r -289- 1 intended use standard imposes upon the Defendant the duty A. to guard against reasonably foreseeable risks of harm that 3 are engendered by the intended use of this product. The 4 fact that a user, such as James Edward Greenhill, does not 5 use the product in the exact manner contemplated by the 6 Defendant will not preclude his recovery under the theory 7 of strict liability where the product was defective when 8 supplied. Now a product may be rendered defective through 9 two ways: a defect as a result of its manufacture or 10 material; two, a failure to warn properly of a dangerous 11 characteristic of the product. 12 In connection with the Plaintiff's allegation 13 that the product was defective by reason of the Defendant's 14 failure to furnish a proper warning, the Plaintiff must IS show by a preponderance of the evidence that the Defendant 16 has failed to furnish a proper warning of the potential 17 dangers of said product in connection with James Edward 18 Greenhill's use and that such failure was a producing cause 19 of James Edward Greenhill's resulting injuries and death. 20 For strict liability to accrue for failure to warn, it is 21 not essential that the product be? defective in the sense 22 that it was not properly manufactured. The product may be 23 perfectly manufactured and meet every requirement for its 24 designed utility and still be rendered unreasonably 25 dangerous through failure to warn of its dangerous 1983 1 characteristics. -290- > You are instructed, finally, that the term 3 "producing cause" means an efficient, exciting, or con 4 tributing cause which in a natural sequence produces the 5 injury or damages complained of. There may be more than 6 one producing cause. By the term "sole producing cause" 7 is meant the only cause, and there can only be one sole 8 producing cause. 9 Now the Plaintiff's first claim is brought under 10 the law of strict liability, which basically means that one II who designs, manufactures, sells or distributes a produce 12 has a duty to provide a product that is not unreasonably 13 dangerous and is free from defects when used for its 14 intended purpose and in a manner that can be reasonably 15 foreseen. 16 A manufacturer is obligated by law not to place 17 into the stream of commerce a product which is unreasonably 18 dangerous to the ultimate user. A manufacturer is not 19 liable under that theory, however, for harm caused by a 20 product which is delivered in a condition that is safe 21 for reasonably foreseeable use and handling. 22 The fact that the Plaintiff claims that the 23 Defendant's product was in a defective condition unreason 24 ably dangerous to the user or consumer is not evidence to 25 that effect. These are merely the Plaintiff's allegations, 1 Q Q 4. 0 ~ S . O ( o 7 1 which the Defendant denies. -291- -> A product is unreasonably dangerous to the user 3 when it has a propensity or tendency for causing physical i j ! 4 harm beyond that which would be contemplated by the ordinary 5 user, having knowledge of the product's characteristics 6 common to the foreseeable class of persons who would 7 normally use the product. Put another way, a product is 8 unreasonably dangerous, and thus defective under the law 9 of strict liability, if its utility, or usefulness, is out- \ j10 weighed by the magnitude of the danger, if one exists, that 11 it could cause cancer. 12 An unreasonably dangerous product may also be 13 defined as one that is dangerous to an extent beyond that 14 which would be contemplated by the ordinary user of the 1 5 product with ordinary knowledge common to the community 16 as to the product's characteristics. 17 Now the Plaintiff has the burden of proving that 18 the product was in a defective condition, that the condition 19 rendered the product unreasonably dangerous to the user and 20 that the product was intended to and did reach the user 21 without substantial change in the condition in which it was i* manufactured and sold. 23 In order to prevail on her claim that the product, 24 2,4-D, manufactured and sold by the Defendant and used 198525 by the decedent was defective as well as unreasonably -292- 1 dangerous, the Plaintiff must establish the following 2 elements by a preponderance of the evidence, the greater 3 weight and degree of credible testimony: 4 1) the Defendant knew or by the application of S reasonably developed human skill and foresight should have 6 known at the time it manufactured and sold the product used 7 by Mr. Greenhill that exposure to the product could cause 8 cancer ; 9 2) that the Defendant failed to provide adequate 10 warnings, or failed to provide adequate instructions on 11 what precautions should be observed when handling the 12 product when it left the Defendant's possession; 13 3) That such failure on the part of the Defendant 14 rendered the' product unreasonably dangerous; and I S 4) that the product was a producing cause of 9 16 Mr. Greenhill's death. 17 Now the question of whether the product is 18 unreasonably dangerous can be determined only by taking 19 into consideration the surrounding circumstances and the 20 state of the art at the time the product was manufactured 21 and sold, and determining therefrom whether a reasonable 22 manufacturer would have so manufactured and sold the product 23 had he known of the alleged risk involved. The state of 24 the art requirement means that you cannot .judge Defendant's 25 product with the luxury of hindsight, but instead you must D- -293- 1 measure it in light of. the scientific and the medical 2 knowledge in existence at the time Defendant manufactured 3 and sold the product which the decedent used. 4 The Court also instructs you that compliance with 5 Government safety standards and regulations constitutes 6 evidence that a product is not defective or unreasonably 7 dange rous. 8 Now strict liability is not absolute liability 9 and the manufacturer is under no duty to produce a product 10 which is accident-proof. Further, the manufacturer is not 11 to be considered an insurer or guarantor against all harm 12 caused to a user by its product. The manner of injury may 13 be so fortuitous and the chances of injury occurring so 14 remote that it is reasonable to sell the product despite 15 the danger. Put another way, a product is not unreasonably 16 dangerous and defective under the law of strict liability, 17 if its utility, or usefulness, outweighs the magnitude of the 18 danger, if any, which is inherent in its introduction into 19 commerce. Such an article is not dangerously defective in 20 design even if it inflicted injury. 21 I am getting to the end. Where a danger or 22 potential danger is not generally known and recognized 23 at a particular point in time, the manufacturer at that ** 24 point in time does not have a duty to warn the ultimate 25 user. A seller of a product only has a duty to warn of 1987 Q-2070 -294- 1 those dan gers that are re a so n a b ly fore se e ab le and o f which !i th e u s e r c a n n o t be e x p e c t e d to be aware. ji I 3 Now when a w a r n i n g i s a c t u a l l y g i v e n , th e s e l l e r l 4 may r e a s o n a b l y a ssu m e t h a t i t w i l l be r e a d and h e e d e d and I 5 where necessary to in su r e the s a fe ty of oth ers, passed on. ! 6 A product b e a rin g such a w arning which i s safe for use i f i 7 it is follow ed is not in d efe ctive condition, nor is it 8 u n r e a s o n a b l y d a n g e r o u s , and t h e r e can be no r e c o v e r y un de r j 9 the theory of s t r ic t lia b ilt y . i j 10 Now i n o r d e r t o p r e v a i l on the t h e o r y o f s t r i c t j 11 l i a b i l i t y a s d e s c r i b e d a b o v e b y t h e C o u r t , t h e P l a i n t i f f 12 m u s t p r o v e b y a p r e p o n d e r a n c e o f t h e e v i d e n c e t h a t t h e 13 p r o d u c t , 2 , 4 - D , w a s a p r o d u c i n g c a u s e o f M r . G r e e n h i l l ' s 14 i n j u r y . I n t h e p r e s e n t c a s t ' , a c a u s e i s a p r o d u c i n g c a u s e 15 i f i t d i r e c t l y a n d i n a n a t u r a l a n d c o n t i n u i n g s e q u e n c e 16 p r o d u c e d s u c h i n j u r y o r d i s e a s e , s o t h a t i t c a n r e a s o n a b l y 17 b e s a i d t h a t , e x c e p t f o r t h e d e f e c t i v e c o n d i t i o n , t h e i n j u r y 18 o r d i s e a s e c o m p l a i n e d o f w o u l d n o t h a v e o c c u r r e d . P r o d u c i n g 19 c a u s e m a y a l s o b e d e f i n e d a s a n e f f i c i e n t , e x c i t i n g o r 20 c o n t r i b u t i n g c a u s e , w h i c h , i n a n a t u r a l s e q u e n c e , p r o d u c e s 21 M r . G r e e n h i l l ' s i n j u r i e s o r d a m a g e s c o m p l a i n e d o f , i f a n y . 22 I f th e e v i d e n c e i n d i c a t e s t h a t t h e r e a r e two o r 23 m o r e p o s s i b l e c a u s e s f o r t h e P l a i n t i f f ' s i n j u r y , a n d t h a t 24 a t l e a s t o n e o f t h e p o s s i b l e c a u s e s i s o n e f o r w h i c h t h e 25 D e fe n d a n t w ould not be r e s p o n s i b l e , then the P l a i n t i f f m ust 0-&o7f -295- 1 prove by a preponderance of the evidence that the alleged T injuries were the result of the cause for which the Defendant 3 would be liable. If the evidence leaves it just as probable 4 that these injuries were a result of the cause lor which 5 Defendant is not responsible, then the Plaintiff cannot ; 6 recover against the Defendant. 7 You are further instructed that in the event 8 that there are two causes to the* injury or death of Mr. 9 Greenhill and that one of such causes was that of the 10 Defendant and the other cause was that of a third person, 1! the Plaintiff need only prove that the Defendant's cause was 12 a producing cause of the event, and this cause may concur wi 13 any other cause to produce the event. 14 It will be necessary in your deliberations to 15 determine first whether the Plaintiff has established by a 16 preponderance of the evidence that the Defendant is liable 17 to the Plaintiff under the theory of strict liability by 18 reason of the sale and manufacture of a defective and unre19 sonably dangerous product and failure to warn, and secondly, 20 whether such defective product was a producing cause of 21 the injury or damage to James Edward Greenhill. 22 Finally, you will consider the amount of damages 23 which the Plaintiff has sustained, if any. 24 In connection with the contentions of the Plaintiff 25 you are hereby charged and instructed as follows: Ei-zoyz. -296- I If you find from a preponderance of the evidence that the chemical, 2,4-D manufactured by the Defendant 3 herein was defective so as to render same unreasonably 4 dangerous for its intended use and that James Edward 5 Greenhill was exposed to such product and such exposure 6 was a producing cause of James Edward Greenhill's injuries 7 and subsequent death, then your verdict will be for the 8 Plaintiff and against the Defendant and by your verdict 9 you will so state and you will assess damages for the 10 Plaintiff in accordance with the legal instructions herein 11 after given to you. 12 You are further instructed that if you find from 13 a preponderance of the evidence that the Defendant failed 14 to properly warn James Edward Greenhill of the hazards in 15 connection with the use of the chemical 2,4-D apd that such 16 failure was a producing cause of James Edward Greenhill's 17 injuries and subsequent death, you will find for the 18 Plaintiff and against the Defendant and by your verdict 19 you shall so state. You are instructed that if you find 20 from a preponderance of the evidence that the product in 21 question is unreasonably dangerous and that the risk of ii harm to persons situated as the Plaintiff is foreseeable, 23 a warning is required in connection with the use of such 24 products which contains the following elements: 25 19T0 0 -2.073 -297I 1) such warnings must be such as to catch the 2 attention of the user. You are instructed in this regard 3 that a warning to a supervisor of the Plaintiff is not 4 suf ficient. 5 2) the warning must be comprehensive and it must 6 identify the specific hazard. 7 3) the warning must instruct how to avoid the 8 risk. 9 4) the intensity of the warning must be con 10 with the magnitude of the risk involved. 11 In connection with this duty to warn, you are 12 further instructed that all manufacturers are held to the 13 knowledge and skill of an expert. They are obliged to keep 14 abreast of any scientific discovery and are presumed to know 15 the result of such advances. Therefore, if you find under 16 these instructions that the Defendant failed to furnish a 17 warning in connection with the use of its product as 18 described above and that such failure was a producing cause 19 of James Edward Greenhill's injuries and subsequent death, 20 then your verdict will be for the Plaintiff and against 21 the Defendant. 22 I am now going to instruct you on the issue of 23 damages. Just because I am so instructing you on this 24 issue does not in any way mean that you should award damages 25 to the Plaintiff. mi C -2 0 7 / 1 -298- If you reach a verdict in favor of the Plaintiff *> in this case, then it will be your duty to assess damages 3 against any such Defendant that you have found reasonable. 4 In determining the amount of damages, if any, you shall 5 take into consideration the nature and extent of James 6 Edward Greenhill's injuries and death, and may award damages 7 which: 8 a) the necessary medical, nursing and hospital 9 care received by James. Greenhill for the treatment of 10 injuries sustained by him as a result of the occurrence in 11 question. 12 b) the reasonable amount of expenses for 13 funeral and burial for James Edward Greenhill. 14 c) the conscious physical pain, if any, and I S mental anguish, if any, suffered by James Edward Greenhill 16 before his death as a result of the occurrence in question. 17 d) the emotional pain, torment and suffering 18 that Ann Greenhill would, in reasonable probability, 19 experience from the wrongful death of James Edward Greenhill. 20 e) the pecuniary loss to the spouse and child 21 of James Edward Greenhill as a result of this injury and 22 death. 23 You are instructed that pecuniary loss i-s defined 24 as care, maintenance, support, services, advice, counsel 25 and reasonable contributions of pecuniary value that the 1992 0-*<?75 -299- 1 spouse and children of James Edward Greenhill would, in j 2 reasonable probability, have received from James Edward j 3 Greenhill. i 4 f) the loss of companionship and society of 5 James Edward Greenhill to his spouse and child. 6 You are instructed that loss of companionship j I i i 7 and society is defined as the positive benefits flowing 8 from the love, comfort, companionship, and society that 9 the spouse and child of James Edward Greenhill would, in 10 reasonable probability, experience if James Edward Greenhill II had lived. 12 You may award such sum of money, if any, if paid 13 now in cash, that you find from a preponderance of the 14 evidence would fairly and reasonably compensate the Plaintiff 15 for his injuries which were produced by the defect, if any, 16 of the product in question. 17 Ladies and gentlemen, now in fairness to all the 18 parties, you are instructed that in regard to the records 19 presented to the witness, I think it was Tuesday, of an 20 individual other than Mr. Greenhill, 1 think it was Mr. Moss, 21 if I remember correctly, there was no misconduct by any party 22 or witness and all proper procedures were followed by the 23 attorneys and the witness at the deposition of the witness 24 as well as during the proceedings here in court. So 25 disabuse your mind of that altogether. 1993 300- 1 Now these instructions are given to you as a whole, 1 and you are not to single out one instruction alone as 3 stating the law, but must consider the instructions as a 4 whole. You have heard all of the evidence in this case and 5 you have heard the argument of counsel. The Court has given 6 you its instructions as to the applicable law in this case. 7 In a few moments you will retire to the .jury room, select 8 one of your members to act as foreperson, and begin perform 9 ing the function for which you have been chosen and for which 10 you have been impanelled, in accordance with the oath which 11 you took as jurors. You will remember at the beginning of 12 this trial, the Court admonished you not to discuss the case 13 with each other until it had been submitted to you. Now it 14 is time for you to begin your discussions, and you certainly 15 may express an opinion from the evidence that you have heard 16 and use any reasonable means to persuade other members of 17 the jury to your convictions and to your honest opinion. 18 Now your verdict must represent the considered 19 judgement of each juror, unanimous. In order to return a 20 verdict, it is necessary that each juror agree. As I say, 21 your verdict must be a unanimous verdict of each of the 22 people on this jury. 23 Now it is your duty as jurors to consult with one 24 another and to deliberate with a view to reaching an 25 agreement if you can do so without violence to your 1994 Q-2.077 v -3021 to communicate with the court, please reduce your message 2 or question to writing signed by the foreperson, and pass 3 the note to the marshal who will bring it to my attention. 4 I will then respond as promptly as possible, either in 5 writing or by having you returned to the courtroom so that 6 I can address you orally. Nov/ in regard to any message 7 or question that you might send to me, never state or 8 specify your numerical division at that time. 9 The Verdict Form that will be presented to you 10 consists of three questions: 11 Special Interrogatory No. 1: Did the Plaintiff 12 prove by a preponderance of the evidence that Defendant's 13 product, 2,4-D, was a producing cause of Decedent's injury 14 and death? Answer "Yes" or "No," and a place to sign it 15 one way or the other. 16 If you have answered "yes" to Special Interrogatory 17 No. 1, then answer Special Interrogatory No. 2; otherwise, 18 sign the verdict form and return it to the Court. 19 Special Interrogatory No. 2: Did Plaintiff prove 20 by a preponderance of the evidence that Defendant knew or 21 by the application of reasonably developed human skill and 22 foresight should have known at the time Defendant manufacture 23 and sold the product, 2,4-D, which the Decedent used that 24 the product was defective and unreasonably dangerous by 25 reason of Defendant's failure to warn that such product 1995 P -7c>7z> -303- 1 caused Decedent's injury and death? Answer "Yes" or "No., 2 and a place for you to sign "Yes" or "No. 3 If you have answered "yes" to Special Interrogator} 4 No. 2, that I just read, then answer Special Interrogatory 5 No. 3; otherwise, sign the verdict form and return it to 6 the Court. 7 Your last Special Interrogatory: Special 8 Interrogatory No. 3: What sum of money, if paid now in 9 cash, do you find from a preponderance of the evidence 10 would fairly and reasonably compensate the Plaintiff for 11 the injuries to and death of James Edward Greenhill 12 resulting from his exposure to the chemical of 2,4-D? 13 Answer in dollars and cents, if any, or none. A place for 14 you to date it and your foreperson to sign it. 15 Now, Mrs. Blow, you have been very diligent here 16 during this entire proceeding, but you are the alternate 17 juror, and all we need in the jury room is six people. So, 18 I am going to thank you on behalf of all of the attorneys 19 and everyone connected with this case. We appreciate your 20 being with us, but you are excused at this time. 21 I will give the Verdict Form to the deputy marshal 22 and you now will retire and start the consideration of your 23 verdict. 24 (Alternate juror exits courtroom) 25 THE COURT: Now, if you want all of the exhibits, 199G 0 -2079 -305MR. BALDWIN, JR.: Well, if we send the tape we ought to send the machine. MR. BALDWIN, SR.: We can just send the tape and the machine with it. THE COURT: Everything that's introduced into evidence they have requested. The foreman is Fred McCoart, the man on the front row. Does anybody want to see this? MR. BALDWIN, SR.: No, sir. MR. ORTEGO: No, sir. MR. BALDWIN, SR.: I don't know how to communicate with them to tell them if they want to see the video that the TV is available. THE COURT: Call the Jury in a minute. I am going to ask thorn if they want the video of the decedent. MR. JONES: Judge, could we have a second to go through? These were supposed to be redacted and we are trying to check them. THE COURT: Well, check them all before they go in, but I want to ask them about this video. MR. BALDWIN, SR.: Just make it known to them if they do want it it's available. THE COURT: Of course it is. MR. ORTEGO: Judge, I will object to the video, just for the record, because I think it would be undue influence. It's been stenographical1y put forth. 1997 b - a o w -306- 1 THE COURT: Well, since it is an exhibit and they 2 have asked for the exhibits, and under the rule they are 3 entitled to all exhibits, I think they are entitled to it. 4 I overrule the objection. 5 MR. BALDWIN, SR.: It would be error not to send 6 them all. 7 MR. GILLAM: What is the objection, Your Honor? 8 MR. BROWN: Be undue -- 9 (Jury entering courtroom at 7:44 p.m.; open court) 10 THE COURT: Ladies and gentlemen, -- sit down. 11 Everybody be seated. We got your note and we are getting 12 all of the exhibits together that you have requested. I 13 want to ask you whether or not you included in this request 14 the videotape of Mr. Greenhill? Do you wish that? 15 MR. FOREMAN: No, sir. 16 THE COURT: All right. You wish all of the 17 other? 18 MR. FOREMAN: Yes, sir. 19 THE COURT: Okay. We are getting it together, 20 and if you want that it's available for you. You may go 21 back and we will have this for you in just a couple of 22 minutes. 23 MR. FOREMAN: Thank you. 24 (Jury out at 7:45, deliberations continuing) 25 (Exhibits to Jury at 8:04 p.m.) 1998 O - i o l ! -307- 1 (Jury Note at 8:12 p.m.: "Please send a copy of all 2 warning labels.") 3 (Off the record discussion with all Counsel and The 4 Court regarding note) 5 (Open court, 8:22 p.m.; jury not present) 6 THE COURT: All right, here is the note that I 7 am giving them: "You have requested a copy of all warning 8 labels. You are advised that the warning label is one of 9 the exhibits being numbered 20 y. If you do not have this 10 exhibit, so advise the Court." II Does that meet everybody's approval? 12 MR. ORTEGO: Yes. 13 MR. BALDWIN, SR.: Yes. 14 (Recess at 8:23 p.m.; note taken to Jury) 15 (Jury Note at 8:30 p.m.; open court, jury not present) 16 THE COURT: A note from the Jury to the Court: 17 "20 y is not here. Send the big board with the eighteen 18 reports and the board with the warning label, please. 19 Signed Fred McCoart." 20 Is the big board in evidence? It's not, is it? 21 MR. ORTEGO: No, it's not in evidence. None of 22 them are in. 23 THE COURT: And the board with the warning label, 24 that's not in evidence, is it? 25 MR. ORTEGO: No. 1 THE COURT: Where is the 20 y? -308- 2 MR. ORTEGO: Right here. 3 MR. BALDWIN, JR.: Right here. 4 THE COURT: "To the Jury: We are sending you 5 20 y, Exhibit 20 y." 6 MR. ORTEGO: Judge, can we make sure that 20 y 7 was put into evidence? 8 THE COURT: It was. 9 MRS. WILLIAMS (Docket Clerk): It was. 10 THE COURT: My notes show it was in and Nancy 11 shows it on hers. "I cannot send you the big board with 12 the eighteen reports and the board with the warning label 13 because these matters were not placed into evidence, were 14 not entered into evidence." 15 MR. BALDWIN, SR.: But rather were trial aids. 16 I'd like to have some comment, Judge -- 17 MR. ORTEGO: No, I don't think we should describe 18 it, no. 19 MR. BALDWIN, SR.: -- where they don't think they 20 don't represent evidence. 21 MR. ORTEGO: Well, no. 22 MR. BALDWIN, SR.: Just say "we can't send them." 23 MR. ORTEGO: Because they are not in evidence. 24 MR. BALDWIN, SR.: No. 25 MR. ORTEGO: No, you have got to let them know why 2000 o -z o Z 3 1 they weren't introduced. -309- 2 MR. GILLAM: No, no. What you are trying to do 3 is say that that stuff, you know, wasn't for any use. 4 MR. ORTEGO: Oh, no. 5 MR. GILLAM: Yes, you are. You know, just 6 say "we can't send you the boards." > MISS JORDAN (secretary to Court): (Reading) 8 "We are sending you Exhibit 20 y. I cannot send you the 9 big board with the eighteen reports and the board with the I O warning label because these matters were not introduced into 11 evidence." 12 THE COURT: "Were not introduced into evidence." 13 MR. BALDWIN, SR. : Could not be. 14 MR. ORTEGO: No, no, no. 15 MR. BALDWIN, SR. : Well, I would have offered 16 them if we could. 17 MR. ORTEGO: No. 18 MR. BALDWIN, SR. : I think the place to do it is 19 to put the period after "I cannot send you these exhibits." 20 MR. ORTEGO: No, because -- 21 MR. GILLAM: What is the use in descri b ing it? 22 MR. ORTEGO: Because they weren't admitted into 23 evidence. They asked for all the exhibits in evidence, 24 and now they have asked for more and these are not in 25 evidence. They are only entitled to the exhibits in evidence. 2001 lO -z o z f -310I MR. BALDWIN, SR.: Well, they are in evidence. 2 THE COURT: This is off the record. 3 (Brief off the record discussion) 4 THE COURT: All right, out it this way: "I am 5 sending you 20 y as requested. The other matters requested 6 cannot be furnished to you." 7 MR. BALDWIN, SR.: I think that's the way to 8 do it. 9 (Recess at 8:30 p.m.; note taken to jury) 10 (11:05 p.m.; open court, jury not present) 11 THE COURT: The Jury went out about seven forty12 five, and it's eleven o'clock now, five after. We haven't 13 had any contact with them, what, for a couple of hours. I 14 am just wondering if we ought to set' if they want to work 15 later on or come back in the morning. I am more or less at 16 whatever is the pleasure of the attorneys. 17 MR. BALDWIN, SR.: I would suggest we leave it 18 to them, see what they say. 19 MR. ORTEGO: I think so too. I think if they get 20 tired they will let us know. 21 THE COURT: You mean just let them go ahead and 22 continue to work without any -23 MR. ORTEGO: Yes. Unless they come out. And I 24 think they will let us know if they are angry and want to 25 get out. 2002 0-261? -311- 1 THE COURT: Why don't we let it ride then until, 2 say, eleven forty-five. That will be what, four hours? 3 MR. ORTEGO: Four hours. 4 THE COURT: And see what's hanpening between now 5 and then. If we don't hear something by then, we will ask 6 them to come up and ask whether or not they want to continue 7 their deliberations or come back at nine o'clock in the 8 morning. 9 MR. ORTEGO: I think that's fair. 10 THE COURT: Because we have got some people on 11 this jury that live seventy-five miles from Marshall, 12 assuming they go home. I don't know whether they will or 13 not. All right, we will wait until eleven forty-five and 14 then see what happens at that time. IS (Recess at 11:08 p.m.; jury continuing deliberations) 16 (Jury note at 11:26 p.m.; verdict has been reached) 17 (Open court; jury and all parties present at 11:29 p.m.) 18 THE COURT: Be seated. Mr. Foreman, have you 19 reached a verdict? 20 MR. FOREMAN: Yes, Your Honor. 21 THE COURT: Just give it to the security officer. 22 (Mr. Foreman tendering verdict) 23 THE COURT: Is this Verdict the unanimous verdict 24 of all of the Jury? 25 (All jurors nodding affirmatively) 2003 -3121 THE COURT: The answer to Special Interrogatory 2 N o . 1: "Yes." The answer to Special Interrogatory No. 2: 3 "Yes." Answer to Special Interrogatory No. 3: "$1,500,000." 4 Dated 12-2-87, signed Fred J. McCoart, foreman, foreperson. 5 Is that the verdict of the entire six people on 6 this Jury, the unanimous verdict of all of you? 7 (Jurors nodding affirmatively) 8 THE COURT: Do any of the attorneys wish that the 9 Jury be polled? 10 MR. ORTEGO: No, Your Honor. 11 THE COURT: I accept the Verdict. I wish to 12 thank you for your very diligent time that you have given 1 3 to this case. I know it's been a hard job for everybody. 1 4 You are excused. Now, I know there are two -- Mr. McCoart 1 5 and Mr. Wright, you are on the jury tomorrow, and I hate to 1 6 tell you this but you have to be back here about nine o'clock. 1 7 I can see the smile on your face to greet that. Thank you 1 8 again, and we stand in recess. 1 9 (Jury excused at 11:33 p.m.) 20 (Open court, 11:34 p.m.; all parties present) 21 MR. ORTEGO: Your Honor, the'Defendant The Dow 22 Chemical Company moves for a judgement notwithstanding the 2 3 verdict. The evidence in this case -- there was no credible 2 4 evidence to support Plaintiffs' contention in this matter 2 5 on strict liability. As a matter of fact, the testimony of 2004 Q-20% 7 -313- 1 Dr. Teitelbaum, as indicated earlier, did not support a 2 verdict in this particular case, but rather was speculation 3 and not legally sufficient as a matter of law. It was not 4 enough evidence to go to the jury, and a judgement notwith 5 standing the verdict should be granted to Dow. 6 THE COURT: Overruled. Are you going to submit 7 something in writing in addition to this? 8 MR. ORTEGO: Yes, Your Honor. 9 THE COURT: All right. The motion will be 10 overruled. Anything else before we adjourn for the evening? 11 MR. ORTEGO: No, Your Honor. * 12 THE COURT: We stand adjourned. 1 3 (Proceedings concluded at 11:35 p.m.) 14 15 16 17 18 19 20 21 22 23 24 25 2005 Q - M t Z 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE EASTERN DISTRICT OF TEXAS 3 4 5 6 REPORTER'S CERTIFICATE 7 8 I certify that the foregoing is a correct 9 transcript from the record of proceedings in the 10 above-entiled matter. 11 12 13 1 4 January 15, 1988 15 16 17 18 19 !Z ANN E. (iLIBfeY) CRAWFORD OFFICIAL |C0L|RT REPORTER 20 21 22 23 24 25 2006 1