Document OzjZN5j4OxwmZGO6gO8KBGXkj

1 1 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT 2 ST. CLAIR COUNTY, ILLINOIS 3 4 FRANCES E. KENNER, ET AL ., ) 5 Plaintiffs, ) 6 v. 5 7 MONSANTO COMPANY, ) B Defendant. 5 9 10 11 REPORT OF PROCEEDINGS 12 December IB, 19B5 13 14 Before the HONORABLE RICHARD P. GOLDENHERSH, CIRCUIT JUDGE 15 IB APPEARANCES: 17 MR. REX CARR and MR. JEROME SEIGFREID, Attorneys at IB Law, on Behalf of the Plaintiffs; and 19 MR. KENNETH HEINEMAN and MR. JOSEPH NASSIF, Attorneys 20 at Lauj, on behalf of the Defendant, Monsanto Company. 21 22 Kathleen Watson Brunsmann, RPR, CSR 23 Official Court Reporter 24 G- 1 INDEX OF WITNESSES 2 RENATE D. KIMBROUGH 3 DIRECT EXAMINATION By Mr. Heineman 4 CROSS EXAMINATION By Mr. Carr.... 5 6 7 INDEX OF EXHIBITS B 9 Defendant *s 10 13SB 11 1329 12 1330 13 1331 Marked 4 4 7 9 14 1332 14 15 1333 20 IS 1334 33 17 1335 35 IB 1336 42 3 BB 2 1 BE IT REMEMBERED AND CERTIFIED, that heretofore, 2 on to--wit, Wednesday, December 18, 1905 the matter as 3 hereinbefore set forth came on for hearing before the 4 Honorable Richard P. Qoldenhersh, Circuit Judge in and for 5 the Twentieth Judicial Circuit, and the following was had of 6 record, to-uiit: 7 e CThs following Offer of Proof was had out 9 of the presence of the Jury:! 10 11 THE COURT: Okay, gentlemen. 12 MR. HEINEMAN: Your Honor, at this time for 13 Defendant's Offer of Proof, we would like to call to the 14 stand Dr. RBnate D. Kimbrough. Dr. Kimbrough, would you 15 come forward and be sworn? 16 17 RENATE D. KIMBROUGH, IB 19 having been called as a witness on behalf of the 20 Defendant Monsanto, having been sworn, testified 21 as follows: 22 23 24 1 5 3 4 5 E 7 B 3 10 11 15 13 14 15 IB 17 13 15 50 51 55 53 DIRECT EXAMINATION BY MR. HEINEMAN; q Would you stats your name for the record, please. A I'm Renate Kimbrough. My first name is spelled R-e-n-a-t-a, last name K-i-m-b-r-o-u-g-h. | 13 Dr. Kimbrough, the microphone you see there before you does not amplify your voice in any way * A Dkay. Q It's just there to record, so don't worry about it.. A Q Okey. Would you give us your datB of bifch, please. A January 14, 1533. Q And your place of birth. A Hannover, Bermany. Q Where do you reside at this time? A 155 Avery, A-v-e-r-y, Drive, in Atlanta, Beorgia. Q And by whom ere you employed? x A By the Centers for Disease Control t Q In what capacity, ma'am? A I'm a-medical toxicologist, and I work in the Center for Environmental Health as a medical officer, primarily in the arBa of toxicology and environmental health and occupational health. 4 1 s 3 4 5 6 7 8 9 10 11 18 13 14 15 1G 17 10 19 BO El HS S3 84 Q Would you describe Tor thB Court, please, your educational background* A I graduated From medioal school in Germany and than immigrated to the United States and served an internship in pathology at Northwestern University at Evanston Hospital. Then moved to Nsw York, worked at Memorial Hospital For Cancer and Allied Diseases for a year, Then moved to Atlanta and worked as a resident in pathology at St. Joseph's Infirmary, Subsequently obtained a job at the Canters for Disease Control in a toxicology laboratory in 19GS, and have worked for the federal government in thB area of toxicology and environmental health ever since then, All right, MR. HEINEMAN: I wonder if you would mark these please. Defendant Monsanto's Exhibits 1380 and 1329 were marked for identification by the court reporter. Q CBy Mr. Heinemani Dr. Kimbrough, let me hand you / uihat's been marked as Defendant's Exhibit 1388 and ask you to examine that and identify it for me, please. A This is my Curriculum Uitae, which gives my 5 1 B 3 4 5 E 7 B 3 10 11 15 13 1*4 IS IB 17 IB IB BO ai BS S3 S4 educational background, my certifications and the publications and whatever activities. Q Do b s it list ths various professional boards of which you're a member, and societies? A Yes. \ All right. And let me next hand you, if I may, please, Defendant's Exhibit 13S9, and ask you to examine that and identify it far the record, please. A This is my job description as to what I am performing now at the Centers For Environmental Health. Q And what is the nature of this document? By whom is it prepared? A It was prepared by the Center for Environmental Health to describe what my activities and responsibilities should bB in the job that I'm presently holding. Q And is this a document prepared according to the usual business practices of the Centers for Disease Control? A Yes. Q And da they da this for other officials as well as yourself? A Yb s . Everybody that works for the federal government has a job description. D All right. This one happens to apply to your position? \ 6 1 s 3 4 5 B 7 B S 10 11 12 13 14 15 IB 17 19 19 0 21 22 23 24 A Yes. Q All right. And is this kept and prepared and maintained in the regular course of business by ths Centers For Disease Control? ft Yes. There's a copy in the Personnel Office and also a copy in the Director's Office, and then I get a copy. Q All right. Thank you. i^ MR. HEINEMAN: Your,'Ho/notr*, copies * 7of thesB, \ N' ^ documents have been provided to-Counsel for the Plaintiffs. I It would obviously -- with this witness' brief time on the stand today, it would savs a great deal of time if we didn't havB to go through this whole thing, and I would, with thB Court's permission, I 'd like to submit them to the Court as part of our Offer of Proof in order -to save time. THE COURTj ftny objection to that? MR. CftRR*. I have no objection to anything Counsel wants to do in an Offer of Proof, your Honor. THE COURT: Fine. MR. CARR: He may do what he wants. THE COURT: Why don't you Just submit them and w e 'll save some time. MR. HEINEMAN: Fine. I 'd like to submit thBm to the Court with our OffBr of Proof. THE COURT: Right. 7 1 Q CBy Mr. Heineman? Dr. Kimbrough, in your official a capacity or in any capacity, personal or otherwise, do you 3 havB any connection whatsoever with Monsanto Company? 4 A No. I mean except that I have done research work 5 on some of their compounds. B Q I see. Was that at their request? 7 A Oh, no. That was at the government's request. B 0 All right. Now in terms of your appearance here a today, are you being paid or retained in any way by Monsanto 10 Company to be here? 11 A No. The federal government is paying for my 12 expenses. 13 Q All right, Now -- 14 15 16 i 17 Defendant Monsanto's Exhibit 1330 was marked for identification by the court reporter. 16 Q CBy Mr. Heineman? Let me hand you what's bean IS markBd as Defendant's Exhibit Number 1330, and ask you to 50 sxamine that and identify it for me please. 51 A This is a mBmo, which I wrotB on January 30, 1977 22 at the Centers for Disease Control to record a telephone 23 conversation which I had with a Dr. TBd Appel, a physician, 54 who wanted to have information and discuss with me a problem 6 1 that ha had with b patient because there had bean a spill of s j OCF crude in Sturgeon, Missouri. 3 0 All right. Doctor -- *i \ MR. CARR: Just ana minute, Counsel, unless toe1vs E lBFt something at the office, I don't believe uie've been 6 given this before, your Honor. 7 MR. MASSIF: CD0509, Rex. B MR. CARR: Did you just giVB it to us this 3 morning? 10 MR. HEINEMAN: No, CQ050S. 11 MR. CARR: Gd ahead, Counsel, we'll straighten it IB out later. I can't find it now. 13 Q CBy Mr. HsinBmanD Dr. Kimbrough, is this 1* telephone call that you received From Dr. AppBl the first 15 that you knew of the Sturgeon incident? 15 A Yb s . 17 And uihat was the subject of the call? What was IS Dr. Appel's concern? 19 A He had a child that he thought had been exposed to BO the vapors from the DCP cruda, the phenol vapors. And he -- SI this child had had a respiratory arrest and was ill. He BB wanted to know whether thB exposure to thB phBnols could S3 have caused the problem in the child. And he also had S4 collected some urine and a blood specimen and he wanted 9 1 s 3 4 5 B 7 B 9 10 11 15 13 14 15 16 17 IB 19 20 51 25 23 24 assistance From the Centers For Disease Control in the analysis aF these specimens For phenols. He was sent to us through the Missouri Health Department. All right. Defendant Monsanto's Exhibit 1331 was marked For identification by the court reporter, CBy Mr, HeinsmanD Let ms hand you what's been marked as Defendant's Exhibit 1331, which is a two page document of handwritten notes and ask you if you can Bxamine that and identify it For me, please, A These are -- MR. CARR: Counsel, it would assist us a great deal, if you, because the things you've given us are not in chronological order or any other order, for us to know what she's referring to. W e 've got to go through and Find this unless you give us one. MR. HEINEMAN; All right. I thought what we gave you was in thB order. MR. CARR; It doesn't mean it's in the order now. W e 've gone through what you gave us, Counsel. We found this one now that you've just given the witness. MR. HE INEMAN; A H right. 10 1 2 3 4 5 6 7 a a 10 n 12 13 14 15 IB 17 IB 13 SO 21 22 23 24 0 CBy Hr. HeinemarO Now* Dr. Kimbrough, would you identify the document, please. A ~ These are notes I took, they're in my handwriting, and they pertain to this same telephone conversation. And thBn subsequently from these not3 I dictated the memo. Q Which is Exhibit 1330? A Yes. And what was the sex of this child? A I believe it was a boy, but I*m not sure whether I'm saying it in thB mama. If you look at Defendant's Exhibit 1330 in the third line there -- A Dh, yeah, six month old male child. Q Oh. A Okay. G Now, what was it that your agency undertook to do in connection with this call, and why? A Because of the concern of the physician and because the Missouri State Health Department had asked us to assist, we did accept the blood specimens and they were subsequently analyzed in our laboratory. Q All right. A And we also then collected additional information n the episode to see whether therB were other problems, 11 1 s 3 4 5 e 7 Q B 10 11 15 13 14 15 16 17 16 19 50 51 55 53 24 whether there tuas anything Bise fchB Centers For Disease Control aught ta do. And because of our interest, we thBn had a lot of conversations with the EFA and different people that were involved. Now, do the notes that are reflected in Defendant's 1331, are those the notBB that you received over the telephone? A Yes. This was information I received over the tlphona. Q And on the first page of Exhibit 1331 do you recall from whom you received the information as to the contents of the tank car? A Not exactly. From somebody that was -- from the EPA or somebody that was involved with the spill. Now if I can direct your attention again to Exhibit 1330, does it contain a statement as to th air levels? A Yes. Q UJhat is that, m a 'am? A The levels have been below ana part per million. And that's air levels of what? A Of the phenols and the orthoohlorophenol. Q Now, in the first paragraph of your mBmo there's a statement near the end of the first paragraph about 12 1 e 3 4 5 6 7 a 9 10 11 12 13 14 15 IB 17 IB 19 50 21 52 23 54 occupational exposure. Do you see that? A Yes. Q And would you tell us how you reached that conclusion? What information were you relying on? A I was primarily relying on the measurements that had been made, and then I had additional discussions with the people that were working at thB site. Q Now what measurements WBr you familiar with that^ had been made? A These were air level measurements that I'm partly referring to in my memo. G By whom were they made? A The Environmental Protection Agency in Kansas City. Q All right. How did you reach the conclusion that the air levels have been within the levels recommended far occupational exposure? A In the normal course of business, when 1 get telephone calls from people about levels of chemicals in air or in water, I then refer to textbooks and standards that are available to me and look up what the levels are since you can't always remember all these numbers. And then I usually give people information as to whether I feel that that is dangerous or it isn't. That's part of my work. I t 13 1 did that, and X reviewed that with these people according to s this memo. 3 Q All right. Now on the last page of the 4 memorandum, which is Defendant's Exhibit 1330, in the last 5 -- the last sentence, it reads, "A lOcc sample of this S material will be mailed to us by the Kansas City EPA," 7 correct? B A Yes. 3 Q Who was it that1 agreed todo that? 10 A According to my handwritten notes, I apparently 11 talked to a Mr. Gilmer and somebody by the name of McClurg. 12 I don't remember who that was* But one of those people 13 agreed to arrange it. I later talked to somebody by the 14 name of Kloepfer also. 15 Q i- Kloepfer? 15 A Kloepfer. 17 Q How do you spell that? 10 A K-l -- I think it's K-l-o-e-p-f-s-r. IS Q What was your understanding of his -- the agency 20 he was with? 21 A He is with the EPA in Kansas City, and h e 's a 22 chemist. 23 Q All right. Did there come a timB when a sample of 24 the material was sent to you? 14 1 2 3 4 5 6 7 a s ao li is 13 14 IS IE 17 IB IS SO SI S3 23 54 ft Yes, Defendant Monsanto's Exhibit 1335 was marked far identification by the court reporter. CBy Mr. HeinemanD Let ma hand you what's bean marked as Defendant's Exhibit 133S and ask you to examine that and identify it for me, please. ft This is a memo to the record, which was writtBn at the Centers For Disease Control by Dr. John Liddle, dated February 15, 1973. Q And I see written in the upper right-hand corner a series of initials* A Yes. Q And one of those is R.K. A Yes* And is that you? A , Yes. What is the significance of the fact that there's initials written with a line underneath? A These are different people that were working in the laboratory, and hB dictated thB memo and than he routed it to thB different peoplta, and I was the last one on the list. And did you receive a copy of this memorandum? 1 5 3 4 5 5 7 Q 5 10 11 12 13 14 15 IB 17 18 19 BO 21 B2 23 54 15 * A The feet that I initialed it means that Iread it. Q All right. Is this a document praparadin thB ordinary course of business of your agency? A Yes. And Dr. Liddls is employed by whom? A He is employed by the Centers for Disease Control. Q And is he the chief of the Toxicology Branch? A Yes. Q And is -- A H a 's no longer. He's not now, but he was then. Q He was at that time? A Yes. Q Is this a document that came out of your file? A We had a filB on this case and this docment was in that file. This is our case number, 9-7. Q All right. Now, what is this memorandum about? A He also received a telephone call from Dr. Ted Appel, and he inquired as to the status of the analysis in serum and urina samples obtainad from a six month old male child that ha is presently treating. And we told him that the analyses were under way. And then Dr. AppBl was told that some of the phenols contained highly toxic dioxins, and so he and the family wBrs very concerned about it, and we said thBt we had 16 1 no plans to analyze for dioxins because the present 2 analytical techniques are inadequate to detect dioxins at 3 the levels that they would theoretically be in the 4 biological samples. 5 Here we're talking about blood and urine. We 're 6 not talking about adipose tissue. The amount of sample that 7 we had would be insufficient. Q Q Now with respect to the analytical techniques for 9 detecting dioxins in levels in blood and urine, were there 10 available techniques somewhere else in the country for doing 11 | that sort of thing? t 12 A At the time there weren't any methods that we -- 13 anywhere that we knew about that would be reliable for blood 14 and for urinam, simply because dioxins are soluble in fat so 15 they primarily concentrate in fatty tissue, and the amount 16 that you would have in blood would be much, much less. 17 At that time were you familiar with Drs. Tiernon IB and Taylor at Wright State University? 19 A Yes. 20 Q All right. To your knowledge did they have the 21 capability at that time of analyzing blood and urine 22 accuratey far the presence of tetra dioxins? 23 A Not on -- we didn't think on a specimen of 10 24 milliliters. 17 a e 3 4 5 S 7 B 9 ao n 12 13 14 15 IS 17 IS 19 50 21 . 52 23 54 What's significant about the specimen of 10 milliliters? ft Well, once you get a much larger specimen, then, of course, you could try and concentrate the dioxin and than you mould be able to increase your limit of detection. Q All right. But on a specimen of 10 milliliters, what was your understanding as to whether or not those two scientists could detect it in blood and urine? ft As far as I knew, they WBre not able tD da that reliably. Q Now when you said the methods mere inadequate to detect dioxins they mould theoretically be in the biological samples, what did you mean by that? A I meant parts per trillion levels, low parts per trillion concentrations. Now in the next paragraph of this memorandum by Dr. Liddle, do you sea in the latter half of the third paragraph a reference to Monsanto? A It's the last line? Well, actually it starts -- it has to do with the conversation with Bob KleapFsr. ft Yes. The EPA has not detected any tetrachlorodioxin in any sample related to this study and that they merB undertaking additional analysis to try and IS 1 E 3 4 5 6 7 a s 10 ii IE 13 14 IS IB 17 IB 13 SO si SB S3 E4 identify the reason for the difference between Monsanto's and their analysis. Q All right. Now in thB first paragraph immediately above that, what was thB information that your agency had with respect to what Monsanto had determined? A Monsanto Company had announced that their laboratories had detected and identified tetrachlorodioxin-- MR. CARR: Your Honor, I would object, unless Counsel makes it clear that she's reading -- that's not information that she had but that Dr. Klaopfer from thB EFA gave her. THE COURT: Objection is sustained. Could you i clarify that, please. 0 CBy Mr. HeinemanD Yes. That paragraph reflects a conversation between Dr. Liddle and Dr. Kleopfer of the EFA; correct? A Yes. 0 And it's Dr. KlBopfer that's reporting this information? A Yes. Q All right. And what Is the information that Dr. Liddle understood to be thB case? A That Monsanto had detected tetrachlorodioxin at a level of 37 parts per billion, in the production of DCP 19 1 s 3 4 5 6 7 0 9 10 11 IS 13 14 15 IB 17 IB 19 HO 21 SS 23 24 crudB that mas Involved in the incident And Monsanto also stated that the tetrachlorodiaxin detected in thB phenol material Bluded at the same time as an authenticated 2,3,7,B tetrachlorodioxin standard. Q Is the chemist at Monsanto involved in that uiork identified? A Yb s . His name bias Jim Mieure. All right. A That's M-i-a-u-r-e. That's not right. It's M-iu-r. Q Actually this one is spelled M-i-e-u-r-e. A Dkay. Sorry. Q Now in the last paragraph on that first page, did Mr. Kleopfer explain the efforts EPA had gone to to analyze for dioxins? A Yes. Q And what was that? A Thsy analyzed for dioxins in a soil sample that contained 7 percent by weight of the DCP crude phenol mixture. And what did Mr. Kleopfer report that they wsre able to find? A The lower limit of detection was .1 part per billion for the 2,3,7tB tetrachlorDdlbenzo-dioxin, and he SO 1 5 3 4 5 B 7 B S IQ 11 IS 13 14 15 IB 17 IB 13 EQ SI 52 S3 24 was not able to detect any tetracholrodioxin in any sample related to this study. And that they were undertaking additional analyses to try and identify thB reason for the difference between Monsanto's and their analysis* ,, I Defendant Monsanto Exhibit 1333 was marked for identification by the court reporter. Q CBy Mr. Heinaman} Dr. Kimbrough, let me hand you what's next bean marked as Defendant's Exhibit 1333, and ask you to examine'that and identify it For me, please. A This is a memo to the record which was written by Dr. Larry Needham, who was and still is in the toxicology branch of the Centers for Disease Control, and the subject was again the QCP spill. I Q ftll right. Now, did you receive b copy of this document as well? A Again this was circulated and my initials are there, and I marked that I 've read it. All right. And was this prepared in the regular course of business of your agency? A Yes. Q And is circulated to you as part of that regular procedure? SI 1 s 3 4 5 6 7 e 9 10 11 IS 13 14 15 16 17 IQ 19 SO SI ss S3 E4 A Yes. \ Q Is it maintained as a part of the regular course of business of thB agency? A Yes, in this case file, 9-7. ) Now, I'd like to direct your attention to the first paragraph. What is it that uias being reported by Dr. Needham to the rest of you to whom this was being circulated? A That wa had received a serum, one milliliter, and Five milliliters of urine sample from an infant who had possibly been exposed by the air and as a result of an overturned rail tank car to a mixture of phenols, 70 percent of which was orthochlorophenol. 0 Now, is this the samB -- is this ths same infant that was being reported about in the previous memorandum? A To my knowledge wa only received one sample from an infant. All right. In Defendant's Exhibit 1332, dated in February, Dr, Liddle reported that the analyses were under way, did he not? A Yes. Q But in March Dr. Needham reports the set of samples; correct? A N o . He reported that he received the sample on 22 1 e 3 4 5 6 7 B 3 10 11 12 13 14 IB 16 17 IB 19 20 21 22 23 24 February the 2nd. 0 All right. A The dates an these memos sre really the date -- what we do is us dictate the information, it goes on tape, and we're very short in support personnel, so the dates really reflect the date when the secretary typed it, which is not the wBy things should be done, but unfortunately we just have a problem with that. Q All right. So insofar as you know is it the same sample that's being talked about? A Ves. Q By what method was this sample analysed in your agency? A UJe did two things really. We tried high pressure liquid chromatography. Then uib also derivatized it and used gas chromatography. Q All right. Now, were you able to detect anything in these samples in terms of the chemicals that were expected to be there? A No. Except we spiked samples. We Just added material For controlling material, because there we were able to detect something. But not in the samples from the patient. G All right. But the particular serum samples S3 1 s 3 4 5 6 7 a 5 10 11 15 13 14 15 IB 17 IB is 50 51 55 53 54 referred to at the beginning of the memorandum, was any arthochlorophenol detected in those? A No. Q In the last paragraph on the First page, were some additional serum samples received? A Yes. Q What was that about? Where did those samples coma from? A These were From adults, From other people that \ thought thBy uisrB exposed. They warB From five patients. And what were you able to Find with respect to thOSB? A When we first analyzed them we had some problems identifying -- interpreting our results. Then on resnalysis iuq tuere not able to identify any of these phenols. Q Now at the end of the second page tharB's a handwritten paragraph. Do you sea that? A Yes. Q And whose handwriting is that? A That's mine. Q In Fact, ycur name appears below the handwriting; correct? A Yes. / 24 1 D To whom mere you directing this remark and why did s you ask ths question? 3 A Because Larry Needham made a statement in his memo 4 that I -- I just didn't think he had any information that hB 5 could base that statement an. B Q Did you direct this to D r . Needham? 7 A Yb s . I also wanted it to go -- be on record. B Q All right. Why did you feel that hB didn't have 9 any basis for ths statement that the orthochlorophenol 10 contained dioxins and Furans? 11 A Because normally in a loui chlorinated phenol le mixture you wouldn't expect to find furans. If you're 13 primarily dealing with the 5,4,B-Trichlorophenol you really 14 shouldn't have any 2,3,7,8 tetrachlorodibenzo-dioxins. I 15 was just raising that issue. IB Q Why do you say -- why do you suggest that you 17 would be dealing with 5,4,B-Trichlarophenol? IB A Because that'was ths information that we were IS given, that this product, and that was what I thought this 20 product represented, is that it was primarily the 2,4,651 Trichlorophenol. 52 New, as I understand it, you were given 53 information that the trichlorophenal would be 2,4,6. 24 -----A----given that information, but that was l 25 1 a 3 4 5 6 7 B a 10 n 12 13 14 15 IB 17 IB ia 20 21 22 23 24 also what I knew about this particular product, and that's in the literature. All right. And where did you derive your information about what you knew about this particular product and what was in the literature? A Part of it I got from the Environmental Protection Agency during the telephone conversations that I had with them, and thBn there are handbooks such as Zack/Baffey and / so an that give you that type of information. You can also look it up in thB Merck Index. Now, did the Centers for Disease Control reach a conclusion with respBct to this six month old infant? A UJa felt that whatever the infant had was unrelated to the incidence at Sturgeon. Q And why was that? A Because, first of all, the child didn't seem to have any exposure and the illness that was described didn't really fit, and you can have illness in the general papulation. You have that all the time. Q Did the analysis that was performed on the samples sent to you have anything to da with your conclusion with respect tc this six month old male child? A Yb s , it had something to do with it. But it's not -- the illness that was described in thB child really didn't t 26 1 2 3 4 5 Ea 7 8 S 10 11 12 13 14 IS IB 17 IB 18 20 21 22 23 24 1 fit and ms only did the analysis because we were asked to da it by the Missouri State Health Department, because there was a lot of agitation on the part of the physician. We performed it as a service, not because we felt that this was probably a phenol poisoning. \ Mow, did there come a timB when you had conversations with Harry GilmBr of the EFA? A Yes. Q And what do you recall about your calls or your conversations with Harry Gilmer? A He was concerned about the 2,3,7,0 tetraohlorodibsnzo-dicxin. He wanted to know whether I felt the Fact that this had been found by Monsanto in the OCP crude had any toxicological significance as far as the spill in Sturgeon was concerned, and I told him that it didn't, and that he didn't need to be concerned about it, that what he ought to be concerned about was the phenol spill and he ought to clean that up. Q Now, according to the memorandums that we've just been through, Monsanto wasn't able to identify thB isomers specifically as 2,3,7,B, were they? A ThsrB was a lot of debate about it, although they thought that it might be there. IF what they thought was the 2,3,7,8 -- 27 a 2 3 4 3 B 7 B S 10 11 IB 13 14 15 16 17 IB 19 BO 21 22 S3 24 MR. CARR: Your Honor, I abject unless the witness is repeating conversations she had with people at Monsanto. It appears that she is, but I don't belisvB that shB is. THE COURTj Could you clarify. It's not really clear what the source of all this is. Q CBy Mr. HBinemani Yes. Doctor, would you identify the source of thB information that you're talking about right now. A The discussions I had were with th EPA and the on site coordinator at the spill. Q That would be Harry Silmsr? A Yes. Q And Bob Kleopfer? A Yb s . Q All right, A And then there was a Dr. Siver from the EPA in Washington. He was a medical adviser, D And your conversations were based -- your conversations were with those three individuals; is that right? A Yes. Q Did you have any conversationsdirectly with anybody from Monsanto? A Not that I can recall, SB 1 5 3 4 5 E 7 6 3 10 11 IS 13 14 IS 16 17 ie 19 so 21 SS S3 4 0 All right* Now, I 'm sorry, you uiBrB talking about there was a debate about whether it was 2,3,7,8. A Yes. Q Would you elaborate on that For the record? A I felt because of the fact that we were dealing with the 2,4,6 that it most likely wasn't the ,3,7,0tatrachlorodibenza--dioxin. But even if Monsanto had identified as thB ,3,7,B-tetrachlorodibenzo-diaxin, the concentration that you found it, it wouldn't be of toxicological significance, and, therefore, I didn't think that thr EPA or the -- during the clean up that they needed to worry about the dioxion. They should just concentrate on the phenol. Q Mow, I 'd like to show you an exhibit which is Defendant's Exhibit 1193-A, which is thB SBcond page of -- this is obviously a blow-up of a second page of Exhibit 1193. Why don't I givB you thB ntirB exhibit. First let me hand you what's been marked as Defendant's Exhibit 1193, and I would like to ask you whether 1193-A is accurate -- is an accurate blow-up of the second page of that exhibit? A Yes. Okay. Mow, directing your attention to the second and third paragraphs, I 'd like to ask you whether the third paragraph on that page accurately sets forth the advice that 29 1 s 3 4 5 E 7 a 9 10 11 IS 13 14 IS IE 17 ie 13 20 21 22 23 24 you gave to the EPA? A Yss. Q All right. Now why was it, Dr. Kimbrough, that you fait that 37 parts pBr billion -- well, First of all, let me ask you this: by the most toxic form of dioxin, what was your understanding that Hr. Bilmar was referring to? A What -- Q ThB most toxic Form d F dioxin. A Ka was talking about the 8,3,7,8tetrachlorodibenzo-dioxin. Q All right. Why did you feel that 37 parts per billion of 2,3,7,8 TCDD would not increase the BndengermBnt to the town's people of Sturgeon? A First of all, once the stuff was spilled, you have dilution of some percentage, which would reduce the amount in thB material that thB workers were coming in contact with. 1 was realy only concerned about the workers. I wasn't concerned about the people in the town of Sturgeon at all because they would really have no intimate contact with this material. Then secondly, the material in part would be bound on soil, which would make it less available to the worker. And thirdly, the worker would only be exposed to it for a short period of time during the clean up. We have 30 1 s 3 4 5 E 7 B 9 10 11 IS 13 14 15 16 17 IB 13 SO SI 22 23 2*4 never had any problems with people that spray 2,4,5 or have in the past spayed 2,4,5-T, that had at least these concenrations and often higher concentrations in the commercial pilot, That was the reasoning I went to, You say the people that have sprayed 2,4,5-T had et least these high concentrations of the product. Concentrations of what? A Of the 2,3,7,8-tetrachlarodibenzo-dioxin. Whet is the form of tstra dioxin that's found in 2,4,5-T? A It's the 2,3,7,0-tetrachlorodibenzo-dioxin. The same material w q 'tb talking about -- w e 're presumably talking about here. Q Uhsn you say you haven't had any trouble with those people, what information, source of material, what is it that you're referring to upon which you base that statement? A The laboratory, when I started out working at the Centers for Disease Control, was primarily interested in the toxicity of pesticides, which includes herbicides. U)e were in the past looking at applicators and health effects in peoplB in the general population from pesticides. So we have never -- we used to collect*reports of incidents. We never had any reports that applicators, for instance, that 31 1 2 3 4 5 6 7 B S 10 11 IS 13 14 15 15 17 15 19 30 31 32 33 24 thBir health was affected. What were thB levels that you were aware of of 2,3,7,0-TCDD that would be found In the 2,4,5-T under those conditions? A In the 2,4,5-T that was used in the '60's and late SO's, the levels varied on -- the highest concentration that has ever been found has been 60 parts per million, but on thB average it ran around two parts per million, And then in thB '7 0 's, as our analytical capabilities improved, and manufacturing procedures changed, thB levels dropped and it was at .1 part psr million, or sometimes 50 parts per billion. Now is it the policy of the Centers for Disease Control, and particularly your particular area of that agency, to respond to requests of the type that Harry Gilmer was making? A Yes. Q Do you at times go out to the scene and do a personal review Df thB situation? A Yes. Either I or other people from the Centers for DIs b s s s Control will. Do you do that on an emergency basis at times? A Yes. If we think it's necessary, if there's a problem. 32 1 2 3 4 5 6 7 B 3 10 11 12 13 14 15 16 17 IB 19 20 21 22 23 24 Now, houi would you describe your reaction to fir. Gilmer'a request, in relation to the other types of responses that you've made. A He actually, because of the concern about the dioxin, at one point wanted me to come to Missouri. But I didn't feel that that was necessary. He was concerned about some of the workers having a skin rash. But I didn't feel that there was any reason for me to go there. I did give him the name of another physician in case he felt he had additional problems. That was Dr. Taylor from the Cleveland Clinic. Q Dr. Taylor from the Cleveland Clinic? A Yes. Q Was he adermatologist? A Yes. Q Did youfeel that the skin rashes he was reporting could in any way be due to dioxin exposure? A No. The concern was that these people might have chloracne, and I didn't -- I didn't think that what he was describing was chloracne at all. But Dr. Taylor had a lot of experience in that, and so if he didn't believe me I told him ha could call Jim Taylor and talk to him also. Q Did you have an opinion at that time as to whether or not at the levels that were being described for the I 33 X presence of TCDD and the product that was spilled there that s it would be likely or even possible that these rashes could 3 be ohloracneT 4 A I Felt that they couldn't be chloracne, that this 5 didn't make any sense. 6 Why was that? 7 A Because the concentrations were too low and a because it was in soil, and because it was bound to soil in 9 part. 10 Maui did there come a time, Dr. Kimbrough, when you 11 had a conversation with a Dr. David Logan of D*S.H.A.? 15 A Yes. 13 Q All right. Was that in relation to thB Sturgeon 14 matter? IB A Yes. IB 17 Defendant Monsanto's Exhibit 1334 was marked IQ for identification by the court reporter. 19 50 Q CBy Mr. Heinsman) Let me hand you what's been SI marked as Defendant's Exhibit Number 1334, and ask you to SS examine that and identify it for me, please, S3 A This is a letter tha Dr. David Logan wrote to me 24 (_ and the date on the letter is December 15, 1973, and he 34 1 s 3 4 5 5 7 B 3 10 11 ia 13 14 15 16 17 IB 13 E0 El aa 23 24 states in his latter that, "As we discussed in our phone conversation today, I 'm sending you information concerning the orthochlorophanol spill in Sturgeon, Missouri." He also included some review data from a Br. John Moore. "The information I have received From Joseph SeiFter at the EFA is that the blood dioxin levels were confirmed and each sample contained 60 percent H^^jB-tetrachlorodibenzo- dioxin. I would be grateful if you would review the enclosed material and indicate if you feel that any further monitoring or evaluation is warranted." Q What was it that Dr. Logan was concerned about, specifically? A He was concerned about workers that had been involved in the clean up and they supposedly had 2,3,7,8-* tetrachlorodibBnzo-dioxin in their blood, and he wanted to know whether O.S.H.A. needed to do something, Q All right. i A O.S.H.A. is the Occupational Safety and Health Administration. Q Now, in this case we heard reference to an organization called NI05H. What is NIDSH and what are they associated with? A NIDSH is the National Institute cf Occupational Safety and Health, and it's one institute of the Centers for 35 1 E 3 4 5 E 7 B 3 10 11 15 13 14 15 15 17 IB 13 50 1 55 53 54 Disease Control. Just the way I am in another institute, which is the Center for Environemental Health. There is a lot of collaboration between thBse two centers. You mean between your canter and the NIOSH? A Yes. What is the relationship between NIOSH and Q.S.H.A.? ft NIOSH performs within the Centers far Disease Control rBSBarch and gives medical assistance to D.S.H.A. Q.S.H.ft., which is the Occupational Safety end Health Administration, is in the Department of Labor, and they enforce the air levels and exposure standards and safety measures in the work place. Defendant Monsanto's Exhibit 1335 was marked for identification by ths court reporter. Q (By Mr. HainsmarO Let me hand you what's been marked as Defendant's Exhibit 1335 and ask you to examine that and identify it for me, please. A This is a letter whioh I wrote to Dr. Logan at the Occupational Safety and Health Administration, It's dated January 4, 1SB0. Q Now was this -- is this document -- - this document 36 1 2 3 4 5 5 7 B 9 10 11 12 13 14 15 15 17 IB 19 20 21 22 53 24 bias prepared by you In the ordinary course of your activities as research medical officer far the Centers for Disease Control? A Yes. 0 And you have maintained a copy of this in the files of your agency? A Yes. And doss thisaccurately setforth the subject matter that you ware discussing uiith David Logan at that time? A Yes. He wanted advice on the blood levels that had supposedly been measured or determined in the workers of the 2,3,7,B-tetrachlorodlbenzo-diaxin. Q All right. And what wasyourposition with respect to those blood levels? A 1 was not convinced that the workers actually had measurable levels of H f3,7,B"tatrachlaradibenza-diaxin in their blood following their exposure to the OCF* crude. Q Why was that? A Well, because first of all 1 was still dubious about this isomer actually being present, since we're primarily dealing with the 2,4,6--Trichlorophenol. And then tbB other problem that I had was the fact that it is * extremely difficult to identify 2,3,7,B-tetracblorodibenzo- 37 X dioxin at vary low concentrations, and you would have to 5 either have hugs amounts of blood, or you simply at the 3 stats of the art wouldn't bs able to detect it in the blood. 4 Pnd w b are still -- wa have a goad method For adipose 5 tissue, but we 're still working on the method For blood, and 6 we still have not ironed out all*of the problems. 7 Q You mean as oF today? B A Yes. 3 And that's the chemistry branch oF the CDC? 10 A Yb s . 11 Q Mow -- IB A Unless it was confirmed -- I 'm sorry. 13 I 'm sorry. Bo ahBad. 14 A Unless they uters confirmed by another laboratory, 15 I just would not rQally accept that result. IB Q Now did you suggest to Or. Logan some things that 17 should be done? IB A Yes. 19 Q All right. What was it that you thought he should SO do? SI A There ought to be Further analysis of the identity ss of the trichlorophenols in the OCP crude, and an attempt 23 should be mads to collect all of thB available information 24 on studies done in connection with this spill from different 38 1 agencies which were involved and these results should he e reviewed. a It should be determined what analyses mere 4 conducted to establish the BO percsnt of the blood -- that 5 60 percent of the blood dioxin was the 2,3,7,8- 6 tetrachlorodibanzo-dioxin, according to the information that 7 he had received from the Environmental Protection Agency. B The methodology and all of that should be looked into to 9 assure that this was really true, because we have had -- we 10 often get results at the CDC that we look into it* it turns 11 out not to be true, v 15 Q Now, youmentioned at the bottom of the page, of 13 that first page, about wanting to determine whether the 14 workers could be exposed to TCDD in other circumstances, IB A Yes, IB Q Did you not? 17 A Yes. IB Q Why would that beimportant? 19 A Wall, first of all, we all have low body burdens SO f these types of chemical in our body. As we improve our SI methods of detection we can -- and we can detect lower 55 levels, we find it in people. Secondly, they are clean up 53 workers that are exposed to all sorts of things. They may 24 have had exposure somewhere else. Nobody did a pre-entry 39 i examination on them, which is what you would hava to do to 5 determine whether somebody gets body burdens, or whether 3 somebody's health is affected from a particular exposure 4 Q What is your opinion, Dr, Kimbrough, as to the 5 source of the body burden that we all have? 6 A TharB are a number oF sources. These types of 7 compounds can be produced through combustion and From Q incinerators. You get this particular isomer and many other S isomers, also.more highly chlorinated dioxins, It is 10 presently not known whether these more highly chlorinated 11 dioxins are transformed in the environment in lower ia chlorinated compounds. 13 Then quite a number of commercial products contain 14 very low concentrations oF these materials. 2,4,5-T was 15 used a lot and it contained the ,3,7,B-tetrachlorodiben2aIB dioxin. Hexachlorophene was made from 3,4,517 Trichlorophenol. It also contained trace amounts. That's IS the germacids that used to be Physohex. 19 Other processes of combustion such as cigarette 0 smoke. From car exhaust you can get these types oF SI compounds. Always in very low concentrations, But all of # 2 it, of course, adds to the burden in the environment. S3 It gets in sediments of rivers and also there are 4 wastes, chemical waste products From chemical companies. 40 1 a 3 4 S e 7 B a 10 il xa 13 14 15 16 17 IB 13 EO 21 E2 53 54 Than From there it can bB taken up by Fish, and people sating the Fish could get burden exposed to these compounds. 0 Now, iF I can direct your attention to the second page of Exhibit 1335, your letter to Dr. Logan, the second paragraph on that page discusses othsr serum samples, does it not? A Yes. What is it that you users reporting to him there? Were thssa samples that use had looked at in the other exhibits? A Yes. B And in the last paragraph that you related to Dr. Logan, what is it that you werB talking about therB? A About the fact that there was supposedly 30 parts per billion of a tetrachlorodibenzo-diaxin in the OCF crude and that if this analytical result is correct, the ratio between the OOP crude and the detected dioxin would be three times tan to the minus seven parts oF DCP to one part dioxin. Whan you have such a large ratio, 1 would have suspected that the blood of the workers would have contained some orthoclorophenol because there was just so much more i orthochlorophenol than this little bit of dioxin. So that is another reason why these results in the blood really didn't make any sense. 41 1 2 3 4 5 5 7 Q 3 10 11 12 13 14 15 IB 17 IB 13 50 HI 55 23 54 Now, I'm not sure I heard you correctly. Did you u s b the term three times ten to the minus seven? Uould that relate tc the dicxin or thB OCP? ' A Well, it's three times ten to thB seven, as far as the DCP is concerned. In other words, there is -- there are only 30 parts pBr billion of dioxin in the orthochlorophenol. So thsrs is a tremendous ratio between the amount of phenols and the little bit of dioxin. Q All right. So under those circumstances you would expect to find DCP -- A Yes. Q -- in the blood if there had been exposure? A Yes. All right. Now, if, Dr. Kimbrough, if all of the 37 or 40 parts per billion, or 30 or 40, or whatever you call it, 30 or 45, or whatever it is, parts per billions had been 5,3,7,B, was it not your opinion that that would not be of concern? A Yes. Q Then why would you be talking to D r ,Logan about needing to figure out whether it was 5,3,7,B or not? Did it make any difference? A It*s. always from a scientific point of view, you always want tc be accurate. So it was partly to confirm 42 1 s 3 4 5 E 7 0 9 10 11 12 13 14 IS IB 17 IB 13 20 HI 22 23 24 that I mas right. Q Okay. THE COURT: Before you gBt into your next subject, can uib taka a short brBBk? HR. HEINEMAN: Sure. THE CDURT: We'll take a short recess. CShort recess.} Q CBy Mr. Heineman3 Dr. Kimbrough, did there come a time uihan you ran some rabbit ear tests? A Yes. Q And what material did you in order to dothat? A I used thB DCP crude, a sample From the lot that was spilled in,Sturgeon. Now was this an environmental soil sample or the material itself? A No, it was the material itself. Defendant Monsanto's Exhibit 1336 was marked for identification by thB court reporter. Q CBy Mr. Haineman} Let me hand you what's bBen marked as Defendant's Exhibit 133E and ask you to examine 43 1 3 4 5 E 7 B 3 10 11 IE 13 14 15 IE 17 IB IS SO El as 23 24 that and identify it For me please. A This is a report of the rabbit ear test that we did. It's entitled "Uolume UI Dermatoxicity of rthochloraphenol to thB rabbit ear." Q Now, what is thB -- what is a rabbit ear tBst and what's it For and why is it used? A It was developed bBcausB years ago we weren't able to analyze For the 2 ,3 ,7 ,B-tetrachloradibenzo-dioxin, and we also didn't know really what it was* Wb Just knew that some of these products, like 2,4,5-T, and particuarly the 2,4,5trichlarophenol in workers that were producing these materials occasionally produced the skin lesions called i chloracne. And one way to Find out whether a particular product would do that was to paint it on the rabbit ear, and then the rabbit ear would respond sort oF in the same way people responded and would get these skin lesions on its ear. And it's a simple biological screening test For that reaction, What is the -- excusa me. What is thB purpose of testing For chloracne either in a rabbit or in looking For it in a human being? A It's a response that can be elicited by 2,3,7,BtetrachlDrodibenzo-dioxin, and compounds that are similar. 1 s 3 4 5 6 7 Q 9 10 u 12 13 14 IS IB 17 IB 19 20 21 22 23 24 In the change you'd get this, a change in thB hair Follicles. They dilate, enlarge, and you get little bumps. And is chlDracne thought by you to bB a reliable indicator of exposure to 2,3,7,8-TCDD? A Yb s . It's not thB only chemical that causes that, but it is one chemical that will cause that reaction. Now, would you describe thB circumstances of this test? Did you perForm this yourselF? A It was done by a technician under my direction. All right. Ulould you tell us what you did on the test, and what the results wBre. A Ue took two rabbits. Since this was just a screening test, we only used two animals. Ule took a small amount oF the material and applied it to thB insidB oF the . rabbit ear daily For FivB days, and then we observed the rabbits to see whether the rabbit would get this chloracne type reaction. In rabbits you call it hyperkeratosis. That's h-y-p-e-r-k-e-r-a-t-a-s-i-s. And the amount that we put on was a tenth oF a milliliter pBr day For Five days. So a total oF Five/tenths oF a milliliter. Now, was this the -- was this the raw OCP solution, ar did you dilute it in same way? A No, wb didn't dilute it. Q UJhat did you Find with respect to the eFFect of i --------------- ----------45 1 2 3 4 5 6 7 a a 10 n 12 13 14 15 IB 17 IS 19 20 21 22 23 24 the test. A There was skin irritation From the raw DCF, but there was no ohloracnB. Now when you say skin irritation, what was the nature of the skin irritation? A The ears looked sort aF reddish and thBre was some increase in the epithelium. There was somB microscopic changes. Wa took the ears, and we -- we killed the rabbits and wb took the ears and processed them and looked at them under the microscope. Now, iF I look at the last two pages oF this exhibit, I see some -- an autopsy report, two autopsy reports there. Are those in your handwriting? A The lower -- thB Final comments, that's my handwriting. All right. A The other was danB by the technician.. Q Does the report pF scarring appear thBre? A Yes. What sort ofscarring was that? A Well, that is the reaction -- it was a healing oF the skin irritation From thB DCP crudB. Now, to me the term skin irritation can mean a wide variety of things, a little reddening, a little 46 1 2 3 4 5 6 7 0 3 10 11 12 13 14 15 16 17 IB 19 BO 21 22 23 24 happing, but it normally doesn't leave a scar, does it? A N o . But there was more damagB than that. There uias -- it wasn't really ulceration, but it was a severe irritation. What we did is we, after we had applied thB material, we kept the animals for a period of time since it takes sometime for the chloracne to develop. Is the chloracne in the rabbit ear readily identifiable? A Yb s . Q How about inhuman beings? A Yes. Q What conclusion did you reach as a result of finding no hyperkeratosis in these two rabbits? A That there was no2,3,7,B-tetrachlorodibenzo- dioxin in the OCP crude at concentrations above .5 parts per million, because the sensitivity of the tests -- NR. CARR: At what level, Doctor, are you talking about? THE WITNESS: 0.5 parts pBr million. The sensitivity of thB test would not detect very low concentrations. CBy Mr. HeinBmanD And what did you do with this information once you developed it? A I mentioned it in my discussions to these 47 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 IB 17 IB 19 20 21 22 23 24 different people that kept calling me about the episode and felt that it was another indication that there was no acute threat to the people. Q Now, the 0.5 parts per million would be 500 parts per billion, would it not? A Yes. And that's thBdetection limit of the test? A Yes. Now, wasit your beliefthat a level -- HR. CARR: Your Honor, I know this is voir dire sort of thing, but he's still leading, nevertheless. I must object to it. \ THE COURT: I don't think there should be any leading questions in this also. Please rephase it. CBy fir. Heineman? What was your belief with respect tD that level in the 0CP being a hazard tD somBDne exposed to it? A I didn't feel that it would be a hazard, because of the dilution that you would get once it got into the sail and because in the past commercial products contained the concBntraions that were higher. Higher than? A Than the .5 parts pBr million. Q Now, Dr. Kimbrough, I'd like you to assume that 4B 1 a 3 4 5 6 7 B 9 10 11 12 13 14 15 15 17 IB 19 SO 21 22 23 24 thBre mas an isomBr specific test performed an the material, n a reserve sample of the material in the tank car, in which it was detected 45 parts per billion of 2,3,7,B-TCDDj and assuming that level cf contamination af the product itself, and that that material was spilled at Sturgeon, do you have an opinion as to whether or not that level of dioxin in that material would be of any biological consequence to anybody at Sturgeon? A It wouldn't be to any of the people. I 'm sorry? A It would not be to the people of Sturgeon, Q Would it be of any consequence in your opinion to the workers that would be involved in thB clean up? A No. With respect to the town's people of Sturgeon, why do you bBlieve that it would not be of any biological consequence? A First of all, if they got exposed to it at all, they would havB very little contact with it. I mean they don't live on the railroad track, or in the immediate area around it. Besides that, you had the dilution that I was talking about, and we at the Centers for Disease Control have established that BVBn for long tBrm exposure, anything below one part per billion would not create a risk to the 43 1 2 3 4 5 E 7 B S 10 11 IE 13 14 15 IB 17 ia 13 E0 El 22 23 24 people living in such a contaminated area. This is For lifa-timB exposure. Now, you suggested that the people would not be living in thB immediate area. Uhat do you mean by immediate? I would suggest to you that there wars homes nBarby the railroad track. I mean within a couple hundred Feat perhaps oF the railroad right-of-way. Do you believe thBt pBoplB living in thB homes that close tD the railroad right-of-way would be in any hazard at all in connection with this concentration that I've Just given you? A Not with these concentrations, and besides that most oF the material was carted away. Now, what are the Factors in your view that lead to your conclusion oF a lack oF biological effect? A Dns Factor is the dilution that you get. The information that,I received was that in most of the soil samples the concentration was diluted by about 10 percent. So if thB highest Ib v b I of TCDD werB 45, that would get you down to 4.5 parts per billion, which is very close to the one point pBr billion level that we establishd For residential areas. You would not havB anybody gardening on thB railroad track, or right immediately adjacent to it. So there would not be intimate contact with whatever soil was 50 1 2 3 4 5 6 7 Q 9 10 11 12 13 14 15 IB 17 IB 19 20 21 22 23 24 left. The material -- most of the material urns removed. And so by the timB you go through all of that, there really isn't anything left. Now, what is -- do you have an opinion with respect to photodegradation of 2,3,7,0-TCDD and whether that occurred? A It occurs when the material is expoused to U.U. light. It disappears very rapidly. There's a paper by Crosby, I think, where he said within 24 hours. 5ome people say within 36 hours. Ue use it, or have used it as a process of decontaminating laboratory service on surfaces, where if you spilled something and then you use U.U. light you can decontaminate you lab. But if the sunlight, or U.U. light can't get to the material, then, of course, it doesn't break down. Now, would you differentiate -- MR. CARR: I couldn't hear the last part of the witness' answer, your Honor. THE COURT: Could you repeat the last part of your answer, please. THE WITNESS: I said that if the sunlight does not gat to the TCDD, then, of course, it can't be broken down. In other words, it's on surfaces -- MR. CARR: I'm Just interested in what you said. 51 1 2 3 H 5 G 7 B 3 10 11 15 13 1H 15 16 17 18 19 20 21 22 23 HH You don't nBBd to explain it to me. THE WITNESS: Okay. NR. CARR: If that is what you said. THE WITNESS: Yes. CBy Nr. Heineman} Now if you use it in the laboratory, that is ultraviolet light, to decontaminate a laboratory, do you have any soil or anything that the material would be adhering to? Would that affect the ability of it to photodecampose? A No. We don't havB sail usually. I don't know. NR. CARR: I couldn't hear that, understand thB lest oF that answer either. What was the last -- THE WITNESS: I do not know -- NR. CARR: You don't know? THE WITNESS: -- whether the fact that it is absorbed to soil affects that. CBy Nr. HeinBmanD ArB you familiar with the Crosby -- NR. CARR: Your Honor, this is leading again. THE COURT : Objection is sustained. It is leading. Gentlemen, could I see you at the bench for a minute, please. CThs following proceedings were had at the bench.1 52 1 2 3 4 5 5 7 B 9 10 11 12 13 14 15 IE 17 IB 19 20 21 22 23 24 THE COURT: Okay. Ob '11 break for lunch at this timB. Ule'll start again at 1:00. t CLunch recess.5 Q CBy Mr. HBinemanJ Dr. Kimbrough, Just before we broke at the lunch brBak I was asking you about photodsgradation. Do you recall that? A Yes. 0 You had mentioned that you used ultraviolet light in the laboratory. A Yes. Q You had mentioned that you used ultraviolet light in the laboratory to decontaminate surfaces; correct? A Yes. D And thenI asked you about whether TCDD being attached to soil, adhering to soil would have any effect. A Yes. D And did Iunderstand youcorrectly to say you don't know? A Yes. Idon't knowwhat therate, whether the fact that it was with the soil would influence it in any way. Do you have an opinion whether TCOD adhered to 53 1 B 3 4 5 6 7 B 3 10 11 15 13 14 15 15 17 IB 19 SO 51 55 53 24 soil would phatodecompose at all? HR. CARR: Your Honor, even in this context, I / think thB witness has to bB shown some expertise in this area. THE COURT: Can you lay a foundation for that. CBy Mr. HeinemanD Dr, Kimbrough, havB you in your capacity, have you studied thB subject of photodecompositian of TCDD? A Yes. I've used it, and in connection with safety in laboratory decontamination. Q And have you done any work or reviewed any literature with respect to photodecomposition of TCDD in soil? A There have been same recent papers that have discussed that. What papers are those? A There was some documents that D r . Schroy sent me and thBn there was some work that thB Air ForcB did. Earlier, some of which is more in documents rather than -- Q I 'm sorry, I didn't hear the last part. A - It's in these Air Force documents that they put cut. All right. What Air Force Study in particular are you referring to? 54 1 s 3 4 5 G 7 B 9 10 11 12 13 14 15 16 17 IB 19 20 21 22 23 24 A This is at ths Eglund Air Fares Bass. In those documents there's reference made to the photodegradation. All right. Now, based upon yaur review of that literature that you've mentioned -- I1R. CARR: Your Honor, I submit this is not sufficient qualification for an opinion. THE COURT: The objection is w b II taken. Sustained. HR. HEINEMAN: Do you have Exhibit 12557 CBy fir. HeinBmanD Dr, Kimbrough, let me hand you uihat's been previously marked as Plaintiff's Exhibit 1255, and I wonder if you would examine that and identify it for the record, please. A It's a paper which I wrote on the ''Health Implications of 2,3,7,8-tetrachlorodibenzodiaxin CTCD03 Contamination of Residential Soil." Q And what -- you say you wrote it? A Yes. 0 And whBn did you write it? A It was started in 19B1 and thBn went through a number of revisions, and was finally publishd in 19B4. Was the document peer reviewed? A Yes. And did youincorpoate comments of consultants? 55 1 2 3 Ht 5 6 7 B 9 10 11 IB 13 14 15 IB 17 18 19 S0 SI SH S3 54 A Yes. Now, why did yDU do this document? Uhy did you I write this document? A In Missouri after we had uncovered the contamination of TCDD in thB riding arenas in 1974, there uiBre, subsequently to that, rumors that there was more contamination and so on, so eventually thB Environmental Protection Agency reopened the investigation and did further analysis Df various -- Qf soil in various arsas in Missouri Thay found additional contamination with the 2,3,7,0tBtrachlorodibenzo-diDxin. OncB they learned this, they then asked the Canter for Disease Control, and they specifically invited me to come to Kansas City to discuss this with them. One of the issues was the level of contamination of soil -- with TCDO in the soil, and at what concentration they should be concerned and what we thought of that from a health point of view. And having made some calculations, I suggested that a level Df concern should be in residential areas above one part per billion. Anything below one part per billion we would not have to be concerned about at all. Above that it would then depend on the situation in the particular area, whether we would have to take remedial action. SB 1 2 3 4 5 6 7 B a 10 n 12 13 14 15 IB 17 IB 19 20 El 22 23 24 Ths question libs also asked of us For the reason of analysis, in other wards, the chemist wanted to know how Far down do they have to measure. As you go down in your measurements the analyses become mors and more complicated, and so they wanted to have a cut-ofF. In order to ) competently detect one part per billion we madB that cut oFF to a high net parts pBr trillion. Subsequently to that we Felt that we should document this advice, and we also asked consultants to consider this Further. And that then eventually resulted in the publication oF this paper. Q Doctor, what is a tolerance level? A It's a level that is set For a chemical in a product, usually by the Food and Drug Administration, For instance, or by the Environmental Protection Agency. Is this one part per billion set forth in FlaintiFF's Exhibit 1255? Is that a tolerance level? A No. You see, the Canters For Disease Control is not a regulatory agency. It's a health advisory. 0 Do you consider the cne part per billion in sail ta be the equivalent oF a tolerance level? A No. Because it is specific For arBas rather than something that should bB applied throughout thB United \ States. It just depends -- you could have levels that could 57 1 2 3 4 5 S 7 6 3 10 11 IS 13 14 15 1G 17 ia 19 SO SI SB S3 24 ha higher in certain areas. This was specifically for residential areas whBre you have small children, U)b only felt that below that Ib v b I there shouldn't be any concern because you than get -- from a health point of view you don't have any problems. In addition to that you gBt into background levels in the environment. What do you mean you get into background levels? A There is, because of the use of 2,4,5-T, for instance, because of thB incineration problems, there is background contamination in general in our environment. Host of thB Ib v b Is that we have found have bBBn in the low parts per trillion range. When you said you found them, you mean as background? A Well, IF you havB a point source, for instance in a -- you have a chemical dump wherB you found TGDD, and you go out From that dump to try and determine how Far the contamination goes, you eventually -- .and then if you have control areas, eventually get to a paint where you will pick up TCDD, but it's nD langsr related to the dump area. It's in that way when we made those types of studies that we found that there is TCCC. Nat everywhere, not in every sample. But you find it. Q Now, how is the background level related to the SB 1 E 3 4, 5 6 7 e s 10 11 IE 13 14 15 15 17 18 19 SO SI ES S3 E4 db part par billion? A It's much below that. It's in parts per trillion levels. Now mas it your intention when you authored this paper that one part per billion be a action Ib v b I? A Action level, of course, means different things to different people. But 'what my intention mas, mas to say, well, hare me now have a level that's ona part par billion, or maybe that's abovB that. Let's look at the area, and sbb mhat's going on. How uniform is the contamination, end do me have to do something. Do me have to remove soil? Dd me havB to keep people from having accsss to certain areas? In those types of public health service measures, you would then have to consider and review the situation. Would an industrial or commercial site be something that you might review? A Yes. But then wb mould review it, yes. But then you could leave higher levels there. W e 've done that in certain areas. What is your opinion with respect to a railroad right-of-way? A It mould fall mare into the commercial areas. And mould you consider one part per billion in soil to be a level of concern in a railroad right-of-way? 59 A Not necessarily. Q What would be the considerations that would enter into your conclusion? A It would depend on what the activities were in that area and what type of exposure people might have, those sorts of things. All right. What specifically would you have in mind in terms of making an assessment? A In residential areas, the major exposure would occur in toddlers, and the concern there was the ingestion of soil, that when children play outside they would sat sail and then they would get a certain dose from the soil. You would not have to be concerned about that with grown-ups. Host of the exposure there would be through the skin. The absorption of the material from soil into the skin is much less than when you ingest it. So thB dose drops precipitously. Now if that is one of your criteia, how would you then relate to a railroad right-of-way in tsrins of the one part per billion? A The one part per billion would certainly be safe and you would be able to leave higher levels, Q Well, for example, did you previously come up with a figure a moment ago of 4.5 parts per billion when you took 60 1 45 and took 10 percent of it or something likB that? 2 A Yes. 3 All right. Now would a 4.5 part per billion level 4 in soil be a concern to you as the author of PlaintiFf's 5 Exhibit 1255? 6 A No. Ue made some calculations for the state of 7 New Jersey, where there werB commercial areas whBre the B levels mere five to seven parts per billion, and we advised 9 the state of Now Jersey that since it was a commercial area 10 they would not have to take any remedial action. 11 When you say -- well, let me ask you this: would 12 five to seven parts per billion be as high as you would be 13 willing to go in terms of a level of concern in a commercial 14 area? 15 A No. But those were the levels that were there. 15 All right. Would you consider levels in soil of 17 one part per billion or less to be safe? IB A Ybs . is And why -- on what basis would you reach that 20 conclusion? 21 A The amount of exposure, the amount of up-take you 22 would get in a situation like that, over a lifetime would 23 not increase your risk of developing adverse health effects 24 from that type of exposure. SI 1 2 3 5 5 7 B 3 10 11 12 13 l*i 15 16 17 IB 19 20 21 22 23 gi Would that be true in a residential arBa? A That's for a residential area. That's uihat our paper was based o n . Q And in terms of a commercial or industrial area would you raiSB that Ib v b I -- that, quotB, safe, unquote, level higher than ana part per billion? A You could. It would dBpBnd on the situation. It would depend on who was there and what people were doing that. With respect to the background levels, I think the parts per trillion that you mentioned, has the Center for Disease Control observed any harm to human beings from those background Ib v b Is of TCDD? A No. Q What indicators do you look at in reaching that conclusion? A You can't really examine people individually that live in -- Just live anywhere. But by making surveillance type observations in the general health of the population you can determine whether thsre arB changes in their well being. And have you madB such determinations? A The Centers for Disease Control and also the National Center for Health Statistics does, and to some 62 1 5 3 4 S B 7 B 9 10 11 12 13 14 IB IB 17 IB 19 20 21 22 23 24 BxtBnt ths National Cancsr Instituta do these types of surveys, mortality studies. We have a birth defect program. Ufe havB a numbBr of thesB types of programs where uis do thB surveys. HR. CARR: If I might get the record corrected, I submit that I'm not examining thB witness now, but Counsel asked if you had done such work, the witness responded with work that perhaps others at CDC did, or that NIQSH did, and the record could interpret it to mean that she has done that, and it might as well be corrected now, rather than later. THE COURT: I was unclear on that also. Could you clarify that or follow it up rather, I suppose. Q CBy Hr. Hainemanl Or, Kimbrough, what work were you referring to in the testimony you just gave? A I was really referring to the work that's done in general by thB Public Health Service, and, of course, I am invlovsd in parts of that and I read about it. Q All right. A But I'm not ths only one that's doing that. How are you involved in parts of that? A Wall, whan we do studies in different areas, I -- in other words Bpidsmeology studies to determine whether people in certain areas have been affected by something, you 63 1 B 3 *i 5 E 7 8 9 10 11 IS 13 14 15 16 17 IB 19 SO HI HS S3 e*i also DBBd to havB control groups. And in order to do your studies, you need to know what the base linss are of well being, or of poor health in the general population So you 're very much concerned uiith background disease in thB general population, otherwise you couldn't do studies at all. It's in that connection that I concern myself with that. Now, I 'd like you to assume that there has been a chemical analysis done of same soil from the railroad right- f of-way in which 65 parts per trillion of TCDO have been found. All right. Would you consider that to be of any biological significance or any hazard or risk of any kind to any resident of Sturgeon? A No. In terms of the background level or levels which you talked about before, whsrB would 65 parts par trillion stand in terms of what you observe in the other studies and tBsts that you've done? A It depends again if you ara in a rural area where a lot of 5,4,5-T has been used in the past, you sometimes may find such levels. You may find them on right-of-ways where they have used a lot of 2,4,5-T for control of vegetation. MR. CARR: I didn't hear that, Find it in what 64 1 2 3 4 S 6 7 B 9 10 11 12 13 14 15 16 17 10 IS 50 21 52 23 24 areas? THE WITNESS: The right-aF-ways -- HR. CARRi: The right-aF-ways. All right. Thank you. THE WITNESS: -- For high tension power lines and those sorts oF things. They've used a lot oF 5,4,5-T. CBy Mr. Heineman3 Would thB same in your opinion apply to a railroad right-of-way? A ' It's passible. I would -- iF I mads such a Finding I would go out and get additional samples From other areas of that railroad track to see whether that's a background level. Q Now, to your knowledge has EPA madB a list oF dioxin sites in Missouri? A Yes. Q Have you or your study there in 1555, to your knowledge, participated in any way in that -- in the accumulation of that list? A I 'm sorry, I didn't understand. Did wb do thB analysis or -- I'm sorry. No. What I'm asking is in the compilation oF that list by EPA, have you or has CDC participated in that compilation? A We did not compile the list. We only reviewed 65 1 s I a 4 s E 7 e s 10 11 12 13 14 15 16 17 IB 19 20 21 22 23 24 soma of thB information that they accumulated in the analysis. And the other -- other thing we did early on, was because EPA u s b s a lot of contractors for thBir laboratory work, we were concerned about the proficiency of the laboratories. Ills sBnt our chemists out to assure that the analyses would be correct that were done on the soil. Did the EPA use, to your knowledge, the risk assessment that's comprised in your paper there, Exhibit 1255, in making that compilation? A Yes. And did you participate with them in doing so? A They would measure soil levels, they would get the results of the soils that they had analyzed, and then they would send us that information and we would review it. In that respect we were involved with making these lists. All right. Now is Sturgson, Missouri on the EPA list of Missouri dioxin sitBs? A No. Do you know why it is not? A Because the levels are too law. There's no TCDD. The levels are too low. Now, with respect to your paper, this Plaintiff's Exhibit 1255, I 'd like to direct your attention to thB second page of the exhibit which is actualy numbered 4B. 66 1 a 3 4 5 6 7 B 3 10 11 15 13 14 15 IE 17 IB 19 20 51 52 23 24 What sort of estimations have you made of risk with respect to TCDD? Wellt strike that. That's too -- do you hBlisvB the risk estimates that you've mads are actual risks? A No. They are a very conservative prediction which is most likely overly conservative. But if you work for thB Public Health Service, you want to error an the side of safety in order to protect the people. Now with rsspect to TCDD, do you havean opinion as to whether or not TCDD is a carcinogen. And I'd like you to direct your answer both to animals an the one hand, and human beings on thB othsr, if you would, please. A It has been shown to cause tumors in rats and also in mice. It is considered to be what is called a promoter, in that it makes it easier far tumors to develop out of cells. It hasn't bBsn shown -- we haven't been able to substantiate that it causes cancer in humans. But because it is a promoter in animals, in order to protect people we have treated it as a carcinogen. Q When you say you have treated it as a carcinogen, in what context are you -- A In this risk assessment. In other words, because of the findings that we made in animals, there might be a possibility that it might have similar BffBCts in humans, although w e 've never been able to demonstrate that. Because B7 1 F that wb made a risk assessment, basBd on thB animal a cancer studies. IF that Finding was not therB, then it is 3 common tD simply use a safety Factor For other toxic 4 eFFects. S Q in your opinion, would the dose response principle B apply to TCOD in terms of carcinogenicity? 7 A The dose response curve always applies. In other a wards, iF you -- you have even -- you can show that thB 9 animal studies that we have show that. IF you get less oF a 10 dose, you get Ibss animals with cancer. And as you reducB u your dose, eventually it -- you're Just not able to show 12 that anymore. 13 What do you call that point where you're Just not 14 able to show that anymore? 15 A It's a threshold that people talk about. 16 Is thB term N.O.E.L. applicable? 17 A The No Observed Effect Level, which is another IB term For it, that term changes all thB time bBcausB of 19 different concepts. 20 In your opinion is there a No Observed Effect 21 Ib v b I or threshold lBvel For promotion? 22 A I think so. 23 Q And what do you base that an? 24 A There are animal experiments where different doses 6B 1 have bBBn given where at lew doses you don't get any tumors s 3 4 5 6 7 B 9 10 11 15 13 14 15 IB 17 IB 19 50 HI as 23 54 You can then argue that if you had used mors animals, maybe ^ in a fBui of those animals you might still find tumors. You can extend that for awhile. But eventually again you will end up not getting an increase of tumors over background tumors in animals. The DthBr thing is that there are many, many promoters that people get exposed to that occur naturally. In food and in air and -- I mean uib all should be really wiped out if all these low levBl promoters would cause an effect, The other thing is that oncB you get it in these very low concentrations, sometimes because you're exposed to so many different things, they actually may cancel each othBr out. There's a lot that really still needs to be worked on to sort that out. Q Do you have an opinion as to whether or not one molecule of dioxin could cauSB cancer? A Not in practice. Q I 'm sorry, I didn't understand you, A Not in practice. I mean there are people that come from molecular biology, chemically thesB series. But I don't think that's the case. And why not? A First of all, the molecule would have to get to 69 1 s 3 4 5 E 7 B 9 10 11 15 13 14 15 16 17 IB IS 50 51 55 53 54 ths target cell! and would havB to afFect thB cell. Then -- and that goes through -- it First of all has to gat into the body, then it has to go From thB stomach, let's say, to the liver, or to the lung. It may not ever really bB absorbed. It may just be excrstBd. Thsn a promoter does not act ths way an initiator does in that it just hits the DNA, and that's it, and there's a change in the cell, and then eventually the cell will develop into a cancBr. It has to bB there For long periods oF time. UJe also know that although the 2,3,7,0tBtrachlorodibenza-dioxin is persistent, it will eventually be excreted. So the body would gat rid oF it. Ule know From pBoplB that stop smoking cigarettes, and the compounds that cause lung cancer in people are promoters, and that once they stop smoking cigarettes, after a period of about 10 or 15 years their lung cancer rate drops, so that they are back to background. That tells you that in order to get cancer From a promoter, the promoter has to continuously be there. But since the body also excretes TCOD, unless you are continuously exposed to this material, you won't develop a cancer. So all of that doesn't Fit with this one molecule idea. 70 1 S 3 4 5 6 7 B S 10 11 ia 13 14 15 IB 17 18 19 E0 El SE 53 E4 Dr. Kimbrough, if thBra is a background levai in the human population of TCDD in adipose tissue, does that indicate that there is a constant exposure tD TCDD? A Yes, it is. But the levels ere -- the levels are so loui that it wouldn't have a sufficient impact to makB any difference in people's health. Would it have a sufficient impact to act as a promoter? A I don't think so. You see, I was talking about -- and again cigarette smoking is a good example that Just has been studied mors, Ida are also exposed to these same types of chemicals at much louiBr concentrations through air in general. But still the people that quit smoking havB a much lower incidence of lung cancer. ThB other thing is that once exposure is reduced, and even if you are exposed, thBCB's also repair, which we seem to forget. Q Repair of what? A The body tries tD repair itsBlf. For instance, if you have damage to DNA, then the body tries to get rid of that, axcrste it. Humans are much better able to do so than rodents. Q Dr. Kimbrough, with respect to the roots of BXposurB that arB discussed in your papBr, Plaintiff's Exhibit 1E55, is in your opinion exposure to TCDD in air of 71 1 any significance ? s A No. 3 Q In making your risk assessment, have you taken 4 into account inhalation of vaporized TCDD7 5 A No. It doesn't really vaporize. 6 Now why do you bBlieva it's insignificant, and why 7 do you believe it doesn't really vaporize? a A It has a vsry low vapor pressure. I talked to -- s as I said, we had a group of consultants. I talked to a 10 number of chemists. UJe discussed all of this. I called Il people on the telephone. I came to the conclusion that ls after making calculations, what the amount could possibly be 13 that could be in air, or what you might get on dust from 14 soil in vegetated areas, that it really had no contribution IS to the exposure that people were getting through skin and 16 ingestion of soil. 17 The only area where that might create a problem IB and would have to be considered would be in enclosed riding ia arenas, because when the horses rids around, if you don't 50 control for dust you do have development of dust. I asked SI the Environmenal Protection Agency actually to measure that. ss And I still don't have the results. S3 _____Q Now, Dr. Kimbrough, I 'd like to direct your 54 attention, if I may, to the Missouri Dioxin Health Study. 72 1 2 3 4 5 S 7 a 9 10 11 IS 13 14 15 1G 17 10 19 SO SI ss S3 54 Are you familiar with that study? A Yes, And did youhavB any participation in it? A I was initially involved in the design of the \ study and in discussing with the people that wars actually executing tha study an how to organizeitand tbB flow of specimens and that sort of thing. And then Ireviewed a draft of tha report. Who were the people that you were meeting with or talking with in connection with the design of thB study? A One was Richard Hoffman, who was -- well, he still is an EIS officer who was assigned to the state of Missouri, HBnry Falk who works at CDC|in Atlanta. Hb 's an epidemeologist. And then Dr. Ayer and Dr. Ulebb from St. Louis, I guess, Missouri. And Dr. Darnell from the Missouri StatB Health Department. Q Is that H.Denny Donnell A Yes. Q Now when you say you worked on the original design, what da ya mean by thB design? A Well, we talked about how to estimate exposure, for instance, of the people. And the types of tests we should da that would be most useful in detecting early health effects, because we1re talking about relatively low 73 1 exposure, and what would give us thB most mileage And then s the other sorts of conversations, such as how to transport 3 the specimens and how to make sure they would be all right, 4 and who should do the analysis. 5 In designing the study were you looking for health 6 effects? 7 A Us designed thB study to, if there were any health B Bffects, that we would have the sensitive measures. We 9 didn't really necessarily expect any health effects. We 10 werB hoping that -- and w b still hope that the population 11 really hasn't been exposed to snough TCDD that there will be IS health BffBcts. 13 Q Were you trying to hide or disregard health 14 effects in any way? 15 A No. UJb were -- what w b were trying to da was to 16 see whether there was anything at all, and that's part of 17 the reason why I was involved, in trying to make the tests IB as sensitive as possible. We were also concerned that the ia group of people we were looking at was not particularly 50 large. 51 MR. CARR: I'm sorry, I didn't get that last word. 55 Large? 23 THE WITNESS: Yes. ThB number of people. J 54 MR. CARR: That's all right. I just wanted thB 74 1 5 3 4 5 6 7 B 3 10 11 15 13 14 15 15 17 IB 13 20 21 35 23 24 last word. CBy Mr. HBineman} Now the study defines a high risk group and a low risk group, does it not? A Yes. MR. CARR: Your Honor, it was leading. I wish the witness would describe what it shows and not Mr. HeinBman. THE COURT: Yes. Could you rephrase. Q CBy Mr. HainemanD In your design of the study, Dr. Kimbrough, how did you set up the group that you looked at? A Ula took a group of people that were exposed in Times Beach that had had relatively high exposure to /that area, and that we called the high risk group, Then we established a control group, which we called the low risk group. Figuring that that group really hadn't had any exposure. You can never get away from background. What do you mean from background? A Well, the general population we do have very low background levels. But it's a control group. How did your low risk group -- while in designing the study, how did you account for the background level in detBtnining a law risk group? A Well, they lusra simply representing the general population. 75 a By the general population, the general population 2 of what, where? 3 A Of that area in Missouri. 4 Did your low risk group come from any areas of S contamination? 6 A No. 7 Q With respect to the high risk group, what 0 determinations of exposure did you make there? 3 A We simply had the soil analyses From the areas 10 that these people were living in and we administered a 11 questionnaire to try and determine how much contact they 12 actually had with that area. We*re now trying to follow 13 that up by measuring and actually measuring adipose tissue 14 Ib v b Is . But that's a very slaw process and not everybody 15 wants to donate fat. IB In order to find the effects to the people in the 17 Missouri Dioxin Health Study, in your opinion, could you IB combine two groups in order to find ths total number of 13 people that had a particular condition,you were looking for? 20 A No. 21 Why not? 22 A Because one is a control group. 23 Well, new did you find -- 54 MR. CARR: Objection, your Honor, Well, never 76 1 2 3 4 5 E 7 B 9 10 11 12 13 14 15 16 17 18 18 20 21 22 23 24 mind. CBy nr. Heineman^ Did you find soma of these conditions in the control group? A You always find abnormalities, some abnormalities, if you do papulation studies, in the controls, as w b II as the exposed. The reason you have a control and an exposed group is to see whether whatever you*re looking for and what you think a chemical causes is more frequent, because a lot of things are very non-specific. Q In your opinion -- well, do you have an opinion as to what the Times Beach Study or the Hissouri Dioxin Health Study actually found? A Uie really didn't find anything important, anything of any importance. There was some changes, but they really didn't indicate any disease. UJe're doing additional studies in other people to gBt more information. I 'd like to ask you your opinion as to whether or not chloracnB is a marker For biologically effective dioxin exposure? A Yes. Q Do I understand -- what is your opinion? A Wall, usually whBn people have had exposure to dioxin where they have any sort of illness, one of the things that thBy also have is chloracne. 77 1 2 3 4 S B 7 B 9 10 11 12 13 14 15 IB 17 IB IS 20 51 22 23 54 Now chloracne can bB caused by contact of the skin with the chemical, with the 2,3,7,B-tetrachloradibenzodioxin. It's possible that you c b h havB chloracnB without having any other Bffacts because of this local affect. n the other hand, it can be part of a systemic disease in that people will have chloracne, they will then also havB other things. 0 Now, if e -- if a population has been exposed to dioxin and had a sufficient dose to cause systemic effects, would you expect to find chloracne in that population? A Yes. Q To what Bxtent? A In -- probably in most people. There is some argument thBre, and I don't think anybody has an answer, that you might have somB people that would not develop chloracnB, that would also have been exposed. But the majority of people would show chloracne. 0 If you had' a group with no chloracne in a population allegedly exposed to dioxin, would you expect to find any health problems attributable to dioxin? A I would not expect to find any acute health effects. Q How about long term health BfFacts? A Df course, the problem is that in these situations 7B 1 you usually remove people from exposure. Once you have done 2 so, then you wouldn't expect to see anything else later on, 3 or at least my experience has been that you don't so Far. 4 If you had continuous exposure, then it would 5 depend on the dosB. UJe've talked about the background E levels in the general population that don't seem to cause 7 any effects. B If you had much higher levels -- I don't have an S answer for that. The only answer I have is that in people 10 that have had high exposure, we haven't really been able to 6 F r s c --t5 11 comB up with counterfeits either. 12 Q Would you expect, if there were 4.1 parts per 13 billion of 2,3,7,B-TCDD in the soil, would you expect long 14 term exposure to soil with that level of dioxin in it to 15 cause any health effects? 16 A No, 17 Why is that? IB A Because the dose is too low. I mean the amount is IB too low. The amount people would get would be negligible. 20 Dr. Kimbrough, I'm going to hand you some exhibits 21 which have been previously marked in evidence. The first is 22 Plaintiff's Exhibit 1627 and Defendant's Exhibit 1266. Now 23 if you look in the beginning of 1627, particularly at page 24 UI . Do you see that? 73 1 A Yes. a Q What is that list of people? 3 A It's a rBview panel of -- it's entitled 4 Polycblorinated-dibenzo-para-dioxin, peBr review panel 5 members, which met July 27, 28 and 29, 19B3 in Cincinnati, Ohio. 7 All right. Now are you on that list? Q A Yes. 9 All right. Nowwould you tell me did you attend a 10 meeting in July of 1303 in Cincinnati, Ohio? 11 A Yes. 12 All right. Uihatoccurred atthat meeting? 13 A We were given actually three draFts oF preliminary 14 documents that the EPA had developed to try and sat what 15 they told us at the time they were primarily concerned about 16 was a level oF TCDD in water. And they had written thssB 17 documents to support that level. IB There was also something about soil, but they Felt 19 it was -- I was told that thBy weren't that concerned about 20 that, they werB primarily concerned about the level in 21 water. ThBy had something on air. 22 They said that the back up inFormatian Far these 23 three documents was the same and we should just concern 24 ourselves with that. There were a number oF these diFFerent BO 1 2 3 4 5 6 7 B S 10 11 12 13 14 IS 16 17 IB ia 20 21 22 23 24 pBoplB listBd, and ujb had rather heatBd debates at this masting, Q All right, Naui at the conclusion of that meeting -- uiell, first of all, is Plaintiff's Exhibit 1B27 and Defendant's Exhibit 1256, are those the documents that you rBvietusd at that Cincinnati, Dhio meeting? A I had thB feBling they weren't quite this thick. But I would have to -- thBy certainly didn't have this hBading. They were Just pieces that I got, that they sent me > Did they have a title of somB sort? A In the title there uias something about soil in ana of them, and about water in the other. It had TCDD in it. I don't think it uias called a health assesssmsnt document. But I would have to go back to my -- MR. CARR: I didn't get that. They uierB called a health assessment document? THE WITNESS: I don't think thBy were. MR. CARR: Okay, THE WITNESS: But I would have tD go back to my records to determine that. CBy Mr, HeinemanD Doctor, were the two documents that you have before you, Plaintiff's 1627 and Defendant's 1265 ever sent to you for your reviBw Dr comment? B1 1 A No. The only thing I sbuj uiBre these draFts before 2 the meeting. 3 G Did the EPA ever get back to you efter that meeting For comment uiith respect to what had gone on at that 5 meeting? 5 A N o . I mas rather critical, 7 G Critical dF what? B A Well, the First thing uias that they were setting a S water Ib v b I that you couldn't measure. I felt that that was 10 rather ridiculous. There were a number oF other things that ; 11 I didn't agree with. 15 G Now with respect to PlaintiFF's Exhibit 1BB5, iF 13 you look at the beginning oF that on page UI, do you see the l*i same kind oF list? 15 A Yes. 15 Are you listed as a peer review panel member 17 thBre? IB A Yes. 19 Q Did you ever see this docment, PlaintiFF's Exhibit 50 16S5, beFore it was published? 51 A N o . 25 Q Was it ever submitted to you or any draFt oF it 53 Bvar submitted to you For comment? 2* A No. The only thing I was involved with was the f 85 X meeting in 19B3. 2 "Dr. Kimbrough, I 'd like to direct your attention, 3 if I may, tD pages 11-B8 and 11-89 in Exhibit Number 1BB5. 4 In addition, pages 11-90 and 11-91. I would like to ask you 5 if you agreB with thB assessment made on those pages with 6 respect to the Fingerhut review of soft tissue sarcoma. 7 A No. a Q Why not? s A Because of -- Marilyn Fingerhut works at NIOSH, 10 thB National Institute of Occupational Safety and Health, IX and she did a very careful examination of this problem, and 12 partly on my urging, which I had done earlier, she also had 13 the tumors reviewed by pathologists that arB competent in 14 thB morphology of soft tissue sarcomas. 15 She found that, number one, the diagnosis of the 15 soft tissuB sarcomas are not always correct mads by general 17 pathologists simply because they're rare tumors, and general IS pathologists have little BxperiBncB with it. And she also 19 very carefully looked at and reviewed the exposures that the HO workers had had. And I have great confidence in her, and I 51 think shB's a vary competent parson. I don't -- these 25 peoplB don't havB any -- it had no direct relation to that 23 study. 24 So do you agrBB with everything that's in this B3 1 s 3 4 5 E 7 B 9 10 11 12 13 14 15 IB 17 IB 19 20 21 22 23 24 book? A No. I mean I don't really know what's in the book. But I certainly don't agree with this. Q Now, Dr. Kimbrough, I'd like to ask you your pinions with respect to porphyria and whether porphyria is caused in human beings by exposure to 2,3,7,0-TCDD. Do you have an opinion on that subject? A That's some debate. It's really not clear. The only time it has been described has bBen in two plants, one is the Diamond Shamrock Plant, and the other one is the plant in Czechoslovakia. I can never pronounce it. Spolana, or something like that. That Dr. Jirasek reported. In both of those plants you have other exposures, and what's puzzling is that in Germany in the plants where you had really severe outbreaks, particularly at B.A.S.F., they didn't Find any porphyria. And so -- at Nitro we didn't Find any porphyria. So it's possible that TCDD pBr se doesn't really cause porphyria cutania tarda in people. Now, what other chemicals were they exposed to at Spolana and Diamond Shamrock that might havB caused the porphyria? A Both places apparently had hexachlorobenzene, and so the workers were also exposed to that. Hexachlorobenzene caused a severe poisoning outbreak in Turkey, where all the B4 1 a 3 4 5 6 7 B 9 10 11 12 13 14 15 IB 17 IB 19 20 21 22 23 24 people had porphyria cutania tarda. Q Now can -- well, differentiate far me, if you would, please, between porphyria cutania tarda, porphyria, and abnormal porphyrin levels. A The disease is something that starts in the liver. It is an enzyme, this uroporphyrinogen decarboxylase. If that's inhibited, then you gBt more of these types of porphyrins. Once they -- and they are excreted in urine usually. Dnce they reach a relatively high level, people will then become affected in that they -- the skin color changes to some extent. They become more sensitive to sunlight. They get blistering. Usually in combination with that you get increased hair growth. The people, for instance, in Turkey very much resembled the pictures of warBwolves. You can get increased pigmentation in teBth. That's the porphyria cutania tarda. That's sort of the end stage of this. The early changes that have been noted are really not a disBasB. You simply have increased excretion of some of these porphyrins. Dr. Dos has developed a classification where he calls very early changes which are not really an increase in porphyrins, in urine, it's simply a change in the ratio, Type A, and thBn once you get a slight increase it's Type B H5---- 1 s 3 4 5 6 7 B 3 10 11 12 13 14 15 IE 17 18 13 BO B1 EH 23 24 and Typs C, and his Type D is the disease actually. U)e have done quite a number of tests on urine and screened populations. The Type A seams to bB a normal variant in the general population that is unrelated to any sort of exposure. We 've seen many people with that. There are people in the papulation that normally have a defect of this enzyme, this uroporphyrinogen decarboxylase, where that either is depressed or it's really not in the liver. They would be much more sensitive to certain types of exposures. It's nothing that specific either for TCDD or for hexachlorobenzene. People that drink a lot of alcohol might show changes in their porphyrin metabolism. So would women that are on birth control pills. People that take barbiturates or other types of medications. So in order to sort all this out you would have to take a very careful history on thesB peoplB. Q Is there any -- now when you're talking about thBse porphyrins, and these porphyrin abnormalities, arB you talking about only those that are induced in some way, or are you including genetic porphyrias? A Well, there are different types of porphyrias. I am only talking about thosB porphyrias that are as a result of an effect on this particular enzyme in the liver. There 86 1 2 3 4 5 6 7 Q 9 10 11 12 13 14 15 IB 17 IB 19 E0 21 22 23 24 arB other types oF porphyries that really originate more in the bone marrow. You can -- there are people that have congenital dafscts that they can havB a --*' I mssri there are a number of different types -- I don't want to give a lecture -- that arB unrelated to this typB of porphyria. Lead, for instance, causes increase ofexcretion ofcoproparphyrin. What does? A Lead. But that's a different type of porphyria, that doesn't really start in the liver. Q Now do the genetic porphyrias start -- are they -- do thBy affect the liver? A No, not all of them. Just one type. UJhat's that? A That's the porphyria cutania tarda. There is a sub population that has a defect of this enzyme, and Just any little exposure can kick it off, where normal people wouldn't be effected at all. Q And is that the only genetic type of porphyria that affects the liver? A The liver is always involved in this process, but this is where the liver is the primary organ, so to speak. 0 Now with respBct tD that, to what we have beBn rsFBrring to as a C.U. ratio, or copro/uro ratio, an B7 1 2 3 4 5 6 7 B a 10 li 12 13 14 IS IB 17 18 19 20 21 22 23 24 inversion of that ratio, do you consider that to be significant? A If it's just the very early inversion, the Type A, I don't. But if you also have an increase of the uroporphyrins, and an increase of the heptacarboxyporphyrin, in other words, the dose is Type B, that seems to be Bn early indicator. But whether that will ever really develop into a disease is something uie really don't have enough informaion on yet. Now can abnormal porphyrin levels occur in a totally general unBxposBdrpopulation? A Yes. Unexposed to TCDD? Yes. A Yes. Q Uhat do youbase that on? A UIb II,alcohol, forinstance, causes it. Drugs, women that takB birth control pills, barbiturates. Okay. MR. HEINEMAN: Could I have just a moment, your Honor, THE COURT: sure. Q CBy hr. HeinBmanJ Dr. Kimbrogh, with respect to this haxachlorobenzene that you just mentioned that you publishd on that subject. 08 1 A Yes. 5 0 UhBn did you da that? 3 A I guess the First time this has always bean H vary puzzling* UJs discuss this with colleagues and stuff 5 like that. The first time I mentioned it, I guess, uias in 6 the paper in the '70's. 7 MR. HEINEMAN: I have no Further questions at this a time, your Honor. 3 THE COURT: Okay. Gentlemen, could I see you at 10 the bench for a minutB. 11 IS CThe following proceedings were had at thB bench 13 off the record.D 14 15 CROSS EXAMINATION 15 17 BY MR. CARR: IB Q Dr. Kimbrough, we haven't met, but my name is Rex 19 Carr. I*m one of the attorneys that represent the 1 SO Plaintiffs in this cass. Mr. Seigfreid, my colleague, is 51 thB other attorney that represents the plaintiffs. 55 Uhen you were testifying about the laboratory 53 results and their uss, what percentage of people would you 24 BXpect to have an abnormal result an any given laboratory B3 1 2 3 4 5 6 7 B 3 10 11 12 13 14 15 IB 17 IB 13 20 21 22 23 24 tast? A You could have quite a number. It would depend on what is called abnormal. Well, by what's called abnormal by doctors in your profession and by laboratories that you use. On the laboratory tests that are given, what percentage of abnormalities would you expect to find in a given so-called normal population? A The laboratory tests that are run. in different laboratories show soma variations. They may be slightly above or slightly below what the normal range of a laboratory is. UJb usually, if you just havB slight elevations, don't consider that abnormal, Uhat we might do is if w b stll have serum, we run thB test, Dn the other hand, if you had rarely elevated liver function tests, I mean severely elevated that would be consistent with thase, then you would see very few of those. 0 Doctor, my question is, perhaps you misunderstood it, lBt me put it to you again, in a normal laboratory test, in the results that you would expect from a normal healthy population, what percent of those people would have -- would you expect to have an abnormal lab test result? A Quite -- statistically, quite a number could have a small, a slightly changed laboratory test. 30 1 3 4 5 6 7 B i 3 10 11 IS 13 14 15 15 17 IB 13 SO SI SS B3 S4 My question again, Dr. Kimbrough, is in the laboratories that are used and the reference ranges that are used by laboratories, what percentage of people that would go into thosB laboratories in a normally healthy group of people would you expect to have a lab test result that the laboratory would call abnormal? A If you ran EO tests on a person you might find one slightly abnormal test. All right. A So if you had, you would find one -- you could have onB abnormal test in each one of these peoplB that you were testing. You can't answer that question really. Q Uhat you'rB saying, you would expBot in a normal population one abnormal test result out of EO? A Depending on the tBSt, yes, or maybe one out of ten. da'am? A Maybe one out of ten. Itjust depends on the test. Q Well, what I would like for you to give us, Dr. Kimbrough, is it ana out of EO abnormal test results that you ordinarily expect to find? A At least. Q Well, the reason I ask that is because others have 91 1 5 3 4 5 6 7 e 3 10 11 15 13 14 15 IE 17 IB 19 50 51 55 S3 54 said in the reference ranges used by laboratories, you expect a variant or a five percent abnormal result in any given normal population. I'm asking you do you agree with that. I take it you do if you say onB out of SO. A I guess my answer rBally was that depending on how much of a change you have, it could be mare. Well, Dr. Kimbrough, the laboratories use a reference range, do they not? What they consider normal results. A Yes. Q And anything below that reference range or anything above that reference range, anything outside that reference rangB is called abnormal, is it not by the laboratory? A Well, not by -- not necessarily. Q You don't see thB results come through from the laboratories, they have a reference range, and then they have a column headBd abnormal results, and in that column that's headed abnormal results they put those results that are outside the reference ranges used by that laboratory. Don *t you see that, ma 'am? A No. I don't seem to be able to gBt my point across. Q Well, I don't think you understand my question. 92 1 2 3 4 5 E 7 B 3 XO IX 12 13 14 15 IE 17 IB 13 20 21 22 23 24 You have seen laboratoryreports,have you not? A Yes. Dr . Kimbrough? A Yes. Yes. And in those laboratory reports, the laboratories use what's called a rBferBncB range of normal values, don't they, m a 'am? A Yes. And do you not see that they report as abnormal any lab results that Fall outside that normal reference range? A They only put that as abnormal. They givB their normal range, and thBy say and this is thB result. And then they leave it up to the physician to interpret that result. Q Dr. Kimbrogh, you haven't sBn results, lab results where thBy put it in the abnormal column? A Yb s . But then it's upto thB physician -- I'm not talking about -- A -- to interpret the result. G3 I'm not quarreling with how the doctors use it. I 'm talking now about the report that you get from the laboratory. Do you not see the results reported in an abnormal column, if they are abnormal? A It depends on the laboratory. 93 ~I l s 3 4 5 E 7 B 9 10 11 12 13 14 15 15 17 IB 19 20 21 22 23 24 UIb II, do you have Plaintiff's, I think it's probably 252. I think that might be our lab results. It's a big thick -- maybe I 've got it. Hava you Bver used or seen reports put out by, oh, Smith Kline, for instance? A N o . I may havs. Dr, Kimbrough, I shoui you what's been earlier markBd Plaintiff's Exhibit 262. This is a report by the Smith Kline Laboratory. You see one column, they havB what's called rafarBncB valuBS. A Yb s . Q And another column they have abnormal results. A Yes. Q And another column they have the result. A Yes. Q And da you see in the abnormal result column they have things listed there, A Yes. Q Now my question to you, Dr. Kimbrough, is is your answer that fiva percent of thB population in any given laboratory test, five percent of the laboratories results -- 75 percent of the peoplB would havB an abnormal lab result? A It depends on the types -- Is that what you're saying, Dr.Kimbrough? 1 A It depends on the typBs of tests -- 94 1 s 3 4 5 E 7 B 3 10 11 12 13 14 15 16 17 IB 13 HO HI HH HB H4 Q Excuse mB. Is that what you'rB saying then? A You could have that, yes. It Just all depends. Q Doctor, I 'm asking you, there are all kinds of weird things that can happen. But in thB referencs ranges that are used by a laboratory, don't they sBt up what they expect a normal person to fall within these limits? A Yes. Yes. And that's what -- if thBy had 75 percent of the peoplB that came in and fell outsidB those ranges, they would change their normals, wouldn't they, Doctor? A No, not necessarily. You s b b , it depends on the population you're looking at. Q Wb II, if you're looking at a healthy population tD get your normals. If 75 percent of your healthy people, unexposed, undiseased, and not sick, normal healthy people came in and 75 percent of those had values in their lab tests outsidB the normal ranges used by that laboratory, wouldn't they change their normals? A Not if the ranges'fell out Just a little bit on either side. If it's just a few units. Q Doctor, wouldn't they just change their results to go up that little hit? A Sometimes they might. It depends on the test. Q Well, in point Df fact, isn't it a fact that the 95 1 s 3 4 5 E 7 B 9 10 11 15 13 14 15 IB 17 IB 19 20 21 55 S3 54 laboratories use normal values determined by statistics, nation-wide statistics in many instances, and in other instances from their own local control group of healthy people, that that's what determines reference ranges, normal reference ranges for laboratories? A Yes. And in that nature, and with regard to that, Dr. Kimbrough, uihat percent of people is considered normal to fall out of those reference ranges? A If you havB just really very slight changes outside of the reference range, that's really not considered to be significant. G Doctor, I didn't ask you that, did I? Would you listen to the quesion that I asked you. I'm not asking you now to assess the significance or the importance of a particular lab tBst or result. I know that's what you're here to do. But I'm not asking you to da that at this point in timB, Dr. Kimbrough. Would you answer the question that I gave you, please, ma 'am. A Could you repeat the question. HR. CARR: Would you read the question to her again, please. CQuestion read.) 96 1 a 3 4 i 5 E 7 B 9 10 11 12 13 14 15 16 17 IB 19 20 21 22 23 24 THE WITNESS: I don't knoui whether the laboratories havB ---- not all laboratories have nation-wide statistics. IF they do, you can have a Fall out anywhere between 20 and 50 percent. CBy Nr. Carr3 Doctor, assume, iF you would, that there has been testimony in this case by a number oF doctors that the normals used by laboratories or in some instances based upon a long history oF gathering statistics, in some types oF cases immunB studies, For instance, they run control groups, take into consideration what you know to be the way in which laboratories Fashion their normals. Will you do that, m a 'am? Have you practiced medicine, Dr. Kimbrough? / A I used to work in a clinical laboratory. Have you practiced medicine, Dr. Kimbrough? A Since I had my training I worked in thB Public Health Service, and so I didn't practice medicine. Q You have never practiced medicine? A As a -- no, not aFtsr my residency. Q Have you ever treated or cared For a sick person? A I did as an intern. In getting your training? A Yes. WT 1 a 3 4 5 6 7 B 9 10 11 ia 13 14 15 IB 17 IB 19 ao El aa E3 34 Now, Doctor, in your training there, your laboratory reported to you results in various lab tests, didn't they? A Yes. And they used a reference range, didn't they, ma 'am? A Yes. Now, in those reference ranges what do you expect to be the percentage of people that would be abnormal in a / normal given population, normal healthy population? A Depending an the test, somewhere between 30 and 50 percent. Q Doctor, what you're saying, if I understand you correctly, that ao percent of the people would have abnormal hematocrits if they went in and had them checked'7 A Depending on the population you might -- On the normal papulation, the normal healthy population, would 30 percent of the people have abnormal hemoglobins, or hematocrits? A You could have more than ao. Under what circumstance? A If you have -- you have a lot of people that have slight anemias, you could have a slightly lower hematocrit. IhBy have what? 9B 1 1 a 3 4 5 6 7 B 3 10 11 ia 13 14 15 16 17 IB 13 ao El BE S3 E4 A An anemia, Q Doctor, that- would be an indication of a disease. That's not a healthy person. You apparently misunderstood my question. If you have an anemia, you're not a normal healthy person, arB you, m a 'am? A No. All right. Nam a normal healthy person, would you i Bxpeot E0 percent of thB population to have an abnormal hematocrit? A It depends on what you callabnormal. Q A person tuho is healthy, who does not have anemia. A It could vary. It could be slightly lower. Q Slightly lower than what? A Than what thB laboratory has established as a reference. Q Doctor, that's what I'm asking you. UJhat percentage of people, normal healthy people without anemia would you expect to have a hematocrit result outside the normal laboratory reference range? A Somewhere between SO and 30 percent. Q Well, then you still would expect 50 percent of the people to walk into the laboratory to have an abnormal hBmatccrit? A It's not really abnormal. It's slightly -- 33 1 2 3 4 5 6 7 B 9 10 11 12 13 14 IB 16 17 18 19 20 21 22 23 24 Doctor -- A -- away from the reference standard. You understand what I'm asking you, normal is within thB reference ranges of the laboratory, outside the reference rangB of thB laboratory is abnormal. Do you understand that? Noui what I 'm asking you, m a 'am, is what percentage of psQplB would you expect to have a lab result in hematocrit falling outside the laboratory reference range callBd normal? MR. HEIMEMAN: Excuse me, your Honor. Nr. Carr, are you asking hBr to assume that? MR. CARR: I'm not asking her to assume anything. I 'm asking her a specific question. THE WITNESS: I guess I can't really answer your question. CBy Mr. Carr3 Why not, ma 'am? A Because wb can't talk about it in a way that it's i meaningful to ms. Doctcr, the normal -- the reference ranges used by a laboratory, you understand what that is, don't you, ma 'am? A Yes. Hematocrits, For instance, this particular laboratory has it in their units, 42 to 52 in percentages. A Same peaple have 40 to 50. There are slight 100 1 a 3 4 s E 7 B 9 10 11 is 13 14 IS IB 17 is 19 SO 21 22 23 24 changes in the numbers. 40 tc 50 some people have that, A Yes. Nam what I 'm asking you, you do understand what I 'm asking you, how many people in a healthy group of people, not disease, no anemia, nothing wrong with them, thBy're healthy people, how many people do you expect to have a hBmatocrit result that would fall outside the laboratory reference range? A And the reason I 've given you ranges of percentages is that if you consider everything, if you're very dogmatic, and you say he is 40 and if it's 39 cr 3B, that's ahncrmal, that's outside, thBn you would get a whole lot more peopls than when you would give a little leeway. For instanoB, whBre instead of it being 40, it was 35 or 34. All of these laboratories tests are Just not that precise. To arguB about -- i Q Doctor, they are prBCisB within their reference range. They are vBry precise. They may not know -- isn't that right? There isn't any inprecisicn when ycu have a reference valuB of 42 to 52 percent, is there? Is there any inprecisicn in that? A It's a biological test. Q Yes. 101 1 e 3 4 5 6 7 B 3 10 11 13 13 14 15 IE 17 IB IS 20 21 22 23 24 A And it doesn't mBan anything. G Doctor, I 'm -- A It doesn't mean anything. Doctor, I'm not asking you whether it means anything. I'm not asking you thB significance of it. I'm not asking if it means they've got anemia, or -- HR. CARR: Your Honor, I 've already imposed on the witness' time. THE COURT: I 'vs lost track of it myself. Okay. Doctor, thank you very much * We understand you havB to go at this time. Thank you. Gentlemen, we'll take a short break and then w e 'll go back to our other matters in chambers. CShort recess.) CTh following proceedings were had in chambers.) HR. CARR: Before we get started on this, I 'd like to find out from Counsel when and for how long Dr. Kimbrough is going to be available to come back. (1R. -HEINEHAN: She's available to come back in, I believe, the second week of January, or the end of the First week of January. 102 1 2 3 4 5 E 7 B a 10 n 12 13 14 15 IE 17 IB 13 20 21 22 23 24 HR. CARR: She can stay until me complete thB -- HR. NASSIF: She said she would come back at least For another Full day. We didn't ask her For any more time. HR. CARR: And what I would like, I move For Dependants to produce all communications they have had with that agency or anybody connected*with that agency, or with th Federal government relating tD her appearance here and \ the circumstances, all memos and anything b Isb that was sent to hBr or to anybody else by the dependants to procure her presence or somebody else From the CDC, THE COURT: Any objection to those? HR. NASSIF: Sure, your Honor. I mean I don't, First oF all, I don't know what all that entails. I'd have to see what documents are included in that, in terms oF contacts, I'm surs a lot oF them include contacts by Counsel, pBrhaps with Counssl Far the CDC. THE COURT: Ydu haven't s b b h thBm yBt? HR. NASSIF: I haven't seen them. I wasn't the one responsible For making the direct contacts. I didn't write those documents. That's why I don't know -- Bruce and Jayne Rudolph, I think. THE COURT: ShB's been around. Why don't you give fib your response tomorrow morning. 103 / 1 MR. NASSIF: Can I give you tomorrow at noontime? 2 THE COURT: Tomorrow at noon is fine, sure. 3 HR. NASSIF: Would that be early enough? 4 THE COURT: Sure. That's no problem. Yes, you S look it over and decide what position you want to take, 6 MR. NASSIF: Can I have a clarification on this, 7 your Honor? You said any contacts with the federal B government, EPA, anybody, but only in regards to her a testifying? 10 M R . CARR: Yes. 11 riR. NASSIF: Only in regards to hBr testifying. 12 I1R. CARR: Dr somebody From the CDC, 13 MR. NASSIF: Or somebody -- somebody from CDC 14 testifying in this case. 15 MR. CARR: Yes. IE THE COURT: Her or someone in her sted, basically, 17 MR. NASSIF: Testifying in this casB. IB MR, CARR: Obviously if it's a related case in 19 dioxin, I 'd want that as well. 20 MR. NASSIF: No, no. 21 MR. CARR: If you got her original agreement to 22 testify in the Agent Orange case, I want -- I want whatever 23 contacts Monsanto has had with the CDC or any other agency 24 of the federal government with reference to appearance of 104 1 2 3 4 5 5 7 8 9 10 11 12 13 14 15 1B 17 1S 19 20 21 22 23 24 the Department of Health or CDC personnel tD tBStify at this trial or any other trial. NR. NASSIF: Well, your Honor, I will object to that. I don*t see how it's relevant if other law Firms in othBr law suits have madB contacts with thB CDC that I don't happen to know about, in either thB Agent OrangB case, the Nitro casB, or somB other dioxin casa, or other non-dioxin case. He hasn't even limited to dioxin. MR. CARR: I 'll limit it tD dioxin cases. MR. NASSIF: You will limit it to dioxin? MR. CARR: h, yes MR. NASSIF: kay. Still, your Honor, we're talking about what happened in thB Agent Orange situation, in the Nitro situation. I had no personal knowledge of that. Hr. Heineman's firm did not handlB that. I don't know what relevancB it is to this lawsuit, there is in terms of this lawsuit. There were contacts madB about Dr. Kimbrough testifying. Ue've provided in the course of one of our motions a response back From the CDC to that which you have received, hr. Carr has received a copy of it. We would be glad -- you know, I don't mind suggesting or not objecting to us providing any documents that preceded this response from the CDC in terms of her testimony. 105 X But in terms d F the Agent OrangB case, and in 2 terms of the Nitra case there is abslutely no relevance. 3 Different law firms, different parties in terms of the 4 plaintiffs, and s d u q would object to that. I can tell you S that right now, your Honor. 6 MR. CARR: The parties only want -- only onB half 7 of the parties are different. The defendant in those cases B are exactly the same. S The reason it comes up, because the letter that 10 Ryder gave, I don't know what hB said, but the letter he 11 gave to us attached to his affidavit indicates that they 15 went higher than Just the CDC, how much higher they went, 13 and they expressed --- and thB Health Department now says 14 this is a matter d F governmental interest. 15 This case is now out of the private sector and in IS the public sector. And I don't know how they have coma to 17 that conclusion, that it is now of a public and governmental IB interest. It may bB that they camB to that conclusion IB because they were involved in the Agent Orange case and SO there's being claims made against the government, the 21 government should compensate the veterans in the Agent 22 'range case, and it is now of governmental concern. It may 23 be the same kind of thing took place in the Nitra case. 24 So just because thesB Counsel havB not -- havB had 106 1 5 3 4 5 6 7 B 9 10 11 15 13 14 15 15 17 IB 19 50 51 55 53 54 particular contact doesn't mean that the fBdBral government has not been influenced by Monsanto in one may or the other, in one or more of these cases, so as to end up resulting in this lady's appearance. I don't know if the Court saw it or -- obviously it wouldn't bB on thB record, but she is not a willing witness in ths sense of being cross examined. She is immediately not responding to the questions. ShB is looking to Counsel, Monsanto's Counsel apparently far guidance. I don't know if thB Court noted it or not. THE COURT: I noticed that. MR. CARR: EvBrytime I asked a question that might have some significance, she looked over to Heineman for guidance as to how shB should answer that question. That doesn't strike me as an impartial witness of the federal government hBre to call the strikes and balls. That's the reason that I 'm now motivated to ask for this discovery. MR. NASSIF: UIb II, your Honor, once again, first of all I would -- I object to Mr. Carr's comment about the fact that she was looking over to Monsanto's Counsel far guidance. I'm sura if she was looking around the room, it was more a result of what Mr. Carr was attempting to gBt her to answer and had nothing to da with looking to us for guidance. 107 1 e a 4 5 B 7 B S 10 11 IB 13 14 15 15 17 IB 13 BO 31 E3 S3 H4 THE COURT: She tuas looking directly at the two of you or one oF you. I noticed that a number of times. MR. NASSIF: Your Honor, maybB the only other option was to look at M r . Carr. Since he was not pleasantly happy with her responses, I can see why she was not looking at him. THE COURT: Well, if he 's the person attacking her, she might logically be looking at him. MR. NASSIF: The fact that she wauld not answer questions having to do with what is considered to be laboratory normals, I 'm not even sure she knows what relevance this has to this case at all. It was not any information that she had been asked about on direct examination. For all I know she just did not believe he understood what labs did. That confusion, more than anything b Is b , could have resulted in her looking around the room. THE COURT: I think that's a highly improbable scenario. As a general proposition, I think those communications would be relevant. MR. NAS3IF: What communications, your Honor? THE COURT: The ones he's asking far. As a general proposition. MR. NASSIF: As far as all contacts in all cases? 10B 1 THE COURT: As Far as the contacts on the dioxin 2 cases. Again as has hsBn my policy before, if you have 3 problems with the particular documents, privilege or 4 whatever, you submit them to me in camera and 1*11 go 5 through thBm. I don't think -- apparently there*s no E problem as far as the contacts with CDC and/or someone 7 higher up, or apparent organization or whatever, as this B particular appearance is concerned. But as far as the a thers, I think they would be relevant, and I think they 10 should be produced. If you have any problems with any of li them, individually, you can submit them to me in camera. 12 MR. NASSIF: Are you saying, your Honor, that 13 you're not going to givB me an opportunity to respond at 14 tomorrow noon? 15 THE CDURT: I thought you were responding. I E MR. NASSIF: I responded to the other cases issue. 17 THE CDURT: Yes, that's what I responded to. IB MR. NASSIF: UJb II, your Honor, I still would only 19 say, your Honor, that in terms of whatever responses we 20 have, we may have a further'objection, and you've indicated 21 that we are to handle that objection in terms of any 22 privileged information. I don't know if there are other 23 objections other than privilege that I would want to raise 24 to those responses, not knowing what they werB, or what was 109 1 said. But I still -- I understand you to be ordering us to s produce documents having tc do with other cases other -- 3 othBr dioxin cases, uihere there might havB been contacts 4 with the Canter For Disease Control pertaining to people 5 testifying. E THE COURT: Her or other people testifying. 7 MR. NASSIF: Her or other people testifying. B MR, CARR: Your Honor, my request wasn't limited B to the CDC. My request was directed at any government 10 person, elected or appointed or employed, that they may have i 11 conacted toward the end of getting a CDC employee to testify 12 in this casB. 13 THE COURT: I bBlievB that was your request. That 14 is right, I misspoke as to the scope. Now you are going to 15 look at the documents as far as this case is concerned and 15 respond tomorrow afternoonj right? 17 MR. NASSIF: I 'm going to attempt to do that. IB THE CQURT: I'm not ruling on that. 19 MR. NASSIF: I 'm anticipating there are very few 20 documents, and that I can do it by noon. 21 THE COURT: I 'm not ruling on that part yet. 22 MR. NASSIF: Okay. 23 THE CQURT: But as to ths other, I felt we just 24 finished colloquy to its relevance. I think it would be 110 1 relevant. Any other particular matters, you know, I'd also 5 like by then soma indications as to hou quickly you can gat 3 thosB documents. 4 MR. MASSIF: I uias Just going to say, if I have to 5 go to othBr cases and - well, it wouldn't even bs limited 6 to other cases. It would be if anybody within Monsanto 7 involved in Agent Orange or Nitro madB a contact or any B dioxin cases. S THE COURT: Or any outside lawfirms. 10 MR. MASSIF: Or any of the outside lawfirms. That 11 is certainly a much broader search than limiting it to the 12 activities that we did. 13 THE COURT: Right. I understand that. That's why 14 I 'd likB tomorrow also. I 'm not asking you today how 15 quickly you can have those. IB MR. NASSIF: I need tD contact soms people and see 17 what they tell ms. IB THE COURT: Right. 13 MR. CARR: Your Honor, it's not specific on the 20 record, and it's not on the record at all, but I assume that 21 I better put it on the record, we've been given some 22 documents by Monsanto that WBrs from the office of the CDC. 23 I have assumed that that's all thB documents that they've 24 received from the CDC. But Just to make sure, I'd like to 111 1 have assurance from Counsel or same statement From Counsel 2 that there is nothing that they have from CDC that they have 3 not produced or production of it. 4 MR. NASSIF: To the best of my knowledge, there is 5 nothing that uie have received from the CDC that we have not G produced. 7 THE COURT: Okay. B MR. CARR: Okay. 9 THE COURT: Uery good. I guess we may as well go 10 through thsse in order. 11 MR, CARR: liie may have a little problem therB 15 because I don't know whether I went through them in order, 13 THE CDURT: How about Balejack first? 14 MR. CARR: Yes, Balejack. IS THE CDURT: Okay. Mr. Carr, First, any IB objections? 17 MR. HARUEY: Before we start, we accidentally left 18 off the name of one of thB depositions w e 'd like to read, 13 and that was Mr. Ken Gross. I spoke to Mr. Seigfreid and 50 Mr, Carr -- * 51 THE COURT: Ken Gross? 55 MR. HARUEY: Ken Gross, G-r-o-s-s. 23 THE COURT: I haven't even pulled it and read it. 24 IF we get there, w e 'll clean him up tomorrow. I'll have to HE t 1 get my ClBrk to pull it. Any objections? Prefacing all of this as just a standing proposition, ujb won't read back and 3 forth colloquy of counsel, you know, going off the record or 4 anything liks that, likB we havB been before, All of that 5 is Just sort of automaticaly excluded, unless otherwise 6 indicated. Objections whether sustained or not will be 7 exludad, B MR. CARR: On page 7, your Honor, we withdraw 9 those objections on therB. 10 THE COURT: Dkay, So -- 11 MR. HARUEY: This is David Bolejack? IE THE COURT: So B and 7 -13 MR;. CARR: You would need B through 13 out, No, 14 make it 4 through 13 out, because he asked a new question. 15 THE COURT: Right, IB MR. CARR: IB through SO also. No, he gave an 17 answer. IB hB answered. IB through 17 is out. IB MR. NASSIF: What page are you on? 19 THE COURT: Page 7. E0 M R . CARR: 7. SI THE COURT: EE would be out. EE MR. CARR: 19 is in, SS would be out. E3 THE COURT: Okay. That's all on that page. 54 MR. CARR: The next page would be on page 10, your I 110 1 a 3 4 5 6 7 0 3 10 11 ia 13 14 15 IS 17 IB IS SO ei ss 23 24 relevant. Any other particular matters, you know, I'd also like by then some indications as to how quickly you can gBt those documents. HR. NAS5IF: I was Just going to say, if I have to go to other cases and -- well, it wouldn't even be limited to other cases. It would be if anybody within Monsanto involved in Agent Orange or Nitro made a contact or any dioxin cases. THE COURT: Or any outside lawfirms. MR. MASSIF: Or any of the outside lawfirms. That is certainly a much broader search than limiting it to the activities that we did. THE COURT: Right. I understand that. That's why I'd like tomorrow also. I 'm not asking you today how quickly you can have those. MR. NASSIF: I need to contact some peoplB and see what they tell me. THE COURT: Right. MR. CARR: Your Honor, it's not specific on the record, and it's not on the record at all, but I assume that I better put it an the record, we've been given some documents by Monsanto that were from thB office of thB CDC. I have assumed that that's all the documents that they've received from the CDC. But Just to make surB, I'd like to 111 1 have assurance From Counsel or sdidb statement from Counsel 2 that there is nothing that they have From CDC that they have 3 not produced or production of it. 4 HR. NASSIF: To the best of my knowledge, there is 5 nothing that we have received From the CDC that we have not B produced. 7 THE COURT: Okay. B MR. CARR: Okay. g THE COURT: UBry good, I guess uib may as w b II go 10 through these in order. n MR. CARR: UJe may havB a littlB problem thBre 12 because I don't know whether I went through them in order. 13 THE COURT: How about Bolejack first? 14 MR. CARR: Yes, Bolejack. 15 THE COURT: Okay. Mr. Carr, First, any 16 objections? 17 MR. HARUEY: Before wa start, we accidentally left IB off the name dF anB of the depositions W B 'd like to rBad, IS and that was Mr. Ken Gross. I spoke to Mr. Seigfreid and 20 M r . Carr -- 21 THE COURT: Ken Gross? 22 MR. HARUEY: KBn Gross, S-r-o-s-s. S3 THE COURT: I haven't even pulled it and read it. 24 If we get there, we 'll clBan him up tomorrow. I 'll have to V 112 1 get my Clerk to pull it. Any objections? Prefacing all of 2 this as just a standing preposition, ue uion't read back and 3 forth colloquy of counsel, you know, going off the record or 4 anything like that, like uie have been before. All of that 5 is Just sort of automaticaly excluded, unless otherwise 6 indicated. Objections whether sustained or not will be 7 exluded. B MR. CARR: On page 7, your Honor, uie withdraw 3 those objections on there. 10 THE COURT: Okay. So -- 11 MR. HARUEY: This is David Bolejack? 12 THE COURT: So B and 7 -- 13 MR. CARR: You would need B through 13 out. No, 14 make it 4 through 13 out, because he asked a new question'. 15 THE COURT: Right. 15 MR. CARR: IB through 20 also. No, he gave an 17 answer. IB he answered. IB through 17 is out. IB MR. NASSIF: What page are you on? 13 THE COURT: Page 7. 20 MR. CARR: 7. 21 THE COURT: 22 would be out. 22 MR. CARR: 13 is in, 22 would be out. 23 THE COURT: Okay. That's all on that page, 24 MR. CARR: The next page would be on page 10, your 113 1 Hanor. Lina 10 and a half where they say his initiative was s below average. That's kind of a character assassination 3 called fcr in the question, and thBn they went into it a 4 little more, what da you mean by that, a little self 5 motivation, he was slow about everything he did. I'd like 6 For 10 and a half through 55 on that page to bB stricken. 7 And on the next page, it deals with the same e subject, page 11, line 1 over through page 13 line 3. All a F that has to do with his -- how he works and his 10 motivaion, and what kind of fellow he was. n THE COURT: UJho is handling this? 15 MR. HARUEY: Your Honor, if I could respond to 13 that, First of all I 'd state for the record wb haven't 14 received a list of objections prior to coming in here. 15 THE COURT: We had agreed that because oF the time IB squeeze on this there wasn't time to prepare it. 17 MR. HARUEY: All right. 10 THE COURT: We talked about possibly doing it and 13 decided there wasn't -- as a practical matter -- as a 50 practical matter there was not enough time to do so. 51 I1R. HARUEY: Okay. UJith respect to Hr. Carr's 52 objections, going to page 10, line 10 and a half through 23 page 13 line 3, thBss questions are specifically directed at 54 eliciting information From a person who had -- in other 114 1 words, thBre was a Foundation laid as to her knowledge of Ed e Uaught, and his physical condition prior to this spill. One 3 of Ed Uaught's complaints, and Dr. Carnow's trial testimony 4 dealt with the alleged problem oF Fatigue that Mr. Uaught 5 claims he has experienced since the time oF the spill. 6 The testimony here goes to Ed Uaught's initiative, 7 his productivity, and other Factors such as his weight, B energy levels. On page IE the question is could you 3 dBscribB Ed Uaught*s energy levels. Did he show FatiguB. 10 The answer was that he was slow. And in general I taka it 11 Hr. Carr's objection, beginning on pagB 10, line 10 and a ie halF, that it was a non-respansivs answer; is that correct? 13 Am I mischaracterizing that? 14 MR. CARR: Let me withdraw my abjection. This is 15 about FatiguB and BnBrgy level on pagB IE. It's all right IB with me iF you read that. The reason I objected to it was 17 bBcausB hB said no, I don't bBlievs it was Fatigue, I IB believe it was Just slow. That really isn't material. But 19 your question that I don't believe he was Fatigued might be E0 relevant. El THE COURT: I'm lost. EE HR. CARR: I 'm lost too, Judge. I 've Jumped over S3 to page IE where he mentioned they asked a question about E4 Fatigue. I don't remember Carnow going into Fatigue. But 115 1 if he did -- did hB go into Fatigue? 2 MR. HARUEY: Yes, on the February 27th, on page 3 157 through 170 of the trial transcript he did. 4 THE COURT: So basically you're saying on page 12, 5 lines 10 through 15 you aren't objecting to? B HR. CARR: That's correct, your Honor, 7 HR. HARUEY: It would be line 9. B MR. CARR: No, 10. 9 MR. HARUEY: I 'm sorry, I was on the wrong page. 10 But you're still objecting to the rest of it? 11 H R . CARR: Yes. 15 HR. HARUEY: One additional comment on the rest of 13 it. 14 THE COURT: Sure. 15 HR. HARUEY: The initiative would certainly be 15 something that his employer, Hr. Bolejack, the supervisor, 17 would be in a position to observe with respect tD his work. IB HR. CARR: We agree, that's so. But this has 19 nothing to do with his injuries. HO THE COURT: I think it should go out. I would HI sustain the objection. So linB 10 and a half down to the 22 bottom of page 10, all of 11, lines 1 through S on page 12, H3 lines IB through H5 on pagB 12, lines 1 through B I guess -- 24 w b II, no, 1 through 3. 116 1 MR. HARUEY: Wouldn't the testimony on page IE, beginning at line 16 be relative to the follow-up question 3 on the fatigue aspect? 4 THE CDURT: I didn't hear the last part. 5 MR. HARUEY: Wouldn't that be relative as a 6 follow-up question on the fatigue aspects? It talks about 7 his operating the machine, and his activity level there. B THE CDURT: Which question? The one at the bottom 9 of the page? 10 MR. HARUEY: Page IE, line 16 through page 13 line 11 6 wherB the questions are following up on the fatigue issue. I S I mean these are observations of fact from which -- well, he 13 might not have characterized it. 14 MR. CARR: I 'll withdraw the objection to that, 15 Judge. That's all right. 16 THE COURT: Okay. Then it's not objected to. 17 Then the striking will Just go through line 9 of page IE, IB and the others are okay. All right. Any other objections 19 on that deposition? E0 MR. CARR: No, Judge. El THE CDURT: Okay. Do you have any objections? EE MR. HARUEY: Do you intend to read the cross E3 examination? 4 THE COURT: I 'm sorry, what did you say? 117 1 MR. HARUEY: ThB question is do Plaintiffs intend B to read the cross examination? 3 THE COURT: You're reading it. Are you going to 4 read it or not? 5 M R . HARUEY: I thought thB custom was if the cross 6 examination -- 7 THE CDURT: I see what you're saying. Q MR. CARR: W e 'll read the cross examination here. 3 MR. NASSIF: Is there anything in cross we want to 10 object to? 11 MR. HARUEY: That was what I was getting at. IB THE COURT: FinB. 13 MR. HARUEY: UJe would object to the question -- 14 well that part of the answer on page 14 line 1 and a half, 15 beginning with the second sentence there as being nqn- I E responsive to thB question that was requested. 17 THE COURT: Let me read the question again. ia MR. HARUEY: Beginning there down ta linB E of 19 page 14. so MR. CARR: The objection, Counsel, of nan- 51 responsiveness is one that the questioner may make, not the BE other fellow. S3 THE CDURT: That's right. 34 MR. HARUEY: Well, I stand corrected. If that's 110 1 the case. 2 MR. CARR: I wish it weren't. I wish it weren't 3 thB case. 4 THE COURT: I wish it WBrBn't Bither. 5 MR. CARR: I wish anybody could make that 6 objection. I usBd to, but somebody educated me years ago, 7 unfortunately. B THE COURT: Any other objections? 9 MR. HARUEY: No. 10 THE COURT: Fine. That one is cleared up. Do you 11 havB Jim Cristal's danB? 12 MR. CARR: I da. 13 THE COURT: Great. Any objections on that? 14 N R . CARR: PagB 16 is my first note. 15 THE COURT: Dkay. IB NR. CARR: Line B. Line B actually. PagB 6, line 17 B through pagB 17, line B. IB THE COURT: Anybody want to say anything about it? 19 NR. CARR:s What we said earlier on other similar 20 situations, Judge. 21 THE COURT: Anything you want to say about it? 22 NR. NASSIF: Ub Just would say our objections wb 23 had last time. 24 THE COURT: UJe've gone through this a dozen times 119 1 bafnre. LBt's incorporate it. a MR. NASSIF: Okay, your Honor. 3 THE COURT: Incorporate prior objections. It's 4 stricken. Arguments proper and so are incorporated. So all ' 5 of that is stricken. 6 MR. HARUEY: Do we need to state the point that's 7 bBing made as Far as the objection? B MR. CARR: I'm sorry, I couldn't hear you. 9 HR. HARUEY: Do ub need to state the point that's 10 being made as Far as the objection, as Far as what we are 11 incorporating? ia THE COURT: That has been repeated a dozen times, 13 I really don't think we have to. 14 NR. NASSIF: I think that's right. 15 HR. CARR: Next abjection would be page 19, line 9 16 through page 20, line 20. 17 THE CDURT: I think that would be the same type oF IB thing. 19 HR. NASSIF: It's the same as the other one. SO HR. HARUEY: UIb would again incorporate our ai objections. aa THE COURT: I'm incorporating plaintiFFs* and E3 defendant's and I 'll strikB it. 24 HR. CARR: Page 21, line 1 through page 22, line 120 1 13. a HR. NASSIF: 22, line 137 3 THE COURT: Right. 4 MR. CARR: Yes. Actually I guess it's line 12. 5 THE COURT: Line 12 is Fine. Okay. I think w b 'vb 6 been through this before too. I'll incorporate uihat 7 everyone said on it before. I 'm striking it. W e 'll / B incorporate Dn that, I guess. Any other objections? 9 MR. CARR: On page 52 ujb mill not read any of that 10 business, JudgB, from 22 to the end of the deposition. 11 THE COURT: So you'rB not going to read the cross? 12 MR . CARR: N o . 13 THE COURT: Do you have any objections? 14 MR. HARUEY: We mould rsad the cross. 15 THE COURT: Fine. IB MR. HARUEY: And I'm trying to see mhat mas taken 17 out. IB THE COURT: Thera's an objection in the cross an 19 24. 50 MR. CARR: That's not our abjection, is it? HI THE COURT: No, that's their's. 22 MR. HARUEY: There aren't any answers after that. H3 MR. CARR: His answer is most oF them. 24 MR. HARUEY: Right. Yes, me mould mithdram that 121 1 objection. 2 THE COURT: Okay. So on page 24, 22 -- 3 MR. HARUEY: IF I could havB just a second here 4 THE COURT : -- to the end of the deposition. 5 MR. HARUEY: Right. 6 THE COURT : Anything else? 7 MR. HARUEY: N o . B MR. MASSIF: N o . 3 THE COURT : Great. Do you have Edith Daniels 10 done? 11 HR. CARR: Yes, I da. Edith McCoy Daniels. 12 THE COURT: ArB you going to read thBSB 13 authenticating depositions or not? The ones authenticating 14 the records? 15 MR. HARUEY: I don't know that I 'd be in a IB position to address that. 17 MR. MASSIF: Are they on the list? ia THE COURT: I think she pullBd any depositions 19 that had the name. Cristal also had on that authenticated 20 somB records. You're not going to read those? 21 MR. MASSIF: No. 22 MR. HARUEY: Not at this timB. 23 MR. CARR: They're already in evidence. 24 MR. MASSIF: ThBy're already in evidence. I think 182 1 Plaintiffs stipulated to that. 2 THE COURT: She pulled anything with the name on 3 it, which is excellent. Edith McCoy Daniels is next. 4 MR. CARR: Page 7 from line 3 to thB end oF the 5 deposition -- 6 MR. NASSIF: Time out. 7 MR. CARR: Page 7, line 3 to the end of thB B deposition. It is all too remote in time and nothing 9 remotely connected to the spill or any physical or any other 10 condition that could be associated with that spill, nothing 11 relevant or material is in there. 12 How long was Cecil in jail? ShB got mad at Edith 13 or something, put Edith in Eddie's car. Hb tare the insidB 14 of that car up. -Big dog woke me up touching my hair. He 15 was a big dog. He could lay his mouth about on the table. IB I don't know what kind it was. 17 Ub II, anyway, none of this has any relevancy or 19 materiality. IS MR. HARUEY; My response to that, Judge, is that I 20 believB it does have quitB a bit of relevancy and 21 materiality. One of the things that Dr. Carnow testified to 22 on January 23, in pages 5B through 72 of his testimoy was 23 that Miss Jennings is suffering from increased irritability 24 and short tBmperedness as a result of the spill. Not only 123 1 that, not only did ha testify to that, it is contained in s his report, which has been admitted into evidence before the 3 jury. 4 Now here in this deposition, and in another one 5 that will be presented as well, we have a person who is in B lose contact with Miss Jennings for many, many years prior 7 to the spill, even knew her as a family member during thB B time her husband was alive. Many of thB factors that Mr. S Carr is objecting to are direct personal observations on her 10 pat, or accounted to her by a person who is is no longer 11 living and is unavailable, and unavailable as a witness, 15 and, therefore, would fall under that exception of the 13 hearsay rule. 14 They are observations that could lBad a person of 15 ordinary intelligence tc conclude from thesB experiences and IB these contacts, and the general context of Miss Jennings 17 prB-spill history that shB indeed had this problem of short IB temperedness and irritability long before the spill, and it IB was part of hBr personal make-up, unfortunately. 50 MR. CARR: Judge, Just going to the first three 51 pages, everything discussed there is talking to Eddie. 25 There is no -- if you want to go point by point. On page 7 53 and B it discusses how often she saw her brother Cecil. How 24 long would you see him from the year *70, *74. Well, pretty 124 1 often in those years. I would gat real worried and he would s come up and talk to us. I think he wouldn't talk to other 3 people. 4 So, in other words, Cecil went to them and talked 5 to them at their farm about once a week. All he ever did, E he was real worried and he just wanted to talk. Did Cecil 7 ever talk to you about his relationship with Dorothy B JBnnings, and about Dorothy. Yeah. What did ha tell you a about Dorothy? 10 And then it goes on how they didn't get along, n they were always fighting over money. I don't think Dorothy 1H took him for treatments much. I think one of thB neighbors 13 took him for treatments. What was he sick with? Cancer. 14 I 'm up to page 11 right now, JudgB, and there's 15 nothing at all that could aven be remotely connected with IB this case. On page 12 she was very fussy with Eddie all the 17 time. NBVBr got along with EddiB. Cecil paid more IB attention to Eddie than her boy. Got nothing to do with 19 anything. 20 Page 13 Robert got a check from his father, I 21 don't know how much. You said Dorothy and Cecil couldn't 22 get along. What did you mean when you said that? Uiell, I 23 think they never did get along from the start, when Dad was 24 sick and so forth. All garbage. 155 1 ad iiias real sick, Cecil would coma in here to 5 help and they got into a Fuss at night. She had Cecil 3 thrown in jail that night. Bed. When Dad diBd how long 4 was Cecil in Jail? 5 15 is ahout the dog being put in the car and 5 tearing up the car. And then shB says I would say -- what 7 could you tell me about her disposition. I would say -- 0 this is on page IB -- I would say she was irritable. Uhat 9 do you mean? She was never happy with anybody or anything. 10 What about her -- anything else about her 11 disposition you can tell us? No. I Just know shB was never 12 very happy. 13 Well, so what? A lot of people aren't very happy. 14 NR. HARUEY: A lot of people are trying to cash in 15 on it. IE NR. CARR: Well, if you look at her testimony, you 17 won't Find her making one single complaint. 18 NR. HARUEY: But she did to Dr. Carnow, and Dr. 19 Carnow presented that testimony to thB jury. 50 NR. CARR: Nat about happiness. 51 NR. HARUEY: Irritability, short temperedness. 55 Those are all part oF the mood changes, the general types oF 23 things. 54 NR. CARR: On page 17 it shows she hated him. She i 156 1 s 3 4 5 6 7 B 9 10 11 15 13 14 15 16 17 IB 19 50 51 55 53 54 may have had a Foundation to hate him. Certainly nothing that can he relevant to this case. It had to have been apparently still long before '74, I guess. I don't know. She's not even specific as to when that occurred, MR. HARUEY: Responding point by point, the testimony presented on those pages, while same of it may be a little bit general in nature, is nevertheless based upon or directed at Miss Jennings' overall demeanor, IhosB questions, For example, she says -- she characterizes her as being irritable, directly contradicting r . Carnow's testimony. Describes her in a Fashion that as a whale this testimony shows that a person who knew Miss JBnnings bBFore thB spill perceived her to be an irritBble, short tempered, vitriolic person. Those are unfortunate things to say about a person. Whatever hBr motivation might have bBen, if there was some personal problems between these two people is something that could have been brought out on cross examination, or something that should go to the weight of the testimony, certainly not its admissibility. MR. CARR: Judge, everything I see that they've asked about irritability was connected to the marriage to Cecil, during the period -- on the bottom of pagB 15, during the period Cecil was married to Dorothy Jennings. How was 157 1 hsr disposition, was she irritablB, was she calm. Could you 5 tall me about her disposition. The objection is made there, 3 lack of foundation in the Form of the question, That's a 4 good abjection right there to that question. 5 MR. HARUEY: Where are you? E MR. CARR: Bottom of page 15, top of page IB. The 7 only thing that was put in there is the improper question B and the form of the question. S THE CDURT: Do you have anything more to say? 10 MR. CARR: No, JudgB. 11 THE CDURT: Do you have anything more to say? 15 I1R, HARUEY: Just generally that the testimony 13 hers, even as it goes to hBr relationship, it is not just 14 limited to her relationship with Cecil, but goes to her 15 relationship with othBr peoplB as well. And her IB relationship with Cecil being the most readily apparent 17 factor in observing Miss Jennings bBhaviar and IB characterizing hsr moods, hsr demeanor as irritable, and as IS short tempered, at a time before the spill shows that she 50 had a pre-existing condition in this case. It's directly 51 relevant on thasB points, and not to mention her pre 55 occupation with money. 53 MR. CARR: tUhat's that got to do with anything? 54 MR. HARUEY: Motive. 12S 1 2 3 4 5 E 7 a 9 10 11 12 13 14 IE IE 17 IB 15 20 21 22 23 24 THE COURT: Do you have anything to say? MR. CARR: No, Judge, THE COURT: I'm sustaining the objection to it. That uias my impression when I initially read this. I am striking all that that he's objecting to. MR. NASSIF: Judge, are you striking the part that has"to do as well on page 2E with how often Dorothy Jennings would have upsBt spells, which I think goes to the issue of short tsmperBdness? About evBrytirr.B w b came up -- I don't know how often that was -- if that doesn't go to short tempersdnass, and thB question is not objected to at that point. THE COURT: No, at that point it wasn't objected to. MR. CARR: It's all remote in time. It was all before -- time isn't even fixed. It would be sometime before Cecil died. That could have been 50 years before. MR. NASSIF: No. If you look at the deposition, you can focus on the time. OF course, you've struck all that. MR. CARR: If you look on page 25, every wsBk is whBn I told you she didn't gBt along with Cecil, with my folks. Your folks, is your dad still alive? Dad died in May of *63. Mom died in 'BE. 129 1 B 3 4 5 6 7 8 3 10 11 12 13 14 15 16 17 IB 19 20 21 22 23 54 MR. NASSIF; Right. MR. CARR: Now that's 23 years. No, 13 years bafors the spill ocurrsd. MR. NASSIF: 15 yBars before the spill she was blowing her top. It doesn't seem to me to be remote in time. She's a 50 year old woman. MR. CARR: About the time they were married. Does that tell you something? And I might point out in the winter of '79, that would be admittedly before the spill, they visited her and she was nice, peaceful and happy. In the winter of '79, MR. NASSIF: W e 'll read that part too. MR. CARR: I know, but the point is, because that takes away from the irritable problem. It's clear she got happy when Cb c H diBd and it was a bad marriage and she said an pagB 27 thB main thing Dorothy and Cecil didn't get along. MR. NASSIF: As I remember Dorothy Jennings, your Honor -- i MR. CARR: She's a very nice little lady. MR. NASSIF: She's had several strange relationships, or strained relationships with her husband. I think it just goes to temperament. THE COURT: If I remember correctly, I limited a 130 1 lot of the interrogation of hBr and some other witnesses s about what I considered non~relevant elements of the 3 marrital relations or lack of them. 1 think that whoever 4 characterizes this as garbage* i don't remember which of you 5 did, was awfully accurate. I'm striking it. Dkay. E Who is next? Iris Dennison is next if you've got 7 her done. a MR. CARR: Have you done these too, Judge? 3 THE COURT: I 've done all of them, 10 MR. CARR: Great. 11 THE CDURT: I may not have done the last two. I IB think I've done everything but that. 13 MR, CARR: Let's see, Dennison. 14 THE COURT: As a matter of fact, if you'll wait IE just a minutB -- 1*11 gst it tomorrow, 16 MR. CARR: The first objection I have on 17 Dennison's deposition is page IB, line 51 and a half. Now 18 Ed Uaught had already dropped out of school. 19 THE COURT: Down through where? BO MR. CARR: Just that part, 21 and a half to 23, 21 just that sentence. My next one would be on page 55. SB, MR, NASSIF: Why are you objecting to that? 23 MR. CARR: It has no relevance to anything. Ed 24 Uaught had already dropped out af school and Dominguez had 131 1 dropped out of school Dominguez had not actually dropped a ut of school, he transferred. 3 MR. HARUEY: John Dominguez? 4 M R . CARR: Yes. Sunnydale. 5 MR, HARUEY: This is Sunnydale. 6 MR. CARR: Wherever he transferred to. He went to 7 college, I know that. That's the oldest Dominguez boy. It B is not important whether he has or not. It has no relevance 9 to this case that Ed Uaught and Dominguez had dropped out of 10 school. 11 THE COURT: What's your position? 15 MR. HARUEY: Well, with respect to Dominguez the 13 testimony wasn't really directed at him. But as far as Ed 14 Uaught, it goes to whether or not shB was still having 15 contacts with him in 1979 at the time of the spill. 15 MR. CARR: ShB obviously could not havB had any 17 contact with Uaught, that's what sha was saying. IB THE COURT: I agreB with the objection. I'm 19 striking it. Where is your next abjection? 50 MR. HARUEY: That's through linB S3? 51 THE COURT: Yes. 55 MR. CARR; ThB nBXt one is on page 55, your Honor, 53 linB 19 over to page 30. Over to page 30. I don't see 54 where any of that -- o v b to page 30, linB 1. Most of this 132 1 is Hagen's cross examination* I believe, isn't it, or is it a all? 3 MR. HARUEY: Yes. 4 THE COURT: I think it is. You're not going to 5 read that? 6 MR. CARR: That's correct, your Honor. 7 THE COURT: Do you have any objections to B anything, or are you going to read that? ShB Just started 3 crass examining the page before. 10 MR. HARUEY: Ths only thing I mould want to read 11 on thB cross examination -- I takB it Mr. Carr is not going 12 to read any of the cross examination. 13 MR. CARR: Yes, w e 're reading thB cross 14 examination. 15 THE COURT: From pagB 25, line 19 to the end of 15 the deposition h B 's not. Up to that point he is. She 17 started ths page before. IB MR. HARUEY: Okay. We would then offer, I guBSS, 13 page 25, line 19 through page 25, line 7. It goes to 50 backgrond, length of time at Sunnydale. There's no 51 objection to it. H e 's Just not going to read it. 25 THE COURT: Do you havB any objection to that? 23 MR. CARR: I don't care, Judge. It doesn't have 24 to do with anything, but if thBy want to read it. 133 1 THE CDURT: Okay. Wes'11 1Bava it in. Any other s objections? 3 MR. HARUEY: No, me won't offer anything passed 4 line 7 on page SB. 5 THE COURT: Okay. All right. I did read the last 6 two depositions. Embree, do you have EmbrBS? 7 M R . CARR: Yes. Page 15, line 16 to line 21. Q THE COURT: U e 've been through that before too, 9 comment on other people's -- 10 MR. NASSIF: Right. 11 THE COURT: I 'll incorpoate what each of you have IS argued on that. I'm striking it. 13 MR. HARUEY: Could I add to that objection, or to 14 our response? 15 MR. CARR: Sure, you can add to my objection IB anytime you want. 17 HR. HARUEY: Not to your abjection, but to our IB response to your objection. I would direct the Court's 19 attention to the case of Darrough v. White Motor Companu . SO THE CDURT: Do you have a copy of it? SI HR. HARUEY: 74 Ill.App.3d 560, 30 II Dec. SS THE COURT: 5B0. S3 MR. HARUEY: I 've got those, where the defendant S4 BntBrBd into evidence thB absence of injuries in a similar 134 X s 3 4 5 G 7 B 9 10 IX 15 13 14 IE IB 17 IB 19 50 51 E5 53 54 situation, and it was held to fas admissible. It's our position that logically a proof of, as ths Court said, proof F -- let's see -- the non-axistBnce of proof of an injury during a'period of similar exposure would be relevant. HR. CARR: We never said it wasn't, Counsel, HR. NASSIF: It only applies to people testifying about somebody else. HR, HARUEY: And a person who is in a position to observe someone whD is in a similarly situated condition would have the knowledge that would be pertinent to expressing thBir opinion as to thB health d F the simlarly situated individual, whether or not it be a plaintiff in the case. THE COURT: I think that's heen argued before. I don't remember if this case has been cited. 1 will look at it this evening. If I've changed my mind, I will let you know and we can argue it Futher, But at this point in time I think the point itself has been argued before. HR. HARUEY: Okay. THE COURT: It would, therefore, be incorporated. But I will look at the case tonight. If there's any change I 'll let you know in the morning. Any other objections? HR. CARR: On pagB 16, line 6 and 7, referring to 135 1 Matthau. 5 THE COURT: Sams type of thing. If I havB any 3 change, I'll let you know in the morning. 4 MR. CARR: On this anB we don't intend to read the ,5 cross. That's all. We just don't intend to read the cross, E and the redirect would be their thing to read if thBy want 7 to read it. B THE COURT: Okay. Do you have any objections to S anything, or ars you going to read it? 10 , MR. HARUEY: We would read the cross up to page 11 IB, line 3, but not the redirect or anything passed that. 12 MR. CARR: Well, if they're going to read part of 13 it, JudgB, we will read thB rest of it then. 14 THE COURT: Okay. 15 MR. HARUEY: In that casB, w b '11 read the IB redirect, 17 THE COURT: Now looking at the whale deposition, IB does anyone have any objections to anything else? Fine. IS I think the next is Kb I H Evans. 20 MR. CARR: Page 13, line 25 over to page 14, line 21 IB. 22 THE COURT: Okay. I think w e 've been through 23 these before too. I'll incorpoatB what everyone said and 24 I 'm striking it. Any other objections? 1 136 1 HR. CARRi Page 15, line 12 to line 16 on that 2 same page. 3 THE COURT: SamB ruling. U e 've been through this 4 before a number of times. 5 MR. NASSIF: How far on line 16? S THE COURT: Through line 16. 7 MR. CARR: Just Four lines there. Page 16, line 9 B through line 14. 3 THE COURT: Same thing, I'll incorporate the 10 arguments and strike it. 11 MR. CARR*. Page 17, line 3 to line 12. 12 MR. NASSIF: Can you hold on Just a second? Are 13 you leaving in the question on page 16,"Does she seem to 14 give a positive or enthusiastic attitude?" Line 6, page 16, 15 the aneuier is yes. IE MR. CARR: Yb s . 17 MR. NASSIF: She can report on that, but you're IB objecting to people that indicate that they'rB fussy or 19 short tempered or something else? 20 THE COURT: They were different grounds, Counsel. 21 MR. NASSIF: Okay. 22 THE COURT: That same ruling as before. I'll 23 incorporate thB arguments on it. 24 MR. CARR: IB, lines B, 9 and 10. 137 1 THE COURT: SamB ruling, incorporate it. 2 MR. CARR: 19, linss 17 over to page 20, line 12. 3 THE CDURT : UJb 'vb been through this a number of 4 times, same ruling. I'll incorporate all argumsnts. 5 M R . CARR: Page 21, line 21 to page 22, line 7. E THE COURT: Ub 've bean through this, same ruling 7 and I'll incorporate all arguments. Q MR. CARR: PagB 22, line IB through paga 19, line 9' 4. 10 MR. HARUEY: Wait a minute. Page 22, line 19 11 through -- IS THE COURT: Line IB. 13 MR. HARUEY: IB through -- 14 MR. CARR: Page 23. 15 THE COURT: LinB 4. IE MR. CARR: I*ve got linB 10. 17 THE COURT: Yes. IQ MR. HARUEY: I mould respond, I don't believe 19 m e 'vs addressed the issue on page 22, line IB through line SO 23. This is a physical education teacher whose background 21 or training in physical education, and, in Fact, her dutiBS 22 and responsibilities as a physical education instructor 23 require her to observe the physical activities of those 24 students who are charged under her care and supervision. 138 i 5 3 4 5 6 7 6 a 10 n 12 13 14 15 16 17 IB ia 20 21 22 23 24 Jessica UhitB is one of those students who is charged under her care and supervision She has an opportunity to ohsBrvB, and, in Fact, is trained and has a duty to report an those things, so it can be determined whether or not the student should receive a proper grade, or is conducting herselF at the same level of activity and skill as the other students who are at her agB level. One oF thB problems -- I'm sorry, Robin. MR. CARR: It says here Jesse, is what I've got. MR. HARUEY: ThB analogy is to Jb s s b . She's a I littlB more passive than Jessica. MR. CARR: All right. I s b b it. THE COURT: Okay. UJBre you done? MR. HARUEY: Yes. THE COURT: Do you have anything to add? MR, CARR: One response to that, Judge, is that I don't know that we ever suggested that she doesn't havB -- that she is earth bound, or that shB has no hand/eye coordination. This is suggesting an illness that we don't claim that she's had. MR. NAS5IF: Finger and hand discomFort. i MR. HARUEY: She has finger and hand discomfort. Sa I believe that would affect her hand-to-sye coordination, or could very well effect it, in playing games such as 139 1 vollsyhall, or the other games she describes in herB. e Peripheral neuropathy I believe is one of the things that's 3 commonly raised, however, it may be characterized. I think 4 some abnormalities were reported by Or. Carnow with respect 5 to Robin. 6 flR. CARR: That she had no hand-to-eys 7 coordination, we never claimed that. B MR. HAROEY: You may not have claimed hand-to-eye 3 coordination. 10 MR. CARR: That's what you're asking, though. 11 MR. HARUEY: ThB claim that was made with her 13 would be Finger and hand pain over something that would -- 13 this would be the objective observation that would tend to 14 rebut the complaint. She couldn't very well testify that 15 Robin Bowen didn't have Finger and hand discomfort or pain IS other than -- you'd certainly object to that, an the basis 17 that she wouldn't know it. UJs would say that thB lack of IB any complaint would indicate that she didn't have it. But 13 shB could testify to thB objective observation of no 30 impairment. 31 MR. CARR: She's already testified that she's able E5 to participate in physical activities. She does fine. A 23 little more passive. My objection to this question is that 24 ycu are suggesting that shB should havB that problem, by 140 1 E 3 4 5 E 7 B 3 10 11 15 13 14 15 IE 17 IB 19 50 51 25 53 54 asking does she have no hand-to-eye coordination. That's improper to suggest that, unless you knouj that we have claimed that shB has no -- that shB has claimed that shs has no hand-to-eye coordination, or, in Fact, being earth bound.' That's what I 'm quarreling with in this question. THE COURT: I 'm sustaining the objection to it on the grounds that wBrs arguBd. I thought me had gone through this before, but on the grounds that have been argued this afternoon. I am sustaining, it. HR. CARR: PagB S3, line 15 and a half. HR. HARUEY: Ex c u s b me Just a second. HR. CARR: 15 and a half through -- THE COURT: UJhBrB I have noticed that typB of thing. HR. CARR: Yes. But not with Robin. THE COURT: H e 's starting at 15 and a half. I have noticed that type of thing. HR. CARR: Down to linB 25. The same reason I've givBn before. times. THE COURT: U e 've been through that a hundred ii I 'll sustain ths objection. Ii HR. HARUEY: If I could make an Offer of Proof on that one, your Honor. Robin -- or an offer of relevancy. In any event, Robin Bowen in her testimony -- actualy it was 141 1 hBr mother's testimony in her behalF, tsstiFied that shB had S persistent colds and fevers, and I believe a chronic cough, 3 a problem with a persistent cough. That's do pages 170 4 through 7B oF the trial transcript oF October 4, 19B4, IF 5 you had a persistent cough, there's certainly nobody better E qualiFiBd or somehady in a better position to observe this. 7 MR. CARR: I agree that what you say is correct. I 0 don't have the transcript with me. Based upon your 3 recommendation that her mother testified that way at a 10 relevant point in time while she was in school with this 11 teacher, I havB to chBck the transcript. I assume Robin i IB Bowen had a persistent cough. 13 THE COURT: Uhy don't you check that point. I'll 14 reserve ruling on it. Tell me tomorrow morning. Okay. 15 MR. CARR: On the same page, linB 25, running over 15 to page 25, line 11. Basically all of page 24 and half of 17 25. IB THE COURT: I think w e 've gone over this type of 19 thing. BO MR. HARUEY: I guess 1 again would offer, she HI complains of a rash or unusual skin condition, and the BE teacher -- she makes that complaint to Or, Carnow as well, H3 statBd on January 10th of this year, on page 154 that she 24 had a very active rash For someone who was so young, 142 1 inferring that it-was related to the spill, and M z . Evans 2 here testifies that if it was something that would stand out 3 she was sure she would notice it* 4 MR. CARR: You're asking white patches or 5 discoloration. 6 MR. HARUEY: Rash would he discoloration. 7 HR. CARR: Would not. I don't consider a rash -- a if I mBant a rash, I'd say rash. I don't say discolaraion. 9 Discoloration would bs like a bruiSB, 10 THE COURT: I'm sustaining the objection. 11 Anything elsB? 12 MR. HARUEY: On page 23, just for clarification, 13 you've reserved ruling on lines 11 through 21? 14 MR. CARR: No. I'm not objecting to 11 through 15 15 and a quarter. 16 THE COURT: Where it starts I have noticed, down 17 through line 22, I 'm reserving ruling on it while the IB transcript is checked. Okay. Any other objections? 13 MR. CARR: Yes, your Honor. Did you rule out all 20 of 24? 21 THE COURT: Right. 22 , MR, CARR: Page 27 then, line B, to line 20. 23 THE COURT; Through line 20? 24 M R . CARR: Yes. Page 27, 143 1 THE CDURT: That doesn't make any sense at all. a That goes out, Any other abjections? 3 MR. CARR: Page 29, line 10 to page 30, line 13. 4 THE COURT: I think this is the type of thing 5 uie'vB gone through before too. E M R . HARVEY: If I could state something for the 7 record. B THE COURT: Sure. 9 MR. HARVEY: OnB of the problems that's reported 10 in Dr. Carnow's report, and his testimamy is also directed 11 at this an February 21, is that DBbbiB Rush uias fatiguBd. I ia believe it was in the afternoon when her fatigue was most 13 prevalent, according to hBr or her mother. And that uias, as 14 you can tell From the way the question was phrased, that's 15 why it was phrased that way. It was in specific rebuttle to IE a specific complaint that we anticipated would be placed 17 before this jury through Dr. Carnow's rBport. IB MR. CARR: If you're representing that, Counsel, I 19 certainly will withdraw my objection to it. SO THE COURT: That's that first question and answer 21 then? as MR. CARR: Yes, on page 29. 23 THE COURT: Dkay. Objection is withdrawn. 24 MR, HARVEY: With the colds, Dr. Carnow testified / 144 1 E 3 4 5 6 7 Q 3 10 11 IS 13 14 15 15 17 18 IS 20 21 22 S3 24 tha DBbhiB had colds cnce or twice a month. On page 58 oF his February 21 testimony. The Question and answer on page 30( line 1 through 4, ''Have you BVBr seen her Bxhibit the symptoms of someone with a cold or runny nose?" She said, "1 can't remember. Nothing real noticeable, or I'm sure I would really remember that." HR. NASSIF: It starts on page 29, linB S3 at tha bottom HR. HARUEY: Right, the rebuttle to that begins on linB S3. Again her exposure to this person is on a three times a week basis, doing activities where a cold would be likely to manifest itsBlF. NR. CARR: What's the testimony about Debbie Rush, that she had colds all thB time? NR. NASSIF: Colds once or twice a month, and occasional sore throats with colds. NR. CARR: I 'll withdraw the objection to 1 through 4 on pagB 30. She's never complained to anybody, we haven't suggested that she needs to complain to anybody. NR. HARUEY: I don't think it would hardly be unusual, if somebody has a cold or congested to complain to hBr F.E. teachBr, especially given the nature cf the activities. THE COURT: Not necessarily. I 've ruled on that 145 1 before. I dcn't think that's necessarily true. The 2 abjection is sustained on that. 3 MR. HARUEY: On linBS 23 through 25 on page 29? 4 THE COURT: Right. j I 5 HR. HARUEY: It's withdrawn on lines IB through 6 21. 7 a a THE COURT: 1 through 4 an page 30. MR. HARUEY: The abjection is still made -- MR. CARR: B through 13 is now the remaining part 10 thB Judge has stricken. li THE COURT: vI thought it was 5. 12 MR. CARR: I'm sorry, 5. I'm sorry, Judge. 13 THE COURT: Any other objections? 14 MR. CARR: Page 31, line 14. 15 MR. HARUEY: Again on the record, on the 15 headaches, she complained of having headaches all the time. 17 Barbara Rush did, when she testified on Debbie's behalf. On IB page 104 throgh 10B dF thB November 13 transcript. Dr. 19 ^Carnow also testified that there was a symptom that Debbie 20 was having problems with on February 21, page B 2 . 21 MR. CARR: It doesn't mean she should came 22 complaining to peoplB of headaches. 23 MR. HARUEY: There's also visible manifestations 24 of a headache that a little girl would be likely tc make. 14B 1 MR. CARR: Who says so? 2 MR. NASSIF: fly six year aid daughter,' among 3 others, 4 MR. HARUEY: fly three year aid daughter. 5 THE COURT: Well, my 12 year aid walked around 6 with a broken arm For two days. 7 MR. NASSIF: It wasn't a headache. Judge, on page a 30, line B, have you ever seen her standing off to the side a rubbing her Forehead, making a Face like shB was in pain. 10 Once again, iF a person has a headache, it's pretty tough to n go through physical education class. She says no, this is 12 all I've noticed, the hand to the side when she runs. 13 THE COURT: U e 'vB been through this a lot. I 14 don't think that the position here makes this argument. I IS would incorporate the arguments that you made beFore, both IB sides, and make the sams ruling. I don't think it should be 17 read. IB MR. CARR: On page 31, `Judge, line 14 to line IB. 13 MR. HARUEY: On the same grounds oF relevancy? 20 THE COURT: The same grounds aF relevancy. 51 MR. NASSIF: Your Honor, there's testimony by her 22 mother that she has Frequent stomach aches, as I recollect. 23 HavB you ever seen her holding thB Front of hBr stomach, 24 doubled over? 147 X MR. CARR: Is that what you do when you havB a S stomach ache, you hold the Front of your stomach and double 3 over? It's news to ms. It's a suggestive question. 4 MR. NASSIF; For a little kid. 5 MR. CARR: TherB's no evidence that she ever did 5 hold thB Front of her stomach, or we ever claimed that she 7 held thB Front d F her stomach, or doubled over Forward. - B HR. HARUEY: All these things, ths headaches, or S the stomach pains, or whatever, they're objective 10 maniFsstatians that one might associate with that type oF 11 injury, or that illness iF it in Fact existed. At the every IS least, it would allow a reasonable person to guage the 13 sBVBrity with which this person is supposedly aFFlicted with 14 these things. Did she have a stomach ache, well, not enough 15 For her to do anything that one might do whan they really IE have that problem. 17 THE COURT: Okay. I disagree. My ruling is on IB the basis w b 'vb gone through this before. There is no 19 relevancy. This is such a nebulous, non-objective, multiple BO interpretation type of matter. It has virtually no ei probative value. It is not relevant. And there's no reason 55 to 1st it be in here in an evidence deposition. The S3 objection is sustained. S4 MR. CARR: On that same page, Judge, line S3, ove 140 1 E 3 4 5 5 7 B 3 10 n 15 13 14 15 IE 17 IB 19 50 51 55 53 54 to page 35, linB E. THE COURT: I 'll incorporate -- MR. HARUEY: For'thB record she did testify -- her mother testified and Dr. Carnow both testified as to her having Frequent ear infections. The mother on 11"13~B4, page 115. Nausea and queasiness were testified to by Dr. Carnoui on February 51 , page 57, and thB ear infections on page SB on the same day. Claimed that they occurred monthly. HR. CARR: Whether she did or did not has got nothing to do with hBr complaints. Not obligated to complain to anybody. THE COURT: Objection is sustained, Any other objections? MR. CARR: On page 33, line 55 aver to page 35, line IB. MR. HARUEY: With respect to thB -- w e 'll stand on our other objections. But with respect -- w b '11 stand on our objections, THE COURT: 5ame ruling. It's out. MR. CARR: PagB 3B, line 9. I withdraw that line 9, and make it line IS. Over to page 37, linB 17. THE COURT: UIb 'vb been through all this, haven't we? 149 1 HR. HARUEY: UJb II, this is Julia Kemner uB're E talking about here. 3 HR. NASSIF: UJb 've covered all that stuff, Ed. 4 THE COURT: I think we have. 5 HR. HARUEY: The observation on the rash, that is G a question that goes to ths observation, In thB trial Joyce 7 Kemner testified that shB had eczema. That was the main B point, it would bs relevant to that. S THE COURT: I'm sustaining the objection. Let's 10 take a short break and then u b '11 go back to this. 11 1E CShart t b c b s s .D 13 14 THE COURT: I have read this Darrouoh v. Whits 15 Motor Comoanu. and I disagree with your interpretation of ( IG it. I am going tD sustain the position that I took before. 17 The Appellate Court very strictly construed the question, IB and I don't think it's really on point with this, when they 19 said, The question of whether, in defense of a charge of 20 strict liability defective product based an defective SI design, a manufacturer may show evidence of nonoccurrence of 2E injury from similar products, stating that that question had S3 not been directly decided in Illinois. 4 ThBy cite immediately after that Liberty Mutual on 150 1 thB proposition that I think is mors in keeping with this 2 case. They state generally that it's a question of 3 discretion For thB Court, and in thB exercise of my 4 discretion, in view of the various Factors of exposure, 5 amounts, individual variabilities as to reactions, and a lot B of other Factors uihich have been gone into hundreds oF times 7 in this casB, and in thB BxerciSB oF my discretion, I don't B think that it's relevant. So I am taking thB same position a that I did beFore as Far as the other person involved. I've xo taken that consistently on other grounds also. I would n incorporate those other grounds as the basis For my ruling 12 also. 13 I think the last one we had dona was up to line 17 14 on page 37. 15 MR. CARR: Page 37, line 23 to page 30, line 7. 15 THE COURT: UIb 'v b gone through this in a lot oF 17 these depositions, IB HR. NASSIF: But, Judge, the thing about sitting 15 out, having to do with did she miss your class a lot. I 20 don't remember that as being something that w b said was 21 excludBablB. It's a phys. ed, teacher. 22 THE COURT: I disagree. I think it has been 23 covered. 24 MR. HARUEY: It explains what's cn line IB through 151 1 52 where the question is have you Bvsr received a nctB from 2 hBr parents asking her to sit or stand outdoors. The 3 response was there was onB occasion. Then that is clarified 4 in line 23 to 25 to show that this wasn't a regular 5 occurrence, It was a d o b timB Bvent. E MR. CARR: I got one note one time, That's as 7 specific as you can get. She may have missed a class. She 8 had gone oncB to the doctor, she may have missBd a class for 9 that. That dossn't makB you anything except a great 10 attemptsr. 11 MR. HARUEY: The question on 23, if the one stays 15 in, ths Dthsr should too, to explain that. Well, thBre's 13 one time where she had a cold and another time she went to a 14 doctor, lBavBS one -- 15 MR. CARR: The question suggests that she should IE be a regular sitter-outer, and we haven't arguBd that at 17 all. IB MR. HARUEY: I haven't suggested that she's mare ' IS susceptible to colds, 50 MR. CARR: All kinds af people have colds and go 21 to school. Yo u 'tb suggesting here that she should be a 25 regular sitter-outer. / 53 MR. HARUEY: The point is that there was one time 54 when she had a cold and hBr mother did ask her to sit out. 152 1 MR. CARR: Right. 2 MR. HARUEY: Thsre was a time whBn shB went to a 3 doctor. The Fact that shB had a cold and she had to sit out 4 once indicates by not being a regular sitter-outer, 5 indicates that if she did have this cold on one occasion 5 where she did sit out, the rest oF the time she didn't would 7 go to the variation oF that. B THE COURT: I 'm adopting the ruling that I made 9 bsFore. I 'll take thBm over the objections, arguments that 10 were made bsForB. 11 MR. CARR: ThB next one would be on page 45, line 12 11 to line 15. 13 MR. HARUEY: Our response to that, your Honor, is 14 that if that is going to come out, which we don't think it 15 should, then also the material on line 7 through 10 should IB be removed, because it's the same sort oF thing. IF it's 17 not relevant on the one hand, it's not relevant on the IB othBr. IF w e 're going to leave the material, line 7 through 19 10 on page 45 in, we certainly ought to leave 11 through 15 20 in to explain it and put it in context with respect to the 21 plaintiFFs in this case. UJe've taken out all material about 22 notes. 23 MR. CARR: Okay. The two oF the girls wBre not -- 24 you may be right. ThB notes From the two girls were not 153 1 connected with any of" thB ones being asked about. 2 MR. HARUEY: Yes, they were. I take that back. 3 MR. CARR: Well, then -- 4 MR. NASSIF: No, no, no notBs From any parents of S any of the children you've Just spoken about. B MR. HARUEY: You're right. 7 MR. NASSIF: It doesn't have anything to do with B the kids that she testified about that are plaintiffs in 3 this case. 10 THE COURT: U a 'll take it all out than, 7 through 11 15. 15 MR. CARR: No, they're two different things. One 13 is to be excused from P.E., from physical activity, and P.E. 14 class, short periods of time. The next question, line 11 is 15 from doctors regarding any of those children suggesting that IB they shouldn't go outside. That's in a different point. 17 MR. HARUEY: Well, your Honor, thB point that's IB raised is that thB activity and P.E. of going outside one 13 way or the othBr, it's still a notB from the parent. IF 20 it's irrelevant on the one hand, it ought to be irrelevant 21 on the other. 22 MR. CARR: I don't follow you. 23 MR. NASSIF: Your Honor, I don't think those -- 24 MR. CARR: She had a doctor's note about a kidnBy 154 1 problem. They referred tQ that. I think earlier on. s MR. NASSIF: Lee KemnBr, or somebody Blse, 3 mentioned another notB. That's a question about thB two 4 notes refer to -- 5 THE COURT: Okay. Rush is on page 44. Where is 6 thB other onB? 7 MR. CARR: On 37. B THE COURT: Okay. I stand corrected. I'll strike 9 11 through 15. I'll leave the other part in. It does 10 relatB to that. Any othBr objections? 11 MR. CARR: No, your Honor, that's all I have. IS THE COURT: Do you have any objections? 13 MR. CARR: We don't intend to read any of the 14 cross examination. 15 MR. HARUEY: UJa do, your Honor. 1G THE COURT: All right. Fine. Do you have any 17 objections to any of it? IB MR. HARUEY: Us don't intend to read any of the 19 cross by Mr. Wooler. 20 THE COURT: I think I struck it all out. No, I'm SI sorry, I didn't. That ons question. as MR. CARR: Well, wb won't read 7 through 10 if S3 you're not going tD rBad it anyway. 24 M R . HARUEY: Okay. 155 X THE COURT: So it's all out again. 2 MR. HARUEY: Mr. WoolBr's is all out. 3 THE COURT: you havB any objections to anything 4 that's left in? 5 MR. HARUEY: Wb would read -- E- THE COURT: I 'm assuming you're reading everything 7 else. Do ya have any objections to anything? B MR. HARUEY: The reason I state that is Mr. Woolsr 3 took her up on cross again. I would read his cross on page 10 49. 11 THE COURT: Okay. Fine. Do you have any 12 objections to anything that you intend to read? 13 MR. HARUEY: No, your Honor. 14 THE COURT: Fine. Ereat. Next would be Mable 15 Grey. IB MR. CARR: We move to strike everything from line 17 E through thB end of thB deposition. IB MR. HARUEY: What page? 19 MR. CARR: Page 5, Except the parts on pagB 9, 20 line IB to page 10, line 2. 21 THE COURT: Well, I think in view of my prior 22 rulings, I ought to strike it all. I 'm going to incorporate 23 all of thB objections, and I think that part, on thB basis 24 of my prior rulings I think it should be stricken also. 156 1 MR. HARUEY: Which part? 5 THE COURT: All of it mill bs stricken, including 3 thB part that he wants left in. 4 MR. CARR: It's Fins with me to strike it. S THE COURT: In view of my prior rulings. G MR. HARUEY: Nobody is objecting to it, your 7 Honor. B THE COURT: He wanted it left in. 3 MR. CARR: All I*m saying is it's not 10 objectionable. 11 THE COURT: I thought you were objecting to it. 12 MR. HARUEY: No, we want to rBad the whole thing. 13 MR. CARR: I think it's proper, because they said 14 this person says shB was terribly Fatigued all the time and 15 had lots of back problems. IB THE CDURT: Wall, iF hd one is objecting to it, 17 I 'll leave it in then. IB MR. CARR: I won't abject to it, beceuss I think 19 it's proper. 20 THE CDURT: Are you ,objecting to it? 21 MR. HARUEY: No, we're oFFering it. 22 THE COURT: Fine. All right. I got confused 23 thBn. 54 MR. HARUEY: We would make the samB record that we 1B7 1 mads with respect ta Edith Daniels' deposition on the 2 irritability and the short temperednBSs, except the woman 3 went into it in considerable more detail, Bven greater than 4 Edith Daniels did, as to the specifics and the 5 characterization of Miss Jennings vitriolic nature, or short 6 tempered, irritable disposition, and all these things are 7 items that have appeared in court before the jury. They'rB B relevant for that reason. B THE COURT: Same ruling as before, again. Whoever 10 characterized it as garbage wasn't far off. 11 HR. NASSIF: Are you striking everything, your 15 Honor? 13 THE COURT: No, no onB is objecting to that one 14 part, ( 15 MR. NASSIF: I mean everything other than -- IB THE COURT: Everything other than that. 17 NR. NASSIF: Your Honor, what about the part about IB her seeing a psychiatrist? 19 THE COURT: Pardon? What page? 50 NR. NASSIF; Page 10, your Honor. Begins on page 21 10, carries to the bottom of pagB 10. 25 THE COURT: Bottom of page 10? 23 NR. CARR: What's that got to do with anything? 24 THE CDURT: It doesn't havB anything to do with 156 1 it. 5 MR. CARR: Just because most psychiatrists have 3 mental problems. IF you want to be a psychiatrist that1s 4 evidence cf a mental problem. You may be right. 5 MR. NASSIF; I didn't say that. E MR. CARR: No, but you may bB right. 7 MR. NASSIF: I'm just saying some strange things Q are somstimes indicative -- 3 MR. CARR: This is really great, she was one oF 10 the meanest peapls I have ever known, and I've worked For 11 the public For 40 years, and with lots oF people, but I've 12 never seen one that was a mean as she is. 13 MR. NASSIF: Wait a minute. What about her 14 smoking? 15 MR. HARUEY: Page 13. IE MR. CARR: Is there an issue on smoking? 17 MR. NASSIF: Excessive smoking can cause IB headaches. 19 MR. CARR: Is there an issue? Did we ever dsny 20 MR. NASSIF: Yes, you did. 21 M R . HARUEY: She doesn't say -- 22 MR. NASSIF: No, no. During her testimony, as I 23 recall, she said she smoked and therB was an issue regarding 24 the dBgreB, that she smoked, and I can't give you a 159 1 refarance right now. E MR. CARR: This is remote in time anytuay. At one 3 time she smoked a lot. That could have been anywhere in 4 the past 40 years. 5 THE COURT: She did admit at one time she did smoke 6 an awful lot. I don't think that's an issue. I think the 7 question was what she had cut back to. % B MR. NASSIF: There was a question of whether or 9 not -- yes. How long that had persisted. I thought she 10 indicated -- she sort of downplayed it, your Honor, as I 11 recollect. IE THE COURT: There was some fight as to how much 13 she was still smoking. 14 MR. NASSIF: Right. 15 THE COURT: I don't think there was any issue as IB to her having at one point in time smoked an awful lot. I 17 don't think that was an issue at all. IB MR. HARUEY: With respect to both witnesses 19 remarks as to her apparent passion for going after monBy, E0 which would be relevant to any secondary gain that there El might be in bringing this lawsuit. EE MR. CARR: That's not an issue that you can put S3 evidence in on, Counsel. You cannot get at somebody's 34 character tha way. That's character assassination. The 160 1 nsxt one -- 2 THE COURT: Regina Jasper. 3 HR. CARR : Page 6, line 16 to 25. On the subject 4 7, B, 9, 10 and 11 -- 6, 7, 8, 9, 10, and 11, all that 5 business about them buying a house. 6 THE COURT: Until where on 11? 7 HR. CARR: All of 11, page 12, line 1 and 2. B Okay. Over to page 12, line 2 is the best way to put it. 9 THE COURT: Okay. So 6, linB 16 throgh 12, linB 10 2? 11 MR. CARR: On page 6 over to pagB 12, line 1 and 12 2. 13 MR. NASSIF: Are you objecting to that as 14 irrelevant? 15 MR. CARR: Indeed we are. 16 flR. HARUEY: Our position, I think, would be Bill 17 Kemner has put his property damage, and the relative IB property damage in Sturgeon, or the unwillingness of a 19 contractor or anybody else to build in Sturgeon because of 20 the effect of the spill diluting the property values and 21 making it a less attractive place to live. 22 HBre's a person who moved into Sturgeon in April 23 of *79 immediately after the spill, while the clean-up was 24 still going on, and bought a place Just a block off the 161 1 railroad tracks on East Davis Street, having shopped around B and Fully aware of thE spill, and went in and sold her house 3 latBr in 19B3 For a substantial profit. She bought it in 4 *79 For 919,500 and sold it in 'B3 For $25,500, showing an 5 increase in property value, in the markBt value of her home. 6 In the very town whBre Bill KBmnar is claiming his property 7 is worth less. B MR. NASSIF: A portion of his property. S MR. CARR: I don't think it's probative oF 10 anything, thB fact that somebody bought a house or sold a 11 house does not reflect on the markBt value of Bill Kemner's IB pasture land. We haven't even put it in as a value For 13 subdividing, although that's one aspBCt of it. 14 MR. NAS5IF: Sura, you did, Rex. You put in 15 evidence that the Fact that somB contractor wanted to 16 develop it or something. 17 MR. CARR: Did not put on any evidence as to thB IB value oF that. We are not claiming value on the subdivided 19 property. 20 MR. NASSIF: But you are saying that a subdivider SI -- well, okay. You didn't put that an as your evidence of BE the property, however, you did bring that as a lost S3 opportunity. It was put into evidence. S4 THE COURT: I believe that's correct, 165 1 MR. NASSIF: Hera is an example of a situation S where an opportunity was vary good, despite being a block 3 From the railroad tracks. 4 THE COURT: I don't think it's probative. I think 5 wa've gone through this before, but regardless of whether we 6 have or not, there are so many touch stones you have to *( 7 handle as far as comparablBS Thera is nothing here that 8 makes this probative. In no way does it comply with 8 anything. 10 MR. HARUEY: Through page where? 11 i THE COURT: PagB 12, line 2. ie MR. HARUEY: I don't think you wanted to go that 13 far, do you, Mr. Carr? Starting on page B, line 5, that's 14 where the decision to buy a house and the property value 15 testimony ends. Beginning on page B w b get into thB 16 tBstimoy where you haven't objected to and we iBft out, , 17 where shB lived, where she went in Sturgeon. IB MR. CARR: Well, if you're using that for the 19 purpose of subsequent questions about health, that's 50 perfectly all right. 21 MR. HARUEY: That's exactly what it's used for. 22 THE COURT: There is somB stuff in here about 23 values on pagB 10, values of financing. 24 MR. HARUEY: We skip back into that. 163 1 THE CDURT: All right. Okay. Let's go to page 0 2 through line 8, and than we can read from line 9. 3 MR. CARR: On pagB B what line did you say? 4 THE COURT: Start on line 9. That's where they 5 marked the map so that shB can show where shB lives. Dn 6 the last line of that, start getting into property values 7 again. Line 25 would have to go out on page 9. On page 10, B all of page 10, all o pagB 11, and thB first two lines of S page 12 will all go out. 10 MR. CARR: To recap now, Judge. 11 THE COURT: Everything will go out except on pagB 12 B, line 9 through page 9, line 24. That's the only part 13 that doesn't deal with property value. 14 MR. CARR: Okay. 15 THE COURT: Any othBr objections? IB MR. CARR: Page IS, line 5 to 5. 17 MR. HARUEY: Our response would be -- This is a IB child who wouldn't be in a position to testify for herself, 19 just as the plaintiffs have testified. The plaintiffs' 20 parents have testified to the health of their children, this 21 woman ought to bB allowed to testify tD thB health of her 22 child, as something she would readily observe. The child is 53 unable to testify as to her own health, that's why the 24 plaintiffs testified to the health of their children. 164 X MR. CARR: This is not a doctor hsre that you're 2 asking thB question if they developed any health problem. 3 MR. HARUEY: Neither uiere the mothers of the 4 plaintiffs. 5 MR. CARR: Did you ask her whet problems she's 6 had. What problems -- something that could be that she 7 could diagnose. But none of our people diagnosed anything. a MR. HARUEY: Well, but they would state -- the 9 question you would pose would be almost identical What xo health problems have any of you had, Dr has your daughter li had, Mrs. Plaintiff, since the time of the spill, and they is would go on and expound to the problems. 13 MR. NASSIF: You also had thB mother compare their 14 health before Bnd after the spill. 15 MR. HARUEY: That's exactly what we did here. 16 MR. CARR: Correct me if I'm wrong, but hasn't the 17 Court stricken these questions like this in the past? 18 THE COURT: I have an all the othBr depositions. IS MR. CARR: All right. W e 'll stand by that, Judge. 20 I forget all the reasons we had now. \ 21 MR. NASSIF: Your Honor, I don't know if all -- 22 what the reasons wsrB when you struck these before, but I 23 don't recall right now if they were worded differently from 24 these questions or not. 165 1 THE COURT: I think they were pretty much the same. 5 Fall into a pretty consistent pattern. 3 MR. CARR: Your Honor, the Plaintiffs have 4 obviously been able to testify about their children to 5 questions identical to what these questions are. A mother E would know if her child has experienced health problems 7 simply from the fact that she would be the one taking the B child to the doctor. These Plaintiffs have talked 9 repeatedly, testifid repeatedly about taking their chilren 10 to doctors and what the doctors told them. 11 MR. HARUEY: Even in instances when, likB with 12 Timothy Bowen, when Carol Bowen testified about his health, 13 muscle aches and alleged pains, some of these children 14 testifid for themselves, but the mother would always be the 15 on to expound upon it, 16 THE COURT: Any further argument? 17 NR. CARR: No, Judge. IS THE COURT: It's out. Any other objections? 19 MR. CARR; Page 17, lines 1 to 17. I really don't 20 mind -- wall, it's got no relevance. It could have. W e 'll 21 Just object to 1 to 4, your Honor, 22 THE COURT: It will be the same on that. Any 23 other objections? 24 HR. CARR: Page 19, lines 4 to 25. And all of 166 1 page 20 and 1, dawn to 2 -- to line 22. 5 M R . HARUEY: Down through line 21 on page 20? 3 THE COURT: Yes. 22. 4 M R . CARR: 22. ! 5 M R . HARUEY: I'm sorry. 6 THE COURT: I know it's confusing. 7 MR. NAS5IF: Entire page 20 is struck, or is B objected to, all the way dawn to line 21 on page 21? 9 THE COURT: Right. 10 MR. HARUEY: Our position is the saniB, your Honor, 11 THE COURT: Okay. I 'll strike it. 12 MR. CARR: UJs won't read any cross. 13 THE CDURT: I'm starting on 2. 14 MR. HARUEY: We don't want to read any cross 15 either, your Honor. Ub won't read any of Mr. Axlerod 16 either. 17 THE COURT: What about Waaler? He starts on 23, IB lina 4. 19 MR. NASSIF: No. 20 MR. HARUEY: No. 21 THE COURT: Now do you have any abjection on the 22 parts that arB going to be read? 23 MR. HARUEY: No. 24 THE COURT: Okay, fine, 157 1 MR. CARR: I don't think there's any parts going s to he read. 3 MR. NASSIF: No, no. 4 THE COURT: Anything else that's left? 5 MR. HARUEY: You mean the deposition as a whole? 6 THE COURT: Yes, Right. 7 nR. HARUEY: Yes, the deposition will Bnd, I 0 guess-- 9 THE COURT: Kenneth Rail. 10 MR. CARR: Okay. Page 10, line 55, over to one 11 half of the line on 1 on page 11. I just want to strike out 12 that part I wouldn't recommend him to anybody, and let thB 13 answer stay, quote, he was there, but that's all. 14 THE COURT: Do you mind if I mark on your's? 15 MR. NASSIF: No, go ahead, Judge. IB MR. CARR: ThB question is how do you know he was 17 an average worker. Ulell, he was there, but that's all. IB MR. HARUEY: What's the grounds For your 19 objection? 50 MR. CARR: It's character assassination, uncalled 1 for whether he would or would not recommend him to anybody. 55 MR. HARUEY: The question is whether or not he's a 53 good worker, that's his assessment of his work ability. 54 MR. CARR: His answer was he was just an average 168 1 worker. e HR. HARUEY: How do you know that, I wouldn't 3 recommend him to anybody* That's characterization of his 4 answer. He's entitled to express it in those terms, whether s or not an employer would recommend an employee to somebody 6 else is certainly the manner in which they'd assess his work 7 ability. B THE COURT: I think I'll deny the objection. I S think that's proper. You still havB a service letter over 10 therB, so that even makes it more relevant, 11 MR. NASSIF: Good point, your Honor. IS MR. CARR: 12, lines 22 to 25, and then all oE -- 13 all down to page IB, line 21, actually the only thing 14 apparently my notes indicate that we *re not objecting to is 15 linB 22 on page 12, over to page 22, lines 1 to 20 on page 1, 16 IB. 17 THE COURT: I'm lost. Could you go through that IB one more time. , IS MR. HARUEY: You don't want that in there about f SO him stealing? SI MR. CARR: That's correct. The only thing that we SB don't object to. 33 THE COURT: In the rest of the deposition? E4 MR. CARR: Yes. 163 1 THE COURT: Is on page IB, lines 1 to EOT All a right, that sounds good to ms. 3 HR. NASSIF: Your Honor, Just so you can focus on 4 it, would you focus on line 16, page 13, where he talks 5 about his employment being terminated, asks him why. That 5 goes to his credibility. It goes to his believeability. 7 THE COURT: Page IB, line 13. B HR. NASSIF: Page 13, line 16, your Honor. 3 Beginning there with why he terminated his employment. 10 MR. CARRs That's a conviction without a trial, 11 Joseph. IE HR. NASSIF: H e 's giving a reason For why he 13 terminated his employment. 14 HR. CARR: tdell, it might be relevant if we 15 claimed that he quit because he was sick or tirBd or 16 couldn't do the work. Perhaps that, the only relevant thing 17 -- there's nothing relevant about it at all. IB THE COURT: UJe had a couple of instances of 19 offenses or potential offenses. Didn't we go over this one SO too with this guy in Court? 21 HR. HARUEY: I don't know. U)b had a bunch of them EE with the Uaughts. S3 HR. NASSIF: I think there was -- I think he was 24 askBd, 170 1 MR. CARR: There was a guy that was convicted of a something. 3 MR. HARUEY: Ed Uaught was convicted of something. 4 THE COURT: A couple of things, like one of them S spent a night in jail for something, I think I barred 6 everything that didn't result in a conviction. IF I 7 remember correctly. I think one of them spent a night in Q jail or something, I think this onB was in on it too on 9 testimony, or attempted testimony, 10 HR. HARUEY: W e 're not claiming that this is 11 impeachment by way of a felony or anything like that, but IS impeachment as to his tendency to have a character trait 13 towards truthfulness or honesty, and there's a prior bad act 14 herB. 19 UR. CARR: You think that's proper to do that? Do IE you really think that's proper to do that? That's the way 17 you're going to impeach somebody's credibility is to bring IS in the fact that an employer fired him for stealing? Not 19 likely, Nat likely. That isn't one of the approved methods SO of attacking one's credibility. SI UR. NASS1F: Well, not all of it discusses his E stealing. S3 THE CDURT: I hate to tell you, but your Xerox 24 machine is dead, the last few pages I can't read. 171 1 MR. CARR: Mine works. s THE COURT: From about 19 on'I cani't read a thing. 3 MR. CARR: 19 is discussing being fired. Then 4 about the families come in. The Uaught family comes in. i 5 ThBn the complaint about health problems. Did he ever B complain to you of headaches or stomach aches? Didn't 7 require any -- Ronald and Robert Uaught was threatening to B sue you because of emotional distress. Any other member of 9 thB family threaten to sue you for firing Ronald and Robert? 10 N o . 11 MR. NASSIF: Your Honor, you can cut the stealing, ie the stealing parts can come right now, and the fact that he 13 was terminated. You didn't have to say how did that come 14 about. Then go on to thB next pagB. IB MR. CARR: I don't think putting in that part 16 about he was terminated -- 17 THE COURT; What are you agreeing to? IB MR. CARR: That he was terminated. 19 MR. NASSIF: Line 16 through IB an page 13. 20 MR. CARR: There's no problem with that. e i THE COURT: 16 through IB is okay. 22 MR. NASSIF: Then you go over -- thBn you go over 23 to page 14 and it says, on line 13, your Honor, were you the 24 person that actually firBd him? Yeah. Okay. What happened 173 1 after you Fired him? That was it. And then therB's nothing a in there about stealing, 3 THE COURT: Any problem with that? 4 MR. CARR: You've got the Fact in that he was 5 eventually terminated, I don't think you need to put in, I 6 see no relevance that you were the person that actually 7 Fired him. 8 MR. NASSIF: W e 're not repeating it, because he 3 never said that he was the one that did it 10 MR. CARR: What's that got to do with anything? 11 MR. NASSIF: Because they all show up to talk to la him. I want to leavB that part in there as well. 13 MR. CARR: No. That's the only reason you want to 14 leave that in there. 15 MR. NASSIF: They threaten to sue the guy. 16 MR. CARR: UJhat issue in this case is that 17 probative on? Well, Five minutes have passed, and you IS haven't thought about anything. 19 MR. NASSIF: I know something about time, Five 30 minutes have not passed. Because I think before I stick my 51 Foot in my mouth, I don't intend to be criticized as opposed SS to some other people who don't think before they put their 33 foot in their mouth, Your Honor, I think it goes to this guy 34 has claimed he has had headaches and nausea, and I think the 173 1 fact that he has these employment problems can be and the B Fact that he Qot so irritated about being Fired that he got 3 his whole Family together to go out there is potentially -- 4 MR. CARR: Lee the record show that h e 's saying 5 this with one big grin on his Face. 6 HR. NASSIS: -- is relevant on the issue oF the 7 causes oF his nausea, his vomiting, and his headaches. I B mean he obviously got very upset about this thing, so upset 9 that he threatened to sue his Former employer. 10 HR. CARR: He didn't, his Family did. 11 MR . NASSIF: It was because he was so upset he IE couldn't even get the words out oF his mouth. 13 14 CDiscussion held oFF the record.) 15 16 MR. NA9SIF: It goes to the issue, your Honor, of 17 the nausea, the headaches, the other things that Dr. Carnow IB testiFied in terms oF Fatigue, depression. 19 THE CDURT: I don't think it really does. I'm E0 going to sustain the objection, and also noting again as I 21 did beFore, suing an employer in Missouri is diFFerent than BE suing an employer in Illinois, under that service letter S3 statute. I don't think that service letter statute -- I B4 don't think therB's anything probative in it. As to the 174 X other things about observations or potential observations, a we've gone through that a million times. 3 MR. HARUEY: If I may, Just to add to the 4 probative -- 5 THE COURT: Just one thing. What are we reading? 6 I know u s *re reading on pagB 13, line IB through IB. Thera 7 was something else that you didn't object to. B MR. CARR: Lines 1 to 20 on page IB is my notes. 3 THE COURT: Okay. All right. I had lost it. 10 MR. HARUEY: On thB issue that you Just ruled on, 11 on the probative nature of it. 12 THE COURT: And relevancy. 13 MR. HARUEY: Robert Ueught's trial testimony, and 14 Dr, Carnow's trial testimoy both indicated that Robert 15 Uaught's headaches and abdominal pain did arise after the 15 termination of this employment. Some of the Uaughts, I 17 believe it's Robert -- some of them have tremors -- IB THE COURT: ThBy've all got tremors. 19 MR. HARUEY: I guess they've alleged they have it, 20 that shows that this is the sort of thing that would have 21 some bearing on that. 22 THE COURT: I don't think so. All the S3 circumstances of that firing, if it had any marginal 24 probative v b Iub like that, the nature of it so outweigh, 175 1 there's Just no may I'm going to get it in. There are a few a parts of this that have not bean objected to. Do you have 3 any objections to any parts of that? 4 MR. HARUEY: I'm not sure if you've ruled on this 5 part or not, your Honor. There's several different subjects 6 that were dealt with here and one of them -- 7 THE COURT: I said the other subjects we had gone B though before. 9 MR. HARUEY: PagB IB, at the bottom where he 10 identifies -- 11 THE COURT: What page? IB MR. HARUEY: Page IB at the bottom, through pagB 13 17. This tiBS right in with the follow-up questions that 14 Mr. Carr did not object to on page 10, lines 1 through SO, I 15 believe. This is where Ronald Uaught came in, Filled out an 15 employment application, questionnaire. It's an exhibit and 17 the respansss that were taken on there are admissions IB against interest in this lawsuit. All the respansss were 19 there was nothing wrong with him. BO MR. CARR: I don't have any objection to that. B1 Did I object ta that? i BB THE COURT: Yes, I think you did. 23 MR. CARR: Let me look at that. H4 MR. HARUEY: It goes all the way over to page 10, 176 X line 1 through 20, 5 M R . CARR: X don't think there's anything wrong 3 with that. I don't know why ws objected to it, 4 MR. HARUEY: Okay. U e 'll read that part too. 5 THE COURT: Okay. Do you guys have any objection 6 to anything that's left? 7 MR. NASSIF: Are we all the way? Q THE COURT: lie're through Plaintiffs' abjections. 9 MR. HARUEY: Did you objBCt all the way tD the end 10 of the deposition? 11 MR. NASSIF: I thought he did, your Honor. 12 THE COURT: I thought he did too. 13 MR. CARR: I did. You're ahead of me. I'm trying 14 to catch up. On page 17 -- 15 THE COURT: lie're putting back in page 16, line 16 22, all of page 17, IB lines 1 through 9, and 14 through 20. 17 MR. CARR: How about that business that Robert IB Uaught, about he knows him. That should go in too, 19 shouldn't it? 20 MR. HARUEY: Yes. 21 MR. NASSIF: Yes. 22 THE CDURT: Yes. That probably ought to go in 23 too. 24 MR. CARR; Down to line 11 then goes out then. 177 1 THE COURT: Yb s , From 11 on. 2 MR. NASSIF: Okay, your Honor. Everything else 3 h e 's objected to, your Honor, are things that w e 've already 4 argued. Uie would Just ask you to incorporate our arguments. 5 THE COURT: So incorporated, Do you have any 6 other objections on anything that's left? 7 I1R. HARUEY: No. 0 THE COURT: Great. 9 10 CCourt adjourned.} 11 12 13 14 15 16 17 IB 19 20 21 22 23 24 178 1 STATE OF ILLINOIS ) E TWENTIETH JUDICIAL CIRCUIT 3 3 COUNTY OF ST. CLAIR 3 4 5 I, KATHLEEN UJATSON BRUNSNANN, one of the Official 6 Court Reporters, do hereby certify that the foregoing 7 transcript is a true and correct copy of said transcript. Q 9 DATED: January 3, 1986. 10 11 12 KATHLEEN WATSON BRUNSNANN, RPR, CSR 13 Official Court Reporter 14 15 15 17 1B 19 20 21 22 23 24 179 1 STATE OF ILLINOIS 1 2 TWENTIETH JUDICIAL CIRCUIT ) 3 COUNTY OF ST. CLAIR 1 4 5 I, RICHARD P. GOLDENHERSH, CIRCUIT JUDGE, do 6 hereby certify that the Foregoing transcript is a true and 7 correct copy of said transcript. B 9 DATED: January 3, 19BB. 10 11 12 13 14 15 IB 17 IB 19 20 21 22 23 24