Document QJEKvaZyx7qKpLpeVvYpYbN86

1 IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS 2 ST. CLAIR COUNTY 3 FRANCES E. KEMNER, et al. ) ) 4 Plaintiffs, ) ) 5 VS. ) NO: 80-L-970 ) 6 MONSANTO COMPANY, ) ) 7 Defendant. ) 8 9 10 REPORT OF PROCEEDINGS 11 Before the HON. RICHARD P. GOLDENHERSH 12 JURY TRIAL 13 April 11, 1985 14 15 APPEARANCES: 16 Mr. Rex Carr Mr. Jerome Seigfreid 17 On Behalf of the Plaintiffs; 18 Mr. John Musgrave Mr. Joseph Nassif 19 On Behalf of the Defendant. 20 21 22 23 Debra M. Musielak, CSR, CM 24 Official Court Reporter 1 1 INDEX 2 3 In Chambers Conference............................ 4 WITNESSES CALLED ON BEHALF OF THE PLAINTIFF: 5 1. DR. JAMES MIEURE (2-1102) 6 Cross Examination......... Clarification Examination.............. 7 Recross Examination.................... Clarification Examination.............. 8 Recross Examination.................... 9 2. GEORGE BRAUTIGAM (2-1102) 10 Cross Examination...................... Clarification Examination.............. 11 Recross Examination. . ................ 12 In Chambers Conference .......................... 13 3. PHOCION PARK (2-1102) Cross Examination...................... 14 15 16 17 18 19 20 21 22 23 24 2 5 47 59 65 65 70 74 77 78 80 1 EXHIBITS 2 Page Page Identified Admitted 3 4 EXHIBITS SUBMITTED ON BEHALF OF THE PLAINTIFF: 5 Plaintiff's Exhibit No.: 1267A (Blow-up of 1267). . . . 35 . . . 36 6 1287 (report) .............. 70 71 1288 (memo) ................ 82 . . 83 7 1289 (memo) ................ 85 . . . . . 86 1290 (memo) ................ 84 . . . . . 86 8 1291 (memo) ................ 84 . . . . . 86 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 BE IT REMEMBERED, that on the 11th day of April, 2 1985, the same being one of the regular judicial days of said 3 court, the above-styled cause came on regularly for hearing 4 before the HONORABLE RICHARD P. GOLDENHERSH, one of the 5 Judges at the St. Clair County Building, 10 Public Square, in 6 the City of Belleville, County of St. Clair, State of 7 Illinois. Whereupon the following proceedings were had: 8 COURT CONVENED: 9 (The following proceedings were had in Chambers, outside the 10 presence of the jury.) 11 MR. NASSIF: I wanted to tell you, Your Honor, that 12 we have found copies of Mr. Park's notes, handwritten notes 13 of the minutes, that we have produced to Mr. Carr. 14 THE COURT: Oh, good. 15 MR. NASSIF: The typewritten versions, and we -- 16 since you have ordered us to produce the minutes, we are 17 preparing a group of the notes for your review. We are going 18 to have them to you before noon. 19 THE COURT: All the notes? 20 MR. NASSIF: All the notes of all those minutes. 21 THE COURT: For in camera -- 22 MR. NASSIF: For in camera inspection, we will have 23 them to you before noon so you can look at them. They are 24 very brief. 2 1 THE COURT: Great. Could you -- which exhibit is 2 that? 3 MR, CARR: Parks is going to be put on the stand 4 this morning. 5 THE COURT: Where are the notes? 6 MR. NASSIF: I've got-- I got them this morning, he 7 found them last night. And I got them this morning, they are 8 being copied right now, I can have them up here sooner. 9 THE COURT: If he's going to be on this morning, I 10 definitely want them sooner, and then -- which exhibit is 11 that, are the minutes? 12 MR. NASSIF: They haven't all been introduced. 13 THE COURT: Why don't you have them copy the 14 minutes, too? 15 MR. NASSIF: Okay, so you have a copy of minutes 16 next to the notes? 17 THE COURT: Exactly. 18 MR. NASSIF: We will do that. 19 THE COURT: Try and get them up within an hour. 20 MR. NASSIF: I'll do that, I'll call back. 21 THE COURT: At the eleven o'clock break, I can look 22 at them. 23 MR. NASSIF: I wanted to let you know that right 24 away. 3 1 THE COURT: Wonderful, 2 MR. NASSIF: The other thing is, we have the 3 Suskind information. We are copying it. 4 THE COURT: Good. 5 MR. NASSIF: And -- did Shelia talk to you about -- 6 THE COURT: Yeah. 7 MR. NASSIF: What Suskind wants or University of 8 Cincinnati wants? 9 THE COURT: I'm not too clear on it either. Did 10 she talk to you about that? 11 MR. CARR: She wants to deliver the documents to us 12 in your presence. 13 THE COURT: Right. 14 MR. NASSIF: Okay. All right. 15 THE COURT: And then apparently Dr. Suskind wants 16 -- I will sign something saying that whatever was delivered 17 was delivered in my presence or something to that effect. 18 MR. NASSIF: Okay. We will put that together for 19 you then that should happen fairly soon. 20 THE COURT: All right. 21 MR. NASSIF: Okay, that's it. 22 (The following proceedings were had in open court.) 23 THE COURT: Good morning. 24 4 1 JMES-MimE 2 (being called as a witness on behalf of the Plaintiff under 3 Section 2-1102, having been previously sworn, having resumed 4 the witness stand, continued to testify as follows) 5 CROSS EXAMINATION 6 BY MR. REX CARR 7 Q. Dr. Kaley, at the close of business yesterday, we 8 were discussing -- 9 A. I think you mean Dr. Mieure. 10 Q. I'm sorry, I do have Kaley on my mind, don't I? I 11 don't know why, either. Dr. Mieure, at the close of business 12 yesterday, we were discussing the your view of what you 13 believe Monsanto was obligated to do, and if I understood you 14 correctly, it was your position that the ultimate use of the 15 product and the fact that it will be diluted before it gets 16 to the ultimate consumer, and that exposure might be reduced 17 thereby, was something that you believe Monsanto had the 18 right to consider and to make the determination that that 19 exposure was in your judgment not significant, then you 20 believe that it was Monsanto's right not to inform the EPA 21 that a chemical that you were producing and placing in 22 commerce had toxic substances of a nature that might cause 23 cancer, death, and serious disability, is that a correct 24 summation of your view, Dr. Mieure? 5 1 A. No, sir. 2 Q. Okay. Could you advise me of the respect in which 3 it is erroneous? 4 A. Well, for one instance you mentioned that I talked 5 about dilution of the material. I didn't talk anything about 6 dilution of the material. I don't know what you asked me 7 specifically if I knew whether some of the materials were 8 diluted or not, and I said no, I did not know that* 9 Q. Well, dilution has a great deal to do with whether 10 or not in your view or Monsanto's view any significance -- 11 A. I don't speak for Monsanto's view, sir, you asked 12 me what my view was. 13 Q. Dr. Mieure, you must -- if you do not accept the 14 definition that the government gives you, the government says 15 give relatively little weight to exposure, just consider that 16 once it gets into commerce that there will be an exposure, 17 that is what the law, not the regulation, but what the 18 Federal law states, isn't it, sir? 19 A. I don't believe so. 20 MR. MUSGRAVE: Just a moment, Dr. Mieure* 21 Q. You don't -- 22 MR. MUSGRAVE: Just a moment, Mr. Carr, please, I 23 would like my objection to be noted again today as a 24 continuing objection to continued cross examination to this 6 1 witness about what the law says or what his view is of the 2 law, and also continued objection to counsel's statements as 3 to what he believes or perceives the law to be is totally 4 improper, number one, and calling also upon this witness to 5 testify as an expert with regard to the law when that is a 6 question for the Court, 7 THE COURT: I will incorporate ray ruling from 8 yesterday. I'll note this is a continuing objection, I will 9 allow the question to go on as I feel it is proper, 10 MR, MUSGRAVE: Thank you, Your Honor. 11 MR. CARR: In as much as it has been noted a number 12 of times that it is a continuing objection, might counsel 13 refrain from interrupting and making that same objection 14 because it does, as he well knows, stop the continuity of the 15 cross examination and requires me to repeat the question, 16 requires the witness to have the question repeated and drags 17 this process out on forever, and counsel has asked in the 18 past to have a continuing objection, he's been granted a 19 continuing objection, but yet he continues to make the 20 objection. 21 MR. MUSGRAVE: I just want to make it clear that 22 today -- 23 THE COURT: This is the start of a new day, so I'll 24 allow it for now, but you understand it is a continuing 7 1 objection so you don't have to restate it, 2 HR, MUSGRAVE; Just want to be sure it's clear what 3 the objection is, 4 THE COURT: Fine, 5 Q, (by Mr, Carr) Dr. Mieurer did we not establish 6 yesterday that the act states that the mere fact the 7 implicated chemical is in commerce constitutes sufficient 8 evidence of exposure? Didn't we establish that yesterday? 9 Didn't you agree that's what the act states? 10 A. Nof sir, I have the act in front of me as you 11 provided, I don't see that in there at all. 12 Q. Well, would you look in the Monsanto Exhibit 880? 13 A, I'm looking in the exhibit that you provided. 14 Q. Look at Monsanto. 15 A. 1283. 16 Q. No, because I didn't give you but one section, I 17 just gave you the section. Look at the exhibit that Monsanto ie gave you which is the entire section that deals with what 19 constitutes substantial risk. I was asking you about that 20 yesterday. 21 A. Do you know what exhibit that is? 22 Q. Monsanto Exhibit 881 or Monsanto Exhibit 880, both 23 exhibits contain that. 881 is the part that was sent out to 24 the employees of Monsanto. 8 - 1 A. It's not here. 2 THE COURT: Gentlemen, could you approach the bench 3 for a minute, please? 4 (The following Side Bar conversation was had outside the 5 hearing of the jury.) 6 THE COURT: I have taken some pretty careful notes 7 on this, as I have on the rest of it, and I think your 8 contention that yesterday he did agree to that is an accurate 9 reflection. We have had too many situations where other -- 10 where a subject has been taken up and one conclusion has 11 finally been reached and then the conclusion is changed and 12 we have to go through the same routine again, not just on 13 this witness but on others. Under those circumstances, if i 14 you wish, I will allow you when a change like this has taken 15 place to pose the conclusion that was reached before as 16 something that he can assume. And proceed from there. 17 MR. CARR: All right. 18 THE COURT: Because I am frankly, I think that this 19 has happened too many times. It's gone too far, and when I 20 determine that a prior conclusion was reached, I allow you to 21 do that because I don't think this trial is long enough going 22 through it the first time without having to go through a 23 substantial section of it two or three times. And, I think 24 that you can properly assume those matters which have been 9 1 established in prior testimony after a considerable length of 2 interrogation. Now, that's at your option. If you don't 3 want to do it you don't have to, but I will allow you to do 4 it if you wish to do so. 5 MR. MUSGRAVE: For the record, I simply state that 6 I disagree, that this is a change in any kind of witness' 7 testimony, and I disagree that it would be proper for it to 8 be assumed as a hypothetical. 9 THE COURT: Fine, so noted. 10 (The following proceedings were had in open court.) 11 Q. And do you have Monsanto Exhibit 880, counsel? 12 MR. MUSGRAVE: Do I have it? 13 MR. CARR: Yes, because apparently the witness 14 doesn't have it. 15 MR. MUSGRAVE: It's up there. 16 THE COURT: Are those clipped together for a 17 purpose? 18 THE CLERK: No, they were just keeping them 19 separate from the Plaintiff's. 20 MR. MUSGRAVE: I beg to differ, I apologize, 21 apparently she had took them to copy them, they are here. 22 Q. (by Mr. Carr) Dr. Mieure, I'm sure that you have 23 had an education that would permit you to retain from 24 yesterday to today what we discussed yesterday, you do have 10 X that kind of education, don't you, Dr. Mieure? 2 A. I believe so. 3 Q. And just two seconds ago or ten seconds ago, you 4 said that we had not discussed this, and you had not agreed 5 to that, you remember that, sir? 6 A. X said I had not agreed that that was part of the 7 act. This is the act, sir. 8 Q. And you are telling me now that you don't believe 9 that Monsanto Exhibit 880 states what the EPA has told you 10 what the law is? 11 A. . Sir, you asked me a few minutes ago if I agreed 12 that the act itself talked about certain parameters, and you 13 gave me a copy of the act, I read from that, I read Section 14 8E from the act, it doesn't say anything about that. That's 15 what you asked me. 16 Q. Dr. Mieure, would you look at Exhibit 880, 881, 17 that Mr. Musgrave inquired of you? 18 A. I have 881 in front of me. 19 Q* Turn to the second to the last page Exhibit 881 and 20 do you recognize that as the notice that that was in the 21 Federal Register made by the EPA which discussed the act in 22 question, the Toxic Substances Control Act and which you were 23 advised of and others where advised of at Monsanto? 24 A. This is an explanatory document of part of the act, 11 X yes. 2 Q. You understand it's part of the act, don't you, 3 sir? 4 A. I don't believe it's part of the act. 5 Q. You just got through saying it was part of the act? 6 A, I said it's an explanatory note of the act. 7 Q. I'm sorry? And you said and part of the act is 8 exactly what you said, Dr. Mieure? 9 A. Maybe I'm misinformed, but I am under the 10 impression that Congress passes acts, EPA then would write 11 regulations around the act. 12 Q. Administers the acts, tells you what you as a 13 company must do, how you are to interpret this particular 14 act, tells you what rules you, isn't that correct, sir? 15 A. Yes. 16 Q. Nov;, did we not establish yesterday, that you are 17 -- that the regulations and the act require that you give 18 little weight to exposure and that the mere fact the chemical 19 is in commerce constitutes sufficient evidence of exposure? 20 A. No, sir, I did not agree to that. 21 Q. I want you to assume, Dr. Mieure, so that we don't 22 have to spend any more time on this that you did agree that 23 document 881 in discussing what constitutes substantial 24 risks, that you agreed yesterday evening that it did state 12 1 that in that second column on the second to last page, will 2 you assume that, Dr. Mieure? 3 MR. MUSGRAVE: State what you are asking him to 4 assume that certain words are in the regulation, I have no 5 objection to that, you asking him to assume certain 6 conclusions? 7 MR. CARR: Your Honor, he can direct the witness to 8 assume that which I stated to him. 9 MR. MUSGRAVE: I object, it assumes facts not in 10 evidence. 11 THE COURT: Overruled. 12 Q. Dr. Mieure, you understand that I am not required 13 now to continue to cross examine you on this point because 14 the Court has instructed you to assume that you did say what 15 I said, what X just said that you said yesterday. Will you 16 do that now, will you assume that? 17 A. You said I have no choice. 18 Q. That's correct. 19 A. Okay. 20 Q. Now, assuming that to be the case. Dr. Mieure, 21 don't you agree that Monsanto thereby must not give any 22 weight to whether there will or will not be any exposure to 23 the chemical when it considers whether or not it's to notify 24 the EPA? 13 n 1 A. No, sir. 2 Q. You don't agree to that? 3 A. No, sir. 4 Q. Doctor, doyou believe, then, that Monsanto is 5 above the law and above what the EPA says is the law? 6 A. No, sir. 7 Q. Then you do believe that Monsanto is required to 8 obey the law as administered by the EPA? 9 A. Certainly. 10 Q. And if 1 tell you to assume that the law says that, 11 I take it you are still not willing to agree that Monsanto 12 must obey that law? 13 A. You've twisted the law so much I can't make any 14 sense out of it. 15 Q. And I take it that that is Monsanto's view that the 16 law as I've stated it and as the Court has told you to assume 17 that you said yesterday, has been twisted so much that you 18 can't make sense out of it? 19 A. You know well that I don't speak for Monsanto, I'm 20 speaking for myself. 21 Q. No, at this point in time whether you realize it or 22 not, you are speaking for Monsanto, you are their employee, 23 you are their agent, you've discussed this matter at length 24 with their attornies, you are here under oath, and you are at 14 1 this point in time, whether you realize it or not, you are 2 speaking for Monsanto within the area of your authority. 3 MR. MUSGRAVE: I object to that. 4 Q. Your authority -- 5 MR. MUSGRAVE; Just a moment, I object to counsel's 6 speech, it is not a question, it is improper statement and 7 this witness is not here speaking on behalf of Monsanto on 3 legal matters and legal interpretations and the witness has 9 so testified, it's improper, I object to it and I request the 1 jury be instructed to disregard the speech by Mr. Carr. 11 THE COURT; Overruled, it is proper and- it is a 12 direct characterization of this witness' position on the 13 matters within his authority. Overruled. 14 Q. (by Mr. Carr) Dr. Mieure, you do understand that 15 Mr. Musgrave is the one that asked you about Exhibit 881, you 16 understand that, don't you, sir? i17 A. Yes, that's a Defendant's Exhibit. 18 Q. And you do understand that he is at this point in 19 time the absolute representative of Monsanto in the 20 courtroom, you understand that? 21 A. If you say so. 22 Q. Don't you understand that Mr. Musgrave is 23 representing Monsanto in this case? 24 A. Certainly. 15 1 MR, MUSGRAVE: Object, irrelevant and immaterial, 2 THE COURT: Overruled, 3 Q, Don't you understand that when he asks you 4 questions about a particular exhibit he's asking you in 5 behalf of Monsanto? 6 A, Yes, 7 Q, And don't you know that he's representing to this 8 Court and to this jury that you will testify to the truth 9 about this exhibit, you do know that, don't you? 10 A. As best I know it, yes, sir, 11 Q, Now, are you saying that it is so twisted now, that 12 you sitting on this witness stand as the witness at this 13 point in time, that you don't understand it to mean that you 14 are to disregard the question of exposure once it goes into 15 evidence, once it goes into commerce, is that what you are 16 saying, Dr, Mieure? 17 A. I'm saying you've twisted it around so much that 18 isn't -- you've changed the meaning of the words, 19 Q, Let me give the words exactly as it says in 20 Monsanto Exhibit 881, "The mere fact the implicated chemical 21 is in commerce," you understand that I didn't twist that did 22 I, sir? "The mere fact that the implicated chemical is in 23 commerce," you know exactly what that means, once it leaves 24 the Monsanto plant it's in commerce, you understand that 16 1 don't you, sir? 2 A. Yes, sir. 3 Q. The next sentence is, "Constitutes sufficient 4 evidence of exposure." Now, you understand what the word 5 constitutes means, don't you, sir? 6 A. Yes, I believe so. 7 Q. It means it is. And, sufficient, that means 8 enough, you don't need any more, sufficient is all you need, 9 correct, sir? You've got all you need, isn't that right, 10 sir? 11 A. Sufficient, yes. 12 Q. And you know what the word evidence means, means 13 proof of something? 14 A. Uh-huh. 15 Q. And you know what exposure means, that means that 16 people have been exposed to the -- people have come in i 17 contact with it, you understand that, what that means? 18 A. I understand the meaning of the word exposure. 19 Q. Now, you understand the meaning of all those words, 20 don't you, sir? 21 A. Yes, sir* 22 Q. And you understand and have I twisted in any way 23 the meaning of that phrase, sir? 24 A. Not yet. 17 1 Q. And it means, does it not, that the fact once it 2 leaves the plant that is sufficient evidence that people are 3 going to be exposed to it? 4 A. (Pause) that's what that little sentence means, 5 that little clause, that little phrase* 6 Q* Very good* Now, Dr. Mieure, we understand then 7 that once it leaves the plant you don't worry about whether 8 there will be or will not be exposure because the law 9 understands that the tank car might break down in Sturgeon, 10 it might not get there? 11 A* That isn't what those words say* 12 Q. Dr. Hieure, once it leaves the plant it's in 13 commerce, isn't it? 14 A* What is it? 15 Q. The implicated chemical, exactly what the word 16 says? 17 A. Where does it say implicated chemical? 18 Q. Would you read it, Dr. Mieure, do I have to go 19 through it again? I just read it, implicated chemical, exact 20 words of that? 21 A. Okay, yes, sir. 22 Q. Once it leaves the plant, you've got to assume that 23 people will be exposed to it? 24 A. Uh-huh. 18 1 Q. ` Isn't that what it says? 2 A. Once the chemical is implicated, 3 Q. Once the chemical is implicated, no, it says the 4 implicated chemical, the chemical we are talking about, the 5 chemical that may cause cancer or death or other adverse 6 serious health effects, you understand that's the meaning of 7 that? 8 A; But it has to be implicated, 9 Q, Dr. Mieure, do you understand that, sir? 10 A, Yes, I understand it, sir, it has to be implicated 11 before any of this applies. It has to be implicated. 12 Q. Has to be the chemical that you are talking about 13 that has the substance in it that can cause cancer, death, or 14 serious health effects, isn't that correct,, sir? 15 A. Doesn't say that here. 16 Q. Dr, Mieure -- 17 A. Says the implicated chemical. 18 Q, And what do you understand that they are talking 19 about when they say the implicated chemical? 20 A. Talking about a chemical that would exhibit certain 21 health effects. 22 Q. Yes, exactly what it says. Now, TCDD does exhibit 23 certain health effects, we agreed to that yesterday, didn't 24 we, sir? 19 1 A. Certain ones, yes 2 Q. And among those are cancer and serious bad effects, 3 correct, sir? 4 A. I don't know that. 5 Q. Didn't you agree yesterday that those have been 6 attributed to TCDD? 7 A. No, sir 8 Q. Your Honor, will you direct the witness to assume 9 that he did agree yesterday that those were things that had 10 been laid? 11 HR MUSGRAVE; I object to that, that's totally 12 improper, that's not what he agreed to Hr. Carr, you examined 13 him about whether he had seen newspaper articles about a 14 controversy. Now you are asking him whether he agrees, you 15 are not asking him what he read in the newspaper and was 16 aware of controversies, he did not testify yesterday he 17 agreed with you, he testified he had seen newspaper -- 18 Q. I will exceed to that. 19 MR. MUSGRAVE: Wish you will. 20 Q. I want you to assume that there is in this case 21 evidence of toxicologists and of doctors, that implicate TCDD 22 in causing cancer, in causing neuropathies, in causing 23 neuro-psychiatric disorders. One moment, I have a blow-up of 24 the chart in question? That the toxic effects have been 20 1 described as Chloracne, porphyria cutanea tarda, 2 hyperpigmentation and hirsutism, liver damage, elevated serum 3 hepatic enzyme levels, disorders of fat metabolism, disorders 4 of carbohydrate metabolism, cardio-vascular disorder, urinary 5 tract disorder, respiratory disorders, pancreatic disorders, 6 polyneuropathies, sensory impairments, sight, hearing, smell, 7 taste, neurasthenic or depressive syndrome, and in addition 8 to that, cancer. I want you to assume that those things are 9 true, will you do that, sir? 10 A. If the Judge so instructs. 11 THE COURT: You must assume those, it's proper put 12 to you to you assume. 13 A. I beg your pardon. 14 THE COURT: It's properly put to you to assume, you 15 have to assume those. 16 Q. Would you agree that that's included in the health 17 effects that implicate the chemical? 18 A. Now would -- excuse me. 19 Q. Would you agree that that substance in a chemical 20 is within the definition of implicated chemical? 21 A. No, sir. 22 Q. And, Dr. Mieure, are you assuming that the TCDD 23 causes those things or can cause those things? 24 A. You told me -- you and the Judge told me to assume 21 1 that 2 Q. Are you assuming that in your answer right now? 3 A* Yes, sir* 4 Q. And, we do know that it's in 2,4 dichlorophenol, we 5 know that, don't we, sir? 6 A, I don't know that it's in there now. 7 Q. Didn't we just establish, assume that it's been 8 established in this case that TCDD at certain levels up to 9 480 parts per billion is in 2,4-dichlorophenol, and it's in 10 Santophen and in orthochlorophenol, would you assume that, 11 please? 12 " MR. MUSGRAVE: Object, no evidence of that, and 13 again, he's asking a question assuming that that level or 14 levels are in all of those all products manufactured by 15 Monsanto, and that is totally contrary to the evidence. 16 THE COURT: Overruled. The way the assumption was 17 phrased, it's a proper assumption. 18 Q. Now, assuming that, Dr. Mieure, do you now agree 19 that the chemical was implicated? 20 A. No, sir. 21 Q. Are you assuming now that TCDD's and 2,3,7,8 are in 22 the chemicals? Are you assuming that? 23 A. I was instructed to assume that. 24 Q. Are you doing it? 22 1 A. Yes, sir. 2 Q. Are you assuming that it will cause those health 3 effects, including cancer, that I've told you to assume? 4 A. Yes, sir. 5 Q. And are you also assuming that it's going to leave 6 the plant? 7 A. Yes, sir. 8 Q. Now, is there anything else that you need to assume 9 before you will decide that you don't need to consider r 10 whether or not there is going to be exposure? 11 A. No, sir. 12 Q. Then, we have laid the complete foundation for that 13 which eliminates the need for discussing exposure, correct, 14 sir? 15 A. Then you have laid -- 16 Q. All of the things are present and you now disregard 17 exposure because what we just -- 18 A. No, sir. 19 Q. What we have just been reading says we does regard 20 it? 21 A. No, sir. 22 Q. What have we left out? 23 A. You said all the elements would be there to make 24 the determination. 23 1 Q. Haven't we got the elements? 2 A, No, sir. 3 Q. Got it in the chemical, have we not? 4 A. You have what in the chemical? TCDD. 5 MR. CARR: Would you direct the witness to quit 6 this fencing, because we could take forever if I have to 7 re-establish everything with the witness, he knows exactly 8 what I mean. 9 THE COURT: Why don't you rephrase the question 10 with all the points established. 11 Q. Assume, if you will, that the 2,3,7,8-TCDD is in 12 the chemical that's being manufactured, one or more of the 13 chemicals being manufactured by Monsanto, chlorinated 14 phenols. Assume, if you will, that the 2,3,7,8-TCDD has the 15 health effect, the toxic effect in man, including cancer, 16 that I've asked you to assume; and assume that it's going to 17 leave the plant. Now, is there anything else that we need to 18 show before that can be considered to be in, that it will 19 have exposure to humans? 20 A. That it will have exposure to humans, yes, sir. 21 Q. What else? 22 A. You would need to show, as it says in the documents 23 that you've asked me to look at, you would need to show that 24 the chemical was strongly implicated and that hasn't been 24 X shown the chemical was shipped, the chemical in question 2 here. 3 Q, Dr. Mieure, I'm asking you to assume, and if you 4 will please, Your Honor, direct the witness that he is now 5 backing off of the assumption, because I've asked you to 6 assume that it causes those things. 7 A. You said -- ' 8 Q. That there is evidence that it causes those 9 things. 10 A. That what causes those things that the TCDD or -- 11 MR. CARR: Your Honor, I'm -- 12 THE COURT: We are not going to go through this 13 again, that assumption was clearly stated and you have been 14 required by me, you checked it with me for clarification, you 15 have to take the assumption that's there; I think Mr. Carr's 16 characterizations are true, you are backing off of it, you 17 are ordered to take it as assumed. Mow, Mr. Carr, will you 18 proceed. 19 MR. MUSGRAVE: May my objection be shown on the 20 record, Your Honor, to the Court's order. The question 21 hypothesizes certain facts, and I previously object to the 22 hypothesizing of those. But does not hypothesize the fact 23 obviously is necessary for this witness to answer the 24 question. Mr. Carr is not permitting him to so state the 25 1 necessary elements that he needs, and I don't see anything 2 wrong with the witness' answer. I object -- 3 THE COURT: I completely disagree. This question 4 was the result of the witness saying what element he needed. 5 I think your objection is totally incorrect. It's overruled. 6 MR. MUS6RAVE: That's fine. Make my record. 7 THE COURT: Mr. Carr, you may proceed. 8 Q. (by Mr. Carr) Assuming all those things, now, Dr. 9 Mieure, is there anything else that needs to be considered 10 before you will agree that there is exposure within the 11 meaning of the document that we have been discussing? 12 A. Yes, sir. 13 Q. And what else is that? 14 A. Some evidence that the chlorophenol product is 15 strongly implicated in health effects. 16 MR. CARR: Your Honor, would you direct the witness 17 that he is -- 18 A. That's what the language is right here. 19 THE COURT: You have that -- you have been ordered 20 to assume the implication of health effects by the first 21 assumption. 22 A. Of dioxin. 23 THE COURT: Of dioxin. 24 A. Yes, I assumed that. 26 1 THE COURT: You are ordered to assume that 2 A. Yes, I did assume that, Your Honor. 3 THE COURT: Mr. Carr, proceed. 4 A. I assumed that throughout. 5 Q. Anything else that you will need to agree before 6 there is exposure? 7 A. Yes, sir. 8 Q. And what is that? 9 A. The evidence of a health effect from the 10 chlorophenol product. 11 MR. CARR: Your Honor, I hesitate to ask you to 12 hold the witness in contempt, but I think he is very nearly 13 contemptuous? 14 A. I'm reading the words right from here. 15 THE COURT: Gentlemen, could you approach the bench 16 for a minute? 17 18 (The following Side Bar conversation was had outside the 19 hearing of the jury.) 20 THE COURT: We are going to take a five minute 21 recess at which point I want you to explain to this witness 22 that involved in one of the assumptions gave in the middle 23 was the presence of TCDD's in the three products mentioned 24 Santophen, chlorophenol, and 2,4-di. And if he keeps playing 27 1 this game I may hold him in contempt. 2 MR. MUSGRAVE: Are you going to order that he also 3 assume that the level may be implicated in any particular 4 shipment also constitutes under the Statute, under the policy 5 or the regulations written that the EPA promulgated under the 6 Statute that he must assume that the levels there meet the 7 requirement of what constitutes a substantial hazard, Your 8 Honor? 9 THE COURT: That question has not be posed.' 10 MR. MUSGRAVE: That's just exactly what -- 11 THE COURT: Just wait a second, you asked me a 12 question, I'm answering. It has not been posed, I have not 13 ruled. I don't want to make any advisory types of ruling. 14 That question has not been posed to me, not before me. I'm 15 telling you that he has to assume that the elements that have 16 been properly posed to him as being assumed and he had better 17 do that, that's what -- 18 MR. MUSGRAVE: I will so instruct him, Your Honor, 19 but -- 20 THE COURT: I'd appreciate it if you would, because 21 I don't want him to get himself into trouble. 22 MR. MUSGRAVE: Let me make it clear what the Court 23 is doing by assuming this is requiring him to assume that a 24 particular shipment at the particular level, was what Mr. 28 1 Carr obviously is doing, is trying to get him to interpret 2 the law with regard to a particular shipment and what Your 3 Honor is requiring him to assume is that a particular level 4 in a particular shipment of orthochlorophenol constitutes 5 under the policies or regulations, whatever they be enacted 6 by the EPA under the Statutes constitutes what is defined as 7 a substantial hazard to health or death. And, that's where 8 the hang-up is here? 9 THE COURT: What -- 10 MR. MUSGRAVE: Notification of that. 11 THE COURT: What I am brdering him to assume is 12 those factors which have been included by prior testimony 13 after the long process of cross examination under 1102 and 14 properly concluded and then have been retracted, renigged, 15 regressed from after a break. And, I am tired of that and 16 it's not going to happen again. 17 MR. MUSGRAVE: I agree. 18 THE COURT: That is what I'm doing. Whether it 19 leads to as far as you have posed it is not before me, hasn't 20 been posed to me. If and when it is, I will deal with it at 21 that time. Okay. 22 MR. MUSGRAVE: May I just have one clarification 23 what is it you want me tell him that he must assume. 24 THE COURT: The last point that was the hang-up was 29 1 that there is anything in those products that was so 2 implicated, and he was ordered to assume that TCDD is in the 3 Santophen, 2,4-di, and the OCP, and that is the last point 4 that he has retracted on or renigged on, and as far as I'm 5 concerned it's also the last straw, 6 HR. MUSGRAVE: Let me be sure, I hate to keep 7 belaboring this, but, he assumed there was dioxin in there, 8 he took that. 9 THE COURT: No, he did not, he did not take it, 10 MR. CARR: Just got through saying that's not the 11 chemical, 12 THE COURT: Nov;, he's turning around and not taking 13 it. That is the problem. You put your finger on it. He did 14 assume it, he did acknowledge that he was ordered to assume 15 that because the assumption was properly posed to him, now 16 he's turning around and not taking it. I want you to advise 17 him, you are acting as his attorney, you understand the 18 situation as far as contempt and potential contempt. I think 19 it's only fair to him that we take a few minutes and you so 20 advise him, and I will grant you the opportunity to do it at 21 this time. 22 MR. MUSGRAVE: I should advise him that he must 23 assume -- 24 THE COURT: Those matters that are properly -- 30 1 MR. CARR: What the Court tells him to assume. 2 THE COURT: And have been posed to him to assume, 3 and the last one of which he is reniggingontheassumption 4 is that TCDD's which have been so implicatedin this are in 5 those three products, that was the last point of controversy. 6 THE COURT: Okay. 7 (The following proceedings were had in open court.) 8 THE COURT: Ladies and gentlemen, we are going to 9 take about a five minute recess. I would remind you, this 10 would go for any other breaks that we will take during the 11 day, that you are not to discuss this matter among 12 yourselves, with anyone outside the jury panel, or as of yet 13 form any opinions or conclusions about the matters on trial. 14 We will be in a very short recess. 15 (Following a recess, these proceedings were had in open 16 court.) 17 MR. MUSGRAVE: May we approach the bench? 18 THE COURT: Sure. 19 (The following Side Bar conversation was had outside the 20 hearing of the jury.) 21 MR. MUSGRAVE: Your Honor, I just want the record 22 to reflect that I have talked with the witness. .23 THE COURT: Good. 24 MR. MUSGRAVE: This witness is not a lawyer. 31 1 THE COURT; Right. 2 MR. MUSGRAVE; In talking with the witness and 3 telling him what the Court is requiring that he assume, he 4 relates to me he has no problem assuming those things. 5 THE COURT; Good. 6 MR. MUSGRAVE: The problem he has, I think it's 7 important that I let the Court be advised of this, is that in 8 his understanding in his own mind of those requirements, that 9 the first thing that must be determined is whether as the 10 Statute indicates, whether the substance or mixture presents 11 a substantial risk of injury, the substance or mixture in 12 this instance is the product that may be contaminated or have 13 impurities in it of TCDD, and if he is asked to assume that 14 the chlorophenol or the the 2,4-dichlorophenol, 15 parachlorophenol has been determined to be a substance or 16 mixture that presents a substantial risk of injury, then he 17 has no problem once those assumptions are made, but Mr. -- 18 THE COURT; You are leaving out something, because 19 my understanding of the assumptions he's been ordered to make 20 so far is that because of the inclusion of the TCDD's which 21 have been implicated as far as those other health matters, 22 which is also something he has got to assume. 23 MR. MUSGRAVE; When he hears that question, he's 24 assuming that you are only talking about TCDD as though you 32 1 were shipping a tank car of TCDD 2 THE COURT: Did you clear that up in his mind? 3 MR. MUSGRAVE: Yes. 4 THE COURT: Good. 5 MR. MUSGRAVE: He's told me that's where he's 6 answering the question the way he is, because he's only been 7 asked to assume that TCDD is implicated chemical. The 8 problem is it is not a shipment of TCDD, shipment of ,9 orthochlorophenol substance or mixture. You have to look at 10 that substance -- 11 ' THE COURT: Does he understand now it's based on 12 what's included in any of the three chemicals and not 13 necessarily the matrix itself that he's looking at? 14 MR. MUSGRAVE: He understands that the Statute 15 makes him look at the product whatever mixture or chemical 16 is, and if that mixture or that chemical, if it's -- for 17 instance, if the chlorophenol crude, one must look at that 18 and whatever is in it to determine -- 19 THE COURT: That's the point and since -- 20 MR. MUSGRAVE: Is an implicated product. 21 THE COURT: The focus is on TCDD which has been 22 found in the chemical. The chemical itself to use the terms 23 of those other chemists is the matrix, and what the focus is, 24 the contaminant of TCDD in them, does he understand that? 33 1 MR. MUSGRAVE; I don't think he understandsr his 2 understanding is that you look at the chemical, the mixture. 3 THE COURT: Does he understand that those 4 assumptions deal with what that contaminant in those -- 5 MR. MUSGRAVE: He understands assumptions deal with 6 the contaminant. What he doesn't understand is his view of 7 this regulation which says you look at the chemical, the 8 chemical in this case. 9 THE COURT: Have you explained that he has to go on 10 the basis of those assumptions and not on his view as far as 11 answering those questions to which the assumptions are 12 properly imposed? 13 MR. MUSGRAVE: I have. 14 THE COURT: Good. 15 MR. MUSGRAVE: If I may, Your Honor, the assumption 16 is of groundwork for his opinion, which I think is improper, 17 but the Court has instructed him to give his opinion. 18 THE COURT: I have. 19 MR. MUSGRAVE: In giving his opinion when he makes 20 those subjects as he understands and as he reads this, that's 21 why he answers as he does, that's what I'm trying to explain 22 to the Court. 23 THE COURT: The problem is -- the problem is he has 24 to give his opinion based on those assumptions, and I want to 34 1 make sure in my own mind that you have clearly instructed him 2 that regardless of his opinion on those other things, he has 3 to answer the question posed incorporating in his answer as 4 the question incorporates the assumptions which have properly 5 been posed to him. Does he understand that? 6 MR. MDSGRAVEs He does. He just has an opinion as 7 to what this means. 8 THE COURT: He's entitled to have an opinion on 9 anything he wants, he's an American citizen. He has to 10 answer questions properly posed in this courtroom, based on 11 certain assumptions regardless of his opinion. 12 MR. MUSGRAVE: And I believe he is, I believe the 13 record reflects that. 14 THE COURT: Well, I disagree, that's why I gave him 15 the opportunity to very good legal counsel before he gets 16 himself into trouble. 17 MR. MUSGRAVE: Okay. 18 (The following proceedings were had in open court.) 19 MR. CARR: Your Honor, I'll offer into evidence 20 1267 A, which is a blow-up of 1267, which has been previously 21 admitted into evidence. 22 MR. MUSGRAVE: May I see it? 23 THE COURT: Incorporate the same objections. 24 MR. MUSGRAVE; Yes, whatever made previously. 35 1 THE COURT: Fine, so ordered. Admitted over 2 objection. 3 Q. (by Mr. Carr) Doctor, you recognize 1267 A as 4 being that list of toxic effects of 2,3,7,8-TCDD in man that 5 I have read off to you earlier before we had the recess? 6 A. Yes, I do. 7 Q. And I've included in the question, along with those 8 effects, I've asked you also to assume that TCDD has been 9 implicated in causing cancer? 10 A. You've asked me to assume that, yes, sir. 11 Q. Now, Doctor, assuming if you will that 2,3,7,8-TCDD 12 has had instances, evidence, testimony in this case and 13 evidence of those health effects including cancer, and that 14 2.3.7.8- TCDD is in some of the 2,4-dichlorophenol that's 15 being shipped out, not all, that 2,3,7,8-TCDD is in some of 16 the Santophen being shipped out, and not all, and that 17 2.3.7.8- TCDD is in some of the orthochlorophenol-crude being 18 shipped out, but not all. Do you now agree that that 19 chemical containing the 2,3,7,8-TCDD is a chemical that could 20 be considered in commerce? 21 MR. MUSGRAVE: May I ask a question, Your Honor, 22 just to clarify this? I'm sorry to interrupt, but are you 23 asking, him, Mr. Carr, to assume, use the word implicated, 24 are you asking him to assume that the particular chemical you 36 1 are talking about at whatever particular level you are 2 talking about has been determined to be implicated chemical 3 as that term is used in the regulations or policy statement, 4 Defendant's Exhibit 880? 5 MR. CARR: Counsel, we have gone over this before, 6 I don't intend to -- 7 MR. MUSGRAVE: You are asking him to interpret the 8 law? 9 MR. CARR: I think the Court has ruled on this, X 10 just simply don't feel like going into long argument. 11 THE COURT: I think the question is proper as 12 posed. 13 MR. MUSGRAVE: X object to it as being vague and 14 indefinite and an improper hypothetical. 15 THE COURT: Objection is overruled, Dr. Mieure, 16 please answer the question. 17 A. I believe the question is that chemical in 18 commerce. 19 Q. Yes. 20 A. If the chemical has been shipped, yes, it's in 21 commerce 22 Q. And would you then agree that if that chemical has 23 in it those things that I've asked you to assume that's in 24 it, and that those things that are in that chemical can 37 1 cause, and there is evidence that it does cause those health 2 effects that I've related to you, do you agree that you, that 3 you do not have to give any notice and that that constitutes 4 sufficient evidence of exposure? 5 A. Am I to assume that the chemical itself is an 6 implicated chemical, sir? 7 MR. CARR: Your Honor, would you direct the witness 8 to answer the question? 9 A. That chlorinated is -- 10 MR. CARR: I've gave him the hypothetical. 11 THE COURT: You have to answer the question as 12 posed. I think the question is clear and complete, you have 13 to answer the question. 14 A. If I have to assume that the product is implicated 15 chemical, then yes. 16 Q. Then -- and Doctor, you do understand and you do 17 know that Monsanto, at least to your knowledge, Monsanto has 18 never advised the EPA that any of the chemicals that it ships 19 out has 2,3,7,8-TCDD in it, you do understand that, you know 20 that, don't you, sir? 21 A. No, I testified that I don't know whether we have 22 or not. 23 Q. Well, assume that to this date there is no record 24 and we have had everything produced to us that there is to be 38 1 produced, I assume, and there is no record that the EPA has 2 ever been notified that any of the chemicals being shipped 3 out into commerce contains 2,3,7,8-TCDD, assume that to be 4 the case* Nov;, Doctor, you do understand that under those 5 circumstances, you do agree, do you not, that it is the EPA 6 that should make the final determination as to vzhether or not 7 that product should go into commerce and not Monsanto? 8 A. If I make all those assumptions -- 9 Q. Yes* 10 A. Yes, 11 Q. And you do understand that simply when Monsanto 12 notifies the EPA take this chemical that's going out contains 13 a certain level of the implicated chemical, that is the 14 2,3,7,8-TCDD, you do understand, don't you, Dr. Mieure, that 15 the EPA won't automatically say don't ship that chemical, 16 that they will look at it and determine whether or not in 17 their judgment, there is an ultimate health effect upon the 18 population, that there is a real danger to the population, 19 you do understand that is correct, don'tyou, sir? 20 MR. MUSGRAVE; Object to counsel testifying as to 21 what EPA does or doesn't do, assumes facts not in evidence 22 and it's counsel's view. 23 THE COURT: Overruled, I think it's a proper 24 question? 39 1 A I really don't know what EPA does when they are 2 notified of an -- 3 Q. You do know, though, that if they are never told 4 that the chemical is in the product that's being shipped out, 5 they will never get the opportunity to exercise their 6 mandated duty, that is to make the determination whether or 7 not that chemical should be shipped out or what safeguards 8 must be taken or how notices should be put out or what should 9 be done, if they are not told, they can never exercise their 10 duty, you understand that, don't you, sir? 11 A* I understand that. 12 Q. And, if Monsanto believed that the levels of dioxin 13 in the product was going to be diluted when it got to the end 14 result to such a degree that only parts per trillon, and 15 there has been testimony that the Lysol, the one part per 16 billion which it gets into the Lysol, the things above one 17 part per billion, when it gets into the Lysol will be down 18 into the very small trillions, you understand that, you could 19 calculate that yourself, couldn't you, sir? 20 A. Yes. 21 Q. And the EPA, though, if it's never told that there 22 is more than one part per billion in those products that's 23 being shipped out of Monsanto, they never have the 24 opportunity to exercise this judgment, do they, sir? 40 1 A, That's correct. 2 Q. And, Monsanto is in effect -- well, just for 3 instance, suppose Monsanto -- Monsanto couldn't be done any 4 harm, could it, by telling the EPA that if Monsanto believes 5 that the TCDD is harmless, that one part per billion won't 6 hurt anybody, if that's what they were shipping or if a 7 million or one million, four hundred thousand parts per 8 billion didn't hurt anybody, if Monsanto believed that, they 9 could easily notify the Government and they wouldn't be at 10 risk, would they, sir? 11 A. I don't believe we would be, no. 12 Q. But, if somebody else's judgment was that those 13 levels could harm humans, then the EPA could exercise it's 14 judgment and say don't ship that Santophen to Lehn and Fink, 15 don't ship that 2,4-dichlorophenol to Fallek and Lancro or to 16 Shamrock or to whoever gets it? EPA could say that, couldn't 17 they, sir? 18 A. They do do that, yes. 19 Q. If they are not given the information, not given 20 the facts, if they are not given the whole truth, they can 21 never exercise their judgment? 22 MR. MUSGRAVE: Object, all repetitive. He's asked 23 this witness four times the same question just a different 24 way. 41 1 THE COURT: It is a different question, overruled. 2 Q. (by Mr. Carr) Doctor, the exhibit that you had, 3 it's Plaintiff's Exhibit 1286 B which is part of the Monsanto 4 exhibit that you had had earlier, August of *80 report by 5 Taulli and Brautigam, do you have it there? 6 A. I believe I have it someplace, should be this 7 exhibit? 8 A. I'm sorry, yes, yes. 9 Q, You recognize the Plaintiff's Exhibit 1286 B as 10 being page two of that document? 11 A. Yes, sir. 12 Q. And page -- this document says as safety 13 precautions, does it not, that the toxicity of 2,3,7,8-TCDD 14 necessitates the utmost caution be used at all times, doesn't 15 it, sir? 16 A. That's what it says, Item A. 17 Q. Now, they are saying that because 2,3,7,8-TCDD can 18 cause serious adverse effects in human beings, aren't they, 19 sir? t 20 A. Yes, sir. 21 Q. And Monsanto, at least in 1980, August 7th, 1980, 22 recognized that 2,3,7,8 was so toxic that the utmost caution 23 means the very most caution, doesn't it, sir? 24 A. Yes. 42 1 Q. Now, do you believe that the people at Lehn and 2 Fink that get the product, the Santophen, or the people at 3 Fallek and Lancro, the workers that work with it, do you 4 believe that they should be made aware of the fact that there 5 is something in it that would require that that product be 6 handled with the utmost caution? 7 A, If there is a level there that would cause harm, I 8 think they should know about it. 9 Q. Does this document, does this indicate that there 10 is a level, does Monsanto document for your workers, for you 11 in the laboratory, that working with it, does it say anything 12 about any level? . 13 A. This is designed for someone who's working directly 14 with 2,3,7,8 standards. 15 Q. No, if you go down to Paragraph G, it's talking 16 about Santophen also, and PCP and OCP also, doesn't it, sir? 17 A. Yes. 18 Q.. You are talking about -- 19 A. Those materials all cause serious chemical burns, 20 the products themselves cause serious chemical burns. 21 Q. We understand that, Doctor, but what you are 22 working with is the TCDD that's in the product as well, we i 23 have other exhibits in evidence we don't need to, and I don't 24 intend to go through it again, but I want you to assume that 43 1 we have other exhibits that say that the samples being tested 2 should be handled the same way as you are handling 3 2.3.7.8- TCDD probably a document that you signed off on, but 4 assume that that also is in evidence, not just the purer 5 2.3.7.8- TCDD, but the product that you are handling, you are 6 asked to assume when you handle it that those samples have 7 TCDD in it, you understand that? 8 A. That I 1!!! to assume? 9 Q. That there is in evidence your records, documents, 10 that say that's the way you handle samples, so I need not 11 take the time to dig it out again? 12 A. Well, I can certainly verify that we handle 13 virtually all samples in the chemical laboratory with care. 14 Q. That's not what I asked you, and I did dig it out 15 again, it's dated December the 13th, 1979, it's Exhibit 16 1168 C, which it says, and this is signed off by Hileman, 17 says in particular 2,3,7,8-tetrachlorodibenzo-p-dioxin is 18 extremely toxic, therefore, all samples should be handled >as 19 though they contain 2,3,7,8-TCDD, you see that, don't you, 20 sir? 21 A. Yes, sir. 22 Q. Now, Doctor, the samples that they are talking 23 about there, are the samples that they are testing, isn't 24 that correct, sir? 44 1 A. That's correct, 2 Q. Now, the samples that they are testing that 3 contains 2,3,7,8-TCDD is the raw product, the Santophen 4 that's being shipped to Sterling Drug Company and is the 5 2,4-dichlorophenol that's being shipped to the oil well 6 workers, to the Fallek and Lancro and to others, isn't that 7 correct, sir? 8 A* I don't know what they are testing in that 9 particular report that you just showed me. 10 Q. The title of the report is Trace Amounts of 11 Chlorodibenzo-p-dioxins From Industrial Product Samples, do 12 you see that, sir? 13 A. Yes, sir. 14 Q. They are testing a whole variety, there is a 15 document in evidence a whole variety of production samples is 16 what they are testing, includes 2,4-dichlorophenol, includes 17 Santophen, includes orthochlorophenol, it includes -- doesn't 18 include pentachlorophenol, but includes the products that we 19 are talking about. Now, this is the information that's given 20 to you in the laboratory the way you are to handle the 21 product that contains the 2,3,7,8-TCDD, isn't it, Dr. Mieure? 22 A. That's the instructions that were given in that 23 report. 24 Q. Now, was any warning given to the people that got 45 1 those products that had the occasional batch, that had the 2 2,3,7,8 in it, was any warning given those people to handle 3 those products with utmost caution? 4 A. I don't know whether they were given warning or 5 not, sir. Q. At least they weren't to your knowledge, isn't that 7 correct, Dr. Mieure? 8 A. They weren't to my knowledge. Nov/, Monsanto has a 9 material safety data sheet that goes along with each product 10 and I don't know what warnings were on it. 11 Q. You don't know what warning is on there, do you, 12 sir? 13 A. That's correct. 14 Q. And, Dr. Mieure, you do know, or at least you have 15 no -- well, you didn't take part in any conferences that 16 decided those things. And did you take part in any 17 conferences that were -- where you discussed, I think you 18 mentioned you talked over with the lawyers, but I meant other 19 than lawyers, where you discussed whether or not there was 20 exposure within the meaning of the law once the product left 21 the plant? 22 A. No, sir, I don't believe X did. 23 MR. CARR: I have no further questions. 24 THE COURT: Mr. Musgrave? 46 1 2 CLARIFICATION EXAMINATION 3 BY MR. JOHN MUSGRAVE 4 Q. Dr. Mieure, you have the exhibit, I believe the 5 Statute Section 8E? 6 A. Yes, sir. 7 Q. You have the exhibit that has that, which one are 8 you looking at? 9 A. You after the act or the policy statement? 10 Q. The act. 11 A. Theact itself? 12 Q. The act. 13 A. That's Plaintiff's Exhibit 1283. 14 Q. Now, you have that in front of you, sir? 15 A. Yes. 16 Q. You are not a lawyer, are you? 17 A. I'm certainly not. 18 Q. You reviewed this Statute before? 19 A. I've read it in passing. 20 Q. And you've reviewed the information Monsanto put 21 out to its employees, I believe you indicated you had seen 22 Defendant's Exhibit 881, information was put out to employees 23 with regard to the policy statement or regulations and the 24 act? 47 1 A. Yes, sir. 2 Q. Now, I just want to ask you, if you would, with 3 regard to the act itself, to read along with me. It states, 4 does it not, sir, "Any person who manufactures, processes, or 5 distributes in commerce a chemical substance or mixture and 6 who obtains information," I would like you to focus on the 7 word information, "and who obtains information which 8 reasonably supports the conclusion that such a substance or 9 mixture presents a substantial risk of injury to health or 10 the environment shall immediately inform the administrator of 11 such information, unless such person has actual knowledge 12 that the administrator has been adequately informed of such 13 information." Just reading that as a layman, sir, what do 14 you understand the word information to refer to? 15 A. Probably toxicology information. 16 Q. Information that would support a conclusion that a 17 chemical or mixture presents a substantial risk of injury to 18 health or the environment. Toxicological information or some 19 type of data that supports that conclusion with regard to the 20 chemical? 21 A. Yes, sir. 22 Q. All right. If one were to simply report the fact 23 that a shipment of a particular chemical contained a 24 particular impurity at a particular level, would that be 48 1 supplying information that supports a conclusion that there 2 is a substantial risk to health? 3 A, It doesn't seem to me that it would. 4 Q. And, of course, the reporting of such information 5 it states right here is not necessary if the administrator of 6 the EPA already has the knowledge and if the person knows 7 that the administrator has that knowledge? 8 A. That's what it says here. 9 Q. Is that right? 10 A. Yes, sir. 11 Q. Now, Mr. Carr asked you an awful lot of questions 12 about the policy or the regulations interpreting the Statute, 13 that being Defendant's Exhibit 880, and you had some 14 difficulty it appeared in responding to some of the 15 assumptions that he asked you to make? 16 A. Yes, sir. 17 Q. Can you tell us why? 18 A. Well, again, you pointed out I'm not a lawyer, but 19 as I read through this document, it seems to me that in order 20 for this condition that Mr. Carr wanted to apply, in order 21 for that condition to apply, there had to be some indication 22 that the product itself in the form in which it was being 23 shipped was, what was the term, was an indicated chemical or 24 49 1 Q. Implicated chemical? 2 A. Implicated chemical, 3 Q. Because it poses substantial risk to health or the 4 environment? 5 A, Yes, sir. I was not instructed to assume that and 6 that was causing me a great deal of consternation as to how 7 to answer the question. 8 Q. So if you had a shipment of 2,4-dichlorophenol that 9 had an impurity in it, the first thing would have to be what 10 to determine your view of it? 11 A. At whether or not that level imposed a risk to 12 health. 13 Q. Do you have any information that it does, you would 14 report that information unless you knew the EPA had it? 15 A. Yes, sir. 16 Q. And if there were published reports maybe in 17 controversy as to whether or not there were levels that 18 caused certain problems or weren't levels that caused certain 19 problems, then the EPA may well be aware of those various 20 articles and the various information with regard to the 21 toxicity of various dioxins of various levels and various 22 mixtures? 23 A. Yes, sir. 24 Q. One last point on this, Mr. Carr, I believe, stated 50 1 in questioning you that, he kept reading to you the sentence 2 that the mere fact the implicated chemical is in commerce 3 constitutes sufficient evidence of exposure, and made the 4 statement to you, as I recall, that that indicated that you 5 could not, with an implicate chemical; that it would cause 6 death or serious injury, once that determination had been 7 made it was implicated, that the mere fact it went into 8 commerce meant that there was exposure, therefore, meant you 9 could not in any way consider the potential for exposure? 10 A. I believe that was when I was asked to make all 11 those assumptions, wasn't it? 12 Q. The sentence right before that does say, though, 13 "The human health effect listed in Subparagraph R below, for 14 example, are too serious that relatively little weight is 15 given to exposure? 16 A. Yes. 17 Q. Then it states, "The mere fact the implicated 18 chemical is in commerce constitutes sufficient evidence of 19 exposure?" 20 A. Yes, sir. 21 Q. So it does not indicate even if it is an implicated 22 chemical that no weight is given to potential for exposure, 23 just says relatively little weight? 24 A. Says relatively little weight, yes. 51 1 Q. Now, Dr. Mieure, Mr. Carr asked you a lot of 2 questions about Plaintiff's Exhibit 1135, do you have that in 3 front of you, sir? 4 A. Yes, sir. 5 THE COURT: Before you get into 1135, I'd like to 6 take a short break if we can. 7 MR. MUSGRAVE: Fine. 8 THE COURT: Can I see you at the bench, please? 9 (The following Side Bar conversation was had outside the 10 hearing of the jury.) 11 THE COURT: Would Shelia have those documents? 12 MR. MUSGRAVE: I'll see. 13 THE COURT: Let's take a break. We will take a 14 short break at this time. 15 MR. CARR: Your Honor, I am going to use Brautigam 16 for a little bit so I won't get directly to Park. 17 THE COURT: Fine. 18 (Following a recess, these proceedings were had in open 19 court.) 20 THE COURT: Gentlemen, could I see you at the bench 21 for just a second? 22 (The following Side Bar conversation was had outside the 23 hearing of the jury.) 24 THE COURT: I haven't gone through all those yet 52 1 but I understand you are going to have Brautigam first? 2 MR, CARR: He will be short, but however long he is 3 we won't get to Park. You have some more to do? 4 MR. MUSGRAVE: Just a couple questions. 5 THE COURT: So some time late this afternoon with 6 Park. 7 MR. CARR: I should be on and off, I'm just going 8 to ask him about one exhibit. 9 THE COURT: I'll get this done over lunch. 10 MR. CARR: If we get through early, we will just 11 recess then. 12 (The following proceedings were had in open court.) 13 Q. (by Mr. Musgrave) Dr. Mieure, I was about to go to 14 Exhibit 1135, but I want to ask you one more question about 15 the regulations or policy statement that Mr. Carr was 16 examining you about. I think we had talked about the Statute 17 that I read with you, and the information, the word 18 information that was referred to in the Statute, you recall 19 that? 20 A. Yes, sir. 21 Q. And, if you would look at Defendant's Exhibit 880, 22 do you have that there? 23 A. Yes, I do. 24 Q. Which is the policy statement or regulations? 53 I 1 A. Yes, EPA policy statement on the Toxic Substances 2 Control Act Section 8E. 3 Q. Would you look at page 2 of that exhibit, you have 4 that, sir? 5 A. Yes, I do. 6 Q. There in is there a definition given by the EPA 7 what the term substantial risk information means that must be 8 reported, the EPA doesn't know this without this information? 9 A. Yes, there is. 10 Q. Would you just read what that statement says? 11 A. "The term substantial risk information means i 12 information which reasonably supports the conclusion that a 13 chemical substance or mixture presents a substantial risk of 14 injury to health or to the environment. 15 Q, Thank you, sir. Now, turning you to Exhibit 1135, 16 Mr. Carr asked you about, and by way of background you will 17 recall that this is the report dated June 26th, 1979, that 18 summarized the various data that were gathered in looking at 19 the orthochlorophenol, parachlorophenol, 2,4-dichlorophenol 20 process to determine if there were dioxins there and to try 21 and determine how to eliminate them if that was the case? 22 A. Yes, sir. 23 Q. And, some of the tests were run with the caustic 24 and there were then samples taken from the process without 54 1 the caustic, you recall that? 2 A. Yes, sir. 3 Q. Now, Mr. Carr referred you to the 4 2,4-dichlorophenol samples taken with the caustic, I would 5 like you to refer you to the 2,4-dichlorophenol sample that 6 was taken and tested after caustic was removed, and I believe 7 that's MB 715. 8 A. Okay MB 715, that was in April 1979 sample. 9 Q. That was analyzed, it appears, twotimes, that 10 sample of 2,4-dichlorophenol? 11 A. Yes, sir. 12 Q. And one of those is asterisked, does that indicate 13 that that analysis was done by MIC, that is the laboratories 14 in Creve Coeur? 15 A. Yes, it does. 16 Q. And, as the other one is not asterisked that would 17 indicate that was done at the Dayton lab which is referred to 18 MRC? 19 A. MRC, Monsanto Research Corporation in Dayton. 20 Q. Both of the analysis found none detected, one at a 21 limit of detection limit of 10 parts per billion, the other 22 at detection limits of 20 parts per billion? 23 A. Yes, that's for the tetrachloro-dioxins. 24 Q. Yes, just for the tetras I'm speaking of, is that 55 1 correct? 2 A. Yes, sir, 3 Q. And then if you would, sir, with regard to the 4 Santophen exhibit, the Santophen samples that were tested, 5 examined, and analyzed without the caustic, I believe you111 6 find that Mr. Carr referred to MB 739, would you look at that 7 one, sir, that's intermittent Santophen cut as described in 8 the document? 9 A. MB 739, I have it. 10 Q. That was tested three times, that one sample? 11 A. Yes, sir. 12 Q. And two of them found none detected at levels of, 13 or detection levels of 5 parts per billion and 10 parts per 14 billion? 15 A, That's correct. 16 Q. But another analysis found 79? 17 A. Yes, sir. 18 Q. Is there any way to reconcile those or how are 19 those results such as that viewed, or is there any way that 20 they are typically viewed that you could testify to with 21 regard to or how an analytical chemist would review those 22 results? 23 A. Well, it would be difficult for an analytical 24 chemist who didn't know the background to understand what was 56 1 going on there, he'd be confused, but during that timer 2 Monsanto Research Corporation had just started analyzing for 3 dioxins, and I think as we have testified previously the 4 analysis for dioxins is not an easy thing to do, takes even a 5 skilled analytical chemist several months to learn some of 6 the fine points and learn how to avoid sample contamination, 7 and during the start up phase of this analytical project at 8 MRC they encountered a large number of what we call false 9 positives, and I think this is just an example of a false 10 positive, and we know they were encountering false positives 11 because we are sending them blanks that weren't identified 12 and having them analyze those samples, and some of those 13 blank materials that were pure were coming back with 14 notations that they contained dioxins, so we know they were 15 having a false positive problem at that time. 16 Q. Those three runs, those three analysis of sample 17 MB 739, which is intermittent Santophen cut, one was done by 18 the Creve Coeur lab? 19 A. Yes, sir. 20 Q. That found the none detected at 5 parts per 21 billion? 22 A, That's correct. 23 Q. Then the other two of the same sample were done by 24 MRC in Dayton? 57 X A. Yes, sir. 2 Q. And one they found none detected at 10 parts per 3 billion and other found 79 parts per billion? 4 A. Yes, sir. 5 Q. Now, MB 740, another Santophen cut analysis done 6 after removal of the caustic, that's right below that, you 7 see that one, sir? 8 A. Yes, I do. 9 Q. And again there are that sample was taken and 10 apparently split into three and there were three separate 11 analysis of the original sample, is that correct? 12 A. Yes, sir, two of them show none detected and one of 13 them shows 18 parts per billion. 14 Q. And the one 18 parts per billion was that that 15 Dayton or the Creve Coeur laboratories? 16 A. That was at Dayton laboratory. 17 ,Q. And then the next analysis of Santophen after 18 removal of the caustic would be MB 741 and that was a sample 19 that was split in two and analyzed, one of those portions was 20 analyzed in Creve Coeur and one of those portions was 21 analyzed in Dayton, is that correct? 22 A. According to the notations here, yes, sir. 23 Q. And the sample analyzed at Creve Coeur that 24 reflects 25? 58 1 A. 25 parts per billion. 2 Q. Right. If you look at Table 4, sir, does that not 3 reflect that MB 741 that reflected 25 parts per billion of 4 tetras, that those tetras that were compromised at 25 parts 5 per billion did not coelute with the 2,3,7,8 standard? 6 A, That is correct, they coeluted with the 1,3,6,8 7 standard. 8 Q. Mow, the other analysis of MB 741 that was done in 9 Dayton, does reflect a finding of 48 parts per billion, isn't 10 that correct? 11 A. Yes, sir. 12 Q. And Dayton was not breaking out, separating the 13 peak in there reporting, were they? 14 A. They were just reporting total tetras at that time, 15 sir. 16 MR. MUSGRAVE: I believe that's all I have, Your 17 Honor 18 THE COURT: Okay, Mr. Carr, do you have any further 19 questions? 20 MR. CARR: Yes, Your Honor. 21 22 RECROSS EXAMINATION 23 BY MR. REX CARR 24 Q. Dr. Mieure, with regard to the TSCA notification 59 I and consideration of the chemical implicated as you've 2 discussed here now with Mr. Musgrave again, isn't it a fact 3 that because it had been reported that it was a carcinogen, 4 that that's the reason that you didn't take any chances with 5 2,3,7,8-TCDD? 6 A. No, sir. 7 Q. Dr. Mieure,* you realize that the oath that you take f 8 in one case is just as binding as the oath you take in 9 another case, you understand that, don't you, sir? 10 A. Yes, sir. 11 Q. You recall that you were deposed in the case 12 involving the workers at Nitro, West Virginia in that case on 13 the 14th of July, 1983, that your deposition was taken at 14 that time in that Federal Court case? 15 A. My deposition was taken, yes, sir. 16 Q. Yes, and you were there represented by your 17 attorneys and you were sworn, you were put under oath at that 18 time, weren't you, sir? 19 A. Yes, sir. ' 20 Q. And you were asked questions about 2,3,7,8, weren't 21 you, sir, the way you handled it? 22 A. I'm sure I was. 23 Q. And the reasons you handled it in a particular 24 way? Page 50 of that deposition, counsel. And, weren't you 60 1 asked these questions at that time, starting at page 49 and 2 I'll start so as to get it just in context at line one on 3 page 49. "Question: Any of those tetra levels in the hexa 4 level, didn't you say you found one in pentachlorophenol 5 that's toxic, isn't it? Answer: I don't know. Question; 6 Is 2,3,7,8 toxic? Answer: Everything I read in the papers 7 implies that it is. Question: But is that your only source 8 of information about 2,3,7,8 is what you read in the paper? 9 Answer: No, I have information from Monsanto toxicologists 10 as well. Question: What would they tell you? Answer: They 11 would periodically pass along questions about being careless 12 with the material. Question: What would they tell you? 13 Answer: Keep it in a hood, use gloves, use protective 14 clothing. Question: But did they tell you why it was 15 necessary to do that?" Your answer was, "Because it's a toxic 16 material. Question: What's that mean it's a toxic 17 material? Answer: Can cause harmful effects to biological 18 organisms. Question: And you're a biological organism? 19 Answer: That's not on my check. Question: What biological 20 effect does it cause in -- you want me to speculate? 21 Question: What you've been told, apparently those 22 toxicologists were talking to you about it, whatever you have 23 been told." And then you answer it causes those -- 24 MR. MUSGRAVE: I object to him reading hearsay from 61 1 this deposition. 2 THE COURT: Overruled. 3 Q. "Answer: It causes those pimples as you referred 4 to them, this Chloracne, and there have been reports it 5 causes other effects. Question: Like what? Answer: Loss 6 of hair, nervousness, pigmentation, excess pigmentation of 7 the skin. There have been reports that it's a carcinogen. 8 Question: That's good enough reason not to take any chances 9 with it, isn't it?" And wasn't your answer, "As far as I'm 10 concerned." Wasn't that your answer under oath at that time, 11 Dr. Mieure? 12 A. I certainly don't remember what I testified to that 13 many years ago. 14 Q. Would you want to look at it and see if that wasn't 15 your answer at that time under oath in that case just like 16 you are under oath today, Dr. Mieure? 17 A. I have no reason to believe that you are not 18 reading accurately. 19 Q. Well, read it and make sure. 20 A. Yes, sir, that appears to be an accurate 21 description of what I testified to. 22 Q. Dr. Mieure, when were you not telling the truth, in 23 that case or in this case? 24 A. Been telling the truth the whole time. 62 1 HR. MUSGRAVE: Object to that, improper 2 questioning. 3 THE COURT: Overruled. 4 Q. Didn't you tell us a moment ago that it wasn't the 5 reason that you didn't take any chances with it, that it's a 6 carcinogen, reported that it's a carcinogen, isn't that what 7 you said just before I read this deposition to you? 8 A. I believe you asked me if -- 9 Q. Isn't that -- 10 A. It was because it's a carcinogen that I felt it 11 needed to be handled carefully, and my answer to that was 12 no. My reason for believing it needs to be handled carefully 13 is because its high acute toxicity to certain laboratory 14 animals. 15 Q. Your question I asked you and I had the deposition 16 in front of me when I asked you the question whether or not 17 the fact that it's been reported that it's a carcinogen, 18 whether or not that's good enough reason not to take any 19 chances with it. 20 MR. MUSGRAVE: Is that what you are saying you 21 asked him before you read the deposition? 22 MR. CARR: Yes, I did indeed. 23 MR. MUSGRAVE: I request the Court Reporter read 24 back the question before he read him. 63 1 THE COURT: Overruled. 2 Q. Your Honor, I'll exceed to the request because if 3 there is any possible chance that the sense of what I've 4 asked him is not what I just said I want it to be made clear. 5 THE COURT: Okay. Both of you want to do it then 6 I'll let you to do this time. 7 COURT REPORTER: "Dr. Mieure, with regard to the 8 notification and consideration of the chemical implicated as 9 you've discussed here now with Mr. Musgrave again, isn't it a 10 fact that because it had been reported that it was a 11 carcinogen, that that's the reason that you didn't take any 12 chances with 2,3,7,8-TCDD." 13 THE COURT: And the objection was overruled. 14 MR. CARR: And his answer was? 15 COURT REPORTER: "No, sir." 16 A. The answer was no, sir, the reason I -- 17 Q. Doctor, I didn't ask you that, did I, sir? I 18 A. I thought that's what I just heard you ask. 19 Q. I ask the question that's good enough reason in 20 Charleston, West Virginia when your deposition was taken in 21 that case, that there have been reports that it's a 22 carcinogen, you are asked that's a good enough reason not to 23 take any chances with it, isn't it, and your answer was at 24 that time, "As far as I'm concerned," wasn't it, sir? 64 1 A. If you think you are reading correctly, yes. 2 Q. That was your answer then, wasn't it, sir? 3 A. Apparently so. 4 MR. CARR: I have no further questions Your Honor. 5 THE COURT: Do you have any further questions? 6 MR. MUSGRAVE: Just one. 7 8 CLARIFICATION EXAMINATION 9 BY MR. JOHN MUSGRAVE 10 Q. You said it was a good enough reason, was it your 11 reason though? 12 A. No, sir, wasn't my reason. 13 Q. What was your reason? 14 A. It's been reported to me as highly toxic, causes 15 Chloracne, that's good enough reason for me. 16 MR. MUSGRAVE: Nothing further. 17 THE COURT: Do you have any further questions? 18 19 RECROSS EXAMINATION 20 BY MR. REX CARR 21 Q. Doctor, were you telling the truth when you said in 22 the Nitro case that there had been reports that it's a 23 carcinogen and that's good enough reason not to take any 24 chances with it, isn't it, and wasn't your answer as far as 65 1 I'm concerned wasn't, that's your answer then? 2 A. Appears to be. 3 Q. And you were telling the truth then, weren't you, 4 sir? 5 A. Yes, sir. 6 Q. And that was a good enough reason for you not to 7 take any chances with it, isn't that correct, sir? 8 A. That's what X said then, yes. 9 Q. And it's still the fact today, isn't it, sir? 10 A. Still good enough reason if it's a carcinogen, but 11 that isn't the reason why I did it, sir. 12 Q. Isn't that what you said, that's good enough reason 13 not to take any chances with it, wasn't your answer, "As far 14 as I'm concerned?" 15 A. I think it's two different things. 16 Q. You think it's two different things? 17 A. Yes, sir. 18 Q. You think the answer of yours, there have been 19 reports that it's a carcinogen, and then your saying as far 20 as I'm concerned that's good enough reason not to take any \ 21 chances with it is something the same as what you are saying 22 now? 23 MR. MUSGRAVE: Mr. Carr read the deposition 24 question and answer, don't paraphrase it, sir, because -- 66 1 THE COURT: It has been read. 2 MR. MUSGRAVE: I understand that. He's not doing 3 that now, he's paraphrasing it, and the way the question was 4 put to the witness and the way he answered is important here. 5 THE COURT: Been read to the jury. 6 Q. (by Mr. Carr) Isn't it? 7 THE COURT: Overruled. 8 Q. That there have been reports that it's a carcinogen 9 a good enough reason for you not to take any chances with it? 10 A. I answered then -- Q. My question -- I'm not caring about -- I'm asking 12 you now, isn't the fact that there have been reports that 13 it's a carcinogen a enough reason for you not to take any 14 chances with it? 15 A. If there were reports -- 16 MR. CARR: Your Honor, would you direct the witness 17 to answer the question? I think he can answer that. 18 MR. MUSGRAVE: He's trying to, Your Honor. 19 THE COURT: I don't believe so. It's not 20 responsive. Overruled. Dr. Mieure, you have to answer the 21 question as posed? 22 A. The question as posed was isn't the fact -- if 23 there are indeed such reports, yes, that's a good enough 24 reason to not take chances with it. 67 1 Q. And there have been reports that it's a -- 2 A. There have been and as I testified -- 3 Q. Doctor, I ask you there have been reports that it's 4 a carcinogen and the fact it's been reported it is a 5 carcinogen is a good enough reason for you not to take any 6 chances with it, isn't that correct, sir? 7 A. It's a good enough reason, 8 Q. Isn't that correct, sir? 9 A. I said it's a good enough reason, 10 Q, But the people at Lehn and Fink don't know that, do 11 they, sir, that they are handling something that has 12 2,3,7,8-TCDD, they don't know that, do they, sir? 13 MR, MUSGRAVE: Object to counsel questioning the 14 witness as to what other people know or don't know, also 15 vague and indefinite. 16 THE COURT: Overruled on both. 17 A. I don't know what the people there know. 18 Q. As far as you know it's never been reported to 19 them, has it? 20 MR, MUSGRAVE: Objection, asked and answered. 21 A. I don't know whether it's been. 22 Q. My question as far as you know it's never been 23 reported, correct? 24 MR. MUSGRAVE: Same objection. 68 X THE COURT: Overruled. 2 A. I don't know whether it's been reported or not. 3 MR. CARR; No further questions. 4 THE COURT: Anything further? 5 MR. MUSGRAVE: Nothing further. 6 THE COURT: You may step down. Dr. Mieure. Thank 7 you. 8 MR. CARR: Call Mr. George Brautigam at this time. 9 THE COURT: Gentlemen, could you approach the 10 bench, please? 11 12 (The following Side Bar conversation was had outside the 13 hearing of the jury.) 14 THE COURT: Any offers of proof or anything on this 15 witness, are there? 16 MR. MUSGRAVE: No, Your Honor. 17 THE COURT: Fine. Just wanted to check. 18 (The following proceedings were had in open court.) 19 MR. CARR: The witness has been previously sworn. 20 21 22 23 24 69 1 GEORGS PR&mg-aiH 2 (being called as a witness on behalf of the Plaintiff under 3 Section 2-1102, having been previously sworn, testified as 4 follows) 5 CROSS EXAMINATION 6 BY MR. REX CARR 7 Q. Mr. Brautigam, you understand that the oath you 8 took earlier in this trial still binds you today, to tell the 9 truth?,, 10 A. Yes, 1 do, sir. 11 Q. Handing you now what's been marked Plaintiff's 12 Exhibit 1287 you recognize that as a report prepared by Mr. 13 Taulli and that you 'received a copy of it, the very first 14 copy apparently or at least the top of it, is that correct, 15 sir? 16 A. Yes, sir. 17 Q. And there is a table in that exhibit, a Table 1 in 18 that exhibit, is there not, Mr. Brautigam? 19 A. Yes. 20 MR. CARR: Your Honor, I'll offer this exhibit into 21 evidence. 22 MR. MUSGRAVE: If I may have a moment, Your Honor. 23 THE COURT: Sure, go ahead. 24 MR. MUSGRAVE: Your Honor, it appears to be a 70 1 document dealing with 2,4-dichlorophenol, and I would object 2 to it for the same reasons as stated before. 3 THE COURT: Fine. It's admitted over objection. 4 I'll incorporate your prior argument. 5 MR. CARR: Leave to pass Table 1 to the jury, which 6 doesn't have a number on it. 7 THE COURT: Fine. 8 (Table 1, Plaintiff's Exhibit No. 1287 passed to the jury.) 9 Q. (by Mr. Carr) Mr. Brautigam, this exhibit deals 10 with an, at least part of the report deals with the degree of 11 specificity that you can get by 1982, does it not, sir? 12 A. Appears to, yes, sir. 13 0, And Table 1 shows that batch A101 apparently 14 manufactured on the 25th of January, 1982, contains various 15 dioxins from the tri level up to the octa level, isn't that 16 correct, sir? 17 A. It appears like it's from,the tetra level values 18 for the tetra level through the octa level. 19 Q. And the tetra level is 4 parts per billion and that 20 batch manufactured in '82? 21 A. That's the value here, yes, sir. 22 Q. And, the parenthesis represents, 3.1 represents the 23 data previously reported? 24 A. Note, one says that the parentheses are GC/mass 71 1 spec data. 2 Q. Previously reported? 3 A. Yes. 4 Q. Now, actually then there was more tetra in this 5 batch of 2,4-dichlorophenol than had been previously reported 6 by nearly, nearly one-third more, as a matter of fact, isn't 7 it, sir, 3.1 to 4 is, .9 is nearly one-third of three, isn't 8 it, sir? 9 A. Yes. 10 Q. So actually this, the more precise method that you 11 have by '82, reveals that there was more tetra dioxins in the 12 product by factor of 30 percent than had been previously 13 reported. 14 MR. MUSGRAVE: You mean in this sample, Mr. Carr? 15 Q. In this sample, isn't that correct, sir? 16 A. I couldn't conclude that, sir. 17 Q. Well -- 18 A. This tells me -- 19 Q. This tells you, does itnot, that there have been 20 previously reported for the tetras 3.1, doesn't it, sir? 21 A. By GC/mass spec. 22 Q. Yes, that had been previously reported, correct, 23 sir? 24 A. By GC/mass spec. 72 1 Q. Yes, and that's what was used to report it earlier? 2 A. Correct? 3 A. But not for the 4. 4 Q, I'm sorry? 5 A* But not for the 4, as 1would understand. 6 Q. Right, that's exactly correct, the 4 is what's 7 being shown by this method of analysis? 8 A. That's correct. 9 Q. All right. So, the earlier method of analysis for 10 2,4-dichlorophenol found and reported 3.1 parts per billion 11 of tetra in the 2,4-dichlorophenol, isn't that correct, sir? 12 A. That's what it says, yes, sir. 13 Q. And the better method or the newer method, the more 14 precise method reports 30 percent more 15 tetra-chlorodibenzo-p-dioxin in this product than what had 16 been previously reported by the earlier methods used, isn't 17 that correct, Mr. Brautigam? 18 A. Not with all of those adjectives, sir. Our method 19 -- they are not necessarily better or worse, our method 20 showed 4 nanograms, a gram. 21 Q. I didn't indicate it was a better or worse? 22 A. Yes, you did, I thought you said -- 23 Q. Well, Mr. Brautigam I'll -- f 24 MR. MUSGRAVE: You want to read it back, Mr. Carr? 73 1 Q The later method, yes, it is a later method. 2 Q. And it reported finding more tetra than the older 3 method? 4 A. Yes, that is a true statement. 5 Q. So the newer method found 30 percent more 6 tetrachlorodibenzo-p-dioxin in this particular product than 7 had been found and reported by the older method, isn't that 8 correct, sir? 9 A. Yes, that is correct. 10 MR. CARR: That's all the questions I have, Your 11 Honor. 12 THE COURT: Mr. Musgrave? 13 MR. MUSGRAVE: Just a couple. 14 15 CLARIFICATION EXAMINATION 16 BY MR. JOHN MUSGRAVE 17 Q. . Did the new method, did you work with Mr. Taulli in 18 developing this method for analyzing Santophen? 19 A. In the sense that I did the sample extractions, I 20 extracted prepared the sample. 21 Q. And was this, was this analysis of Santophen? 22 MR. CARR: 2,4-dichlorophenol. 23 MR. MUSGRAVE: I understand that, Mr. Carr. 24 Q. Is analysis of Santophen? 74 X A. Batch 10A1 doesn't describe that to mer I'd say 2 from the title of the table it is analysis of 3 2,4-dichlorophenol. 4 Q. So this new method Hr. Carr was talking about you 5 understand that to be developed for Santophenr do you not 6 recall that being done? 7 A. No, I do not. 8 Q. So you don't know whether this new method, well, 9 here, let me ask you this, Hr. Brautigam, whatever method was 10 used for this 2,4-dichlorophenol analysis, do you know 11 whether it was any more specific or any better than any other 12 method we were using at that time for determination of levels 13 of tetra? 14 A. I would judge it was not any better. 15 Q. For the tetra level? 16 A. Correct. 17 Q. All right. Now, if you have results -- let me back 18 up a minute. Is it an unusual occurrence to take a sample 19 and run it two or three times and find differences in what 20 you are getting in your analysis? 21 A. Certainly. 22 Q. You say it's unusual? 23 A. No, it is not unusual, it's normal, I'm sorry. 24 Q. It's normal. And if you do get such results that 75 1 vary what do analytical chemists then conclude with regard to 2 the levels of whatever they are trying to detect when they 3 have those varying results? 4 A, The normal practice would be to take the answers of 5 the various analyses on the sampler average those through 6 statistical analysis and establish a standard deviationr this 7 is the amount of variance you would get within the analysis. 3 Q. All right. Now, and if the analysis that you do of 9 a particular sample a couple of times are pretty close, then 10 would you stick with the average? ' 11 A. You are bound to in the sense that those are the 12 answers that you get. 13 Q. All right. If you have analysis -- 14 A. Certainly. 15 Q. -- That are far apart that might raise some other 16 question? 17 A. This would cause you to recheck a further time and 18 deeper to see if you have a variable that you aren't aware 19 of. 20 Q. For instance, if you had a none detected on one 21 occasion then you had 80 or 90 parts per billion, that might 22 cause you to look further into the matter to determine why 23 there was such a wide variation? 24 A. It could, yes, sir. 76 1 Q, In this situation where you had on one indication 4 2 parts per billion and on another 3.1 parts per billion, would 3 that be a situation where you might well just average those 4 because they are close? 5 A, Certainly. Certainly. 6 MR. MUSGRAVE: All right. That's all I have. Your 7 Honor 8 THE COURT: Do you have anything further? 9 MR. CARR: Just one thing 10 11 ' RECROSS EXAMINATION 12 BY MR. REX CARR 13 Q. Mr. Brautigam, this technique is described in the 14 exhibit that you have in front of you as the technique for 15 2,4-dichlorophenol/chlorinated dibenzo-p-dioxins, new 16 technology, isn't it, sir, the very first page of it? 17 A. Yes. 18 Q. And it's a report about using the technique not for 19 Santophen but using it for 2,4-dichlorophenol, isn't it, sir? 20 A. Yes. 21 Q, And it also points out that you have, with this 22 technique, you have a high degree of selectivity within the 23 chlorinated dioxin family, at.least from the tetras, isn't 24 that correct, sir? 77 1 A. Yes, sir. 2 MR. CARR: That's all I have. 3 MR. MUSGRAVE: Nothing. Nothing further. 4 THE COURT: Mr. Brautigam, you may step down. 5 Ladies and gentlemen we will break for lunch at this point in 6 time, it's a little early, but it's convenient. And the 7 admonishments that I've given you earlier apply during this 8 lunch break also. We will resume again at 1:30. Court's in 9 recess for lunch. 10 (The following proceedings were had in Chambers, outside the 11 presence of the jury.) 12 THE COURT: I have reviewed the notes that were 13 submitted to me in camera along with the memoranda that they 14 belonged to. And, in view of all the circumstances, taking 15 into consideration the arguments that have been made, as far 16 as production and incorporating those, since I understand you 17 didn't have time to submit a formal memorandum. 18 MR. NASSIF: Thank you, Judge. 19 THE COURT: I have incorporated all of those 20 arguments both pro and con that have been made as far as 21 production of this type of material and in view of the 22 circumstances and the standards, this Court is obliged to 23 follow as far as those production questions, I think they 24 should be produced, and also I v/ant them produced instanter. 78 1 And also to help them make sense, because it was immensely 2 helpful to me, I would like them produced in the same form 3 that it was attached to the memorandum to which the notes 4 were formed.' 5 MR, NASSIF: I don't have extra copies of the 6 memorandum if you can just give that back to me. 7 THE COURT: Or I can give them to Mr. Carr and he 8 can give me my copy back. 9 MR. NASSIF: All right. 10 THE COURT: Those are just my notes on what's to be 11 produced, and they all were. 12 MR, CARR: I'll just run down the hall and get 13 copies of it made right now. There is only four pieces. 14 THE COURT: Okay. 15 (The following proceedings were had in open court.) 16 THE COURT: Mr. Carr? 17 MR. CARR: I'd now like to call Mr. Phocion Park as 18 an adverse witness. 19 MR. MUSGRAVE: It's Phocion. 20 21 22 23 24 79 1 2 PHOCIQN_PARK 3 (being called as a witness on behalf of the Plaintiff under 4 Section 2-1102, upon being duly sworn, testified as follows) 5 CROSS EXAMINATION 6 BY MR. REX CARR 7 Q. Would you state your name, please, sir? 8 A. My name is Phocion S. Park. 9 Q. And how old a man are you, Mr. Park? 10 A. I am 55 years old. 11 Q. By whom are you employed? 12 A. By Monsanto Company, I am an attorney. 13 Q. And when did you first become employed by Monsanto? 14 A. The Fall of 1960. 15 Q. And are you licensed to practice law in any of the 16 various states? 17 A. Yes, in Texas in 1959, and Missouri in 1961. 18 Q. All right. And, you've been how many years with 19 Monsanto? 20 A. It would be about twenty-four and a half. 21 Q. And have you always been located physically in the 22 St. Louis area? 23 A. Yes, I have. 24 Q. And you are in the Law Department for Monsanto, are 80 1 you not? 2 A. That's correct. 3 Q. And from time to time in the past, you've been 4 called upon to meet with something that for want of a better 5 word I would describe as the TSCA committee, or task 6 committee? 7 A. You may be referring to a group that I guess really 8 has no formal name, but, deals with the question of whether 9 or not given a situation a reporting obligation would rise 10 under Section 8E of the Toxic Substances Control Act. 11 Q. And you have been associated with, sitting with 12 persons like Dr. Roush and Dr. Wilson and Callis and 13 Kilbourne and folks of that sort from time to time in making 14 a judgment as to whether or not the product at a particular 15 point in time needs to be reported to the EPA under the Toxic 16 Substances Control Act, isn't that correct, Mr. Park? 17 A, Actually, our practice is that there are three 18 individuals or functions that deal with this. Dr. Roush, the 19 Director of our Department of Medicine and Environmental 20 Health, the Appropriate Director of Environmental Operations, 21 which in some instances has been Dr. Callis, in others it 22 would be another DEO, and myself, we three would always be 23 involved, other individuals might participate or might not as 24 the need would arise. 81 1 Q. And, you have met, at least you met in May of 1979, 2 did you not, Mr, Park, along with others to discuss 3 2,4-dichlorophenol that had been produced? 4 A. Now, you have -- I don't have this documentation 5 before me and -- 6 Q. Let me help you. Jerry, do we have an exhibit that 7 is marked May 14th, .'79? I'll hand you what's been 8 previously admitted into evidence dated June 6, '79, 9 Plaintiff's Exhibit.1275, if that would help you, Mr. Park, 10 if you need to take a moment to read it, why go right ahead. 11 A. Okay. Yes, I finished reading it. 12 Q. And that document, 1275, is a memo prepared by you 13 of the Law Department signed by you and dated June 6th, 1979? 14 A. That's correct. 15 Q. And, it refers to a memo that you had written on 16 May the 14th, 1979, does it not, sir. 17 Q. Where it says reference PSP memo 5-14-79? 18 A. Yes, it does. 19 Q. Could you mark this as an exhibit. I'll hand you 20 what's been marked Plaintiff's Exhibit 1288, and as far as 21 I'm checking now to see if it's been previously identified 22 and, put in evidence and -- 23 MR. SEIGFREID: I don't think. 24 Q. I confess I don't know that it was, identify that 82 1 please as your memo referred to, if you can, that is? 2 A. Yes, this is my memo. \ 3 Q. All right. Fine. 4 MR. CARR: I'll offer this into evidence, Your 5 Honor, it's the only copy I have, unfortunately, unless you 6 have your -- 7 MR. MUSGRAVE: I have one, I believe, if you will 8 again give me the date. 9 MR. CARR: May 14th, 1979. 10 MR. MUSGRAVE: Plaintiff*s 1288? 11 THE COURT: Right. Any objection? 12 MR. MUSGRAVE: Yes, Your Honor, in this is dealing 13 with 2,4-dichlorophenol and dealing with the consideration of 14 2,4,6-trichlorophenol it*s irrelevant and immaterial, has no 15 probative when weighed against other factors. 16 THE COURT: 1*11 admit it over objection. 17 THE COURT: Mr. Park, could you keep your voice up 18 a little bit? 19 A. Certainly. 20 THE COURT: Appreciate it. And that microphone is 21 just for in-house taping so it w6uldn*t amplify your voice. 22 Q. Doesn't help you a bit. Doesn*t help me either, I 23 have the same problem, Mr. Park. Now, Mr. Park, the Exhibit 24 1275 refers to a meeting held on this same subject on May 83 1 22nd, 1979, does it not? 2 A. Yes, it does. 3 Q. There has been produced to me last week documents 4 -- minutes, rather, notes made by various persons at that 5 meeting and I'd like to hand those to you so that it might 6 help you because I intend to ask you some questions about 7 that particular meeting. Now, Mr. Parks, I'm informed that 8 one of those sets of notes is yours and I may be in error on 9 that, are your notes included in this gr.oup? 10 A, No, I don't see them here. U Q. All right. 1290 has Dr. Wilson's initials on it, 12 do you recognize that to be his writing? 13 A. No, I'm sorry, I don't know his handwriting. 14 Q. Well, the others at that meeting, there were five 15 people at that meeting of May 22nd, were there not, Callis, 16 Park, Paget, Corey and Dr. Wilson? 17 A. Yes, that would appear to be the case. 18 Q. And the 1290 bears the date of May 22nd, '79, and 19 it also has the names, the last names of those four persons, 20 including yours, and the initials of Dr. Wilson, doesn't it? 21 A. Yes, sir, it does. 22 Q. Now, 1291 also is a memo apparently dated the same 23 time, bears Jim Wilson's signature on this one, this is a 24 memo to somebody by the name of Head that discusses and 84 1 informs what happened with that meeting, is that correct, 2 sir? 3 A. It appears to be, yes. 4 Q. And 1289, would you know who that might be? 5 A. I can see no name of an author on it. 6 Q. But we do know that -- well, if it's not you an 7 it's not Wilson then it's either Corey or Callis, or Paget, 8 is that correct? 9 A. I have no way of knowing. 10 Q. I don't either, it's not particularly important. 11 I'll offer those three exhibits into evidence if it please 12 the Court, 1290, I'm sorry, 1289, 1290 and 1291. 13 MR. MUSGRAVE: I would object again on-the same 14 basis as with regard to 1275, 1288, Your Honor, and 1275 the 15 subject matter. And I would object to 1289 on the grounds 16 that the author is not identified and there is no way to link 17 this up. 1289 to the meetings or meeting. There is no 18 author identified on exhibit 1290, and I would object on 19 those bases. 20 MR. CARR: Your Honor, with response to that, 1289 21 was described to the Court when they filed a motion 22 attempting to prevent us from getting those notes, was 23 described to the Court as notes of one of the employees of 24 Monsanto that attended that meeting,- they claimed 85 1 confidentiality for that reason, they identified this memo 2 themselves. All of those notes they have identified. 3 HR. MUSGRAVE: I wasn't aware of any such 4 identification, Your Honor, and I'm not aware of who the 5 author is. 6 THE COURT: Okay. I will admit them over 7 objection. All three, 1289, 1290, and 1291. 8 MR. CARR: And ask leave to pass copies to the 9 jury, please the Court. 10 THE COURT: Yes, you may. 11 (Plaintiff's Exhibit Nos. 1289, 1290, and 1291 passed to the 12 jury.) 13 Q. Nov/, Mr. Parks, to put things in a frame of 14 reference here, the Exhibit 1275, that is the memo dated, 15 written by you on June 6th, 1979, refers to the May 22nd 16 meeting, doesn't it, sir? 17 A. Yes, it does. 18 Q. And it contains a direct quote about Dr. Paget's 19 evaluation of the report relative to the 2,4-dichlorophenol 20 that was described in the Federal Register which prompted 21 that meeting, isn't that correct, sir? 22 A. It does contain a quote that apparently is from Dr. 23 Paget's evaluation, I cannot say at the moment whether that 24 is all of Dr. Paget's memorandum describing that. 86 1 Q. I didn't suggest that it was all, Mr. Park, if you 2 assumed that I meant it was all, I really don't know whether 3 it is all or part, this is all that I have of his evaluation, 4 however, his report was not given to me. 5 A, Yes. 6 Q. In any event, he describes the recently released 7 NCI bioassay study of 2,4,6-trichlorophenol in rats and shows 8 very weak carcinogenic responses in both species, points out 9 doses very large, 5,000, 10,000 parts per million and the 10 material tested was a commercial grade material analyzing at 11 least 17 impurities, and that TCDD was not analyzed for it, 12 is that correct, sir, did I read that more or less correctly? 13 A. Well, it says that it was commercial grade material 14 containing at least 17 impurities, and then as you say the 15 TCDD was not analyzed. 16 Q. Nov/ Exhibit 1290, that is Dr. Wilson's notes that 17 bears the date circled in the -- well, it has the five names, 18 four names and the initials of Dr. Wilson in the upper 19 right-hand corner, and in the middle of that exhibit, it 20 refers to the bioassay and in paragraph numbered 2 there, it 21 points out that 6 micrograms per two grams of total lifetime 22 dose of 2,3,7,8-TCDD is fatal to rats, and quote one part per 23 billion? 24 MR. MUSGRAVEs Mr. Carr -- Mr. Carr, I would 87 1 object. Your Honor, I don't know that he's reading this 2 correctly. 3 MR. CARR: Correct me if I'm wrong. 4 MR. CARR: I don't know, Mr. Carr, those are 5 handwritten notes of somebody else. 6 MR. CARR: Don't you have the note? 7 MR. MUSGRAVE: Yeah, I have the note but I can't 8 tell whether that's a two or twelve or kilogram mark and I 9 object. 10 MR. CARR: It is a kilogram mark. 11 MR. MUSGRAVE: You said two grams, 6 milligrams per 12 two grams. 13 MR. CARR: I'm sorry, I misread it. Thank you for 14 correcting me. It's 6 micrograms per kilogram and I did say 15 two grams, I did misread it. 6 micrograms per kilogram total 16 lifetime dose of 2,3,7,8-TCDD is fatal to rats, and then the 17 next line under that says 1 part per billion 2,3,7,8-TCDD in 18 2,4,6-TCP would cause effects described, do you see that, 19 sir? 20 A. I do see the note, yes, 21 Q. And, the next line says that in some if the TCP is 22 a carcinogen at all it is extremely weak, isn't that correct, 23 sir? 24 A. Yes. 88 1 Q. Now, was the only medical person there, the only 2 toxicologist there, was it Dr. Paget? 3 A. Assuming that those five were present, yes, yes, 4 Dr. Paget would be the only medical person. 5 Q. Well, the memo of 1275 says the above-named person 6 C. F. Callis, W. R. Corey, 6. E. Paget, J. D. Wilson and 7 yourself were the ones that were present? 8 A. That's correct. 9 Q. Now, and Paget is the -- was the resident 10 toxicologist or doctor at that time, was he not? 11 A. Yes. 12 Q. And he pointed out to the rest of you that this 13 2,4,6-TCP has the same effect that is the 5,000 and 10,000 14 parts per million of TCP in the diet would have the same 15 effect as one part per billion of 2,3,7,8-TCDD, he equates 16 the two, does he not? 17 A. I guess I don't see hov; we could draw that 18 conclusion, I don't know who the author of this Exhibit 1290 19 is. 20 Q. Well, I thought we identified that as being Dr. 21 Wilson, J. D. W.? 22 MR. MUSGRAVE: I think that was 1291, counsel? 23 A. Yeah. 24 Q. 1290 has his initials, Dr. Wilson wrote two memos 89 1 1291 and 1290 2 MR. MUSGRAVE: There is no testimony to that, Mr. 3 Carr, is there? 4 MR. CARR: The witness and I established that a 5 moment ago. It's really immaterial who wrote it, those are 6 notes that were taken of that -- if they are not Wilson's 7 then they are either Callis', Park's, Paget, and the witness 8 said Corey. They are not Park's, so it must be J.D.W.'s, 9 MR. MUSGRAVE: That's your -- I object to that 10 being your conclusion. 11 THE COURT: Well, I don't really think it's 12 material either, why don't you just move on. 13 MR. MUSGRAVE: Can his comment be stricken as to 14 whose it is if it's not material? 15 THE COURT: No, because I think it was supported by 16 what was said before. Your objection is overruled, and all 17 I'm saying it's not material, something that's material that 18 we can spend more time on. Mr. Carr, you may proceed. 19 MR. CARR: Your Honor, if there is any question 20 about it, counsel, just compare the NCI on the memo that's 21 signed by Dr. Wilson, 1291, and the NCI that's on document 22 1290 and much of the other writing if there is any question 23 at all in your mind that Dr. Wilson wrote the memo? 24 A. Counsel, I'm not prepared to say who the author of 90 1 1290 is. 2 Q. I 'm not asking you to. 3 A. Yeah, yeah. 4 Q. Do you -- and do you see the similarity, Dr., 5 rather Mr. Park in the writing? 6 A. Where is the NCI on 1290? 7 Q. On 1290 a number of places, one place is -- 8 A. Yeah, okay, I see that. 9 Q. You see that? 10 A. No, I guess I see a difference in the NCI on 1290 11 and 1291. 12 MR. MUSGRAVE: Are you trying to qualify him as 13 handwriting expert? If it doesn't make any difference why are 14 we going into this? 15 THE COURT; Gentlemen, that's enough, just go on. 16 Q, In any event, whoever the author is, wrote what was 17 discussed at that meeting, didn't he, sir, some 18 representative of Monsanto wrote this document, didn't he, 19 sir? 20 A. Yeah, in fairness, it isn't clear whether the 21 reference to one ppb 2,3,7,8-TCDD and so on came just from 22 the mind of the author of Exhibit 1290 or from someone else. 23 Q, Mr. Park, I really don't care whether it did or 24 not. It's not material to my purposes to know or identify 91 1 who said what. This is a document of Monsanto, written by 2 Monsanto, everybody there were representatives of Monsanto, 3 weren't they, sir? 4 A. Yes, there were, I'm sorry, you had asked earlier 5 if Dr. Paget had said that and I guess -- 6 Q. Well, what I asked you earlier was there any other 7 medical person there or toxicologist there other than Dr. 8 Paget? 9 A. None. 10 Q. All right. And, somehow or other this got written 11 down equating one part per billion of 2,3,7,8-TCDD with the 12 doses of dichlorophenol that was fed to those rats, isn't 13 that correct, sir? 14 MR. MUSGRAVE: Object to counsel's interpreting the 15 documents, interpreting the document, Your Honor,, the 16 document was not authored by this witness. He is now asking 17 the document to be interpreted by this witness and that's an 18 improper question to ask of this witness as to what this 19 document means other than what the words say, document 20 otherwise speaks for itself. 21 THE COURT: Objection is overruled. 22 MR. MUSGRAVE: May my entire -- I anticipate where 23 this is going, Your Honor, may the continued examination of 24 this witness with regard to interpreting Plaintiff's Exhibit 92 1 1290 and what it means other than what the document says on 2 it's face to the extent that the handwriting can be 3 deciphered, may my objection continue to run to all such 4 questions? 5 THE COURT: Without agreeing with your 6 characterization, I will allow your objection to be 7 continuing on to this line of questioning. It is so noted in 8 the record as a continuing objection. My ruling is the 9 same. Mr. Carr, you may proceed. 10 MR. CARR: Thank you, Your Honor. 11 Q. (by Mr. Carr) Mr. Park, does it state that one 12 part per billion of 2,3,7,8-TCDD, if it were in that batch of 13 2,4,6-trichlorophenol that was tested, would cause the 14 effects described? 15 A. Counsel, I'm reluctant to go beyond the notes that 16 someone took here. I can see them, I agree that this wording 17 does appear on this document, but I really cannot go into the 18 mind of the author. 19 Q. I'm not asking you to go into the mind of the 20 author, I'm asking you to read and understand the meaning of 21 those notes, Mr. Park, that it says would cause the effect 22 described, if it were in the 2,4,6-TCP, does it not, sir? 23 A. It does say that. 24 Q. VThat are the effects that were described? 93 X A, I 'm sorry, X have no idea what he's referring to. 2 Q. Turn to the document Plaintiff's Exhibit 1275, Mr. 3 Park. 4 A. Yes. 5 Q. And the effect described is a very weak 6 carcinogenic response in both species, isn't that correct, 7 sir? 8 MR. MUSGRAVE: You -- 9 A. This is an effect. 10 Q. I'm sorry? 11 A. Document 1275 -- 12 Q. Are there any other effects described other than 13 the carcinogenic effect? 14 A. Counselor, there may have been some effects 15 discussed at the meeting. 16 Q. Mr. Park, do you know of any other effects that 17 were discussed? 18 A. I cannot recall much about the meeting. 19 Q. Do you have any recollection of what was discussed 20 at the meeting at all? 21 A. Frankly I do not without the notes. 22 Q. We do have what is stated here and is there any 23 other description in the memo or anyplace else in your mind 24 of any effect other than a weak carcinogenic effect that was 94 1 associated with the bioassay study of 2,4f6-trichlorophenol? 2 A, I really feel I'm not in a position to interpret 3 someone else's document. 4 Q. I'm asking you to examine the document and tell me 5 whether or not there is any other effect described in those 6 documents other than what I've asked you about that it shows 7 a very weak carcinogenic effect? 8 A. May I point out that -- 9 Q. I would appreciate it, Mr. Park, if you would 10 answer that question so that I can move to the next question. 11 MR. MUSGRAVE: Which document are you referring to, 12 counsel? 13 Q. All the documents I've given him relating to the 14 May 22nd meeting. 15 MR. MUSGRAVE: Would you -- well, I think, Your 16 Honor, it's going to take a bit of time for this witness to 17 review all of those documents so he can attempt to answer 18 counsel's question. 19 MR. CARR: If he needs more time all he has to do, 20 counsel, is say so. I will not rush him. 21 A. Let me review those documents, then, to see if I 22 can see any reference to other effects. 23 Q. Please. If it would help you, Mr. Park, let me 24 hand you your memo of May 14th, *79. 95 1 A. Thank you. 2 Q. In which you refer to the report in the medical 3 register. 4 MR. MUSGRAVE: Are you asking him now, counsel, to 5 go beyond May 22? Can we have one question at the time so 6 the witness can focus on that. 7 THE COURT: I don't think another question was 8 asked. 9 MR. MUSGRAVE: I think -- 10 THE COURT: Wait a second, I think the record 11 reflects he was given another document if it might assist in 12 using such. I don't think that's a question, he was just 13 handed another document to help him. 14 A. I guess the only references to effects that I can 15 see in those documents are the references in the minutes of 16 the meeting and the Exhibits 1288, 1275, refer to the effect 17 in the NCI bioassay study. I point out that those two 18 memoranda were simply minutes of a meeting for one purpose 19 and were not intended to contain all matters discussed at the 20 meeting including -- 21 Q. Mr. Park -- 22 A. Any references to effects. 23 Q. I didn't suggest to you that they did. 24 A. Oh, okay. 96 1 Q. All I'm asking you is the -- and if you will look 2 at your own memo of May 14th, 1979, in which you have a 3 direct quote from the Federal Register report, that's the 4 reason I gave it to you to help you, it says, doesn't it, 5 sir, "under the conditions of this bioassay, 6 2,4,6,-trichlorophenol was carcinogenic in male F344 rats, i 7 inducing lymphomas or leukemias. The test chemical was also 8 carcinogenic in both sexes of B6C3F1 mice, inducing 9 hepatocellular carcinomas as or adenomas," Does that help 10 you? 11 A, That's correct, 12 Q. Now, those are cancers they are talking about, 13 aren't they, sir, lymphomas, leukemias, carcinomas, adnomas, 14 those are all cancers, aren't they, sir? 15 A, I believe so, 16 Q. What the Federal. Register published was that 17 2,4,6-trichlorophenol induced those cancers in those mice and 18 rats, isn't that correct, sir? 19 A. The very high doses, yes. 20 Q. Mr, Park, if you could just answer my question, I 21 read the doses, the doses were 5,000 to 10,000 or whatever 22 the dose was that X just read you, 5,000 to 10,000 parts per 23 million in the diet, right, sir? 24 A, Yes. 97 1 Q. And, the note that I'm referring you to 1290, the 2 notation says that one part per billion of 2,3,7,8-TCDD in 3 2,4,6-trichlorophenol would cause effects described, isn't 4 that correct, sir? 5 A. That's what it says. 6 Q. Now, what other effects are described in those 7 documents other than lymphomas, leukemias, hepatocellular 8 carcinomas or adnomas, all of which are cancerous? 9 A. I guess on my review here, I see no other effects, 10 I don't know that this reference, though, is to something 11 that would be expressed in those other documents. 12 Q. Mr. Park, I am not asking you to be psychic or to 13 go back and remember something that isn't in your mind, all 14 we have is the evidence in front of us here. We don't have 15 any shorthand notation of it, all we can do from those 16 documents attempt to deduce what you all discussed since none 17 of you have any memory of what you discussed. And, Mr. Park 18 19 MR. MUSGRAVE: Is that a question, Mr. Carr? 20 MR. CARRs No, I'm responding to his statement that 21 he's sorry he doesn't know exactly what went on. 22 MR. MUSGRAVE: I object, it's not a question. 23 Request it be stricken. 24 THE COURT: Overruled, it was properly given to the \ 98 1 witness in clarification 2 Q. (by Mr, Carr) Now, Mr. Park, you pointed out or 3 Dr. Paget pointed out in his note Exhibit 1275, that TCDD was 4 not analyzed for in the 2,4-triphenol that had been tested, 5 isn't that correct? 6 A. Yes. 7 Q. And, Mr. Park, you do know, don't you, sir, that 8 dioxins have been present in your trichlorophenol, your 9 dichlorophenol products at the level of 5 parts per million 10 in the past prior to the time you eliminated your caustic? 11 A. I'm sorry, I cannot recall that off the top of my 12 head, if you could -- 13 Q. Well, did you discuss when you made the decision 14 that you are not obligated to and that's the decision that 15 you made, that you are not obligated to inform the EPA of the 16 fact that your 2,4-D, your 2,4-dichlorophenol is not such a 17 chemical as needs to be reported, since it doesn't have a 18 substantial risk, did you all discuss at those meetings the 19 fact that dioxins were contained and had been found in your 20 2,4-dichlorophenol at relatively high levels? 21 A. I'm sure we discussed all relevant information, Mr. 22 Carr, this was what, five years ago. I suspect that you are 23 more familiar with those documents at this moment than I am. 24 Q. Mr. Park, if you knew that one part per billion of ' 99 1 2,3,7,8-TCDD in a product could cause cancer, in your 2 position as a representative of Monsanto on that committee 3 determining whether or not the EPA should be notified that 4 your products contained 2,3,7,8 or other dioxins that can 5 cause cancer, do you believe that the EPA should have been 6 notified? 7 A. I feel secure that the correct decision was reached 8 at those meetings. 9 Q. Then you believe then that the EPA should not be 10 notified? 11 A. That's correct. 12 Q. Because they weren't notified, were they, sir? 13 A. That's correct. 14 Q. Now, did you have given to you at that meeting any 15 toxicological information other than what is contained in 16 those notes that you know of, that you can remember? 17 A. There may have been. Off the top of my head, I 18 frankly/cannot recall at the moment. 19 Q. Well, then, if you can't recall it and if there 20 isn't anything else in those notes that can help you, then I 21 suppose we have to accept that this is the only information 22 that's available to us now, that is that one part per billion 23 of TCDD and 2,4,6-trichlorophenol would cause the effects 24 described that we have discussed, isn't that correct, Mr. 100 1 Park? 2 A. Mr, Carr, those are handwritten notes by someone I 3 don't know, I have no idea, 4 Q. I understand, 5 A. I have no idea what he was thinking of. 6 Q. No, I differ, you do know the person, you just 7 don't know which of those persons wrote this memo? 8 A. This reference to that I think we are referring to 9 is in document 1290, that the author is unknown, does not 10 appear to be the same handwriting to me as appears on 1291, 11 which is apparently authored by Jim Wilson. 12 Q, Well, I'm really not concerned in convincing you 13 whether it is or is not Jim Wilson's writing. The Judge has 14 ordered me not to proceed any further in that area, and I 15 don't intend to because it's not important. The only 16 important thing that is, is that you at this committee had 17 this information -- at least one person on that committee had 18 this information and knew this fact, isn't that a fair 19 statement, Mr. Park ? 20 MR. MUSGRAVE: What is this fact, Mr. Carr? 21 MR. CARR: One part per billion TCDD in 22 2,4-trichlorophenol would cause lymphomas, leukemias. 23 MR. MUSGRAVE: Just a moment. 24 MR. CARR: Hepatocellular carcinomas or adenomas. 101 1 MR, MUSGRAVE: Object, he's connecting the two up. 2 The witness cannot connect the two up. Mr. Carr is drawing 3 the conclusion, it's improper, I object. 4 THE COURT: Overruled. It's a proper question. 5 MR. CARR: I submit the witness has connected the 6 two up, there are no other effects described. 7 MR. MUSGRAVE: You've drawn the conclusion, Mr. 8 Carr. 9 THE COURT: Okay, I've ruled, it's a proper 10 question, Mr. Park. If you would answer the question, 11 please. 12 A. I didn't understand that it was a question, Your 13 Honor 14 THE COURT: Could you restate the question? 15 Q. Mr. Park, is there any other toxicological 16 information that you need, that you needed, that you have in 17 your mind to decide at that point in time whether or not the 18 EPA should be notified? 19 A. I can only assume on the basis of my memoranda that 20 all information propose to be considered was considered and a 21 conclusion was reached that the information before us simply 22 did not indicate a substantial risk of injury to health or 23 environment, therefore, section 8E did not require 24 notification. 102 1 Q. Would you make that same statement if your product ; 2 contained, oh, one -- one thousand parts per billion? 3 A. We would have to consider all the information about 4 the intended use, how it would go into a process, so forth, 5 there are other factors to be considered. 6 Q. Just assume that that's what the exposure is going 7 to consist of, that they are going to be at 1 thousand parts 8 per million of dioxin, 1 thousand parts per billion of 9 dioxin, that is 1 part per million? 10 A. I don't know that -- "1 11 MR. MUSGRAVE: Just a moment, Mr. Park. Are you 12 now asking this witness a hypothetical question? 13 MR. CARR: Yes, I am. 14 MR. MUSGRAVE: I object unless he wants to qualify 15 the witness as having the expertise in toxicology and 16 medicine so as to make determinations with regard to 17 substantial health hazards. 18 THE COURT: I don't think this question calls for 19 that kind of expertise. Objection is overruled. Mr. Park, 20 please answer the question. 21 A. I don't know that that fact alone would require 22 notification to the EPA under Section 8E. 23 Q. And why not, Doctor -- Mr. Park? 24 A. Because it might not effect a substantial risk to 103 1 health or environment. That is the requirement. 2 Q. At what level -- it's the level then that you are 3 saying doesn't present a substantial risk or is it because 4 it's dioxin and not cyanide? 5 A. No, it's -- it simply -- there must be other 6 factors. 7 Q. I'm sorry. I'm trying to find out what those other 8 factors are. Is it because it's one thousand parts per 9 billion of dioxin and not one thousand parts per billion of 10 cyanide in this product? 11 A. Very difficult to deal with such an abstract 12 example and not a real life one. 13 Q. Well, the real life one is that if there were a 14 thousand parts per billion of cyanide in your product that's 15 leaving your plant and that somebody is going to be exposed 16 to that thousand parts per billion of cyanide -- 17 A. Someone may not be exposed to it. The mere fact 18 that there is a thousand -- 19 Q. Are you taking into consideration whether someone 20 would or would not be exposed, Mr. Park? 21 A. I think exposure is a factor to be considered. 22 Q. Assume the exposure. Assume they will have 23 exposure to it. I'm asking you to assume that. 24 A. Yeah. Yeah. This is somewhat difficult because, 104 1 for example, the EPA -- 2 Q. Mr. Park, what I'm asking you to do, I'd like for 3 you to proceed along with me, so we can be as expeditious as 4 we can, I want you to assume that there is exposure to the 5 product that contains 1 thousand parts per billion of 6 cyanide. 7 MR, MUSGRAVE: Object, vague, it's the use of the 8 terra exposure. 9 THE COURT: Overruled. 10 A. I would have to say that I don't know that that 11 would require notification to the EPA. 12 Q. Well, do you know that it would not require or is 13 this a doubt in your mind? 14 A. If there was a situation where someone said, look, 15 I think we should sit down and discuss whether or not a 16 notification might be appropriate -- 17 Q. No, I'm not asking you that, what I'm asking you is 18 do you believe that a product containing 1 thousand parts per 19 billion of cyanide, if it contains that, that the EPA should 20 be notified of that fact under this Section 8E? 21 A. Not necessarily. The question is is there a 22 substantial risk of injury to health or the environment, that 23 is what's critical. 24 Q. Well, the question is is there a substantial risk 105 1 and that's the question that I'm asking you based upon the 2 work that you've done in this, to answer that question for 3 me? 4 A. Yeah, what I'm trying to do, sir, I would say, no, 5 it is not reportable until there is something more to 6 IrTSicate a substantial risk besides mere,^concentration. 7 Q. What more do you need, sir? 8 A. Someone who feels there is a substantial risk / 9 should describe it* 10 Q, What more do you need? What more do you need 11 before you can decide whether it is or is not a substantial 12 risk? 13 A. Well, here you've asked me, I was trying to 14 explain* Again, the vast majority of submissions to the EPA 15 under Section 8E have been results of toxicity studies on 16 chemicals. 17 Q. Mr. Park, I'm not asking you that question. 18 A. I know you are not. 19 Q. What I'm asking you is what are the risks that you 20 will consider before you decide that it is going to be 21 reported to the EPA? 22 A. It will -- 23 Q. What is a substantial risk? 24 A. Do we have information previously unknown to the 106 1 EPA that supports the conclusion that this chemical presents 2 a substantial risk of injury to health or the environment? 3 That is what we consider. 4 Q. Well, did you report to the EPA that your 5 2f4-dichlorophenol contained a dioxin or contained cyanide? 6 A. No. No. Huh-uh. 7 Q. Then it's information that they don't have, isn't 8 that correct, sir? 9 A. Yes. r~---- " 10 Q. If it's not reported. Now, it's in there and it 11 hasn't been reported, now I want to know what else do you 12 need to know before you're going to report that fact to the 13 EPA? 14 A. The facts that you have described so far simply 15 don't indicate a substantial risk of injury. 16 Q. What do you need to know more to tick this thing 17 off, that it causes cancer, that it causes paralysis? 18 Cyanide causes death. And I gave you a hypothetical assuming 19 a thousand parts per billion of cyanide, it causes death, no 20 question about that, is there, sir? 21 A. That's correct. It's acutely toxic. 22 Q. No question that causes death? 23 A. Right. 24 Q. Now, if your product contained one thousand parts 107 1 per billion of cyanide, as a member of this committee, do you 2 believe the EPA should be notified? 3 A. Of course, here you have questions as to what level 4 is cyanide toxic. As you know, it's found in nature in 5 seeds, for example. 6 Q. I'm just asking you what else do you need to know, 7 what other facts do you need to know? 8 A. You need to have facts that would indicate that a 9 chemical is going to present a substantial risk of injury to 10 health or the environment. 11 Q. Mr. Park, what you are doing is giving me the words 12 of the law back, and what I'm asking you, is you are a member 13 of this committee, a member that has met a number of times, I 14 have more than just one of those documents, a number of 15 documents in which you've met, and I am asking you, sir, what 16 are the risks that you consider substantial associated with 17 exposure to your chemical that will tick off this process of 18 notifying the EPA, what are the risks that you consider 19 substantial? 20 MR. MUSGRAVE: Your Honor, so the record again is 21 clear, I'd like to make two objections, request they be made i 22 continuing ones. One is to the continuing or the questioning 23 of the witnesses as to questions applying law to hypothetical 24 facts which are not stated with any specificity. The other 108 1 is that the question is vague and indefinite and calling upon 2 this witness to speculate and conjecture as to what certain 3 sets of facts might or might not require application of the 4 law again being objectionable. 5 THE COURT: Overruled on both, I will note it as a 6 continuing objection. 7 MR, MUSGRAVE: Thank you. 8 THE COURT: You are welcome. 9 A. I guess off the top of my head, I don't know that 10 out of all the 8E submissions to the EPA by everyone, there 11 have been any that dealt with concentration. There may have 12 been, but I don't know. The vast majority deal with new 13 health effects. That's the way this interpretative policy of 14 the EPA is structured. Deals with, really with toxicity 15 studies and reports that might indicate new health effects 16 not previously known now. If that -- 17 MR. CARR: Would you instruct the witness to answer 18 the question? I simply don't want to ask it all afternoon. 19 THE COURT: Mr. Park, you have to answer the 20 question as posed.< 21 A. I don't feel that one thousand parts per billion 22 cyanide in a product would in and of itself require 23 notification to the EPA. 24 Q. What other additional facts do you need is my / 109 ' 1 question, sir? You've answered that already, I want to know 2 -- Your Honor, must I ask this question over and over again, 3 could you direct the witness to answer the question? 4 THE COURT: Mr. Park, that was the question before 5 the last one. Please answer the last question posed. 6 A. All right, I would need to know', to have 7 information as to the anticipated exposure of health and the 8 environment 9 Q. Slow down a second, anticipated exposure and what 10 else, sir? 11 A. I guess type of exposure. 12 Q. Yes, type of exposure. 13 A. Toxicity of the product. And that we are concerned 14 with a newj o t previously known health effect. 15 Q. Now, on the latter, a new not previously known 16 health effect, do you interpret that to mean that you could 17 make a product which has a contaminant in it, let's say 50 18 percent cyanide, let's just suppose it's 2,4-dichlorophenol 19 that's going to be used in a number of ways, it's got 20 something like cyanide in it, and we all know that the toxic 21 effects of cyanide is well-known, you mean to say you don't 22 believe you'd have to notify the EPA that your product has 23 got cyanide in it simply because the toxic effects of cyanide 24 are known? ). 110 1 A. I would do that, look at the product as the whole, 2 Q. The product as a whole contains, and you don't want 3 it in there, it's a contaminant, your customers don't know 4 that it's in there, the EPA doesn't know that it's in there, 5 but you know that half of it is cyanide but yet you also know 6 that the EPA is aware of the toxic effects of cyanide, are 7 you saying because the toxic effects of cyanide are already 8 known to the EPA that you need not report the fact that this 9 particular batch of chemical is now instead of being a 10 hundred percent 2,4-dichlorophenol is in fact 50 percent 11 cyanide, are you saying you don't need to report that to the 12 EPA? 13 A. You are saying that -- I want to make sure I 14 understand your hypothetical, Mr. Carr. You are saying that 15 we suddenly learned that -- in fact, let's make hypothetical 16 manufacturer A over here suddenly learns that the product 17 that he thought was chemical X now is only 50 percent 18 chemical X and 50 percent cyanide? 19 Q. Yes. N 20 A. Of course there are probably other things that that 21 manufacturer ought to consider, he may elect not -- 22 Q. Mr. Park, we are not -- I don't want to get down 23 any other paths, I simply want to know whether or not you 24 mean what you say when you said it would have to be a new, 111 1 not previously known, health effect before you would report 2 the contaminant in your product to the EPA? 3 A. I guess if that manufacturer decided not to ship 4 that product, once he had learned, then -- 5 Q. We are not talking about -- we are talking about 6 because the product doesn't count unless it's shipped, you 7 don't have to notify the EPA if it is not shipped, so, you 8 know that, Hr. Park, and I don't need to include that in my 9 question. I don't need to do this fencing with you. Now 10 please answer the question. 11 A. I'm afraid you have me a little confused, the 12 question was would the EPA be, would there be an 8E c------- - ----- 13 notification requirement where knowledge was suddenly 14 obtained that half the product was cyanide. 15 Q. Even though the health effects and the toxicity of 16 cyanide are well-known to the EPA? 17 (pause) To what use? Is the use to which the 18 product is to be put part of the hypothetical? I think it 19 should be. 20 Q. Now, Mr. Park, you gave me that as one of the -- I 21 assume one of the conditions when you said anticipate 22 exposure, that would include use. 23 A. That's right. 24 Q. And type of exposure you gave me as one of those 112 1 elements, that it is a new not previously known health 2 effect, and I'm asking you does it have to be a new not 3 previously known health effect of the contaminant, or of the 4 prodtfctyf the product contains for the first time to the 5 EPA's knowledge 50 percent cyanide, do you not believe that 6 the EPA must be notified of that fact, even though the health 7 effects of cyanide are well-known, been knov/n for centuries? 8 A. There may be other reasons, but I don't believe 9 that 8E would require that notificationunder only those 10 circumstances. 11 Q. Then you would not be required, if you start -- if 12 you know that your product, because of some process change, 13 contains, it's now going out 50 percent cyanide, you don't 14 have to notify the EPA under Section 8E, is that what you are 15 saying, sir? 16 MR. MUSGRAVE: Been asked and answered. He's given 17 his answer to the question already, Your Honor. 18 THE COURT: I believe he answered, yes, that he 1**- * ~-i |M -- :-- -- 19 would not have to. I believe it was asked and answered. 20 Q. And why do you believe you would not have to notify 21 the EPA that this product now that you are shipping out 22 contains half cyanide? It's going on people's lawns, you 23 know what 2,4-dichlorophenol is used for, being put in oil 24 wells, kids are playing on the lawns, you know that, and you 113 1 -- the EPA doesn't have to be notified that half of it is 2 cyanide, is that what you are saying? 3 A. I'm sorry, your knowledge of the use of the product 4 exceeds mine, I'm sorry, but I think you are overly 5 broadening Section 8E of TSCA, it just is not intended to 6 apply to every situation, it applies to certain situations 7 where evidence arises that a chemical presents a substantial 8 risk. 9 Q. We know that cyanide presents a substantial risk, 10 do we know that, is there any question about health effects 11 of cyanide? Is there any question but what if any children 12 play on a lawn that was impregnated with cyanide there would 13 be a substantial health risk, is there a doubt in your mind, 14 Mr. Park? 15 A. I would think heavy exposure to cyanide would be, 16 could be a hazard. 17 Q. There is no question in your mind it would be a 18 substantial risk to the health of my children if they are 19 playing on a lawn that's covered with cyanide? 20 A. Yes, but, if the use of the cyanide were as an 21 imtermediate chemical so that it is impregnated in something 22 else, as happens for example, I believe with arsenic. 23 Q. Mr. Park -- 24 MR. MUSGRAVE: Just a moment, may he finish his 114 1 answer? 2 MR, CARR: Sure, 3 A. I think arsenic and gallium I believe now go into 4 the make-up of certain semi-conductor units, where they are 5 impregnated into what in a finished product is a glasslike 6 substance. There is no way anything can escape from it, can 7 get out of it. The EPA has recognized that the arsenic, 3 gallium arsenide presents no hazard to the environment. One . 9 could swallow it like a pill, it presents no hazard. 10 Q. Don't you think that the manufacturer that first 11 started using arsenic in his product was required under TSCA 12 to let the EPA know that so they could make a decision as to 13 whether or not that was in fact the arsenic was impregnated, 14 could not get out? 15 A. No, not under 8E would not require it. 16 Q. Some other more stringent requirement would come 17 into effect, wouldn't it? 18 MR. MUSGRAVE: We are talking about 8Er Mr. Carr, 19 that's where your questions are going? 20 THE COURT: Objection is overruled. 21 MR. MUSGRAVE: If you are talking about other law, 22 it's other law to be talked about. 23 THE COURT: Objection is overruled. 24 A. I don't know if it necessarily follows that a 115 1 government regulation would require that disclosure. I think 2 manufacturers apply careful thought into protection in the 3 way they manufacture and market the products as the rule. 4 Q. The manufacturer decides, if it's one of those 5 that's careful, then the law doesn't apply to it, is that 6 what you are saying, Mr. Park? 7 A. Not at all. I don't know of a law that would apply 8 in the way you describe. 9 Q. Mr. Park, are you now still of the view that the 10 EPA under any rule or regulation of which you have knowledge 11 doesn't have to be notified that your product is half cyanide 12 because of a change in manufacturing process simply because 13 the health effects of cyanide is well-known? 14 A. Vfell, of course now we have an OSHA, Occupational 15 Safety Health -16 Q. I'm not talking about OSHA, I'm talking about the 17 EPA and TSCA. Are you still maintaining that you are not 18 obligated to notify the EPA that half of your 19 2,4-dichlorophenol is cyanide. 20 MR. MUSGRAVE: Under what -- Mr. Carr, under 8E or 21 anything else? 22 Q. Are you still saying that, sir? 23 A. Saying there would be other factors that should be 24 considered. 116 'W 1 THE COURT: I didn't hear you. I didn't hear your 2 answer. 3 A. There are other factors which should be considered 4 in determining whether a notification to the EPA under 8E of 5 TSCA is required besides concentration in the product. 6 Q. You know that I am taking the points that you've 7 given me one at a time, please don't confuse it by throwing 8 in the other things, I'm talking now only on the point that 9 cyanide health effects are well-known, and I'm directing your 10 attention to that point. Do you still say that because the 11 health effects of cyanide is not a new effect that you, the 12 manufacturer of 2,4-dichlorophenol, you don't have to notify / 13 the EPA that it's half cyanide? Are you still saying that, 14 sir? 15 MR. MUSGRAVE: Under 8E, Mr. Carr, are you still 16 asking that? 17 Q. Are you still saying, Mr. Park -- 18 A. Your hypothetical -- your question is that if new 19 previously unknown information is that the product is now one 20 half cyanide, is the fact that the health effects of cyanide 21 were previously known a factor in consideration? 22 Q. No. More than that. You said that if it's -- it's 23 got to be a new health effect of the material in question 24 before you have to notify the EPA, that's what you said, Mr. 117 1 Park. Now, I 'm asking you again and again the health effects 2 of cyanide is well-known, there are -- there is nothing new 3 to be learned about cyanide, it's a deadly poison and it's 4 well-known. Now, are you still saying your product is half 5 cyanide, because the health effects of cyanide are 6 well-known, you do not have to report the 2,4-dichlorophenol 7 now contains cyanide, half cyanide? 8 A, No, I think other factors would have to be 9 considered. 10 Q. So that is no longer a factor, it is not a fact, is 11 it, sir, that the product in question, the poison in question 12 has to have new health effects it's not a factor at all, it's 13 the product you are talking about that contains the poison, 14 isn't that correct, sir? 15 A. It's the total product, I think. 16 Q. Which contains the poison. Now, simply because the 17 2,3,7,8-TCDD toxic effects is well-known, just like the 18 health effects of cyanide is well-known, that does not 19 relieve you, the manufacturer, of the obligation reported / 20 under TSCA, does it, sir? 21 A. It would be considered with other factors. 22 Q. My question is it does not permit you to ignore the 23 toxicity of that product, of that contaminant, even though 24 the health effects of 2,3,7,8-TCDD is well-known, isn't that 118 1 correct, sir? 2 A. Mr. Carr, I don't know that to what extent the 3 health effects of 2,3,7,8 are well-known. \ 4 Q, That's not what I'm asking you. 5 A. I'm sorry, I thought you did. 6 Q. Just consider the health effects that are known 7 associated with 2,3,7,8, that it is a carcinogen, as your 8 notes indicate, it's a carcinogen, no new health effects came 9 in about 2,3,7,8 in this meeting, you learned nothing new 10 about it. 11 MR. MUSGRAVE: Object to the reference to his notes 12 as the carcinogen. We are talking about humans, talking 13 about animal species. Object to the question as misstating 14 the evidence. 15 THE COURT: Overruled. 16 A. I think it was probably concluded -- 17 Q. Mr. Park, please direct your attention to the 18 question that I'm asking you about. Isn't it a fact that you 19 don't need to consider the health effects of 2,3,7,8 or need 20 to consider that there must be some new health effects of 21 2,3,7,8 that requires you to be aware of that before you 22 notify the EPA that 2,3,7,8 is in your product, or cyanide is 23 in your product, or arsenic is in your product, or any other 24 substance that has a substantial risk of harm to those 119 1 persons that are exposed to it? Isn't that a fact, Mr. Park? 2 A. Certainly there would be a number of factors to be 3 considered. 4 Q. Mr. Park, that isn't what I'm asking you, I'm 5 directing your attention to one factor alone at this time. 6 Could you answer that question, please, sir? 7 A. And that question, would you mind repeating the 8 question, Mr. Carr? 9 Q. Mr. Park, isn't it a fact that you are not released 10 from reporting the presence of toxic substances in your 11 product simply because the health effects of the toxic 12 substances are well-known and it's not new that those toxic 13 substances have injurious health effects? 14 A. I feel that that fact alone would not relieve a 15 manufacturer of an obligation to report. 16 Q. Thank you, sir. 17 A, There might be other factors that would. 18 Q. I understand that, that's all I'm asking you about 19 is that factor. 20 THE COURT: Mr. Carr, is this a good point for a 21 short break? 22 MR. CARR: Yes. 23 THE COURT: Ladies and gentlemen, we will 'take a 24 short break at this time. And the admonishments that I've 120 1 given you earlier during the other breaks will apply during 2 this one also. Court is in a short recess. 3 (Following a recess, these proceedings were had in open 4 court.) 5 Q. (by Mr. Carr) Now, Mr, Park, I think you mentioned 6 the other two or three elements that you would need to 7 consider before you notify OSHA would be the toxicity of the 8 product, the type of exposure, and the anticipated exposure, 9 correct, sir? 10 A. Yes, I don't know that I intended those would be, 11 they would be exclusive, could well be other factors. 12 Q. I want to know those other factors, sir, that 13 causes this committee -- 14 A. Mr. Carr, I don't knov; if I could tell you all the 15 factors we consider, the Statute, as you know, is extremely 16 brief. 17 Q. What I want to know is the factors that you, as 18 part of this committee considers before you determine whether 19 or not you are going to notify the EPA that you have a 20 product that has a substantial risk or hazard associated with 21 it as far as the public is concerned? 22 A. The Statute, I believe, is just one sentence, at 23 most two, it's very brief, and we would consider everything 24 that might have any relevance whatsoever to a determination 121 1 of substantial risk of injury. 2 Q. Tell me what those things are, sir? 3 A. Might have with a given situation? 4 Q. Well, the situation we are discussing right now is 5 this 2,4-dichlorophenol that Monsanto is manufacturing and 6 that you've discussed at those meetings in May and your memos 7 in June? 8 A. All right, we are no longer discussing 9 hypotheticals then? 10 Q. No, we are discussing right now, we have taken care 11 of one of your four requirements, and you now, since the 12 recess there may be other requirements, other things, that 13 you will consider. I want to know what they are. 14 A. Mr. Carr, again, this was five years ago, I deal 15 with a great many matters, I'm looking at those two 16 memoranda, I cannot pull back into my mind every bit of the 17 discussion that went on at those two meetings. 18 Q. Mr. Park, I didn't ask you that, 19 A. No, what you are asking me -- 20 Q. I asked you for -- now, I don't want to jump ahead 21 in this examination that I have, but you are presently doing 22 the same thing that you did in 1979, you are still part of 23 that committee that has the obligation to decide whether you 24 will or will not notify the EPA that there are substantial 122 1 hazards associated with your product, isn't that correct, 2 sir? 3 A. Whether there would be -- 4 Q. You are still on that committee, aren't you? 5 A. Whether -- 6 A. You are still on that committee, aren't you, sir? 7 A* That's correct, 8 Q. And you have exercised your function, you 9 participated as late as January of this year, according to 10 documents that were delivered to me at 1:30 today, isn't that 11 correct, sir? 12 A, That's correct. 13 Q. And you are considering today the law hasn't 14 changed in the meantime, has it, sir? 15 A. No. 16 Q. The lav/ is the same as it was when it was enacted 17 by Congress and signed by the President. I don't know who 18 was President then, *77, somebody was President, but in any 19 event, that is the same law that you are operating under 20 today, hasn't changed, has it, sir? 21 A. That's correct. 22 Q. And the considerations haven't changed, the 23 elements that you must consider haven't changed, isn't that 24 correct, sir? 123 1 A. I might point out -- 2 Q. Could you answer that question, please, sir, I'm 3 not really interested in you pointing out, I'm interested in 4 you answering that question. 5 A. The law has not been judicially interpreted, it is 6 still one sentence. 7 Q. Did I ask you that, Hr. Park, I asked you is the 8 lav; the same today as it was in 1977, *78, and *79, sir? 9 A. That's correct. 10 Q. And you are -- you are considering the same things 11 today in making your judgment as to whether or not you notify 12 the EPA as you are considering in 1979, isn't that correct, 13 sir? \ 14 A. It might vary with the situation. 15 Q. The only variance would be if there are different 16 health effects from a particular chemical, isn't that 17 correct, sir, everything else is the same, it's the health 18 effects that we are talking about, that's what the whole law 19 is about, is it not, sir? 20 MR. MUSGRAVE: Which question, Mr. Carr? Object to 21 the multiplicity. 22 THE COURT: Overruled. 23 Q. (by Mr. Carr) Isn't that the only thing that the 24 law is about is the health effects on human beings, at least 124 1 that section of the law that I 'm asking you about now, not 2 the environment and not, although that is a part of it, but 3 what I am concerned with and what this case is concerned 4 about are human beings, now, that is what that law is about, 5 isn1t it, sir? 6 A. Well, the law specifically reads health and the 7 environment. 8 Q. Yes, and I 'm now talking about health, health of 9 human beings, isn't it, sir? 10 A. Yes. 11 Q. And was health in *77, *78, *79 and today, isn't 12 it, sir? 13 A. That's correct. 14 Q. So the only thing that might vary is whether or not 15 the chemical you are producing today might have different 16 health effects. Now, if you learn today that a chemical that 17 you had thought was harmless in '77, if you learned today for 18 the first time that a chemical thought to be harmless in *77 19 because you studied it and you've investigated and put it in 20 the laboratory, if you found today that what had been 21 considered a harmless chemical was no longer harmless, that 22 is your duty, your obligated to notify the EPA, isn't that 23 correct, sir? 24 A. If we determine there is a substantial risk of 125 1 injury to health or the environment, we will do so. 2 Q. Is the answer to my question yes? ~~ 3 4 Q. Are you saying, Mr. Park, that if you discovered 5 today for the first time that there were new health effects 6 in what had been theretofore thought to be a harmless 7 chemical, that you are not obligated to notify the EPA? I 8 thought I spent a half an hour on that point with you? 9 A. Mr. Carr, you probably know the Statute as well as 10 I do, you know. 11 Q. Mr. Park, could you please answer that question? 12 MR. MUSGRAVE: He's trying to, Mr. Carr. 13 A. I did. 14 Q. And if you discovered that one of your chemicals 15 that everybody had thought was harmless before your 16 laboratories, you had bioassays and you had toxicological 17 studies conducted and you found that that chemical thought to 18 be harmless in fact is not harmless, that it is harmful to 19 human beings, are you saying that you are not obligated to 20 report that discovery to the EPA? 21 A. I'm saying that a group -- 22 Q. Could you answer that question, please, sir? 23 MR. MUSGRAVE: Object, it's vague. 24 THE COURT: Overruled? 126 1 A, We may not be, depending upon it's use, anticipated 2 exposure, whatever, other factors. 3 Q. You are bringing the other factors into play again 4 then, anticipated exposure and use, I'm talking about -- 5 those are other points that we will get to. I'm talking 6 about the health effects, Doctor, Mr. Park? 7 A. Yes. 8 Q. Other things being equal, if you find new health 9 effects, harmful health effectf from your chemicals, you are 10 obligated to report that, aren't you, sir? 11 A. That alone might not be sufficient to require a 12 notification. 13 Q. Mr. Park, I'm asking you to assume the other things 14 are there, only that you've got the other elements that 15 ryou've required, but you have now discovered that this 16 heretofore thought to be harmless chemical is now harmful, 17 hypothetically speaking, and assume all the other elements 18 are that that is in your mind necessary, the law obliges you 19 to report it to the EPA, doesn't it, Mr. Park? 20 A. The law obligates us to report whenever there is a 21 substantial risk of injury or of health or environment and 22 that we do. 23 MR. CARR: Would you instruct the v/itness to 24 answer? 127 1 THE COURT: Please assume them and answer the 2 question as posed? 3 A. If I must answer, as I understood the question I'd cr " 4 have to answer no. r-- -------- 5 Q. And -- 6 Q. I feel it's an improper hypothetical. 7 Q. And have you been -- Mr. Park, you understand that 8 you are not the judge of that, the Court is the judge whether 9 or not it's proper, you cannot take the law into your hands 10 in this courtroom, Mr. Park, you understand that, don't you, 11 sir? You are a lawyer, you understand that, don't you, sir? 12 A. Certainly. 13 Q. And if the Court tells you to assume certain facts 14 and by ruling on the question whether he's right or wrong, it 15 isn't for you to decide, he has told you that you must assume 16 those facts and now you are saying that it is an improper 17 hypothetical, you have taken unto yourself the obligation and 18 function of the Court, Mr. Park, and I please ask you to obey 19 the Court. Will you assume that it is a proper hypothetical 20 question and answer, sir? 21 A. All right, I think I did so, Mr. Carr. 22 Q. And your answer is still no, even assuming the 23 hypothetical is proper? 24 A. Yes. 128 1 Q. Now, are you giving -- when you sit on this 2 committee, Mr. Park, are you advising the other members of 3 this committee of your view of what you at Monsanto are 4 obligated to do, are you doing that job? 5 A. I'm trying to interpret the law to this committee. 6 Q. And you have been advising Monsanto in the same 7 framework as you have been discussing it with us today? 8 A. No, we don't deal with hypothetical, Mr. Carr. 9 Q. Is that correct? 10 A. No, we deal with actual situations that arise. 11 Q. And did you understand that my hypothetical wasn't 12 telling you to assume that it's a real life situation, did 13 you misunderstand the question, Mr. Park? 14 A. I understood you to describe to me a hypothetical 15 situation that I was required to answer. 16 Q. Mr. Park, you understand that when we in the law 17 use the word hypothetical, that you must assume that it is a 18 true life situation, you understand that, Mr. Park? 19 A. Well, Mr. Carr, but your description was 20 incomplete. 21 Q. You understand that Mr. Park or not? 22 A. It -- 23 Q. Because I don't wish to continue this unless you do 24 understand those basic rules, if I think a word means 129 1 something and you think it means something else, we can't 2 communicate. Now do you understand that you must assume this 3 is a real life situation that I'm giving you, that it really 4 occurred, that you really discovered that one of your 5 products that you thought to be harmless has now, you've 6 discovered it's, harmful that it hurts people, it kills 7 people, it paralyzes people, does all kind of horrible things 8 to people, do you persist in your judgment, sir, that you are 9 not obligated to tell the EPA that this harmless chemical is XO not harmless? 11 A. Now, are you referring to an obligation under 12 Section 8E? 13 MR. CARR: Your Honor, would you direct the witness 14 to answer that question? 15 THE COURT: Mr. Park, you have to answer the 16 question as posed. It's a proper question. 17 A. Under the circumstances described, Section 8E would 18 not require a notification of the EPA, and in the absence of 19 other considerations -- 20 Q. And, that is the way you've been administering the 21 requirements, the v/ay you at Monsanto have been interpreting 22 and administering the requirements since it's enactment, is 23 that correct, Mr. Park? 24 A. We consider all factors -- 130 1 Q. Excuse me, that's the way you've been interpreting 2 and administering the Statute since it's enactment in 1977? 3 A. We consider all factors. 4 MR. CARR: Your Honor, would you direct the witness 5 to answer? 6 THE COURT; Mr. Park, again, and you are licensed 7 in Missouri, I really don't have to tell you this again. 8 Answer the question as posed, Mr. Park. ' 9 A, Yes. 10 Q. And, is that true of all the products that come to 11 your attention, not just the chlorinated phenols, but the 12 wide range of products that Monsanto makes? 13 A. Yes, we comply fully with the laws requirements. 14 Q. Mr. Park, I didn't ask you that, I asked you 15 whether or not you use the same judgment and interpretation 16 with all the products as you have described to us today in 17 answer to my questions, or is that correct, sir, you do use 18 that same judgment with all Monsanto products? 19 A. We comply fully with all requirements. 20 MR. CARR: Your Honor, would you direct -- 21 A. Yes. 22 MR. CARR: -- the witness to answer that question? 23 THE COURT: Mr. Park, just answer the question. 24 It's perfectly clear. What is your answer, Mr. Park? 131 1 A. Your Honor, I feel that Mr. Carr is trying to 2 develop an appearance that we don't consider all factors. 3 THE COURT: Mr. Park, I don't care what your 4 feeling are about whatever Mr. Carr is trying to do with his 5 questioning. You have an obligation as a sworn witness to 6 answer the question as posed, and you are licensed in a 7 couple states, you know that. I'm licensed in Missouri, too, 8 I know the rules are not different over there. Now, please 9 answer the question as posed. 10 A. I would answer it. Your Honor, but he's posed a 11 question requiring a yes or no that -- 12 THE COURT: I believe that it can be answered by a 13 yes or no, I'm directing you to answer. 14 MR. MUSGRAVE: May my objection be noted requiring 15 the witness to answer yes or no when he wants to give an 16 explanation? 17 THE COURT: Your objection is noted, objection is 18 overruled. Mr. Park, please answer the question. 19 A. Then I would respond yes. 20 THE COURT: Thank you. 21 Q. (by Mr. Carr) Now, Mr. Park, another element that 22 you mentioned and is -- dealing with the toxicity of the 23 product now, assume at what level of contamination of your 24 products with 2,3,7,8-TCDD or some, or the dioxins in 132 1 general, at what level do you believe is required before you 2 think Monsanto should notify the EPA under TSCA, assuming 3 other things being equal, 4 MR, MUSGRAVE: I object to the question as calling 5 for the witness to state conclusions that are medical or 6 toxicological in nature, and I don't believe he's been 7 qualified as an expert in that catagory. 8 THE COURT: Overruled, I don't think they do call 9 for that. 10 A. I don't really know what to say, Mr. Carr, I am not 11 a toxicologists I rely on our experts in our Medical 12 Department. 13 Q. I understand that, but you've been relying on those 14 experts for a number of years, they have given you your 15 advice, you sit as a committee, you participate in those, you 16 make those decisions based upon what you know about 17 toxicology, don't you, sir? 18 A, Not on the basis of what I know, I think it would 19 presumptious of me -- 20 MR. MUSGRAVE: Just a moment. 21 Q. From what you've been told -- 22 MR. MUSGRAVE: Just a moment, Mr. Carr, may he 23 finish his answer, Mr. Carr? 24 THE COURT: You may finish your answer. 133 1 HR. MUSGRAVE: Go ahead. 2 A. I think it would be presumptious of me to express 3 views on toxicology when it is not my field when we have 4 available to us at those meetings, where we consider how to 5 respond to this reporting requirement, qualified experts in 6 our Medical Department. 7 Q. Mr. Park, the memos that you have in front of you 8 that you prepared, that you wrote, that bear your signature, 9 you consider, do you not, the toxicity of the product, don't 10 you discuss it in those memos, the toxicity of the product? 11 A. I certainly do, please understand that those -- 12 Q. Mr. Park, I understand that you are not a 13 toxicologist, that you act upon information given to you by 14 those that you consider to be certain at that meeting, now, 15 bearing that in mind, Mr. Park, at what level for 16 2,4-dichlorophenol, at what level do you consider it requires 17 notification to the EPA that dioxin is there? 18 MR. MUSGRAVE: Same objection. 19 THE COURT: Same ruling. 20 Q. If there is any level, there may not be any level. 21 A. I really have no idea, Mr. Carr, 22 Q. Have you not been advised, at least meetings as to 23 the levels of dioxin content of the product? 24 A. I would certainly have been made aware of all 134 X information that was presented at the meetings. 2 Q. My question is, sir, have you not been advised at 3 those meetings of the level of dioxin content? Now, 4 directing your attention specifically to this meeting, the 5 meetings in May and June dealing with the 2,4-dichlorophenol? 6 A. I would certainly be aware of the information 7 that's expressed in those memoranda. 8 Q. Mr. Park, at those meetings, did the toxicologist 9 present tell you the levels at which the 2,3,7,8-TCDD is 10 toxic? We have the information here that one part per 11 billion in TCDD in 2,4,6-trichlorophenol would cause cancer 12 in those animals that were tested. 13 MR. MUSGRAVE: Object to that, that's counsels 14 interpretation. The document speaks for itself. I continue 15 my objection. 16 THE COURT: Overruled. It is a continuing 17 objection, and it has been so noted. 18 Q. (by Mr. Carr) Nov;, were you given information as 19 to other levels of dioxin contaminant other than the one part 20 per billion that you know of? 21 A. I don't even know of that, Mr. Carr, beyond just 22 this reference in this one memo with -- 23 Q. Well, is there any other information that you have 24 available to you other than those memos and those notes as to 135 1 what level of contamination was discussed with reference to 2 dioxins? 3 A. At those two meetings? 4 Q. Yes* i 5 A. X note here down in the beginning of the bottom 6 paragraph on the first page, of the May 14, 1979 memorandum, 7 that is Exhibit 1288, says, nIt was mentioned that the 8 product (93% 2,4-dichlorophenol) may contain mono-, di-, 9 tri-, and tetrachlorodibenzo-dioxins in trace amounts* After 10 a process change the product contain no detectable dioxin (at 11 the detection level of 10-20 parts per billion). 12 Q. And did you accept that as fact at that time that, 13 after the process changed there was no detectable dioxin at 14 this level of 10 to 20 parts per billion? 15 A. Yes. 16 Q. And, you got that information, I take it, from the 17 chemists involved, the analytic chemists, perhaps Mr. Wilson, 18 Dr. Wilson? 19 A. Certainly from someone at the meeting. 20 Q. And, they -- he told you that it was present in 21 trace amounts prior to the process change? 22 A. Yes. 23 Q. And what did you consider, what do you consider to 24 be trace amounts? 136 1 A. . Those are amounts that are quite low. 2 Q. I know that, but at what level-, what you consider 3 trace amounts? 4 A. Okay, I would consider trace amounts, you know, 5 that's something I guess that may have with time, five years 6 ago I have no idea really what it would mean. 7 Q. Well, what do you consider it means today then? 8 A. I have no idea. I would guess it would mean -- 9 MR. MUSGRAVE: I object to the witness guessing, I 10 object to what the witness may today think trace amounts mean \ 11 when we are talking about a document and what a document 12 meant back in May of 1979. 13 THE COURT: Overruled. 14 A. Five years or so trace amounts could be anything 15 from probably parts per billion to parts per million 16 depending upon the analytical capabilities. 17 Q. And what is your idea of trace amounts today? 18 A. I think it would depend upon the same thing in the 19 products. 20 Q. Well, the 2,4-dichlorophenol, Santophen, 21 orthochlorophenol? 22 A. I think the term trace amounts is used when it's 23 felt that the amounts are so small as to not be significant. 24 Q. My question is, Mr. Park, what are -- and you still 137 1 are meeting on those committees and you discussed it just as 2 late as January the 25th, because the memo was delivered to 3 me two hours ago that you had such a meeting in which you 4 discussed the levels of dioxin. Please don't fence with me, 5 Mr. Park, the meeting was just a couple of months ago. What 6 do you consider trace amounts? 7 MR. MUSGRAVE: I object Your Honor, he's asked.him 8 and he's answered the question. 9 THE COURT: Overruled. 10 Q. The level? 11 A. I'm not a toxicologist, Mr. Carr, I would -- if a 12 toxicologist tells me trace amounts are present, I guess I 13 don't feel I need to go further, there would be something 14 insignificant. 15 Q. You are saying at those meetings you do not cover, 16 you do not discuss the level of contamination? 17 A. It would if it was significant. 18 Q. Well, what re the levels that you consider 19 significant then, put it -- that would be non-trace, I take 20 it? 21 A. (pause) You are asking me levels of what would I 22 consider significant, because I guess it would vary, I really 23 am reluctant. 24 Q. 2,4-dichlorophenol, orthochlorophenol-crude, 138 1 parachlorophenol/ Santophen, what levels do you consider to 2 be significant, sirr that, is by your definition they would 3 not be trace? 4 A. Mr. Carr, don't we have toxicologists that have or 5 will testify here that can give you a much more qualified 6 response? 7 Q. Mr. Park, they have been and will be examined 8 insofar as their knowledge is concerned. You are being 9 examined at this time with all due respect, Mr. Park, about 10 your knowledge of the matter, because you all jointly go 11 together and you make up Monsanto -- you make the decisions 12 for Monsanto as to whether or not you notify EPA, whether or 13 not you notify the people at Sturgeon, whether or not you 14 notify the workers in the plant. You are Monsanto, you are 15 part of it, I'm asking you now about your knowledge, what do 16 you consider significant amounts based upon your experience 17 in this department? For twenty years or longer you've been 18 doing the work and having conference after conference with 19 medical doctors, conference after conference on health 20 effects, conference after conference with chemists on levels 21 and amounts, conference after conference with toxicologists 22 I'm. Asking you, Mr. Park, what you've learned in that 23 period of time and what you consider to be significant 24 amounts of dioxin in the chemicals produced by Monsanto. 139 1 MR. MUSGRAVE: Object to counsel's speech, request 2 it be stricken, assuming facts that are not in evidence, have 3 never been proven. 4 THE COURT: Overruled. Proper question. 5 A. I guess I would consider trace amounts to be parts 6 per billion up into parts per million. 7 Q. At what level? 8 MR. MUSGRAVE: Object to witness' guess, Your 9 Honor, request it be stricken. We are not here to have 10 witnesses guess. 11 THE COURT: Overruled. / 12 Q. At what level of parts per billion, Mr. -- did it 13 start at one, at two? 14 A. I simply cannot go any further, I'm not a 15 toxicologist, I'm not a chemist. 16 Q. Mr. Park, we have gone through this a number of 17 times, do you not consider that level when you have those 18 meetings? 19 MR. MUSGRAVE: You mean Mr. Park or others? 20 Q. Do you not, Mr. Park, do you not as the member of 21 the committee that considers whether or not the EPA should be 22 notified, do you not consider the level of contamination? 23 A. If the meeting concerns something of that sort, 24 then -- 140 1 Q. That's what we are talking about, Mr. Park. 2 MR. MUSGRAVE: Well, you didn't tell him that, Mr. 3 Carr, you just said do you not consider, didn't give him any 4 particular facts. 5 THE COURT: Go ahead, Mr. Carr. 6 Q. Would you answer the question, please? 7 A, The trace amounts would be again from I guess 8 detectable amounts up to so many parts per million, something 9 less perhaps than one percent. 10 Q. Detectable amounts, you have the capacity to detect 11 it then it is not a trace chemical, is that correct? 12 A. No. No. No. You have to detect it before it can 13 become a trace. 14 Q. Well, what is it, at what level? 15 A. Anything let's say up to one percent. 16 Q. Anything that you can detect up to one percent is 17 considered a significant amount? 18 A. See, your question was what would I consider trace. 19 Q. Or is it anything from detectable levels up to one 20 percent is considered trace, which do you mean, Mr. Park? 21 A. Do I understand your question, Mr. Carr, that you 22 are asking me to describe what I would consider trace 23 amount? 24 Q. You gave to me that you would consider trace 141 1 amounts to be something other than significant, so either way 2 you want to look at it, what do you consider trace amounts, 3 or to put it another way, what could you consider to be of 4 significance for dixoin in your chlorinated phenols? 5 A. As a lawyer responding to a chemist's question, I 6 would say I would guess that, depending upon the substance, a 7 trace amount could be anything, any concentration perhaps up 8 to 1 percent. 9 Q. I 'm sorry, your voice dropped and I could not hear 10 your answer. Would you repeat it please, sir, what do you 11 consider trace amounts in chlorinated phenols for dioxin? 12 THE COURT: I had trouble hearing the last part, 13 too, if you would repeat it, Hr. Park? 14 A. Okay. 15 THE COURT: Your voice dropped right toward the 16 end. 17 A. When pressed I would guess that in my view, a trace 18 amount depending upon the chemicals involved -- 19 Q. Mr. Park, I gave you the chemicals. Mr. Park, 20 don't fence on that, chemicals are chlorinated phenols, tell 21 me what you consider as a member of this committee to be 22 trace amounts of dioxins in chlorinated phenols. 23 MR. MUSGRAVE: Ion Object to his prior question will 24 be noted, Your Honor? 142 1 THE COURT: It's noted 2 A. (pause) If your question is directed toward those 3 memoranda, it may be able to be determined what the trace 4 amount referred to specifically right here. 5 MR. CARR: Your Honor, would you direct the witness G to answer? ^ 7 THE COURT: Mr. Park, that wasn't the question, 8 please answer the question as posed. 9 A. Well, if I 'm required to answer. 10 THE COURT: Yes, you are, Mr. Park. 11 A. I would guess that a trace amount in general means 12 something up to several parts per million. 13 Q. I'm sorry? 14 A. Up to several parts per million. 15 THE COURT: Thank you. 16 Q . And -- 17 MR. MUSGRAVE: Again for the record, I object to 18 the witness guessing. 19 THE COURT: So noted. 20 Q. And what is your view of several? 21 MR. MUSGRAVE: View of several? 22 Q. What do you mean when you say several? 23 A. I really don't know, Mr. Carr, I do not know. 24 Q. You know what you mean, Mr. Park. I'm asking you 143 1 what is your definition of the word "several"? 2 A. I've done my best to explain that I do not know not 3 being a chemist, not being schooled. 4 Q. Mr. Park, you are misunderstanding my question, I 5 simply want you to define a word that you use every day. 6 When you use the word several, what do you mean? 7 A. I do not know what I mean in terms of trace 8 amounts, Mr. Carr. 9 Q. I'm not even asking you in terms of trace amounts, 10 you said several parts per million, I'm simply trying to find 11 out is one several? 12 A. . I don't know, Mr. Carr. 13 Q. You don't know whether or not one is several, Mr. 14 Park. Well, perhaps is two several? 15 A. I don't know. 16 Q. Is three several? 17 A. I don't know. 18 Q* Sir? 19 A. I don't know. 20 Q- Is four several? 21 A. I don't know. 22 Q. Is five several? 23 A. I don't know. 24 Q. Is six 1several? 144 1 A, I don't know. 2 Q. Is a thousand several? 3 A. A thousand may be a little more than several. 4 Q. Well, then is 900 several? 5 A. I don't know. 6 Q. Is eight several? v 7 A. I don't know. 8 Q. Is twenty several? 9 A. I don't know. 10 Q. Is thirty several? 11 A. Could be. 12 Q. Could be? 13 A. Yes. 14 Q. Mr. Park, when you took the bar exam, I'm sure some 15 of those questions included the word several, didn't it, 16 sir? 17 MR. MUSGRAVE: Object, that has nothing to do in 18 the context of a question asked of this witness with regard 19 to a field he has no expertise in as to what might constitute 20 several parts per million as being trace. Object as improper 21 question. 22 THE COURT: Overruled, does not deal with that at 23 all. 24 A. I don't recall, Mr. Carr. 145 1 Q. When you see -- when you come home and you tell 2 your son or your daughter, I saw several children on the 3 street today, what is the limits, the lower limit that you 4 would define or use the word several with, the very lowest 5 limit that you would use the word several in connection with? 6 A. I don't know, Hr. Carr. 7 MR. CARR: Your Honor, would you direct the witness 8 to ansv/er that question? 9 MR. MUSGRAVE: He has answered the question, he 10 doesn't know. There is nothing in the law that says a 11 witness cannot say he doesn't know. 12 Q. Okay, I'll accept that for the moment. 13 THE COURT; Okay. 14 Q. If you don't know then one could be several, 15 couldn't it, sir? 16 A. Possibly. 17 THE COURT: Mr. Carr -- 18 Q. We have got it defined that several can be between 19 one and thirty, don't we, sir? 20 A. Yes, at that point -- I didn't intend to so limit 21 it. 22 THE COURT; We will take about a five minute break 23 and we will resume testimony. The admonishments I gave you 24 earlier will apply during this break also. Court is in a 146 1 very short recess. 2 (Following a recess, these proceedings were had in open 3 court.) 4 Q. (by Hr. Carr) Now, Mr. Park, if I understand you 5 correctly, products that contain what you believe to be trace 6 amounts of the contaminant such as dioxins, need not be 7 reported under the TSCA Section 8E, is that correct, sir? A. I wouldn't want to make that general a statement, 9 Mr. Carr, there might be other factors that could require. 10 Q. The factors we are talking about is dioxin content 11 of the chlorinated phenols, that's the factors that we are 12 talking about, Mr. Park. Have I correctly quoted you? Do I 13 understand you to say that chlorinated phenols that contain 14 v/hat you define as trace amounts of dioxin need not be 15 reported to the EPA under Section 8E of the toxic control, 16 Toxic Substances Control Act, is that correct, sir? 17 A. I wouldn't make that broad a statement, it 18 obviously was a consideration at the meeting to consider the 19 8E obligation on May, May 11. 20 Q. Mr. Park, do you understand my question? 21 A. Yes, I think I did. 22 Q. Then, is there -- are there levels lower than trace 23 amounts at which you consider in those chlorinated phenols 24 one or all that need to be reported to the EPA under TSCA? 147 1 A. Not because of their dioxin content. 2 Q. Then I am correct in saying that other things being 3 equal in your chlorinated phenols, if they contain dioxin 4 levels, trace amount levels, as you have stated here, that 5 need not be reported to the EPA, is that correct, sir? 6 MR. MUSGRAVE: I object to counsel's 7 characterization of the witness' testimony as to what he has 8 stated with regard to trace amounts. He has never testified, 9 never been asked whether trace amounts need be or need not be 10 reported. He's never testified to that. 11 THE COURT: Objection is overruled, it's a proper 12 question? 13 A. I note the comment on the memorandum that in -- 14 MR. CARR: Your Honor, would you direct the witness 15 to answer that question, please? 16 THE COURT: Mr. Park, please answer the question as 17 posed? 18 A. Could I have the question read again? 19 THE COURT: Read it one time. 20 COURT REPORTER: "Then I am correct in saying that 21 other things being equal in your chlorinated phenols, if they 22 contain dioxin levels, trace amount levels, as you have 23 stated here, that need not be reported to the EPA, is that 24 correct, sir?" 148 1 MR. MUSGRAVE: Also object to the vagueness of 2 being equal. 3 THE COURT: Overruled. 4 A. Your Honor, may I ask you a question? 5 THE COURT: No, sir, just answer the question. 6 A. It would depend upon I think some other factors 7 such as -- 8 Q. I already gave you, Mr. Park, the -- Sir, I gave 9 you already other things being equal, I said assume anything 10 else that you want to assume with regard to the consideration 11 that you want to consider, is it your view that chlorinated 12 phenols that contain trace amounts as you have defined trace 13 amounts or less than those amounts need not be reported to 14 the EPA under the mandatory provisions of the Toxic 15 Substances Control Act Section 8E? 16 A. Yes, my answer to that question would be that it 17 need not be reported. 18 Q. And, has that been your view since the first 19 obligation that you had connected with the committees that 20 considered those things for Monsanto? 21 A. Taking your words as I understood them, Mr. Carr, 22 considering all other factors with this, that this would not 23 of itself require reporting, yes. 24 Q. And to be fair with you, you have considered that 149 1 there will be exposure, you have considered the knowledge 2 that you have that you've been told by toxicologist as to the 3 toxicity of various levels of dioxin including what you've 4 defined as trace amounts, you've considered all those things 5 in giving this answer, have you not, Mr. Park? 6 A. Mr. Carr, I've considered such things as the fact 7 8 Q. Excuse me, could you answer that question, please, 9 Mr. Park? 10 A. Mr. Carr, that question raises a question in my 11 mind as to whether I understood you earlier when I was 12 responding to an earlier question. If a product has been in 13 use for many many years and there are no known health effects 14 as a result of that use, and then it is found that it 15 contains a trace amount of dioxin or anything else, the mere 16 fact that a trace amount of contaminant is found is not of 17 itself a reason for submitting an 8E report to the EPA. 18 Q. And that is your understanding of the law? 19 A. That's correct. 20 Q. That if you have a trace amount, as you defined it, 21 that it need not be reported. 22 MR. MUSGRAVEs I object to counsel paraphrasing 23 what this witness defined. 24 Q. I have every right to paraphrase and I intend to do 150 1 so. 2 MR. MUSGRAVE: You do not, because the testimony 3 was a guess and the witness so stated it. 4 THE COURT: I ruled on that point. Objection is 5 overruled. His paraphrasing was proper, Mr. Carr, you may 6 proceed. 7 Q. Would you read the question to him, please. 8 COURT REPORTER: "That if you have a trace amount, 9 as you defined it, that it need not be reported." 10 A. Didn't I answer that? 11 COURT REPORTER: There was an objection. 12 Q. Answer that question, please. 13 A. In the absence of a substantial risk of injury of 14 health or environment there would be no reporting required. 15 MR. CARR: Your Honor, would you direct the witness 16 to answer the question as I posed it to him? 17 THE COURT: Mr. Park, it's been asked of you once, 18 it's been read back to you once. Ansv/er the question as 19 posed. 20 MR. MUSGRAVE: I object. He answered, let it be 21 noted, he has not. 22 A. Would you again ask'the question? 23 Q. Would you read the question to him again. 24 THE COURT: Wo, my Court Reporters are not 151 1 dictating machines. It's been read to you once, asked of you 2 once, answer the question as posed, Mr. Park. 3 A. I don't remember what the question was, Your Honor, 4 I'm sorry. 5 THE COURT: Mr. Carr, would you ask it again, 6 please? 7 Q. Is it your view of the law that if the chemical 8 contains trace amounts as you have defined it, that you need 9 not report the presence of those trace amounts as you have 10 defined it in the chlorinated phenols to the EPA under the 11 Toxic Substances Control Act Section 8E? 12 A. That's correct, that is my view. 13 Q. And, is that your belief, sir, based upon the fact 14 or what you believe to be the fact that the substance, the 15 chemical in question has been used for years? 16 A. I'm sorry, Mr. Carr, I'm not sure, you say is it my 17 understanding the chemical has been used for years. 18 Q. Yes, you gave that as a factor that you took into 19 play when you answered the question? 20 A. Yes, it is my understanding that that's the case. 21 Q. And, does that presuppose that you know that all 22 the chemicals that have been manufactured before contained 23 those levels of dioxin that is from 1 part per million to 30 24 parts per million? 152 1 A, It merely supposes that there are no known adverse 2 health effects from use of the chemical over many years. 3 Q. Does that not include, Hr. Park, that you didn't, 4 that you don't know whether or not that chemical did or did 5 not contain the contaminant, the dioxins? 6 A. I guess it would contain an assumption that the 7 composition over the years -- 8 Q. Remained the same, doesn't it, Mr. Park? 9 A. Remained the same. 10 Q. But now, if you learned that your products vary, 11 that perhaps 90 percent of your products, perhaps 99 percent 12 of your chlorinated phenols contained very ultra ultra, not 13 your definition of trace, but ultra ultra trace levels of 14 dioxin but that every now and then you find a batch that 15 contains higher levels of dioxin, would not that change your 16 assumption, Mr. Park? 17 A. Here I would rely on our toxicologists as to the 18 extent of whether to which a variation might have any impact. 19 Q. And you would then rely on your toxicologist for 20 dioxin content then even though your product had theretofore 21 been used in your belief without harmful effects, wouldn't 22 you, sir? 23 A. I would rely on our toxicologist. 24 Q. You would do that because you do know that 2,3,7,8 153 1 and other dioxins nearly as toxic as 2r3f7f8f you do know 2 that that does have injurious health effects on people, you 3 do know that, don't you, sir? 4 A. I believe on the basis of -- 5 Q. You've been told that, haven't you, Mr. Park, by 6 the toxicologist? 7 MH. MUSGRAVE: He asked him what he knew. 8 MR. CARR: I think if he knows he can say he knows, 9 he can say he doesn't know. 10 MR. MUSGRAVE: You asked him, you said you do know, 11 you challenged him to answer, I would request he be permitted 12 to answer the question as posed. 13 A. I think there are some questions as to the 14 injurious effect of dioxin. 15 Q. And you've had those questions in mind when you've 16 made your decisions, haven't you, sir? 17 A. Yes. 18 Q. And have you -- 19 THE COURT: I'm sorry, I didn't hear your answer, 20 did you say yes? 21 A. Yes. 22 THE COURT: Thank you. 23 Q. And you decided, did you, sir, that there were no 24 injurious health effects from exposure to any level of 154 / 1 dioxin? 2 A. Nov; again, I don't participate as a member of this 3 group as a toxicologist or a chemist, I participate to try 4 to interpret the law for them and merely to take down the 5 minutes. 6 Q. Mr, Park, you know when you have to interpret the 7 law you've got to know whether or not the substance is toxic, 8 that's part of the law interpretation? 9 A, And here I have to rely on other experts. 10 Q, And have the experts told you -- what have they 11 told you as far as health effects, that there are none other 12 than Chloracne, is that what you've been told, Mr. Park? 13 A. I believe I've been told that there is no known 14 death resulting from dioxin exposure. 15 THE COURT: Mr. Park, I missed the whole last part 16 of what you said. Could you please keep your voice up? 17 A. I'm sorry. I believe I can recall having been told 18 that there is no known death as a result of dioxin exposure. 19 THE COURT: Thank you. 20 A. I have been told that it is highly toxic to certain 21 species of animals, apparently considerably less toxic to 22 other species and to humans. 23 Q. And what do you believe that the injurious health 24 effects that dioxin exposure is to human beings, what have 155 1 you been told that? 2 MR. MUSGRAVE: Asked him v;hat he believes or what 3 he's been told, there are two different questions there, Mr. 4 Carr. 5 Q. All right, first of all what you believe. 6 MR. MUSGRAVE: You want him to testify as an 7 expert? I don't believe he's been qualified as an expert to 8 testify. 9 THE COURT: Objection is overruled. Go ahead. 10 Q. Then what you've been told, I don't care, give me 11 either one that you want to give as your counsel might want 12 you to do? 13 A. I'm trying to recall what I have been told, what I 14 have heard about dioxin toxicity, because it is not my 15 field. I believe I am aware that the first sign of an 16 adverse effect is Chloracne. 17 Q. You've been told there are any other bad results 18 from dioxin exposure? 19 A. Here it is my understanding there is some question 20 as to what -- 21 Q. My question, have you been told there are any other 22 bad effects in dioxin? 23 A. I have -- 24 Q. Other than acne? 156 1 A. I have been told there is some question as to other 2 effects and frankly I cannot remember what they are. 3 Q. So the only one you can remember that you've been 4 told is acne? 5 A. Chloracne, yes. 6 Q. Yes. Andf have you been exercising your judgment, 7 have you been using your roll based upon that that you can 8 remember is the bad result from dioxin that is Chloracne? 9 A. My roll is really not to speak to toxicity, it's to 10 try to see that the group properly complies with the law. 11 Q. Nov/, Mr. Park, I again insist that your memo that 12 you've given us indeed deals with toxicity, you talk about 13 carcinogenic effects, you talk about toxic effects, you are 14 dealing with it, and you may not again say it today, the memo 15 you have in front of you, you discuss it, don't you, sir? 16 A. Mr. Carr, I'm writing down what toxicologists tell 17 me, you see. 18 Q. And you are using that knowledge, aren't you, sir? 19 A. No. 20 Q. You are not using it when you prepare those memos, 21 you are not using it, aren't you speaking as a part of this 22 committee, and aren't you speaking for the committee when you 23 make those reports? 24 A. Those reports contain information provided to me by 157 1 the toxicologist, they participate in writing. 2 Q. I'm certainly aware of that, Mr. Park, are you not 3 participating, are you not speaking for the committee when 4 you write those reports? 5 A. I am speaking for the committee. 6 Q. And you discuss the toxicity, do you not, sir? 7 A. The toxicity information from the toxicologists is 8 placed into those reports. 9 Q. And the only thing that your committee so far as 10 you can remember the ill health effects of dioxin is 11 Chloracne? 12 A. I do remember that the Chloracne is apparently the 13 first sign of an adverse effect. 14 Q. And you can remember no other adverse effects from 15 dioxin exposure other than the Chloracne, is that what you 16 are telling us, sir? 17 A. Not specifically. I can recall that there are some 18 others, but I believe there is some question as to other 19 effects. 20 Q. Have you ever seen the 1267 A, or the page from 21 which it comes? 22 A. I frankly don't recall. 23 Q. Have you ever been told that those as shown in 24 Plaintiff's Exhibit 1267 are the toxic effects of 158 1 2,3,7,8-TCDD dioxin in man, have you ever been told that, 2 sir? 3 A. I'm sorry, that those are the effects? 4 Q. Have you ever been told that? 5 A. I could well have been. 6 Q. But you don't remember anything except the first 7 one Chloracne, is that right, sir? 8 A. I remember that one specifically. Can you tell me 9 what this is? 10 Q. Mr. Park, it's not important that you know what it 11 is because I don't want to influence your judgment. You may 12 decide well so and so said it, I'll accept it, if somebody 13 else said it, I don't want to accept it. I'm asking you, 14 have you been told when you sit on that committee, when you 15 make a decision as to whether or not to notify the EPA about 16 substantial health risks, have you ever been told that 17 porphyria is a health risk that's associated with dioxin 18 exposure? 19 A. I frankly cannot remember hardly any details about 20 those meetings. 21 Q. You had one just -- 22 A. That took place years ago. 23 Q. You had one just in January, I have the memo here, 24 just January the 25th you had a meeting and what you 159 1 discussed toxic effects and whether or not you should report 2 to the Government, just in January, you had to have discussed 3 those things? 4 A. Which substance was that, Mr. Carr, the January -- 5 you refer to that a couple of times, I'd like to bring that 6 back into my mind. 7 Q. It deals with dioxin content of a substance. 8 A. Which substance. 9 Q. Makes no difference which substance, what it is, 10 dioxin content, we are talking about the toxicity of the 11 dioxin, we are not talking about a particular product. Do 12 you believe that we are really talking about 13 2,4-dichlorophenol or really talking about orthochlorophenol 14 or really talking about Santophen? We are talking about 15 dioxin? 16 A. Mr. Carr, I believe I can remember the January 17 one. As I recall -- 18 Q. I'm not asking you about that. 19 A. There was no tetra in the product, so there was no 20 need to get into any of those things that you have on your 21 board. 22 Q. Mr. Park, we will get to that in a few moments, we 23 are talking about dioxins in your products, get to the tetra, 24 to that particular exhibit in a moment, but I'm asking you, 160 1 have you been told, sir, that dioxin causes porphyria, 2 2.3.7.8- TCDD causes porphyria? 3 A, I cannot recall. 4 Q. Have you been told that it causes liver damage? 5 A. I cannot recall. 6 Q. Have you been told that it causes elevated serum 7 hepatic enzyme levels? 8 A. Is this -- 9 Q. Mr. Park, would you answer that question, please, 10 sir? 11 A. Mr. Carr, you are not being quite fair with me, I 12 can see now barely, my eyes are not like they used to be. 13 Thank you. Across the top it says toxic effects of 14 2.3.7.8- tetrachlorodibenzo-para-dioxin. Now, I am just a 15 lawyer, but I do know enough to know that that is said to be 16 the most toxic of the dioxin isomers, yet in your discussions 17 out here with me, you just used the word dioxin, which is 18 much broader. 19 Q. That's true, no question about that, Mr. Park, you 20 are a hundred percent right. You are absolutely correct. 21 A. The tetra, as I believe, was not a part of the 22 consideration at this 8E meeting in January. 23 Q. And I'm not asking about the January meeting other 24 than to remind you that you have discussed dioxins, and tetra 161 1 was discussed at that meeting, wasn't it, sir? 2 A. To the extent saying, okay, it was not found in the 3 product. 4 Q. Oh, no, what you did at that meeting, if I remind 5 you, you compared the toxicity of the dioxins that were 6 present with the toxicity of 2,3,7,8-TCDD, that's exactly 7 what you did, Mr. Park, and I do not want to digress from 8 that to argue with that, because I'm asking you now this 9 question, have you been told that 2,3,7,8-TCDD will cause a 10 toxic effect in man, elevated serum hepatic enzyme levels, 11 have you been told that in the past, sir? 12 A. Can you tell me -- 13 MR. CARR: Would you direct the witness to answer 14 the question? 15 THE COURT: Mr. Park, answer the question. 16 A. I cannot recall. 17 THE COURT: Okay. 18 Q. Have you been told that exposure to 2,3,7,8-TCDD 19 can cause disorders of fat metabolism in man? 20 A. I'm sorry, I just can't recall. 21 Q. Have you been told that exposure to TCDD causes 22 cardio-vascular disorders, heart trouble? 23 A. I'm sorry, I do not recall. 24 Q. Have you been told that it can cause disorders of 162 1 carbohydrate metabolism? 2 A, I don't recall, 3 Q. Have you been told that it causes urinary tract 4 disorders in man? 5 A. I don't recall. 6 Q. How about respiratory disorders, have you been told 7 about that? 8 A, I don't recall. 9 Q. Have you been told whether or not it causes 10 pancreatic disorders? 11 A. I don't recall. 12 Q. Have you been told whether or not it causes per-- 13 polyperipheral neuropathy, that's pain in the nerves? 14 A. I don't recall. 15 Q. Have you been told that it causes lower extremity 16 weakness? 17 A. I'm sorry, I don't recall. 18 Q. Have you been told that it causes sensory 19 impairment, sight, hearing, smell, taste, photophobia? 20 A. I can't recall. 21 Q. Have you been told that it causes psychiatric 22 disorders, makes people depressed, neurasthenic syndromes, 23 have you been told that, sir? 24 A. I believe I can recall some vague discussion of 163 1 that, but I can't recall anything. 2 Q. Now -- 3 A. Specific. 4 Q. Now -- 5 6 Park? THE COURT: Could you keep your voice up again, Mr. 7 A. Yeah. 8 THE COURT: Thank you. 9 Q. Mr. Park, when you have those meetings, and you 10 discuss whether or not exposure to those chlorinated phenols 11 that contain dioxin, you must of necessity, in order to 12 exercise an intelligent decision, you must of necessity be 13 told what the possible health effects can be, isn't that 14 correct, sir? 15 A. It would depend upon whether there was a 16 sufficiently high concentration of dioxin present to bring on 17 a health effect. 18 Q. All I've asked you about that concentration, and 19 you've told me that anything from 1 to 30 parts per million 20 is what you consider something above trace? 21 A. Only when you pressed me and required my answer. 22 Q. Certainly I pressed you. 23 A. Those are questions that I rely on a toxicologist 24 to answer. 164 1 Q. I understand that. What if a toxicologist told you 2 that 250 parts per billion of total dioxins can have a 3 harmful effect upon human beings, what if a toxicologist told 4 you that? 5 A. If a toxicologist tells us that a given exposure is 6 likely to result from the use of a product, and that that 7 exposure would present a substantial risk of health or to 8 environment -- 9 Q. You are talking about exposure again, I want to 10 leave that out of it. 11 THE COURT: Gentlemen, could I see you at the bench 12 for just a moment, please? 13 MR. CARR: Could I finish this? 14 THE COURT: You can finish this one question. 15 Q. I want to get this point established. If a 16 toxicologist told you that 250 parts per billion was 17 injurious to man, would you accept that, sir? 18 A. If one of our toxicologists -- 19 Q. Yes, one of your toxicologists told you that? 20 A. Yes, I would accept what he said. 21 THE COURT: Okay. Fine. We will break at this 22 point. Ladies and gentlemen, we will resume tomorrow at 23 9:30. I would remind you as I do on any overnight break that 24 you are not to read, listen to, or watch anything about this 165 1 STATE OF ILLINOIS ) ) 2 TWENTIETH JUDICIAL CIRCUIT ) SS ) 3 COUNTY OF ST. CLAIR ) 4 5 I, DEBRA M. MUSIELAK, certify the foregoing to be a 6 true and accurate transcript of the testimony and proceedings 7 in the above-entitled cause. 38 Dated this .day of April, 1985. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 167 1 STATE OF ILLINOIS ) ) 2 TWENTIETH JUDICIAL CIRCUIT ) SS ) 3 COUNTY OF ST. CLAIR ) 4 5 I, RICHARD P. GOLDENHERSH, one of the Judges in and 6 for the Twentieth Judicial Circuit, do hereby certify that I 7 have examinated the aforesaid transcript of proceedings, and 8 certify the foregoing to be a true and accurate transcript of 9 the testimony and proceedings in the above-styled cause. 10 Dated this _______day of April, 1985. 11 12 13 14 15 16 HON. RICHARD P. GOLDENHERSH 17 18 19 20 21 22 23 24 168