Document Qk4R6L5zD5rR7YQrrkO64YyRk

1 to the worker? 2 A But there are two different premises. 3 Q Doctor, if you are exposed to dioxin in an accident, exposed to 4 dioxin in the production of it, you are exposed to the same dioxin, aren't 5 you, sir? 6 A One was a study of chloracne cases. 7 Q Excuse me. One was a study of chloracne? 8 A Yes, sir. V. 9 Q Which was a study of chloracne, Doctor? 10 A The second sentence says, "One hundred twenty-two workers who 11 developed chloracne were selected for this study. It's just a study of 12 chloracne cases, period." 13 Q This original study is just a study of chloracne cases? 14 A Yes, sir. 15 Q Doctor, it says that it's a study of those workers exposed to 16 it in the accident, doesn't it, sir? 17 A And it limits to the 122 who had chloracne, the second sentenc 18 Q Well, Doctor, whether it limits it to people who have chloracne 19 or not is beside the point. The point is that they were people that were 20 exposed in this accident and they would have had the chloracne that they 21 said could be caused by the accident. The point of the study is whether 22 or not they were exposed. 23 A No, sir. 24 Q Oh, this is a chloracne study? 1 A Yes, sir. 2 Q Doctor, the headline of it, the very title of it tells you, "The 3 Mortality Experience of Workers Exposed to Tetrachlorodibenzodioxin in a 4 Trichlorophenol Process Accident," does it not, sir? 5 A Yes, sir. 6 Q It doesn't say it is a chloracne study, does it, sir? 7 A No, sir. 8 Q Doctor, these 122 people were-- 9 (Plaintiff*8 Exhibit No. 1460 was marked for identification.) 10 Q I hand you now what's been marked Plaintiff's Exhibit 1460 and as 11 you if you recognize that as the list of the 122 workers that were in this 12 Nitro accident and who were studied in Exhibit 62, that is, the mortality 13 study? 14 A Yes, sir. 15 Q And this document has their respective names, their social secur: 16 numbers, their workmen's compensation claim number, their race, sex, w 17 or not they are salaried or wage workers, the date of their birth, and 18 whether they were alive or dead as of December 31, 1978, whether they 19 were alive or dead as of December 31, 1982, correct, sir? 20 A Yes, sir. 21 Q And I'd like to establish the status of certain folk according 22 to this exhibit, If I might. And could you turn to the page that has 23 the name of James Roe on it, please, and confirm for me that James Roe 24 was exposed to dioxin? 1 A Yes, .sir. 2 Q And confirm for me that Howard Cochran was exposed to dioxin? 3 A Yes, sir. 4 Q And that Herman Moore was exposed to dioxin? 5 A I can't read It on mine, if there is one, if there Is a mark. 6 Q On the third page, Herman C. Moore. Everybody Is not 7 alphabetical. Some were added, apparently. 8 A Yes, I fve got it. 9 Q And Hugo Tldqulst was exposed to dioxin, was he, sir? 10 A Yes. 11 Q And John Workman was exposed to dioxin? 12 A Betty Workman. 13 Q Well, according to one of your employees, It's a John Workman. 14 And for the time being, If he's not listed there, I'll put him here, but 15 we will put a mark by him and I will Identify it subsequently. All right, 16 show you that's the one. And Stonewall Farley? 17 A Yes. 18 Q Howard Hubnall? 19 A Yes, sir. 20 Q Ralph Westfall? 21 A Yes, sir. 22 Q Robert Arthur? 23 A Yes, sir. 24 Q How, all of these people with the exception of the Workman one 1 which we will tie up later. You know they all died of cancer, don't you, 2 sir? 3 A I didn't know them by that name. 4 (Plaintiff's Exhibit 1461 was marked for Identification.) 5 Q I hand you now what has been marked as Plaintiff's Exhibit 6 1461, a group of death certificates that were supplied to us by your 7 attorneys. 8 MR. CARR: And I offer that into evidence at this time then. 9 (Plaintiff's Exhibit 1461 was offered into evidence.) 10 THE COURT: Any objections? 11 MR. HEINEMAN: Your Honor, this is 1461? 12 THE COURT: Right. 13 MR. HEINEMAN: Object for hearsay and lack of foundation, your14 Honor. 15 THE COURT; Overruled. It is admitted. 16 (Plaintiff's Exhibit 1461 was admitted into evidence.) 17 Q Doctor, if you will look at these death certificates which, for 18 the record, your Honor, these were supplied to us under the order of the 19 Court for the support of the Susklnd/Gaffey study and the Susklnd, Zack, 20 and Gaffey study, and the Susklnd morbidity studies all came in the purview 21 of those orders, and that's where we got these death certificates. 22 MR. HEINEMAN: So were Mr. Kemner's reports from Missouri about 23 a pig dying from a blow to the head. 24 MR. CARR: I'm not concerned whether these documents show truth 1 at this point In time or not, Mr. Helneman. I want to show what Monsanto 2 did with these documents, this being in their possession. 3 Q Now, Doctor, you will see that Robert Arthur died of Hodgkin's 4 Disease, did he not? 5 A Yes, sir. 6 Q That is a form of cancer, is it not? 7 A Yes, sir. 8 Q You will see that Howard Cochran died of lymphatic leukemia, 9 which is a form of cancer, is it not? 10 A Yes, sir. 11 , Q You will see that Stonewall Farley died of carcinoma of the 12 left lung and a metastatic carcinoma. They are not cancers, are they not? 13 A Yes. 14 Q You will see that Howard Hudnall died of carcinoma with liver 15 metastases, isn't that correct, sir? 16 A Yes, sir* 17 Q And Herman Moore died of a malignant fibrous hystocytoma of 18 soft tissue origin metastatic? 19 A Yes, sir. 20 Q Do you know whether or not Herman Moore was included In your 21 soft tissue studies? 22 A Yes. 23 Q And James Roe died of brpnchlo carcinoma, did he not, sir? 24 A Yes, sir. i 1 Q And Hugo Tldqulst died of acute myelogenous leukemia and 2 refractory anemia, did he not? 3 A Yes, sir. 4 Q That's cancer, is It not, sir? S A Yes, sir. 6 Q And John Workman, John Louis Workman died of carcinoma, I can't 7 make that-- what is that, what is that, Doctor? 8 A Carcinoma, cancer of the stomach. 9 Q All nine of these people listed here died of cancer and all but JO one called John Workman you acknowledged were exposed to dioxin, were they 11 not, sir? 12 A I didn't say anything about Workman, did I? 13 0 What you said was that Workman was not identified as John 14 Workman in the list of workers. 15 A I can't evaluate that one. 16 Q Right. But he died of cancer and all, but he was listed in 17 those people who were exposed to dioxin, weren't they, sir? 18 A Yes, sir, they all had chloracne. 19 Q Whether they had chloracne or not is not the point of what I 20 am getting to, Doctor. If you turn to Table 2 of the Exhibit 62, would 21 you do that? 22 A Yes, sir 23 Q You see there listed a number of workers in that accident who 24 died of cancer deaths on people that were exposed, correct, sir? 1 A Yes, sir. 2 Q And if you will look at the death certificates and the list 3 of people that were in the accident, well, obviously, all of these are 4 Included in the deaths from cancer, aren't they, sir, those exposed to 5 dioxin, for Instance, Farley is the first one, Hudnall is the second one, 6 Roe is the third one, Westfall is the 1915 worker, Moore is the 1920 7 worker, Arthur is the 1919 worker, Cochran is the 1907 worker, and Tidquist 8 is the 1910 worker. These are the deaths that Zack reported to be from 9 cancer caused in an exposure in the 1949 accident? 10 A Yes, sir. 11 (Plaintiff's Exhibit 1462 was marked for identification.) 12 Q Exhibit 1462 is the Table 2 from the 1980 study and Table 11 13 from the Zack/Gaffey study. Do you recognize those, Doctor? These have 14 previously been admitted into evidence, your Honor, but I'm sure the Jury IS would not have them at this time and I've recopied them for our purposes 16 here. 17 THE COURT: Fine. 18 (Plaintiff's Exhibits 1462A and B were marked for 19 identification.) 20 Q Doctor, I'll also hand you a copy of a document that's been 21 previously marked Plaintiff's Exhibit 81B and I'll repass these to the 22 Jury as well, your Honor. 23 THE COURT: Fine. 24 MR. CARR: Your Honor, so that the record might be clear, that 1 which I have marked 1462B at the present time and it now has underlining 2 on it had been previously marked Plaintiff's Exhibit 281A, but at that time 3 at least this exhibit does not have the underlining on It. 4 THE COURT: Fine. 5 MR. CARR: I'll repass 281B to the jury as well, your Honor. 6 THE COURT: Go right ahead. 7 MR. HEINEMAN: I'm sorry, I do not understand what they did 8 not have underlined about it. 9 MR. CARR: 281B, which is now 1462B, which is also 1462B the JO original 281, I'm sorry, it Is A, did not have the underlining, at least 11 in my present memory. 12 BY MR. CARR: 13 Q Now, Doctor, to get these exhibits in correct order, if you 14 will look at the Table 10 on the Zack/Gaffey study, that is Exhibit 28IB 15 that is captioned the deaths due to malignant neoplasms among Nitro plant 16 workers exposed to 2,4,5T, is it not, sir? 17 A Yes, sir. 18 Q And you will note, will you not, sir, that these four deaths, 19 or these nine deaths rather, are not listed in 281B, that is, the deaths20 that we have established are those people in Table 2, that is in the Jack 21 Suaklnd report, are not listed in Table 10, are they, sir? 22 ,A I don't know how to tell. 23 Q Well, you can tell by determining whether or not 1909 was a 24 year of birth, and they have it listed here, and the year of hire, 1943, 1 and the year of death, 1962, and the cause, of cancer. You can determine 2 by that. 3 A Yes, sir. 4 Q And you will find, I think, Doctor, that the only one listed in 5 Table 10 as a death of those men exposed to the dioxin is the one that 6 my finger Is on, that is who was born in 1922 and who was hired in 1945 7 and who died in 1973, do you see that? 8 A Yes, sir. 9 Q And that death is listed in Table 10, isn't it, sir? 10 A Yes, sir. n Q Now, that person was exposed in the accident in 1949 according 12 to the Zack/Suskind study, was he not? 13 A Yes. 14 Q And he's listed as dead from cancer being exposed to 2,4,5-T 15 in the later Zack/Gaffey study, does he not, sir? 16 A Yes. 17 Q But not a one of the other nine died from cancer are listed 18 in that table, are they, sir? 19 A That's right. 20 Q And Doctor, Dr. Zack or Miss Zack had to know that these 21 people were indeed exposed to dioxin since they were In the accident. 22 A. Yes, sir. 23 Q And she had listed, then, however, four of those people as 24 having not been exposed, didn't she, sir? J A Not exposed to what? .2 Q To dioxin. 3 A No, sir, that Isn't what it says. 4 Q What does It say, Doctor? 5 A Not exposed to 2,4,5-T. 6 Q Well, the 2,4,5-T Is what they were all exposed to, Isn't It, 7 sir? 8 A The trichlorophenol was In 2,4,5-T. 9 Q Doctor, the trichlorophenol was what they were manufacturing, 10 Isn't that correct, sir? 11 A Yes, sir. 12 Q And they were making 2,4,5-T from the trichlorophenol, were 13 they not, sir? 14 A Yes. 15 Q And when they say trichlorophenol, they are talking about 16 2,4,5-T, are they not, sir? 17 A I'm not sure. 18 Q You're not sure? That's what they're making when the plant 19 had the accident, isn't It, sir? 20 A I thought they were making trichlorophenol there. 21 Q And trichlorophenol Is 2,3,5-T. 22 A Trichlorophenol Isn't 2,3,5-T. 23. Q It's *rtiat they make before they make 2,4,5-T. 24 A Yes, sir. I Q And it's part of the process of making 2,4,5-T isnrt it, sir? 2 A But it's not the same as. 3 Q Are you suggesting, Doctor, that these studies were not of 4 people who were exposed to tetrachlorodlbenzo-p-dioxin whether in 2,4,5-T 5 or tetrachlorophenol? 6 A There are two studies. 7 Q That's the point I'm trying to make. There are two different 8 studies that I am talking about in each Instance, the formation of 2,4,5-T. 9 A The trichlorophenol is not-- 10 Q The first one is not-- Exhibit 62 is not talking about 2,4,5-T. 11 A No. 12 Q Doctor, do you have Exhibit 62 in front of you? 13 A Yes, sir. 14 Q And are they not discussing the manufacture of 2,4,5-T, Doctor? IS A Not in this first one. 16 Q Don't they point out that it's 2,4,5-T that the trichlorophenol 17 was being made into, sir? 18 A It's a part of the process. After you made the trichlorophenol 19 you make tetrachloro-- you make the phenoxy herbicide of it. 20 Q Yes, and they're talking about the dioxin that's in it at the 21 time it's trichlorophenol and the dioxin that's in it when it's 2,4,5-T, 22 A The first study Is the study of people with chloracne only. 23 Q Doctor, again, whether it is or not, they were exposed to the 24 dioxin-- ( 1 A Yes, sir. 2 Q -- within the trichlorophenol. 3 A Yes, sir. 4 Q And itT8 the dioxin that's the important part, isn't that corre* 5 sir? 6 A Yes. 7 Q Not the trichlorophenol, but the tetrachlorodibenzodioxin which 8 they're exposed, whether it's in the 2,4,5-T or whether it's in the 9 tetrachlorodibenzodioxin? 10 A Right. II Q This man b o m in 1922 was listed in both tables, was he not? 12 A Yes, sir. 13 Q But the other four were not listed, were they, sir? 14 A Because they weren't in the 2,4,5-T classification. 15 Q Oh, but they were, Doctor. They are in the trichlorodibenzo16 dioxln and they're listed here as not being exposed to 2,4,5-T. 17 A That's right. 18 Q And so for that reason they are not considered as exposed to 19 dioxin. 20 A No, sir, this is a study of 2,4,5-T workers. 21 Q My question is for that reason, are they considered not to be 22 exposed to dioxin? 23 A No, sir. 24 * ' Q No, sir, you know they were exposed to dioxin, and Zack knew they were exposed to dioxin. 1 > A Yes, sir. 2 Q And she put those people in, she put those four people In and 3 said they were not exposed to dioxin, didn't she, sir? 4 A No, she said not exposed to 2,4,5-T. 5 Q And because they got cancer from and they did die of cancer 6 from the dioxin in the trichloropheholbefore it was turned into 2,4,5-T, 7 she has represented to those that read this document that they were not 8 exposed to dioxin, hasn't she, sir? 9 A No, sir. 10 Q What did she say? II A She said they weren't exposed to 2,4,5-T. 12 Q Now, Doctor, doesn't she talk about the potential TCDD 13 exposure throughout the document? 14 A Yes, sir. 15 Q And isn't what she's talking about the dioxin exposure? 16 A Yes, sir. 17 Q And doesn't she say these people are not exposed to dioxin in 18 the table? 19 A No, she says they weren't in the 2,4,5-T unit. 20 Q And does she say they were not exposed to dioxin, sir? 21 22 A I don't know that. This is a study of 2,4,5-T workers, nothing 23 else. 24 Q Oh, it's not a report on dioxins, sir? 1 A It's a study of 2,4,5-T workers and their exposure to dioxin. 2 Q The only material part Is the exposure to dioxin, isn't it, sir 3 A Yes. 4 Q It's tied directly to the other accident, isn't it, sir? Do 5 not both articles refer to one another? 6 A. No, sir. 7 Q They don't? 8 A No. 9 Q Well, if you look at the 1980 study by Zack and Gaffey, she 10 refers to that report, does she not, sir? JJ A Yes, sir. 12 Q And if you look in the 1979 study by Zack/Suskind, doesn't she 13 say that the results'of this study Is going to be Incorporated In a larger 14 study that will Include plant workers exposed In the course of 2,4,5-T 15 during the period of *48 to '69? 16 i A Yes. 17 s Then they are tied together, are they not, sir? 18 A Yes. 19 Q And isn't 9he comparing them, sir, the deaths from cancer as 20 could possibly be caused by the dioxin? 21 A ^ Yes, sir, 22 Q And Doctor, did she not suggest by putting these four people 23 in Table 11, did she not suggest to the reader of it that these people had 24 cancer even though they were not exposed to dioxin? A No, she said not exposed to 2,4,5-T. I Q And she meant us to believe that they were exposed to dioxin, 2 where did she tell us that they were exposed to dioxin, Doctor? 3 A Where does she tell us what? 4 Q Where does she tell us that these four people who died of 5 cancer were exposed to dioxin? 6 A I don't think she says it. 7 Q Indeed, she does not say it, does she, sir? She talks about 8 on Page 590 of her 1980 Zack/Gaffey report, the PMR analysis presented 9 here estimated the cause, specific risk associated with 2,4,5-T exposure 10 and "potential TCDD exposure", doesn't she, sir? 11 A Yes. 12 Q Now, these people that she listed as non-exposed had TCDD 13 exposure, did they not, sir? 14 A Yes. 15 Q These four deaths, sir? 16 A Yes. 17 Q And she says that this cannot allow an estimate of the cause, 18 specific risk, even though she left out, she put four people in the un 19 group when she knew that they were exposed to dioxin, didn't she, sir? 20 A Yes. 21 22 Q And she further went on to say the workers involved in that incident in the TCP accident in 1949 "had presumed TCDD exposure as 23 24 evidenced by chloracne"? A Yes. 1 2 Q And so she knew that they were exposed to TCDD, didn't she, sir' 3 A Yes. 4 Q And she listed those, however, as four people who died of cancel 5 and were not exposed to TCDD, didn't she, sir? 6 A No, sir, not exposed to 2,4,5-T. 7 Q Doesn't she tell you in the report here that this analysis 8 estimates the cause, specific risk associated with 2,4,5-T exposure and 9 potential TCDD exposure? 10 A Yes. 11 Q Then she lied, didn't she, Doctor? 12 A No, she did not lie. 13 Q Did she tell the truth, Doctor? 14 A Yes. t IS Q Did not these people listed here have exposure to TCDD? 16 A Yes. 17 Q Does she not say that she's analyzing those that didn't have 18 the exposure to those that did have the exposure? 19 A She's pairing those exposed to 2,4,5-T and those not exposed 20 to 2,4,5-T. 21 Q What she's doing is she's comparing people exposed to dioxin I 22 in the trlchlorophenol and calling them not exposed and comparing them 23 with people exposed to dioxin in 2,4,5-T, Isn't she, sir? 24 A Yes. I Q Doctor, you can't get any-- you can't draw any conclusions 2 then as to whether dioxin did or did not cause cancers in excess, can you, 3 sir? 4 A There is a limitation by the way they set up that 9tudy, correc 5 Q By the way the set it up they made you believe that there was 6 no excess deaths caused by dioxin, but in fact there were 18 deaths caused 7 by dioxin and they listed only 9, isn't that correct, sir? 8 A That is how many if we add these onto this one. 9 (Plaintiff's Exhibit 1463 was marked for identification.) 10 THE COURT: Before we go into the next document, is this a 11 good point for a short break? 12 MR. CARR: Yes, your Honor. 13 THE COURT: Ladies and gentlemen, we will take a short break 14 at this time. The admonishments that I gave you earlier will apply during 15 this break also. The Court is in recess. 16 (At this time, Court was in recess.) 17 BY MR. CARR: 18 Q Dr. Rousch, would you take the Zack/Gaffey 1980 report that 19 is marked Plaintiff's Exhibit 281 and turn to the page numbered 576 of 20 that report, if you would, please. 21 A Yes, sir: 22 Q Are you there, sir? 23 A Yes, sir. 24 Q Now, this page is the, actually, the second page of the article Itself, is it not, sir? ] 2 A Yes, sir. 3 Q And it gives the background or introduction to the study and 4 in effect tells along with the^ other pages what the purpose of this study 5 is, doesn't it, sir? 6 A Yes, sir. 7 Q Would you read to the Jury the second paragraph on Page 576? 8 A "The study presented here examines the mortality of Nitro plant 9 workers who were assigned to an area of TCP or 2,4,5-T production with 10 potential for exposure to TCDD. The mortality of these workers is examined 11 in the context of the mortality experience of the total Nitro plant worker 12 population." 13 Q Now, Miss Zack tells you that this is a study of mortality of 14 the people who were assigned to TCP or 2,4,5-T production? 15 A Yes, sir. 16 Q It doesn't just say 2,4,5-T, does it, sir? 17 A No, it does not. 18 Q So these, this study then deals with those people who were 19 exposed to trlchlorophenol, doesn't it, sir? 20 A Yes, sir. 21 Q And the dioxin in trlchlorophenol? 22 A Yes, sir. 23 Q And it deals with the people who were exposed to dioxin in 24 2,4,5-T, doesn't it, sir? 1 A Yes, sir. 2 Q Now then, with that In mind, ahe also repeats that statement 3 that It's concerned with trichlorophenol or 2,4,5-T on the next page, doesn 4 she, sir, on the second paragraph there where she says, "Although several 5 of the chemical compounds produced are used at the Nltro plant over the years have been associated with adverse health effects, no attempt has 6 7 been made to relate chemical exposure to mortality with the exception of 8 decedents exposed to the TCP or 2,4,5-T operations and potentially exposed 9 to TCDD." 10 A Yes, sir. 11 Q "As a result, the only specific hypothesis that can be tested 12 is whether a relationship exists between potential TCDD exposure and 13 proportional mortality especially for malignant neoplasms," isn't that 14 correct, sir? 15 A Yes, sir. 16 Q So the purpose of this study is to determine whether or not a 17 relationship exists between the TCDD exposure and mortality? 18 A Yes, sir. 19 Q And not just exposure to 2,4,5-T, isn't that correct, sir? 20 A Yes, sir. 21 Q So what you stated prior.to the recess was in error, wasn't 22 It, Doctor? 23 A I can read another place-- 24 Q What you stated before the recess was In error, wasn't It, 1 A No, sir. 2 Q Doesn't she say that It's for the decedents exposed to the TCP 3 or 2,4,5-T operations, Doctor? 4 A Yes, sir. 5 Q Doesn't she clearly include the trichlorophenol in the study? 6 A Yes, sir. 7 Q And you said before the recess that it was not to be Included 8 in the study, didn't you, sir? 9 A Yes, sir. 10 Q And you were in error therefore, were you not, sir? 11 A No, sir. 12 Q Let me ask you again, Doctor, doesn't she say that this is 13 for decedents exposed to TCP or 2,4,5-T? 14 A Yes. 15 Q Isn't TCP trichlorophenol? 16 A Yes, sir. 17 Q Isn't this study for the mortality of workers exposed to 18 trichlorophenol? 19 A Yes, sir. 20 Q And you said it was not, didn't you, sir? 21 A Tes, sir. 22 Q Nov she is saying something different than vhat you are saying, 23 isn't she, sir? 24 A In that place? 115 1 Q Yes. And she is saying it does include trichlorophenol, doesn't 2 she, sir? 3 A Later she doesn't. 4 Q Now, Doctor, she says in two places here that this Includes 5 those workers exposed to trichlorophenol, does she not, sir? 6 A Yes, sir. 7 Q When she tells you what the study is for in these two places, 8 doesn't she, sir? ! 9 A Yes, sir. I i 10 Q And she intends for you to believe that she is studying the | 11 people exposed to trichlorophenol as well as 2,4,5-T, doesn't she, sir? \i 12 I 13 A Yes, sir. Q And it's because of the potential for the TCDD exposure that 14 the trichlorophenol and/or the 2,4,5-T is being studied, isn't that right, 15 sir? 16 A I'm sorry, would you ask the question-- 17 Q It's because these things, the trichlorophenol that is the 18 TCP or the 2,4,5-T has a potential for exposure to TCDD that that is the 19 reason she's doing this study as she states on Page 576, isn't that 20 correct, sir? 21 A That's what she states there, yes. 22 Q And Doctor, these workers, all of whom are listed in Table 2 23 in the Zack/Suskind report of 1979 were all exposed or all described as ( 24 being exposed to the tetrachlorodlbenzodloxln in the TCP accident? PENCAD CO.. BA YON N E, N.J, I A Yes, sir. 2 Q And none of those with the exception of one of these nine 3 workers, only one is included in the Table 10 that she prepared for those 4 workers exposed to the 2,4,5-T, Table 10, isn't that correct, sir? 5 A Yes, sir. 6 Q None of the other eight in that table who were exposed were 7 listed, are they, sir? 8 A That's right. 9 Q Now, Doctor, after we in this case in the spring of last year 10 brought out the fact that the four deaths from cancer of those males who 11 were exposed in the accident were included in those people not exposed, 12 you at Monsanto had a toxicologist by the name of Strauss critique the 13 Zack/Gaffey report, did you not,sir, MarcieStrauss? 14 A I don't know. 15 Q Well, Doctor, you've got a copy of her report, didn't you, in 16 August of 1984? 17 A I don't recall. 18 Q I hand you Plaintiff's Exhibit 1465 and ask you if that is not 19 a copy of the Marcie B. Strauss critique of the Zack/Gaffey report? 20 MR. CARR: I read it as 1465, perhaps it is 1463. 21 Q 1463 is by Strauss, and it does involve the Zack/Gaffey report, 22 does it not, sir? 23 A Yes. 24 Q And it discusses the criticisms that we make of the report, and I as a matter of fact it says the Plaintiffs' lawyer contests and so forth 2 on the third page of this exhibit, doesn't it? 3 A I don't know where you're reading. 4 Q The third page of the-- 5 A Yes, sir. 6 Q -- of the exhibit, third line. You see the words "Plaintiffs' 7 lawyer." 8 A At the top of the page? 9 Q Third page, third line. 10 A I see, 11 Q You see that, sir? 12 A Yes. 13 MR. CARR: Offer 1463 into evidence, if it please the Court. 14 (Plaintiff's Exhibit 1463 was offered into evidence.) 15 THE COURT: Any objections? 16 MR. HEINEMAN: Excuse me, your Honor, may counsel approach the 17 bench for a moment? 18 THE COURT: Sure. 19 (The following proceedings were held at the bench.) 20 MR. HEINEMAN: It is my recollection, and I may be incorrect, 21 but it is my recollection that this document was Included among the document 22 that were submitted to the Court for in camera inspection with respect to 23 any privilege or work product or anything like that. I assume, your Honor, 24 that once the Court has already ruled on that respect, it's not necessary 1 for me to make the same objection now. 2 THE COURT: No, it's not. 3 MR. HEINEMAN: But that objection and the Court's ruling ther 4 would be preserved for the record, and 1 would not be construed to be 5 waiving it at this time. 6 THE COURT: Absolutely, of course. 7 (The following proceedings were held in open Court.) 8 MR. HEINEMAN: No objection, your Honor. 9 THE COURT: Fine. Admitted without objection. Thank you. 10 (Plaintiff's Exhibit 1463 was admitted into evidence.) 11 BY MR. CARR: 12 Q Doctor, if you would turn to the fourth page from the bottom, 13 fourth from the last page, and you will see it's in something called 14 attachment to-- you will see that there is a category there 2,4,5-T 15 exposure category was incorrectly classified in Zack/Gaffey PMR study; 16 A counted as unexposed, should have been exposed, and then John Workman 17 is listed there at number 3, his medical records say he was exposed. 18 A Yes, sir. 19 Q And it is that same John Workman that we previously put an 20 X there? 21 A Probably the same. 22 Q Yes, and well, you'll look at the death certificate, you can 23 see the social security number, Indeed, it is the same and the death 24 certificate would show that he died of cancer. I MR. HEINEMAN: Excuse me, Mr. Carr, you're not representing 2 that that*s all that that says there about John Workman. 3 MR. CARR: All I 'm saying is that that record shows that John 4 Workman was exposed according to his medical history as determined by 5 Monsanto employee by the name of Marcle Strauss. 6 (Plaintiff's Exhibit 1464 was marked for identification.) 7 Q Doctor, I'll now hand you Exhibit 1464 and ask you to look at 8 that if you would, please. Exhibit 1464 lists those nine names that I 9 have listed here, does it not, sir? 10 A Yes, sir. 11 Q And those nine persons were all exposed, according to the 12 history, to TCDD, were they not, sir? 13 A Yes, sir. 14 Q And none of these nine were-- are Included In Table 10 of the 15 Zack/Gaffey report, are they, sir? I think w e 've established that already. 16 A Yes, sir. 17 Q Now, there are listed here nine deaths of the Nitro plant 18 workers who were exposed to 2,4,5-T, are there not, sir? 19 A Yes. 20 Q And If we add the nine deaths, Roe, Cochran, Moore, Tldqulst, 21 Workman, and so forth through Arthur, that would be 18 deaths, wouldn't it, 22 sir, from the TCDD exposure? 23 A The other one is 18, The one from Gaffey. 24 Q I believe It's 9. 1 A Eighteen, yes. 2 MR. CARR: I offer Exhibit 1464 into evidence, if it please 3 the Court. 4 (Plaintiff's Exhibit 1464 was offered into evidence.) 5 MR. HEINEMAN: Your Honor, I object to this document. It's 6 obviously-- I gather it's something that's been created by Mr. Carr. There* 7 been no foundation laid for its admission, and I object to it. 8 MR. CARR: X need to clarify one part of it, your Honor, for 9 it to be strictly admissible. 10 THE COURT: Go ahead. 11 Q Doctor, in the Zack/Gaffey report, there is a page^or pages 12 that deal with the expectation of death, is there not, sir, something to 13 do with the PMR? 14 A Where are. you referring?. To what page are you referring? 15 Q Well, throughout the*study, Doctor, it's talking about the 16 proportional mortality ratios. 17 A There's two things done in this. One is an SMR and the other 18 is a PMR. 19 Q Yes. And they put out there the number of deaths that would 20 be expected from cancer, don't they, sir? 21 A Yes. 22 Q And in this group, they point out that 10.94 deaths would be .23 expected from this group, don't they, sir? 24 A Where are you reading? 1 Q Doctor, the Table 9, the very first entry, all malignant 2 neoplasms under the proportional mortality ratio, that is PMR, there is 3 10.94 expected. You see that, sir? 4 A Yes. 5 Q Now, what that means, according to Zack/Gaffey's analysis of 6 these workers, is that she analyzed-- you would ordinarily expect not quite 7 11 deaths from cancer from all malignant neoplasms, correct, sir? 8 A Yes. 9 Q But in fact there were 18 deaths, weren't there, sir? 10 A Not in 2,4,5-T workers. 11 Q From TCDD there was, wasn't there, sir? 12 A Yes. 13 MR. CARR: I'll now offer the exhibit into evidence, your Honor. 14 (Plaintiff's Exhibit 1464 was offered into evidence.) 15 THE COURT: Any further objection? 16 MR. HEINEMAN: There will be, your Honor. Your Honor, I would 17 object to the question. At first, I object to the exhibit on the grounds 18 that there's been no foundation laid for its admissibility. It's a creation 19 by Mr. Carr. And so we believe that there isn't an adequate foundation, 20 and we think it should not be admitted as an exhibit. I object further for 21 the reason that based upon the testimony which Mr. Carr has elicited, that 22 thl9 death expected number would necessarily be misleading because it is 23 based upon those people who would have worked in 2,4,5-T and not based upon 24 all of the other people that would have had to be included had it been 1 expanded as Hr. Carr suggested It should be expanded, and therefore the 2 document Is misleading. 3 MR. CARR: That's not correct, your Honor. The PMR Is based 4 upon the total population. 5 Q Is it not, Dr. Rousch? 6 A On the 2,4,5-T population. 7 THE COURT: Objection is overruled. It is admitted over 8: objection. 9 (Plaintiff's Exhibit 1464 was admitted Into evidence.) JO (Plaintiff's Exhibit 1464A was marked for identification.) 11 Q, 1464A is a blow-up of 1464, is it not? 12 A Yes, sir. 13 Q Doctor, this report by Zack and Gaffey, Plaintiff's Exhibit 281 14 has been cited in practically every article that has dealt with whether or 15 not TCDD causes cancer, hasn't it, sir? 16 A I don't-- It has been quoted. 17 Q It has been quoted, it has been relied upon by people who 18 have written articles for the EPA, has it not, sir? 19 A I think so. 20 Q It has been reported and relied upon by every responsible 21 investigator In the area of does dioxin cause cancer, hasn't it, sir? 22 1 A Yes. 23 Q It Is one of the very, very few studies that deal with 24 whether or not dioxin causes cancer in human beings based upon real life I A Yes. 2 Q When in fact 18 or twice that number died from cancer and she 3 didn't report it, did she, sir? 4 A That was a different study. 5 Q She did not report it, did she, sir? 6 A She couldn't. 7 Q It has not been reported. Doctor, she could, is there any 8 reason she could not have listed these deaths in this study? She had the 9 death certificates, did she not, 9ir? 10 A If she had, she would have had to change the denominator. 11 Q She had the death certificates, did she not, sir? 12 A Yes. 13 Q And she had the work records, did she not, sir? 14 A Not for those. 15 Q She didn't have the work records for these people? 16 A No. 17 Q They're all Monsanto employees, the Monsanto work records are 18 all there and available to her. 19 A That*8 right. 20 Q So she had them, did she not, sir? 21 A She didn't use that. 22 Q She didn't use it, indeed, she did not use it. But the point 23 that I am making is she had them and she used the work records in the case 24 of some workers, did she not, sir? A Yes 1 Q But she did not use the work records for these people did she, 2 sir? Did she, sir? 3 4 A No. 5 Q They had all died from cancer at the time she did the study, 6 had they not, sir? 7 A Yes. 8 Q She had the death certificates showing that they had all 9 died from cancer, did she not, sir? 10 A Yes, sir. 11 Q They had all been exposed to dioxin, had they not, sir? 12 A Yes, sir. 13 Q And she could have if she wanted to report, if she wanted to 14 let the people know that there was 18 deaths from Jloxin exposure rather 15 than nine, couldn't she, Doctor? 16 A Yes, but then she would have changed the expected-- 17 Q Doctor, would there be anything wrong with her changing the 18 expected? 19 A But she couldn't do that because she didn't know those In 20 that first group that did not get chloracne, so the denominator would 21 change If she would have had to a d d 22 Q Doctor, her study Is not of people that had chloracne. 23 MR. HEINEMANi Objection. Would Mr. Carr be kind enough to 24 let the witness finish an answer before interrupting? I'd like the witness 1 to have a chance to finish his answer. 2 THE COURT: Go ahead and,finish your answer. 3 A That first study was a study of people with chloracne. There 4 were people Involved In that TCP accident that did not get chloracne, and 5 If we were to have added that group to this one, we would have had to add 6 those that did not get chloracne and we couldn't define those. Therefore, 7 that population couldn't be added to this one. 8 Q Doctor, but the second study, the study that we're talking abou 9 is that Gaffey study, has got nothing to do with chloracne. 10 A That Is the first one. II Q The Zack/Gaffey, not the. Zack/Susklnd, we're talking about 12 the Zack/Gaffey report. 13 A We are talking about adding the Zack study to the-- 14 Q No, Doctor, what we're talking about Is reporting the deaths IS of the people that have been exposed to TCDD In the Monsanto plant, that's 16 what we're talking about. 17 A And that Includes the Zack/Susklnd study. 18 Q Well, Doctor, It obviously did not, because she did not Include 19 eight deaths that were In the Zack/Susklnd study, did she, sir? These 20 people had chloracne. 21 A That's right. 22 Q These people were exposed to dioxin. 23 A Yes, sir. 24 Q These people died from cancer, didn't they? 1 A Yes, sir. 2 Q And'she did not include those in the list of people that died 3 from cancer, did she, sir? 4 A Wo, she couldn't. S Q Well, why couldn't she, Doctor? 6 A Because she would have had to Include those who did not get 7 chloracne. 8 Q But her study In 1980 had nothing to do with chloracne, Dr. Rous 9 Would you look at this, sir? 10 A Yes. 11 Q She did not use as a denominator people who had chloracne, 12 does she, sir? 13 A That's right. 14 Q She uses as the denominator those people that were exposed 15 to TCP or 2,4,5-T with a potential for dioxin exposure, did she not, sir? 16 A That's right. 17 Q Now, these people all were exposed to TCP or 2,4,5-T with a 18 potential for dioxin exposure, weren't they, sir? 19 A The Zack/Susklnd studies. ' 20 Q Would you answer that question that I asked you, Dr. Rousch? 21 I am not talking about the Zack/Susklnd study. I'm talking about these 22 nine people listed In 1464 and 1464A, These people were all exposed to 23 either TCP or.2,4,5-T with the potential of TCDD exposure, were they not, 24 sir? 1 A They were not exposed to 2,4,5-T. 2 Q Could you answer the question that I posed, Dr. Rousch? 3 A I'm sorry, I'm trying to. 4 Q No, you're answering a different question, Dr. Rousch. 5 A I'm sorry. 6 MR. CARR: Would you read my question. 7 (The previous question was read back by the reporter.) 8 A That group includes those exposed to TCP, but were not listed 9 as working In TCP. 10 Q Could you answer my question, please, Doctor? 11 MR. HEINEMAN: I'd object, your Honor. 1 think that's exactly 12 what he asked him. 13 THE COURT: Objection Is overruled. 14 A Will you give me the question again? 15 (The same question was read back by the reporter.) 16 A The answer Is yes. 17 Q Miss Zack said on Page 576 that the study examined the mortality 18 of Nltro plant workers assigned to an area of TCP or 2,4,5-T production 19 with potential for exposure to TCDD, did she not, sir? 20 A I'm not with you. 21 Q Well, we've read It before a couple of times, Dr. Rousch. 22 A Pardon? 23 Q We've read it a couple of times already. 24 A I understand. Where are you reading now? 1 A Page 576, the second paragraph on that page. 2 A That's what it's to do. 3 Q And these nine people were exposed, were they not, sir? 4 A Yes. S Q And they were not Included in her Table 10, were they, sir? 6 A No. 7 Q Now, Doctor, does the fact that there are 65 excess deaths 8 from exposure to TCDD then that which Is expected, isn't that an Important 9 fact to be known by the scientific community, Doctor? 10 A What 65 deaths. 11 Q 65 percent, not deaths, Doctor. These deaths of 18 is 65 percent 12 more than 10.94, aren't they, sir? 13 A No, sir. 14 Q They're not? 15 A No, sir. 16 Q Isn't 18 65 percent, sir? 17 A Yes. 18 Q And of 10.94, 18 is 65 percent greater than 10.94, is it not, sli 19 A Yes, but that's not-- 20 Q Doctor, these deaths that were listed here, nobody outside this 21 courtroom, nobody in the scientific community is aware of the fact that 22 Monsanto had 18 cancer deaths from those workers exposed to dioxin, do 23 they, sir? 24 A Yes. I Q Nobody knows that? 2 A Yes. 3 Q Who knows it, sir? 4 A Those who look at the first study and then look at the second S study. 6 Q Oh, they know that? Doctor, wherein does it tell them? As a 7 matter of fact, It tells them that four of these people weren't even 8 exposed, doesn't it, sir? 9 A Not exposed to 2,4,5-T. 10 Q And the Implication is therefore not exposed to TCDD, isn't 11 that the clear implication of that, Dr. Rousch? 12 A It says in here that-- 13 Q Isn't that the clear implication of that, Dr. Rousch, that 14 they therefore were not exposed to TCDD 15 A No, sir. 16 Q Do you get from that that they were exposed to TCDD? 17 A No, sir, but it states it in the text. 18 Q It states in the text potential for exposure to TCDD, doesn't 19 it, sir? 20 A Included in the nonexposed to 2,4,5-T. 21 Q Doctor, they're talking about-- they want to compare-*4this table 22 is meant to compare those people without potential for exposure to 2,4,5-T 23 to those people with potential for exposure to TCDD, Isn't that correct, 24 sir? 1 A Yes, sir 2 Q Sir? 3 A Yes, sir. 4 Q And Che 2,4,5-T of course is the agent that has the dioxin in 5 it, i8n*t it, sir? 6 A Yes, sir. 7 Q Just as the TCP is the agent that has the dioxin? 8 A Yes, sir. 9 Q Now, do you think that the scientific community at large is 10 interested in knowing whether or not 2,4,5-T absent dioxin causes cancer, 11 or is what they're Interested in in knowing whether or not dioxin causes 12 cancer? 13 A Whether dioxin causes cancer. 14 Q And that's the reason Zack wrote this study, isn't it, sir? 15 A No, sir. 16 Q Oh, no? That isn't the reason for the study? She starts out 17 the very first sentence talks about TCDD exposure. 18 A Yes, sir. I'm with you. 19 Q And Doctor, the reliance of the scientific community upon that 20 study has never been challenged or shown by any place outside of this 21 courtroom to your knowledge, isn't that correct, sir? 22 A No. 23 Q It has been challenged? 24 A It has not. 1 Q Sir? 2 A It has not. 3 Q It has not. Now, after you learned in 1984 that we had discover 4 the fallacy in the Zack/Gaffey report, did you suggest to Miss Zack that 5 she write another article pointing out that she had misled the scientific 6 community? 7 A I don't think she misled the community. 8 Q You don't think she misled-- 9 A No, sir. 10 Q All right. And is it your viewof what this tells thescientlfl 11 community that based upon the same philosophy and background asthe rest 12 of the testimony that you have given in this case, sir, in behalf of 13 Monsanto? 14 A I don't know what your question is. IS Q What I am saying, sir, if you believe this does not mislead 16 anyone, this evidence, this report does not mislead the scientific 17 community, I'm asking you is that the same theory upon which the rest of 18 your testimony has been based, the same view of whether it does or does 19 not tell the truth, does or does not mislead? 20 A No. 21 Q Does it stand in a different category then, sir? 22 A Yes. 23 Q Why, Doctor, would this category be different than the rest 24 of your testimony? Why should this Zack/Gaffey report be less reliable I or more reliable than the rest of your testimony? 2 A I don't understand your question. 3 Q Doctor, what I have suggested to you Is that these nine deaths 4 when added to the nine deaths that she reported shows a significant 5 Increase In deaths caused by exposure to TCDD and It does, does it not, s 6 A I don't think it does. 7 Q You don't think 18 deaths where 10.94 was expected Is a 8 significant Increase? 9 A The 10.94 Is not the number you should be using. 10 Q What Is the number we should be using? 11 A It's larger. 12 Q If I am using a wrong number, please let me know. 13 A That number Is based on that population that was In the 14 Zack/Gaffey study. 15 Q What Is the population, Doctor, that we're talking about? 16 MR. HEINEMAN: Let me object, your Honor. If he doesn't want 17 the Jury to hear what the witness has to say, why doesn't he Just tell 18 the Jury that instead of cutting the witness off? I object. I'd like 19 to let the Jury hear what the witness has to say. 20 THE COURT: Objection is overruled. I don't think the witness 21 was cut off. You may proceed, Mr. Carr. 22 Q What's the population, Doctor? I don't understand. 23 A The population with the observed 10 deaths was the population 24 that Included only those exposed to 2,4,5-T. If we Include those in the 1 TCP study, the observed Is going to be much larger than is present there. 2 You've got to add that population. You just don't add cancer deaths, 3 you don't add a new rate without putting a denominator on It. 4 Q Doctor, Indeed you do-- would you turn to Table 9, please? 5 A Yes, sir. 6 MR. HEINEMAN: Table 9 in what? 7 MR. CARR: Table 9 In the Zack/Gaffey report on 586. 8 Q Doctor, what they are talking about on the expected Is out 9 of the total number of deaths, not on a population. They're talking 10 about the total number of deaths, are they not, sir? 11 A No, sir. 12 Q Doctor, look at Table 9. Do you see 58 deaths there? 13 A Yes, sir. 14 Q And if you would divide the observed deaths, that is 58, by 15 9 or divide 9 by 58, you would get the 10.94, would you not, sir? 16 A Yes, sir. i 17 Q And that's how you get the PMR, you're talking about the number 18 of deaths, not about the total population, Doctor. 19 MR. HEINEMAN: Your Honor, I object. He just reversed the 20 question. It was just the opposite. Now he Is adopting what Dr. Rousch 21 just testified to. I object to It as misleading. 22 THE COURT: Objection is overruled. It Is not at all. 23 Q Doctor, there are 58 deaths that were observed, were there 24 not, sir? 1 A Yes, air. 2 Q And 58 divided by 10.94 gives you what, sir? 3 A What was that question again? I have to relate it to what, 4 where are you getting these numbers? 5 Q Doctor, the PMR, do you see the PMR, the '82 there, Doctor? 6 A Yes, sir. 7 Q And Doctor, you see the 9 and the 10.94? 8 A Yes. 9 Q You see that, sir? 10 A Yes. 11 Q And if you divided the 9 by 10.94, you get the PMR, do you not, 12 sir? 13 A Yes. 14 Q In '82? 15 A Yes. 16 Q And the 58, sir, is the total number Qf deaths involved, isn't 17 it, sir? 18 A Yes. 19 Q And they expect of these 58 deaths that 10.94 should be deaths 20 from malignant cancers, don't they, sir? 21 A Yes, sir. 22 Q Now, that is not based upon any figures connected to 2,4,5-T, 23 it's based upon national ratios, isn't it, sir? 24 A Yes, sir. Q It has nothing to do with 2,45-T, does it, sir? 1 A That's how you get to the expected, how do you get to the 2 expected withoutthat has to be based on the population that's under study. 3 Q The population under study is the 58 deaths, Doctor. 4 A Tes, but we're wanting to add some more deaths toit. 5 Q Yes, and that will change the PMR,won't it, sir? 6 A Yes, sir, that's my point. 7 Q Doctor, it doesn't change the PMR to a category that's-- well, 8 let's start over again. Add those nine deaths then, Doctor. Add those 9 nine additional deaths to it. You'll get a new, a total then of 67 deaths, 10 won't you, sir? 11 A Yes. 12 Q And if you add those nine deaths, you will then get a PMR of 13 12.-- or expected figure of 12.6, will you not, sir? 14 A I'm not sure. But your expected changes it based on the number 15 of deaths, and you just don't count cancer deaths, you have to count all 16 deaths. 17 Q Let's do it on the board so you can see exactly what we're doing 18 19 and just what Dr. Zack did. The 10.94 divided by 58 will give us the 20 percentage of those deaths from the expected, from the 58, will it not, sir? 21 A Yes. 22 Q And that equals 18.9 percent, do you see that, sir? 23 A No. 24 Q I have previously done it on a calculator. I t I ( I I 11 I i t \ \ i 1 A Yes. 2 Q So Zack expected 18.9 percent of these 58 deaths to be from 3 cancer, did she not, sir, and there were 9? 4' A Yes. 5 Q So 9 divided by 10.94 equals 82, and that's where she got her 6 PMR of 82, Isn't that correct, sir? 7 A Yes. 8 Q All right. So now we have shown here how she arrived at her 9 expected and somehow she arrived at her PMR, correct, sir? 10 A Yes. 11 Q Is started out with the total deaths Involved from cancer and the 12 total-- 13 A That isn't just from cancer. 14 Q The total deaths rather, and the total from cancer, the 58 is 15 the total deaths. 16 A Yes. 17 Q Mow, if you will take the 9 additional deaths from cancer and 18 add them to the total deaths, you'll get 67, will you not, sir? 19 A Yeah, but you just don't add cancer deaths. 20 Q Well, for this particular study, you can just add them to the 21 cancer deaths. 22 A How can you do that? 23 Q Simply by taking that figure 9 and adding them, sir. 24 A But you can't do that without changing the whole list oh what 1 should be observed. 2 Q Well, right now we're only concerned with the deaths from cancer, 3 Doctor. We'll get to the other deaths In a moment. Tou take the 67 and 4 multiply It by the 18.9 percent and that's the factor that she would expect, 5 right, sir? 6 A Yes. 7 Q You'll get 12,6 deaths. Now, that's the number of deaths you 8 would expect from cancer if you had a total of 67 deaths and only 67 deaths, 9 Isn't that correct? 10 A Yes. 11 Q All right. But Instead we have 18 deaths, don't we, sir, the 9 an 12 9 added together is 18. 13 A No, no. The total death Is going to be the-- 14 Q Doctor, I'm talking about the deaths from cancer. By using the 15 percentage of 18.9 percent that she used in her study, I'm using her figures 16 not what anybody else says, but I'm taking her figures, Doctor, ones that 17 she calculated, ones that you are required to rely upon. Taking her figures IS and applying It to the deaths that In fact occurred. Would you expect 19 12.6 deaths, and In fact you got 18, nearly 50 percent greater than 20 expected from this calculation, Isn't that correct, sir? i 21 A Yes. 22 Q Doctor, the same calculations can be done with all the other 23 deaths that she has listed in this exhibit. For Instance, If you will 24 turn to this Table 9 again, she has lung cancer, 6 lung cancer deaths, does 1 she not7 2 A Yes. 3 Q And only, what was expected was 3.78 according to her calculations 4 is that correct, sir? 5 A Well, you're taking total respiratory versus lung. 6 Q Well, either one. 7 A Not the same. 8 Q All right. They're all the same deaths, six deaths in the 9 respiratory system, all six happen to be lung cancer. 10 A Yes. 11 Q And she has listed there lung cancer, she expects 3.57 deaths. 12 In fact, you got six. 13 A Yes, sir. 14 Q That's an excess of 68 percent, isn't it, sir? IS A Yes, sir. 16 Q As a matter of fact, if you added the four lung cancer deaths 17 that occurred, in fact, that would make 10 lung cancer deaths, wouldn't 18 it, sir? 19 A You're taking that from this study here, from the other study? 20 Q Yes. Westfall, Farley, Hudnall, Jefferson all had-- Hudnall had 21 lung cancer and not reported by Miss Zack. 22 A It was reported In the other study. 23 Q Doctor, would you please address your attention to the Zack/Gaffe; 24 report? 1 A I am. 2 Q She did not report those four lung cancer deaths from exposure 3 to TCDD, did she, sir? 4 A No. 5 Q If she had reported those four lungcancer deaths, thatwould 6 have made It a total of 10, wouldn't It, sir? 7 A Yes. 8 Q And that 10 would be not just 68 percent higher, but It would be 9 143 percent higher than expected, wouldn't It, Doctor? 10 A I'm not sure what the expectedwould be. H Q Well, do the samething that we did here,Doctor. Wehave the 12 lung cancer of 3.57 divided by 58. 13 A It can't be 58. 14 Q The 58 I'm showing you, Doctor, It Is 58 total deaths, right, 15 sir? 16 A Right. 17 Q And that gives 6.1 percent. The 6.1 percent tlizLes 67, adding 18 the new deaths to It, the nine new deaths to the 58 equals 4.12. Ten, 19 that's the total lung cancer deaths divided by 4.12 equals 243, does It 20 not, sir? And that 243 is 143 percent In excess of what's expected. 21 A Yes. 22 Q Doctor, on the genitourinary cancers, there were two reported 23 and by her calculations that's 208, the figure 208 PMR, which Is 108 24 percent higher than what's to be expected, Is It not, sir*2 1 A Yes. 2 Q And bladder cancers, there's two bladder cancers, Isn't there, . 3 sir? 4 A Yes. 5 Q And that's 809 percent higher than what's expected? 6 A Yes, sir. 7 Q Sir? 8 A Yes, sir. 9 Q And lymphatic cancer, there's three lymphatic cancer deaths, 10 aren't there, sir? But they were omitted from the Zack/Gaffey report, 11 and those lymphatic cancers would be Hodgkin's Disease and-- 12 A Two leukemias. 13 Q And Cochran, the two leukemias. And that's 92 percent higher 14 than what's expected, Is it not, sir? And we do the same calculation, IS there's 1.35 divided by 58 equals .023, and that's 2.3 percent times 67, 16 the new cancer deaths, new total deaths rather, is 1.56. Three, in fact 17 what occurred divided by 1.56 equals 192, does it not, sir? That's 92 18 percent in excess. 19 A Right. 20 Q And the other cites, there's two deaths, one of which was 21 omitted from the Zack/Gaffey report, and that comes out 26 percent in 22 excess, does it not, sir? I'll do the calculation for you, if you wish. 23 We have 1.38 divided by 58 equals .024. 2.4 percent times 67 equals 1.59. 24 Two divided by 1.59 equals 126, which is 26 percent in excess? 1 A Yes, sir. 2 Q And from heart disease, there were 27 deaths from heart disease, 3 was there hot, Doctor? 4 A There were 31-- or 27. 5 Q Sir? 6 A Twenty-seven deaths. 7 Q And that's 37 percent higher than expected, is it not, sir? 8 A Yes. 9 (Plaintiff's Exhibit 1A65 was marked for identification.) 10 Q Handing you now Plaintiff's Exhibit No. 1465. I'll ask you if n that accurately represents the calculations that were performed here as 12 shown by the reports in evidence and by the Zack/Gaffey report. 13 HR. HEINEMAN: Come again? Hay I have that question read 14 back, your Honor? I'm not sure I heard it right. IS Q Doctor, this exhibit represents the result in percentages of 16 deaths that we have just shown in these calculations, does it not, sir, 17 based upon the Zack/Gaffey report? 18 A Yes. 19 MR, CARR: I offer that exhibit in evidence If it please the Court 20 (Plaintiff's Exhibit 1465 was offered into evidence.) 21 THE COURT: Any objections? 22 HR. HEINEMAN: Yes, I object to it, your Honor, on the basis that 23 it's both misleading and that it doesn't Incorporate the information that 24 Dr. Rousch has been trying to tell Mr. Carr for the last two hours and j 1 needs to be Incorporated, and secondly because It is something created by 2 Mr. Carr and no adequate foundation haB been laid for Its admission. 3 THE COURT: Objection is overruled. It is admitted over 4 objectlon. 5 (Plaintiff's Exhibit 1465 was admitted Into evidence.) 6 (Plaintiff's Exhibit 1465A was marked for Identification.) 7 Q Doctor, 1465A is a blow-up of 1465, is it not? 8 A Yes, sir. 9 Q Doctor, of the Information that's on 1465, the information relatln 10 to the genitourinary cancer relating to the bladder cancer and relating to 11 the heart disease, death from heart disease, Is all contained In the 12 Zack/Gaffey report Itself, and those percentages are taken specifically iron 13 the figures Included therein, is it not, cir? 14 A I'm sorry, I'm not with you. Where are you reading? IS Q 1465, Dr. Rousch. 16 A All right. 17 Q Those deaths not marked with a star, that is genitourinary 18 cancer, bladder cancer, arid heart disease are all taken directly from the 19 Zack/Gaffey report, that Is, these are figures that she reports on excess 20 deaths from exposure to TCDD, isn't that correct, sir? 21 A I don't think so, no. 22 Q Sir? 23 A No. 24 Q Now Doctor, look at the first one on Exhibit 1465, genitourinary, 1 and look at Table 9 of the Zack/Gaffey report. 2 A Yes, sir. 3 Q She reports the PMR there Is 208, does she not, sir? 4 A Yes, sir. 5 Q That's 108 percent, and that's 96 expected, Isn't It, sir? 6 A .96. 7 Q Doctor, .96? 8 A Yes. 9 Q You see that, sir? IO A Yes, sir. 11 Q There were two deaths found from genitourinary cancer? 12 A Yes. 13 Q What was expected was .96, correct, sir? 14 A Yes, sir. 15 Q And that .96 Is 108 percent higher than what's expected, Isn't 16 It, sir? 17 A Yes. 18 Q And that*8 exactly what's shown In Exhibit 1465? 19 A Yes, sir. 20 Q Sir? 21 A Yes, sir. 22 Q All right. And the bladder cancer, that's 809 percent higher 23 than what was expected and that's exactly what was shown on 1465, Isn't 24 It, sir? 1 A Yes, sir. 2 Q And the heart disease at 27 Is 37 percent higher than what's 3 expected, Isn't It, sir? 4 'A Yes, sir. 5 Q Now, for it to be a higher death rate from heart disease, 37 6 percent higher, Dr. Rousch, wouldn't that lead you to suspect that 7 exposure to dioxin is causing the cardiovascular problems that Doctors 8 Webster and Hryhorczuk and all these other folks said earlier come from 9 dioxin exposure, aren't those two findings consistent, Doctor? 10 A Consistent, yes. 11 Q And the Zack/Gaffey report supports or gives additional 12 foundation to the Webster-Hryhorczuk Northwestern University toxic effect 13 listing, does it not, sir? \ 14 MR. HEINEMAN: Your Honor, 1 object. We have been through for IS an hour the fact that Dr. Rousch says that the Northwestern people are 16 attributing that Information to another source. 17 THE COURT: Objection is overruled. 18 Q Isn't that correct, Doctor? 19 A It's consistent with, but it doesn't prove it. 20 Q Doctor, I didn't say It proved it. Proof is what the jury 21 believes Is true from the evidence heard from both sides and they haven't 22 heard both sides yet. But proof is that which the jury says is true, 23 that's proof. All I'm asking you, Doctor, Is that this supports the 24 statement by Dr. Webster and the group at Northwestern University, does 1 It not, sir? 2 A Yes. 3 MR. HEINEMAN: Object to-- well, after your answer. I object to 4 the form of the question, to the speech that Mr. Carr gave, ask that it 5 be stricken. It is not a proper question, ask that it be stricken and 6 ask that the jury be instructed to disregard it. 7 THE COURT: It was a proper question and the remarks were 8 properly prefatory to the question. The objection is overruled. 9 Q And Doctor, of the other deaths listed here in excess of expected 10 shown by the stars, four lung cancer deaths I think you already testified 11 to that were omitted from the Zack/Gaffey report, the three lymphatic 12 cancer deaths were completely omitted from the Zack/Gaffey report, one 13 death from other cites was omitted from the Zack/Gaffey report, and from 14 all cancers, nine that we've already gone through were omitted from the 15 Zack/Gaffey report, isn't that correct? 16 A Yes. 17 MR. CARR: Your Honor, this is an appropriate, convenient place 18 for me at this time. 19 THE COURT: That's fine. Okay, we will break at this point In 20 time. We will resume again at nine o'clock tomorrow morning. I want to 21 admonish you as I do before any overnight break that besides the admonishmM 22 that I have given you as to breaks during the trial, I want to remind you 23 that you are not to read, listen to, or watch anything about this case in 24 particular or the subject matter in general in any of the media, print or 1 electronic. Thank you for your attention and cooperation. Court Is 2 adjourned for the day. 3 (At this tine Court was adjourned for the day.) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 \ 24 I STATE OF ILLINOIS ) ) SS, 2 COUNTY OF ST, CLAIR ) 3 4 5 6 7 1 Patricia A. Gandy, CSR, RPR, Official Court Reporter In and 8 for the Twentieth Judicial Circuit, and the Official Court Reporter 9 who transcribed the above-styled cause had on July 8, 1985, do hereby 10 certify that the foregoing transcript of proceedings Is a true, correct 11 and complete transcript of the proceedings had on said date, 12 DATED this 11th day of July, 1985. 13 14 PATRICIA A. GANDY, CSR, 15 Official Court Reporter 16 17 18 19 20 21 22 23 24 I STATE OF ILLINOIS ) ) SS. 2 COUNTY OF ST. CLAIR ) 3 4 5 6 7 I f RICHARD P. GOLDENHERSH, Circuit Judge In and for the 8 Twentieth Judicial Circuit, hereby certify that the above Is a true and 9 correct transcript of the proceedings had In the case captioned: FRANCES 10 E. KENNER, et al., v. MONSANTO COMPANY, Cause No. 80-L-970, heard on 11 July 8, 1985. 12 DATED this 11th day of July, 1985. 13 14 ENTER: 15 16 RICHARD P. GOLDENHERSH, Circuit Judge 17 18 19 20 21 22 23 24 I that's summarized In Table 7? 2 A Yes. 3 Q Is respiratory disorders a toxic effect of 2,3,7,8 TCDD in Tnan 4 that's summarized In Table 7? 5 A Yes. 6 Q And are elevated serum hepatic enzyme levels a toxic effect of 7 2,3,7,8 TCDD In man that's summarized in Table 7? 8 A Yes, sir. 9 Q And are disorders of fat metabolism a toxic effect of 2,3,7,8. 10 TCDD In man that's summarized in Table 77 11 A Yes. 12 Q And Is disorders of liver metabolism a toxic effect of 2,3,7,8 13 TCDD in man that's summarized In Table 7? 14 A Yes. 15 Q And is respiratory disorders a toxic effect of 2,3,7,8 TCDD 16 as summarized In Table 77 17 A Yes, sir. 18 Q And is cardiovascular disorders a toxic effect of 2,3,7,8 TCDD 19 as summarized in Table 7? 20 A Yes. 21 Q And pancreatic disorder Is a toxic effect of 2,3,7,8 TCDD In man 22 as summarized in Table 7? 23 A Yes. 24 Q And is polyneuropathies, peripheral neuritis1,ba.itoxic effect of 1 2,3,7,8 TCDD in man as summarized in Table 7? 2 A Yes, it is. 3 Q And so is lower extremity weakness? 4 A Yes. 5 Q And so is sensory impediments? 6 A Yes, sir. 7 Q And so is neurasthenic or depressive syndrome? 8 A Yes, sir. 9 Q Now, Doctor, these things that they have here summarized for 10 you, you at Monsanto never did, or did you, did you ever write Doctors 11 Hryhorczuk or Wallace, Webster, and Persky and tell them that you won't 12 adopt or you won't accept, Strike that, that you won't accept this report 13 of theirs? 14 A No, sir. 15 Q You in fact have accepted it, haven't you, sir? 16 A Yes, sir. 17 Q And you are relying upon it, aren't you, sir? 18 A Yes, sir. 19 Q Yes. And Doctor, you have no reason to dispute their summary 20 of these effects, do you, sir? 21 A That's not their summary. 22 Q Do you have any reason to dispute that which they say is summarlz 23 in Table 7? 24 A Only that they are saying that's what the literature says. I that you at Monsanto do not accept these as toxic effects of TCDD exposure 2 in man? 3 A No, sir. 4 Q Then are you saying that you disagree with the statement that 5 these are the toxic effects of 2,3,7,8 TCDD exposure in man only in thiB 6 case, Dr. Rousch, is this the only place you've said-it? Where else have 7 you said it other than in this courtroom through your attorneys and yoursi 8 sir? 9 A No place. 10 Q Doctor, along the way of arriving at opinions as to the effects II of dioxin upon human beings and more specifically as to their causing 12 cancer, you at Monsanto have used your own records relating to workers of 13 Monsanto who have been exposed to dioxin in the 1949 accident in the work 14 of Monsanto workers at Nitro in the 2,4,5-T producing department, isn't 15 that correct, sir? 16 A Yes, sir. 17 Q And you had a Dr. Judith Zack, and actually she was not a doctor? 18 A N o , sir. 19 Q She had a Master's Degree in-- 20 A I think it's epidemiology. 21 Q In public health is what she had, yes, and she was not a medical 22 doctor or any other-- she had no M.D.? 23 A N o , sir. 24 Q And Judith Zack first started working in this area to make 1 of which ultimately became published in various authoritative journals, 2 isn't that correct, sir? 3 A Yes, sir. 4 Q And one of the first things that she did or first reports she 5 made was relating to the workers who were exposed to the 1949 accident, 6 isn't that correct? 7 A Yes, sir. .8 Q And that was an article that she first-- she was the principle 9 author, was she not, sir? 10 A Yes, sir. 11 Q As a matter of fact, she wrote the entire article in 1979, didn't 12 she, sir? 13 A With only minor modifications. 14 Q And with these minor modifications, these minor modifications 15 were made by Dr. Suskind, aren't they, sir? 16 A Yes. 17 Q And In point of fact, the article is listed in the publications 18 as being written by Zack and Suskind, but 90 percent or 95 percent of the 19 article was in fact written by the Monsanto employee known as Judith 20 Zack, isn't that correct, sir? 21 A Yes, sir. 22 Q Now, in order to-- and that article by the way, we ought to get 23 it out, is Exhibit 62. 1 think that's a Monsanto Exhibit 62. Your Honor, 24 I have ,a copy of it. I THE COURT: Why don't you use it, if you could. 2 Q Let me give you a copy that I have of Monsanto Exhibit 62, and 3 this is the article published in January of 1980 in the Journal of 4 Occupational Medicine and shows the author to be Zack and Suskird. 5 A Yes, sir. 6 Q Mow, Doctor Zack, in order to write this article that she 7 wrote, of necessity had to go into the records to determine who was 8 exposed to dioxin and who was not exposed to dioxin, correct, sir? 9 A This was only on those with chloracne. 10 Q Doctor, this article lists the people, the title of it in fact 11 is "The Mortality Experience of Workers Exposed to Tetrachlorodibenzo-para- 12 chlorophenol Accident." 13 A Yes, sir. 14 Q And she of necessity took those people who were employees who 15 worked in the area of the production or who were involved in the cleanup, 16 isn't that correct, sir? \ 17 A Yes, sir. - * 18 Q And she of course could, if she wanted to, ignore some records 19 and not ignore other records, couldn't she, sir? 20 A Yes, sir. 0 21 Q If she wanted to, if there were in fact 20 people that died of 22 cancer that had been exposed to dioxin in this accident or in the productioi 23 of TCP, she could have ignored some of those people if she wanted to, 24 couldn't she, sir? 1 A Yes. 2 Q And no one to your knowledge has ever checked Judith Zack's 3 findings to determine whether or not she ignored cancer deaths, have they, 4 sir? 5 A No. 6 Q And subsequent to this Exhibit 62 or subsequent to the publicatioj 7 of this article, Judith Zack did another study, didn't she, sir? 8 A Yes, sir. 9 Q She then studies those people that were exposed to TCP in the 10 ordinary working of it and not just those that were exposed in the 11 accident. She included the production workers in general, whether they 12 were or were not in the accident, didn't she, sir? 13 A Yes. 14 Q Yes. So hers would be a 15 A It is a different group. 16 Q Sir? 17 A It is a different group. 18 Q Well, broader, it would i 19 TCDD in the accident, would it 20 A Not necessarily. 21 Q Not necessarily? 22 A No. 23 Q Doctor, we'll get to that 24 study and state for the purpose of discovery the effects of dioxin exposure