Document RJLywkdNZvj2DyzKpRgv1257v

1 IN THE CIRCUIT COURT FOR THE TWENTIETH JUDICIAL CIRCUIT 2 ST. CLAIR COUNTY, ILLINOIS 3 4 FRANCES E. KEMNER,- et al. , ) 5) Plaintiffs, ) 6 vs. ). ) No. 80-L-970- 7 MONSANTO COMPANY, ) ) S Defendant. ) ) 9 IO 11 REPORT OF PROCEEDINGS 12 JURY TRIAL 13 Before the HONORABLE RICHARD P. GOLDENHERSH 14 April 15, 1985 15 Afternoon Session 16 17 APPEARANCES: 18 MR. REX CARR and MR. JEROME SEIGFREID, Attorneys at Law 19 On Behalf of the Plaintiffs; 20 MR. JOHN R. MUSGRAVE, MR. KENNETH R. HEINEMAN and MR. JOSEPH NASSIF, Attorneys at Law 21 On Behalf of the Defendant. 22 23 24 DONNA F. BREWER, CSR, RPR Official Court Reporter 1 BE IT REMEMBERED AND CERTIFIED that heretofore, on 2 to-wit: Monday, April 15, 1985, being one of the regular 3 judicial days of this Court, the matter as hereinbefore set 4 forth came on for hearing before the HONORABLE RICHARD p. 5 GOLDENHERSH, Circuit Judge in and for the Twentieth Judicial 6 Circuit, State of Illinois, in St. Clair County Building, 7 Belleville, St. Clair County, Illinois, and the following was 8 had of record, to-wit: 9 ******* '**> it* tty 10 (The following proceedings were held in the 11 presence and hearing of the jury.) 12 (Plaintiffs' Exhibit No. 1298 was marked for ** '* 13 identification.) 14 PHOCION PARK 15 resumed the stand, having been previously duly sworn, 16 further testified as follows under Section 2-1102 of the 17 Illinois Code of Civil Procedure: 18 CROSS EXAMINATION 19 BY MR. CARR: 20 Q. Mr. Park, I will now hand you what's been marked 21 as Plaintiffs' Exhibit 1298 and ask you to look at that if 22 you would. This is a memorandum to the file relating to 23 another TSCA 8 (e) signed by you, is it not, sir? 24 A. Yes. -2- I Q. And it has attached to it certain notes that came 2 with the exhibit, does it not, sir? 3 A* Yg s 4 Q. And those are your handwritten notes. At least the 5 first two pages attached to that are your handwritten notes, 6 aren't they, sir? 7 A. Yes. 8 Q. And the next page is a memo that is addressed to you, 9 is it not, sir? 10 A. Yes. 11 MR. CARR: I offer that exhibit into evidence. 12 THE COURT: Okay. Any objections? 13 MR. MUSGRAVE: Yes, your Honor. Again this deals 14 with the 2,.4 Dichlorophenol. 15 THE COUKT: Okay. I will incorporate your prior 16 arguments on that point and it will be admitted over objection. 17 MR. CARR: And leave to pass it to the jury? 18 THE COURT: Yes/ you may. It's been admitted. 19 (Plaintiffs' Exhibit No. 1298 was received' into l i <k 20 evidence.And passed among the jury.) 21 MR. CARR: Q. The exhibit discusses, the fact that 22 dibenzofurans had been detected in 2, 4 dichlorophenol, isn't 23 that correct, sir? 24 A. Yes I Q. And -the level of furans that had been detected, 2 dibenzofurans was one to two parts per million, is that correct 3 sir? 4 A. Yes. >% 1 5 Q. And the question that you were there to discuss was 6 whether pr not 'that level of furans in 2, 4 dichlorophenol 7 represented a substantial risk of injury to health or the 8 environment, isn't that correct, sir? 9 A* Yes * 10 Q. And your note indicates -- the third page of the 11 exhibit, your notes, someone said at that meeting and you 12 wrote it that dibenzofurans present should have toxicity not gr 13 than .01 that of 2,3,7,8 dibenzodioxin Is that correct, sir? 14 A. That is my note, yes. 15 Q. And .01 is one percent, is it not, sir? 16 A. (No response.) * 17 Q. It should have the toxicity of one -- one percent 18 of the toxicity of 2,3,7,8? 19 A. Yes, one-one-hundredth in other words. 20 Q. Yes, one onefhundredth is one percent. 21 A. Yes. 22 Q. And then to determine -- to relate the two million m 23 to that one percent, you take one percent of two million and 24 you would get two hundred parts per billion of 2,3,7,8 -4- I equivalent toxicity, would you not, sir? 2 A. I'm sorry, Mr, Carr. I didn't follow you there. 3 Q. You have two parts per billion of tetrachlorodibenzofi 4 in the product, do you not, sir? Two parts per million of 5 TCDF in the product, don't you, sir? 6 A. One to two, yes. 7 Q. And if you take one percent of two million, one 8 percent of two million is two hundred parts per billion, isn't 9 it, sir? 10 A. (No response.) 11 Q. It's a simple mathematical computation, Mr. Park. 12 A. This is not the way the one one-hundredth was 13 intended to apply. 14 Q. Mr. Park, I am not asking you to tell me that. I 15 am simply asking you whether or not one percent of two million 16 is four hundred parts per billion -- two hundred parts per 17 billion. One perdent is one hundred. Two percent is two 18 hundred, is it not, sir? 19 A. Yeah, so that would be -- 20 Q. Sir? 21 A. Excuse me just a moment. Let me use my pad here, 22 Mr. Carr. Yes, I would say that one percent of two parts 23 per million would be 20 parts per billion. 24 Q. Twenty parts per billion? -5- 1 A. Was that your question? 2 Q. Yes. And is that your calculation, sir? Yes, that's 3 right,.:20 parts per billion. 4 .A. Yes > 5 Q. Correct, sir? 6" A. Yes. m r Q. Yes.' And your committee has equated the toxicity 8 of this to 20 parts per billion of 2,3,7,8 TCDD, is that correc 9 sir? 10 A. It doesn't really say quite that, Mr. Carr. It says 11 have the toxicity not greater than, say, one one-hundredth 12 that of the 2,3,7,8. 13 Q. Yes. 14 A. Dioxin. Now, whether that applies, on a concentration IS basis, I am not qualified to say. i 16 Q. Well, that's what you are actually being asked to 17 discuss. And that's what you are doing. You are relating -- 18 you are determining, are you not, whether or not this 19 2, 4 dichlorophenol has enough toxic substances in it that 20 you should notify the E.P.A., isn't that correct, sir? 21 A. Whether it would amouSTn- t to a substantial risk of 22 injury to the health or the environment. 23 Q. Whether or not that toxicity represents such a risk 24 of health to the environment, isn't that correct, sir? -6- 1 A. Well, specifically whether the level of the # 2 tetrachlorodibenzofurans presented a substantial risk of 3 injury to the health or the environment, 4 Q,. And in arriving at that, you are comparing -- and 5 these are your notes, sir. you are comparing the toxicity 6 of these furans to the toxicity of 2,3,7,8 dioxin, aren't 7 you, sir? 8 A. That is correct. 9 Q. And calculating it that way, you are equating the 10 two million -- two parts per million of TCDF to 20 parts per 11 billion of 2,3,7,8 dioxin, aren't you, sir? 12 A. We should point out this is acute toxicity -- 13 Q. Excuse me. Would you answer that question first, 14 please, Mr. Park? IS A. We are equating acute toxicity, yes. 16 Q. And it was based upon the -- and that -- now that 17 TCDF content has its own toxicity along with the content of 18 other toxic substances such as dioxin, doesn't it, sir? 19 A. (No response.) 20 Q. To put it a different way, when you consider whether 21 or not a chemical going in commerce is toxic, you consider all 22 the toxic constituents of that chemical, don't you, sir? 23 / A. Yesy to the extent we have that information. 24 Q. And so you -- when you decide whether or not the -7- 1 2, 4-di is required to have a notice to the E.P.A., you considt 2 the toxicity of the 2, 4 dichlorophenol in a pure state 3 without dioxins, don't you, sir? 4 A. Mr. Carr, I would assume we would consider the 5 product as it goes into commerce* 6 Q. And as it goes into commerce it has dioxins that has sr 7 toxicity associated with dioxins, total dioxins* It has 8 toxicity connected with 2,3,7,8 dioxins. And.now it has 9 toxicity for the furans, doesn't it, sir? 10 A. Yes. 11 Q. And so when you consider whether or not a substance 12 presents a substantial risk to the health of the people that 13 are going to be playing on this lawn that is sprayed with 14 2,4 D, you have to consider the toxicity of the 2,3,7,8 dioxin 15 plus the toxicity of the total dioxins plus the toxicity of 16 the tetrafurans, don't you, sir? 17 A. I would not have been part of any consideration of 18 the toxicity of the product sprayed on the yard. 19 MR. CARR: Your Honor,' would you direct the witness 20 to answer that question? 21 THE COURT: That's not responsive, Mr. Park. You 22 .have to answer the question that is posed to you. 23 THE WITNESS: I don't know, Mr. Carr, as to what was 24 considered by the manufacturer of the herbicide sprayed on the -8- 1 MR. CARR: Q. I amjiot asking you to tell me that, 2 Mr. Rark. And you know X am not asking you to tell me that. 3 X am asking you to tell me, do you not have to consider 4 when you are sending the 2,4 dichlorophenol out that the 5 persons -- and when you are considering whether or not there 6 is an 8 (e) section notification needed, you have to consider, 7 you have to add th toxicity of the 2,4 dichlorophenol 8 to the toxicity of the 2,3,7,8 dioxin to the toxicity of the 9 total dioxins and to the toxicity of the furans, do you not, 10 sir? 11 A. X would assume that all that toxicity would be 12 considered. 13 Q. I didn't ask you whether or not you assume that. 14 Don't you know that is your boundenldty tinder the law to 15 consider not just in isolation the toxicity of one of the 16 contaminants that go into your product, but the total 17 toxicity of the total contaminants that go into your product? 18 A. That's correct. 19 Q. So the 20 parts per billion, the toxicity of the 20 furans in that product must be added to the toxicity of 21 whatever 2,3,7,8 dioxin is in that product and that also must 22 be added to the toxicity of whatever the dioxins that might 23 be in that product, isn't that right, sir? 24; A. Yes? Q. So you could if your 'toxicologist Nair considered that 250 parts per billion of total dioxins without any consideration to 2,3,7,8 being in that product sample, each 250 parts per billion of total dioxin would be equated, according to her, to one part per billion of 2,3,7,8, isn't that correct, sir? A. ' No, it isn't, Mr. Carr. Q. It isn't correct? A. No, for a couple of reasons. Q. Well, let me -- before we get to the couple of reasons.-- I didn't have yesterday the -- or we did have Nair's -- we have that exhibit number. Do you have the January 25th memo by Dr. Nair in front of you, sir -- January 14th, r'm sorry. Plaintiffs' Exhibit 1296? A. No, I do hot. Q. Isn't Dr* Nair making an equation between 250 parts --r per billion of total dioxins and the effedt of 2,3,7,8? A. Well, she is -- ME. MUSGRAVE: Just a second, Mr. Park. May my record continue -- may the record, your Honor, continue to show my continuing objection? I want to be sure this is clear to- this witness being required to not only interpret documents vhose people that he -- documents that he did not author, but technical documents when there hasn't been a foundation 1 laid to establish his expertise in interpreting documents 2 as to -- of this nature deal with analytical chemistry and 3 those types of things. 4 THE COURT: I have ruled on all of those points 5 before. I will note your objection as a continuing objection 6 for the record. 7 MR. MUSGRAVE: Thank you. 8 MR. CARR: Q. Now, Doctor -- I 'm sorry. Mr. Park, 9 didn't we establish last Friday that this was her report and 10 it related to 250 parts per billion and that she said that 11 because it has 250 parts per billion of total dioxins and 12 no 2,3,7,8 in it in the sample that she felt it should be 13 reported to the E.P.A.? Didn't we establish that last week? 14 A. Well, she does say that, yes. 15 Qr. So, should you not then if you follow this recommendat 16 of this toxicologist, should you not take the total dioxins 17 in a product and compare it whether it's greater or smaller 18 than 250 parts per billion? If this document has any validity 19 at all, Mr. Park. 20 A. Well, she is one of our toxicologists. 21 Q. I understand that, Mr. Park. But I am not asking you 22 that now. I am asking you whether or not if this document has 23 any validity at all that you should not consider that 250 parts 24 per billion of total dioxins has toxicity that should be.taken -11- 1 into consideration. 2 A. Mr. Carr, may I just say that there are two problems 3 in that. 4 Q. What you can do, Mr. Park, you can say, no, you shouldn r 5 consider that, that it's, not an element to consider. Or you 6 "can say, yes, you should consider it. And I tell you again, 7 Mr. Musgrave will have ample opportunity. When he asks you 8 . questions, you can sit here for 30 minutes and say what you 9 want to say in response to his question. But the questioner 10 is entitled to have you respond to the question. Otherwise, 11 we will never get out the points that we want to get out 12 if you get to say anything you want to say. Now, my question 13 is, does not -- if Dr. Nair's document.has any validity that 14 you must consider the toxicity of 250 parts per billion of 15 total dioxins in the products. 16 A. I would say yes to thr>at question. 17 Q. And you consider that along with the toxicity of the 18 furans and along with the toxicity of the 2,3,7,8 dioxin, 19 don't you, sir, if you are doing your job on this committee 20 properly? 21 A. Yes. 22 C' -MR. CARR: Your Honor, we had not had offered into 23 evidence -- we had referred to it, but I only had the one copy, 24 the memo of Dr. Levinskas of January 16, 1985. I would now -12- 1 like to have it marked. 2 (Plaintiffs* Exhibit No. 1299 was marked for *4' * 3 identification.) 4 THE COURT: January 16, 1985? %m 5. MR. CARR: That*s correct, your Honor. f*- 6 . Q. I am handing you now what's been marked 7 Plaintiffs' Exhibit 1299. You recognize that as Dr. Levinskas* 8 memo directed to Dr. Roush and you got a copy along with 9 attachments? 10 A. Yes. 11 MR. CARR: And offer that into evidence, please. 12 MR. MUSGRAVE: Same objection that would apply to 13 the other documents in connection with that January, 1985, 14 meeting that I believe I made, your Honor, with regard to 15 Plaintiffs' Exhibit 1297 *-- 16 THE COURT: Okay. I will incorporate those. 17 MR. MUSGRAVE: Incorporate all of those, yes. 18 THE COURT: It's admitted over objection. Your 19 arguments are incorporated. 20 21 jury? MR. CARR: And leave to pass that exhibit to the 22 THE COURT: Yes, you may. 23 (Plaintiffs' Exhibit No. 1299 was received into 24 ^ ^ evidence and passed among the jury.) -13- I MR. CARR: Q. We have discussed this 1299 last 2 Friday. And I won't get'into it in detail other than to 3 ask you as a fact that Dr. Levinskas made his comments relative 4 to the report of Dr. Nair1which was attached in its original 5 form at least to the memo of January 16, 1985. And apparently 6 something else was attached to it, isn't ^that correct, sir? 7 A. Yes. 8 Q. And whether you believe that Dr. Nair exaggerated 9 the risk, in any event, you must give as we have demonstrated 10 some level of toxicity value to the total dioxins, do you not, 11 sir? 12 A. Whatever would be appropriate, yes. 13 " Q. And what you have as appropriate -- what you had at 14 that time in January, '85, was the mathematical computations 15 by Dr. Nair in the January 14, 1985, memo and her conclusions 16 drawn from those mathematical computations, isn't that correct, 17 sir? x- 18 ^ MR. MUSGRAVE: I object to the question as being 19 multiple questions. I believe it's got two or three questions 20 in there. He is characterizing the document in part of the 21 question. And I think it's unfairly stated. 22 THE COURT: Overruled. 23 THE WITNESS: That was one of the items for 24 1 consideration. -14- f 1 MR. CARR: Q. And you did consider that, didn't you, -Q f* 2 sir? 3 A. Yes* 4 Q. Mow, at the time of considering these toxicities of S these various substances, you also had Plaintiffs' Exhibit 1289 6 And do you have that exhibit in front of you? It is the memo 7 dealing with the toxicity of furans, the handwritten memo. 8 You are getting so many exhibits now. That's the 1290. Well, 9 I have another copy of it. So I will just hand that one to you. 10 Now, Plaintiffs' Exhibit 1289, handwritten notes, discusses II the subject matter that was. raised in the memo of December 14, 12 1981; that is, the furans, doesn't it, sir? 13 A. Mr. Carr, this is that memorandum that is neither 14 dated nor authored. 15 Q. Mr. Park, my question is -- 16 A. I don't know. I don't know. 17 Q. All right. If you look at December 14, '81, memo, you, 18 will see that it discusses 2,4-dichlorophenol 93 percent, 19 doesn't it, sir? 20 A. Yes. 21 Q. And it talks about two parts per million of the furans, 22 doesn't it, sir? 23 A. Yes. 24 Q. And Plaintiffs' Exhibit 1289 also talks about 93 -15- 1 dichlorophenol, doesn't it, sir? 2 A. Yes. 3 Q. 93 percent 2,4-dichlorophenol. 4 A. Yes. * 5 Q. And it also says that it has a consistent one to two 6 parts per million total of chlorodibenzofurans,"doesn't it, 7 sir? 8 A. Yes. ' t* 9 Q. So whether they are contemporaneous or not, they are 10 discussing exactly the same subject, aren't they, sir? 11 A. It would appear to, yes. 12 Q. And this document then, this 1289 document, goes on 13 to pose the question whether or not the two partsper million 14 constituted imminent hazard and goes on to answer that 15 particular question, doesn't it, sir? 16 A. Let me read it here, Mr, Carr. Are you referring to 17 this item No. 4 of these notes? 18 Q. All four items are dealing with dibenzofurans and the 19 toxicity of dibenzofurans. 20 A. Well, item No. 3 says, "No toxicological data are 21 available for these chemicals." 22 Q. Yes. And item 4 then considers the toxicity by 23 analogy, doesn't it, sir? 24 A. Yes, it does appear to. -16- 1 Q. ibid it states that the structure-activity relations 2 among the chlorodibenzodioxins suggest that these furans that 3 are identified here are ten to one hundred times less toxic 4 them 2,3,7,8 tetrachlorodibenzofuran, isn't that correct, sir, 5 TCDF? 6 A. Yes, 7 Q. How, you do know or you are familiar with the fact 8 that the furans have been identified in this case as having 9 the 2,3,7,8 TCDF as toxicity very near or percentage of at 10 least, if not near, the toxicity of 2,3,7,8 TCDD. You know 11 that, don't you, sir? 12 A. I do not know that, Mr. Carr. 13 Q. All right. 14 MR. MDSGRAVE: I object to counsel's use of the term ? t 15 "very near." I think the testimony speaks for itself as to 16 what it has been. And that may be his interpretation -- 17 THE COURT: Overruled. 18 MR. CARR: Q. This document itself states'!that these 19 furans that are identified as being in 2,4-dichlorophenol -- the 20 analogy implies that they have "1/50 to 1/1000 the activity of IK 2,3,7,8 TCDD," isn't that correct, sir? 22 A. Right. There is the implication there, yes. 23 Q. And 1/50 of two million parts per -- two parts per 24 million would end up with a factor of 40 parts per billion, -17- 1 would it not, sir, rather than 1/100? 2 A. Mr, Carr, I'm sorry. I didn't follow that last 3 equation of yours. 4 Q. In your notes you had that the TCDF in question is 5 1/100, that is one percent, of the toxicity of the 2,3,7,8, 6 didn't you, sir? 7 A. Mr. Carr -- 8 Q. Sir? 9r A. Mot greater than 1/100 based on acute toxicity. That 10 is not chronic toxicity which I assume is being spoken of in n these handwritten notes. It's two entirely different things. 12 Q. Mr. Park, you are digressing from the question that 13 I am asking you. Your notes related the toxicity of 2,3,7,8 TC 14 and the furans, did they not, sir? IS A. But it expressly says acute toxicity. 16 Q. I am not quarreling and I don't care whether it's 17 acute or chronic at this point in time. Because you don't 18 care. You are going to report to the E.P.A. based upon the 19 toxicity whether it's acute or chronic. You want to report 20 the toxicity. That's your obligation, isn't that correct? 21 A. Whatever is appropriate. 22 Q. You are not obligated to report just acute toxic 23 substances as opposed to chronic toxic substances or chronic 24 as opposed to acute, are you, sir? You are obligated to report -18- 1 toxic substances whether they have acute effects or chronic 2 effects or both, isn't that correct, sir? 3 Ai If reporting is required in a given situation. 4 Q. Isn't that correct? 5 A. Yes. If the reporting is required. 6 Q. So the point you are bringing up for acute toxicity, 7 as I suggested to you, is irrelevant. And could you direct youjr 8 attention to the question I asked? 9 A. All right. It is not at all irrelevant,, Mr. Carr. 10 Q. Mr. Park, did not your memo point out that the content] II in the 2,4-dichlorophenol of furans should be equated with the 12 toxicity of one percent 2,3,7,8 TCDD? If you refer to the 13 Exhibit 1298 again, third page of that exhibit, "Dibenzofurans 14 present should have toxicity not greater than .01 that of 15 2,3,7,8 dibenzodioxin (based or+nr acu>te toVx. icity)." Didn'. t* you 16 say that, sir? 17 A. Yes. 18 Q. And you also point out there that Canada has establish^ 19 a limit of ten parts per billion of total dioxins, don't you, 20 sir? In 2,4-dichlorophenol. 21 A. It looks like there is a blank here. And at this 22 moment I can't recall if there was something else. I don't 23 know what the, frankly looking at these notes, ten parts per 24 billion Canadian limit would apply to. -19- Q. And you don't recall discussing with Diamond Shamrock * ^ the fact t&at they, are going to sell their 2,4-D in Canada and they have to comply with the Canadian limit and they had a number of discussions with you, Mr. Park, and your company about whether or not you can get your 2,4-dichlorophenol down to total dioxin content of ten parts per billion? MR. MUSGRAVE: Object. That is an improper characterization of the evidence. It hasn't even been put into evidence yet. MR. CARR: Q. Well, the evidence is it's down to one part per billion. I will be glad to put that in now if the witness doesn't have any memory of it at this time. I was saving this for Ms. Wente because this witness's name is not on it. But there is a lot of other people on it. And' I will be glad to put it in. Would you mark that, please? (Plaintiffs' Exhibit No,. 13 00 was marked for V : iN identification.) MR. CARR: Q. I am handing you now what has been marked as Plaintiffs* Exhibit 1300. I ask you to look at that, please, sir. You recognize the names of the various persons to whom this memo was sent, don't you, sir, and the signature, the initials J.D.W. being J. D. Wilson? A. I recognize the name James D. Wilson. I recognize a , few oftthe other names, but not all. MR. CARR: X offer this Exhibit 1300 into evidence if it please the Court? MR. MUSGRAVE: May I have a moment^ your Honor? v ** THE. COURT: Sdtfe. MR. MUSGRAVE: We would object because it does deal with 2,4^dichlorophenol, same basis we have previously objected to, the documents that deal with products other than orthochlorophenol or orthochlorophenol crude. THE COURT: Fine. It's admitted over objection. MR. CARR: And leave to pass it to the jury. THE COURT: Yes, you may. *T (Plaintiffs' Exhibit No. 1300 was received into 'fl* ' f evidence and passed among the jury.) ^ -w 't* MR. CARR: I found the original of that document, ^ V- . your Honor, THE COURT: Okay. MR. CARR: Q. Mr. Park, this memo of Mr. Wilson's refers to a conversation that he had with a customer that called wanting to know about the dioxin content of 2,4-dichlorophenol produced by Monsanto, isn't that correct, sir? A. Mr. Carr, I know nothing of this conversation or this incident. I am really not -- Q. Mr. Park, you can read, can you not, sir? A. it does say in here -- -21- 1 Q. And isn't the subject of this memo that a Harwell ' 2 from Diamond-Shamrock called wanting information on dioxin? 3 A. Yes, Km 4 Q. Now, up to-the time that you -- from 1979 up to the 5 point in time that this customer called wanting this 6 information, do you have any.knowledge as to whether or not 7 Monsanto passed dioxin information on to any customer from 8 January 10, 197 9, or -- yeah, to any customer from that date 9 up to September 17, 1981? 10 A, I guess I cannot recall specifics of customer 11 contacts. But I am not normally involved in that, Mr. Carr. 12 Q. I understand that, Mr. Park. You said that before. 13 But you don't know of any of your own knowledge, do you? 14 A. No* I do not. 15 Q. Now, this discusses the fact that Diamond-Shamrock -- 16 well, it points out that Canada is going to require a one 17 part per billion of dioxins in 2,4-D sold there after 1982, 18 correct, sir? 19 A. Yes. 'S* 20 Q. And that is a limit for all dioxins and it doesn't 21 refer to 2,3,7,8 TCDD, does it, sir? 22 A. No, it does not. 23 * ** Q.-- Now, Mr. Park, does it suggest to you as being a 24 * member ,o a committee that has had responsibility of reporting .-22- 1 dioxin -- or toxic substance content to the E.P.A., does it 2 suggest to you that Canada believes that dioxin at one part 3 per billion in 2,4-D would be injurious to Canadians? 4 MR. MUSGRAVE: Object to that. It is calling for 5 conclusion and speculations as to why any government set any 6 particular limit. And there is no evidence that this is, in 7 fact, a limit that was set, your Honor. It's the statement 8 of Mr. Wilson. It is not evidence that Canada did set this 9 limit or any limit. 10 THE COURT: Overruled. 11 THE WITNESS: I really don't know, Mr. Carr. 12 MR. CARR: Q. Well, now I have given you an earlier 13 memo in which it was pointed out that Canada was going to 14 set a limit of ten parts per billion. Do you recall that, sir?- IS But this talks about one part per billion. That's what got 16 us on to this memo, your own notes. Do you recall that, sir? 17 A. Yes. v- 18 Q. And that's the reason I gave you this memo because you 19 indeed were aware of the fact that Canada was going to make a 20 limit on dioxins, weren't you, sir? 21 A. Yes, although my note is not clear as to what the 22 ten parts per billion was to apply to. 23 Q. And I agree it is not clear. But you were talking 24 about.dioxins and furans, weren't you, sir? -23- \ 1 A. Yes, 2 Q- And the memo dated September 17, 1981, is talking aboull 3 dioxins, isn't it, sir? 4 A, Yes. 5 Q. All right. Now, Mr. Park, with that in mind, do you 6 agree, sir, that the toxicity of 2,4-dichlorophenol as it leave|a 7 the plant at Monsanto should be measured by the, not just the 8 toxicity of the chemical itself, but the toxicity of the furans 9 and the various dioxins that are therein? 10 A. The entire product in other words? 11 Q. The entire product plus its contaminants. 12 A. Yes. 13 Q. And that's what you did on your committee, isn't that, 14 correct, sir? 15 A. I would think so, yes. 44 16 Q. Now, I would like to -- 17 (Plaintiffs' Exhibit No. 1301 was marked for 18 identification.) 19 MR. CARR: Q. I hanifdc you1,'-now what's been marked as 20 Plaintiffs' Exhibit 1301. And, Mr. Park, I intend to ask you - 21 to point out certain exhibits to you and ask you whether or not 22 these exhibits show the tridioxin and the tetradioxin that is 23 described in this exhibit. And the first product, first number 24 is MB541, is that correct, sir? -24- 1 A. Yes. 2 Q. And the exhibit shows that MB541 has no detectable 3 trichlorodibenzo-p-dioxin, no detectable tetradioxin, but 4 5000 parts per billion of the heptadioxin, isn't that correct, 5 sir? 6 A. There are no designations given here. This just says 7 five thousand -- 8 Q. Here, let me help you with an exhibit. You can't 9 read that exhibit from where you are. I will hand you 1135B 10 to help you to refer to it. And you see 1135B; describes 11 541 'MB54.1, do you, sir? 12 A. Yes, I do. 13 Q. Well, I will represent to you that there is evidence 14 in this case that this was an orthochlorophenol crude that IS was manufactured in February of 1978 and that it was listed as 16 batch number in Exhibit 1135 as KI128003, which would mean a 17 '77 production, been tested in February of ?78. You see that, 18 sir? 19 A. No, I don't, Mr. Carr. 20 Q. .You see the KI128003 under the heading Batch Number 21 :on 1135? 22 A. Is that 1135? 23 Q. Yes. The date is not important, Mr. Park. So don't 24 i* *worry about that. But it does show that this particular -25- I product, this orthochlorophenol crude, had 5,250 parts per 2 billion of total dioxin, is that correct, sir? 3 A. Now, you are referring to 1301? 4 Q. And 1135B that you have in front of you, sir. 5 A. I have difficulty reading this information. Are you 6 adding it all together? 7 Q. That's correct. if - 8 A. I just don't know, Mr. Carr. This is something I just * 9 don't do as a general rule. 10 Q. Well, if you look at Cl- for MB41, do you see unci* 11 that column you have got 200? 12 A. I have got 200, yes. 13 Q. And do you see 50 under CI2 ? 14 A. I see that. 15 Q. And do you see 5,000 under Cl7? 16 A. Yes, I do. *r* 17 Q. And do those three numbers add up to 5,250, Mr. Park?- *4 - 18 A. Yes, I see that. 19 Q. And that is total dioxin detected in this orthochlorop 20 crude that was manufactured a year or so before the accident in 21 question. You recognize that, don't you, sir? 22 A. I guess that is what we can infer, Mr. Carr. X just - 23 * X am at a total loss here on these documents. 24 Q. Mr. Park, all i am asking you to do is to acknowledge1 ; * '* ^' -26- 1 that these exhibits show that MB541, which I am representing 2 to you is orthochlorophenol crude -- it's in evidence to that 3 effect. And it was manufactured a year or so before the 4 accident in question. I am representing that to you. You cam 5 assume that to be a fact. Would you, sir? 6 A. -I will assume that, yes. 7 Q. Then Exhibit 1301 accurately reflects that it has 8 in it 5,250 parts per billion of total dioxin, doesn't it, 9 sir? 10 A. I guess so. 11 Q. Do you have to guess, sir? 12 A. Mr. Carr, I am at a -- this has a number of different ifc - 13 columns It has dates on it. 1 4 Q- Yes. 15 A. Product acronyms here. I am just totally unfamiliar 16 with this kind of thing. 17 Q. Well, I am*representing to you that OCP stands for 18 orthochlorophenol crude. 19 A. Okay. 20 Q. Now, would that representation -- 21 A, I can add up numbers for you, but if you are asking 22 me to go beyond these documents, I am simply in no position 23 to do so. 24 Q. I am not asking you to go beyond other than what I -27 1 am telling you to assume, Mr. Park, things that are in evidence 2 in this case. 3 A. All right. 4 MR. CARR: Your Honor, I have a number of these to go 5 through. And I am representing to the Court that I have evideni 6 that will support this. And rather than go through it twice 7 with the witness and then put it in evidence and then go througi 8 it with the witness with the jury having an exhibit, I would 9 ask leave to pass copies of 1301 to the jury at this time so 10 that we will not duplicate the effort. 11 TEE COURT: Any objection to that? 12 MR. MUSGRAVE: Just one moment. M i f* 13 THE COURT: Sure. Go ahead. 14 MR. MUSGRAVE: Your Honor, subject to being able to * ** IS make corrections upon these if, in fact, Mr. Carr is incorrect 16 as we go through this, I wouldn't have any objection to being 17 passed to the jury as long as we can make the corrections shoulc 18 there be some problems. 19 THE COURT: Pine. Subject to that I will allow it 20 to be passed to the jury. 21 (Plaintiffs' Exhibit No. 1301 was passed among, -i* 22 23 the jury.) m -r MR. CARR: Q. Now, Mr. Park, on the first entry . 24 there for that product OCP the total dioxin 5,250 is some -28- 21 times, greater than the 250 parts per billion referred to in Dr. Nair's report in 1985, is it not, sir? MR. MUSGRAVE: How many times, Mr. Carr, 21? *v * MR. CARR: Q. Twenty-one. If you multiply 250 v* times 20 you get 5,000, don't you, sir? A. Yes.- ,. Q. And so that represents 21 times that level of 250 parts per billion referred to in Dr. Nair's report of January 14, 1985, as being that level which should be reported to the E.P.A., isn't that correct, sir? A. It would appear to be 21 times that level. Q. Now, do you think, Dr. Park, that it's -- Mr. Park, that it's possible that if your -- your committee was in existence in 1978, wasn't it, sir? The law put the burden upon the company in January of '77 if I understand correctly. A. That's correct, January 1. Q. And while we have no report that you considered the / orthochlorophenol that was being manufactured before the accident, is it possible that if you had reported to the E.P.A. that the orthochlorophenol crude has 21 times the level of dioxin ih.it that one of your toxicologists called safe or was above safe, do you believe that the E.P.A. might have required Monsanto to undertake clean-up measures, changing product measures so that by January 10, 1979, the OCP could . -29- 1 have levels of dioxin in it that are reported at the sample at 2 the bottom of this page, KC 1-8001 dated January 6, 1983, where 3 i it has only 18 parts per billion of total dioxin therein? I 4 know that's a long question. And if you don't understand it, 5 *\ I will break it down for you. 6 A. Nor, I -- 7 MR. MUSGRAVE: Just a moment, Mr. Carr. I object to " b m* 8 the question. It calls' for speculation and conjecture as to, 9 what E.P.A. might do or might riot do at various times under 10 various circumstances without specifying the time or the persor 11 who is considering it. It requires this witness to look into 12 the state of mind of others in considering things at- various 13 times. '-It's an improper question. 14 THE COURT: Overr u l e d T h i s is his area. I think , 15 .r it's a type of question he1is capable of answering. 16 THE WITNESS: My answer is I don't know. We hold an, 17 8(e) meeting whenever anyone, toxicologist, someone in our 18 health laboratory, anyone feels that a meeting should be held. 19 MR. CARR: Q. And no one felt when the orthochlorophe: 20 crude had 5,250 parts per billion of dioxin in it back in '78, 2! / no one felt that it should even have a meeting held, is that 22 correct, sir? 23 MR. MUSGRAVE: Object. That -- 24 MR. CARR:. Q. As far as you know? * Hi - ,: -30- 1 MR. MUSGRAVE; Object. That hypothesizes the fact n -f i 2 that this sample was tested back in *78 as opposed to being 3 a *78 sample tested sometime later. And that is an incorrect 4 hypothesation of the facts. There are no facts in evidence 5 to that extent. 6 MR. CARR: Oh, I agree there are no facts in evidence 7 that it was tested prior to that time. 8 MR. MUSGRAVE: This -rp- articular lot, that's right. 9 MR. CARR: That's right. I most certainly do agree 10 with that. 11 MR. MUSGRAVE: All right. Wait a minute. 541? I 12 think you may be right, Mr. Carr. Let me be sure. I know. -- 13 let me just check that,- your Honor. That rings a bell. 1 4 MR. CARR: Yes, if you look at Exhibit 1195, counsel. 15 MR. MUSGRAVE:. That's what I am getting out, sir. 16 MR. CARR: Q. I would like for you to assume -- 17 MR. MUSGRAVE: Just a moment, Mr. Carr. 18 MR. CARR: I'm sorry. 19 MR. MUSGRAVE: Just one second. You say 1195? 20 MR. CARR: Plaintiffs' Exhibit 1195 dated June 19, 21 1979. It refers to Batch MB541 that had been tested, "prior 22 to March 1, 1975.;' 23 MR. MUSGRAVE: Yeah, I am just getting out the Mil ? 24 analysis now. Yes, you are correct. I'm sorry. -31- 1 MR. CARR: Q. Now, do you believe -- first of all, 2 that was tested prior to this spill according to the 3 representations I have given you, wasn't it, sir?- 4 A. If you say it was, Mr. Carr. I don't know, yes. 5 Q. But so far, as you know it was never reported to the 6 E.P.A. so far as you know, isn't that correct, sir? 7 A. So far as I know, that's correct. 8 Q. Now, my question-is^the E.P.A. does have the 9 responsibility of telling you not to ship products if they JO believe after you have notified them that it may have a sub- ii ' 11 ' stantial health effect, they have the responsibility of telling 12 you, "Don't ship that," don't they, sir? 13 A. I don't know that they do, Mr. Carr. 14 Q. Mr. Park, why do you think they want you to advise 15 them of the toxic mature of what you are producing and shipping 16 out and putting into interstate commerce? 17 A. They want to know the toxic effects resulting from 18 health studies, testing of animals. 19 Q. And they just want to know that in theory? 20 A. In actual fact. They want to know what these results 21 are immediately. 22 Q. Doctor, you didn't test any of these -- you didn't M 23 have any health tests from these TSCA meetings that you had. 24 So why are you referring to that? You are going backwards. -32 1 They want to know among other things health effectscof these 2 chemicals. That's not all they 'want to know. Isn't that 3 correct, sir? 4 A. The vast majority -- \ 5 Q. Excuse me. Isn't that correct, sir? 6 A. They want to know anything that indicates a substant 7 risk of injury to health or the environment. 8 Q. And that includes whether or not there are toxic 9 substances in your chemicals, isn't that correct, sir? 10 Didn't,we go through -- 11 Your Honor, would you direct the witness to assume 12 that we went through this and that he said there is three 13 criteria and that the chemical composition of the toxic 14 substance is important and the E~P.A. does want to know these 15 things? 16 THE COURT: The witness is so ordered to assume. 17 MR. CARR: Q. Now, assuming that they want to know 18 whether or not you are shipping out things that have a 19 substantial risk to the health of the people that may be 20 exposed to it and that they need to know the toxic constituent 21 of these chemicals in order to make an appraisal, don't you km 22 that they have the responsibility of telling you, "Ddn't ship 23 that product out," if they think it represents a substantial 24 risk to the health of somebody or to the environment? -33- 1 A, I am not aware of a single instance of that ever .2 happening, no, 3 Q. Don't you know that they made you all quit using 4 2,4,5 trichlorophenol on the forests in the northwest? Don't 5 you know that, Mr. Park? 6 A. I am not familiar, with that, Mr. Carr. 7 Q. You know they called it off the market and you haven't 8 had it on the market since then? You know that, don't you, 9 sir? ib A. I am not familiar with that, Mr. Carr. n Q. Sir? 12 A. I say I am not familiar with that, Mr. Carr. 13 Q. You are not familiar with , the -- and the 14 fact of what took place in the northwest years and years ago? IS A. The one environmental statute that I am not involved 16 with is FIFRA. 17 Q. All right. Would you assume, please, that the E.P.A. 18 has ordered chemical companies to take certain chemicals off 19 the market because in E.P.A.'s judgment they, contrary perhaps 20 to what the chemical companies believe, but in E.P.A; *s 21 judgment they do indeed pose a substantial risk to the health 22 of the peopleandthe environment. Would you assume,that, pleai 23 Mr. Park, since you apparently don't know it? Would you assume 24 that, sir? -34- 1 A. Yes, all right. 2 Q. And before I pass on from that point, do you actually 3 think that the burden put upon you chemical companies to tell 4 the E.P.A. about the toxic substance was just for academic 5 reasons and not because the E.P.A. is obligated to do something 6 about it if they find levels of toxic substances coming into 7 the environment? Do you actually believe that, Mr. Park? 8 A. Not at all. 9 Q. Then is it possible, sir, in your judgment that if the 10 E.P.A. had been notified by Monsanto that it was shipping out 11 in 1978 orthochlorophenol that contained 5,250 parts per 12 billion of dioxin, do you think -- that is over five parts per 13 / million. Even the level that you set, it's over that level* 14 Don't you think that it's possible that they would have told IS Monsanto, "No, don't ship that'out until you clean it. up"? 16 A. I don't know, Mr. Carr. V 17 MR. MDSGRAVE: Objection.k- Same question has been 18 asked and answered previously. 19 THE COURT: OverruleTdi . `V 20 MR. CARR: Q. Do you know -- 21 THE COURT: I didn't hear the answer. '22 THE WITNESS: The answer was I don't knrw,\your 23 i Honor. 24 MR. CARR: Q. Do you know of any reason why Monsanto -35- 1 could not have undertaken the elimination of caustic in making 2 its chiefihated phenols in the year 1978 rather than undertakin 3 that in the year 1979? 4 A. I don't know. 5 Q. Do you recognize and this -- the entry at the bottom 6 of the page of Exhibit 1301 is for a batch of orthochlorophenol 7 that was tested in 1983. And it shows and contrast to the 8 batch they tested four or five years before only 18 parts 9 per billion of total dioxin. You see that, don't you, sir? 10 A. I do see that. 11 Q. For the recor; d, that ^ is Plaintiffs' Exhibit 1192 12 that shows that. Do you know of any reason why the product * 13 they manufactured in 1978 could not have been cleaned up to 14 contain less than 250 parts per billion of total dioxins? 15 A. Mr. Carr, I don't know. 16 Q. The next entry in the Exhibit 13 01 I will represent 17 to you is orthochlorophenol crude that is in question in this 18 case. 19 THE COURT: Mr. Carr, before you get into that one, 20 is this a good point for a short break? 21 MR. CARR: Yes, your Honor. 22 THE COURT: Ladies and gentlemen, we will take a 23 short break at this time. The admonishments that I 'gave you 24 earlier will apply in this break also. Court is in recess. 1 36- y 1 (A short recess was taken.) 2 MR. CARR: Q. Mr. Park* refer now If you will to the 3 1135 exhibit I have given you under MB653. And I represent 4 to you that that is Santophen and it has the date of raanufactui 5 of February, *79. The exhibit that I have given you shows that 6 the trichlorodibenzo-p-dioxin content in that Santophen 7 sample is 3,000 parts per billion. Does it not show that, sir? 8 A. Yes, it does have 3;000 there. 9 Q. And it shows 65 parts per billion of the tetrachloro- 10 dibenzo-p-dioxin, doesn't it, sir? 11 A. Yes. May I ask a quevs- tion? 12 Q. Mr. Park, I would appreciate it if you just -- you 13 can ask your lawyer any question you want to. We could just 14 move along if you don't mind, sir. And the total dioxins in 15 that Santophen was 20,000 parts per billion, isn't that correct 16 sir? I will represent to you that I added it up and that's 17 what it adds up to. You see that, sir? 18 A. Yes, I can see -- 19 THE COURT: l 'ni soriy. I couldn't hear you. 20 Or are you talking to yourself? 21 THE WITNESS: Well, do yo.tou want me to add them up or 22 are you saying that that is what they add up to, Mr. Carr? 23 MR. CARR: Q. Well, the sample that has the 3,000 24 on the tri- also has 7,100 mono-, 9,800 di-, does it not, sir, -37- 1 and 65 Cl^ and that adds up to 20,000 parts per billion, does 2 it not, sir? 3 A. Well, if you are asking me to add them, I will, Mr. 4 Carr. 5 Q. To save time, I will represent to you that I have 6 added them up and that appears to be in the ballpark, doesn't 7 it, sir? 8 A. I guess. _ 9 Q. Well, don't -- ' * 10 A. Well, let me add them up, Mr. Carr. I will be happy 11 Q. When you see 7,000 and 10,000, that is 17,000 right 12 there, isn't it, sir? 13 A. That's right. / 14 Q. And then you get 3 ,0 0 0 more for the tri- and that is 15 20,000, isn't it, sir? 16 A. Appears so, yes > 17 Q. And, of course, since you don't know the use to which 18 or do you know the use to which Santophen is put? 19 A. I 'm sorry. Not off the top of my head, no. 20 Q. Well, 15.11 represent to you that it's been known to 21 I go into Lysol. And this is Monsanto Exhibit 847A. So you '22 know it is a Monsanto exhibit and they brought this bottle in 23 and they showed -- that they testified -- that they had their 24 witness testify that this is what Santophen goes in to make up -38- 1 Lysol. Now, would you accept it, sir? 2 A Yes, I will accept it. 3 Q. Now, do you know whether or not the E.P.A. was ever 4 notified that the Santophen that was being manufactured 5" in February of 1979 contained 20>000 parts per billion of 6 dioxins? 7 A* Off the top of my head, X cannot recall. 8 Q. Did you ever have a Section 8 CTSCA meeting to discuss 9 whether or not you should notify:/the S.P.A.* that the material 10 you are producing and sending out contains 20,000 parts per 11 billion? That is 20 parts per million, Mr. Park, 20 parts 12 per million of total dioxins. Did you ever have a Section 8(e) 13 meeting to discuss that? 14 A. A Section 8 (a) meeting on Santophen? IS Q. On Santophen. 16 A. Mr. Carr, X just -- we have held a number of Section 8 17 meetings. And frankly, 1 just cannot recall. 18 Q. Well, x have never gotten one. So can we either asaum 19 that you didn't have one or the attorneys from Monsanto have 20 not obeyed the rules of this Court and have not given me those? 21 A. X don't know, Mr. Carr. 22 Q. You don't know of any you held, do you, sir? 23 24 A. X would prefer to look at my list that X have. Q. If you have a list, please look at it. -39- 1 A. I don't have it with me now. It's back in my 2 office, Mr. Carr. 3 Q. You have a list of -- 4 A. Of 8 (e) meetings that have been held. S Q. And I represent to you again that the only ones that 6 we got dealing with chlorinated phenols were the ones you said 7 this morning, four such meetings. 8 A. Is Santophen a chlorinated phenol? I am not a chemist 9 I am not a toxicologist, Mr. Carr. 10 Q. Mr. Park, you related that before you worked for a II chemical company and you had toxicologists tell you time and 12 time again, you have had chemists tell you time and time again, 13 and are you sitting here and telling us that 20 years at 14 Monsanto, or whatever the number of years, and all the meetings IS you had dealing with their products and you don't know that 16 Monsanto makes Santophen which is a chlorinated phenol? 17 A. I know Santophen is one of our products. I do not 18 know what it is composed of. 19 Q. Have you ever had, to your knowledge, a meeting, a 20 Section 8 meeting on Santophen that is being shipped out, sent 21 into commerce by your company? 22 A. Mr. Carr, I would have to check my list. There have 23 been a number of meetings. And it's conceivable there may have 24 been one on Santophen. X am not prepared to just say yes of ho. -40- I Q. Well, although your attorneys say that we have got 2 them all, past experience shows that every week we gpt more 3 things coming in that weren't given us before. So when we 4 recess today, would you, please, go and check your files again 5 because you were asked to produce -- and I thought Mr. Massif 6 represented to the Court here -- was it*Friday or Thursday, 7 Mr. Massif -- that you had furnished all of your files dealing 8 with dioxin and TSCA meetings dealing with chlorinated phenols. 9 But if you think that you may have more files, at the close 10 of business today I would sure like you to check, sir. Would 11 you do that? 12 A. Yes. 1 will certainly check. 13 Q. So as far as your present knowledge is concerned, 14 you have no present knowledge of ever having notified the 15 E.P.A. that you were sending out Santophen, sending into 16 commerce Santophen Which contains 20,000 parts per billion of 17 total dioxin, isn't that correct, sir? 18 A. I cannot remember having done so, that's correct. 19 Q. Now, did you ever discuss with Dr. Paget; about the -- 20 what he considered an acceptable level medically speaking of 21 2,3,7,8 content of Santophen? 22 A. I can't recall, Mr. Carr. 23 Q. And would you consider a statement that one part per 24 i billion:,is probably acceptable medically for Santophen, would -41- 1 you consider that that one part per billion would be the limit 2 above which you should not go? 3 MR* MUSGRAVE; Objec*t. Ir*it calls for the witness to 4 state conclusions as to the state of mind of the speaker of 5 that. And also it is again Dr* Wilson saying what Dr* Paget., 6 said. "And now he is asking him to take what Dr. Wilson said 7 as what Dr. Pagefct said and to speculate as to what the 8 original speaker had in mind when he said whatever he said. 9 I object to it. 10 THE COURT: Overruled. 11 THE WITNESS: Mr. Carr, I just don't feel I am 12 qualified. I don't know. 13 MR. CARR: Q. Well, I am asking you as a lawyer 14 who is trained in the use of words and to understand, what words 15 mean and precisely what words mean and to read documents 16 and discover the meaning that might be hidden in those document! 17 through the use of the English language to tell me whether or 18 not you would agree that this document states that one part 19 per billion of 2,3,7,8 TCDD is the level above which you should 20 not go for that content in Santophsn. 21 MR. MUSGRAVE: Same objection. 22 THE COURT: Sarnie ruling. 23 THE WITNESS: I don't see that statement in there* 24 MR. CARR: Q. You saee that it says that he estimates -42- that one part per billion is probably acceptable? A. Yes. Q. And you don't have anj quarrel with the word "probably You know what probably means, don't you, sir? A* Yes. Q. It means that it may be, it may not be, correct, sir? A. Yes. Q. And "acceptable," you know what "acceptable" means? A. Yes. Q. And you know what "meTd* ically" means, don't you^ sir? A. I think so. Q. Mecically means it has to do with health effects. You understand that, don't you? A. Right. 0. And if one part per billion is probably acceptable medically, the -- that statement isn't all together sure that that is acceptable, isn't that correct, sir? MR. MUSGRAVE* May my objection run to this entire line of questioning about what Dr. Pagett may have had in mind, with regard to what Dr. Paget may or may not have said? THE COURT: My ruling is the same. It doesn't call for that I will note your objection as a continuing objection to this line of questioning* MR. MUSGRAVE: Thank you. 1 THE WITNESS: I don't have deep familiarity with 2 Dr. Paget's vocabulary. I have no idea what he meant other 3 than what is just quoted apparently or stated by Jim Wilson 4 here. It could veil have been that.Dr. Paget would have said f:. 5 parts per billion, ten, twenty or anything was medically 6 acceptable. I don't know. ^ 7 MR. CARR: Q. Well^, but did he say that according 8 to this memo? 9 A. It says, "One part per billion is probably acceptable.' 10 Q. And do you get from t*hat that 20,000 parts per 11 billion of total dioxin is acceptable? 12 A. It doesn't say that. 13 Q. It doesn't, does it? And do you get from that that 14 65 parts per billion of tetra is medically acceptable? 15 A. It doesn't say that it would not be acceptable. 16 It doesn't say that it would be. 17 Q. Why do you conceive that Dr. Wilson asks Dr. Paget 18 whether or not one part per billion would be acceptable or 19 what was medically acceptable? 20 A. I don't know. 21 'MR. MUSGRAVE: Just a moment. I object now to a 22 witness testifying and being called to speculate and pass 23 conjecture as to why he might conceive that Dr. Wilson might 24 have asked Dr. Paget a question. Again, it's just sheer -44- 1 speculation and conjecture and conclusions as to the state of 2 mind of others and totally improper. And I object. 3 THE COURT: Overruled. 4 THE WITNESS: I don't know, Mr. Carr. 5 MR. CARR: Q. Well, wasn't Dr. Paget1': and Dr. Wilson 6 both on your committee meeting in June of 1979 when you were 7 discussing toxic substances? 8 A. i would have to check. But, Mr. Carr, they have both 9 been here to testify. They would be better sources.of that 10 information. 11 Q. Well, we have asked them already, Mr. Park. But now 12 I am asking you because you have to evaluate what they tell 13 you. You are sitting on this committee in June of 1979. 14 And you are not a toxicologist and you are not a chemist and 15 you are not an M.D. You are, however, charged with the one 16 to preparing the memo to interpret what they say and put it 17 down on paper to accurately reflect what they say, isn't that 18 correct, sir? 19 A. That's correct. 20 Q. And you, therefore, have to know what they mean when 21 they use words, don't you, sir? 22 A. When they use them before me when I can ask them what 23 they mean if it's unclear to me. 24 Q. And you have to know what Dr. Pa-gertt says. ,He gave you -45- 1 a memo as of what he said about thi3 2,4,6 trichlorophenol, 2 didn't he, sir? 3 A. What number Is that, Mr. Carr? 4 Q. Exhibit 1275, Plaintiffs* Exhibit 1275 dated June 6, 5 1979. 6 A. I'm sorry. T don't seem to see it here. 7 Q. Well, I will give you another copy. 8 A. Wait a minute. Here is 1275. 9 Q. It's a direct quote from Dr. Paget*; there, isn't 10 there, sir? 11 A. Yes, there is. 12 Q. And it's at the same subject that we had the notes of 13 somebody at that meeting that equated the carcinogenity 14 of 2,4,6 trichlorophenol to one part per billion of 2,3,7,8, IS isn't* that correct, sir? 16 MR. MUSGRAVE: Same objection as before as to the 17 interpretation of what that means, your Honor, and object 18 to this as being repetitious. We have been through this now 19 I think Friday several times. And we are back to it again. 20 I think we even touched on it again this morning. Object to 21 the repetitive nature of these questions. 22 THE COURT: Different con--text. Overruled. 23 MR. CARR: Q. Could you answer that question? 24 A. I'm sorry. -46- 1 Q. At that meeting on May^ 22, 1979, this memo 1290 2 equates one part per billion of TCDD with the carcinogenicity 3 pf the 2,4,6 trichlorophenol, does it not, sir? 4 MR. MUSGRAVE: Object. That is mischaracterization", 5 Oven with the clear langauge would it seem to say. 6 THE COURT: Overrule.d. V 7 THE WITNESS: Mr. Carr, are you asking me about what 8 the second line in Item No. 2 of these handwritten notes? 9 MR. CARR: Q. That1X*s co'rTrect. 10 A. It says, "One ppb 2,3,7,8 TCDD in 2,4,6 TCP would 11 cause effects described." 12 Q. And we went through it. Effects described was these 13 cancers. You recall that, sir, to the best of your recollectic 14 MR. MUSGRAVE: Object. It's been asked and answered 15 several times. 16 THE COURT: Overruled. 17 MR. CARR: Q. You recall that, sir? IS A. I recall you showing me that board there, yes. 19 Q. And that's the same one part per billion of 2,3,7,8 TC 20 that is being mentioned here in this memo just one month and 21 a couple of weeks later again with Dr. Wilson's signature 22 July 9, 1979, isn't that correct, sir? 23 A. It appears to be. 24 Q. And you apparently had no problems understanding what -47- 1 he was saying about one part per billion of 2,3,7,8 TCDD in 2 May of '79, were you, sir? 3 A. Mr. Carr, I don't know if this was -- I don't recall c- * 4 if this was even mentioned. 5 Q. I am not asking if you recall it, sir, because you 6 have no recollection of the meeting. This memo that was 7 given to us by Monsanto as notes taken at the May 22, 1979, 8 meeting -- and we have been through all of this, Mr. Park -- 9 does describe and does discuss the effect of one part per 10 billion of 2,3,7,8, doesn't it, sir? 11 MR. MUSGRAVE: Object to the question. It's been 12 asked and answered. And I object tc counsel's-stating that 13 now he is not asking that when that's, in fact, what he just 14 did ask him about whether he recalled that being discussed 15 and he said he didn't and you said you are not asking him 16 whether he recalled what was said. I object to counsel's -- 17- MR. CARR: Well, if T did say that -- I think you are 18 right, counsel. And I apologize to the witness. 19 Q. And you have said that you can't recall, right, s:. 20 A. Yes. * 21 Q. But his memo does discuss it, doesn't it, sir? 22 MR. MUSGRAVE: It is not a memo. It is someone's 23 handwritten notes, Mr. Carr. 24 MR. CARR: Q. The notes vof Dr. Wilson does discuss .-48- 1 it, doesn't it, sir? 2 A. Ttfell, whoever wrote these notes do mention, 3 Q. And the Exhibit 1239A does mention one part per .billion 4 of 2,3,7,8,also, doesn't it, sir? 5 A. It does. 6 Q. Now, do you think, Mr. Park, or do you have any 7 reasons, do you know -- here, you have discussed in 1981, 8 January, 1981, your TSCA committee discussed the' effects of -- 9 and whether or not you should report a carload or a product that 10 had 9.5 parts per billion of tetra in it and -- did you not, 11 sir? You had a meeting to determine whether or not there should 12 be a Section 8 (4*V notice to the E.P.A. because of the presence 13 of 9.5 parts per billion of tetra in that, isn't that correct, 14 sir? ( 15 MR. MUSGRAVE: Objec^t. I*t's been asked and answered. 16 He has been through this already, your Honor. It is just 17 repetition and the same thing. 18 THE COURT:* Objection is sustained. That has been 19 asked and answered. 20 MR. CARR: Q. Mr. Park, if you discussed at that 21 time in 1981 whether or not -- and according to the memo of 22 December .30, 198 0, Dr. Mieure said there was a potential 23 problem of reporting this to the E.P.A. And all you had -- you 24 didn't even have 1,000 parts per million -- per billion of total - 49- 1 dioxins and only had 9,5 of the tetra, why wouldn't someone 2 at Monsanto have a Section 8 (e) meeting when you have got a .3 Santophen product that has 20,000 parts per billion total 4 dioxin in it, 65 of which is tetra and 3,000 of which is tri- 5 which is nearly as toxic as tetra? 6 A. We hold an 8 (e) meeting whenever anyone requests it. 7 Q. Then I take it what you are saying is that no one S requested a meeting in *79 to discuss this finding of. these 9 levels of dioxin content in this Santophen, is that correct, 10 sir? 11 A. Santophen now are you%v talking about? 12 Q- That's what I am talking about. 13 A. Mr. Carr, we touched on this earlier. And I said I 14 frankly would have to check my file. We have had a number 15 of 8(e) meetings, total 8(e) meetings.. 16 Q. Mr. Park, I am going to represent to you because we 17 can'-t stop this examination at this point, that your lawyers 18 have sworn, under oath and they represented to this Court as 19 late as last week that we have got everything you have got 20 dealing with TSCA meetings Section 8 (e) dealing with dioxins 21 or other chlorinated phenol?. Mow, if they have said this, 22 if they have represented this -to. the^-Court, would you accept 23 that and we can pass on? 24 A. X will accept that. - 50- 1 Q. Do you know of any reason, sir, if the presence of 2 nine and a half parts per billion of tetra in the 2,4-dichloro- 3 phenol product in 1981 -- 198Or rather, would cause this 4 Section 8(e) why 65 parts per billion and 3,000 parts per 5 billion and 20,000 parts per billion wouldn't cause a similar 6 meeting in '79? : 7 A. I just don't know. I am not a toxicologist. I don't 8 know. 9 Q. And you have -- as other things being equal so far as 10 you know, Mr. Park, would it be a correct conclusion to reach 11 that if you held such a meeting in 1981 to discuss the nine 12 and a half parts per billion of tetra that a meeting surely 13 should have been held in '79 to discuss 65 parts per billion 14 of tetra? 15 MR. MUSGRAVE: Objec'tVion. The question is vague as 16 other things being equal. Again object to this witness being 17 asked questions that require him to have toxicological and 18 medical knowledge to be able to answer. And it's been 19 established and Mr. Carr has even admitted that he doesn't 20 have that knowledge and yet he continues to ask him questions. 21 MR. CARR: Your Honor, I -Hhr aven't admitted that he 22 doesn't. I believe the man has the knowledge. I believe he is 23 simulating is what I believe. I believe he has the knowledge. 24 MR. MUSGRAVE: I believe the record will show -- -51- 1 THE COURT: Whether he has it or not, I don't think 2 that question calls for that kind of knowledge and to the 3 degree of expertise that you are suggesting in your objection. 4 Therefore, whether he has it or not, your objection is 5 overruled on the basis of the question that has been asked. 6 THE WITNESS: The answer is, no, I wouldn't agree 7 with that at all. 8 MR. CARR: Q. And why wouldn't you, Mr. Park? 9 A. I am not the one that calls the meetings. The meetings 10 are called by people with greater knowledge of toxicology, 11 greater familiarity of the product. 12 Q. Mr. Park, I gave you an assumption -- and you know I 13 gave you -- other things being equal, ifc there any reason that 14 you know of if you are going to have a Section 8 (d) meeting 15 for nine and a half parts per billion of tetra in 2,4-dichloro16 phenol, is there any reason that you know of why you would not 17 have a meeting for the Santophen that has the content as I 18 have suggested to you it has? 19 A. Yes, Mr. Carr. From my perspective we hold a meeting 20 when someone requests it. Someone requested here for the 21 dichlorophenol 22 Q. To put it another way, do you know of any reason 23 why someone would not request a meeting on the Santophen 24 content in as much someone had requested a meeting for the -52- ' ' I & 1 nine and a half parts per billion content izrth'lf 2,4-dichloroph^ 2 A. I don't know. 3 Q. Do you know of any reason, sir? 4 A. No, I don't know of any reason. 5 Q. Other things being ec^ual then, should a meeting have 6 been requested for the Santophen as it was requested for the 7 2,4-dichlorophenol? 8 MR. KUSGRAVE: Object. It's been asked and answered, 9 repetitive. 10 THE COURT: Overruled** . % 11 THE WITNESS: I have * no \ri- dea. It depends on 12 whether or not someone feels that a given product would present 13 a substantial risk of injury to health;>orrthe environment. 14 Apparently, no one felt that if a'meeting was not requested. 15 MR. CARR: Q. And someone felt that the nine and 16 a half in the 2,4-dichlorophenol does represent a hazard? 17 A. I don't know if it was nine and a half, Mr. Carr. 18 Ql. You don't know it was nine and a half? 19 A. But for some reason someone felt that there should' be 20 an 8 (e) meeting to consider the dichlorophenol. 21 Q. . Now, Mr. Bark*,you do know it was nine and a half. 22 You do know that they reconfirmed it. They examined that and 23 confirmed it. There is a September 15, 1981, memo which 24 confirms that. And you.know that, don't you, sir? -53- 1 A. I don't know that that was the cause of the meeting 2 being called, Mr. Carr. 3 Q. Well, now you are changing the subject again. You do 4 know that they confirmed the presence of that in a subsequent 5 test, the nine and a half parts per billion. You do know that 6 don't you, sir',* as shown in Exhibit 1282A? 7 MR. MUSGRAVE: Well, I object, your Honor. That's -- 8 there is no evidence that that was-a subsequent test, whether 9 it's the same data. 10 THE COURT:- Overrule*d. * 11 MR. CARR: Q. See there nine and a half, same 12 thing, better written? 13 A. Yes, I dor see that. 14 Q. Now, having called a meeting for nine and a half 15 parts per billion, is there any reason that you know of, 16 having been a functioning member of this committee, knowing 17 the people involved, knowing the ones that make the request, 18 is there any reason that you know of why a meeting should not 19 have been requested and held for the Santophen that was 20 manufactured in '79? 21 A. Yes. 22 MR. MUSGRAVE: Object, it's been asked and answered. 23 THE COURT: Overruled. 24 THE WITNESS: No one felt that there was a substantial -54 1 risk of injury to health or the environment. 2 MR. CARR: Q. Mr. Park, someone felt that nine -and 3 a half in the 2,4-dichlorophenol represented a health risk 4 and you held a meeting. 5 MR. MUSGRAVE : Objection. f * 6 MR. CARR: Q. I am asking you why didn't someone 7 feel, so far as you know, that 65 parts per billion in the 8 Santophen posed a greated health risk. 9 A. I don't know, Mr. Carr. 10 MR. MUS GRAVE: Just a moment. Just a moment. 11 MR. CARR; Q. Six times greater than the nine and 12 a half in the 2,4-dichlorophenol. 13 MR. MUSGRAVE : Just a moment now. I object, your 14 Honor. -Because now he is asking him why someone else, some 15 unidentified someone else didn't feel that there was some 16 reason to report this. That is speculating and requiring 17 conjecture as to the state of the mind of an unidentified 18 person who we don't even know what his qualifications were, 19 whether he could or couldn't make a determination. It's the 20 wildest speculation in the world for this person to speculate 21 on that. It's totally improper. And the question in other 22 forms as to this witness's knowledge as to why someone didn't, 23 though objected to previously, has already been asked and 24 answered. -55= 1 THE COURT: Do you have anything you want to say on 2 that? 3 MR, CARR: No, your Honor. 4 THE COURT: Objection is sustained. 5 MR. CARR: Q. Is there any reason that -- you know ^v 6 that Dr. Wilson is the organic chemist that is in charge of 7 a lot of things out there and you know he is on your committee, 8 don't you, sir? 9 A. He is not on the comm*ittee. 10 Q. Has been on your committee. 11 A. He has attended at least one meeting, perhaps others 12 Q. Do you know of any reason, knowing Dr. Wilson, why 13 he didn't call or request a meeting for the Santophen that 14 has 20,000 parts per billion of total dioxin? 15 A. I have no idea, Mr. Carr. 16 Q. Someone requested a meeting in January, 1985, with 17 Tetrathal that contained 250 parts per billion of total 18 dioxin. You recall that, sir? 19 A. Tetrathal? 20 Q. Yes, Tetrathal that had 250 parts per billion in 21 January, 1985. Do you recall thatjr sir? 22 A. Yes. 23 24 Q. Now, and that product didn't have any 2,3,7,8 in it* Only the waste, the residue had the 2,3,7,8. And it had only 56- 1 an average of 250 parts per billion. And this is a hundred 2 times more than that, nearly a hundred times xfiore than that, 3 of total dioxins, isn't that correct, sir, in the Santophen? 4 And no one called a meeting. Do you know of any reason why 5 someone would call a meeting for something that had 250 parts 6 per billion of total dioxins in it and yet a meeting wasn't 7 called in 1979 where something had 20,000 parts per billion 8 of total dioxin in it? 9 MR. MUSGRAVE: Your Honor, this is the same question. 10 It asks it in the same fashion, just relating it to a different 11 meeting. Mr. Carr knows very well that he is going over the 12 same ground again and again and again. It's repetitious. 13 And X object to it. 14 THE COURT: Objection is overruled. 15 THE WITNESS: I would say a meeting was not called 16 earlier because no one felt there was a substantial risk of 17 injury to health or the environment. 18 MR. CARR: Q. And someone felt that 250 parts per 19 billion did represent a substantial risk to the health and the 20 environment then? 21 A. At least sufficiently so to ask for a meeting. 22 23 Q. And nobody felt that 20,000 patts per billion represenl v 24 a substantial risk then. Is that what you are saying then, Mr. Park, apparently? -57- 1 A. I am saying that no meeting was called, Mr. Carr, 2 that apparently no one felt that the situation was such that it 3 presented a substantial risk of injury to health or the 4 environment. 5 Q. Now, do you know of any reason why 250 parts per. 6 billion in Tetrathal might present a substantial risk to 7 somebody and 20,000 parts per billion of dioxin in Lysol used 8 in everybody*s house does not represent a substantial risk? 9 Do you know of any reason, sir? 10 MR. MUSGRAVE: Object, your Honor. Now, counsel is 11 assuming that because there might be 20,000 parts in Santophen 12 that there are 20,000 parts in Lysol. And we have been through 13 that many times, Mr. Carr. And that's an improper assumption 14 and improper hypothetical. Again I object to the question 15 also -- 16 MR. CARRi Q. It is. And I certainly will amend it 17 that the 20,000 parts per billion of dioxin goes out and it wil 18 ultimately end up in the Santophen at some level. 19 MR. MUSGRAVE: And 1^ also object to it again because 20 it is also asking the witness again to speculate and made 21 conclusions and conjecture as to why someone else, an 22 unidentified someone else, without any indication as to their 23 knowledge or their background and training may or may not have 24 made a decision as to whether there was or wasn't a potential -58- I substantial risk of injury in a situation to take a look at 2 this under 8(e). Pure speculation and conjecture for this 3 witness to testify to that. 4 ~THE::COKrr Overruled. 5 THE WITNESS: Could someone repeat the question, *ft K \~ i* 6 please? 7 MR. CARR: Would you* read the question to him, please' 8 (At this time, the Court Reporter read back the 9 following question: Question: Now, do you know 10 of any reason why 250 parts per billion in / II Tetrathal might present a substantial risk to 12 somebody and 20,000 parts per billion of dioxin 13 / in Lysol used in eve*rybody1s house does not 14 represent a"substantvial r--isk? Do you know of IS any reason, sir?) 16 THE WITNESS: First, I assume you meant to say 17 Tetrathal? 18 MR. CARR: Q. Yes. 19 A. Secondly, I have no idea what goes on in the minds of 20 others. So I don't know. 21 Q. Mr. Park, I can't accept that. I would like to to pasis 22 on. But you do know because you meet with these people. You 23 know these people. They are people you work with in your 24 company. They work for the same company. They have the same J -.59- 1 end, the same goal. So you do know. And I am not going to 2 accept that. 3 4 MR. MDSGRAVE; Object. H"Ae is arguing with the witness. 5 THE COURT: Overruled. I don't think the answer was 6 responsive in the context this witness works. And so X think 7 that the non-acceptance of it as responsive to the question 8 is proper. 9 MR. MUSGRAVE: Your ruling is that it was not 10 responsive to the question that he doesn't know what is in 11 the minds of others, your Honor? 12 THE COURT: My ruling is that yourare ;objecting to 13 p * Mr. Carr not accepting that answer. And I think his 14 non-acceptance is correct under':the circumstances. Under 15 ' the circumstances it's not responsive. Overruled. 16 MR. MUS GRAVE: Well, may my objection to the Court's 17 ruling without an objection that it was responsive be noted? 18 X didn't think that-.anybody objected that it was not 19 responsive. 20 21 THE COURT: You know, I don't have to go by labels. What you ruled in effect was that it was -- what you were arguing in effect was that it was responsive. And X am saying it was not. That was the sum and substance of your objection. Because your quarrel was with Mr. Carr not accepting it as -60- . 1 responsive. The objection is overruled. 2 MR. CARR: Q. Mr, Park, you do know these 3 gentlemen you are.working with, don't you, sir? 4 A. I know the gentlemen that I work with and have contact 5 with. 6 Q. Do you believe that there is anything that you know 7 of about their expertise and their knowledge of dioxin that 8 would lead them to believe that 250 parts per billion in 9 the Tetrathal is going to have less of an injurious effect 10 upon the health and the environment than the 20,000 parts per 11 billion in Santophen? 12 MR. MUSCRAVE: Object to counsel now asking this 13 witness to go to the minds of others and have knowledge of 14 their knowledge and expertise and make a decision on that. 15 THE COURT: Overruled. 16 THE WITNESS: The people you are talking about did 17 not call the 9 (e) meeting about the 250 parts per billion. 18 Secondly, I have no idea why in a given context would feel an 19 8 (e) meeting should be called and in another context others 20 would not feel that the situation did not present a substantial 21 risk of injury to the health or the environment. 22 MR. CARR: Q. Mr. Park, do you know whether or not 23 any customer was -- whether Lehn and Fink was ever told that th 24 were buying Santophen that contained 20,000 parts per billion di -61- 1 A. X just have no idea, Mr. Carr. 2 Q. And would it be fair to say so far as what you know 3 about the toxicity of various substances that 65 parts per 4 billion in tetra will have a more injurious effect thann 9.5 5 parts per billion of tetra? 6 A. I wouldn't want to say, Mr. Carr. Because the 7 context could be entirely different. 8 Q. Could be. But I am asking you so far as what you know 9 Mr. Park. 10 A. I don't know. 11 Q. Do you understand? X said as far as what you know. 12 A. Yes, I do. I don'/t know. I just don't know how they 13 would compare. 14 Q. My question, Mr. Park, so far as you know, is there 15 any reason that you know of that 65 parts per billion of 16 tetradioxin would have a less toxic effect than 9.5 parts 17 .per billion of dioxin? 18 A. I guess I can think of hypothetical factors that just 19 come to mind. But I just do not know what factors would be in 20 the minds of people that do make -- 21 Q. I am not asking you that, Mr. Park. I left that 22 question. 23 A. -- toxicological decisions. 24 Q. Do you understand I left that question? I am asking l, -62- 1 you another question and you are back on that question. I 2 left that question. Answer this question, please, that I 3 have asked you, sir. 4 A. Okay. Would you ask it again, please? 5 (At this time the co<vurt reporter read back the 6 following question; Questions My question, 7 Mr. Park, so far as you know, is there any reas< 8 that you know of that 65 parts per billion of 9 tetradioxin would have a less toxic effect than 10 9.5 parts per billion of dioxin?) 11 ,MR. CARR; Q. Tetradioxin. 12 A. I just don't know. 13 Q. Now, Mr. Park, the next entry there is 654 is 14 parachlorophenol. You recognize that as PCP.* Do you see that, 15 sir, again in Exhibit 1135? It had 3,800 parts per billion of 16 trichlorodibenzo-p-dioxin, did it not, sir7 according to that 17 exhibit? 18 A. 654? 19 Q. 654. About five various tests in the same product. 20 Q. There is 6,100. 21 Q. I am referring to the top one, MB654, the very lead 22 23 one. Do you see that, sir? 3,800 parts per billion of the 24 trichlorodibenzo-p-dioxin? A. Yes. -63- 1 Q. And 130 parts per billion of the tetrachlorodibenzo-p 2 dioxin? 3 A. Yes. 4 Q.' And I will represent to.you that it adds up to 5 22,000 parts per billion of total dioxin. You see that, sir? 6 A. Yes, I do. 7 t: . Q. And the next one is March 1, '79. It contains 8 .significantly less quantities. This is 662 if you could see 9 that down here. 10 A. Uh huh. 11 Q. It contains significantly less quantities of the 12 trichlorodibenzo-p-dioxin, doesn't it, sir? 13 A. Yes. 14 * Q. Now, this is something that was manufactured accordim 15 to the records just a few days or within 30 days at the very 16 least of the sample 654 where there were 3,800 parts per 17 billion of trichlorodibenzo-p-dioxin. 18 MR. MUSGRAVE: Mr. Carr, 654 -- are you getting that 19 ^ - V date from Plaintiffs' Exhibit 1135? 654 doesn't show a date 20 for the sample. 21 ' MR. CARR: That date is f*>rom -- if you would look 22 23 at the code for that 1135, it gives the batch number. If you 24 look over to the left there, it says KL025021. Do you see /that? -64- 1 "&R; MUSGRAVE: All right.- I see it. 2 MR. CARR: Q. Now, sir, the fact that the trichloro- 3 phenol in one batch of PCP is so much higher than the trichloro 4 phenol in the other batch of PCP indicates that something is 5 at variance or something different is going on in the 6 manufacturing process, doesn't it, sir? 7 A. I don't know, Mr. Carr. 8 Q. Well,, what other explanation could there, be, sir? 9 A. I have no idea frankly. 10 Q. You have no idea? 11 A. No, not being familiar with the -- 12 Q. Mr. Park, please explore that. Because we want to 13 finish this case some day. The product is being manufactured 14 at the same plants is it not, sir? 15 A, I don't know. 16 Q. The Krummrich plant in Sauget, Illinois? 17 A. I don't know, Mr. Carr. I am sure there are others t 18 better qualified. 19 Q. Well, I am representing to you that it is, sir. 20 MR. MUSGRAVE: May I again interpose an objection 21 to now trying to qualify this man as some kind of a process 22 chemist and give explanations to why things happen when he has 23 no expertise in the field? May my objection to the continued 24 questioning of this man about questions that call for him - 65- ] to express opinions, even conjecture and speculation if he 2 were experienced and had the knowledge -- may this be a 3 continuing objection, your Honor? 4 THE COURT: It will be a continuing objection. I 5 don't think it calls for that. My ruling would be the same 6 under the continuing objection. 7 MR. MUSGRAVE: * Thank4A you. 8 THE COURT: Please answer the question. 9 THE WITNESS: I don't know. 10 MR. CARR: Q. Is there anything else that you know 11 Mr. Park, that could account for the extreme differences in 12 tridioxin content in these samples manufactured within 30 days 13 from one another other than the manufacturing process? 14 A. I havfe no idea, Mr. Carr. IS Q. My question is, is there anything.else that you do 16 have an idea of, sir, that you have knowledge of? You think 17 somebody slipped out there in the middle of the night and put 18 in 3,800 parts per billion of tridioxin? 19 MR. MUS GRAVE: And I object to -- 20 MR. CARR: Q. What other explanation? Could there 21 be some vandalism going on there? Can you give me in your 22 mind, sir, what other variances you could.think of other than 23 the manufacturing process varying? 24 -- MR. MUS GRAVE: Object to the question. It's already .* -6 6- 1 been asked and answered. The man says he does not know why 2 there are differences. 3 THE COURT: Objection sustained. It has been asked 4 and answered. 5 MR. CARR: Q. Mr. Park, the reason I am asking this 6 particular question and questions like it is because you stated 7 yesterday or last week or this morning that E.P.A. knows the 8 contents, knows these products that you are manufacturing, 9 that they have experts that test things. You recall that, sir? 10 A. Mr. Carr, what I said is -- 11 Q. Do you recall that, sir? 12 A. Wot quite that way. fr u 13 MR. MUSGRAVE: Well, now you are asking him what 14 he recalls and he is going to tell you, Mr. Carr. 15 MR. CARR: Q. You don't recall it quite that way? w ?* 16 A. No. I recall it slightly differently. That the E.P.A 17 does understand that certain processes are likely to generate 18 dioxins. 19 Q. And you also testified that they come in a plant and 20 take samples. But, of course, you couldn't specify any time 21 that they did. And they do know that it generates--chlorinated 22 phenols can have dioxin. But they also know that a 23 manufacturing process exists whereby you can perhaps a littl< 24 greater c6st, a little more care -- but it exists where you - 67- t 1 can manufacture chlorinated phenols without having levels of 2 dioxin. They know that too, don't they, sir? 3 A. I don't know. 4 Q. You don't know that? Well, you do know that Dow 5 does it without dioxin contenjt, don't you? i 6 A. I am not sure that I do. 7 Q. Well, you do know thativthere is a big variance 8 between 3,800 and 180, don't you, sir? 9 A. I don't understand your question. 10 Q. Big difference between 3,800 parts per billion and 11 180 parts per billion, isn't there? 12 A. Yes, there is a difference between them. 13 Q. And unless one tested the sample, one would not 14 ever catch the difference, would they, sir? Unless you know 15 that varying the manufacturing process can vary the content, 16 isn't that correct, sir? 17 A. Mr. Carr, I am not familiar with manufacturing process* 18 I don't know. 19 Q. Well, you do know, Mr. Park, that if you don't test, 20 21 you can't find the content. You do know that, don't you? A. I guess in the absence Of an analysis, one will not 22 be aware of the content. 23 Q. And if one isn't aware of the content, of course, 24 then they never have to notify the E.P.A. of knowledge they don' -eS- 1 have, isn't that correct, sir? 2 A, I don't know. 3 Q. And if you don't have knowledge, then obviously you 4 don't have to report toxic substances, isn't that correct, sir? 5 A. Well, one would report whenever there is evidence of 6 a substantial risk of injury. 7 Q. Yes. But you won',t even know that unless you test 8 your product, will you, sir? T ! 9 A. There are many ways. As I mentioned, Mr. Carr, we 10 have held a number of Section 8 (e) meetings. i 11 Q. Now, Mr, Park, you have given us the 8(e) meetings 12 you have held and it's four in number. 13 A. Well, that's relating to the chlorophenols. 14 Q. And that's what this case is about, Mr. Park. We 15 are talking about chlorinated phenols. 16 A. Right. 17 Q. That's what we are talking' about. If you don't test 18 theip, you will never know they have toxic substances, isn't 19 that correct, sir? 20 A. The chlorophenol itself I understand is quite toxic. 21 Q. Could you answer that question, please, Mr. Park? 22 A. Well, the answer would have to be no. You do know a* 23 it's toxic, Mr. Carr. 24 Q. I didn't ask you that, Mr. Park. And you know that i' -6S- ( 1 am talking about the dioxin content of the chlorinated phenols. 2 You know that as certainly as I am asking you as you know 3 anything, don't you, Mr. Park? But you feel that you can 4 obscure the issue by throwing this in, don't you, Mr. Park? 5 A. No. \ 6 MR. MUSGRAVE: Object, your Honor. He is arguing 7 with the witness. He is badgering the witness. 8 THE COURT: Overruled. It's proper cross examination 9 under the circumstances. 10 n know. MR. CARR: Q. Mr. Park, if you don't test, you don't / 12 MR. MUSGRAVE: Object. It's been asked and answered. 13 MR. CARR: Q. And if you do know and somebody 14 doesn't request a meeting, you don't have a TSCA meeting, 15 isn't that right, sir? And if you do have a TSCA meeting 16 and if you decide there is no substantial risk or there is 17 no exposure or you are not going tq get in commerce, then you 18 don't repqrt to the E.P.A. That follows too, doesn't it, sir? 19 MR. MUSGRAVE: Object. That's about four questions. 20 multiple questions. 21 THE COURT: Overruled. 22 THE WITNESS: Could we read them back one by one, 23 please? 24 (At this time -the court reporter read back the '" - 70- 1 following question: Question: And if you do 2 know and somebody doesn't request a meeting, yoti 3 don't have a TSCA meeting, isn't that right, sir 4 And if you do h4a- ve a * TSCA v meeting and if you dec: 5 there is no substantial risk or there is no 6 exposure or you are not going to get in commerce 7 then you don't report to the E.P.A. That follow 8 too, doesn't it, sir?) 9 THE WITNESS: Okay. We do not hold an 8(e) meeting 10 unless there is a request for one. And if during the meeting 11 it's concluded there is no substantial risk to the health of 12 the environment, then there is no report to the E.P.A. V 13 MR. CARR: Q. Mr. Park, my question was simply 14 this. The E.P.A. will never know if you either don't test or 15 you don't.request a meeting or you don't decide at the meeting 16 that they should be notified. All of those three things have l 17 to be met before the E.P.A. is informed, isn't that right, sir? 18 You have to test for the dioxin and find it. And then somebody 19 that tested for it has to say, "Hey, we better call a TSCA 8 (e) 20 meeting," -and request it. And then you have to meet. And 21 after looking at that 20,000 parts per billion or 22,000 parts 22 per billion, you have to decide that that represents a 23 substantial risk to the health or environment, don't you, sir? 24 All of'those three things have to be met before y o u r -* - 71- I obligation is called upon, isn't that correct, sir, and 2 before the E.P.A. knows of it? 3 A. I don't think testing would be a prerequisite, Mr* 4 Carr. 5 Q. How would you know if you don't test, sir? 6 A. The great majority o f ,8(e) situations do not come 1 out of testing constituents of products. 8 Q. I understand, Mr. Park, that none of the ones or only -tv 9 three of the ones that Monsanto come out of testing the product 10 All of the meetings you are talking about that.you held of 11 the dioxin content* all of the meetings dealt with testing 12 the product and discovering dioxin content, isn't that correct, 13 sir? 14 A. Let's see. v Is that three? I think the one dealing 15 with the Sturgeon spill as I recall simply did not deal with 16 the composition of the product, but the fact that it had been 17 spilled into the environment. As I recall, that was the reasor 18 Q. That's correct. You didn't know dioxin was in it 19 then, did you, sir? 20 A. I believe that's correct. 21 Q. Because that was before your February 9 meeting, 22 wasn't it, sir? 23 A. Yeah, I think that's right. 24 Q. But in any event, Mr. Park, the point I am making is - 72- i-t: 1 if theoperson that tested the Santophen or the PCP and found 2 the 20,000 parts peribillion, if it were never tested, he 3 would"*never know it, would he, sir? 4 A. That's correct. 5 Q. And if he doesn't know it, he can't request a 6 meeting, can he , sir? 7 A. He wouldn't request it for that purpose, that reason. 8 Q. And if a meeting is never held or.if you do hold a 9 meeting and you decide pot to report to the E.P.A., the E.P.A. 10 never knows, do they, sir? So you have to have three things, 11 don't you, sir? You have to have the test that discovers the 12 dioxin content, you have to have the request after that 13 discovery takes place and you have to have your committee 14 at such a meeting to decide the E.P.A. should be' notified. 15 You have to have all of those three things, don't you, sir? 16 A. Well, X guess these three that you were talking about, 17 but not for the majority, the vast majority. 18 Q. For these three that I am talking about. Before the 19 E.P.A. knows, there has to be the test, the request and there 20 has to be the conclusion that they should be notified. Isn't 21 that correct, sir? 22 A. I would guess so. Those three were based upon dioxin 23 content. 24 Q. And one simple way of avoiding notification to the ^ - 73- 1 E.PA..;is-- "-One way is then not to test for dioxin, isn't 2 that correct, sir? 3 A. Mr. Carr, as I have mentioned -- 4 Q. Would you answer that^ question, please? 5 A. No, that -- 6 Q. If you don't test, you won't know. And if you don't 7 know, you don't have to notify, isn't that correct? 8 A. We know a great deal of other things without testing, 9 without analyzing products. We have informed the E.P.A. in 10 other situations. 11 Q. You have never informed the E.P.A. about the dioxin 12 content of any of your products subsequent to a -TSCA 8 (e) 13 meeting according to your testimony yesterday morning, Mr. 14 Park. Isn't that correct, sir? IS A. You said dioxin content? 16 Q. That's exactly what I said, sir. 17 . A. To the best of my recollection, we have not. 18 Q. And if you don't test your chlorinated phenols for 19 dioxin, you will never know whether or not they contain 20 dioxin, isn't that correct, sir? 21 MR. MUSGRAVE: Your Honor, I don't know how many 22 times this has been asked, but it's probably about six. And 23 I object to the repetitive nature of the question. It has 24 been asked and answered. - 74- 1 THE COURT: I think it has been asked and answered. * * 2 MR; CARR: Q. Mr. Park, can you not avoid notifying 3 the E.P.A. by not testing for dioxin content? 4 A. That would not avoid our obligation. 5 Q. Oh, I know that. I know that so well, Mr. Park. I 6 understand that perfectly. That doesn't avoid your obligation. 7 But if you don't test, you don't perform your obligation. 8 Isn't that correct as well, Mr. Park? 9 A. Mr. Carr, I have tried to say there are any number 10 of ways that someone might -- 11 Q. The obligation, Mr. Park, that we are talking about 12 now is dioxin content of yout chlorinated phenols. And you kno 13 it. And, please, do not lead me down another path. We are 14 talking about the chlorinated phenols and the dioxin content. 15 A. I would not go so far, Mr. Carr, as to say that by i 16 avoiding testing one would avoid an obligation of notifying 17 the E.P.A. 18 Q. You can't avoid the obligation ever. There is no 19 way you can avoid the obligation. You simply don't perform 20 in the way you are obliged to perform. Isn't there a duty 21 Mr. Park, to report hazardous levels of dioxin in your 22 chlorinated phenols? 23 A. To whom, Mr. Carr? 24 .Q. To the E.P.A., Mr. Park. r - 75- t 1 A. Not as such, no. 2 Q. And you believe the law permits you not to report 3 hazardous levels of dioxin as such to the E.P.A., is that 4 what you are saying, Mr. Park? 5 A. No. 6 Q. Is that what you are saying, Mr. Park? 7 A. No. 8 Q. I thought that1s just what you said. I asked you 9 there is a duty upon you to report hazardous levels of dioxin 10 in your chlorinated phenols,to the E.P.A., isn't there, sir? 11 And you said no. 12 A. 'And I' said not as such, Mr. Carr. We take very 13 seriously our obligation under Section 8 (e) -- 14 Q. Mr. Park, I am asking you whether or not there is 15 a duty for you to report it and you say not as such. 16 A. Mr. Carr, whether or not the composition is hazardous 17 or not is up to our toxicologists. I rely on them. 18 Q. I am talking about Monsanto, Mr. Park, not you. And 19 you know I am talking about Monsanto. And the toxicologist 20 is part of Monsanto. My question is Monsanto has the duty 21 to report to the E.P.A. hazardous levels of dioxin in its 22 chlorinated phenols, does it not, sir? 23 A. There is no obligation as such that I am aware of. ^ 24 Q. Therefore, Monsanto, in your judgment, is not obliged - 76- 1 to report the hazardous levels of dioxin content in its 2 product, isn't that correct, sir? That's your view of it, 3 Monsanto's view of it? 4 A. You changed the question a little bit, Mr. Carr. 5 And I would say at any time there was a conclusion that the 6 product would present a substantial risk of injury to the 7 health of the environment, then there would be a report filed 8 with the E.P.A. 9 Q. That's not what I asked you at all. Because that 10 requires you to reach a conclusion. You can reach a 11 conclusion fraudulently, can't you, sir? You can reach a 12 conclusion by never testing the product. You can say, "Our 13 Santophen is safe. We have never been found to be unsafe." 14 You can say to the world, "Our Santophen has never been found 15 to contain hazardous levels of dioxin that we are sending you." 16 You can say that truthfully, can't you, sir, if you never test 17 for dioxin content, isn't that correct, sir? 18 A. That's a totally hypothetical thing because I cannot 19 imagine the company not testing products. 20 Q. Well, you do know that they tested only seven batches 4m 21 of Santophen in all of *77 and '78 or something like that. You 22 know that, don't you, sir? 23 A. X am not familiar with that, Mr. Carr. 24 Q. Well, the evidence is there, the exact amount. You .* - 7 7 - do know that it's never been reported to the E.P.A. and it's never been told to a customer. You know that too, don't you, sir? A. I don't know that. Q. But back to the point, Mr. Park, that I am asking you about. If you don't test, you don't know. Isn't that , correct? A. Mr. Carr, I -- MR. MUSGRAVE: Object. It's asked and answered. /* * THE COURT: It has been asked and answered. MR. CARR: Q. Mr. Park, do you conceive then that T> Monsanto does not have a duty, an obligation to report hazardous -- well, you have answered that as well that Monsanto doesn't as,such have a duty to report to the E.P.A. hazardous levels of dioxin content. I think you said that, didn't you, sir? A. No company does that I am aware of. Q. No company reports it or no company has the obligation? Which is it, sir? A. No company has the obligation as such. Q. No company has the obligation to report to the E.P.A. whether or not its products contain hazardous levels of dioxin in your judgment, is that correct? ^ A. Now, I am not speaking of PIFRA keep in mind. I am thinking in terms of TSCA, the Toxic Substances Control Act., I am not familiar with the obligations under FIFRA. Q. So far as you know, since you are not familiar with FIFRA -- so far as you know, Monsanto does not have the obligation to report and neither does any other company in your judgment have the obligation to report to the E.P.A. the existence of hazardous levels of dioxin in your chlorinated products. Isn't that what you are saying, Mr. Park? A. If they present a substantial risk of?injury to the health of the environment, then there would be an obligation. MR. CARR: Your Honor, would you direct the witness to answer that question? THE COURT: Mr. Park, * you* have to answer that question directly as posed to you. THE WITNESS: Could you clarify what you mean by that? MR. CARR: Q. No, Mr. Park, because you have answered it once already and I am trying to be more precise. You said not as such. You don't have the obligation, no company has the obligation. I just want to make sure that is your opinion. MR. MUSGRAVE: Object to the question. That is being vague, your Honor. If he is not going to specify whether it's under the statute or as a general policy or whatever, I object to it as vague, making incapable the witness to answer it in - 79- 1 the context that it is given because it is vague* 2 THE COURT: It's not at all vague. Overruled* 3 MR, CARR: Q. Mr. Park, is it because that you at 4 Monsanto -- that Monsanto believes that it is not under a 5 legal obligation to report hazardous levels of dioxin in its 6 chlorinated phenols, is that the reason the E.P.A. has never 7 been notified that hazardous levels of dioxin have existed 8 in the past in your chlorinated phenol products? 9 MR* MUSGRAVE; Object, your Honor. Assumes facts 10 not in evidence, II THE COURT: Overruled. 12 THE WITNESS: I guess off the top of my head I am 13 not aware of the hazardous levels that were in the products. 14 MR. CARR: Your Honor, would you direct the witness 15 to -- 16 THE COURT: Mr. Park, you have to answer that questio 17 as it is posed to you. 18 MR. MUSGRAVE: Is that a hypothetical, your Honor; 19 that he is being required to assume? 20 THE COURT: It is a proper question. Overruled. 21 MR. MUSGRAVE: Then I do object to the hypothetical. 22 MR* CARR: Q. Is that the reason, sir? 23 A. Mr. Carr, your question assumed that there were 24 hazardous levels of dioxins in Monsanto's product. I guess tha -80 I I can test that assumption. 2 Q. But first of all before you do, please answer the 3 question I posed to you, sir. You can say, no, that's not 4 the reason. You can say, yes, that is the reason. And then 5 you can respond when I ask you the next question, sir. 6 A. I'm sorry. I am trying to recollect. 7 MR. CARR: Would you read the question back to him, 8 please? 9 (At this time the court reporter read back 10 the following question: Question: Mr. Park, 11 is it because that you at Monsanto -- that .v \ 12 Monsanto believes that it is not under a legal 13 obligation to report hazardous levels of-dioxin 14 in its chlorinated phenols, is that the reason 15 the S.P.A. has never been notified that hazardou 16 levels of dioxin have existed in the past in 17 your chlorinated phenol products?) 18 THE WITNESS: I respond that to my knowledge there 19 have been no hazardous levels -- 20 MR. CARR: Your Honor, would you direct the witness 21 to answer the question. 22 THE COURT: Mr. Park, I am ordering you to answer the 23 question as posed to you. Now, answer that question and no 24 other. -- 81- 1 THE WITNESS: And secondly, that is not the reason -- 2 MR. CARR: Your Honor, the witness is ignoring you 3 now. He is saying, "And secondly-- " 4 THE COURT: Mr. Park, I am going to warn you only X- 5 one last time. Answer the question as it is posed to you. 6 THE WITNESS: Okay. No. " 7 MR. CARR: Q. And the reason, I take it from your 8 answer, that you have never notified the E.P.A. is that you 9 at Monsanto don't believe that these levels of dioxin are 10 hazardous, is that correct, Mr. Park? 11 A. I do not know. I am not a toxicologist, Mr. Carr. 12 Q. I am asking you about the reasons you know.So 13 far as you know, is the reason that Monsanto has never notified 14 the E.P.A. of hazardous levels of dioxin in the chlorinated 15 .phenols -- :is that reason that which you tried to sayin 16 response to my question -- is that reason that you don't 17 believe that these levels are hazardous? You at Monsanto do 18 nbt believe these levels are hazardous? Is that correct, sir? 19 A. I really think that is a question for our toxicologist, 20 Mr. Carr. 21 Q. Would you, please,,vansweri that question? So far as 22 you know, based upon your limited knowledge, based upon what- 23 you know about everything, about what I am asking you -- I 24 am asking as far as you know, Mr. Park. - 82- 1 A. Mr. Carr, I would answer then yes in the context * * 2 of each part. 3 Q. All right. We can pass on then, Mr. Park. 4 THE COURT: Mr. Carr, is this a good point for a 5 short break? 6 MR. CARR: Yes, your Honor. 7 THE COURT: Ladies and gentlemen, we will take a very 8 short recess at this time and then resume the testimony in the 9 case. Court is in recess. The admonishments I have given you 10 earlier will apply in this break also. 11 (A short recess was taken.) 12 (Plaintiffs' Exhibit No. 13OlA'-was^marked: for 13 identification.) 14 MR. CARR: Q. Mr. Park, you recognize what has been 15 marked as 13 01A as a blow-up of Exhibit 1301 that you have in 16 front of you? 17 A. Yes. 18 MR. CARR: Offer 1301A, your Honor. Counsel, you 19 need to see it? 20 MR. MUSGRAVE: Well, I will take your word it's the 21 same. But I thought we had -- he was going to -- he hasn't 22 offered this before. He requested permission to pass it 23 to the jury as I understand it. 24 MR. CARR: I think you are probably right. I will - 83- 1 just ask then leave to display this to the jury, your Honor. 2 MR. MUSGRAVE: Same basis as before. tf- *-t 3 THE COURT: Fine. With the reservation on 4 corrections. Same ruling on that. 5 MR. CARR: Q. Now, Mr. Park, will you refer to 6 the next entry for the -- next three entries for the Santophen 7 and check those entries against Exhibit 1195 and 1135B that 8 you have in front of you and see if those numbers entered 9 there for the Santophen for those three Samples of Santophen 10 are not correct? 11 A. Mr. Carr/ is the first one MB730? 12 Q. That's correct. There are two places that it is 13 referred to, 730 on the exhibit you have, 1135B, and also 14 i in Exhibit 1195 and 1195A that you can check if you wish. 15 You see that, sir? There is 150 parts per billion of the' 16 tri- Cl^# 48 of the Cl^ in the sample. KI06124. It's also 17 shown in the Exhibit 1135B. The total dioxins there are 18 420. 19 A. Mr. Carr, where is it? I don't see it on 1135B. 20 Q. Because you haven't turned the page. 21 A. All right. 22 Q. Okay. And the next entry you see for the Santophen 23 has 660 parts per billion of trichlorodibenzo-p-dioxin and 24 33 parts per billion of the tetra with a total of 10,500 parts ' - 84- * ] per billion of dioxin? MB699 or 2 MR. MUSGRAVE: Mr. Carr-- 3 MR. CARR: Q. Do you have it or can I help you. 4 A. I found it. I am trying to .add them up. 5 MR. MUS GRAVE: Isn't KI76 KL79? 6 MR. CARR: The exhibit 1195 -- I thought so. -But' 7 Exhibit 1195 described all of those as 1977 production of 8 Santophens. There is ambiguity in your records as to just 9 when they were made, just when they were made. Exhibit 1195 10 says seven batches from January to March of .'77. 11 MR. MUS GRAVE: Well, I think' the testimony has previou 'V 12 established the sequences of numbers. And we would object 13 to the representation on the chart of KI6-122 as June of '77, 14 your Honor. 15 MR. CARR: KI6-122, I don't have any such -- ' 16 MR. MUSGRAVE: 124, *1I- 'm sorry. 'IT, 17 THE COURT: 124, okay. Well, if there is ambiguity, s* * 18 I will let the record stand showing* both situations on the reco|] 19 and will go from there. 20 THE WITNESS: Mr. Carr, for MB699 I get 10,193. 21 total dioxin. 1 22 MR. CARR: Q. You get what, sir? ^ 23 A. I get 10,193 rather than 10,500. 24 Q. On MB699? -85 1 A. Yes 2 MR* MUSGRAVE: We also object to MB699, your Honor. 3 Mr. Carr is apparently counting the Cl^ which are shown as 4 an interference at less than 5,000. And prior testimony has S established that that means it could be zero, it could be 6 -4,999. But because of interference they can't say. And it's 7 an incorrect representation of that of a total of 10,500. 8 THE COURT: Overruled. 9 MR. CARR: Q. Let me ref-?re.- r you to 1195. There is 10 an ambiguity there in the MB. Look now at 1195. And you are 11 correct as far as the 1135 is concerned. But if you direct, 12 your attention to the original exhibit that was made dated 13 June 19, 1979, Plaintiffs' Exhibit 1195, the sample KL0106, 14 would you, sir, and add those up in here and you will find 15 my figure is correct. 16 A. I believe it would still be -- you have got a less 17 than 50 there. 18 Q. But this is 350 here and you add 350 to 660 -- 19 A. All of these -- well, now these are all less than this 20 number. 21 Q. That's correct, sir. At that level or less than that 22 level. That's what that means. You understand that, don't you 23 A. Yes, sir. Okay. I thought it meant just less than 24 that number. - 86- 1 Q. It means it can't be higher than that value. 2 MR. MUSGRAVE: Object. That's incorrect. 3 THE COURT: Overruled. 4 MR. CARR: Q. And you see right here on the very 5 exhibit itself it has a star. It says, "Cannot be higher than 6 value reported." You see that, don't you, sir? 7 A. I see that, but now some of the other less thans '> 8 don't have the star. I don't know, Mr. Carr. This is not 9 my area. 10 Q. Mr. Park, these numbers add up to 10,500, do they 11 not, sir? i/ 12 A. I don't know. 13 Q. Well, add them up, please. 14 A. All right. -Mi , IS Q. A little over 10,500?wt 16 A. Well, they do, but that doesn't take into account the "i* 17 less than symbols there. 18 Q. Mr. Park, I understand that. And the exhibit is clear, 19 It has the symbol on it not more than or less than 5,000, isn't 20 that correct, sir? 21 - i A. And fifty and. one hundred. 22 Q. Yes. Isn't that correct, sir? 23 Mft. MUSGRAVE: Object to counsel requiring the 24 witness to interpret documents that he is not qualified to - 87- I interpret and when there is contrary testimony to the meaning 2 of the indicated characters. 3 THE COURT: Overruled on both. fV n- 4 MR. CARR: Q. The next sample of Santophen MB698 5 or XL3-43. You want to add those figures up there in that 6 column, sir? 7 A. All right. 8 Q. What does it add up to, sir? 9 A. If I added directly here, it would be less than 6,330. 10 Q. And I have entered on the column 5,930. * 11 MR. MUSGRAVE: Again, your Honor. I object. Counsel 12 is adding interference limit as positive numbers. And that 13 is totally contrary to evidence. 14 THE COURT: Overruled. I don't believe that is IS correct. 16 MR. CARR: Q. Well, eliminating even those, if you 17 look at the exhibit, the No. 1135, and you add up the sample 698 18 I think that is what we are referring to at this time, are we 19 not? You come up with 5,930 parts per billion. Do you, sir? 20 A. Yes, 5,930 is what I have. 21 Q. Directing your attention to MB686, the next item there, 22 you see that adds up to 16,070 parts per billion of dioxin, 23 does it not, sir? 24 A* Let mis do this. Is tO*hat first number under the CliA - 8 8 - .. 1 sign, is that'-- * 2 Q. 810. 3 A. 810. I get 16,070. 4 Q. Of which 3,900 is the trichlorodibenzo-p-dioxin and 5 360 is the tetra, isn't that correct, sir? 6 A. That would appear to be the case. 7 Q. Now -- * 8 MR. MUSGRAVE: There is no chloro in it, Mr. Carr. Ttt 9 It's not a chlorinated dioxin. Never mind. Go ahead. 10 MR. CARR: Q. These are chlorinated dioxins, counsel 11 The next entry there, 697, will you refer^'to that? 12 A. All right. 13 Q. You see the second MB697. column, a line referred to 1, 14 Cl*, 12,000 Cl2, 4,400 Cl3, 450 Cl4? That adds up to 18,250 15 parts per billion of dioxin, does it not, sir? 16 A. I guess 18,250. 17 Q." And I want you to know, Mr. Park, arid for the record 18 as well that 686 and 697 are two different tests of the same 19 batch of 24DCP; These are not two separate batches. And I 20 don't want you to be mislead on that. I don't want the jury 21 to be mislead on that. They are simply renumbered, the same 22 sample and tested it on different occasions. MB758 is a N 23 Santophen sample. And it shows 310 parts per billion. And* 24 I don't want to do this unless you are with me. Are you at - 89- 1 1135? I'm sorry. You don't have it. It's 1131. You don't 2 have that exhibit. 3 A. No. 4 Q. Handing you what's been marked Plaintiffs! Exhibit 113!. 5 there are five samples of Santophen refeItrred to in thatsJ* exhibit, 6 are there not, 754, 755, 756, 757? 7 A. Well, it's got six listed here, 740 -- 8 Q. Direct your attention to MB758, please, Mr. Park, 9 so we can move on. You see that Santophen 310 parts per billioxi 10 of trichlorodibenzo-p-dioxin, 20 parts per billion of tetra11 chloro-p-dioxin, for a total of 635 total dioxins. That was 75i 12 A. 758. I notice it has a less than sign in front 13 of all of these numbers. 14 MR. MDSGRAVE: We make the same objection with 15 regard to tills representation, your Honor, as being misleading 16 and improper characterization^of the testimony with regard to 17 what the numbers represent. 18 THE COURT: Overruled. 19 MR. CARR: Q. Does the caret sign on there in that .- 20 exhibit say no more than? 21 A. Mr. Carr, I don't know. * ^ i 22 Q . Excuse m e . Could you read the words at the bottom of 23 that Table II and does it have the caret sign equals, "No more 24 than"? - 90- I A*' Yes 2 Q. Mr. Park, please move on and give me, if you will, 3 the total not more than dioxin content for sample 754. 4 A. 754? 5 Q. I'm sorry. 758 was the first I asked you about. 6 A. I added those up to 635. 7 Q. Thank you. 1The next one is 754. Please add those 8 up. The second sample referred to there is 1,395, is it not, 9 sir? 10 A. I'm sorry. I was adding the first line. That comes o 11 to 600. 12 Q. The second line, 754 -- 13 MR. MUSGRAVE; Same objection to this representation 14 intentionally misleading and mischaracterizing the evidence. IS THE COURT: Overrulea*d. on^ both. 16 THE WITNESS: I get 600, 1,395. 17 MR. CARR: 0. That's what I have got. Next one, 755 ** v 18 adds up to be eight hundred twenty -- first of all, the 754 19 sample has not more than 325 parts per billion of tridioxin, 20 isn't that correct, sir? 21 A. That's what appears to be indicated on this exhibit. 22 Q. And 755 shows for Santophen not more than 275 parts pe 23 billion for the tridioxin, isn't that correct, sir? And total 24 dioxin of not more than or 825 parts per billion? " 91- : r A. MR. MUSGRAVE: Same ^objection with regard to representation on this one, your Honor. He is doing the same thing. THE COURT: Same rulingw Overruled. THE WITNESS: Yes, I add those numbers up to be 825. MR. CARR: Q. And MB656 has for the tridioxin not more than 220 parts per billion, doesn't'it, sir? I'm sorry. 756 in the second sample test. MR. MOSGRAVE: Same objection on this one, your Honor. Same mischaracterization. THE COURT: Overruled. ^ THE WITNESS: I add those numbers up to 1,920. MR. CARR: Q. And the tridioxin is not more than 220 for that sample, is it not, parts per billion? p C ftC aO C O .. B a r O N N I. N .J , 0700* FO R K IL *4a . A. That's what the exhib*1i* t says. Q. And 757 has not more than 85 parts per billion of the trichlorodibenzo^-p-dioxon? A. That's what it says. Q. And it has a total of not more than 665 dioxin, does it not, sir? A. i add them up to that number. MR. MUSGRAVE: Same objection with regard to 757, your. Honor. ^ THE COURT: Same ruling. - 92- 1 MR. CARR: Q. Directing your attention now to T* _ 2 Plaintiffs* Exhibit 1276fTable I on 1276. That reports, does 3 it not, 2 , 1 0 0 parts per billion of tridioxins and 2;7p0"partsr; 4 billion of tetra dioxin? Isn*'t that correct, sir? 5 A. I don't know, Mr. Carr. This is a different format 6 than the other ones. I am not sure I understand it. 7 MR. MtJSGRAVE: What page of 1276? 8 THE WITNESS: Table I. 9 MR. CARR: Q. Table I on it. Look at Table I. 10 It has at the top of it analysis of CI4 . Table II has the 11 analysis for Cl^ dibenzo-p-dioxin. Do you see that, sir? 12 And I misdirected you to Table I for both findings. 13 A. Yes, i see that. 14 Q. Table I shows 2,700 parts per billion, does it not, 15 sir? 16 A. This number? 17 Q. That's correct. 18 A. I see that number on there. ter 19 Q. And Table II shows for the Cl^ dibenzo-p-dioxin it sb 20 2 , 1 0 0 parts per billion, does it not, sir? 21 A. I see that. That's number three, that's right. 22 Q. Sample number three? 23 A. Sample number three.. ^ 24 T` HE COtTRT: Mr. Carr, is U'' this a good point at which - 93- 1 to break? 2 MR. CARR: Sure. 3 THE COURT: Ladies and gentlemen, we will break for <*- - 4 the day at this time. I will remind you as X do on any other ' 5 overnight break, you are not to read or watch anything about 6 this case in particular or subject matter in general in the med[La< 7 Gentlemen, can I see you in chambers, please? 8 (The following proceedings were held in chambers 9 with Court and counsel present.) 10 THE COURT: Let the record indicate that we are in 11 chairibers outside the presence of the jury for a motion filed (: 12 today, I guess. 13 MR. CARR: Yes, your Honor, this morning. 14 THE COURT: Motion for sanctions and further 15 production. Anything you want to add to your motion? 16 MR. CARR: Just that as the Court knows, we spent a 17 great deal of time trying to get from Monsanto for a period of .18 months now all the documents that deal with dioxin. And I let 19 this witness who is presently on the stand know either the firs 20 or second day X was examining him that X was going to refer to 21 a January, 1985, TSCA meeting that they held and was going to 22 refer to the 250 parts per billion that that memp referred to 23 as being the level at which the E.p^A* should be notified. The 24 next ~r and, of course, that is an important point supporting - 9 4 -; fO RM l l 141 1 our position in this case that dioxin, not just 2,3,7,8, but 2 all dioxin is toxic and hazardbus and that Monsanto has known 3 for a number of years that and yet has taken the position that 4 it is not toxic. And so that 250 parts per billion finding by 5 their toxicologist was important. And the very next morning tli 6 was delivered to my once I- let them know I was going to .use 7 and rely upon that 250 parts per billion finding of that 8 toxicologist Hair, the very next morning they produced in my 9 office at 9:15 A.M. a document prepared by another toxicologist 10 Levinskas who up to the point of time the witness identified 11 Levinskas as a toxicologist, X was not aware he was a toxicolog: 12 I saw his name on any number of documents that he received, 13 copies along the time documents have been produced. Levinskas* 14 name appears with some frequency. But I had not known he was a 15 toxicologist until the witness Park said in effect that -- said 16 he was and that his memo that had been delivered to me that 17 morning at 9:15 AM took away from the impact of Nair's 18 recommendation and that it, in effect, overruled Nair 19 because Levinskas was Nair's boss. 20 Now, it's obvious that after I let them know, * -* 21 telegraphed that X was going to use and rely on that 250 parts 22 / " per billion memo they went back and did some digging to see 23 what they could discoversto counter that finding. And lo and 24 behold, they discovered a document written by Toxicologist - 95- 1 Levinskas that says that document exaggerates -- that Nair is 2 exaggerating the toxicity of dioxin* Well, I find it \ 3 absolutely incredible that they could have just accidentally 4 come upon Levinskas*s memo that deals with this subject.' And 5 it is incredible that Levinskas would have written only one 6 \ document and they find it accidentally on the night of the 11th 7 of April, 1985. 8 The records also show that Roush has been on this . 9 committee since 1979, has served on these committees. And 10 when the original files of Roush's, which I asked to be II produced and Mr. Nassif produced them and represented to me 12 that X was seeing the original files, not a single document 13 to my memory deals tith the findings of this TSCA committee. 14 And there is nothing that Roush wrote either in hand or had J 15 typed dealing with these findings where he gives advice. 16 So I am absolutely convinced that there is important material 17 in Levinskas*s files which they have not produced and 18 important materials in Roush's files which they have not producer 19 And there is also files of Dr. Nair. 1 don't know how long 20 Dr. Nair has been with them. But X would suppose that she was 21 there prior to January 14, 1985. And we have gotten ho files 22 from her other than Bark's file. And Bark, of course, says 23 today for the first time there may be other TSCA files dealing .2 4 with dioxin. That's all X wanted to add to that motion, your -96 if 1 Honor. 2 THE COURT: Who is going to -- 3 MR. NASSIF: We may have to handle this together. 4 But I want to address Mr. Carr's comment about the -- it's 5 obvious after he telegraphed what he was going to do that we 6 went back digging to counter Nair's memo. I was the one that 7 found Hair's memo and the Levinskas memo, your Honor. X 8 found them in a most unlikely place while X was going through 9 Phocion Park's Tetrathal TSCA. It was the Tetrathal section, 10 of Phocion Park's file. I found' documents and I Informed 11 Mr. Carr, first of all, that we did not have, the final draft fVt,' 12 of the Tetrathal meeting which was not finalized * The finalize 13 meeting of the Tetrathal was not finalized until March 26, PtMGAO CO., BfTONNI, N.J. 07002 FORM IL t* B 14 1985. That was not in the file* In the course while I was 15 looking for all the final minutes, I found these twoidocuments, 16 the Nair memo and the Levinskas memo. If you read the Levinska 17 . memo, your Honor, it references that the.Nair memo is 18 attached. There was no telegraphing on our part. I didn't /19s? 20 21 ' '22:-:: 23.l.'v' ' 24 know it referenced that because I found them separate in the file. The Levinskas memo is directed to George Roush. And I said, I told -- I gave the Roush memp -- the Levinskas to Roush memo to our staff and I said--the same day I found the Nair memo we produced the Nair memo. And I said, "Confirm that this Levijiskas to Roush memo was in the material Mr. Carr reviewed." I don't recall the Nair memo and the Nair memo did not list Roush. I was sure he got the memo. But I couldn't peg the Nair mmo, So we went ahad and produced the Nair memo right away. And I said, "This Levinskas to Nair memo should have been produced. I think I have seen it. Check on it." This was before I even, knew Mr. Carr was going to us th Nair memo. And, in fact,. Mr Carr used the Nair memo the same afternoon we handed it to him. MR. CARR: why did he hand me the Levinskas memo? v,MR. NASSIF: Because the memo was addressed to Roush and it was not addressed at the time. In all honesty, I believe that we have given you everything in his original - file, Rex, and that's why I didn't hand it to you. MR. CARR: Why did y**ou br^ing it in the next morning?'' MR. NSSIF: Because I went back to Levinskas1s file. Firsts we checked all yor orders that evening. We found we had no C number for that memo. And I asked George Roush and Ken and they left and went back to Levinskas's office at , 7:30 that night and pulled Levinskas*s files because Levinskas told me he had three files in his drawer in his own office that ", we might not have gotten when we pulled the original files under 8 (e). - .V ;. And by the way, we did take his general fficeifi (e) file. And that was included in the material you looked at and is on the microfilm I have been informed. But I want you -98- 1 to know, your Honor, X was not sure that Levinskas's memo -- 2 I said, "George, we haven't found it. I want to look in all o: 3 your files including the ones in your desk." Ken and George 4 left at 7:30 that night, went to his office, pulled the 5 materials, met me the next morning at Roush's office, pulled 6 those files where Roush said they may not have been pulled in 7 the search. I reviewed them and still did not find the LevinsI 8 to Roush memo that morning. As soon as X realized it hadn't 9 I been given to Mr. Carrytthat morning I toid Carol -- Sheila 10 was not there. I said, "You put a number on this and get it 11 up to Mr. Carr." She left at ten minutes to nine. Now, he 12 claims he got it at 9:15. I do know it was within that morninc 13 But X was convinced from the day X saw it in Phocion Park's 14 memo -- but I didn't stopthere. I wanted to confirm he got 15 it. X had no idea he was going to use it that afternoon again: 16 Mr. Park. As a matter offact, Mr. Carr indicated to me when 17 X told him we didn't have the final version of the Tetrathal 18 minutes,^ he said to me, "I am not'worried- about Tetrathal." 19 MR. CARR: Because I wasn't aware that you had 20 dioxin minutes relating to Tetrathal. 21 MR. NASSIF: We produced to your office, well, . 22 before this in the Roush materials and earlier when you asked 23 for documents having to do with dioxin and Monsanto products, 24 a number of reports, X think a proposed press release having -99- < 1 to do with dioxin and Tetrathal. So you were quite aware that 2 there were dioxins in Tetrathal, that we had found them. The 3 only thing I told you was I didn't have this final draft' of the 4 Park memo that had been circulated and finalized on March 26, 5 your Honor. It wasn't even in Park's file. It was on its;, 6 way being prepared. And I said, "I am going to get that to 7 you." Now, I had -- there was no way -- I am representing to 8 this Court it was not accidental that we came upon the Levinskajs 9 memo after finding the Nair memo. It was not accidental at 10 all. I can attest I have not found the Levinskas memo in any of: 11 George Roush's materials either that we gave to Rex or pulled. 12 The memo was addressed tolhim. I have questioned Dr. Roush 13 why he doesn't have this memo and he doesn't have an answer. 14 The Levinskas -- I believe I found the Nair memo 15 in Levinskas's original files in what you looked at or what we frere - 16 to produce to you. I am not sure about that. 17 MR. CARR: I haven't seen Kevinskas's original files. * ... 18 MR. NASSIF: In the Roush original files. But I 19 didn't find the Levinskas cover memo. 20 MR. CARR: I didn't see it. 21 MR. NASSIF: I am not going to say for sure.) But I 22 do know, your Honor, the only time I found those two documents 23 in one file together was when I was pulling those last Tetratha 24 minutes that Phocion Park had in his 8(e) files. They weren't -100- BAYONNE. N.J. 0700* FOBM IL *4 I 1 attached. They are attached now. They weren't attached. 2 C said, "I am sure Bex got this Levinskas to Roush thing." 3 It's a good memo for us. I wouldn't have -- 1 wasn't trying 4 to.trap you in any way. I had no idea you were going to talk 5 about Tetrathal. But I was sure we had given Rex all of- 6 Roush's original files. This memo was addressed,to him, a 7 recent memo* As a matter of fact, I thought I recognized it ` 8 and told them to go back and just confirm itivWhen weecddldn't 9 confirm it, we checked it that night, had Ken go back and 10 Look in his 8(e) files. We confirmed it hadn't been produced 11 and I produced it that morning. It is true I admit this to 12 the Court when he said 250 parts per billion the night before, 13 Lt was true it rang a bell. I suddenly realized he was going to J4 use the Nair .materials. And you are right. I did make every 15 affort that evening to make sure we had produced that document. 16 But I was making that effort before he made any reference to 17 that. And we were making that effort, your Honor. And we 18 confirmed it and I produced it the next morning to him. I 19 produced it to him as soon as we confirmed it hadn't been in 20 Rough's original materials. 21 Wow, let me -- there is one other point, the Roush 22 files, whether Rex has gotten all of the Roush files* On 23 24 the 8(e) files there was a general 8(e) file that Roush's secretary said was the 8(e) file. And Mr. Carr had'an -101- 1 opportunity to see that file when he was in my office.. 2 There are also two other 8(e) files that I have personally 3 reviewed that I did not know about at the time Mr. Carr.sat ' 4 in my office two or three. I can't remember. But they were 5 very small. They were folders he had in his desk or office 6 area. They were not included in the materials that Mr. Carr 7 looked at. I admit that, your Honor. I personally looked 8 . ' at these three files and produced every document in there that i 9 had the word "dioxin" ..in it that had not been previously 10 produced. I make that representation to the Court. I did that, 11 well, within the middle or late last week when Ken got those 1.2 files. Thursday night you got them. I reviewed those files that 13 morning, confirmed that, in fact,' everything in there. There 14 were no handwritten notes by the. way. 15 MR. CARR: I want to see those original files. I 16 insisted upon seeing it to start with because I did not 17 believe X would get the contents of the file because we have been 18 getting these files day after day that you supposedly reviewed 19 in-February and January to pull out everything dealing with 20 dioxin. I am still getting them. X want to see the original , 21. ; files. I want to see Levinskas's original files and Roush's 22^ original files. I can't believe he would have gotten a memo 23 in January of '85 dealing with dioxin and he doesn't have it in 1 ;;.24;.; his files somewhere. u/uui -102- 1 MR. NASSIF: If you want to see Roush's original 2 files,again, you can look at them again plus the ones -- 3 4 \ MR. CARR: But I apparent*ly did not see his files. MR. NASSIF: If you want to see all th original 5 files you did not see the first time, that is fine. 6 7 MR. CARR: That's what -W - I imwi ant to see, all the files I have not seen. 8 THE COURT: Anything else? 9 MR. NASSIF: Yes, your Honor. I do want to say one 10 thing. To my knowledge, I don't have any problem if he wants 11 to see Levinskas's original dioxin files. Keeping in mind, 12 your Honor -- 13 THE COURT: What about Nair's? 14 MR. NASSIF: I don't have any problem with' Nair. 15 Keep in mind, your Honor, we do not produce Nair and Levinskas 16 files on the basis of just the mere word dioxin as we did with 17 the Paget file and Mr. Mahoney's file. I am not saying that 18 other than to say they might have reference to the word dioxin, 19 but it might not have anything to do with toxicity of chlorophenc 20 or toxicity of dioxin or the presence of it in any^of our product 21 MR. CARR: It's incredible that you can have two 22 23 toxicologists --- from 1979 I have seeiir Levinskas *s name on a ,24 memo as far back as '79. I know I have seen a number of memos rference to Levinskas. And I haven't got--the* document -103- 4 .1 that you brought in 9:15 the other morning is the first 2 document I recollect having been signed or prepared by 3 Levinskas. To me it boggles the imagination you could have 4 a toxicologist in dioxin,.all the memos I have gotten from 5 ' you all -- dioxin is the big problem. You are fighting it 6 here and there. You could have a toxicologist who has not 7 got anything in his files dealing with dioxin. 8 MR. HEINEMAN: I would like to respond to that, 9 your Honor. X have been through piles of documents myself. 10 I have seen a number of documents authored by Mr, Levinskas 11 that have C numbers on them. I know there have been f . 12 13 14 15 16 ; 17 18 19 J - 20 21 documents produced to Mr. Carr authored by Dr. Levinskas because X have seen them. This isn't the only one. X don't know if these came out of George Levinskas1s files. MR. CARR: X will check my files again. MR. HEINEMAN: X have them with C numbers on them. MR. CARR: You may have them. Maybe I don't have them. MR. NASSIF: I would add we produced microfilm to Mr. Carr and my understanding -- and I am not saying there are Levinskas memos on that. My understanding is, however, ^ 22 that his files were included in their search and in. the 23 materials that were ultimately put on the microfilm. ^ 24. THE COURT: They were included in the search but -104- 1 you are not sure they were included on the microfilm? 2 MR NASSIF: I haven't confirmed that they are on 3 the microfilm. I have ben told they would be at least 4 early on in the early materials. 5 THE COURTS Do you have any reply? 6 MR. CARR: Nothing further, your Honor. 7 THE COURT: I am going to order the production of 8 the original files of Levinskas, Nair^and Roush. And X 9 gather that it's by agreement. And I want these files 10 produced as described in the motion. X am also going to 11 order as far as the affidavits that the president of Monsanto 12 file the affidavit as requested. And you, Mr. Helneman, 13 you file the affidavit that has been requested of you. And 14 I will resrve until a future time any question of sanctions. 15 When can you get these original files? 16 MR. NASSIF: I will tell you in the morning, 17 your Honor, if that would be okay. 18 THE COURT: Fine. And if you could also tell me 19 then, X guess, when the affidavits can come in. 20 MR. NASSXF: Your Honor, I don't know if this needs 21 to be on the record. We are trying to get complete -- the 22 last outstanding in terms of Monsanto documents, that is the 23 board request and all of that together, and as supplemented 24 by Mr. Carr. And X mentioned to him the time table on that -105- I on Friday. 2 THE COURTS Okay. 3 MR. NASSIF: We were trying to wrap everything up 4 to do the affidavit. And we have continued, however, your 5 Honor, to search for producable files. As a matter of fact, 6 I produced this morning as it turns out a document which 7 had been previously produced. But we are still in the 8 process of trying to check every nook and cranny before 9 we do perform the affidavit. And we were waiting to complete 10 the board materials which I did over the weekend before we II file the affidavit of total compliance. 12 THE COURT: Okay. X think that covers everything 13 in your motion. 14 MR. CARR: Your Honor, there is one other thing 15 I would like to bring up. I haven't gone through all of 16 these materials that have been produced to me just today. 17 The raw data has been supplied. I want to make sure there -18 are no cracks in the discovery motions by which you could 19 say that there are some things X didn't precisely ask for. 20 Because just the brief looking that I have right now -- what 21 X saw was something that appeared to be taken from o4her 22 examinations. The document that I had said, if X can 23 remember it correctly, taken from examination and put down 24 on this, in this place. So that indicates to me that there -106- 1 must be some other records that are in existence. I am not 2 saying that you have them. Suskind may have them that served 3 as a source for these documents that you have given me. And 4 I wanted all the documents, not just his conclusions from 5 the examination. And that*s much of what I have got are i 6 conclusions. I want all the documents that he has dealing - 7 with his examinations and findings and laboratory tests on 8 these people. 9 MR. NASSIFs I will respond only to say, your 10 Honor, that X know for a fact there are reports of lab 11 tests in those documents. At least one on each individual. 12 That is raw material. Those are the lab tests. I have 13 not -- I have reviewed that material and to the best of 14 my knowledge, your Honor, it seemed complete to me. It is, 15 in fact -- and I will confirm, Mr. Carr, everything that we 16 have that -- you know we have searched around -- and try to 17 compare it to whatever information we may have. That is 18 more than we had within Monsanto. It includes any and 19 everything that we had. 20 MR. CARR: Well, just for one thing. There is a 21 listing of abnormals, listing of normals and listing of 22 abnormals and values for the normals. There are no values 23 given for the porphyrins, no normal values given for the 24 porphyrins. There are porphyrin results given, but no normals. -107- 1 I haven't gone through everything. There may be somewhere 2 in that stack, may be a reference range for the porphyrins. 3 But it's not on each individual report. There are normal 4 findings, normal ranges for all the other lab tests. But 5 there are not normal ranges for the porphyrins on what I 6 have looked at thus far. 7 MR. HEINEMAN: Let me make sure that I understand 8 the first thing that you were describing. Because I will 9 call them back up and see. You said that you saw something 10 that refers to another examination? 11 MR. CARR: Refers to the examination taken from the 12 examination.. I can be more -- I will have more'time to look 13 at it this evening. And I haven't gone through it all. I 14 didnlt want to give you a final request for additional 15 without being sure of what I am speaking. But I am just 16 telling you this as a preliminary. As far as I can see, 17 there have been other findings of some sort written down 18 somewhere that we haven't got. And there are no values 19 given for the normal porphyrins. There is a finding that 20 the porphyrins are abnormal. But there is nothing to check 21 it with to see that the report is correct as to wjhat is the 22 normal reference range. 23 MR. HEINEMAN: Okay. 24 THE COURT: Okay. Anything else? -108- / I MR. HEINEMAN: Your Honor, could I ask this, for 2 the Court to explain to me -- obviously, or it seems 3 obvious to me that the president of Monsanto Company doesn't 4 have the vaguest notion about the productions of documents 5 that have occurred. What is the purpose^ if the Court would 6 be so kind to explain it to me, of having ah affidavit from 7 the president iof :the- compahy? 8 THE COURT: Let me ask you. You knew that we were 9 discussing this motion and you knew that was part of the 10 motion* And I didn't hear any objection to it so I assumed 11 there was no objection to it. And I don't think that is an 12 unreasonable assumption. What objection might you have to it? 13 MR. HEINEMAN: My objection to it would be how in 14 the world would -- everybody in the room knows that the 15 president of the company doesn't have the slightest connection 16 with the production of documents. And we would object to 17 having to have any kind of affidavit from him. What in the 18 world would he know about it? 19 MR. CARR: Let me give an analogy for that. In 20 practically all of the jury cases that I have handled, the 21 defendant requires that the plaintiff sign personally^ the 22 affidavit that production is completed and sign personally 23 the interrogatories that the answers are true. In most of 24 those instances, the plaintiff doesn't have much of an idea -109- 1 at all as to whether that Is all the production or whether 2 these documents are material. He relies upon the attorney 3 to tell him those things. But he can hold the attorney 4 responsible if he signed an affidavit that is incorrect 5 because I am telling my client, "Sign this. We have 6 produced." And invariably the defendants require that it 7 be signed by the client and not just by the attorney because 8 it's the client that is in the case. 9 Well/ in this instance, I have asked that the 10 president sign it because he will make damn sure if he is 11 putting his signature on the line. He will make damn sure 12 that the people working for him have produced to you the 13 proper materials. You have to rely upon the people at 14 Monsanto. You cannot go through all of these files yourself 15 and neither can Joe Massif * You have to rely upon Wilson and 16 Metcalf and Roush that he hasn't stashed away some file. 17. You have to rely upon the integrity of the people reporting 18 to you. Monsanto's president, Mahoney, is the person that' 19 can put their, feet to the file. You can't and neither can ^20 Joe. But Mahoney can. And this is the only way I can be 21 sure to have Mahoney see to it that the production is complete 22 just as the plaintiff is required to in an ordinary lawsuit, 23 just as our plaintiffs have signed answers and affidavits 24 that production has been complete and that the interrogatory -110- I answers are true 2 MR. HEINEMAN: Well, your Honor, I think that 3 obviously he is not going to be giving an affidavit based 4 upon personal knowledge. And all he can do is give an 5 affidavit on what he knows. If that is what the Court orders, 6 that's what we will ask him to do. 7 MR. NASSIFs As a possible alternative, your Honor, 8 perhaps.having it signed by the head of the law department, 9 senior vice president Of Monsanto, would be someone who would 10 have a little more understanding of why this is going on and li would also have the power to bring to bear the proper pressures 12 as Mr. Carr is indicating would be a little more -- having 13 it signed by someone with a better understanding of the 14 process and what needs to be done and all of rthat. 15 MR. CARR: I object to that, your. Honor. The 16 plaintiffs don't have understanding of all the process. But 17 yet they are required to sign th affidavits. Mahoney can 18 be made to understand. And, therefore, I want him to be 19 made to understand. Because then he can bring the pressures 20 to bear that he is not going to be signing an affidavit 21 that is false. Your lawyer doesn't have the saijtte clout that 22 'Mahoney has. 23 MR. NASS IF: I argue that this individual is in 24 much the same shoes as Mr* Mahoney as an officer of the -111- 1 company. He is senior vice president. He is similar to the 2 analogy that Mr. Carr is making. He has that kind of power 3 and presence in the corporation. It is not necessary for 4 us to go to Mr. Mahoney and explain to him this process as 5 a non-lawyer and help him try to understand what is being 6 required. 7 THE COURT: He may be similar, but not the same. 8 I think it's a good idea. I have in the past before this 9 case ordered the chief executive officers of companies 10 involved in litigation to execute things as well as requiring 11 plaintiffs to execute matters in discovery as opposed to 12 their attorneys. I think.it's a good idea. And I will 13 grant it over objection since itihas now been brought up and 14 argued. I think your analogy is correct. I think it's a 15 good idea. ,, I have done it in the past. So I see no reason, 16 frankly, not to do it now. And I think your language is 17 correct. He is in a somewhat same position as far as the 18 senior vic president. But he is not in the same position. 19 i Mr. Mahoney or anyone else who would occupy the chair of 20 Monsanto chief executive officer, there is no exactly 21 comparable chair. So I will grant it over oblectionnow 22 that it's been brought up and argued. Okay? . 23 MR. NASSIF: One point, your Honor, of clarification. 24 I am to produce Roush* s original files as not previously -112- 1 reviewed, isn't that our understanding? 2 MR. CARR: Yes. 3 MR. NASSIF: Are we to produce these in triplicate 4 as we did or duplicate? 5 THE COURT: That was your idea. 6 MR. CARR; It's up to you. 7 THE COURT; It's a good idea. That's what you did 8 with Roush's other files. 9 MR. NASSIF: It only goes to show how soon we can 10 have them available. 11 MR. CARR: I want them available sooner than an 12 hour before I examine him. 13 THE COURT: Why don't you skip the triplicate on 14 Roush's? 15 MR. NASSIF: Fine. 16 THE COURT: Let me know tomorrow morning how 17 quickly you can have the others. Because if there is a 18 great tifoe difference, we may skip the triplicate on all of 19 them. 20 MR. NASSIF; Fine. I will let you know. 21 THE COURT: Okay. -^ 22 COURT ADJOURNED: 23 ******* 24 -113- 1 IN THE CIRCUIT COURT FOR THE TWENTIETH JUDICIAL CIRCUIT 2 ST. CLAIR COUNTY, ILLINOIS 3 4 5 6 7 I, DONNA F. BREWER, an Official Court Reporter for 8 the Circuit Court of St. Clair County, Twentieth Judicial 9 Circuit of Illinois, do hereby certify that I reported in 10 shorthand the proceedings had on the hearing in the above 11 entitled cause; that I thereafter caused the foregoing to be 12 transcribed into typewriting, which I hereby certify to be a 13 true and accurate transcript of the proceedings had before 14 the Honorable Richard P. Goldenhersh, Judge of said court. IS 16 17 18 19 20 21 22 23 bated this 19th day 24 of April, 1985 1 IN THE CIRCUIT COURT FOR THE TWENTIETH JUDICIAL CIRCUIT 2 ST, CLAIR COUNTY, ILLINOIS 3 4 5 6 7 I, RICHARD P. GOLDENHERSH, Circuit Judge in and 8 for the Twentieth Judicial Circuit of the State of Illinois, 9 and the sole presiding Judge in the aforesaid cause on the 10 15th day of April, 1935, do hereby certify that I have 11 examined the aforesaid transcript of the proceedings and 12 further certify that the same is a true and correct transcript 13 of said proceedings had in said cause. 14 DATED: This IS 16 17 18 19 20 21 22 23 24