Document RMpa0Rmqje22kxw1L492Y2na

139 1 over there and say that Dr. Suskind was examined for weeks s in Ulsst Uirginia when it was two weeks, when h a 's been a under stress here For two months, and suggest that this is 4 somehow lesser of a strain than that-- and who is going to 5 talk about BoblesT Now, Judge, this witness is no longer 6 able to endure this* It's time to do something about it. 7 Now, talking about the suggesting that hr. Carr always 5 wins. That's not a question of anything except count. S I've been back here, and we have not won anything whan hr* 10 Carr opposed us. That's a fact. I 've sat in that court 11 room and I have not heard any objections sustained. I did IS hear one the other day. Ule are endeavoring to count them, 13 for whatever use it will be made in the future, ws are 14 counting, just doing a count. But, the only thing we are 15 suggesting is that this witness be given,a chance to rest, IB gat out from under tha strsss of this thing which hr. Carr 17 is intentionally doing. And to say that h s 's cross exam 18 ining a witnsss that was on the stand in direct for two and 13 a half days, or certainly less than three days, and h e 's SO now getting ready to start his twentieth day of cross SI examination by making ths witness read exhibits that SS weren't even touched in direct examination-- and I 'm not the S3 world's greatest trial lawyer, Rex, and I don't purport to 34 be, and I haven't had a tremendous amount of trial axpBri-'' 200 1 s d c b , as you suggest; but, I 've had enough to know that a cross examination was always limited to the scope of the 3 direct. And I found that out a long time ago. But, h e 's 4 doing this deliberately. This is a deliberate ploy to 5 abuse this witness, because ha wants this witness to bend 6 to his will. This is Just a deliberate ploy, and the 7 witness is showing the stress. As a matter of Fact, I 8 assume that maybe some of hr. Carr's remarks indicate that 9 h e 's showing the stress. We want this witness off the 10 stand so that he can recoup, and h e 'll be back. 11 THE COURT: Okay. I am denying the Motion, and I ie am denying it for a number of grounds-- number of reasons. 13 First of all, this-- the first part of your Motion. He's 14 been on the stand a long time. I don't know haw long he 15 was on the stand in West Virgins at Nitro, and I don't know 16 haw long he was on the stand at Comp hearings in '56, and I 17 don't really care, because that's not relevant to what we 18 are doing here. The length of time on the witness stand is 19 something that is dependant on a number of things. The SO main thing it's dependant upon in this particular case, and 21 it's the thing over which he. has control, is compliance 52 with the rules of Court, the rules that I 've articulated, 23 the rules that I 've admonished him about, thB rules that 54 Mr. Heinsman as an officer of the Court on numerous times '* 201 i has explained to him, both all of them in general and at mg a request with emphasis on particular ones such as responding 3 only to the question and how to handle assumptions. And 4 really the length of time that this witness is on the stand \ 5 is something that's within his control. Now, he has so Far 6 by his actions extended the length of that variable, and he 7 appears willing to do that, and he appears Intent on doing e it. And I really am not going to allow this Court to be 9 put in the position of a witness who is deliberately trying 10 to evade the rules of this Court and warp the rules of this 11 Court and obstruct the operation of this trial and then ie claim that he has become exhausted thereby and needs a 13 break from it. That is an absurdity which 1 am not going 14 to allow, I have-- I was advised earlier as to this wit 15 ness' age, I think by you hr, Massif, back here in chambers 16 I think at the time when we had the argument and we talked 17 about his hearing aid that hB doesn't-- that he didn't want IB to wear up to that point in time. You also advised me that 13 he seemed to be getting tired in the afternoon and perhaps SO we could do something about that. And there have been a 21 number of times such as one day this week when I've allowed 22 a very long break in the afternoon. And I've kept an eye 23 on him both in the morning and afternoon. And I don't 24 agree with your observation based on my observations 202 1 looking at him and listening to him and matching him pretty 2 intently. UJhan he has seemed a little slow in the after 3 noon, w e 've taken some breaks. You've noticed, if you kept 4 track of the time as well as you claim to have kept track 5 of the objections, you'll notice that there have been somB 5 times when w e 've even taken some long breaks in the 7 afternoon. There have also bean some times when-- have been a some times whan we have gone for a shorter period and then 9 taken a break in the afternoon. This witness is in good 10 shape; this witness is in control of himself; he is in 11 control of his faculties. I don't see what you claim to ia see as far as this witness. And if, for the sake oF 13 argument, it were there, he has within his power the 14 ability to shorten his tenure on the witness stand and that 15 is by a simple basic compliance with what this Court has 16 repeatedly requested him to do. As far as your insinu 17 ations on the rulings, I don't keep count of who wins how 18 many Motions, because I try to avoid meaningless actions. 19 I try to look at the quality of what I do and not the 80 quantity. And my advice whBn anyone has complained about 21 rulings going against them in this trial as well as others 22 have been that I advise them to look at tha quality of the 23 Motions and the objections they make and not the quantity. 24 And I think that advice applies here also. I am denying S03 1 your Motion. I'm denying It for the grounds stated. And 1 2 think that takes care of what your Motion included. 3 MR. CRAUEN: Mr. Carr conceded tha question on 4 the Doctor's certificate. 5 MR. CARR: I did not concede to the Doctor's cer 6 tificate. 7 MR. CRAUEN: All right. Does the Court want-- I B mean, Mr. Carr is trying to diagnose his condition, and if 3 we give to the Court a certificate by a doctor that his 10 continuation on this stand under these circumstances 11 without a break can be dangerous, injuruious, to his 12 health, is the Court still going to persist in His ruling? 13 THE COURT: 1 don't rule on things before I sea 14 it. If you want to submit something tD me, you are free to 15 do so at any time. But, I'm not going to be making 16 advisory rulings on this or anything else. And I'm not-- 17 wait a second because I haven't fully addressed it yet-- IB MR. CRAUEN: I'm sorry. IS THE COURT: I am not going to rule on something SO that I have not yet sBsn. It Just-- 1*11 take the same SI position on that as I have on the affidavit. If you want ss to submit something, you know, file a copy with the clerk, S3 xerox a copy for ms, and I will take a look at it. The 24 only thing I am going to tell you is I will read whatever * 204 1 you submit. I'm not going to pre-Judge anything; I'm not s going to make an advisory ruling; I'm not going to pre-rulB 3 on something that I have not saan or not hBard. So, you 4 know, if you want to submit something on this or on tha 5 affidavit, or anything b Isb for that matter, go right 6 ahead. 7 MR. CRAUEN: There's the chronology problem. We B probably will have to go to Cincinatti to gat his doctor S and get the affidavit and get it back. He's going home 10 tonight. Do uip offand against the affidavit and bring him 11 back again here Monday morning and when we are giving you IS the affidavitT I don't know why we have to do that, 13 assuming that the affidavit is a strong as I think it can 14 b e . 15 THE COURT: 'Well, you are asking me again to make 15 a judgment and a ruling on something that I have not seen, 17 and I 'm not going to do that. Now, the-- I've ruled on your IQ Motion. And by my ruling, we start court at 3:30 Monday 13 morning. E0 MR. CRAUEN: Well, is the Court going to rule on El the voir dire-- the request for voir dire? Because we are BE going ahead-- S3 THE COURT: I'm working on both of the Motions E4 that you have submitted to me, and when I feel that I havav 205 1 an Order that properly resolves either and both, 1 will 2 file them and you'll get copies of It. 3 M R . CRAUEN: Where can us get this affidavit to 4 you tomorrow? 5 THE COURTi What? Of what? His doctor? 8 MR. CRAUEN: Of the doctor. 7 THE COURT: Drop it off at my house if you want. 8 Leave it in the door if I 'm not home. I 've had a number 8 of-- 10 MR. CARR: You are not saying that the Court 11 would rule ex parte on the affidavit without hearing from 12 us? 13 MR. CRAUEN: I don't do business that way. 14 THE COURT: I'm sorry, I didn't hear what you 15 said. IS MR. CRAUEN: 1 said, "Rax, I don't do business 17 that way." 18 THE COURT: You know, you've dropped things off 18 at my house before. If you want to drop off an affidavit-- 20 MR. CRAUEN: We won't be able to file it tomor 21 row, but we will have it ready for filing. We will send a 22 copy to your house and we will send a copy to Counsel, if 23 that's agreed. 24 THE COURT: You can do whatever you want. BOB 1 MR. CRAUEN: I'm asking for directions as to-- .a THE COURTi I 've allowed-- I have a very VBry 3 liberal policy. If you want to drop something off at my 4 house on any of these Motions for me to read, drop it off 5 and I will read it. And that includes affidavits; I 've 6 received responses that may; I've received briefs that uiay. 7 You know, I'm in the book; drop it off. Sheila knows where B I live, so do a couple of the others, so just drop it off. 9 10 CThus concludes the proceedings had on April 4, 1986.5 11 IS 13 14 15 16 17 IB 19 SO 51 22 53 54 STATE OF ILLINOIS > i ; l SS. COUNTY OF ST. CLAIR > 207 I, TRACY LYBARGER, C.S.R., an Official Court Reporter for the Twentieth Judicial Circuit of the State of Illinois, do hereby certify that I reported in shorthand the proceedings had on the hearing in the above-entitled cause; that thereafter I caused the foregoing to be transcribed into typewriting, which I hereby certify to be a true and accurate transcript of the proceedings had before the Honorable Richard P. Boldsnhsrsh, Judge of said Court. April 1SS6 i STATE HF ILLINOIS ) ) COUNTY OF ST. CLAIR ) 208 I, RICHARD P. BOLDENHERSH, Circuit Judge in and for the Twentieth Judicial Circuit, hereby certify that the above is a true and correct transcript of the proceedings had in the case captioned: FRANCES E. KENNER, ET AL v. MONSANTO COMPANY, Cause No. B0-L-S70, heard on April 4, 1S86. DATED this ______ day of April, 13BB. RICHARD P. BOLDENHERSH, Circuit Judge