Document X87Q5D0M7LoGqyg68GNk790B4

SUPERIOR COURT FOR THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES I ! TRANSWESTERN PIPELINE COMPANY, PLAINTIFF, VS . MONSANTO COMPANY, ET AL, DEFENDANTS. ) ) ) ) ) ) NO. BC 026959 ) ) ) ) r! % DEPOSITION OF R. APRIL 30, 1992 VOLUME 1 EMMET KELLY, M.D. G O RE REPORTING COMPANY 100 NORTH BROADWAY ST. LOUIS, MISSOURI 1-800-878-6750 (314) 241-6750 HARTOLDMON0025700 1 SUPERIOR COURT 2 FOR THE STATE 0 F CALIFORNIA 3 FOR THE COUNTY 0 F LOS ANGELES 4 5 TRANSWESTERN PIPELINE ) 6 COMPANY, ) 7) 8 Plaintiff, ) 9 1 0 vs. ) ) NO. RC 026959 ]1 1 2 MONSANTO COMPANY AND ) ) 1 3 DOES 1 THROUGH 200 ) 1 4 INCLUSIVE, ) 15 ) 1 6 Defendants.) 17 1 8 Depos i t i on of R . EMMET KELLY , M.D., 1 9 taken on behalfof the Plaintiff, at the 2 0 offices of Bryan Cave, One Metropolitan 2 1 Square,in the City of St. Louis, State of 2 2 Missouri, on the 30th day of April, 1992 2 3 before Ronald A. Gore, Registered 2 4 Professional Reporter and Notary Public. 25 IGORE REPORTING COMPANY ST. LOUIS, MISSOURI 2 HARTOLDMON0025701 1 APPEARANCES 0 F COUNSEL: 2 6 3 FOR THE PLAINTIFF: 4 Mr. James P . T a 11o n Shearman & Sterling 6 725 South Figueroa Street 7 Los Angeles, California 90017 e 9 Ms . Dana K. Welch 1 0 She arman & Sterling 1 1 5 5 5 Cal. ifornia Street 1 2 San Francisco, California 13 l 4 M s . Christie A. Patrick 1 5 Senior Counsel 1 6 Enron 1 7 Interstate Pipeline Company 1 8 1400 Smith Street 1 9 Houston, Texas 77251 2 0 FOR THE DEFENDANT MONSANTO COMPANY: 2 1 Mr. Charles F . Preuss 2 2 Bronson, Bronson & McKinnon 2 3 505 Montgomery Street 2 4 San Francisco, California 94111 25 |GORE REPORTING COMPANY ST. LOUIS , MISSOURI 3 HARTOLDMON0025702 1 INDEX 2 J Examination by Mr. T a 1 1 o n 4 5 6 EXHIBITS 7 8 Transwestern Exhibit 1 4 3 9 Transwestern Exhibit 1 4 4 1 0 Transwestern Exhibit 1 4 5 1 1 Transwestern Exhibit 14 6 1 2 Transwestern Exhibit ] 4 7 1 3 Transwestern Exhibit 1 4 8 1 4 Transwestern Exhibit 1 4 9 1 5 Transwestern Exhibit 15 0 1 6 Transwestern Exhibit 1 5 1 1 7 Transwestern Exhibit 15 2 1 8 Transwestern Exhibit 1 5 3 1 9 Transwestern Exhibit 1 5 4 2 0 Transwestern Exhibit 1 5 5 2 1 Transwestern Exhibit 1 5 6 2 2 Transwestern Exhibit 1 5 7 2 3 Transwestern E x h i b i t 1 5 8 2 4 Transwestern Exhibit 1 5 9 2 5 Transwestern Exhibit .16 0 v PAGE 6 64 75 82 86 87 98 1 02 1 05 1 06 111 11 2 1 19 13 1 13 8 145 14 7 15 2 15 8 IGORE REPORTING COMPANY ST. LOUIS, MISSOURI 4 HARTOLDMON0025703 1 Transwestern Exhibit 1 6 1 2 Transwestern Exhibit 1 6 2 i 3 Transwestern Exhibit 16 3 4 Transwestern Exhibit 1 6 4 5 Transwestern Exhibit 16 5 6 Transwestern E x h j. b i t 16 6 7 Transwestern Exhibit 1 6 7 8 Transwestern Exhibit 1 6 8 9 Transwestern Exhibit 1 6 9 1 0 Transwestern Exhibits 1 7 0 & 17] 1 1 Transwestern Exhibit 1 7 2 1 2 Transwestern Exhibit 1 7 3 1 3 Transwestern Exhibit 1 7 4 1 4 Transwestern Exhibit 1 7 5 1 5 Transwestern Exhibit 17 6 1 6 Transwestern E x h j. b i t 1 7 7 17 ]8 19 20 21 22 23 24 25 167 ]. 7 1 181 ]. 8 5 1 93 1 94 1 99 204 207 209 2 13 214 2 17 218 234 238 CORE REPORTING COMPANY ST. LOUIS, MISSOURI 5 HARTOLDMON0025704 iiii 1 R . EMMET KELLY M . D . 2 of lawful age, having been first duly sworn t 3 to testify the truth, the whole truth. and 4 nothing but the truth in the case 5 aforesaid, deposes a n d says in reply to 6 oral interrogatories propounded as follows, 7 to-wit : 8 EXAMINATION 9 QUESTIONS BY MR TALLON : 1 0 Q . Please state your name and address 1 1 for the record? 1 2 A . Robert Emmet, E-m-m-e-t, Kelly, 1 3 K -- e-l-l-y . 1 4 Q What is your address? 1 5 A . 6 6 5 South Skinker, S - k - i-n-k-e-r, 1 6 St. L o ui s, Missouri. 1 7 Q Doctor, you are retired as a 1 8 medical director for Monsanto Company? 1 9 A . Yes, sir. 2 0 Q And you retired in 1974? 2 1 A . November 30, 1974. 2 2 Q And when did you begin your career 2 3 with Mon santo? 2 4 A . January 15, 1936. 2 5 Q When did you assume the position GORE REPORTING COMPANY ST. LOUIS, MISSOURI 6 HARTOLDMON0025705 1 as medical director? 2 A. Sometime in March of 1945. 3 Q. And before March of 1945 what 4 position or positions did you hold? 5 A. Well, I started with the company 6 a s a plant physic ia n a t their large plant 7 i n St. Louis. I stayed there until I went 8 i n the service in 1942. But a long about 9 the end of 1937 or 1938 I had other 1 0 responsibilities at the rest of their 1 1 plants. I was sort of a medical director 1 2 without portfolio,, as it were. And then I 1 3 was in the service from -- as I said, from 1 4 '42 to '45, and -- I don't know whether i t 1 5 was '45 or '46. '46, I think. Anyway, so 1 6 we then organized a new staff department 1 7 called a central medical department and I 1 8 was made medical director, and I remained 1 9 in that position until I retired. 2 0 Q. Are you a licensed physician? 2 1 A. Yes. 22 Q .And were you a licensed physician 2 3 throughout the period that you were 2 4 employed by Monsanto? 2 5 A . Yes, sir. IGORE REPORTING COMPANY ST. LOUIS, MISSOURI 7 HARTOLDMON0025706 1 Q Since leaving Monsan to in 1974 2 have you had a private practi c e ? e .3 A . No, I have not. I've examined 4 some case s and I've done some legal work 5 I was associated on a part-time basis with 6 Barnes -- with the Sutter, S-u-t-t-e-r 7 Industrial Clinic, which was the largest 8 occupational clinic in St. Louis . That was 9 taken over by Barnes Hospital, which is the 1 0 teaching hospital of Washington University, 1 1 and now called Barnes Healthcare. I was a 1 2 consultant for that for about eight years, 1 3 and I stopped that at the beginning of the 1 4 year. 1 5 Q. Of the beginning of 1992? 1 6 A. That's correct. I was also along 1 7 the way medical director, as it were, of 1 8 Consolidated Aluminum Company in St. 1 9 Louis. I gave them about thirty days a 2 0 year. But that was from, oh, roughly '77 2 3 to '85, I think. 2 2 Q . In your answer of a moment ago you 2 3 mentioned that you had done some legal 2 4 work. Could you explain what you meant by 2 5 the term legal work? GORE REPORTING COMPANY ST. LOUIS, MISSOURI 8 HARTOLDMON0025707 1 A . Well, I've examined cases for ? lawyersto see if they had any medical 3 condition that was associated with any 4 exposure, either in the environment or a t 5 their workplace, and I've given depositions 6 and testified in a few cases . 7 Q . Since your retirement from 8 Monsanto, have you served as a consultant 9 to Monsanto? 1 0 A. Well, the first year I was. For 1 1 twelve months I was a consultant, and since 1 2 then, no, I treat them as any other client. 1 3 Q. During the twelve month period 1 4 following your retirement where you served 1 5 as a consultant to Monsanto, .did you 1 6 maintain an office at the Monsanto 1 7 headquarters in St. Louis? 1 8 A. Yes. I used one of thei. r 1 9 offices. But my successor was there, so it 2 0 was a little touchy, I didn't want to step 2 1 on his feet. 2 2 Q. And would you please identify your 2 3 successor? 2 4 A . George Roush , R-o-u-s-h. 2 5 Q. During that twelve month period GORE REPORTING COMPANY ST. LOUIS, MISSOURI 9 HARTOLDMON0025708 1 what type of consulting work did you d o for 2 Monsanto? 3 A. We had a couple of problems a t 4 some of their plants, none of which related 5 to the chemical under discussion today , and 6 I visited those plants and we set up a 7 program for more specific examination of 8 these people. It was our fiber plants. 9 Q. In your answer when you used the 1 0 term the chemical under discussion today, 1 1 were you referring to polychlorinated 1 2 biphenyls? 1 3 A. That's correct. 1 4 Q . And if I use the term PCBs, you 1 5 understand that I mean polychlorinated 1 6 biphenyls? 1 7 A. That's correct. 1 8 Q. You indicated that you had 1 9 examined cases for lawyers with respect to 2 0 exposure in the environment. Were any of 2 1 the cases where you provided those services 2 2 cases of exposure to PCBs? 2 3 A. Either exposure or alleged 2 4 exposure. 2 5 Q . Right . Were any of those cases |GORE REPORTING COMPANY ST. LOUIS, MISSOURI ]. 0 HARTOLDMON0025709 1 cases of exposure or alleged exposure? 2 A.Yes, they were. o 3 Q. And can you state how many 4 occasions you served as a n examiner in the 5 case of exposure or alleged exposure? 6 A. 30, give or take 10 on either 7 side. Now, I examined the records of the 8 majority of these cases, there were 9 probably half a dozen where I examined the 1 0 individuals themselves . 1 1 Q. When you said 30 give or take 10 1 2 on either side, you mean it could be as 1 3 many as 40 or as few as 20? 1 4 A. Probably not as few as 20. 1 5 Certainly between 30 and 40, I'd say. 1 6 Q. In the 30 to 40 instances where 1 7 you provided these services, did you also 1 8 provide testimony in connection with your 1 9 services? 2 0 A . In s me cases, yes . By testimony 2 1 you mean both deposition an d/or trial? 2 2 Q Well why don't we break it down, 2 3 Have you give deposition t estimony a s a n 2 4 expert wi t n e s where your c 1ie n t was 2 5 Monsanto? PORE REPORTING COMPANY ST. LOUIS, MISSOURI 11 HARTOLDMON0025710 1 j! A . Yes I have. 2 Q. And in how many j. nstances have you 3 given deposition testimony as a n expert for 4 Monsanto? 5 A . Well, it was n ' t o n iy Monsanto . 6 You were asking just a b o u t Mon santo? I've 7 given them for other com pan i e s , also. 8 Q I am asking jus t a b o u t Monsanto 9 right now. 1 0 A . I think it's go i n g t o be a guess 1 1 on that. Probably 20 1 2 Q In the cases w h ere you gave 1 3 depositi on testimony a s a n expert where 1 4 your c1i ent was Monsa n t o , were you 1 5 compensa ted? 1 6 A . Yes. 1 7 Q And did you e s t a b 1 i s h a regular 1 8 rate of compensation? 1 9 A . Yes, I did. 2 0 Q What was t h a t ? 2 1 A . It varied, o b v i o u s iy, over the 2 2 years. 11 was two t h ousand dollars a day. 2 3 or two hundred dollars an hour. 2 4 Q . Does that figure cover preparation 2 5 time a s well a s deposition time? |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 12 HARTOLDMONOQ25711 1 A. If there were preparation with a 2 lawyer, it does not cover it. If it was t 3 preparation by myself reading the records, 4 it did cover it. 5 Q. Can you estimate the amount of 6 money that you 'v e earned a s a n expert 7 giving deposition testimony for Monsanto? 8 A. Well, I'll tell you in 1992 it was 9 a thousand dollars. 1 0 Q. What about during the entire 1 1 period where you provided that service? 1 2 A. Oh, gosh. This is a pretty wild 1 3 guess. Fifty to seventy-five thousand, 1 4 probably. 1 5 Q Have you also served as an expert 1 6 witness where your client was Monsanto and 1 7 you test i f i e d at a trial? 1 8 A . Yes, I have. 1 9 Q Were you also compensated for 2 0 appearances as an expert witness for 2 1 Monsanto a t trials? 2 2 A . Yes. Sometimes------one time as a 2 3 fact witness. However, I was compensated 2 4 on whatever the fact rate was. 2 5 Q . Can you state the number of times |GORE REPORTING COMPANY ST. LOUIS , MISSOURI 13 HARTOLDMON0025712 1 that you've appeared a s a n expert witness 2 a t trial for Monsanto? 9 3 A . Ten. That's a n estimate. 4 Q. And you were compensated forthose 5 appearances? 6 A . Yes. 7 Q . Was that a t the same rate or a 8 different rate than the one you just 9 described a moment ago? 1 0 A. Same rate. 1 1 Q. When was the most recent time that 1 2 you appeared as an expert witness at trial 3 3 for Monsanto? 14 A. With PCBs?Concerning PCBs? 15 Q. Well,why don't weestablish 1 6 whether or not you testified at all for 1 7 Monsanto as an expert witness at trial, 1 8 regardless of the specific topic, and then 1 9 perhaps we can narrow it. 2 0 A . What was the question? 2 1 Q . The question is, when was the last 2 2 time that you testified a s a n expert for 2 3 Monsanto a t a trial? 2 4 A . I think it was in November of '93. 2 5 Q . And do you recall the name of that GORE REPORTING COMPANY ST . LOUIS , MISSOUR I 14 HARTOLDMONOQ25713 1 action Doctor? 2 A . 11 was in St . L o u i s c ity Court r e 3 but I don ' t recall t h e n a m e o f i t . 4 Q Was that a c a s e i n v o 1 v i n g 5 polychlor i n a t e d biphe n y 1 s 6 A . Yes, it was. 7 Q Can you iden t i f y t h e names of any 8 other act ions where y o u h a v e a p p e a r e d a s a 9 expert witness for Mo n s a n t o a t trial? 1 0 A . I don't reca 11 a n y . I mean, I m a 1 1 be wrong on that, but I d o n ' t recall an y 1 2 Q You don't re call t h e names of any 1 3 of those cases? 1 4 A . Well, I don' t re ca] 1 -- I've 1 5 given depositions in other cases -- I 1 6 mean, other chemicals, or fibers, but I 1 7 don't recall whether those went to trial or 1 8 not. I don't recall that. 1 9 Q. When I asked you a moment ago how 2 0 many times you had appeared as an expert 2 1 witness a t trial where your client was 2 2 Monsanto you gave me a n answer of 2 3 approximately ten times a s a n estimate. 2 4 Were you giving me a n answer of cases where 2 5 you testified as a n expert a t trial related (GORE REPORTING COMPANY ST. LOUIS, MISSOURI 15 HARTOLDMONOQ25714 1 to PCBs or related to all subjects? 2 A . They were mostly PCBs. I was a t 3 fact witness in a trial with a n 4 agricultural chemical . 5 Q. Is the number of times that you 6 have appeared as a n expert witness a t trial 7 for Monsanto greater than ten if you 8 include cases that did not deal with PCBs? 9 A. I don't think so. 1 0 Q. And when I asked you about the 1 1 number of times that you had appeared as an 1 2 expert at depositions for Monsanto, you 1 3 told me that it was approximately 20 1 4 times. Is the number greater than 20 if 1 5 you include cases that dealt not only with 1 6 PCBs, but also with other issues? 1 7 A. Might be 25. 1 8 Q. You indicated that you had served 1 9 as a fact witness for Monsanto in addition 2 0 toappearing for Monsanto as an expert 2 1 witness, correct? 2 2 A. That's correct. 2 3 Q . Can you state the number of 2 4 occasions where you have provided 2 5 deposition testimony as what you deemed to |GORE REPORTING COMPANY ST. LOUIS, MISSOUR I 16 HARTOLDMON0025715 1 be a fact witness for Monsanto? 2 A . One. 3 Q. What case was that? 4 A. 11 was a case a t Charleston, West 5 Virginia on 2,4,5 T, which is a herbicide 6 chemical . 7 Q. Have you ever appeared as a fact 8 witness for Monsanto in a case where the 9 subject matter of the case addressed PCBs? 1 0 A. No, sir. I do not recall. ] 1 Q. Have you ever appeared as a trial 1 2 witness for Monsanto where your 1 3 responsibility was as a fact witness rather 1 4 than an expert witness? 1 5 A. I just said that one. 1 6 Q. I'm sorry. I was asking about 1 7 depositions earlier. Let me clarify the 1 8 question, in case I was not being clear. 1 9 On how many occasions did you appear at 2 0 depositions as a fact witness for Monsanto? 2 1 A . One, I be 1 i eve. 2 2 Q Okay. And on how many o 2 3 have you appeared as a fact w i t n e 2 4 trial for Monsanto? 2 5 A . One. IGORE REPORTING COMPANY ST . LOUIS , MISSOURI 17 HARTOLDMONOQ25716 1 Q . 13 it the same case? 2 A. Yes. 3 Q. And that's the case in Charleston, 4 West Virginia to which you've referred? 5 A . That ' s correct . 6 Q. Where you have givendeposition 7 testimony for Monsanto as a fact witness in 8 the past, were you compensated for the time 9 that you invested in the deposition and its 1 0 preparation? 1 1 A. There was only one. 1 2 Q. On that occasion were you 1 3 compensated? 1 4 A . Yes. 1 5 Q. At what rate were you compensated? 1 6 A . I think m y rate wasn't as high at 1 7 that time. that was about five or seven 1 8 years ago. I t h ink that was fifte e n 1 9 hundred dollars a day, I believe. 2 0 Q. And did that cover preparation as 2 1 well as deposition time? 2 2 A . Yes. 2 3 Q. Now, did you meet with Mr. Preuss 2 4 before your appearance here today? 2 5 A . Yes. |GORE REPORTING COMPANY ST. LOUIS, MISSOUR I 18 HARTOLDMON0025717 1 Q Did you me et with him yesterday? 2 A . Yes. t 3 Q Did you me e t with him on any 4 occasion other than yesterday? 5 A . No, sir. 6 Q Are you be ing compensated for your 7 appearan ce here tod ay? 8 A . I will be. I hope. 9 Q - You antici pate receiving 1 0 compensa t i o n ? 1 1 A . Yes. 1 2 Q For the pr eparation time and for 1 3 the d e p o sition time p 1 4 A . That's cor r e c t . 1 5 Q And at wha t rate do .you anticipate 1 6 being compensated? 1 7 A . The expert witness of two hundred 1 8 dollars an hour. 1 9 Q Just for a point of c 1 a r i fication 2 0 Doctor, when you've appeared as an expert 2 1 witness, what has b e e n your area of 2 2 expertis e , if it's been one area. or is it 2 3 more than one area? 2 4 A . Well, it's occupati o n a 1 i llnesses 2 5 Q Within the category o f |G 0 R E REPORTING COMPANY ST. LOUIS, MISSOURI 19 HARTOLDMONOQ25718 1 occupational illnesses have you appeared a s 2 an expert witness where your expertise was 0 3 more narrowly defined? 4 A . Oh, yes. I've appeared in cases 5 where a solvent was involved, I've appeared 6 in cases where asbestos was involved . I've 7 appeared in one case for the plaintiffs 8 where diesel oil was involved. Rut did you 9 ask me about Monsanto only? 10 Q. I hadn't, no. I was asking simply 1 1 what your area of expertise was, more 1 2 narrowly speaking than occupational 1 3 illness. 1 4 A. Yes. Whatever situation arose 1 5 that I felt came under my experience and 1 6 training. 1 7 Q. To your knowledge, were 1 8 transcripts made of your testimony in each 1 9 of the occasions where you testified as an 2 0 expert at trial and at depositions? 2 1 A . Yes, sir. 2 2 Q . Do you maintain copies of those 2 3 transcripts? 2 4 A . No, I don't. 2 5 Q . Do you know if Monsanto maintains |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 20 HARTOLDMONOQ25719 1 copies of those transcripts? 2 MR. PREUSS : As to those cases in 3 which Monsanto was involved, you mean? 4 MR. TALLON : Well, any, but 5 presumably those would be the ones you 6 would be interested in. 7 A. Yes. I presume they do, because 8 I've asked them for a transcript and they 9 come up with it. 1 0 Q. Where you are asked to appear as 1 1 an expert witness by a client other than 1 2 Monsanto, do you alert Monsanto that you 1 3 have been so requested? 1 4 A . No, sir. 1 5 Q. Have you discussed the deposition 1 6 being taken today with anyone other than 1 7 Mr. Preuss? 1 8 A. I don't think so. 1 9 Q. Did you discuss the deposition 2 0 being taken today with Mr. Biseline of 2 1 Monsanto? 2 2 A . No, sir. 23 Q Do you k n o w who Mr. Biseline is? 2 4 A . I know him quite well. 2 5 Q Doctor, d o you recollect ever |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 21 HARTOLDMON0025720 1 i! having served as a witness at a trial in a | case involving PCBs where Monsanto lost the 2 3 case? ( 4 A. Yes. 5 Q. And can you identify that case or 6 those cases? 7 A . Well, there was one a t Broken Axe, 8 Michigan -- yes, Michigan. I don't know 9 the name of the case, but that's where - 1 0 they lost that one. I'm not sure about the 1 1 others. They've settled some, and they 1 2 don't tell me what happens. But there may 1 3 have been others. 1 4 Q. And what was the subject of your 1 5 testimony in the action in Broken Axe, 1 6 Michigan? 1 7 A . As to my b e 1 i e f w h e t h e r the PCBs 1 8 could pos s i b 1 y cause any ill -effect on the 1 9 health of the dairy f a r m e r . And i t was 2 0 accepted that he was quite w ell. but he was 2 1 awarded s one amount o f money because o f 2 2 fear he would get sick. 2 3 Q. Have you ever testified in a case 2 4 where Monsanto was the plaintiff? 2 5 A . No. GORE REPORTING COMPANY ST. LOUIS, MISSOURI 22 HARTOLDMON0025721 1 Q Doctor are you the beneficiary of 2 any pension from Monsanto? 3 A . Yes. 4 Q . Do you own Monsanto c o m m o n stock? 5 A . Well, it's a question of w h ether I 6 own it. I have some in a trust . 7 Q. Do you own anysecurities? 8 A . Yes. 9 Q. Of Monsanto? 10 A. Well, yes. I mean, if -- of 1 1 which I'm a trustee . 1 2 Q. You're the trustee of a tru s t 1 3 which holds securities of Monsanto? 1 4 A . That's correct. 1 5 Q And do you know the a p p r o x i mate 1 6 value o f those s ecurities? 1 7 MR. PREUSS: That's not r e1 e v a n t . 18 MR . TALLON : I think it is. You 1 9 know. I ' m going to seal -- not seal , but 2 0 we'll t r e at the transcript as 2 1 c o n f i dent i a 1 . 2 2 A . $70,000 .00, give or take 10 2 3 thousand. 2 4 Q Do you own any stock option s which 2 5 are a t this point unexercised? [GORE REPORTING COMPANY ST. LOUIS , MISSOURI 23 HARTOLDMONOQ25722 1 A . No, sir. 2 Q. Are you the beneficiary of any 3 retirement benefit plan other than a 4 pension plan? 5 A. Well, there is a group insurance 6 payment on my life in the amount of 7 thirty-seven thousand dollars. 8 Q . What about a retirement medical 9 plan, are you the beneficiary of any 1 0 retirement medical plan? 11 A. I forgotthat. That's a 1 2 supplementary Medicare plan which I think 1 3 after a certain deduction you are insured 1 4 up to fifty thousand dollars over a 1 5 life-time, which is twohospital 1 6 admissions. 1 7 Q. Are you the beneficiary of any 1 8 other retirement benefit plan from 1 9 Monsanto? 2 0 A. Retirement, no. 2 1 Q. Are you the beneficiary of any 2 2 other benefit plan from Monsanto? 2 3 A . I'm invited to the oldfolks ' 2 4 dinner . I get the company magazine. 2 5 Q . Other than those two? IGORE REPORTING COMPANY ST. LOUIS, MISSOURI 24 HARTOLDMON0025723 1 A . TThhaatt''ss iitt.. 2 Q . All right . Doctor, you served as t 3 medical director of Monsanto for a number 4 of years, I'm interested in learning from 5 you your responsibilities while you held 6 that position. And I understand that the 7 position covered a significant number of 8 years, but could you describe for me your 9 responsibilities as medical director during 1 0 the period you held that job? 1 1 A. Yes. The primary duty was to see 1 2 that our plants were operated in such a 1 3 manner that no illnesses, occupational 1 4 illnesses would occur in our work force. 1 5 Number two, I had the responsibility of 1 6 ascertaining toxicological information on 1 7 our raw materials and finished products. 1 8 Three, I was responsible for setting up an 1 9 industrial hygiene program in our plants. 2 0 Four, I was responsible for the safe 2 1 handling data, toxicological data that 2 2 would be listed in our bulletins or our 2 3 labels. Five, I was responsible for 2 4 answering any questions that came to 2 5 Monsanto concerning the health effects of IGORE REPORTING COMPANY ST . LOUIS , MISSOURI 25 HARTOLDMONOQ25724 any of our chemicals whether these were ?. from a worker, other company or a private J physician. 4 Q I n connection with y our 5 responsib i 1 i ties to ensure no occupational 6 illnesses i n Monsanto plants, did you ever 7 undertake t o make any changes in or 8 recommend changes in the operations of the 9 Krummrich plant? 1 0 A. I certainly made recommendations 1 1 about areas of ventilation. I may have 1 2 recommended changes in using a solvent, a 1 3 different solvent for -- in their 1 4 operations. 1 5 Q. Did you ever recommend making any 1 6 operational changes in the operations of 1 7 the Krummrich plant, as that plant was a 1 8 producer ofPCB-based production? 1 9 A . Would you tell me what you mean by 2 0 operational? 2 1 Q . I mean, when I use the term 2 2 operational, the methodology used for 2 3 manufacture of products. 2 4 A . No, sir. 2 5 Q. Did you ever recommend anychanges |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 26 HARTOLDMONOQ25725 1 be made for safety reasons a t the Krummrich 2 plant a s the operations of that plant i 3 related to PCBs? 4 A. Well, now, safety -- if by safety 5 you mean physical injuries, that was -- 6 that is the respons ib i 1 i t y of the safety 7 departme n t , they 're the ones that put up 8 guards a n d worried about fire and that s 9 of stuff. The medical department was 1 0 concerned about the presence of dust, 1 1 fumes, exposure to chemicals. I did not 1 2 make -- were you talking about PCBs, now? 1 3 Q. Yes. 1 4 A. I did not make any operational 1 5 changes in operational status, although I 1 6 certainly, over the years, made 1 7 recommendations about ventilation, and 1 8 whether or not workers should wear 1 9 respirators at various points. 2 0 Q. Do you recollect having made any 2 1 recommendations with respect to the 2 2 ventilation of fumes associated with the 2 3 manufacture of PCB products at the 2 4 Krummrich plant? 2 5 A . I don't recall specifically at all ORE REPORTING COMPANY ST. LOUIS, MISSOURI 27 HARTOLDMON0025726 1 whether I did or not. 2 Q. Do you recal 1 in generalthat you 0 3 did make such a recommendation , but don't 4 remember specifically what the 5 recommendation was? 6 A. I'm not even sure whether I made 7 the recommendations or not. We treated PCB 8 as another department. 9 Q. Do you recollect having made a 1 0 recommendation with respect to the 1 1 ventilation of fumes at the Krummrich plant 1 2 without specific regard to PCBs ? 1 3 A. I'm sure I have over the 35 years 1 4 I was medical director, but I'm -- I can't 1 5 be specific about it. 1 6 Q. Do you recall having made any 1 7 recommendations with respect to the PCB 1 8 operations of the Krummrich plant relating 1 9 to exposure, as you used that term in your 2 0 answer a few moments ago? 21 A. I can'trecall specifically, sir. 2 2 Q. Do you recollect having made any 2 3 recommendations that workers whose jobs 2 4 were associated with PCB product production 2 5 a t Krummrich wear respirators? ORE REPORTING COMPANY ST. LOUIS, MISSOURI 28 HARTOLDMONOQ25727 1 A . Wei l , I c e rtainly may have. For 2 example, if a p e r s o n is tea ring down a pump 3 or there is a leak where m a teri a 1 is hot. 4 we have recomm e n d a t ions all o v e r the 5 chemical plant if you have the opportunity 6 to inhale fumes, wear a n organic 7 respirator. I mean, that's a standard 8 recommendation for the plant. If there 9 were a leak where hot PCB came out on the 1 0 floor and the worker were exposed to it 1 1 cleaning it up, he obviously fell under 1 2 this recommendation, that recommendation 1 3 obtained as far as he was concerned. But I 1 4 can't tell you I wrote down a t 5 recommendation that workers should wear 1 6 respirators if there are leaks in the PCB 1 7 department. 1 8 Q. Do you remember the first time you 1 9 made any recommendation with respect to the 2 0 use of respirators to avoid fumes at the 2 1 K r u m m r i c h plant? 2 2 A . Probably the first time I went 2 3 there i n 1938, or some thing like that. 2 4 Q . When you used the w ords "tear down 2 5 a pump" in your last a n s w e r , were you |G 0 R E REPORTING COMPANY ST. LOUIS, MISSOURI 29 HARTOLDMON0025728 1 referring to the disassembly of a pump? 2 A. Well, taking it out of the line. t 3 Not -- then the pump would be taken over 4 to the machine shop where it would be put 5 under a hood and disassembled . But tearing 6 down meaning taking out of the production 7 line, that's what I meant. 0 (Discussion off the record). 9 MR. TALLON: You mentioned, Dr. 1 0 Kelly, that one of your responsibilities as 1 1 medical director was to have responsibility 1 2 fortoxicological information on raw 1 3 materials and finished products. Could you 1 4 explain, please, how you discharged that 1 5 responsibility? 1 6 A. Yes. Let's start with raw 1 7 materials. Obviously, we would ask the 1 8 supplier wh a t he knew about i t . I f h e 1 9 didn't have i t , we would look it u p ourself 2 0 in the vari o u s publications that may or may 2 1 not list the material. If that proved 2 2 negative, if we didn't find anything out, I 2 3 would talk to the confreres that I knew in 2 4 the chemical business and ask them what 2 5 they know about it, if they've been using GORE REPORTING COMPANY ST. LOUIS, MISSOURI HARTOLDMONOQ25729 1 j it and what they know about it. And then 2 finally in a few rare cases we may do some 3 toxicological work of our own on it. Not 4 very often. Most of the time we did it on 5 our own products rather than products from 6 the suppl ier . A s far as the finished 7 information is concerned, information on 8 the finished goods, it depends on the 9 product. If the product were a "me, too" 1 0 product, in other words, it was made by 1 1 DuPont for five years and we started making 1 2 the same product, I would first see if 1 3 there were any information in the published 1 4 literature, whether the government knew 1 5 anything about it, then I would call the 1 6 medical director of DuPont and say "George, 1 7 we're going to make this, what do you know 1 8 about it? Have you had any trouble with 1 9 it?" And he would -- that flow of 2 0 information was quite free, there was no 2 1 competition as far as the health aspects of 2 2 material was concerned, because if the 2 3 situation were reversed and he was going to 2 4 -- if DuPont was going to make a product 2 5 that Monsanto had made for five years and GORE REPORTING COMPANY ST. LOUIS, MISSOURI 31 HARTOLDMON0025730 1 he'd call me, I'd tell hi m what I knew 2 about it. If there were no information 3 obtained by* those routes , we would return 4 some amount of toxicologi cal information . 5 That varied in extent fro m -- depending on 6 the use the product -- t o which it would 7 be put. 8 Q. Can you explain, Doctor, how the 9 use to which a product wa s to be put was a 1 0 variable in ascertaining toxicological 1 1 information? 12 A . Sure. If it were going to be a 1 3 food product or an ingredient of a food 1 4 wrapper, you had to do quite considerable 1 5 work. If the material were an industrial 1 6 chemical that were going to be used, say, 1 7 in a paint, you would only have to have a 1 8 minimum amount of information on it, 1 9 because the paint is not supposed to be 2 0 used at an elevated temperature, it's not 2 1 supposed to be ingested. If the material 2 2 were a product that was going to be used a t 2 3 a n elevated temperature and there is a 2 4 chance that a worker would -- or a 2 5 customer' s worker would inhale the fumes a t |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 32 HARTOLDMONOQ25731 1 elevated temperatures , we would run tests 2 on -- ventilation tests on the material a t 3 elevated temperatures . 4 Q. In the past couple of answers 5 you've used terms like the one you just 6 used now, "we would runtests." Are you 7 describing a situation where Monsanto does 8 toxicological testing a t its own 9 laboratories? 1 0 A. They do now. But that laboratory 1 1 started about 1975, and I'm not sure how 1 2 much testing they do there. We used two 1 3 local laboratories for the routine testing 1 4 of the material, non-extensive testing. We 1 5 used outside laboratories, some university 1 6 laboratories and some industrial 1 7 laboratories for the more advanced tests. 1 8 We did not have our own testing laboratory. 1 9 Q . Before 1975 toxicological testing 2 0 was done by vendors to Monsanto, 2 1 independent labs? 2 2 A . Vendors? I don't -- 2 3 Q . Independent labs? 2 4 A . Yes. 2 5 Q . Was Industrial Biotest a |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 33 HARTOLDMON0025732 1 laboratory used by Monsanto during the 2 peri o d you served a s medical director? t 3 A . Yes, it was. 4 Q. Were you personallyresponsible 5 for ordering toxicological studies or 6 reports on either raw materials or finished 7 product a t Monsanto? 8 A . Yes. 9 Q. And under what circumstances would 1 0 you order such a study? 1 1 A. Well, if I saw the need for it. 1 2 What we tried to do is have a minimum of 1 3 toxicology work carried out on every 1 4 product that we advertised or mentioned in 1 5 adevelopment bulletin. Wemight say we've 1 6 got product X here, these are its physical 1 7 and chemical characteristics, maybe you can 1 8 use i t in your business. I mean, I ' m 1 9 s i m p 1 ifying the four page bulletin. Then 2 0 we would run a minimum of toxicology o n 2 1 that that would include eye irritati on, to 2 2 see i f it could be absorbed through the 2 3 skin. the minimum lethal LD 5 0, which is 2 4 the standard test for oral toxicity, and 2 5 then inhalation of material a t saturated GORE REPORTING COMPANY ST . LOUIS , MISSOURI 34 HARTOLDMONOQ25733 1 room temperature . That was a minimum. 2 Q And what doe s the term L D 50 3 signify? 4 A . You give the mater i a 1 orally t o 5 two speci e s of -- o n e or t wo species o f 6 rodents , one a rodent , u s u a 1 1 y , and the 7 other a r abb it, and calcula t e what dos e 8 kills hal f o f them That's the lethal d 9 for 50 p e r c e n t of the a n i m a 1 s . 1 0 Q And what f a c tors d id you use t o 1 1 determine w h ether a m i n i m u m of the 1 2 toxicological work should be done on a new 1 3 product? 1 4 A. The use to which it was going to 1 5 be put, as well as the potential exposure 1 6 to commerc i a 1 customer's work e r s . If it 1 7 were going t o be us e d in a cl o s e d s y s t e m 1 8 where the only expo sure would be if there 1 9 were leaks o r holes , t h a t was a lot 2 0 different than the open opera t i o n . 2 1 Q. In order to -- for you to make a 2 2 judgment as to whether or not to conduct 2 3 minimum toxicological work or more than 2 4 minimum toxicological work, did you solicit 2 5 a n explanation from businessmen a t Monsanto |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 35 HARTOLDMONOQ25734 1 as to the proposed use of a product? 2 A . Oh, yes. 3 Q . Was there a formal system for 4 soliciting that information in place during 5 your service? 6 A. Yes. It went in place formally, I 7 guess, sometime in the late '50's or early 8 '60's. Eefore that it was a sort of 9 informal -- I guess i n f o r m a 1 basis . B u t w e 1 0 were very -- we we r e on the same camp u s a s 1 1 our research depart m e n t and as our 1 2 development people a n d we s a w t h e s e p e opl e 1 3 all the time. and w e were on top o f it 1 4 pretty much. I don t think much w e n t b y -- 1 5 in the informal sys t e m went by u n n otic e d . 1 6 Q. When I ask e d you t h e q u e s t i o n 1 7 asked you if b u s i n e s s men had given you 1 8 information about the proposed use of a 1 9 product. In fact, during the period that 2 0 the informal system was in place was there 2 1 a generic type of person at Monsanto who 2 2 gave you information about the proposed use 2 3 of a product? 2 4 A. Could be the research scientist 2 5 associated with it, it could be the |GORE REPORTING COMPANY ST. LOUIS , MISSOURI 36 HARTOLDMON0025735 1 j development man. Usually, a product goes 2 from a r e s e arch bench into a d e v e 1 o p m e n t 3 g r o u P in w h ich these p e o p 1 e d e c i d e where do 4 you t h ink this c o u 1 d be us e d o u t i n the 5 real world. And then when the y f i n d that 6 n i t c h , then it g oes to the s a 1 e s 7 department. So we would have the 8 toxicological requests on the information 9 about the product before it got to the 1 0 sales department. 1 1 Q. Could you describe in brief, 1 2 Doctor, how the informal system which you 1 3 have referred to worked before the 1 4 establishment of a more formal system? 1 5 A. Yes. The development man would 1 6 come in and say we've got product X, this 1 7 is the chemical, we're thinking of using it 1 8 as a corrosion inhibitor, we're going to 1 9 put this i n o i 1 t o keep it from c o r r o d i ng 2 0 the e n g i n e s I ' d s ay, "You m e a n mot o r 2 1 oil ? " He ' d s a y "Ye s." "An a u t o m o b i 1 e 2 2 m e c h a n i c w i 11 ge t h is hands s m e a r e d up with 2 3 oil with t h i s i n i t ? " And they ' d s a Y Y e s . 2 4 I'd say well, we'd better check some oral 2 5 toxicity -- I mean, some dermal toxicity |GORE REPORTING COMPANY ST. LOUIS , MISSOURI HARTOLDMON0025736 1 as well as oral toxicity. And if it were 2 going to be a wide-spread skin c o n t a c t in a 3 widespread -- i n a wide -- w ell. 4 widespread a m o u n t o f people. w e m a 5 tests on humans t o see if it w a s a 6 irritant or not. 7 Q. During the period that the 8 informal system which you have described 9 was in place, did you establish any 1 0 practice for soliciting particular kinds of 1 1 information from development men at 1 2 Monsanto? 13 A. Well, we got them all the time. I 1 4 don't think that we had any specific 1 5 pattern. I mean, I knew all these people, 1 6 and it seemed to work. 1 7 Q. What I'm wondering. Doctor, is 1 8 what kinds of information you solicited in 1 9 order to make ajudgment about whether or 2 0 not to order a toxicological study? 2 1 A. Oh, well, regardless of the 2 2 proposed use, anything we were going to 2 3 send out to a customer, if we were to send 2 4 out the second sample to a customer, we 2 5 would have toxicological information on GORE REPORTING COMPANY ST. LOUIS, MISSOURI 38 HARTOLDMONOQ25737 it. I mean, we had the mini mum o n it. We 2 d i dn ' t send it out on the fi r s t o n e because 3 -- i f you sent a quart out o f a s ample, we 4 get all sorts of -- you k n o w, you get five 5 thou sand inventions from a bunch of 6 r e s e arch chemists. But i f we advertis e d it 7 -- not advertised it, but brought it to 8 people's attention in a development 9 bulletin, we had toxicological information 1 0 on it in the informal system as well as the 1 1 form a 1 s y s t e m . I f -- as I said. w e got 1 2 r e q u e s t s for a numb er of samples , a n d any 1 3 r e p e at s a m p 1 e s that looked like t h i s 1 4 prod u c t might be a winner, or it m i g h t be 1 5 useful, we ran toxicological^ information on 16 it . 1 7 Q. I'm not sure I understood that 1 8 answer completely. Doctor. You're drawing 1 9 a distinction between second samp]e 2 0 products that you send to a particular 2 1 customer and products where you get many 2 2 requests for samples, is that the 2 3 distinction you're drawing? 24 A. Yes. If it looked like it was 2 5 going to -- if it'sjust for one person up |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 39 HARTOLDMON0025738 1 in Seattle that heard that Monsanto was 2 doing this kind of work and wrote in and 3 said do you* have any of product X Y, send me 4 a quart of it, if that's the last we heard 5 of it, we w o u1d n ' t run toxicological 6 information on that, as a rule. Now, it 7 was a moving target over the years . I 8 mean, we were doing more toxicological work 9 in the' 7 0 ' s than we were in the ' 3 0 ' s . 1 0 Q. And what was the distinguishing 1 1 characteristic which would cause you to 1 2 order a toxicological study as between one 1 3 distribution of a sample and mutiple 1 4 requests for samples from prospective 1 5 customers ? 1 6 A. Say that again? 17 Q. Sure. I'm wondering how you -- 1 8 what determination you made to call for a 1 9 toxicological study. You've indicated that 2 0 if just one person wanted a sample, that 2 1 was not really enough. But when did it 2 2 become enough to order toxicological work? 23 MR. PREUSS : Well, his testimony 2 4 is what it is, I o b j e c t to the 2 5 characterization o f his testimony. GORE REPORTING COMPANY ST. LOUIS, MISSOURI 40 HARTOLDMONOQ25739 1 A . Well, I c a n ' t say that i f w e had 2 1 5 - - I t h ink that was fie x i b 1 e I f the 3 d e v e 1 o p m e n t man said looks like t h ere i s 4 quit e a bit of Interest i n this P r o d u c t , 5 well , fine. then we would r u n to x i c o 1 o g i c 6 info rmation on it. But I d idn ' t h a v e a 7 rule if it's gets up to nine we run it. 8 MR. TALLON: All right. That's 9 what I was looking for. Thank you. Would 1 0 you describe how the formal system changed 1 1 the system that you've just described as 1 2 the informal system? 1 3 A . Well , i t made it more -- i t 1 4 tightened i t up to make s ure there were 1 5 lapses in i t , that we had a system that 1 6 product were mentioned in any of our 1 7 development bulletins -- I mean, they may 1 8 have a column in a development bulletin, 1 9 "What's new at Monsanto." "Well, we've got 2 0 this product, X,Y,Z, which has these 2 1 physical characteristics, can you use it?" 2 2 If it got in that, we did it. We went back 2 3 to the situation of the two requests for 2 4 samples, that was put in there . If we had 2 5 any history of irritation or ill-effects |GORE REPORTING COMPANY ST. LOUIS, MISSOURI HARTOLDMON0025740 1 | from our research chemists, we ran it. 2 There may have b e e n o t h e r c r i t e r i a , but I 3 think these a r e the m a i n ones. 4 Q . When t h e formal system was 5 e s t a b 1 i s h e d in e i t h e r t h e late '50' s or 6 early ' 60 ' s , w e r e any p r o t o c o 1 s o r 7 g u i d e 1 i n e s w r i t t e n in o r d e r to d e s c r i b e the 8 system? 9 A . Wei 1 , we had what we call e d a Form 1 0 2 0 1 and 202, and that really descr .i bed what 1 1 w e needed to get from the -- that was 1 2 distributed when we put that in. And I 1 3 don't at present remember what the 1 4 difference between 201 and 202 was. When 1 5 we put that in we sent it around to all the 1 6 research laboratories, all the lab 1 7 development groups in the company and said 1 8 this is what we're doing. 1 9 Q. And what, in general, did Form 201 2 0 and Form 202, do without regard to any 2 1 distinction between those two forms? 2 2 A. You mean what did it do, what did 2 3 it ask for? 2 4 Q. What were those forms intended to 2 5 accomplish? |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 42 HARTOLDMONOQ25741 1 A . What they were intended to 2 accomplish was to give us the phys ical 3 characteristics of the material, what the 4 estimate of potential use was and the 5 manner in which the material should be used 6-- could be used, what they knew about it. 7 Q . Was a completed Form 201 or Form 8 202 to be returnedto the medical 9 department? 1 0 A. Well, they completed the first 1 1 part. In other words, we would send them 1 2 the blank 201 or 202. They would fill in 1 3 the stuff they were supposed to put in, 1 4 physical characteristics,solid, 1 5 temperature, volatility, vapor pressure, 1 6 all that stuff. There was a space for 1 7 potential use, or estimated use. And then 1 8 we would then have a section on toxicology 1 9 that after we ran it we'd send it back to 2 0 them for inclusion in any bulletin that 2 1 they might be writing . 2 2 Q. Was a completed Form 202 or 201 2 3 required on any product that appeared in 2 4 the development bulletin? 2 5 A. Yes. (GORE REPORTING COMPANY ST. LOUIS, MISSOURI 43 HARTOLDMONOQ25742 1 QQ . Was a completed Form 201 or 202 2 red on any ither product? 3 A . Well, i may -- yes, I think it 4 was. I mean, if we s tarted manufacturing a 5 u c t that somebody e1 se had made, but 6 new to Monsanto and it wasn't going to 7 n a development bulletin, go right into 8 1 e s bulletin, a 2 0 1 and 202 would have 9 e f i lied out on that one. 1 0 Q Is the cat e g o r y of products you 1 1 just described what you earlier referred to 1 2 as a "me, too" product? 1 3 A. The one that was manufactured by 1 4 somebody else before, yes. 1 5 Q. Yes. Was the completion of a Form 1 6 201 or 202 required for any Monsanto 1 7 product other than one appearing in the 1 8 development bulletin or a "me, too" 1 9 product? 2 0 A. Gosh, I don't know how -- well, 2 1 certainly if we were making a n insecticide 2 2 it wouldn't be -- or a herbicide, it would 2 3 not be in a development bulletin until we 2 4 had all the information about it. I mean, 2 5 we would know how good it was a s a n GORE REPORTING COMPANY ST. LOUIS, MISSOURI 44 HARTOLDMONOQ25743 1 insecticide, what crops it should be used 2 on. And none of that was put in a 3 development 'bulletin because we knew that 4 the marketing time for that might be one or 5 two years down the road, oreven 1 o n g e r 6 than that. So it would be required on 7 that. That would not be in a development 8 bulletin. There may be other ones, but I'm 9 not sure. 1 0 Q. Did you participate in the 1 1 drafting of Forms 201 and 202? 1 2 A. Yes. The medical department -- 1 3 they were medical department forms. 1 4 Q. Did someone in your department 1 5 have particular responsibility for putting 1 6 those forms together? 1 7 A. Elmer Wheeler did. 1 8 Q. Do you know whether Mr. Wheeler 1 9 was assisted by anyone in his work in 2 0 creating those forms? 2 1 A. Well, he might have had one of our 2 2 toxicologists a s a consultant on it. 2 3 Q. But you can't think of a name 2 4 right now of someone you know helped him in 2 5 that process? IGORE REPORTING COMPANY ST. LOUIS, MISSOURI 45 HARTOLDMONOQ25744 1 A . Well, i t could be D r . Hunt, i t 2 could be Dr . L e v i n s k s a s . Hunt is d e a d , 3 Wheeler i s d e a d . Lev insks as is r e t i red. 4 One of those. i t could be Levin s k s a s , c o u 1 d 5 have. 6 Q Do y o u know. Dr. Kelly , w h e ther 7 there was any i n structions a c c o m p a n y i n g the 8 Form 201 or 2 0 2 as to thei r use 7 9 A . Well, s ure. I mean, w e -- I 1 0 think we had a letter that e x p 1 a i n e d the 1 1 use of it . W e j ust wouldn ' t pu t one .i n the 1 2 mail and send i t out to t h is d e velopment 1 3 man. We' d tell them what the p u r p o s e of i t 1 4 was and how he should fill it o u t and to 1 5 whom he should send it back and when he 1 6 could expect an answer. I'm sure there was 1 7 a letter of that type. 1 8 Q. Do you know. Dr. Kelly, whether 1 9 there were any internal guidelines or 2 0 protocols within the medical department to 2 1 assist in the evaluation of a Form 201 or 2 2 202 completed by a development employee of 2 3 Monsanto? 2 4 A . No. Either our toxicologists or 2 5 m v s e1f looked a t the form. 11 wasn't ;GORE REPORTING COMPANY ST. LOUIS, MISSOURI 46 HARTOLDMON0025745 1 s tructured any more than that. 2 Q. Are you aware that Monsanto sold a 3 product known as Turbinol 153? 4 A. Yes. 5 Q Do you r e c a 1 1 h a v i n g ever seen a 6 e t e d Form 2 0 1 o r 2 0 2 that r e1 a t e d to 7 Turbinol 153? 8 A. No, I do not recall. 9 Q. Do you recall having ever seen 1 0 either of those two forms completed for a 1 1 product known as OS-81? 1 2 A. I know we had toxicological 1 3 information on OS-81, but I do not recall 1 4 at this time whether we had a form, and I 1 5 don't know whether OS-81 was developed 1 6 before our 201, 202 program started. 1 7 Q. Do you recollect. Dr. Kelly, ever 1 8 having seen a Form 201 or 202 completed 1 9 with respect to a product known as MCS-353? 2 0 A. I don't know. 2 1 Q. Dr. Kelly, if a Form 201 or Form 2 2 202 had been completed with respect to a 2 3 product, the name of which later changed, 2 4 would an additional Form 201 or 202 be 2 5 required? [GORE REPORTING COMPANY ST. LOUIS, MISSOURI 47 HARTOLDMONOQ25746 1 A. No. If the only change was a 2 name, no. 3 Q. At* the time you commenced work a t 4 Monsanto were you aware of any 5 toxicological studies relating to products 6 where their constituent elements of the 7 products included PCBs? 8 A. You mean before I came with 9 Monsanto? 1 0 Q. As of the time that you arrived 1 1 were you aware of any studies that dated 1 2 before the time you arrived? 1 3 MR. PREUSS: On PCBs? 1 4 A. On PCBs? 1 5 MR. TALLON: Yes. 1 6 A. The day I walked into Monsanto at 1 7 the plant. A, did I know that there were 1 8 toxicological studies on PC.B, is that the 1 9 question? 2 0 Q. We can certainly start with that. 2 1 MR. PREUSS: That was the 2 2 question, wasn't it? '' 2 3 A. Theanswerisno. ^ 2 4 MR. TALLON: Within the first year 2 5 of your service a t Monsanto did you become GORE REPORTING COMPANY ST. LOUIS, MISSOURI 48 HARTOLDMONOQ25747 1 aware of any toxicological studies i n 2 existence a t that time that related to 9 3 PCB-based products? 4 MR. PREUSSs Are we talking about 5 internal a s opposed to external? 6 MR. TALLON: I'm really not making 7 a distinction . 8 MR. PREUSS: All right. 9 A. At some time toxicological studies 1 0 were carried out at Harvard University, but 1 1 I do not know if that was in the first year 1 2 or not. I thought that was in 1937 or 1 3 1938, so I do not believe those studies 1 4 were carried out by January of 1937, which 1 5 would be the year following my arrival at 1 6 Monsanto . 1 7 Q. By the time you became the medical 1 8 director of Monsanto did you become aware 1 9 of any toxicological studies addressing 2 0 PCB-based products? 2 1 A . Yes. 2 2 Q Which? 2 3 A . Which s t u d i e s ? 2 4 Q Yes. 2 5 A . Harvard studies . SORE REPORTING COMPANY ST. LOUIS, MISSOURI 49 HARTOLDMONOQ25748 1 Q Any others? 2 A . I don't r e c all. The re may have 3 been some a cute oral s t u d i e s by s o m e 4 laboratory or other. I ' m s u r e we a Iso did 5 some a c u t e oral stud i e s , a cut e t o x i city 6 stud i e s on the mater i a 1 durin g the late 7 '30' s , the first cou pie of y e ars of the 8 '40' s . 9 Q I n general terms, Do c t o r , what 1 0 does the -- what is an a c u t e oral study 1 1 designed t o tell you 1 2 A . T o give you sort o f a bene h m a r k o 1 3 the toxicity of a material. Well, this is 1 4 acute poison, what if you accidentally 1 5 swallow, you know, a whiskey jigger full of 1 6 the material, what harm are you liable to 1 7 get. It i s n 't a complete evaluation of it. 1 8 but it is a benchmark and it helps to 1 9 define it in relationship to other 2 0 compounds. 2 1 Q. Do you recollect the results of 2 2 any studies in existence by the time you 2 3 b e c a me medi cal director of Monsanto that 2 4 were acute oral studies of toxicity for 2 5 PCB-based products? |G 0 R E REPORTING COMPANY ST. LOUIS, MISSOURI 50 HARTOLDMON0025749 1 A . Well, as I said , H a rvard -- 2 Drinker a t Harvard did s o m e work o n a 3 couple of P C B s . He also did some work on a 4 compound that was m i s 1 a b e 1 e d , it was 5 chlorinat ed diphenyl ben z e n e . And he did 6 some work on, I t h i n k , 1 2 5 4. 7 Q Are there any o t h e r s t u d i e s of 8 which you 're aware that e x i s ted by the time 9 you becam e medical direc tor of Mon santo 7 1 0 A . I don't re call them . I mean. 1 1 there may have been , but I d on't recall 1 2 them. 1 3 Q When you r ef err e d a moment ago t o 1 4 work done by Profes s o r D rink e r on 1 2 5 4 , 1 5 were you referring to A r oclor 1254 7 1 6 A . Yes. 1 7 Q Is that a trade name used b y 1 8 Monsanto to describ e a parti c u 1 a r type o f 1 9 product? 2 0 A . Yes, it is 2 1 Q . And does the 54 i n the 2 2 nomenclature 1254 indicate that the product 2 3 is chlorinated to the extent of 54 percent 2 4 by weight? 2 5 A. That's the average chlorination. (GORE REPORTING COMPANY ST. LOUIS, MISSOURI 51 HARTOLDMON0025750 1 j It may be chlorinated -- they've got 2 isomers that are higher, s ome lower, but 3 the average chlorination i s 5 4 percent . 4 Q. I want to refer b a c k to a n answer 5 you gave a few moments ago , Dr. Kelly. You 6 used the term closed syste m in responding 7 to one of my questions. W ould you please 8 state for the record what you mean when you 9 used the term closed syste m ? 10 A. Yes. The ingredi ents or the 1 1 chemicals are inside pipes , inside 1 2 reactors, inside kettles, and that there 1 3 was supposed to be no cont act with the 1 4 outsid e environment from the time the raw 1 5 materials are put in until the finished 1 6 product is put into drums, tank cars or 1 7 whatever type of container they're going to 1 8 use for ultimate delivery to the customer. 1 9 Q. In your answer you used the term 2 0 there was supposed to be no contact . Are 2 1 you indicating that there were 2 2 circumstances under which contact with the 2 3 chemicals could occur? 2 4 A . Well, there is also the potential 2 5 for leaks in a system . If you have a pump, |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 52 HARTOLDMONOQ25751 L the packing could leak when you're filling 2 the material , or draining the material it 3 can leak. You could spill over. You have 4 certain cleanup operations in which you 5 take the system out of operation and clean 6 it up. So there are possibilities, yes. 7 Q . Was the term closed system in use 8 at Monsanto during the period that you were 9 medical director? 1 0 A . Oh, yes. 1 1 Q. And do you have any recollection 1 2 or sense of when that term first came into 1 3 use? 1 4 A. I think it was there before I got 1 5 there. 1 6 Q. Do you have any recollection of 1 7 when you achieved an understanding that a 1 8 closed system could leak or that contact 1 9 could be made in the process of filling 2 0 material or cleaning up operations? 2 1 A. I'd say probably 1936 the first 2 2 time I went through a plant. 2 3 Q. You also, in a n answer that you 2 4 gave earlier, referred to an open system. 2 5 Could you describe what you meant when you |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 53 HARTOLDMONOQ25752 1 used the term open system? 2 A . Well, a n open system refers to a n 6 3 o p e r a t ion that is not carried out entirely 4 within kettles or pipes. You may have 5 trays , you may have filtering operations, 6 you may have drying operations. And in the 7 other sense it refers to the use of the 8 product. And I didn't mention the use when 9 I talked about closed system, I only talked 1 0 about manufacturing. If you have a 1 1 transformer that's filled with PCB, that's 1 2 a closed system. If you have a c apacitor 1 3 that's filled with PCBs, that' s a closed 1 4 system. Now, o n the con t r a r y , i f you h a v 1 5 a plasticizer o r a paint t h a jt has PCB in 1 6 it, when that's incorporated into a 1 7 plastic, during the operation it is open. 1 8 It may be in ball mills, it may be in 1 9 rollers, it may b e in sheeting operations. 2 0 And when it is used , it is not -- by the 2 1 customer, here ' s a plastic that is out in 2 2 the open. that's a n open o p e r a t ion. It may 2 3 be open - - open -cl ose operation might be a 2 4 better term for the use of it. But that's 2 5 what I mean by a n open system. GORE REPORTING COMPANY ST. LOUIS, MISSOURI 54 HARTOLDMONOQ25753 1 Q. Have you ever heard the term 2 semi-closed system? t 3 A. No, I wouldn't know what it 4 means. I mean, semi-closed, half 5 pregnant? I mean, I don't think so. I 6 don't think it's commonly used. 7 Q. Was the term open system in use at 8 Monsanto while you were medical director? 9 A. Oh, yes. 1 0 Q And can you e s t im a t e or tell me 1 1 when or how long d u r i ng that peri o d of 1 2 s e r v i c e the term was i n use? 1 3 A . '36 to '74. 1 4 Q. You mentioned that one of the 1 5 responsibilities you had as medical 1 6 director was to establish an industrial 1 7 hygiene program? 1 8 A. That's correct. 1 9 Q. And would you briefly describe 2 0 what you did to initiate that industrial 2 1 hygiene program at Monsanto? 2 2 A . I hired an i n d u strial hyg i e n e 2 3 engineer in 1947, and I hired thre e more 2 4 before I left in '74. 2 5 Q And who was the engineer that you (GORE REPORTING COMPANY ST. LOUIS, MISSOURI 55 HARTOLDMONOQ25754 1 hired in 1 9 3 7 ? 2 A . '47. 3 Q '47, excuse m e . 4 A . Wheeler. 5 Q . Who were the three - 6 A . Jack Garrett came in '57, I 7 believe. Carl Bohl, B - o - h - 1 , came i 8 Bruce Eley came sometime in the late ' 6 0 ' s . 9 Q . Messrs. Garrett, Bohl and Eley 1 0 were the three industrial hygiene engineers 1 1 that you hired after hiring Elmer Wheeler? 1 2 A. That's correct. 1 3 Q. Did Mr. Wheeler report to you? 1 4 A . Yes. 1 5 Q. Was his office near your office 1 6 during the period that he worked, or 1 7 reported to you? 1 8 A. Oh, yes. Right. Very close. I 1 9 mean, practically adjacent, 2 0 Q. Was Mr. Garrett's office near to 2 1 yours? 2 2 A. Yes. We were a relatively small 2 3 department, we had sort of a bull pen in 2 4 which the toxicologis ts -- Wheeler was 2 5 there, Garrett was there,the toxicologist GORE REPORTING COMPANY ST. LOUIS, MISSOURI 56 HARTOLDMONOQ25755 1 was there. We all had lunch together, we 7 shared secretaries, we shared the same e 3 files. So we were a relatively close-knit 4 group . 5 Q Did Mr. Garrett report to you or 6 to Elmer Wheeler? 7 A . To Wheeler. 8 Q Was Garrett ultimately responsible 9 to you? 1 0 A. Well, ultimately, yes. 1 1 Q. You indicated that another 1 2 responsibility you had. Dr. Kelly, was to 1 3 beresponsible for safe handling data and 1 4 toxicological data on labels. To what do 1 5 you refer by the term safe handling data? 1 6 A. First, I'd like to answer that - 1 7 I want to clarify that we did not put 1 8 toxicological data on a label. 1 9 Q . Okay. 2 0 A. I think I clarified that by saying 2 1 it was in bulletins. But safe handling 2 2 means the minimum amount of information you 2 3 could put on a label to protect the man or 2 4 the user from getting any harm from the 2 5 chemical. You tell them what the proper |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 57 HARTOLDMONOQ25756 1 -- what the proper way to avoid any 2 ill-effects from using the chemicals. 3 That's the safe handl ing data. 4 Q. When did you assume that 5 responsibility with respect to safe 6 handling data? 7 A . I'd say it was , i nformal, around 8 1938. It was certain iy f o r m a 1 when I c a m e 9 back from the service 1 0 Q 1945? 1 1 A . That's corre c t 1 2 Q What do you m e a n when you use the 1 3 term term of formal t o d e s cribe this 1 4 particula r responsibi 1 i ty ? 1 5 A . Well, sort o f a n executive -- a 1 6 bulletin was put out f r o m the executive 1 7 committee saying we n o w h a ve this centr a 1 1 8 medical department, h e r e a re their duti e s 1 9 and here' s what your r e 1 a t ionship to the 2 0 medical department is 2 1 Q What is the executive committee to 2 2 which you referred? 2 3 A . The top bras s o f the company . 2 4 Q And what do you recall, if you d o , 2 5 as the formal description of your |G 0 R E REPORTING COMPANY ST. LOUIS, MISSOURI 58 HARTOLDMON0025757 1 responsibilities with respect to s a f e 2 handling data? 3 A . I don't recall what the 4 descripti on was. That's 45 years ago. 5 Q And what responsibility d id y o u 6 have with respect to toxicological d a t a i n 7 bulletins ? 8 A . Any t o x i cological data wo u 1 d b e 9 obtained -- that would go into th e -- any 1 0 bulletins or any printed material from 1 1 Monsanto would be the responsibili o >i f the 1 2 medical d epartment, they had to pu t it i n 1 3 or they h ad to approve. maybe not the 1 4 editorial writing of it. but they had 1 5 approve the facts. 1 6 Q. Were you per sonally re sponsible 1 7 for reviewing each o f the bulle tins in 1 8 o r d e r to sign off o n the facts? 1 9 A. Well, either ultimately I was, 2 0 whether or not Elmer Wheeler or the 2 1 toxicologists under me would check it out. 2 2 Q. What toxicologists reported to you 2 3 during your period of service as medical 2 4 director? 2 5 A. Dr. William Hunt, Dr. Fred CORE REPORTING COMPANY ST. LOUIS, MISSOURI 59 HARTOLDMON0025758 1 Johannson J-o-h-a-n-n s - o - n and D .r . 2 George Levinsksas , L-e-v-i-n-s-k-s-a-s . l 3 Q. You mentioned. Dr. Kelly, that one 4 of your responsibilities was answering 5 questions that came to Monsanto regarding 6 products, is that correct? 7 A. That's correct. 8 Q. Was there a formal system for 9 routing of inquiries to you when you 1 0 assumed your position as medical director? 1 1 A. Yes. 1 2 Q. Can you describe the formal 1 3 system? 1 4 A. The formal system was that any 1 5 inquiry by letter or telephone or personal 1 6 to -- concerning a Monsanto product made 1 7 to anybody in Monsanto would be referred to 1 8 the medical department for answer. 1 9 Q Was that p o1 icy memorialized in a 2 0 writing. i f you recal 1 ? 2 1 A . Yes , it was. 2 2 Q Do you remem b e r what the writing 2 3 was, whether it was a memo or a policy 2 4 manual? 2 5 A . I think it was in the same |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 60 HARTOLDMONOQ25759 1 memorandum -- it wasn't a policy manual , I ? don't think, but it was in the same t 3 bulletin, or whatever , that was put out by 4 the executive committee a t the time the 5 medical department was organized. 6 Q. Did that policy or statement 7 change during your period of service as 8 medical director in any respect? 9 A . N o , it didn't. 1 0 Q Did you p ers onally s i g n o f f o n 1 1 c u s t o m e r inquiries or other i n q u i r i e s to 1 2 M o n s a n t o t h a t came in during y our period of 1 3 s e r v ice as m e d i c a 1 director? 1 4 A . I d o n ' t k now what y o u m e a n by sign 1 5 off. 1 6 Q Did you check the f a c t s a n d make a 1 7 r e s p o n s e t o inquiries person a 1 1 Y? 1 8 A . 0 h , sure. 1 9 Q Was your approval r e q u i r e d before 2 0 any response to a customer or o t h e r 2 1 outs ider c o u Id be made? 2 2 A . N o . In o ther words f if s omebody 2 3 from the Detroit sales office went i n t o 2 4 Ford Motor and was t a] king about a 2 5 hydraulic fluid, and somebody said has this IGORE REPORTING COMPANY ST. LOUIS, MISSOURI 61 HARTOLDMON0025760 1 been used how long has this been used and 2 have there been any problems with it 3 ft health - w i s e , he ' d say no. I mean. h e 4 w o u 1 d n ' t s a y w e 1 1 , go and ask St. L o u i s .5 about that B u t he would then say 1 o o k , 6 I'll let St. L o u is know and let them give 7 you all their i n format ion. The m a n would 8 say fine , send m e a 1 e tter, have the m call 9 me . 1 0 Q If a w r i 11 e n inquiry was m a d e to 1 1 M o n s a n t o about a parti cular produ c t , did 1 2 you p e r s o n a 1 1 y h a v e to approve th e r e s p o n s e 1 3 to that w r i 11 e n i n q u i r Y? 1 4 A . If it d e a 1 t w ith health asp e c t s or 1 5 safe handling. Y e s . I personally 7 I mean. 1 6 the medical department personally, that 1 7 doesn't mean that I answered all of them. 1 8 I had an associate medical director. I 1 9 mean, Wheeler answered some. But the 2 0 ultimate responsibility was mine. I saw 2 1 -- we were a relatively small department 2 2 and I saw correspondence -- I mean, the 2 3 carbons of all these. 2 4 Q . Do you recollect any instances 2 5 where you reviewed a copy of a response |G 0 R E REPORTING COMPANY ST. LOUIS, MISSOUR I 62 HARTOLDMONOQ25761 I jj made by someone working for you to an 2 inquiry about a PCS product which you 3 recalled or'-- that is to say, you 4 insisted that that response be withdrawn or 5 it be changed? 6 A. I don't recall it. 7 Q . Were you on any management 8 committee or other committee during the 9 period of your service at Monsanto? 1 0 A. Wei]; no, it wasn't a -- they had 1 1 a Wednesday lunch for the department 1 2 directors and the di. vision directors and 1 3 the management, and as I said, the top 1 4 brass of the company. We met once a week 1 5 at lunch. But it was not a committee, as I 1 6 would view your term, where there was some 1 7 action done. It was more an informational 1 8 gathering. But, no, I was not on a 1 9 management committee. There were ad hoc 2 0 committees on various problems. 2 1 (Recess) . 2 2 MR. TALLON: Why don't we have the 2 3 court reporter mark as Exhibit 143 a three 2 4 page document bearing production numbers 2 5 Tran 024941 through 943. |GORE REPORTI NG COMPANY ST. LOUIS, MISSOURI 63 HARTOLDMONOQ25762 1 (Transwestern Deposition Exhibit Number 2 14 3 mark ' d for identification) . 3 MR ! TALLON : Dr. Kelly, I'm going 4 to show you the document that the court 5 reporter has now marked a s 143, which is 6 titled "Reported Aroclor customer 7 incidents." And my first question to you. 8 Doctor, is whether you have seen that 9 document before today? 1 0 A. I don't think so. I don't know 1 1 who wrote it I don't know. I don' t think 1 2 I've seen it 1 3 Q . Do y o u r e c o g n i z e the h a n d w r i t i n g 1 4 that appears e i t h e r on the f o o t of page 1 1 5 or at various p 1 a c e s on p a g e v 2 of t h i s 1 6 exhibit? 1 7 A . No, s i r , I do not. 1 8 Q . Did Y o u ever r e q u e s t anyone 1 9 working for y o u i n the medical depar t m e n t 2 0 to compile a 1 i s t of re ported custom e r 2 1 complaints or i n c i d e n t s with respect t o 2 2 Aroclors? 2 3 A . No, sir. 24 - MR. PREUSS: I'm going to move to 2 5 strike the use of the word complaints. I (GORE REPORTING COMPANY ST. LOUIS, MISSOURI 64 HARTOLDMON0025763 1 think the terminology is incidents. 2 MR. TALLON: Noted. Well, you can 3 put that as'ide . I'll ask you, though, 4 whether you are famil iar with a customer 5 incident dating to 1950 involving a 6 customer located in Brazil, Indiana? 7 A . I'm familiar with the incident. 8 yes. 9 Q. And would you please describe what 1 0 you recall about the incident to which I've 1 1 referred? 1 2 A. Yes. I recall that I received a 1 3 letter or a telephone call, I don't know 1 4 which, by Dr. Spolyar, who was an official 1 5 of the State of Indiana, saying he had a 1 6 jerry-rigged -- somebody had a 1 7 jerry-rigged heat transfer unit that was 1 8 leaking and workers had worked in it for 1 9 about three days inhaling the material and 2 0 had some gastrointestinal complaints. And 2 1 I talked to Dr. Spolyar about it. I said 2 2 "Well, watch them for the possibility of 2 3 liver damage. " And to the best of my 2 4 recollection -- Dr. Spolyar wrote a paper 2 5 on it, but -- I think I've seen it, but I GORE REPORTING COMPANY ST . LOUIS, MISSOURI 65 HARTOLDMONOQ25764 1 was unable to find it s e veral yea r s ago -- 2 the people got well. There were t w o or 3 t h r e e people i n v o 1 v e d . 4 Q, When you used the term 5 jerr y-rigged h eat t r a n s f e r unit. w h a t are 6 you referring to? 7 A. Yes. A tempora r y type o f -- 8 t h o s e are the words he u s e d , I d i d n ' t see 9 the installati on. But a temporar y type of 1 0 heat transfer system. 1 1 Q. Was a Monsanto product b e i n g used 1 2 in that heat t ransfer sy stem, to y o u r 1 3 know ledge? 1 4 A. That' s what he told me. i t was. 1 5 Q. And d id you ide ntify fro m him the 1 6 product or the nature of the produc t ? 1 7 A. I did at that t i m e . And i t says 1 8 here Iroclor 1248, and I don't know if 1 9 that's what he told me. But he told me it 2 0 was a Monsanto product. 2 1 Q Do you recollect that an a r o c 1 o r 2 2 was involved i n that particular disc u s s ion 2 3 bet ween you and Dr. Spolyar? 2 4 A . Yes , i t was. 2 5 Q You don ' t remember one way o r the GORE REPORTING COMPANY ST. LOUIS, MISSOURI 66 HARTOLDMONOQ25765 1 other a s to whether it was 1 2 4 8 or a 2 different aroclor? 3 A . No', I don't. 4 Q. Dr. Kelly, w s the phone call from 5 Dr. Spolyar the first communication to you 6 from an outsider with respect to a n 7 incident involving a n Aroc.lor? 8 MR. PREUSS : There is a letter, 9 counsel . 1 0 MR. TALLON: I think that's a 1 1 communication. 1 2 A. Say that over. 1 3 Q. Yes. Was the communication to you 1 4 from Dr. Spolyar the first occasion on 1 5 which you got a communication from an 1 6 outsider about an incident involving an 1 7 Aroclor product? 1 8 A. Well, I don't remember. I just 1 9 don't remember. 2 0 Q. You indicated in your response of 2 1 a moment ago that the employees involved in 2 2 this incident had some -- or a t least Dr. 2 3 Spolyar indicated to you that the employees 2 4 had some gastrointestinal complaints, and 2 5 I'm not sure I got your answer correctly. (GORE REPORTING COMPANY ST. LOUIS, MISSOURI 67 HARTOLDMONOQ25766 1 i Did you tell him to watch for liver damage 2 or did he say that he was watching for 3 liver damage? 4 A . I think I told him. 5 Q. And can you state the reason why 6 you told him? 7 A. Yes. Our toxicological work 8 showed that the liver is the target organ 9 in acute exposures. 1 0 (Discussion off the record). 11 MR. TALLON: When you said in your 1 2 answer of a moment ago. Doctor, that 1 3 toxicological work showed the liver was a 1 4 target organ in acute exposures, to what 1 5 toxicological work were you referring? 1 6 A. Drinker's and some of our own 1 7 basic toxicological work that we had 1 8 carried out that I described before. I 1 9 mean, the basic package of four different 2 0 types of toxicological experimentation; 2 1 eyes, skin, inhalation and oral. 2 2 Q. And what was -- what is the 2 3 meaningof the terminology that you used, 2 4 the liver is the target organ? 2 5 A. Well, that seems to be the one |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 68 HARTOLDMONOQ25767 1 11 that is most affected by a chemical in a 2 toxicological experiment. 3 Q. Most affected by a chemical? 4 A . Any chemical , whatever, depending 5 -- it may be the kidney, it may be the 6 liver, i t may be the brain, it all depends 7 on what chemical you'1 r e testing . That's 8 referred to by the toxicologists a s a 9 target organ. 10 Q. Didthe toxicological work that 1 1 you had on hand in formulating your reply 1 2 to Dr. Spolyar indicate that the liver was 1 3 the target organ of PCBs? 1 4 A. Yes. 1 5 Q . Do you recall whether the 1 6 toxicological work on hand at that time 1 7 differentiated between the Aroclor products 1 8 with respect to classifying the liver as a 1 9 target organ? 2 0 A. That's unclear to me. Would you 2 1 repeat it? 2 2 Q . I'm wondering whether the 2 3 toxicological work which you were referring 2 4 to in order to formulate your response to 2 5 Dr. Spolyar made any distinction between K30RE REPORTING COMPANY ST. LOUIS, MISSOURI 69 HARTOLDMONOQ25768 1 Aroclor 1254 or 1232 in identifying the 2 liver as a target organ? 3 A. No. I think it might be a 4 difference in the dosage, but I thin k the 5 target organ is the same for various 6 different Aroclors . 7 Q. Are there Aroclors for whic h the 8 liver is not a target organ? 9 A. I don't recall any. 1 0 Q. In addition, in your answer you 1 1 used the term acute exposures. Can you 1 2 define that term as you used it in y our 1 3 answer of a moment ago? 1 4 A. Acute exposure means one ex p o s u r e 1 5 over a relatively short period of ti m e , 1 6 whether that is hours, or in the cas e of 1 7 oral acute exposure whether it means one 1 8 dosing as contrasted to chronic expo sure 1 9 which is a multiple exposure. 20 Q.Chronic means multiple, acu t e 2 1 means single; is that a fair s t a t e m e n t ? 2 2 A. Yes. 2 3 Q. Is there a medical standard for a 2 4 definition of an acute exposure? 2 5 A. I think it depends upon who you SORE REPORTING COMPANY ST. LOUIS, MISSOURI 70 HARTOLDMON0025769 1 ask. I don't think there is a standard. ?. Q. In your use of the term acute 3 exposure, a'r e you using any reference to 4 the volume of material to which exposure is 5 had? 6 A . Well, whatever -- -- when you do a 7 L D 50, you have various amounts given the 8 a n i mal. And that is an acute exposure. 9 But the an imal is subjec ted -- the group 1 0 o f animals are subjected t o varying doses 1 1 s o a small dose all the way up to a big 1 2 d o s e . But that's al] an acute test. 1 3 Q. In your experience. Dr. Kelly, is 1 4 there a particular volume of PCB material 1 5 w h i c h a person can b e expos e d in order 1 6 have t h a t exposure b e class i f i e d as an 1 7 acute exposure? 1 8 A. Well, whether you're talking about 1 9 PCB or anything els e , if you have a drop on 2 0 it of any material , that 's exposure. I t 2 1 may be an insignifi cant exposure, but it's 2 2 exposure. So it's an a c ute exposure. But 2 3 you don't have to i m m e r s e the whole arm, 2 4 you can do that and that ' s also acute 2 5 exposure. So I find it impossible to CORE REPORTING COMPANY ST. LOUIS, MISSOURI 71 HARTOLDMON0025770 1 answer your question. 2 0 ., You're using the t erm acute to 3 mean exposure on one occasi on, regardless 4 of the volume of material i nvolved? 5 A ., That's correct. 6 Q , I see. So physica 1 1y actually 7 getting into a vat of PCBs would constitute 8 an acute exposure? 9 A. Yes. 1 0 MR. PREUSS: Assum ing somebody got 1 1 out right away afterwards. 1 2 MR. TALLON: Right . Dr. Kelly, do 1 3 you recollect having been c ontacted by the 1 4 worker's compensation board in Toronto, 1 5 Ontario about an exposure o f workers at the 1 6 -- it looks like Rinshed-Ma son Company in 1 7 Canada? 1 8 A. No, sir, I do not. 1 9 Q. Does looking at the document which 2 0 we have marked as Exhibit 143, and 2 1 particularly the portion appearing on the 2 2 bottom of page 1 refresh your recollec t i o n 2 3 in any respect about such a contact? 2 4 A. No, it does not. 2 5 Q. Do you recall. Dr. Kelly, hav ing |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 72 HARTOLDMONOQ25771 1 1 been contacted in 1966 with respect to spot 2 exposures to fumes a t the U.S. Naval 6 3 Station in Kodiak, Alaska? 4 A . No, I do not. 5 Q. Does looking a t the typed 6 information a t the top of page 2 of Exhibit 7 143 refresh your recollection in any 8 respect about such a contact? 9 A. No, sir. 1 0 . Do you recall. Dr . Kelly, about 1 1 contacted in 1968 or at any time 1 2 about an exposure to fumes at the 1 3 Interchemical Corp. Prestite Division in 1 4 St. Louis, Missouri? 1 5 A. No. But this is not a PCB, by the 1 6 way. Aroclor 4465 is an Aroclor, but not a 1 7 PCB. 1 8 Q. Looking at that particular passage 1 9 on particular 2 of Exhibit 143 does not 2 0 refresh your recollection? 2 1 A. No, sir. 2 2 Q. Do you recollect. Doctor, being 2 3 contacted a t any time in the first quarter 2 4 of 1969 or otherwise with respect to an 2 5 exposure of a truck driver toInterteen GORE REPORTING COMPANY ST. LOUIS, MISSOURI 73 HARTOLDMONOQ25772 1 fumes a t West inghouse Company i n Phoenix, 2 Arizona? 3 A . No*, sir. 4 Q Does looking a t the t h ird entry o n 5 page 2 of E x h ibit 143 refresh y our 6 recollect ion in any respect o n that 7 subject? 8 A . N o , sir. 9 Q Doctor, do you recol 1 e c t at any 1 0 time hear i n g of an exposure o f maintenanc e 1 1 men resulting in hand and for e a rm rashes a t 1 2 the Interchemical Corp. in Toledo, Ohio? 1 3 A . N o , sir. 1 4 Q And looking at the bo t t o m o f page 1 5 of E x hi bit 143 does not refr e s h y o u r 1 6 ecollect ion in any respect? 1 7 A . N o , sir. 1 8 Q Was kidney s oreness a n e x p e c t e d 1 9 e s u 1 t of exposure to -- acute expos u r e to 2 0 a PCB-based product? 2 1 A. No, it certainly was not. And I 2 2 do not know what they referred to by kidney 2 3 soreness. Usually problems with the 2 4 kidney, unless it's a kidney stone, does 2 5 not elicit any kidney soreness. So I have |GORE REPORTING COMPANY ST. LOUIS, MISSOUR I 74 HARTOLDMONOQ25773 1 j no idea what these people are talking 2 about . 3 Q. Doctor, I want to refer back for 4 just a moment to t h e communication you had 5 with Dr. Spolyar w h ich you recall. And 6 I'll have marked a s Exhibit 144 a one page 7 document dated Febr uary 6, 1950 on the 8 letterhead of the S tate of Indiana, State 9 Board of Health. 1 0 (Transwestern Depo s i t i o n E x h i bit Numb e r 1 1 144 mark'd for i d e n t i f i c a t i on). 12 MR. TALLON : I'll ask you t o just 1 3 take a look at that letter , i f you w o u Id, 1 4 please. I'll note f or the record that this 1 5 letter has four dif erent designations on 1 6 the bottom of it. I'm not sure which one 1 7 of those relates to this case. One of them 1 8 is T 091744. 1 9 A . Yes, sir. 2 0 Q. Do you recognize this letter. Dr. 2 1 Kelly? 22 A. Well, I recognize it, yes. And it 2 3 ties into my recollection of the whole 2 4 incident. 2 5 Q . Did you receive this letter from |G0RE REPORTING COMPANY ST. LOUIS, MISSOURI 75 HARTOLDMONOQ25774 1 Dr. Spolyar in February of 1950? 2 A. I presume I did. 3 Q. Do* you recollect that you did? 4 A . Sure. I sent him the information 5 he wanted . He asked for toxicological 6 information. 7 Q. And you responded to this, is that 8 correct? 9 A. That's correct. I asked him for 1 0 more information, I'm sure, because he said 1 1 the illness was quite vague, and he didn't 1 2 exactly know what the complaints were. 1 3 Q. As a result of your communications 1 4 with Dr. Spolyar, did you recommend that 1 5 any studies be done with respect to any 1 6 PCB-based products? 1 7 A. Studies? What type of studies? 1 8 Q. Any studies, toxicology studies. 1 9 A. Well, we knew the toxicology. 2 0 Q. I'm sorry, I didn't hear the end 2 1 of your answer . 2 2 A. We knew the toxicology, so I 2 3 didn't recommend any more. 2 4 Q. Do youhave any recollection of 2 5 reporting your communications with Dr. GORE REPORTING COMPANY ST. LOUIS, MISSOURI 76 HARTOLDMONOQ25775 1 Spolyar to anyone within the Monsanto 2 organization? 3 A . No. But I do not recall that 4 direct1y. But as a matter of procedure I 5 always told the product development -- 6 product manager about any health 7 complaints . 8 Q . When you state in your answer that 9 you always communicated to the product 1 0 manager any information about health 1 1 related complaints, was it your practice to 1 2 do so in writing or orally or both? 1 3 A. Either or both. 1 4 Q. What was your purpose for so 1 5 informing the product manager? 1 6 A . To let him know that this 1 7 situation occurred and to let him know if 1 8 he hears o f any others to let me know. 1 9 Q Do you recollect. Dr . Kelly, 2 0 having recommended any changes in product 2 1 labeling as a result of your communication 2 2 with Dr. Spolyar? 2 3 A. No. Because if they had followed 2 4 the recommendation on the labeling which 2 5 says do not inhale fumes in confined spaces |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 77 HARTOLDMON0025776 1 or a t. elevated tempe r a t u r e s , t h i s w o u 1 d n ' 2 have happened. 3 0. Doctor, do you recol 1 e c t h a v i n g 4 had a n y communicatio n in the e a r 1 y 1 9 6 0 ' s 5 with a Mr. Allen of Hexagon Lab ora t o r i e S , 6 Inc. relating to PCB -based pr o d u c t s ? 7 A . Yes. 8 Q. And can you tell me w h a t y o u 9 recollect about that communic a t ion o r 1 0 communications? 1 1 A. I thought h e called m e / a n d T 1 2 again , he said this was a h e a t t r a n s f e r 1 3 unit that -- and I don't k n o w w h e t h e r i t 1 4 was a temporary or p ermanent i n s t a 1 1 a t i o n 1 5 but there were leaks and the pe o p 1 e w e r e 1 6 expos ed to the vapor s. I don ' t k n o w h o w 1 7 long. They had gastrointesti n a 1 1 8 c o m p 1 aints. I don't know w h e t h e r t h ere h 1 9 been any supervision of the p e o pie s o t h a 2 0 they followed the di rections o n our 2 1 label ing. And he to Id me t h a t the y had 2 2 g a s t r ointestinal com plaints , and I s aid 2 3 well. watch out for -- I don ' t k n o w w h a t 2 4 year it was, have you got the - - w e 11 , I 2 5 don't know if I a d v i s e d him t o h a v e e n z y m |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 78 HARTOLDMONOQ25777 1 1 studies or liver studiesor what I said 2 ' watch out for the possibility of chemical 3 hepatitis . ' A n d he called me a couple of 4 weeks later and -- a week later and said 5 yes, that's true, theyshowed a little 6 jaundice. And I checked with him again 7 sometime later and he said they completely 8 recovered. Those were the only two 9 inhalation cases that I had in 38 years 1 0 with Monsanto. 1 1 Q. The only two being -- 1 2 A. Indiana and Hexagon. 1 3 Q. Would you read the answer back, 1 4 the long one? 1 5 (The reque sted porti on of the 1 6 record read by the reporter) 1 7 A. I might a dd one thi n g to that last 1 8 statement. There was one ca s e of 1 9 inhalation where p eopJe deve loped 2 0 chloracne. Those are the on 1 y two 2 1 instances where pe ople devel oped 1 iver 2 2 problems. 2 3 Q . In the answer that I just asked 2 4 the court reporter to read back you said 2 5 you didn't know whether there was |GORE REPORTING COMPANY ST . LOUIS, MI SSOUR I 79 HARTOLDMON0025778 1 supervision or whether the people involved 2 had followed the directions on the 3 labeling. There wasn't any indication on 4 the label ing about how to deal with leaks, 5 was there? 6 A. Well, no. But it says don't 7 breathe the fumes at elevated temperatures 8 or in confined spaces, no matter how it got 9 there. 1 0 Q. And in the case of aleak, 1 1 inhalation could be unavoidable, correct? 1 2 A. No, not necessarily. You don't 1 3 have to breathe the stuff over three days, 1 4 you can plug up the leak. 1 5 Q. Although in the case of an 1 6 unexpected leak, inhalation would be 1 7 unavoidable? 18 A. Sure. Butyou can turn off the 1 9 operation until you've fixed it. 2 0 Q. You mentioned in your answer, 2 1 also, that you addressed the subject of 2 2 chemical hepatitis. Can youtell me how 2 3 the condition of chemical hepatitis is 2 4 related to exposure to A r o c1o r fumes , or 2 5 how you believed it to be then, rather? GORE REPORTING COMPANY ST. LOUIS, MISSOURI 80 HARTOLDMONOQ25779 1 A. I f you get a sufficient amount of 7 Aroclor absorbed into the system, 3 sufficient amount, and that varies with 4 species and with -- well, in humans , you 5 can get an involvement of the liver. 6 Q. I'm sorry, what of the liver? 7 A. Involvement. 8 Q. Involvement . 9 A. And that's what's known as a 1 0 chemical hepatitis, as contrasted to 1 1 infectious hepatitis, viral hepatitis, et 1 2 cetera . 1 3 Q. Are you usinginvolvement in that 1 4 sentence as a technical term? 1 5 A. I don't think it's too technical. 1 6 I mean, the liver -- it affects the liver. 17 Q, Okay. I was just wondering if you 1 8 were using involvement as a technical term 1 9 as opposed to indicating that the liver was 2 0 implicated as a result of the absorption. 2 1 And your answer, I believe, was you were 2 2 not using it as a technical term? 2 3 A . No. 24 Q. In what manner is the liver 2 5 involved, what happens? |G 0 R E REPORTING COMPANY ST. LOUIS, MISSOURI 81 HARTOLDMON0025780 1 A . You get cloudy swelling of some of 2 the liver as well as -- depending on the 3 dosage, and'that either can progress or 4 regress. 5 Q. Let me have marked as the next 6 exhibit in order a one page document which 7 is dated February 2, 1961. And it also has 8 several designations on it. I'll use the 9 top one, which is PRR 025477. And I ask 1 0 the court reporter to mark that, please. 1 1 (Transwestern Deposition Exhibit Number 1 2 145 mark'd for identification). 1 3 MR. TALLON: Can you take a moment 1 4 to review that, please. Dr. Kelly? 1 5 A . Yes , s ir . __ 1 6 Q. Can you identify the document for 1 7 the record? 1 8 A. It's a letter -- it's a 1 9 memorandum from me to Mr. Richard Davis, I 2 0 don't know his position, with heat transfer 2 1 department. I mean, whatever -- 2 2 industrial fluids department, I think is 2 3 probably the proper name. And I told him 2 4 about the Hexagon Laboratory incident. 2 5 Q. 13 this a carbon copy of a GORE REPORTING COMPANY ST. LOUIS, MISSOURI 82 HARTOLDMONOQ25781 1 | memorandum that appeared on Monsanto I; 7 | memorandum stationery? 3 A . Yes. 4 Q . And did you create this memorandum 5 as part of your normal job function a t 6 Monsanto? 7 A . Yes. 8 Q Did you intend for Mr. Alien to 9 rely o n the information that appears in 1 0 this memo? 1 1 MR. PREUSS: Mr. Allen or Mr. 1 2 Davis? 1 3 MR. TALLON: Mr. Davis. Thank you 1 4 for that correction 1 5 Yes. 1 6 Q. And was this memorandum created at 1 7 or about the time of your communication 1 8 with Mr. Allen of Hexagon Laboratories? 1 9 A. Yes, it was. I was looking for a 2 0 letter from Mr. Allen, but I don't see any. 21 Q. Okay. I want to just ask you a 2 2 question about the text of this memorandum. 2 3 Dr. Kelly. There is a sentence therein 2 4 that says, "One individual was under the 2 5 care of a physician and the physician GORE REPORTING COMPANY ST. LOUIS, MISSOURI 83 HARTOLDMONOQ25782 1 suspected liver damage." Do you see that? 2 A. Yes, I do. 3 Q. Do'you recollect what, if 4 anything, Mr. Allen told you about the 5 suspicions of the physician regarding liver 6 damage? 7 N o , I don't recall , And I don't 8 what M r ., Allen meant by the term 9 damage. But Mr. Allen and I talked about 1 0 it, and I said you have to suspect effects 1 1 on the liver if you breathe sufficient 1 2 number of Aroclor -- sufficient amounts of 1 3 Aroclor 1248 at elevated temperatures. 1 4 Which is the onlyway you'll get it, you've 1 5 got to heat it up. 1 6 Q. Did you ask Mr. Allen whether the 1 7 two employees in question manifested 1 8 jaundice? 1 9 A. I'm sure I did, because I told him 2 0 watch out for it. 2 1 Q. Because you anticipated that as a 2 2 result of the inhalation? 2 3 A. Not as a result, a possible 2 4 result. 2 5 Q . And just one other question on |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 84 HARTOLDMON0025783 i |; this document. Dr. Kelly, Your last 2 sentence and paragraph in the memorandum 3 states, "It 'might be that you will want to 4 alert the New York office about this 5 case." Do you see that? 6 Yes 7 Q And can you state today the rea 8 why you told M r . Davis tha t he might wan 9 to alert the New York offi c e ? 1 0 A . Yes. I think tha t the New York 1 1 office ought t o send the s alesman down 1 2 there to talk t o Mr. Allen and see how 1 3 things a re g e 11i n g along. if there is 1 4 anything more w e could do. 1 5 Q Any other reason? 1 6 A . N o , sir 1 7 Q I ' m going to ask the court 1 8 reporter to mark as the n e xt exhibit in 1 9 order a letter on the stationery of Hexagon 2 0 Laboratories, dated February 14, 1961, a 2 1 one page letter which also includes 2 2 different document designations. I'll 2 3 identify it for the record as PRR 025476, 2 4 which is one of the designations. 2 5 (Transwestern Deposition Exhibit Number IGORE REPORTING COMPANY ST. LODIS, MISSOURI 85 HARTOLDMONOQ25784 1 146 mark' d for id e n t i f ication) 2 MR . TALL0N : Dr . Kelly, would you 3 please take' a moment. o r however long you 4 need, and review that doc u m e n t ? 5 A . Yes , sir. 6 Q Can you identify this d o c u m e n t for 7 record. Dr. Kelly? 8 A . Yes . This is a letter from M r . 9 Allen of Hexagon Laboratories to me 1 0 concerning people who -- two of his plant 1 1 personnel were -- developed some liver 1 2 problems following exposure to a broken 1 3 heat transfer unit. 1 4 Q. Was this letter to you Mr. Allen's 1 5 follow-up on the telephone conversation 1 6 described in Exhibit 145, which is your 1 7 memo of February 2, 19 6 1 ? 1 8 A . Yes, sir. that' s what he says. 1 9 Q Doctor, do you remember having 2 0 predicted to Mr. Allen that the employees 2 1 would develop symptoms of hepatitis? 2 2 A. Not would. Might. 2 3 Q. Might. Do you remember predicting 2 4 that the employees might develop symptoms 2 5 of hepatitis? |G 0 R E REPORTING COMPANY ST. LOUIS, MISSOURI 86 HARTOLDMON0025785 1 A . Yes 2 Q Doc tor. I ' m g o i ng to ask the court 3 reporter t o ' mark a s E x h i b i t 14 7 a one page 4 document. d a ted Feb r u a r y 3 7 , 1963, which. 5 again, contains several different document 6 designations, one of them is PRR 025475 and 7 I'll ask the court reporter to mark that. 8 (Transwestern Deposition Exhibit Number 9 147 mark'd for identification). 1 0 MR. TALLON : Would you take a 1 1 moment, please, and review that. Dr. 1 2 Kelly? 1 3 A . Yes , sir. 1 4 Q . Can you identify the document f o 1 5 the record? 1 6 A . It' s a letter from me to Mr. A 1 1 1 7 of Hexagon Laboratories. 1 8 Q Is that the carbo n copy of a 1 9 letter that you, in fact. sent to Mr. 2 0 Allen? 2 1 A . Yes , sir. 2 2 Q . And did you write that letter t o 2 3 Mr. Allen in the discharge of your 2 4 responsibilities a s medical director of 2 5 Monsanto? (GORE REPORTING COMPANY ST. LOUIS, MISSOURI 87 HARTOLDMONOQ25786 1 A Yes , sir. 2 Q. Did you intend for Mr. Allen to 3 rely on the'information in the letter? 4 A . Certainly . 5 Q. And did you create this document 6 at or about the time of the events which 7 are reflected in it? 8 A. Yes. 9 Q. There is a notation or series of 1 0 notations at the very top of the page which 1 1 are partly legible. I'll state for the 1 2 record that it appears to read, "Note to 1 3 BCC's: it might be very well for us to 1 4 look over this matter of warning 1 5 individuals about leaks in an Aroclor 1 6 system. We certainly aren't too emphatic 1 7 about it." And then the initials R.E.K.. 1 8 Do you believe that's what that says? 1 9 A. Yes. 2 0 Q. And R.E.K. is you? 2 1 A. That's correct. 2 2 Q . And what was the purpose of adding 2 3 this note to BCC's? 2 4 A. I think even though this was only 2 5 the second case we had in -- I don't know GORE REPORTING COMPANY ST. LOUIS, MISSOURI 88 HARTOLDMONOQ25787 1 ji how long we were using that material , but 2 it was probably a t least ten years in heat 3 transfer systems, that we only had two 4 cases, I thought we ought to investigate to 5 see if we ought to warn more people or do 6 something about the warning . Inasmuch as 7 we didn't have any more cases from 1961 8 reported to us to '74, whatever we did 9 seemed to work out all right. 1 0 Q. Does the phrase "we certainly 1 1 aren't too emphatic about it" mean that 1 2 there is no specific place where the i. ssue 1 3 of leaks is addressed in Monsanto product 1 4 brochures or labeling? 1 5 A. I don't think I can answer that, 1 6 because I do not know whether or not it is 1 7 addressed in Monsanto brochures or not. We 1 8 do state in the label "Don't breathe it." 1 9 Maybe I thought we might put on -- I don't 2 0 know what. I thought we ought to discuss 2 1 the whole matter . There may be information 2 2 in the bulletins that something was added, 2 3 I have no recollection. 2 4 Q . Were you anticipating that 2 5 something could be added to a label or to a |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 89 HARTOLDMON0025788 1 product brochure having to do with dealing 2 with leaks? 3 A. Yoti have to differentiate . I 4 don't think you could put it on a label , I 5 mean, outside of telling them don't breathe 6 the fumes. But I think we thought of 7 seeing whether or not some change in the 8 product brochure might be advisable. As I 9 say, whatever we did, this was the last -- 1 0 I got no more of these all the way through 1 1 1 9 7 4. 1 2 Q. And what's the reason why it 1 3 couldn't be put on a label? 1 4 A. Well, I think space. You don't 1 5 put everything on a label, you just say 1 6 what you should do, not how you should do 17 it. 1 8 Q. There is a reference. Dr. Kelly, 1 9 in the second paragraph of your letter of 2 0 February 17, 1963 that states, "We do state 2 1 that the vapors emitted by Aroclor at 2 2 elevated temperatures are injurious upon 2 3 prolonged exposure and should not be 2 4 breathed." Do you see that? 2 5 A. Yes, I do. |G 0 R E REPORTING COMPANY ST. LOUIS, MISSOURI 90 HARTOLDMON0025789 1 Q. What is meant by the phrase 2 "elevated temperatures" in the context of t 3 that sentence? 4 A. Well, elevated temperatures means 5 higher than room temperatures. How much 6 higher, I think, depends on the person 7 who's using it. He knows how hot it gets. 8 If you put -- at room temperature you can 9 have an open bucket of Aroclor 12 -- 1 0 whatever which one we're using -- 1248, you 1 1 can have a bucket of Aroclor .1 248 out in 1 2 the room and breathe it for months and you 1 3 get no problem. How much higher you have 1 4 to get it varies, I think. So, elevated. 1 5 I don't know if it would be feasible to put 1 6 down do not breathe at temperatures above 1 7 200 degrees centigrade or 200 degrees 1 8 fahrenheit, I don't know. 1 9 Q. Just for point of clarification, 2 0 is it your testimony that elevated 2 1 temperatures in that sentence means 2 2 anything higher than room temperature? 2 3 A . No. Elevated temperature is 2 4 usually -- usually meant the temperatures 2 5 used in heat transfer units. In other (GORE REPORTING COMPANY ST. LOUIS, MISSOURI 91 HARTOLDMON0025790 1 words, that's the purpose, the Aroclor is 2 hot. So if you're te]ling a person not to 3 breathe the* fumes a t elevated temperatures, 4 in a heat transfer agency you are telling 5 him not to breathe the fumes that are the 6 operational temperature of your heat 7 transfer unit, which is always hot. 8 Q. Is there a minimum temperature 9 which you're using in yourmind now as a 1 0 demarcation point for the meaning of 1 1 elevated temperatures? 1 2 A . No . 1 3 Q Is the risk to the user associ a t e d 1 4 the degree to w h ich the user heats the 1 5 Aroclor product? 1 6 A. No. It's the exposure he gets. 1 7 and the amount of exposure. the amount -- 1 8 the volume of the exposure and the duration 1 9 o f the exposure. It could be a thousand 2 0 degrees, as long as it's inside the pipe it 2 1 won't give him any problem . 2 2 Q. Does the risk to the user, 2 3 depending upon volume, vary depending upon 2 4 the temperature to which a particular 2 5 Aroclor is heated? |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 92 HARTOLDMONOQ25791 i. A. Yes. There is more v o 1 a t i 1 2 the hotter it is. 3 Q. And what is the significanc e of 4 the change in temperature? How does the 5 hig h e r temperature cause greater ris k ? 6 A. It volatilizes more of the 7 material, more of the material turns from a 8 liquid into a gas. 9 Q. During the period that you were 1 0 medical director were any studies co n d u c t e d 1 1 on the degree of volatilization as a factor 1 2 of temperature? 13 A. Well, I'm sure there were, They 1 4 were inour bulletins, they told the m the 1 5 vapor pressure, but they weren't conducted 1 6 by the medical department. 1 7 Q. And when you used the term vapor 1 8 pressure in your answer. t o what do yo u 1 9 refer? 2 0 A . What I refer to i s the amount o f 2 1 material that is evolved a s a gas from the 2 2 liquid by changes in temperature . 2 3 Q. Is it correct. Dr. Kelly, that 2 4 more highly chlorinated Aroclors were less 2 5 volatile than lower chlorinated Aroclors? |GO R E REPORTING COMPANY ST . LOUIS, MISSOURI 93 HARTOLDMONOQ25792 1 A . Yes. 2 Q . And just a s a follow-up question, 3 is it correct that the determination of 4 vapor pressure was not a function of the 5 medical department? 6 MR. PREUSS: Did you say 7 determination? 8 MR. TALLON: Determination . 9 A. No, that was done by the research 1 0 people. That was established and written 1 1 up in the bulletins. 1 2 Q. Didyou ever use datacreated for 1 3 Monsanto or by Monsanto research and 1 4 development with respect to the volatility 1 5 of Aroclors as a function of temperature in 1 6 any of your work as medical director? Do 1 7 you want to read that back? 1 8 (The requested portion of the 1 9 record read by the reporter). 2 0 A . Well, certainly I knew that if you 2 1 heated material that it became more 2 2 volatile, and that ' s why we warned against 2 3 using it a t elevated temperatures. We did 2 4 run toxicological work on the material, on 2 5 some of the Aroclors at elevated GORE REPORTING COMPANY ST . LOUIS , MIS S OUR I 94 HARTOLDMONOQ25793 i temperatures. 2 Q. Where was it warned -- where was 3 the warning*included against using the 4 products , A r o c1o r products a t elevated 5 temperatures? 6 A. I think the label said do not use 7 a t -- do not breathe in confined spaces or 8 at elevated temperatures. 9 Q . Just to be clear, that's not a 1 0 warning that the product shouldn't b e used 1 1 at elevated temperatures, correct? 1 2 A . It was on the -- if it's o n the 1 3 drum of a product that says don't breathe 1 4 it, I would think that would be a warning 1 5 about it. 1 6 Q. Right. I'm drawing a distinction 1 7 between use of the product at elevated 1 8 temperatures and breathing the product at 1 9 elevated temperatures. The warning or 2 0 labeling to which you have just referred, 2 1 I'm asking you, isn't that a warning 2 2 against inhalation, not a warning against 2 3 use? 2 4 A . 0 h, yes. You don't warn against 2 5 using the material a t elevated temperatures |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 95 HARTOLDMONOQ25794 1 if you're selling it as a heat transfer 2 fluid. That's the p u r p o s e of it. 3 0 And w h e n , if you k now, did you 4 first become a w are of the f act that 5 Aroclors became m o re v o1 a ti 1e when h e a t e d ? 6 A . 1 9 3 7. 7 Q Could you refer a g ain to y o u r 8 letter of Febru ary 17, 1963 , Doctor? The r e 9 is a reference i n the las t paragraph , w h i c h 1 0 I will read to you and t h e n ask you about 1 1 It says. "It m a y i n t e r e s t y o u to k n o w t h a t 1 2 your c a s e is on iy the sec o n d that I have 1 3 heard of since 19 4 0 . " Do y o u see t h at? 1 4 A . Yes, I d o 1 5 Q . And in r e f e r r i n g t o the sec o n d 1 6 case since 1940, are you referring to the 1 7 c o m in u n i c a t i o n from Dr. Spolyar about which 1 8 we have talked this morning? 1 9 A . Yes, sir. 2 0 Q. Was there another case dating 2 1 before that communication from Dr . Spolyar? 2 2 A. Not with liver involvement. There 2 3 was a case, I told you, that involved mild 2 4 chloracne from a heat transfer unit. 2 5 Q . And when did that -- your [GORE REPORTING COMPANY ST. LOUIS, MISSOURI 96 HARTOLDMONOQ25795 1 awareness of that case occur? 2 A. You probably got it in there, in 3 that file, so I'm not sure whether it was 4 in the ' 5 0 ' s or ' 6 0 ' s . It was by Meggs of 5 New Haven . 6 Q. Did it post-date the Hexagon 7 Laboratories case? 8 A. I can't answer that. But I think 9 we'll come to it, I believe. 1 0 Q. I'm just wondering what the 1 1 significance is of the date 1940 in that 1 2 sentence? 1 3 A. I think that's when I got 1 4 knowledgeable, when I started getting 1 5 inq* uiries from customers. I *. was the 1 6 medical director without portfolio in 1940. 1 7 Q. Do you have any understanding. 1 8 Doctor, as you sit here today, whether or 1 9 not the heat transfer system described in 2 0 this series of communications with Mr. 2 1 Allen was an open system or a closed 2 2 system? 2 3 A . A heat transfer system has to be 2 4 closed, otherwise -- it just has to be 2 5 closed, inherently. |GORE REPORTING COMPANY ST. LOUIS , MISSOURI 97 HARTOLDMONOQ25796 1 (Discussion off the record) . 2 MR. T A L L 0 N : Why don't we ask the 3 court reporter to mark a s Exhibit .148 a one 4 page document bearing production number 5 Tran 053886. 6 (Transwestern Deposition Exhibit Number 7 148 mark'd for identification). 8 MR. TALLON: Dr. Kelly, would you 9 please take a moment and review that 1 0 document? And while you're doi n g so I ' 1 1 state for the record that that document 1 2 appears to be a one page letter in Dr. 1 3 Kelly to Mr. D.W. Palmer dated December 17, 1 4 1 9 5 2. 1 5 (Transwestern Deposition Exhibit Number 1 6 148 mark'd f or identification), 1 7 A . Yes, s i r . 1 8 Q Will y ou identify this document 1 9 for the record. if you can. Dr. Kelly? 2 0 A . This i s a letter from me to the 2 1 American Mutual Liability Insurance 2 2 Company , dated December 17, 1952. 2 3 Q And is this the carbon copy of a 2 4 letter that you actually sent to Mr. 2 5 Palmer? |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 98 HARTOLDMONOQ25797 1 A . Yes, it is. 2 Q Was it part of your function a s 3 the m e d i cal director to send this letter? 4 A . Yes, it was. 5 Q And did you write t h is letter a t 6 or a bout the time of the even t s described 7 in i t ? 8 A . Yes, sir. 9 0 - Did you intend for M r. Palmer to 1 0 rely o n the i nformati on a p p e a ring in it? 1 1 A . Yes, I did. 1 2 Q . I want to refer you particular!y 1 3 to the s e c o n d paragraph. The re is a 1 4 statement starting with the words, 1 5 "Certainly I do not believe that the fumes 1 6 evolved at 180 degrees fahrenheit should be 1 7 breathed." Do you see that? 1 8 A.Yes,Ido. 1 9 Q. What is the basis for the 2 0 statement that "I do not believe that fumes 2 1 evolved at 180 degrees fahrenheit should be 2 2 breathed"? 2 3 A. It's my opinion that you would get 2 4 enough evolved -- material involved that 2 5 would be higher than the maximum allowable |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 99 HARTOLDMON0025798 1 concentration . 2 Q. And why 180 degrees? Where does 3 that number come from? 4 A. He must have asked me in his 5 letter. 6 Q. Would it have made a difference to 7 your response if he said 160degrees? 8 A. No, I don't think so. 9 Q, One of the questions that you 1 0 asked Mr. Palmer is if you could let me 1 1 know the Aroclor used. Was your response 1 2 in any way dependent upon the Aroclor used? 1 3 A. Yes, I think so. If I knew which 1 4 Aroclor it was I could have our research 1 5 people tell me how much would come off at 1 6 180 degrees. If it were 1242 it might be 1 7 one thing, if it were 1260 it might be 1 8 something else. 1 9 Q. And your response relates back to 2 0 an answer that you gave earlier today 2 1 indicating that lower chlorinated Aroclors 2 2 are more volatile when heated than higher 2 3 chlorinated Aroclors? 2 4 A . That ' s corre c t . 2 5 Q What is the reason for that REPORTING COMPANY ST. LOUIS, MISSOURI 100 HARTOLDMON0025799 1 distinction? 2 A . I t ' s t h e n a t ure of the beast, 3 Q - One o t h e r t h ing on this document, 4 D r . K e 1 iy The las t sentence in the second 5 paragraph states , " Th e larger capacitor 6 manufacturers, such a s General Electric and 7 Westinghouse, have no t experienced any of 8 these circumstances . " Do you see that? 9 A . Yes, I do. 1 0 Q. Do you know if, or do you 1 1 recollect whether Mr. Palmer was inquiring 1 2 about use of Aroclors for capacitor 1 3 manufacture? 1 4 A . I don't r e call w h a t he w a s 1 5 i n q u i r i n g about. 1 6 Q Do c a p a c i t or m a n u f a c t u r e r s u s e 1 7 h e a t e d Aroclors , s o far a s you k n o w ? 1 8 A . Well, they put the c a p a c i t o r in an 1 9 oven a n d heat it up , but t h e y h a v e v a c u u m 2 0 on t h e ovens . 2 1 Q Was, so f a r as you know. t h e 2 2 Aroclor already installed in the capacitor 2 3 at the time that the capacitor is heated? 2 4 A. Yes. During the manufacture, yes. 2 5 Q. And the capacitor is sealed a t the (GORE REPORTING COMPANY ST. LOUIS, MISSOURI 101 HARTOLDMON0025800 1 time that it's heated, so far as you know? 2 A . I really don't know much about it, 3 I've never been in a capacitor plant . 4 Q. Okay. So you don't know the 5 answer to that question? 6 A . I can't a n s w e r it. 7 Q Doctor, d o you recollect 8 had a conversation during the 1 9 6 0 ' s with a 9 Mr. Louis Redmond of Chrysler Corporation 1 0 regarding a Pydraul product? 1 1 A. No, sir, I don't. 1 2 Q. Why don't we ask the court 1 3 reporter to mark as Exhibit 149 a three 1 4 page document bearing production numbers 1 5 Tran 058086 through 088. ^ 1 6 (Transwestern Deposition Exhibit Number 1 7 149 mark'd for identification)? 1 8 MR. TALLON: Doctor, I'm going to 1 9 ask you to review this document, please. 2 0 And while you're doing that. I'll state for 2 1 the record that the document appears to be 2 2 a Monsanto Call Report, Organic Division 23 Marketing Department. My question to you. 2 4 Dr. Kelly, will be whether reviewing this 2 5 document refreshes your recollection about IGORE REPORTING COMPANY ST. LOUIS, MISSOURI 10 21 HARTOLDMON0025801 1 having had a communication with a Mr. Louis 2 Redmond of Chrysler Corporation during the 3 1 960 ' s ? e 4 A . Yes, sir. 5 0 Does reviewing any portion of the 6 Exhibit 149, in c 1 u d ing the handwritten 7 notation on page 2 , refresh your 8 recollection as to whether or not you had a 9 communication with Louis Redmond of 1 0 Chrysler Corporation during the 1960's? 1 1 A. No, it doesn't. 1 2 Q. During the period that you were 1 3 medical director did you from time to time 1 4 make telephone calls to customers at the 1 5 request of sales personnel? 1 6 A. Oh, yes. 1 7 Q. Was it in part your purpose in 1 8 making those calls to assist a sales 1 9 effort? 2 0 A . Well, indirec tly. But the main 2 1 p u r p o s e was to tell t h e information -- 2 2 depends on the reason for the call. It was 2 3 either to give the man information a s to 2 4 the t o x icologic a 1 a s p e cts of the product, 2 5 whether or not there i s any potential IORE REPORTING COMPANY S T . LOUIS, MISSOURI 103 HARTOLDMON0025802 1 avenues of harm to a worker from the 2 product and answer what questions they had 3 about the safety of the product . If that 4 helped the sales effort, fine. But the 5 main problem was to be sure our product 6 could be used safely. 7 Q. When you used the termindirectly 8 in your last answer, did you mean to 9 suggest if the information was provided to 1 0 the person to whom you spoke, then that 1 1 might aid the sales effort? 1 2 A. If he didn't want to use the 1 3 product becaus e he did n ' t know anything 1 4 about the toxi city, he was worried about 1 5 the toxicity. and if I was able to expla i n 1 6 to him the safe use of the product, how i t 1 7 had been used safely, that would certain 1 Y 1 8 h el p the sales effort . But that's the 1 9 indirect extra dividend o f i t . 2 0 Q. Just refer back to that exhibit 2 1 one more moment. Dr. Kelly, please. And on 2 2 page 2, can you tell me whether that is 2 3 Elmer Wheeler's handwriting? 2 4 A. Yes, it is. 2 5 Q. Doctor, do you have any GORE REPORTING COMPANY ST. LOUIS, MISSOURI 104 HARTOLDMON0025803 1 recollection of having discussed a n 2 employee complaint regarding a P y d r a u 1 3 product whete the employee was an employee 4 of W e 1 m a n International? 5 A . I don't recall it. 6 Q. Why don't we have the court 7 reporter mark as the next exhibit a one 8 page document bearing production number 9 Tran 062752. 1 0 (Transwestern Deposition Exhibit Number 11 150mark'd for identification). 1 2 A. No, sir, this doesn't change my 1 3 lack of recollection. 1 4 Q. In other words, reviewing this one 1 5 page document which appears to be a telex 1 6 does not refresh your recollection on the 1 7 subject of having communicated with someone 1 8 on the subject of a Welman International 1 9 employee? 2 0 A. No, sir, it does not. 2 1 Q. Dr. Kelly, did you see telexes 2 2 like this one while you were employed by 2 3 Monsanto? 2 4 A. Yes. 2 5 Q. Are you able to ascertain from a [GORE REPORTING COMPANY ST. LOUIS, MISSOURI 10 5 HARTOLDMON0025804 1 review of the document before you the date 2 of this telex? 3 A . No*, I a m not. 10 November 4 something, but -- I'm not. 5 MR. PREUSS: Not 1134, we don't 6 think. 7 MR. T A L LO N : Certainly not. I'm 8 going to ask the court reporter to mark as 9 Exhibit 151 a one page document bearing 1 0 production number Tran 019659. 1 1 (Transwestern Deposition Exhibit Number 1 2 151 mark'd for identification). 1 3 MR. TALLON: Would you take a 1 4 moment and review that document. Doctor, 1 5 which I will describe for the record as a 1 6 document which appears to be a copy of a 1 7 letter from Dr. Kelly to Dr. Spolyar, dated 1 8 February 14, 1950. 1 9 A. Yes, sir. 2 0 Q. Can you identify the document for 2 1 the record, please? 2 2 A. It's a letter from me to Dr. 2 3 Spolyar of the Indiana State Board of 2 4 Health, dated February 14, 1950. 2 5 Q. Earlier we saw a n exhibit which GORE REPORTING COMPANY ST. LOUIS, MISSOURI 1 0 61 HARTOLDMON0025805 1 was Dr. Spolyar's letter to you. Is this 2 your response to him? 3 MR *. P R E U S S : Wait a minut e . Which 4 one are you talking about? 5 MR . TA LLON : Exhibit 144. 6 MR . P R E U S S : Thank you. 7 A . Well, I don ' t know if t h a t was in 8 r e s p o n s e to this -- to Dr. Spolya r ' s 9 letter of February 6th. Waiting eight days 1 0 in a case like this to an official report 1 1 of health was not our official procedure, 1 2 so I think there was some other 1 3 communication in between. I think I talked 1 4 to him in between there. But it was in 1 5 response to the same incident. 1 6 Q. Are you suggesting by your answer 1 7 that you had a practice of responding more 1 8 rapidly than an eight day time frame to a 1 9 request for information from an official 2 0 state agency? 2 1 A. No, from any doctor about a 2 2 patient. 2 3 Q . I want to refer you to the third 2 4 full paragraph in the letter. Doctor . The 2 5 first sentence states that "The toxicology (GORE REPORTING COMPANY ST. LOUIS, MISSOURI 1 07 HARTOLDMON0025806 1 of Aroclors is somewhat confused." Do you 2 see that? 3 A. Yes. 4 Q. And you're referring in that 5 paragraph to the work of Dr. Drinker, 6 correct? 7 A. Yes. 8 Q. And is the confusion his finding 9 that Aroclor 1254 was considerably more 1 0 toxic on inhalation than Aroclor 1268? 1 1 A. Well, it's more than that. 1 2 Q. What is the confusion? 1 3 A. The confusion was that Dr. Drinker 1 4 ran a compound that he said was 1265, which 1 5 we don't make, but we make a chlorinated 1 6 diphenyl benzene which is 4465, and that 1 7 was quite toxic. And then he wrote it up 1 8 as an Aroclor -- PCB, where it was not a 1 9 PCB, it was a chlorinated diphenyl 2 0 benzene. I called Drinker and said, "What 2 1 goes on? This doesn't look like what our 2 2 experience has been. This isn't a s toxic 2 3 as you 're talking about. Where did you get 2 4 the 1265? And, in fact, we don't make a 2 5 1265, we make a 1268 and a 1260." And he [GORE REPORTING COMPANY ST. LOUIS, MISSOURI 1 08 HARTOLDMON0025807 1 said " I got i t from Hal o w a x . " That w a s the 2 people we so 1 d the prod u c t s t o . I said "I 3 will send y 6 u some hone s t to g o o d n e s s 12 6 8 4 that we make ourself. I'll s end it fr o m 5 our producti o n line. " So we s e n t it t o him 6 and he teste d and found it w a s a tenth a s 7 t o x i c as the material h e was t a Iking 8 abou t . Sol ' m not -- I must h a v e add e d t o 9 the confusio n myself w h e n I s a y I don' t -- 1 0 I f i n d it ha r d to e x p1 a in t h i s s t a t e m e n t r 1 1 "The c o n f u s i o n existed in his f i n d i n g s that 1 2 A r o c lor 1254 r which is the d i ph e n y 1 1 3 c h 1 o r i n a t e d t O only 54 p e r c e n t , was 1 4 cons iderably more toxic on in h a 1 a t i o n . W e 1 5 did not supply him with this m a t e r i a 1 . S o 1 6 I ' m a little confused about tha t . 1 7 Q. Do you know, independent of the 1 8 Drinker work, whether 1254 was more toxic 1 9 than 1268 on inhalation? 2 0 A . W e didn't run 1268 on i nhalation 2 1 we ran 12 4 2 and 1254. And I don ' t know 2 2 whether Drinker -- at this date I cannot 2 3 tell you whether Drinker ran 1268 on 2 4 inhalation . I'm not sure. 2 5 Q . Are you stating, in essence, that |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 10 9 HARTOLDMON0025808 1 you ' re not sure what you meant today by the 2 confusion described in the third paragraph 3 of this letter? 4 MR. PREUSS: You mean meant then 5 or today? 6 MR. TALLON: Can't describe today 7 what he meant then. 8 MR. PREUSS : Fine. 9 A. Well, I don't know why I brought 1 0 1254 into it, I'm confused on that myself. 1 1 But I know Drinker's big problem was 1 2 calling a chlorinated diphenyl benzene a 1 3 PCB, when they're not, they're completely 1 4 different. 1 5 (Noon Recess). 1 6 MR. TALLON: All right. We're 1 7 back on the record af ter our lu n c h break 1 8 D r . Kelly, do you hav e any r e c o lie c t i o n o f 1 9 h a v i n g r e c e ived an in q u i r y from U n ilever r 2 0 the English company. about the t o X i c i t y o f 2 1 Aroclor 1242 during the 1 9 6 0 ' s ? 2 2 A . No, sir. 2 3 Q. Why don't we have marked as 2 4 Exhibit 152 a one page document bearing 2 5 production numbers Tran 008403, which is a |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 110 HARTOLDMON0025809 1 document on Monsanto Chemicals Limited 2 letterhead, dated June 9, 1964. 3 (Transwestern Deposition Exhibit Number 4 15 2 mark ' d for identification). 5 MR. TALLON : Would you take a 6 moment , please, and review that document. 7 Dr. Kelly? 8 A. Yes, sir, I have looked it over. 9 Q. Do you recollect having received 1 0 the or i g i n a 1 o f E x h i b it 152? 1 1 A . N o . I ' m s u r e I received it It's 1 2 sort o f an i n t e r e s t i n g article, that D r 1 3 Pars o n s s h o u Id b e loo king for someth i n g t o 1 4 kill chi c k e n s . I don 't know. But, n o , I 1 5 have no recollection of this even after 1 6 reading this. 1 7 Q. Setting this particular document 1 8 aside, do you have a recollection of any 1 9 communications that you may have had with 2 0 Unilever on the subject of Aroclors? 2 1 A. No, sir. 2 2 Q. Doctor, do you have any 2 3 understanding whether the term "Killer 2 4 compound" is a term of art? 2 5 A. I never heard it before . |G 0 R E REPORTING COMPANY ST. LOUIS, MISSOURI 111 HARTOLDMON0025810 1 Q Why don't we have marked as the 2 next exhibit, number 153, a two page 3 document bearing production numbers Tran 4 012178 and 79. 5 (Transwestern Deposition Exhibit Number 6 15 3 mark'd for identification) . 7 MR. TALLON: Could you take a 8 moment and review that document. Dr. Kelly? 9 A . Yes. 1 0 Q While you ' r e doing that I'll 1 1 describe the docum e n t for the record. 11 1 2 appears to be a t w o page memorandum dated 1 3 December 19, 1958. 1 4 A . Yes, s i r . 1 5 Q . Can y o u i dent ify thg document. D r 1 6 Kelly? 1 7 A . Yes. I t ' s a letter -- this i s a 1 8 document from R . D . Minteer and myself to 1 9 D . F . S m i t h cone e r n i n g the labeling of 2 0 Pydrauls 2 1 Q And do you remember working on 2 2 this document? 2 3 A. I have a vague recollection, but 2 4 no more than that. 2 5 Q. Is that your signature which GORE REPORTING COMPANY ST. LOUIS, MISSOURI 1 12 HARTOLDMONOQ25811 1 appears on page 2 ? 2 A . Yes, it is. 3 Q A n & can you identify M r . Minteer ' s position in 1958? 5 A . He was in charge of 1 a b e 1 i n g and 6 packaging for the organic division, which 7 was the division that manufactured 8 Pydrauls. 9 Q, Do you know if Mr. Minteer is 1 0 still living today? 1 1 A. I don't know. He is not working 1 2 for Monsanto any more. 1 3 Q , Do you know a Mr. D . F . Smith who 1 4 was an employee of M o n s a n t o in December of 1 5 1 958 ? 1 6 A. Yes. He was, I think, in the 1 7 marketing department, industrial fluids. I 1 8 don't know if he's there. 1 9 Q. And what was Mr. C.E. Caspari's 2 0 position with Monsanto in December of 1958? 2 1 A. He was an associate counsel. He 2 2 is dead. 2 3 Q. And what was Mr. Newcombe's 2 4 position with Monsanto in 1958? 2 5 A . He also was, I believe, in the Igor e reporting company st . louis, Missouri 1 13 HARTOLDMONOQ25812 1 ii marketing business . I don't know anything 2 about his whereabouts . 3 Q. Dofctor, are you able to state 4 today whether you drafted any portion of 5 this two page memorandum? 6 A. I'm sure I did. But this is 7 Minteer's secretary did it, but I signed 8 it. I'm sure I helped in the drafting of 9 it. 1 0 Q. Let me just ask you a couple of 1 1 questions about it, given your 1 2 understanding -- or knowledge of the 1 3 document, rather. There is a -- the 1 4 document appears to relate to a labeling 1 5 issue with respect to Pydraul products, 1 6 correct? 1 7 A . Yes. 1 8 Q It is s u g g e s ted by this memorandum 1 9 the label state. among other things. 2 0 "Contains chlorinated hydrocarbons," 2 1 correct? 2 2 A . Yes. 2 3 Q. Is the term chlorinated 2 4 hydrocarbons synonymous with 2 5 polychlorinated biphenyls? |GORE REPORTING COMPANY ST. LOUIS , MISSOURI 1 14 HARTOLDMONOQ25813 1 A. Oh, no. Chlorinated hydrocarbons 2 is a generic term that relates to anything 3 having chloVine, hydrogen and carbon in 4 it. Carbon tetrachloride, which used to be 5 used for cleaning typewriters , is a 6 chlorinated hydrocarbon. So chlorinated 7 biphenyl is a chlorinated hydrocarbon, but 8 all hydrocarbons -- but they make up only 9 a small percentage of chlorinated 1 0 hydrocarbons . 1 1 Q. To your knowledge. Dr. Kelly, did 1 2 any of the Pydraul products described in 1 3 the second paragraph of this memo contain 1 4 polychlorinated biphenyls? 1 5 A. Yes. I know the Pydrauls did, 1 6 yes. 1 7 Q. Do you know if all of those 1 8 products listed there included 1 9 polychlorinated .biphenyls as a constituent 2 0 element? 2 1 A To the best of my recollection. 2 2 yes. 2 3 Q. Are you aware today of any reason 2 4 why the proposal was to state "Contains 2 5 chlorinated hydrocarbons" as opposed to Igor e reporting company st . louis, Missouri 115 HARTOLDMONOQ25814 1 "Contains polychlorinated biphenyls"? 2 A. Oh, I think it complied with the 3 law. The 1h w said anything that contains 4 chlorinated hydrocarbons shall have that 5 statement on it. 6 Q . Right. Is there any reason why 7 -- that you know of today why the 8 suggestion was not "Contains 9 polychlorinated biphenyls"? 1 0 A . No. I don't know o f any reaso 1 1 Q Doctor, just one o r two other 1 2 questions. There is a sentence in the last 1 3 paragraph on the first page which states 1 4 "However, we have never had such a caution 1 5 statement during the many years of their 1 6 manufacture and it would very probably 1 7 cause considerable unrest in the 1 8 transformer plants." Do you see that? 1 9 A. Yes, sir. 2 0 Q. Do you know to what that statement 2 1 refers, that is to say, what is meant by 2 2 considerable unrest in the transformer 2 3 plants? 2 4 A. Well, I would imagine that it 2 5 means here the people have been using this |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 116 HARTOLDMONOQ25815 1 compound for years, it c o m e s i n the s a m e 1 2 way with a warning state m e n t o r c a u t i o n 3 statement on it, t h e y ' r e s aying "What goes 4 on? Have you changed the product? " So I 5 think that unrest is a term, probably, I 6 would not use today. I'd say inquiry in 7 the trans former plants . 8 MR. PREUSS: Just for my 9 clarification, did you preface your 1 0 question with respect to limiting it to 1 1 transformer fluids, which I think that 1 2 paragraph does? 1 3 MR. TALLON: I only read that 1 4 sentence. Certainly the paragraph, I 1 5 believe, refers to Pyranol and Interteen, 1 6 which I believe are dielectric fluids, 1 7 correct? 1 8 A. That's correct. 1 9 MR . PREUSS: But it does s a y in 2 0 the case o f transformer fluid s w h i c h are 2 1 composed o f , and then it goes on t o speak 2 2 of the transformer flu ids. 2 3 MR . TALLON: Right. D o c t o r , d o 2 4 you have a n understand ing today of the 2 5 difference between the usage of Pydraul (GORE REPORTING COMPANY ST. LOUIS, MISSOURI 117 HARTOLDMONOQ25816 1 fluids and Pyranol and Inerteen on the 2 other hand? 3 A . Y e fe . 4 Q. Can you tell us what that 5 understanding is? 6 A. Some are used in transfor 7 some are used i n hydraulic presses 8 Q. Which is which? 9 A. The Pyranol or Inerteen are trade 1 0 names for the dielectrics of G.E. and 1 1 Westinghouse. And Pydrauls are Monsanto's 1 2 trade name for its use in hydraulic fluids. 1 3 MR. PREUSS: So the Pyranol and 1 4 Inerteen refer to transformer fluids, 1 5 correct? 1 6 A. Yes. Pyranol is G.E.'s trademark 1 7 for their transformer fluid, Inerteen is 1 8 Westinghouse 's . 1 9 MR. TALLON: And both of those 2 0 companies were customers of Monsanto? 2 1 A. Yes. 2 2 Q. Doctor, do you recollect 2 3 expressing any disagreement with the last 2 4 paragraph on -- or, rather, the only 2 5 sentence on page 2 of this two page [GORE REPORTING COMPANY ST. LOUIS , MISSOURI 118 HARTOLDMONOQ25817 1 memorandum? 2 A . What was the first -- 3 Q. Yes. Do you recollect having 4 expressed any disagreement with respect to 5 that statement? 6 A . No. 7 Q. Doctor, I want to show you a one 8 page document which doesn't have a 9 production number on it. It does have a 1 0 designation at the bottom that says 1 1 "Attachment 3-2." And I'll ask the court 1 2 reporter to mark that as Exhibit 154 and to 1 3 show i_t to you. 1 4 (Transwestern Deposition Exhibit Number 1 5 154 mark'd for identification). 1 6 MR. TALLON: Would you take a 1 7 moment to review that document? 1 8 A. Yes, I remember it. 1 9 Q . Can you describe it for the 2 0 record, please? 2 1 A. This is a memorandum by L.A. Watt, 2 2 dated October 11, 1937, in which he writes 2 3 some safe handling -- or some safe 2 4 handling data and possible ill-effects, or 2 5 the ill-effects in experimental animals, bORE REPORTING COMPANY ST. LOUIS, MISSOURI 119 HARTOLDMONOQ25818 1 and he q u o t e s me -- he q u o t e s -- h e 2 m e n t i o ns that he talked t o m e before these 3 paragr a p h s Were written a n d w e agree d they 4 could be us e d not only i n the A r o c 1 o r 5 booklet, but quoted in correspondenc e as 6 that may be necessary. 7 Q. Do you recall discussing th e first 8 three paragraphs of this memorandum with 9 L.A. Watt? 1 0 A. Yes, I do. 1 1 Q. And what was Watt's positio n in 1 2 October 1937? 13 A. He wasa head of what they called 1 4 the technical services department of the 1 5 organic chemical division of the Mon santo 1 6 company. 17 Q. Andwhat was his job functi on, if 1 8 you know? 1 9 A. Well, among other things, h e was 2 0 helping in writing the safe handling data 2 1 on products of that division before I 2 2 showed up. And he obviously had oth e r 2 3 duties in the technical services . 2 4 Q. Do you know if Mr. Watt is still 2 5 living today? GORE REPORTING COMPANY ST . LOUIS , MISSOURI 120 HARTOLDMONOQ25819 1 A . I know he isn't 2 Q . T h e memorandum by Mr . Watt, dated 3 t o b e r 1 1 , * 1 9 3 7 , has a t the foot of it a 4 designation "Attachment3 - 2 . " Do you know 5 whether this single piece of paper that 6 constitutes the exhibit is part of a 7 greater document, that is to say, a 8 document with additional pages? 9 A. No, sir. 1 0 Q. Do you know what experimental work 1 1 is referred to in the first paragraph of 1 2 this memorandum? 1 3 A. I think -- I believe it is 1 4 Drinker's work. 1 5 Q . And when the p h r a s e " high 1 6 temperatu res" is used in the f i r s t 1 7 paragraph , do you know t o what t h a 1 8 refers? Are there a range o f temp 1 9 A . I don't know the range. 2 0 Q. Do you know what is meant by the 2 1 phrase "systemic toxic effects" as it is 2 2 used in the first paragraph? 2 3 A. Yes. It just means ill-effects on 2 4 the body a s a whole, rather than local 2 5 effects on the skin. (GORE REPORTING COMPANY ST. LOUIS , MISSOURI 121 HARTOLDMON0025820 1 Q. Do you know what particular 2 systemic toxic effects are referred to a s a 3 result of the experimental work in animals 4 referred to in that paragraph? 5 A . Yes. 6 Q. Which? 7 A. Liver. 8 Q. Anything else? ' 9 A. No, sir. 1 0 Q. Do you know if the language 1 1 encompassing paragraph 1 of this memorandum 1 2 was used in any labeling or product 1 3 development brochure produced by Monsanto? 1 4 A . No, I don't know for sure. I 1 5 don't recall what happened to the booklets. 1 6 but we both -- both Watt and I agreed that 1 7 it could be used in the Aroclor booklets. 1 8 Q. Do you recall seeing an Aroclor 1 9 booklet which included the language that 2 0 oral ingestion or exposure to vapor at high 2 1 temperatures will lead to systemic toxic 2 2 effects? 2 3 A. I can't recall whether I -- it 2 4 was in that exact language or not. 2 5 Q. Do you recall ever seeing a |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 122 HARTOLDMON0025821 1 product brochure or label that included a 2 reference to systemic toxic effects? 3 A. Of' some sort or other, yes, I've 4 seen those. 5 Q. Do you know which particular 6 brochures or booklets you're thinking of? 7 A. Since 1937 we've probably had 40 8 different Aroclor booklets, and I can't 9 pick one out. But usually in every Aroclor 1 0 booklet we had a statement on toxicity and 1 1 safe handling, that was almost universal. 1 2 Q. When you're using the term Aroclor 1 3 booklet, how are you using it? 1 4 A. Well, that's the name of the 1 5 booklet. It says Aroclor on it. 1 6 Q . Was there a separate booklet for 1 7 each of the Aroclor products? 18 A. No. Not necessarily. They had 1 9 booklets that encompassed the whole range 2 0 of Aroclors, they had booklets, or 2 1 bulletins or brochures that listed specific 2 2 Aroclors for specific purposes . If a n 2 3 Aroclor were going to be used in a 2 4 transformer, they had -- Aroclors in 2 5 trans formers is what the title would be. GORE REPORTING COMPANY ST. LOUIS, MISSOURI 123 HARTOLDMONOQ25822 1 I f they were going to be used as a 2 plasticizer, they would say Aroclors as 3 plasticizers, and so on. 4 Q, Do you today recollect having seen 5 a n Aroclor booklet dealing with the use of 6 Aroclors as lubricating fluids? 7 A ,, I can't say I remember i t . 8 Q , Do you have a recollect ion of 9 having ever seen any product lit e r a t u r e 1 0 that dealt with the product Turbinol 153 1 1 that included the language "systemic toxic 1 2 effects"? 1 3 A. Not under those -- under that 1 4 name, I do not. But some of the 1 5 ingredients that were used in Turbinol may 1 6 have been listed under OS numbers or MCS 1 7 numbers that would have included it. 1 8 Q. Do you recall seeing a booklet or 1 9 brochure for MCS-153 that included the 2 0 language "systemic toxic effects"? 2 1 A. I don't recall it. I certainly 2 2 may have. 2 3 Q. Do you recall seeing a product 2 4 brochure or other document relating to 2 5 OS-81 that included the words "systemic IGORE REPORTING COMPANY ST. LOUIS, MISSOURI 12 4 HARTOLDMONOQ25823 1 toxic effects"? 2 A . I've seen the bulletins, but I 3 cannot recall a t present what it included . 4 I very probably did. 5 Q. But you don't recall? 6 A. No. But that was our p o 1ic y, to 7 include it in all new products , n e w 8 development products. 9 Q. Do you, by the way, ever recall 1 0 seeing a label for any of the thr e e 1 1 products, those we've just named, that 1 2 included the language "systemic t o x i c 1 3 effects"? 1 4 A. That would not be usually put on a 1 5 label, no. 1 6 Q Why would t h a t not be usual? 1 7 A . Because ther e i s only so much you 1 8 can put on a label , a n d you put on a label 1 9 the information to k e e p a person from 2 0 g e 11 i n g harmed by the product. 2 1 Q I want to r e f er you to the second 2 2 paragraph of this one page exhibit. 2 3 Doctor. There is a reference to an 2 4 acne-form skin eruption. Is that a 2 5 reference to chloracne? |GORE REPORTING COMPANY ST. LOUIS , MISSOURI 12 5 HARTOLDMONOQ25824 1 A . Yes. 2 Q What is c hloracne, exactly? 3 A . Chloracne is a skin eruption 4 similar to teenage acne that is more 5 serious , it may be accompanied by 6 pigmentation that is somewhat more severe, 7 that is caused by exposure to chlorinated 8 compounds. Not necessarily only PCB, any 9 number of chlorinated compounds cause 1 0 chloracne . 1 1 Q. Is chloracne caused by exposure to 1 2 PCBs ? 1 3 A . Not b y exposure. by s u 1 4 expo sure. P r o 1 onged expos u r e . 1 5 Q . Is the chloracne which 1 6 by s ufficien t e xposure to P C B s 1 7 condition? 1 8 A . That's what it's believed to be, 1 9 and I believe it, also. 2 0 Q. And how do you define systemic as 2 1 used in your response to my question? 2 2 A . That is a n action on the various 2 3 elements of the skin caused by absorption 2 4 of the offending agent and not due to local 2 5 contact with the skin. Not due to local GORE REPORTING COMPANY ST. LOUIS, MISSOURI 12 6 HARTOLDMONOQ25825 1 action on the skin rather than local 2 contact . 3 Q . And are youfamiliar with the term 4 dermatitis? 5 A . Yes. 6 Q . And how doyou definedermatitis? 7 A. Dermatitis is either a n 8 inflamation or a n infection of the skin. 9 Q. And is there a difference between 1 0 a systemic condition resulting in chloracne 1 1 and dermatitis resulting in chloracne? 12 A. Well, dermatitis is a name for the 1 3 disease of the skin, and chloracne is a 1 4 dermatitis, but it's caused by systemic 1 5 action. Just like hives from strawberries 1 6 is a dermatitis due to ingestion of 1 7 strawberries and a systemic reaction to 1 8 strawberries . 1 9 Q. What is the systemic function 2 0 implicated by chloracne caused by 2 1 sufficient exposure to PCBs? 2 2 A . What is the systemic function? I 2 3 don't know what that means . 2 4 Q. What system is it that causes 2 5 chloracne based on sufficient exposure to (GORE REPORTING COMPANY ST. LOUIS, MISSOURI 127 HARTOLDMON0025826 1 PCBs ? 2 A. Presumably, something to do with 3 fat metabolism . 4 Q. During the period that you were 5 medical director did you commission any 6 studies to determine the relationship 7 between chloracne and exposure to PCBs? 8 A. We knew that if you got excessive 9 amount -- excessive exposure you may get 1 0 chloracne . 1 1 Q. And can you place in time when you 1 2 first knew that? 13 A. Yes. 1937. 1 4 Q. And upon what do you base that 1 5 answer? 1 6 A. There was information in the 1 7 literature that Swann Chemical Company had 1 8 lawyers -- had workers develop chloracne 1 9 in their PCB department due to the use of 2 0 an off-specification benzene in the 2 1 manufacture of a material. 2 2 Q. Doctor, the October 11, 1937 memo 2 3 refers to the use of protective clothing, 2 4 in paragraph 3? 2 5 A . Yes, sir. |GORE REPORTING COMPANY ST. LOUIS , MISSOURI 1 28 HARTOLDMON0025827 1 Q. And for what purpose was 2 protective c 1 o thing recommended? 3 A. If' you were in a n operation where 4 you're liable to have spills or splashes 5 you put something on to keep it from 6 getting on your skin. 7 Q. And, Doctor, one other question. 8 Have you ever seen a label for Turbinol 9 153, MCS-153 or OS-81 that included a 1 0 reference to chloracne? 1 1 A. No, sir. I said before it did not 1 2 list what would happen. On a gasoline tank 1 3 you say do not use matches, they don't say 1 4 don't use matches, it's going to blow you 1 5 into the next county. 1 6 Q. Did you ever see a product 1 7 brochure or specifications for one of those 1 8 three products that included a reference to 1 9 chloracne? 2 0 A . Y e s . I c a n n o t r e c a 1 1 a t pres 2 1 but I'm s u r e we d i d h a v e inf o r m a t i o n 2 2 relating t o the p o s s i b 1 e o c c urrenc e of 2 3 chloracne i n r e 1 a t ion t o two o f t h e 2 4 products. I did n o t see -- I d o not 2 5 recall any on T u r b i n o 1 . I s i t Turbino GORE REPORTING COMPANY ST. LOUIS, MISSOURI 129 HARTOLDMONOQ25828 1 A . Yes. 2 Q. Turbinol 153. 3 A . T h fe OS's and th e MCS ' s , i t ' s m y 4 rec o 1 1 e c t i o n that there were b u 1 1 e tin s on 5 t h a t t h a t in eluded possi b 1 e i 1 1 - e f fee t s . 6 Q Are you referri n g in your a n s w e r 7 s p e c i f i c ally to OS-81 an d MCS -15 3 o r 0 S 8 pro ducts and MCS product s gen erica 1 ly ? 9 A . I thought OS-51 was s p e c i f i c , but 1 0 I ' m not sure . Was it 51 or 6 1 ? 11 Q 81 . 1 2 A . I c an't be sure 1 3 Q Why don't we ma r k as E x h i bit 15 5 a 1 4 one page document -- ju s t be fore w e d o 1 5 t h a t , Dr . Kelly, we were just talk i n g about 1 6 E x h i b i t 15 4, which was the me mo f r o m M r . 1 7 Watt. Do you recall getting a copy of that 1 8 at or about the time it was dated? 1 9 A . I don't remember. but it w o u 1 d 2 0 standard office procedure that I w o u 1 d . 2 1 Q - Did you maintain a file i n you r 2 2 office or for us e by your offices w i t h 2 3 respect to labeling of PCB-based products? 2 4 A . Yes, sir. 2 5 Q . I was about to ask the court |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 13 0 HARTOLDMON0025829 I} i 1 j reporter to mark as Exhibit 155 a one page 2 document b e a rin g a number of document 3 number designations , the most recent of 4 which may be T 091748. 1 1 appears to be a 5 one page document, dated February 1 2 , 6 1 9 5 4. 7 (Transwestern Deposition Exhibit Number 8 155 mark'd for identification)? 9 MR. TALLON: Would you take a 1 0 moment , please. and review that document? 1 1 A . Yes, si r, I've read it. 1 2 Q Can you identify the do c u m e n t ? 1 3 A . It's a letter memorandu m from me 1 4 to Dr. Newman, w ho was in charge of our 1 5 plant at Newport , England, dated February 1 6 12, 1954 1 7 Q Was it part of your job to write 1 8 this memo? 1 9 A . Yes, si r . 2 0 Q Did you intend for Dr. Newman to 2 1 rely on the info r m a tio n in it? 2 2 A . Yes, si r . 2 3 Q And did you write it on or about 2 4 the date that it is dated, that is to say 2 5 February 12, 195 4 ? (GORE REPORTING COMPANY ST. LOUIS, MISSOURI 13 1 HARTOLDMON0025830 1 A . Yes , s ir . 2 Q W ere y o u respondi n g to s o m 3 r y f r o m D r . Newman in a u t h o r i n 4 memo? 5 A . Yes. I ' m sure, because the last 6 raph says don' t worry about asking me 7 questions , s o he must have asked me 8 some questions. 9 Q. Do you remember if Dr. Newman's 1 0 inquiry to you was a written one? 1 1 A . Yes. I m sure -- I fee 1 2 sure he d i d n ' t call me from Engla 1 3 Q . In 1 9 5 4 ? 1 4 A . Yes. 1 5 Q . I w a i e d to refer you t o the 1 6 c h is somewhat 1 e g i b1e that 17 the m i dd1e of the page. Is 1 8 riting ? 1 9 A. It d( sn't look like i t . I can't 2 0 even make it out. 2 1 Q. The third paragraph of the 2 2 memorandum states, "What we were really 2 3 worrying about was the possibility that a 2 4 man would develop hepatitis," and so 2 5 forth . To what worry does that refer? [GORE REPORTING COMPANY ST. LOUIS, MISSOURI 132 HARTOLDMON0025831 1 A . I t refers to the possibility that 2 a man would develop hepatitis and blame the 3 paint that he used a t a time in the past a s 4 the cause of his hepatitis . 5 Q. There is a sentence which follows 6 the sentence I just read from. I did not 7 read the full sentence, but there is a 8 sentence following the sentence I just read 9 from stating, "I am afraid that we might be 1 0 convicted by association," et cetera? 1 1 A. Yes. 1 2 Q. Is the meaning of that sentence 1 3 that you were afraid that Monsanto might be 1 4 held liable for such a condition on the 1 5 part of a painter? 1 6 A. Well, I don't know about the 1 7 liability. I mean, a painter may believe 1 8 that Aroclor paint had some association 1 9 with his hepatitis. 2 0 Q. And so what -- 2 1 A. I can't address myself to your 2 2 liability question . 2 3 Q . What did you mean when you used 2 4 the term "we might beconvicted"? 2 5 A. In somebody's mind. [GORE REPORTING COMPANY ST. LOUIS, MISSOURI 13 3 HARTOLDMONOQ25832 1 Q There is a s e n t ence in t h e f i rst 2 paragraph of this mem ora ndum that s t a t e s , 3 "We have run animals for about 60 days a t 4 seven tim es this and f o u nd some li v e r 5 damage . " Do you see t h a t ? 6 A . Yes, sir. 7 Q Does that se n t e nee refer to a 8 study or a series of s t u dies? 9 A . It refers to a series of stud i e 3 1 0 that we were running a t the Univer s i t y o f 1 1 Cincinnat i by Dr. Tre o n , T-r-e-o-n 1 2 Q And to the b e s t of your 1 3 recollect ion, when we r e those stud i e s 1 4 completed 7 1 5 A . Sometime in 5 4 16 Q. When you used the term series of 1 7 studies, are you referring to more than one 1 8 report resulting from a study? 19 A . No.I think it's all parts of the 2 0 same study. In other words, this man 2 1 started out presumably around 7 milligrams 2 2 per cubic meter and then did some more 2 3 lower level. 2 4 Q. And what does the term liver 2 5 damage refer to in that same sentence? IGORE REPORTING COMPANY ST. LOUIS, MISSOURI 134 HARTOLDMONOQ25833 1 MR. PREUSS: What is the nature of 2 the liver damage? 3 MR* TALLON: Yes. What is the 4 nature of the liver damage? 5 A. Effects of the liver, cloudy, 6 swelling. I didn't go into the medical 7 aspect of exactly what type of microscopic 8 damage was done. 9 Q. Right. The memorandum does not 1 0 specify the types of liver damage. I'm 1 1 wondering now what you were referring to. 1 2 You mentioned cloudy and swelling, was 1 3 there anything else? 14 A. No. There was some disease at the 1 5 cellular level. 1 6 Q. What do you mean by the phrase 1 7 disease at cellular level? 18 A. Well, the level -- the liver 1 9 cells at the individual microscopic 2 0 cellular level showed changes in their 2 1 structure due to the effects of the 22 Aroc 1 or . 2 3 Q Have you ever heard of Aroclor 2 4 having the effect of causing enzymatic 2 5 changes in liver function? [GORE REPORTING COMPANY ST. LOUIS, MISSOURI 135 HARTOLDMONOQ25834 1 A . Yes. 2 Q. What have you heard? 3 A . That it does sometimes . 4 Q. And whatenzymatic changes have 5 you heard that Aroclor has caused in liver 6 function? 7 A. Again, it depends on the amount, 8 if they have a serious amount. Remember, 9 we're talking about enzymes. They were not 1 0 running liver enzymes in 1954. 1 1 Q. Right. 1 2 A. So the enzymes that they run now 1 3 in the usual liver panel is GGT, SGOT and 1 4 SGPT . 1 5 Q. And setting aside for a moment the 1 6 amount of Aroclor involved, what are the 1 7 possibilities that you know about with 1 8 respect to the enzymatic changes? 1 9 A. You can't set aside the exposure 2 0 levels. 2 1 Q . What are the possibilities? 2 2 A . 0 f what? 2 3 Q . What changes might occur. 2 4 A. Might occur from nothing to very 2 5 serious changes . |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 136 HARTOLDMONOQ25835 1 Q . What are the very serious ones? 2 A. Swelling of the liver, damage to 3 the liver cells . 4 Q . Anything else? 5 A . No. I can't be sure of what -- I 6 cannot recall the details of the high 7 exposure levels in experimental animals. 8 Obviously, some of the animals died. 9 Q. Was the death related to liver 1 0 dysfunction? 11 A. Whether it was solely due to the 1 2 liver or not, Ican't say. But I believe 1 3 the liver played a major part in it. 1 4 Q You i n d i c a t e d , D o c t o r , that 1 5 19 5 4 work was n ' t being done o n enzyme 1 6 liver enzymes r i s that c o r r e c t ? 1 7 A. That's correct. 18 Q. Do yourecall when that work first 1 9 began? 2 0 A. I can't be sure of the date. 2 1 Q. Can you approximate it? 2 2 A. Late '60's. 2 3 Q. One other q u e s t i o n on this 2 4 document. Doctor. If you look a t paragraph 2 5 3 , the document states , " W e have. however. (GORE REPORTING COMPANY ST. LOUIS, MISSOURI 13 7 HARTOLDMON0025836 1 jj been concerned with the level of A r o c 1 o r 2 during spray painting." Do you see that? 3 A. YeS. 4 Q. What was the concern referenced in 5 that sentence? 6 A. Well, anybody who's seen spray 7 painting knows that they blow a lot of 8 paint out. The possibility of a man spray 9 painting, spraying inside a booth, he can 1 0 get a pretty sizable exposure. 1 1 Q. Why don't we mark as Exhibit 156 a 1 2 two page document bearing production 1 3 numbers Tran 019922 and 019923. 1 4 (Transwestern Deposition Exhibit Number 1 5 156 mark'd for identification). 16 MR. TALLON: Would you take a 1 7 moment and review that. pleas e ? 1 8 A . Yes, sir, I've read i t . 1 9 Q Can you identi f y the document for 2 0 the record? 2 1 A . It's a document from me to Dr. 2 2 Barrett a t our E n g 1 i s h subsidiary o n 2 3 Aroclor toxic i ty , d a t ed September 2 0 , 1 9 5 5. 2 4 Q . And did you author this memo i n 2 5 the discharge o f your responsibil i t i e s a s GORE REPORTING COMPANY ST. LOUIS, MISSOURI 138 HARTOLDMONOQ25837 1 medical dire ctor of Monsanto? 2 A . Yes , I did. e 3 Q Was it part of your job to do so? 4 A. Yes , it is -- it w a s . 5 Q Did you author this memo a t o r 6 about the date that it is dated? 7 A . Yes, s i r . 8 Q And d i d y o u i ntend for Dr. Barrett 9 to rely o n the i n f o r m a tion in it? 1 0 A . Yes. 1 1 Q Now, I wan ted to refer you to the 1 2 second pa r a g r a ph o n t h e first page. Dr. 1 3 Kelly. D id y o u get a chance to read that 1 4 already 7 1 5 A . Yes, I did # 1 6 Q. The paragraph states, among other 1 7 things, "Frankly, there was not too great a 1 8 difference between the two compounds." Do 1 9 you see that? 2 0 A. Yes, sir. 2 1 Q. Was that a correct statement when 2 2 made? 23 A . Yes, sir I was referring to the 2 4 toxicity. 2 5 Q The first sentence of the third |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 139 HARTOLDMON0025838 1 paragraph on that page. Doctor, states , " I 2 don't know how you would get any partic u 1 a r 3 advantage in doing more work. " Correct ? 4 A . Yes. 5 Q. Do you recol lect that Dr. Barr e t t 6 was making a suggestion or recommendati o n 7 that more work of some kind be done? 8 A . Yes. What h e wanted t o do was 9 d out a level th a t would k i 1 1 the 10 ma1 s . I couldn 1 t f igure t h a t one o u t , 1 1 because all I wanted to do was find out 1 2 what's a safe level at work, not what's a 1 3 level that would kill people. 1 4 Q. And your response to him was, 1 5 essentially, there is no need for this? 1 6 A. No. "What are you trying to 1 7 prove? " 1 8 Q. The last paragraph on page ] 1 9 begins with the sentence, "MCC's position 2 0 can be summarized in this fashion," is that 2 1 correct? 2 2 A . That ' s cor r e c t . 2 3 Q And MC C i n that sentence is 2 4 referring t o Mon s a n to Chemical Company? 2 5 A . Yes, s i r . |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 14 0 HARTOLDMON0025839 1 Q. The paragraph goes on to state, 2 "We know Aroclors are toxic but the actual 3 limit has not been precisely defined . " Was 4 that a true statement when made? 5 A. Yes. But it would require a 6 little bit of interpretation. The acute 7 limit to what? To inhalationfor people or 8 rats, rabbits? Probably in '55 I could 9 have been a little more explanatory to 1 0 him. But the connotation on the basis of 1 1 the previous correspondence was we've got a 1 2 safe level, why do we need to find out 1 3 anything more 1 4 Q The paragraph goes on to state. 1 5 "It does not make too much difference, it 1 6 seems to m e , because our ma in worry is what 1 7 will happen if an individual develops any 1 8 type of liver disease and gives a history 1 9 of Aroclor exposure." Do you see that? 2 0 A. Yes, sir. 2 1 Q. And was that a main worry? 2 2 A. Well, it was a concern that there 2 3 are a great deal of opinions made not o n 2 4 the basis of scientific evidence. but just 2 5 o f unscienti fic belief. GORE REPORTING COMPANY ST. LOUIS, MISSOURI 14 1 HARTOLDMON0025840 1 Q. And the paragraph goes on to read, 2 "I a m sure that juries would not pay a 3 great deal of attention to MACs . " Right? 4 A. I think that ' s true. 5 Q. And MACs is an abbreviation for 6 maximum allowable concentration? 7 A . That ' s correct . 8 Q. And does this sentence express a 9 concern that juries would hold Monsanto 1 0 responsible for the situation described in 1 1 that paragraph? 1 2 A. That they might. 1 3 Q. Well, actually, the sentence says 1 4 "I am sure that juries would not pay a 1 5 great deal of attention." So that was a 1 6 concern of yours, correct? 1 7 A. I was sure they wouldn't pay a 1 8 great deal of attention, whether they would 1 9 hold Monsanto liable or blame the man for 2 0 not paying attention to the warninglabels 2 1 on this paint, if we were ever making it a s 2 2 a paint for household use. You realize you 2 3 read just that one paragraph there, if you 2 4 look at the second page -- 2 5 Q. We're going over to that. GORE REPORTING COMPANY ST . LOUIS, MIS S 0 U RI 142 HARTOLDMONOQ25841 1 A . Pine. 2 Q. The pa r a graph on the s e c o n d p a g e , 3 Doc tor, refers t o t h e u s e of A r o c 1 o r s , and 4 I b e1ie v e you ' r e con t r a sting be t w e e n t h e 5 sit u a t i o n of us e i n a n industri a 1 s e 11 i ng 6 and use in the h o me. i s that w h a t you m e a n 7 by householders 8 A. Yes, s i r 9 Q . And y o u i n d i c a t e, "If, h o w e v e r , i t 1 0 i s distributed t o h o use holders w h e re it can 1 1 b e used in almo s t a n y s h a p e and f o r m an d we 1 2 are never able t o k n o w how much o f the 1 3 con centration the Y a r e exposed t o , we a r e 1 4 m u c h more stric t . t D o you see t h a t ? 1 5 A. Yes, s i r 1 6 Q . What i s the -- in what s e n s e were 1 7 you much more s t r i c t ? 1 8 A. Well, w e w o uld have -- I thin k I 1 9 s h o uld have sai d the r e we would b e much 2 0 more strict, be cause w e did not -- w e were 2 1 not a t that tim e selling anything to t h e 2 2 householders . But what I meant t o imply 2 3 there was that if we sold a spray paint 2 4 containing A r o c1o r into a household and 2 5 said do not breathe the fumes in confined (GORE REPORTING COMPANY ST. LOUIS , MISSOURI 14 3 HARTOLDMONOQ25842 1 spaces , w e had no way o f k n o w i n g w h e ther 2 this man m i ght go int o a close t a n d spend 3 a n hour a nd * a half s p ray i n g t h i s P a i n t all 4 over the c 1 o s e t , and h e may h a v e t r o u b 1 e s 5 from that 6 Q Tr oubles ref err i n g to w h at? 7 A . P o ssible ill -effects. 8 Q S u ch as live r damage o r chi. o r a c n e 9 A . H e ' d never g e t c h 1 o r a c n e f r o m one 1 0 dose -- I mean, from -- it h a s t o b e 1 1 repeated f o r chloracn e . He'd get ey e 1 2 irritatio n , nose irri tat ion. 1 3 Q L i ver damage ? 1 4 A . I t 's possibl e . But h e may have a 1 5 awful lot o f complain t s that w ere -- o f 1 6 illnesses that were n o t due -- c o n c e i v a b 1 y 1 7 not due at all to the Aroclors, such as 1 8 diabetes or tumor of the lung, which he 1 9 would allege to the Aroclor. 2 0 Q. Let me show you a document. Dr. 2 1 Kelly, that we'll ask the court reporter to 2 2 mark a s 157, and ask you how it relates to 2 3 your memorandum of September 2 0 , 1 9 5 5 ? 2 4 (Transwestern Deposition Exhibit Number 2 5 15 7 mark'd for identification) . GORE REPORTING COMPANY ST. LOUIS, MISSOURI 144 HARTOLDMONOQ25843 1 Yes sir. 2 Q. And the question. Dr. Kelly, is 3 how does that relate to your memo of 4 September 2. 0 , 1 9 5 5 ? 5 A. I'm trying to find the error in 6 the second paragraph that I referred to in 7 my memorandum of September 22nd. Well, I 8 think the only thing different, it was a n 9 awkward -- the third paragraph in my 1 0 memorandum of September 2Oth was a little 1 1 formal, "Of course, from the standpoint of 1 2 volatility in the case of inhalation or 1 3 absorption from the gut from the point of 1 4 view ingestion are important. Frankly, 1 5 there was not too great a difference 1 6 between the two compounds." But that did 1 7 not refer to absorption, that could refer 1 8 to volatility, could refer to an awful lot 1 9 of things. So I tried to police up my 2 0 language a little bit by saying the 2 1 volatility is important in the case of 2 2 inhalation toxicity, and absorption into 2 3 the intestinal tract is important from the 2 4 standpoint of oral toxicity. I think 2 5 that's better phraseology. "Frankly, I |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 145 HARTOLDMON0025844 1 thin k there was not a great deal of 2 dif f erenc e " . 3 0 . M e & n i n g there is not a great d e a 1 4 of d ifferenc e in the toxicity between 1 2 5 4 5 and 12 4 2 ? 6 A . Th a t ' s right . I mean , maybe a 7 fact or o f 2 or s omething like that. 8 Q . Did you author Exhibi t 15 7, t h e 9 Sept e m b e r 2 2 , 1955 addendum as part of your 1 0 f u n c t i o n a s m e d i cal director o f Monsant o ? 1 1 A . Yes , I did. 1 2 Q And did you write it on or a b o u t 1 3 September 22, 1955? 1 4 A. Yes, I did. 1 5 Q. And did you intend for Dr. Barrett 1 6 to rely on the information therein? 1 7 A. Yes, I did. 1 8 Q. You've identified Dr. Newman 1 9 before. Who was Dr. D.V.N. Hardy in 2 0 September 1955? 2 1 A. Hardy was, I think, in technical 2 2 service over there, or in research over 2 3 there. He was not a physician, he was not 2 4 a n industrial hygienist . 2 5 Q. Why don't we have the court |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 146 HARTOLDMON0025845 1 . reporter mark as Exhibit 158 a one page j 2 I document bearing production number Tran 3 004748. ' 4 (Transwestern Deposition Exhibit Number 5 15 8 mark'd for identification) . 6 MR . TALLON: Take a moment and 7 review that. P 1 ease. Dr. Kelly. 8 A . Yes, s i r , I ' ve read it. 9 Q Can y o u i d e n tify that docum e n t for 1 0 the r e c o r d ? 1 1 A . This j s a 1 e tter by Elmer P 1 2 Wheeler of t h e m e d i c a 1 department to a Dr. 1 3 Johnstone of G e neral Motors Corporat ion in 1 4 Saginaw , Mich i g an, da ted 11 August ' 6 5 . 1 5 Q Have y o u see n this document before 1 6 today? 1 7 A . I m u s t have. I see I'm carboned 1 8 up on the top a nd I checked off showing 1 9 that I read i t . 2 0 Q. Up inthe upper right-hand corner 2 1 of the document there is a grid of sorts, 2 2 is this a stamp affixed to documents within 2 3 your department in 1965? 24 A. That's a stamp -- that was the 2 5 way wewould put -- our secretary would (GORE REPORTING COMPANY ST. LOUIS, MISSOURI 14 7 HARTOLDMON0025846 1 I put on the carbon t h i s stamp and we would 2 -- the author o f the letter w o u 1 d show 3 what should* be don e , whether it s h o u 1 d just 4 be filed, thrown away or sent to any of 5 these other people to read. And the second 6 column showed after the person had read it 7 and he put it in his own, or either back in 8 the central file. I don't know, someplace. 9 Q. There is some initials in that 1 0 stamped grid including R.E.K.; that's you, 1 1 right? 1 2 A. Yes. 1 3 Q. There is two checkmarks, one 1 4 indicating that you s h o uld get, and one 1 5 indicating that you got and read, i s that 1 6 correct? 1 7 A. That's correct. 1 8 Q. Did this document come from your 1 9 file, so far as you know? 2 0 A. I haven't the slightest idea. 2 1 Q. The other initials on the stamp 2 2 grid include JTG; is that Mr. Garrett? 2 3 A . That ' s correct . 2 4 Q . And the bottom one .is EPW ; is that 2 5 Mr. Wheeler? GORE REPORTING COMPANY ST. LOUIS, MISSOURI 14 8 HARTOLDMON0025847 1 A . Right . 2 Q. And I a m unable to read the second 3 one; is that just W H ? 4 A. That's Dr. Hunt. 5 Q. And MNJ? 6 A. Dr. Johnstone. He was my 7 full-time associate. 8 Q. And RAM? 9 A. A part-time physician there who 1 0 did mostly medical dispensary work, but we 1 1 clued him on to things that he might be 1 2 interested in. As you notice, he did not 1 3 get a copy of this. 1 4 Q. Actually, you could conclude from 1 5 looki. ng at this stamp that only you and Mr. 1 6 Wheeler got copies of this? 1 7 A. That's correct. 1 8 Q. Do you recollect ever instructing 1 9 Mr. Wheeler not to release information 2 0 about the constituent elements of Pydraul 2 1 6 2 5? 2 2 A . No, sir. 2 3 Q. Do you know if Mr. Wheeler was 2 4 under some constraint not to reveal the 2 5 constituent elements of Monsanto products ? |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 1 49 HARTOLDMON0025848 1 A . Some of these are -- the patents 2 are held both by Monsanto and by other 3 companies, and so we are not able to -- 4 were not able to release theinformation 5 unless we had the authority of the other 6 patent holder. And I think that was the 7 case of 625. 8 Q. You believe that 625 was a 9 patented compound which was patented with 1 0 another company? 1 1 A. I can't say that positively, but I 1 2 know there were cases where that is the 1 3 reason we were unable to tell the person 1 4 what was in it. 1 5 Q. There were other circumstances 1 6 under which the medical department declined 1 7 to release information about the 1 8 constituent elements of a particular 1 9 product? 2 0 A. Yes. I think. There were some 2 1 products that were company confidential 2 2 there were some products that were company 2 3 confidential. 2 4 Q. What does company confidential 2 5 mean? |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 15 0 HARTOLDMON0025849 1 A . You didn't tell everybody. Just 2 like Coca-Cola didn't tell everybody about 3 the ingredients of Coca-Cola . They told 4 them what they were, but they didn't give 5 the details of it or whether -- what 6 particular corrosion inhibitors were in 7 there, what viscosity -- what extenders 8 were in there, any oxydants. There are a 9 lot of things in a product. 1 0 Q. Are you indicating that the 1 1 composition of a particular product would 1 2 be a trade secret? 1 3 A. Yes. 1 4 Q. Do you know if that was the case 1 5 with Pydraul 625? 1 6 A . I don't k n o w . 1 7 Q Doctor, w e touched on this 1 8 earlier. but let m e ask another question in 1 9 light of the language used in this 2 0 document. Did you ever hear anyone express 2 1 a preference for using the language 2 2 chlorinated hydrocarbons versus 2 3 polychlorinated biphenyls? 2 4 A. You mean anybody -- 2 5 Q. Anybody a t Monsanto? (GORE REPORTING COMPANY ST. LOUIS , MI SSOURI 151 HARTOLDMON0025850 1. A . No. I n e v e r heard i t . 2 Q . Did you e v e r get a d irection from 3 Monsanto m a n a g e m e n t to refer t o 4 polychlorinated biphenyls as chlorinated 5 hydrocarbons? 6 A. No, sir. 7 Q . Did youever give Mr. Wheeler an 8 instruction or a suggestion to refer to 9 polychlorinated biphenyls as chlorinated 1 0 hydrocarbons? 1 1 A . No, sir. 1 2 Q. Why don't we mark as Exhibit 159 a 1 3 single page document which, again, bears a 1 4 series of production numbers, including PRR 1 5 004414. ^ 1 6 ( Transwestern Deposition Exhibit Number 1 7 159 mark'd for identification). 18 MR. TALLON: Will you review that. 1 9 please? 2 0 A. Yes, sir, I've read it. 2 1 Q. Can you id entify the document? 22 A . Yes. This is a letter memorandum 2 3 from Mr. Garrett of the medical department 2 4 to Mr. Patrick, the safety director of the 2 5 Krummrich plant, K- r-u-m-m-r-i-c-h , |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 15 2 HARTOLDMONOQ25851 1 concerni n g A r o c 1 o r s in department 246. 2 0 Do you recol lect seeing thi s memo 3 back in 1 9 5 5 ? 4 A . Yes, I d o . 5 G And wer e you aware that Mr. 6 Garrett had sent this memo out back i n 7 November 1 9 5 5 ? 8 A . Yes. 9 Q Had he discus sed the memora n d u m 1 0 with you ? 1 1 A . I doubt if he did. I don't r e c a 1 1 1 2 that. 1 3 Q. What do you remember about the 1 4 existence of this memo in 1955? 1 5 A. Well, I remembered it when I saw 16 it . 1 7 Q. Do you remember discussing with 1 8 Mr. Garrett the reasons for his sending 1 9 this memo to Mr. Patrick? 2 0 A . Yes. The best of my recollection. 2 1 they were trying to get the people not to 2 2 eat a t the site of opera tions, but going 2 3 over to the cafeteria we had available for 2 4 them, whether they brown bagged their lunch 2 5 or not. GORE REPORTING COMPANY ST. LOUIS, MISSOURI 1 53 HARTOLDMONOQ25852 1 Q. There is a reference on the 2 "Subject" line to "Department 246 3 (Aroclors)Was department 246 the 4 department a t the Krummrich plant which 5 manufactured A r o c1o r products? 6 A. Presumably. I can't say that for 7 sure -- but I believe it was. Garrett 8 called it that, so presumably. Rut I don't 9 know that -- I don't know the number of 1 0 department. 11 Q. Did you concur in theopinion that 1 2 eating of lunches should not be allowed in 1 3 the department 246? 1 4 A. I concurred in the final 1 5 decision. I didn't concur in the reasons. 1 6 Q. Why didn't you concur in the 1 7 reasons? 1 8 A. Oh, because I didn't think there 1 9 was any possibility of Aroclor or other 2 0 vapors contaminating the lunch so people 2 1 would get sick if they ate their lunches 2 2 there . 11 was just a matter of general 2 3 cleanliness, where they can wash their 2 4 hands, and it's just not a good idea to eat 2 5 lunch where you're working. And I think GORE REPORTING COMPANY ST. LOUIS, MISSOUR I 15 4 HARTOLDMONOQ25853 1 j; Garrett was sort of talked into trying i 2 j give them more ammunition to stop the to 3 I habit. 4 Q Are the re as ons stated in this 5 memo not accurate? 6 A . Yes, I think the last one, "it 7 would be extremely di f f i c u1t on the basis 8 of past literature re ports to counter such 9 claim, " I don't know what literature 1 0 reports he's talking about in this last 1 1 sentence 1 2 Q. Do you have a recollection of 1 3 telling Mr. Garrett to withdraw this 1 4 memorandum as an expression of the opinion 1 5 of the medical department? 1 6 A. No. I thought it was a tempest in 1 7 a tea pot, not to worry about it. 1 8 Q. Do you believe that it is 1 9 impossible for a food to become 2 0 contaminated under the circumstances 2 1 described in this memorandum? 2 2 A. There is a difference between 2 3 contamination and harm. If you get a drop 2 4 of something on it, it's contaminated . But 2 5 that doesn't mean it's going to hurt you. (GORE REPORTING COMPANY ST. LOUIS, MISSOURI 15 5 HARTOLDMONOQ25854 t if it makes any difference to you if you 2 eat the sandwich. I couldn't conceive of 3 any operation where a fellow would be 4 eating his lunch in the department where it 5 was going to cause him any ill-effects . 6 It's just not a good idea. I can't give 7 you any medical reasons, but it just looks 8 like a good idea not to eat where you're 9 working. 1 0 Q. Do you disagree with the statement 1 1 made in paragraph 1 that Aroclor vapors and 1 2 other process vapors could contaminate the 1 3 lunches? 1 4 A. It depends on how much 1 5 contamination. I mean, contamination is a 1 6 coup!e molecules of Aroclor vapor settling 1 7 on a sandwich. But I don't think -- that 1 8 is not much contamination, it's 1 9 infinitesimal. So I think he had -- a 2 0 person has to quantify it, because there 2 1 weren't Aroclor vapors and other process 2 2 vapors floating around in that department 2 3 where it would -- where you pick a 2 4 sandwich up and it would be greasy. I 2 5 certainly disagree with that interpretation jGORE REPORTING COMPANY ST. LOUIS, MISSOURI 15 6 HARTOLDMONOQ25855 .1 of that statement. 2 Q . Were there any Aroc] or vapors that 3 you know about in that department in 1955 4 or earlier? 5 A . There might have been times when 6 you'd smell some and a lot of times where 7 you couldn't smell it. But they were never 8 higher than the maximum allowable 9 concentration . 1 0 Q I s it possible that a chron 1 1 exposure a s a result of eatin g lunch 1 2 departmen t could cause toxici ty 7 1 3 A . N o way. 1 4 Q S o that just couldn' t h a p p e 1 5 A. It couldn't happen. 1 6 Q. In other words, this memorandum -- 1 7 the reasons articulated in this memorandum 1 8 are incorrect? 1 9 A. They're incorrect from my point of 2 0 view. Whether Garrett still believes that. 2 1 you have t o ask him. 2 2 Q Was t h i s m e m o r a n d u m c o u n t e r m a n d e 2 3 b y any o t h e r mem orandui d u r i n g the period 2 4 o f your s e r v ice as medic a 1 d i r e c t o r , so f 2 5 a s you know? jG 0 R E REPORTING COMPANY ST. LOUIS, MI SSOUR I 157 HARTOLDMON0025856 1 A . Not that I know o f . 2 Q Let m e ask the c o u r t r eporter to 3 mark as Exhib i t 1 6 0 a two page document 4 bearing production numbers Tran 012123 and 5 224. It's a two page document dated March 6 15, 1962. 7 (Transwestern Deposition Exhib it Number 8 16 0 mark'd for i d e n t i f i c a t i o n ) . 9 A . Yes, I've read i t . 1 0 Q Can y o u id entify the d ocument for 1 1 the r e c ord? 1 2 A . Yes. This is a d o c u m e n t -- a 1 3 letter dated M arch 15, 1 962 fro m me to Dr. 1 4 Marcus Key of the U nited States Public 1 5 Health Service 1 6 Q Do y o u h a v ear e c o 1 1 e c tio n of 1 7 author! n g the 1 e 11 e r to Dr. Key ? 1 8 A . A v a g u e re c o 1 1 e c t i o n , yes, sir. 1 9 Q Do y o u r e c o 1 1 e c t w h e t h er you wrote 2 0 this memorandum in the d i s c h a r g e of your 2 1 r e s p o n s i b i 1 i t i e s as m e d i cal dir e c t o r ? 2 2 A . Yes, I did 2 3 Q . And d id y o u i n t end for Dr . Key to 2 4 rely on the i n f o r m a t i o n in it? 2 5 A . Yes, I did |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 158 HARTOLDMONOQ25857 1 Q. And did you write it on or about 2 March 1 5 , 1 9 6 2 ? 3 A. Y e b , I did. 4 Q . Do you reco) lect the inquiry to 5 which you were responding in this letter. 6 Dr. Kelly? 7 A. No, sir, I do not. 8 Q. There is a reference in the last 9 paragraph on the first page that states, 1 0 "To our knowledge, there have been only 1 1 three instances where chloracne has 1 2 occurred." Do you see that? 1 3 A. Yes, sir. 1 4 Q. To what does that refer? 1 5 A. That refers to two cases of 1 6 chloracne that were reported in the 1 7 literature and one case of -- and one 1 8 incident of chloracne in a thermometer 1 9 factory where workers, female workers were 2 0 sticking their hands into the liquid 2 1 Aroclor to fill up bellows thermometers. A 2 2 bellows thermometer is like an onion-shaped 2 3 leather pouch. That's an integral part of 2 4 an oven thermometer. And these people had 2 5 chloracne. They told me about their IGORE REPORTING COMPANY ST . LOUIS , MISSOURI 15 9 HARTOLDMONOQ25858 1 | dermatitis, and infer red that it w a 2 chloracne . Inasmuch as I had never 3 chloracne from PCBs, I went up to see the 4 place, and I saw that several women were 5 dunking their hands w ith the bellows and 6 filling it up, and I said why don't you get 7 some sort of a forcep s to push it down so 8 you don't have to put your hands in it. So 9 they did that and it got well. So that's 1 0 one of them. The oth er wassomething in 1 1 the literature, a cap acitor plant in 1 2 England. And I don't recall where the 1 3 third one was. None of those were our 1 4 workers. And I do no t even know if the 1 5 English plant was -- European operation 1 6 was due to Monsanto PCB, because there were 1 7 five manufacturers in England, whereas we 1 8 were the only one in the United States, we 1 9 might have had 20 percent of the market in 2 0 Europe at the most. 2 1 Q. Monsanto is the only manufacturer 2 2 of PCB-based products in the United States? 2 3 A. Was the only one. 24 Q. Was the only one. When you 2 5 referred to the thermometer plant, where |GORE REPORTING COMPANY ST. LOUIS , MISSOURI 16 0 HART OLDMONOQ25859 1 was that located? 2 A. Someplace in New England. I don't 3 recall. New York, I believe. Someplace in 4 upstate New York. I'm not sure. 5 Q. When you referredto one case, 6 were you referring to one person at that 7 factory that had chloracne or the factory 8 being the case where many or some had 9 chloracne? 1 0 A. Two or three had it. The other 1 1 case that I said was -- that I referred to 1 2 was, I believe, the one in New Haven, 1 3 Connecticut or someplace in Connecticut 1 4 where a heat transfer unit developed some 1 5 leaks and after a long timethey figured 1 6 out that these people had chloracne. They 1 7 had to tell some of the workers that they 1 8 did have chloracne, because they didn't 1 9 know they had any problem at all, so it was 2 0 a pretty mild episode. 2 1 Q. I missed the end of that. Would 2 2 you mind reading it back? 2 3 (The requested portion of the 2 4 record read by the reporter) . 25 MR. TALLON: Just referring to the jGORE REPORTING COMPANY ST. LOUIS , MISSOURI 16 1 HARTOLDMON0025860 I' 1 phrase that the court reporter just read 2 back. Dr. Kelly, did you mean that your 3 understanding is that the workers didn't 4 know what they had and it was chloracne? 5 A . No. What I'm saying is that one 6 or two of the people had chloracne, they 7 didn't know they had it, but they were sent 8 to the occupational group in Connecticut 9 and there they diagnosed it was chloracne, 1 0 so they went back to the plant and said 1 1 let's see allyour workers and they saw a 1 2 couple -- there were only about eight or 1 3 ten workers, and some of them, they said 1 4 "Oh, yes, you've got some chloracne." The 1 5 worker said, "Where? What do you mean?" 1 6 They said, "You got these pimples here." 1 7 He said, "Oh, okay." So it was pretty 1 8 mild. 1 9 Q. Did you visit that Connecticut 2 0 plant? 2 1 A. No, I did not. 2 2 Q. You did visit the thermometer 2 3 factory? 2 4 A. That ' s correct . 2 5 Q. And you believe that was someplace GORE REPORTING COMPANY ST. LOUIS, MISSOURI 162 HARTOLDMON0025861 1 in New York? ? A . I belie v e it was, yes. 3 Q Do'you remember when y o u visited 4 the thermometer factory? 5 A . Soraetim e before '62. 6 Q And can you be any more 3 p e c i f i c 7 than t h a t ? 8 A . No, I c a n ' t . 9 Q Do you recollect whethe r the 1 0 Conn e c t i cut i n ci dent was before o r after 1 1 '62? 1 2 A . It's be en written up by D r . M e g g s , 1 3 and I ' m sure it' s in that group o f papers . 1 4 I've bee n shown it in every depo s i t i o n . 1 5 The date will be on it. 1 6 Q And you referred to a ref erence to 1 7 a c a p a c i tor plan t in England? 1 8 A . Well, Europe. I'm not s U re if it 1 9 was Engl and. 2 0 Q And you said that that w a s 2 1 referred to in 1 iterature. What w ere you 2 2 referring to? 2 3 A. Yes, it was in either the Bri t i s h 2 4 -- I think in the British Journal of 2 5 Industrial Hygiene, but I don't know the |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 16 3 HARTOLDMONOQ25862 1 year. 2 Q . Do you believe it was before 1 9 6 2 ? 3 A. I think so. Because I said there 4 were three cases , three instances, and I 5 can't think of what would be the third one 6 if it hadn't been that. 7 Q. Did you ever get longitudinal 8 information on the conditions at the 9 Connecticut plant, that is to say, what 1 0 happened after your initial hearing about 1 1 it? 1 2 A. Yes. They called me a month or so 1 3 later and said we got no problems, the 1 4 persons had no other illnesses at that 1 5 time, so they were quite well with the 1 6 exception of their chloracne on their 1 7 forearms, if that's what you mean by 1 8 longitudinal . 1 9 Q. Did you get any information after 2 0 that one month later? 2 1 A. I think that was the one 2 2 follow-up. I never heard from them again . 2 3 They still used the stuff, so I presume 2 4 everything was under control . 2 5 Q. Did you have follow-up with t iGORE REPORTING COMPANY ST. LOUIS, MISSOURI 164 HARTOLDMONOQ25863 1 respect to the New York thermometer 2 factory? 3 A . T h a t ' s what I was t a 1 k i n g about 4 I mean, t h a t fol low-up was a month later 5 approximately . 6 Q. Which was a month later. New York 7 or Connecticut? 8 A. Who? 9 Q . W e were t a 1 k i n g a b o u t two s eparate 1 0 -- a t least two s e p a r a t e i s s u e s . One was 1 1 the N e w York thermomete r fact o r y a n d one 1 2 was t h e Conn ecticut hea t t r a n s f e r system. 1 3 A. 0 h . Well, that -- Dr. Meggs, who 1 4 was a -- who is a very enthusiastic 1 5 occupational physician, headof the 1 6 Department of Occupational Medicine in the 1 7 State of Connecticut was following it up 1 8 very closely, writing papers about it, so I 1 9 relied on him much. As soon as, they got 2 0 rid of the leaks they got rid of the 2 1 chloracne. 2 2 Q. And other than the information 2 3 that you acquired through Dr. Meggs ' work, 2 4 did you get any other information about 2 5 what happened after the initial incident a t |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 165 HARTOLDMONOQ25864 1 the Connecticut plant? 2 A . No, sir. 3 Q . And did you get a n y -- you' v e 4 a 1 r e a d y d e s c ribe d , I b e 1 i e v e , t h a t a month 5 a f t e r your v i s i t t o the N e w York 6 ther mometer fact o r y you go t a f o 1 low- u p 7 report? 8 A. That ' s right . 9 Q Did you get any fur ther follow-up 1 0 reports? 1 1 A . Not t h a t I r e c a 1 1 . 1 2 Q Do you r e c a 1 1 a n y f o 1 1 o w -up 1 3 reports with res p e c t t o the E n g 1 i s h or 1 4 European factory that y o u ' v e d e s c ribed? 1 5 A . Well, I don' t k now at t h e time 1 6 whether the foil o w - u p r e port -- whether 1 7 the report included the follow-up. I don't 1 8 think the report was just okay, we've got 1 9 some chloracne here and somebody sits down 2 0 and writes a paper. I think, as I recall 2 1 the paper, it was -- the paper was written 2 2 sometime after theoriginal episode of the 2 3 chloracne and wasable to show that the 2 4 condition had improved following 2 5 ventilation and e tcetera, and that there IGORE REPORTING COMPANY ST. LOUIS, MISSOURI 166 HARTOLDMON0025865 1 were no systemic effects from the material . 2 Q . Doctor , just one other question . 3 Looking a t your letter to Dr. Key of March 4 1962, the last sentence in the first 5 paragraph on the first page says, among 6 other things, "We have summarized our 7 available data relating to possible skin 8 effects if the Aroclors are misused." Do 9 you see that? 1 0 A. Yes, sir. 1 1 Q And do y ou recollect what you 1 2 meant by the term misused? 1 3 A . Yes. By having -- breathing the 1 4 fumes at elevated temperatures or in 1 5 confined spaces and getting prolonged or 1 6 repeated skin contact, that's what I mean 1 7 by misused. Disregarding our safety 1 8 instructions. 1 9 Q. Why don't we mark as the next 2 0 exhibit, number 161, a one page document 2 1 bearing production number Tran 009115. 2 2 (Transwestern Deposition Exhibit Number 2 3 161 mark'd for identification). 24 MR. TALLON: Would you review 2 5 that, please. Dr. Kelly? |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 167 HARTOLDMON0025866 1 A . Yes, sir . Y e s , s i r , I ' v e r e a d i 2 0 That d o c u m e n t a PP ear s t o b e a 3 memo r a n d u m flat e d May 2 7 , 1 9 6 4 from E 1 m e r 4 Whee 1 e r to Fra n k N e m i t s , c o r r e c t ? 5 A . Yes, sir. 6 Q. Have you seen that document before 7 today? 8 A. I don't recall seeing it. 9 Q. Do you have a recollection of ever 1 0 having discussed with Mr. Wheeler whether 1 1 the label "Caution, harmful if swallowed. 1 2 Keep out of the reach of children" was a 1 3 sufficient precautionary statement to be 1 4 provided to customers? 15 MR . P R E U S S : 0f 1 232? 16 MR . TALLON: 0 f 1 2 3 2. 1 7 A . This is not our label 1 8 suggesting the minimum for the customer to 1 9 put on his label, as I read this. And I 2 0 don't recall talking to Elmer about it. 2 1 But if you read the paragraph before it, it 2 2 says the ultimate responsibility for the 2 3 proper labeling of a formulation remains 2 4 with the customer, and he said the minimum 2 5 precautionary statement, I think, that GORE REPORTING COMPANY ST. LOUIS, MISSOURI 16 8 HARTOLDMONOQ25867 1 j would be necessary would be this. 2 Q. I understand . 3 A. So'without knowing what the 4 customer w a s using this for, I don ' t k now 5 what it was . Maybe it was. I d o n ' t k n o w , a 6 skin loti o n or something. I d o n ' t k n o w 7 what this fellow was trying t o d o w i t h i t . 8 I have no c omment on it. 9 Q I ' m just wondering w h e t h e r y o u 1 0 recollect ever having had a d i s c u s s i o n with 1 1 Mr. Wheel e r about whether th e s t a t e m e n t on 1 2 the botto m of that page was a s u f f i c i e n t 1 3 precaution even for a custom e r ? 14 MR . PREUSS: Yes or n o 1 5 A . I did not have a di s c u s s i o n w i t h 1 6 Wheeler, n o . The answer is n , i f t h a t was 1 7 the question. 18 MR. TALLON: That was the 1 9 question . 2 0 A . Yes. No, I did not. 2 1 Q Doctor, do you think that is a 2 2 sufficient caution? 2 3 A. I'd have to know what the fellow 2 4 was using. I have no idea what the 2 5 customer is doing. (GORE REPORTING COMPANY ST. LOUIS, MISSOURI 16 9 HARTOLDMONOQ25868 1 Q. But wouldn't you rec o m m e n d that 2 the same cautions that were i n c 1 u d e d o n 3 your PCB-based product be inc 1 u d e d o n a 4 PCB-based product manufacture d by a 5 customer of yours? 6 MR. PR EUS S : I objec t , no 7 foundation without knowing w h at t h e 8 product's use is. 9 A. I still don't know, Labe 1 i n g 1 0 depends on what the product i s . M a y b e 1 1 there is some sort of a produ c t t h a t this 1 2 fellow had that they couldn't get the 1 3 Aroclor out by any means poss i b 1 e . I don 1 4 know. 15 Q.Couldn't get it out, what d o you 1 6 mean? 1 7 A. Maybe he had some sort of a 1 8 formulation that ended up in a solid. I 1 9 don't know. S o , I just don't know. 2 0 Q . You jus t can't comment one way or 2 1 the other? 2 2 A. I can't comment without knowing 2 3 how this Aroclor was used and what was the 2 4 final product . 2 5 Q. Did you ever recommend to GORE REPORTING COMPANY ST. LOUIS , MISSOURI 17 0 HARTOLDMONOQ25869 1 customers of Monsanto that they include the 2 same labeling that Monsanto used on its 3 PCB-based products? 4 A. No, sir, I did not. 5 (Recess ) . 6 MR. T A L L 0 N : What does the term 7 defatting of the skin mean? 8 A . You lose the fat t h a t is present 9 in the outer skin layer a n d i t becomes 1 0 chapped , i n parenthes es , o r dry or 1 1 wrinkled . 12 Q. Whydidn't we mark as the next 1 3 exhibit a two page letter dated May 14, 1 4 1970 bearing production numbers Tran 061402 1 5 and 03. 1 6 (Transwestern Deposition Exhibit Number 1 7 162 mark'd for identification). 18 MR. TALLON: Would you take a 1 9 moment and review that, please, Dr. Kelly? 20 A. Yes. Yes, sir, I've read it. 2 1 Q. Can you identify it? 22 A . Yes. This is a letter from me to 2 3 Dr. Drury of the Massachusetts Audubon 2 4 Society, dated May 14, 1970, concerning the 2 5 history of PCB toxicology and ecology GORE REPORTING COMPANY ST. LOUIS, MISSOUR I 171 HARTOLDMON0025870 1 association . 2 Q. And you were the author of this 3 letter? * 4 A. Yes, I was. 5 Q. And it is a letter that you wrote 6 in the discharge of your duties as medical 7 director? 8 A . Yes. 9 Q. And you intended for Dr. Drury to 1 0 rely on the information in this letter? 1 1 A. Yes. 1 2 Q. You wrote it on or about the date 1 3 that it is dated? 1 4 A. Yes, sir. 1 5 Q. This is actually the file copy, 1 6 correct? 17 A. I don't -- yes. But that just 1 8 meant to be filed. I don't know whether 1 9 -- I forget whether this would be a file 2 0 copy or came out of Wheeler's file or 2 1 somebody's. I just don't know. 22 Q. I could be clearer . I mean to say 2 3 this is a carbon copy or Xerox copy of your 2 4 original? 2 5 A. Yes. |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 17 2 HARTOLDMONOQ25871 1 Q And you. indeed, sent a letter to 2 Dr. Drury that you s i g n e d ? 3 A . Ye s. 4 Q And this is a copy of it? 5 A . 0 h , yes. 6 Q One other thing, by the way. Your 7 stamp grid in the upper right-hand corner 8 of the f i r s t page of the document has a 9 legend on i t we d i d not mention before, 1 0 which is "Destroy . " Do you see that? 1 1 A . Yes, sir. 1 2 Q Has there a policy in effect in 1 3 the medical department while you were 1 4 medical director with respect to the 1 5 destruction of documents? 1 6 A. Hell, that has been answered in 1 7 two parts. The "Destroy," from the point 1 8 of view of the destructive process 1 9 initiated by the medical department was, 2 0 what they decided was suppose somebody 2 1 wrote in and asked us for money and we 2 2 wrote them back and said sorry, we aren't 2 3 going to do this, and said throw the copy 2 4 away, that would be it as far a s we're 25 concerned. Monsanto had what they called a iGORE REPORTING COMPANY ST . LOUIS , MISSOURI 17 3 HARTOLDMON0025872 1 Ji record retrieval system which was really a 2 record destruction system, which every five 3 years or so'you were supposed to go through 4 your files and discard papers that you 5 didn't need any more. And so we followed 6 that as well a s we could . Some things -- 7 toxicological letters , a s a rule, we kept 8 all the time, if they were from customers 9 we kept them all the time. So -- but 1 0 there was a considerable thinning out of 1 1 letters on the part of the company so they 1 2 wouldn't be overwhelmed by paperwork after 1 3 20 years. 1 4 Q. Do you remember the first date 1 5 when the document retrieval program that 1 6 you described went into effect at Monsanto? 1 7 A. It would have to be a wild guess, 1 8 I don't know. I thought it was in the 19 ' 50 ' s . 2 0 Q. You mentioned toxicological 2 1 studies and customer inquiries were saved, 2 2 right? 2 3 A . Yes, sir. 2 4 Q. Were those types of documents 2 5 specifically exempted by the document |GORE REPORTING COMPANY ST . LOUIS , MISSOURI 17 4 HARTOLDMONOQ25873 1 j, retrieval program or was that your 2 decision? 3 A. It* was my decision. I don't think 4 the document retrieval system, iE that's 5 -- I don't know if that ' s the term they 6 used -- but spelled out criteria o E which 7 documents were given the pitch. They just 8 said go through to be sure you get rid of 9 things that you don't need. That's the 1 0 impression I got. 1 1 Q. Was it called a document retention 1 2 system? 1 3 A. It was retention, yes. It really 1 4 was a retention. But the answer was, it 1 5 was -- in a sense it turned out to be 1 6 destruction . 1 7 Q. Do you recall whether that system 1 8 exempted any category o documents in the 1 9 medical department from destruction? 2 0 A. Well, we exempted on our own 2 1 volition. 2 2 Q . Understood. Now I 'm asking about 2 3 whether the program exempted any category 2 4 of documents in the medical department from 2 5 destruction? (GORE REPORTING COMPANY ST. LOUIS, MISSOURI 175 HARTOLDMON0025874 1 A. I don't recall whether it did or 2 not. 3 Q. The letter of May 14, 1970, in the 4 third full paragraph on the first page 5 states , among otherthings , "None of the 6 European data nor United States data, nor 7 any of the thousands of samples that we 8 have analyzed shows any residues of 9 chlorinated biphenyl compounds in this 1 0 series of less than 5 chlorine atoms per 1 1 biphenyl molecule." Do you see that? 1 2 A. Yes, sir. 1 3 Q. So far as you know, does Aroclor 1 4 1242 include at least 5 chlorine atoms per 1 5 biphenyl molecule? 1 6 A. Does it -- 1 7 Q. At least 5 chlorine atoms per 1 8 biphenyl molecule? 1 9 A. They may have some -- 5chlorine 2 0 atoms would be 1254 and 1242 would be 2 1 probably 4 chlorine atoms, and there may be 2 2 some other ones with three in there, three 2 3 chlorine atoms . But the average is -- 4 2 2 4 were you asking about? 2 5 Q. Yes . GORE REPORTING COMPANY ST . LOUIS, MISSOUR I 1 76 HARTOLDMONOQ25875 1 A . The average of 4 2 would be four, 2 but that means s ome were chlori n a t e d t o 3 more than four. some tracks, so me t r a c k s 4 less than four. The m a j o r i t y o f the m were 5 to four. Now, I think this is true i n 6 19 7 0 , but I don' t b e 1 i e v e it's true today . 7 Q You don ' t b e 1 i eve what is t rue 8 today? 9 A . A f i n d i n g of 1 o w e r chi o r i n a ted 1 0 P C B s in the envi ronment 1 1 Q Meaning that s t u d i e s s u b s e q u e n t to 1 2 the date of this letter have s h own r e s i d u e s 1 3 of chlori n a t e d b i p h e n y 1 compoun d s of less 1 4 than 5 chlorine atoms per biphenyl molecule 1 5 in the environment? 1 6 A . Yes, I think so. 1 7 Q Do you believe that to be as a 1 8 result of improved detection techniques? 1 9 A . Yes, sir. 2 0 Q . So would it be fair to say that 2 1 the time of your letter the improved 2 2 detection techniques could have detected 2 3 lower chlorinated biphenyls in the 2 4 environment? 25 MR. PREUSS : I object to the form (GORE REPORTING COMPANY ST. LOUIS, MISSOURI 177 HARTOLDMON0025876 1 of the question. Improved techniques that 2 existed a t that time or exist now? 3 MR'. TALLON: That exist now. 4 A. Yes, I think if they found it now, 5 they could find it then. 6 Q. Turn, please, to the second page 7 of that letter. Dr. Kelly. In the second 8 full paragraph it states, "At any rate, 9 Monsanto is withdrawing PCB from sale for 1 0 those uses where it cannot be controlled." 1 1 Do you see that? 1 2 A . Yes, sir. 1 3 Q . And what did you mean when you 1 4 wrote "uses where it cannot be controlled"? 15 A.Controlled to prevent escape into 1 6 the environment. By that I mean open uses, 1 7 plasticizers, paints, coatings, industrial 1 8 fluids. We withdrew almost everything 1 9 except electrical and -- electrical uses. 2 0 Q . When you used the phrase "uses 2 1 where it cannot be controlled," did you are 2 2 intend to exclude closed system uses where 2 3 the possibility of leaks existed? 2 4 A . We did a t first, but then we -- 2 5 the first wave of withdrawal was the |GORE REPORTING COMPANY ST. LOUIS, MISSOUR I 178 HARTOLDMONOQ25877 1 j; frankly open uses, carbonless carbon paper 2 type, paint, waxes , greases . Then the next 3 one -- and'hydraulic fluids where there 4 is, naturally, the die cast machine, you 5 are losing a certain amount of hydraul .ic 6 fluid every time you push that ram out. 7 The next one was heat transfer uses and 8 compressor uses, because there were losses 9 t h ose operations. And so the last one 1 0 the electrical ones. 1 1 Q What accounted for that priority? 1 2 A . Beg pardon? 1 3 Q What accounted for that, if you 1 4 can prioritize? 1 5 A . Well, the f a c t t h a t the r e were no 1 6 -- start with the 1 a s t o n e firs t . There 1 7 were no s u b s t i t u t e s f o r 5. t r the e 1 e ctrical 1 8 uses, at the t i m e I w rote t h i s . I n fact 1 9 the government told us to keep on 2 0 manufacturing the stuff because the heat 2 1 -- the fire retardancy in transformers was 2 2 an enormous value in places like subways, 2 3 railroad trains , the White House, Busch 2 4 Stadium, it had to be used until they came 2 5 up with a substitute. The other one was |G 0 R E REPORTING COMPANY ST. LOUIS, MISSOURI 1 79 HARTOLDMON0025878 1 where there were substitutes and there were 2 open uses,, we stopped it. The substitu t e s 3 were not as'good, obviously, otherwise w e 4 wouldn't have been selling the stuff 5 before . 6 Q. What about the middle category 7 which was closed systems, where there w a s 8 some possibility of leakage? 9 A. We found out that there were 1 e a k s 1 0 in those cases and we stopped using it. 1 1 Q. What do you mean, you found ou t 1 2 that there were leaks in those cases? 1 3 A. Well, there were reports of 1 4 finding PCBs in the outflows of various 1 5 plants, manufacturing plants ^ throughout the 1 6 country. We found out that some of the 1 7 stuff came from what might have been 1 8 onsidered clos e d use s . 1 9 Q . And w h e n , t o y our best 2 0 e c o 1 1 e c t i o n , d i d you f ind that out? 2 1 A . '70 o r ' 7 1 , i 'm not sure of the 2 2 x a c t date. 2 3 Q . You we r e aware before '70 or ' 7 1 2 4 f the possibil i t y o f a ccidental leaks i n 2 5 closed systems, though, correct? |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 180 HARTOLDMONOQ25879 1 A . Oh, yes. 2 Q. Why don't we mark as 163 a two 3 page letter* dated April 13, 1 9 6 7 bearing 4 production numbers Tran 009764 and 765. 5 (Transwestern Deposition Exhibit Number 6 16 3 mark 'd for identification) . 7 MR. T A L L 0 N : Would you take a 8 moment and review that, please? 9 A. Yes, sir. 1 0 Q. Can you identify the document for 1 1 the record? 1 2 A. Yes. This is a letter from me to 1 3 a Doctor -- a Mr., I don't know if it's 1 4 Fain -- Fain, F-a-i-n, dated April. 13, 1 5 1 9 6 7. 1 6 Q. Do you recollect sending this 1 7 letter to Mr. Fain? 1 8 A. No, I do not. 1 9 Q. Do you know whether you wrote it 2 0 i n the discharge of your r e 2 1 a s medical director? 2 2 A. Yes, I did. 2 3 Q . Do you know w h e the 2 4 for Mr. Fain to rely o n it? 2 5 A . Yes, sir, I did IGORE REPORTING COMPANY ST. LOUIS, MIS S OUR I 181 HARTOLDMON0025880 1 Q Did you wri t e i t on or about April 2 13 , 1967? 3 A . YeS, sir. 4 Q Is this, in f a c t, a carbon copy or 5 x c opy of your 1 e 11 e r to Mr. Fain? 6 A . Yes, it is. 7 Q . And you sig n e d the original? 8 A . Yes. 9 Q There is a BCC on page two of the 1 0 1 e 11 e r to Mr. D . H . B e c h t old. 11 A. I think he' s a marketing -- was 1 2 in m ark eting in the S t . Louis office, 1 3 Q . And there a re v isible cc's to Mr. 1 4 V . W . Sp onseller and M r . Larry Bradford, do 1 5 you see that? 1 6 A . Yes. 1 7 Q Who are thos e gentlemen? 1 8 A . I don't know who they are. 1 9 Q Do you know, Dr. Kelly, with what 2 0 company or firm Mr. F ain was associated in 2 1 Bellaire , Texas? 2 2 A . No, I don't. 2 3 Q The letter i n paragraph 3 on page 2 4 1 states , "The fluid may be absorbed 2 5 through the unbroken skin of rabbits in GORE REPORTING COMPANY ST . LOUIS , MISSOURI 182 HARTOLDMONOQ25881 1 doses resulting in death, but, again, the 2 minimum lethal dose is such that accidental 3 massive skin exposures to man do not 4 present a hazard." 5 A . Yes. 6 Q. What is meant by the terminology 7 accidental massive skin exposures? 8 A. I'm thinking if a pipe broke and a 9 man was walking next to it or was pulling 1 0 on a valve with a monkey wrench and it 1 1 broke off and he got doused with the stuff, 1 2 that would be a massi. ve skin exposure. By 1 3 the time he takes his coveralls and 1 4 underwear off, he's got no problem . 1 5 Q . Did you ever call for a study when 1 6 you were medi cal director o f what 1 e v e 1 of 1 7 skin expo sure would prese n t a hazard ? 18 A. No , sir. I mean we could 1 9 experimen t w i th any anima 1 s , but I d o n ' t 2 0 think we went to any high e r s p e c i e s . 2 1 Q Did you extrapol a t e from a n i m a 1 2 2 studies a s to what level o f skin exp o s u r e 2 3 would be h a z a rdous to man ? 2 4 A. Yes. 2 5 Q. What level? SORE REPORTING COMPANY ST . LOUIS , MISSOURI 18 3 HARTOLDMONOQ25882 1 A. You could get pretty much. I 2 mean, we didn't quantify it. Here we had a 3 compound that we had been u 3 i n g for years, 4 we knew there were occasions in our own 5 workers where they did get pretty massive 6 exposure and no ill-effects. 7 Q. And what do you mean when you use 8 the term pretty massive exposure in that 9 answer? 1 0 A. Well, we had breaks in our 1 1 production lines, a pump would spring a 1 2 leak in the seal and spray them and he'd 1 3 get doused, a certain percentage of his 1 4 coveralls would get wet. He'd take them 1 5 off and take a shower and that was it, no 1 6 problem . 1 7 Q Were any of the e m p 1 oy e e 1 8 situation s which you were jus t d e s cribing 1 9 s ituation s where soak i n g or i m m e r s ion 2 0 occurred for greater than h a 1 f a n hour? 2 1 A. I don't think so. 2 2 Q. Why don't we mark as Exhibit 164 a 2 3 one page document bearing production number 2 4 Tran 039644. 2 5 (Transwestern Deposition Exhibit Number GORE REPORTING COMPANY ST. LOUIS, MISSOURI 18 4 HARTOLDMON0025883 1 1 6 4 mark'd for identification). 2 MR. T A L L 0 N : Would you take a 3 moment and review that document, please? 4 A. Yes. Was there a question? 5 Q No . Only a reque s t that you read 6 it. 7 A . Yes , I did. 8 Q And do you recogn i z e the letter? 9 A . Yes , I do. 1 0 Q . Can you identify i t for the 1 1 record? 1 2 A . 11 ' s a letter fro m m e to a Dr. 1 3 Robertson o f Ohio State Un i v e r s i t y 1 4 Hospitals , August 8, 1970. 1 5 Q I s it August 8th o r _ August 18th? 1 6 A . 18th, sorry. 1 7 Q I s this a carbon copy of a letter 1 8 that you. i n fact, sent to Dr . Robertson? 1 9 A . Yes 2 0 Q Did you write the letter to Dr. 2 1 Robertson i n your capacity a s a medical 2 2 director o f Monsanto? 2 3 A . Yes , I did. 2 4 Q . You intended for him to rely on 2 5 the information in the letter? (GORE REPORTING COMPANY ST. LOUIS , MISSOURI 185 HARTOLDMON0025884 1 A . Yes , sir. 2 Q. And you wrote it on or about 3 August 18, 1970? 4 A. Yes, sir. 5 Q I want to refer y o u to the third 6 paragra ph of the 1 etter, a n d more 7 particu 1 a r1y to the discuss ion of Aroclor 8 1 2 4 2. Th e last sentence of the paragraph 9 states, if It," and I believe that ref e r s to 1 0 Aroclor 1 242, "has a relati v e 1 y low order 1 1 of a c u t e toxicity. although it does exhibit 1 2 a h i g h e r toxicity from a 1o n g range point 1 3 of view II Do you see that? 1 4 A. Yes, sir. 1 5 Q. And what is the -- what do you 1 6 mean when you said that 1242 has a 1 7 relatively low order of acute toxicity 1 8 although it does exhibit a higher toxicity 1 9 from a long range point of view? 2 0 A. Well, I can't put it any more 2 1 simply . From a n acute point of view it's 2 2 not very toxic. If you inhale the material 2 3 over a prolonged period of time, six, eight 2 4 weeks, like we did in our experiments, you 2 5 can get problems. jGORE REPORTING COMPANY ST . LOUIS , MISSOURI 18 6 HARTOLDMONOQ25885 1 And does long range in that 2 sentence mean six or eight weeks? 3 A. W 511 , that ' s long range for 4 inhalation, it's not long range for oral 5 feedings. We did not have the results of 6 our -- there were no results -- no long 7 range oral feedings on the Aroclors in 8 August 18, 1970. They were commenced, but 9 we didn't have any results. 1 0 Q. Were were long range toxicity 1 1 studies in existence in August 1970 with 1 2 respect to inhalation? 1 3 A. Just as I said, the six weeks, six 1 4 to seven weeks. That's considered long 1 5 range in inhalation, from an inhalation 1 6 point of view. 1 7 Q Were there long range stud i e s on 1 8 any other exposure? 1 9 A . To what? 2 0 Q To Aroclor 1242. 2 1 A . We might have had 20 days on skin 2 2 or s o m e t h ing like that, but not any longer 2 3 than that 2 4 Q The sentence state s it has a 2 5 relatively low order of acute toxicity. GORE REPORTING COMPANY ST. LOUIS, MISSOURI 18 7 HARTOLDMONOQ25886 1 What is the relative comparison being made 2 in that sentence? 3 A. Geheral industrial chemicals . 4 Q. And what is the relative 5 comparison being made through the use of 6 the p h r a s e "a higher toxicity"? 7 A. Well, it's higher from -- if you 8 look a t it from acute toxicity it's 9 practically non-toxic, so it's pretty low. 1 0 It's like brake fluid, hydraulic oil or 1 1 something like that. From a long range 1 2 point of view, it does, from the inhalation 1 3 point of view, we do get toxicity from it, 1 4 and we -- at that time we may have been 1 5 getting our range finding testing 1 6 preparatory to our two year feeding tests, 1 7 and that time it showed that repeated 1 8 smaller doses over a long period of time, 1 9 90 days or something like that, could cause 2 0 toxicity . So I don't know how to explain 2 1 it any more than that to you. 2 2 Q. To what, relatively speaking, does 2 3 Aroclor 1242 have a higher toxicity from a 2 4 long range point of view, general 2 5 industrial chemicals? GORE REPORTING COMPANY ST . LOUIS , MISSOURI 18 8 HARTOLDMONOQ25887 1 A. I would think so. Well, no. I 2 was just saying -- to paraphrase it I can 3 say we got almost really zero toxicity . 4 Not quite zero toxicity from the acute 5 point of view, but we do have some from a 6 long range point of view. So I'm saying 7 higher, certainly, when viewed as a long 8 term toxicity experiment, it has higher 9 toxicity than when viewed as a low -- from 1 0 an acute point of view. It doesn't mean 1 1 it's higher toxicity than regular run of 1 2 the mill industrial chemicals which really 1 3 haven't been tested from the long term 1 4 point of view. So I am equating or 1 5 comparing long range toxicity to acute 1 6 toxicity, two types of testing. Acute 1 7 toxicity, really nothing to worry about; 1 8 almost, very close to zero toxicity. I 1 9 mean practically non-toxic from the 2 0 standpoint of rats. Ounce and a half per 2 1 kilogram, which is a big dose. From the 2 2 long term point of view it does have some 2 3 toxicity, but that's not unusual in an 2 4 industrial chemical . You're looking for 2 5 some toxicity, we expected toxicity in a n [GORE REPORTING COMPANY ST. LOUIS, MISSOURI 189 HARTOLDMON0025888 1 industrial chemical . So I'm comparing the 2 same compound in two different tests . 3 Q. When you used the term in your 4 answer just now an ounce and a half per 5 kilogram, are you referring to per kilogram 6 of body weight? 7 A . Yes. 8 Q. When you referred in your answer 9 of a moment ago to a 90 day study of 1 0 exposure to small amounts, to what study 1 1 were you referring? 1 2 A. The Treon study of inhalation. 1 3 That was milligrams per cubic meter of air. 14 Q. And was that the Treon study to 1 5 which you referred earlier today or a 1 6 different one? 1 7 A. The same one. 18 Q . Do you recall theinquiry to Dr. 1 9 Robertson to which you were responding? 20 A . I sure don't. I don't know what 2 1 he was doing. I don't recall anybody 2 2 talking about placentas and Aroclor in the 2 3 same memorandum. I should have remembered 2 4 it, but I don't. 25 Q . Dr .Kelly, during this period of GORE REPORTING COMPANY ST. LOUIS, MISSOURI 190 HARTOLDMONOQ25889 1 your service as medical director of 2 Monsanto, do you recollect having had 3 direct com m'u nications with persons you 4 believed to be representatives of Texas 5 Eastern Transmission Company? 6 A. I don't recall them. I mean, I 7 may, but I -- you know, in 3 5 years you 8 get an awful lot of inquiries about a lot 9 of chemicals. This may look like a lot of 1 0 PCB, but, really , this i s small in 1 1 comparison to a lot of our compounds. 1 2 Q. What is small i n comparison to a 1 3 lot of our compounds? 1 4 A. The amount you've been showing me 1 5 on -- most of them are questions about -- 1 6 they're not questions, problems with a 1 7 compound, just asking for information about 1 8 it. But there are an awful lot of other 1 9 compounds from phosphorus to phthalic 2 0 anhydride to God knows what that we get 2 1 inquiries on. I ' d say we would get -- I 2 2 don't know how many a week, but quite a 23 few. So what was the question? Sorry . 2 4 MR . PREUSS: That's why we want to 2 5 wait for questions. (GORE REPORTING COMPANY ST. LOUIS, MISSOURI 19 1 HARTOLDMON0025890 1 A. Sorry. I talk to too much. ? MR. TALLON: No, that was fine. 3 (Discussion off the record) . 4 MR. TALLON : Actually, I think the 5 question was, did you recollect having had 6 anydirectcommunications during your 7 career a t Monsanto with anyone you believed 8 to be a representative of Texas Eastern 9 Transmission Company? 10 A. I do not, although I may have. I 1 1 do not recall it. 1 2 Q. Do you recollect today having had 1 3 any discussions or communications with 1 4 persons you believe to be representatives 1 5 of the Transwestern Pipeline Company? 1 6 A . No, sir. 1 7 Q Have you ever heard of the Texas 1 8 Eastern Transmission Company before this 1 9 moment? 2 0 A . I don't believe I di d . 2 1 Q Have you ever heard of the 2 2 Transwestern Pipeline Company before this 2 3 moment? 2 4 A. Before this moment? I mean, they 2 5 talked to -- this was the case they told |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 19 2 HARTOLDMONOQ25891 ' 1 ; me about yesterday. I heard yesterday 2 about it. 3 Q . Right . 4 A . Not before yesterday . 5 Q Excluding y o u r c o n v e r s a t ions with 6 Mr. P r e u s s, do you re col 1 e c t h a v i n g heard 7 anything about Texas Eastern Tr a n smission 8 Company? 9 A . No, sir. 1 0 Q Or Transwest ern Pipeli n e Company? 1 1 A . No, sir. 1 2 Q All right. Why don't I show you a 1 3 document which bears production n umber 1 4 TW2-20035 00. And for the recor d. the 1 5 document is captioned "Transcri P t ion of 1 6 Bates numbered document 004013879". 1 7 ( Transwestern Deposition Exhibit Number 1 8 165 mark'd for identification). 1 9 A. Yes, sir, I've read it. 2 0 Q. Does reading the document which we 2 1 have now marked a s Exhibit 165 refresh your 2 2 recollection with respect to any 2 3 communication with persons you believe to 2 4 be representatives of Texas Eastern 2 5 Transmission Company? . II j IGORE REPORTING COMPANY ST. LOUIS, MISSOURI 19 3 HARTOLDMONOQ25892 1 A N 6 1 1 this document doesn't refer 2 to who Edmondson is or who Fletcher is. 3 Q . I know. 4 A. 11 really doesn't refresh me a t 5 all. 6 Q. Does the name O.M. Fletcher mean 7 anything to you? 8 A. No, sir. 9 Q. Does the name E.E. Edmondson mean 1 0 anything to you? 1 1 A. No. There may be more in the 1 2 file. 1 3 Q. Why don't you set that aside. Dr. 1 4 Kelly. Why don't we mark as Exhibit 166 a 1 5 one page document bearing production number 1 6 TW2-2004803, which appears to be a letter 1 7 on the stationery of Monsanto Chemical 1 8 Company, dated August 18, 1958. 1 9 (Transwestern Deposition Exhibit Number 2 0 166 mark'd for identification). 2 1 A. Yes, sir, I've read it. 2 2 Q. Do you recognize it? 2 3 A . I recognize what it is, yes, but 2 4 -- I mean, I don't recall it, but I 2 5 recognize it. IGORE REPORTING COMPANY ST. LOUIS, MISSOURI 19 4 HART OLDMONOQ25893 1 Q . What is it? 2 A . It's a letter from me to Mr. 3 Edmondson of the Texas Eastern Transmission 4 Corporation, dated August 1 8 , 1 9 5 8 , 5 concerning fluid 0 S - 8 1 . 6 Q. Do you have any recollection of 7 having written the letter to Mr. Edmondson 8 of Texas Eastern Transmission Corporation? 9 A. No, I don't. 1 0 Q. Do you have any recollection of 1 1 having written to any person about the use 1 2 of fluid OS-81 as an inside lubricant for a 1 3 gas compressor? 1 4 A. No, sir. 1 5 Q. Do you know whether K0S-81 was ever 1 6 used as an inside lubricant for a gas 1 7 compressor? 1 8 A . From t h is memo r a n d u m i t loo k s 1 i k e 1 9 somebody told me it was . Wh e t h e r it w a s 2 0 -- well , that's the on ly -- I know 2 1 nothing about pi p e 1 i n e s , sol d o not k now 2 2 whether 0 S - 8 1 w a s used. I ha v e n o 2 3 knowledge as to how -- w h e t h e r it w a s u s e d 2 4 as a gas c o m p r e s s o r, no , sir. I don' t . 2 5 (Discuss ion off the r e c o r d ) . |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 195 HARTOLDMONOQ25894 1 MR. T A L L 0 N : Was there something 2 about this document that you associated 3 with pipelines? 4 A. Well, I figured that Texas Eastern 5 transmission must have been using a 6 pipeline. 7 Q. And why did you figure that? 8 A. Well, I think that's the way -- 9 if you got a gas compressor and you got a 1 0 Transmission company, they aren't going to 1 1 send the stuff in tank cars, they use a 1 2 pipeline. 1 3 Q . So you're aware that Texas Eas tern 1 4 Transmis sion Company is a gas company? 1 5 A . No. But I don' t know - - I 1 6 thought a gas compressor was s omething that 1 7 compressed the gas. 1 8 Q. And do you recollect that as a 1 9 result of having read this letter, or are 2 0 you just making that statement as a 2 1 statement of genera], knowledge? 2 2 A . You mean -- what was the -- make 2 3 what statement? General knowledge? 2 4 Q . You said a gas compressor was 2 5 something used to compress gas. |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 1 96 HARTOLDMONOQ25895 1 A . Uni e s s it has a di fferent meaning 2 than t h e two w o r d s would i m ply, I think 3 that ' s what* i t does. 4 Q I was just wonderi n g , Dr. Kelly, 5 b e c a use there is nothing in the letter 6 i t s e 1 f which t a 1 k s about a pipeline or the 7 use o f this g a s compressor to compress 8 gas. 9 A. Exceptthat's the name of the 1 0 thing. We got an inside lubricant. 1 1 Q. Right. 12 A. Which goesinside something. 1 3 Q. Right. 1 4 A. And something owned, presumably of 1 5 interest to Texas Eastern Transmission 1 6 Corporation. And I think from general 1 7 knowledge I know that transmission 1 8 companies who have a gas compressor have 1 9 gas inside them -- the pipeline. That's 2 0 the business of transmission. But nobody 2 1 told me Texas Eastern transmission is a 2 2 pipeline company. 2 3 Q . Do you have a recollection of Mr. 2 4 Edmondson or any other person telling you 2 5 about occasional leaks occurring with GORE REPORTING COMPANY ST . LOUIS, MISSOURI 19 7 HARTOLDMONOQ25896 1 i, respect l 2 A. to gas compressor No, sir. Unless operations? there were 3 telephone calls , but I don't recall them a t 4 all. And if these are the only two bits of 5 communication, I would just have to surmise 6 that there could be leaks . 7 Q. Why would you surmise that there 8 would be leaks? 9 A. Well, he's talking about, in this 1 0 letter of April 13th, that the people -- 1 1 there is s ome conce r n a bout is it a h e a 1th 1 2 and safety standpoi n t His last q u e s t i o n 1 3 refers to the repai r o f it. Another p o i n t 1 4 in question, repair o f the compre s s e r s . S o 1 5 someplace along the 1 i n e I inferr e d t h a t he 1 6 was having possibil i t i e s of expos u r e d u ring 1 7 the normal operatio n o f these thi n g s 1 8 That's the only b a s i s I can think o f a t the 1 9 present ti me as to why I answered t h i s 2 0 question that way. He was inquiring about 2 1 the health and safety, and I presume that 2 2 there had to be leaks. 2 3 Q. Do you have an understanding 2 4 whether Exhibit 166 is your response to the 2 5 preceding Exhibit, 165? |G 0 R E REPORTING COMPANY ST. LOUIS, MISSOURI 198 HARTOLDMON0025897 1 A. Yes. Because right on the front I 2 I said "Thank you for your 1etter of August 3 13th," which is Exhibit 165. 4 Q. Let me show you another document 5 which is -- actually , we'll use this copy, 6 it's a three page document compris ing a 7 retyped copy of document Bates numbered 8 TW2-2006486, a notarial statement and a 9 photocopy of TW2-2006486. 1 0 (Transwestern Deposition Exhibit Number 1 1 167 mark'd for identification). 1 2 MR. TALLON: Doctor, I'll state 1 3 for the record that the first page of the 1 4 three page exhibit I've handed you is a 1 5 recently typed version of the last page of 1 6 the exhibit, the last page of the exhibit 1 7 being somewhat difficult to read. 1 8 A. Yes, sir. 1 9 Q. Have you read the document? 2 0 A. Yes, I have. 2 1 Q. And have you looked at the third 2 2 page of the exhibit? 2 3 A . Yes. 11 looks pretty close . I 2 4 mean, it looks like a good translation, or 2 5 a good transcription. |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 1 99 HARTOLDMONOQ25898 1 Q. Do you recall having sent the 2 letter which comprises the third page of 3 the exhibit'and is retyped on the first 4 page ? 5 A. No, I don't. But this certainly 6 clarifies my answer to a couple of your 7 questions . 8 Q I n what way doe s it clarify 7 9 A . I must have talked t o Davis about 1 0 this, a nd said, "What is this Texas Eastern 1 1 Transmi s sion Company, an d w h a t are they 1 2 doing?" So he probably told me it's a 1 3 p i p e 1 i n e company. So I think that o n the 1 4 basis - - I think I must have talked to him 1 5 in the five days between the v first t w o 1 6 letters 1 7 Q And who is the Mr . D avis re f e r r e d 1 8 to? 1 9 A . He's in the mar k e t i n g group o f 2 0 Monsanto. 2 1 Q Do you recall h a v i n g any 2 2 conimuni cations with Mr. Davis ? 2 3 A . You mean oral o r w r i 11 e n ? 2 4 Q . Either. 2 5 A . I don't recall them. no. But it GORE REPORTING COMPANY S T . LOUIS, MISSOURI 20 0 HARTOLDMON0025899 1 seems obvious that if he reported to me, 2 there was some -- if I said he reported to 3 me that Texas Eastern people had burning 4 skin irritation, there was a communication 5 there. 6 Q. Do you recollect, by the way. 7 Doctor, if Mr. Davis or anyone else 8 reported to you that in many instances of 9 working around compressers the use of 1 0 gloves is not feasible? 1 1 A . I don't recall that. 1 2 Q. Do you have any knowledge as to 1 3 where that information derives from? 1 4 A. Well, it must have been from 1 5 Davis, because I haven 1' t -- -- I m e a n , I see 1 6 down here I s a i d that. s o I got i t f r o m 1 7 somebody. I di dn ' t -- I ' ve never s een a 1 8 pipeline compressor. 1 9 Q. A what? 2 0 A. A pipelinecompressor. 2 1 Q. Do you recollect. Dr. Kelly -- 2 2 well, let me point out something to you. 2 3 In the first paragraph of Exhibit 167 there 2 4 is a request that you make, stating "Our 2 5 Mr. Davis has reported to me that some of 1G0RE REPORTING COMPANY ST . LOUIS, MISSOUR I 20 1 HARTOLDMON0025900 1 your men have exhibited burning and skin 2 irritation," do you see that? 3 A. Yes. 4 Q . And it goes on to say, " I would 5 appreciate it if you could have your safety 6 or medical department furnish me further 7 details"? 8 A. Yes, sir. 9 Q. Do you recollect whether you were 1 0 furnished with further details of any kind? 1 1 A. No, sir, I don't recollect that at 1 2 all. 1 3 Q. You don't remember one way or the 1 4 other? 1 5 A. Either way. 16 Q. Okay. And underst ding you have 1 7 limited recollection of thi document. are 1 8 you able to say whether the e 11 e r is one 1 9 that you wrote in the disch arge of your 2 0 duties as medical director at Monsanto? 2 1 A. Yes, I think so. 2 2 Q. And unders tanding that, do you 2 3 believe that you intended f or Mr. Fletcher 2 4 to rely on the information in this 2 5 document? |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 202 HARTOLDMON0025901 1 A. Yes, I did. 2 Q. And do you believe that you wrote 3 it on or about the date that it is datedl1 4 A. Yes, sir. 5 Q. There is a reference to -- in the 6 second paragraph of Exhibit 167 to the fact 7 that skin contact with the material should 8 not cause any more of a reaction than if 9 one were exposed to a paint remover. Do 1 0 you see that? 1 1 A. Yes, sir. 1 2 Q. Do you have any knowledge today of 1 3 what kind of paint remover you're referring 1 4 to in this passage? 1 5 A. Any kind. I mean, this stuff will 1 6 take paint off, paint remover takes paint 1 7 off, and this will cause defatting of the 1 8 skin. And any pai. nt -- I was referring to 1 9 an organic paint remover, not a water base 2 0 paint remover, which I understand there 2 1 have been some in the last two or three 2 2 years, for latex paints and other paints. 2 3 But this refers to a n organic paint 2 4 remover, whether it's a hydrocarbon or 2 5 acetone or something else. IGORE REPORTING COMPANY ST. LOUIS, MISSOURI 203 HARTOLDMON0025902 1 Q I n your answer of a moment ago 2 when you said this stuff takes off paint 3 were you referring to 0 S- 8 1 ? 4 A . Yes. 5 Q Were you referring to Arociors 6 more gene rally? 7 A . Yes, liquid Arociors. 8 (Recess) . 9 MR. TALLOH : Let me show you. Dr. 1 0 Kelly, a document which is Bates stamped 1 1 TW2-2007037 through 043, and I would ask 1 2 you to disregard the first page, or read it 1 3 if you like, I ' m mostly inter ested in the 1 4 a 11 a c h m e n t to it. 1 5 (Trans western Depositio n E x h ibit Number 1 6 16 8 mark'd for identi f i c a t ion). 1 7 A . Yes, s ir, I've read i t . 1 8 Q Do you recollec t h a v ing seen the 1 9 0 S - 8 1 t echnical bulletin w h i c h comprises 2 0 most of Exhibit 16 8? 2 1 A . I have no s p e ci f i c r ecollection 2 2 seeing it. I k now I've seen i t . 2 3 Q And do you know unde r what 2 4 circumstances you saw it? 2 5 A. Probably when it first came out. |GORE REPORTING COMPANY ST. LOUIS , MISSOURI 204 HARTOLDMON0025903 1 when they asked me about the toxicity and 2 safe handling data on the bulletin. 3 Q C o*u 1 d you turn to the last page 4 plea s e ? 5 A . Yes, s i r . 6 Q That ' s a P age caption e d "To x i c i 7 and safe h a n d 1 i n g i nformation" ? 8 A . Yes, s i r . 9 Q Do you r e c ollect havi n g d r a f t e d 1 0 any of t h e language which appe a r s t h ere? 1 1 A . I don' t re collect it. but I ' m s 1 2 I have. I'm sure I did it. 13 Q. Do you recommend or do you 1 4 recollect recommending for inclusion in the 1 5 -- in this portion of the technical 1 6 bulletin any information about systemic 1 7 toxic effects of exposure to OS-81? 1 8 A. No, sir, I don't see that. But I 1 9 do see the last paragraph, "If, however, 2 0 the material is used at elevated 2 1 temperatures, repeated or continuous 2 2 breathing of fumes must be avoided by 2 3 workmen" . 2 4 Q. I'm sorry? 2 5 A. "Must be avoided by workmen." I |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 205 HARTOLDMON0025904 1 m e a n , the i n f e rence ther e is if you don't 2 a v o i d it y o u ' r e going to have problems. 3 But I don '1; s e e anything spec ific about 4 systemic illness . ' 5 Q. Do you recollect having discussed 6 the information appearing on the last page 7 of this technical bullet in with Roger 8 Hatton? 9 A . No, sir, I don' t recall. 1 0 Q Do you know who Roger Hatton was? 1 1 A . Yes. 1 2 Q Or is. 1 3 A . I thought he wa s a research and 1 4 development man in industrial fluids. 1 5 Q. Do you have a recollection of 1 6 discussing the use of OS-81 by any customer 1 7 with Roger Hatton? 1 8 A . No , s i r , I don ' t recall it. 1 9 Q I want t o ask the court reporter 2 0 mark a s E x h i bit 16 9 a multi-page 2 1 document titled "MCS-153 Transfer to 2 2 Marketing and Recommended Product 2 3 Strategy" . 2 4 (Transwestern Deposition Exhibit Number 2 5 169 mark'd for identification). GORE REPORTING COMPANY ST. LOUIS, MISSOURI 206 HART OLDMON0025905 1 MR. T A L L O N : Would you take a 2 moment and review that, please? 3 A . A moment? 4 Q Well, such time as you need. But 5 I'll tell you I want to ask you initially 6 whether you have seen this document earlier 7 than today. 8 A. I'm skipping allthe part about 9 marketing and things like that. 1 0 Q Yes. 1 1 A. I've never seen this before, that 1 2 I recall. 13 Q. You don'trecollect ever having 1 4 discussed this document with Roger Hatton? 1 5 A. No, sir. 1 6 Q Does reviewing this document in 1 7 any way refresh your recollec tion as to the 1 8 use o f 0 S- 8 1 by Texas Eastern Transmission 1 9 Corp.? 2 0 A . No, sir. 2 1 Q . Does the review of this document 2 2 in any way refresh your recollection as to 2 3 discussions you may have held with Roger 2 4 Hatton concerning Texas Eastern 2 5 Transmission Corp. ? |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 207 HARTOLDMON0025906 .1 A . No, sir. 2 Q I take it, D r . Kelly, when I a 3 you about Tfexas E a s t e r n Transmission C o 4 you b a s i c ally draw a blank, is that i t ? 5 A . That's yes. 6 Q You mentione d a few moments a g 7 s o m e t h i n g about gener a 1 knowledge abo u t 8 c o m p r e s s e rs, do you h a v e any understa n d 9 today whe ther a gas c ompressor is a c 1 o 1 0 system o r open system ? 1 1 A . No, I don't. I didn't think I 1 2 said I k n ew much abou t a gas compress o r 1 3 think I s aid I don't k n o w anything ab o u 1 4 them. I mentioned -- I said it was a n 1 5 interna 1 compressor. s o I figured it w a 1 6 inside something. Rut I don't know 1 7 anythin g about it. 1 8 Q. So you don ' t k n o w w h ether or n o t 1 9 gas compressor is an ope n s y s tern or clo sed 2 0 system? 2 1 A. Well, I t h i. n k c o m m o n knowledge o f 2 2 anything would say t h a t if y o u 'v e got a 2 3 compressor, if you' r e c o m p r e s sing 2 4 something, .it's got t o b e c 1 o sed, otherwis 2 5 there is no compression. |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 208 HARTOLDMON0025907 1t b 2 such Q. And do you know whether or not a compressor would be subject to 3 leaks? ' 4 A. Well, I think almost all 5 compressers can leak. I've gone through 6 this, but to answer your question, i t does 7 not -- 8 Q . Refresh your recollection? 9 A. No, sir. 1 0 Q. I'm going to ask the court 1 1 reporter to mark as the next document a 1 2 single page bearing production number Tran 1 3 001382, and the next one we're going to 1 4 mark is Tran 001383. 1 5 (Transwestern Deposition Exhibit Number 1 6 170 & 171 mark'd for identification). 1 7 MR. TALLON: Looking first. Dr. 1 8 Kelly, at Exhibit 170, I'd ask you i. f 1 9 you've ever seen that label before. i f 2 0 that ' s what it is? 2 1 A. I feel pretty sure I have, but I 2 2 don't have any specific recol lection of 2 3 seeing it. 2 4 Q . Do you have any particular 2 5 recollection of having recommended (GORE REPORTING COMPANY ST. LOUIS, MISSOURI 209 HARTOLDMON0025908 1 additions of language to this label? 2 A. No specific recollection. But I 3 do know that it was quite a n established 4 procedure that the m e d i c a 1 department would 5 approve this caution statement. 6 Q. Can you tell. Dr. Kelly, from the 7 language which appears following the word 8 "Cauti on" the approximate date o f t h i. s 9 docume n t ? 1 0 A . No, I can't. No. It' s s omething 1 1 before 1972, because we had e n v iro n m e n t a 1 1 2 labels on them at that time. 1 3 Q . Can you examin e for a mom e n t the 1 4 next e xhibit, which is a label for Turbi. nol 1 5 15 3, f ormerly MCS-153. - 1 6 A . Is there a que s t i o n ? 1 7 Q . Yes. Could you examin e i t , 1 8 please 7 1 9 A . Yes, I could. 2 0 Q . Have you seen this b e f ore ? 2 1 A . I was waiting for a q u e s t ion. 2 2 Q . I thought you were s ti 1 1 examining 23 it . 2 4 A . No. I said I did exam i n e i t . 25 Q . I didn't hear you. So >i (h . I was IGORE REPORTING COMPANY ST . LOUIS, MISSOURI 2 10 HARTOLDMON0025909 1 entranced by the document. Do you 2 recollect seeing this particular label 3 before? ' 4 A. No, sir, I do not. 5 Q. Do you recal 1 having recommended 6 any additions of language to this document? 7 A. Do I recall recommending any 8 addition? 9 Q. Of language to the -- to this 1 0 document? 1 1 A. Addition of language to this 1 2 label? 1 3 Q . Yes. 1 4 A. I do not recall that. 1 5 Q. Are you able to ascertain from a 1 6 review of the document the approximate date 1 7 of the label? 1 8 A. No, sir. 1 9 Q. Do you believe these two exhibits, 2 0 by the way, to be labels, photocopies of 2 1 labels? 2 2 A . I would certainly think they are. 2 3 Q. Is the language -- well, the 2 4 language on the exhibit for MCS-153 2 5 following the word "Caution" appears to be |G 0 R E REPORTING COMPANY ST. LOUIS, MISSOURI 21 1 HARTOLDMON0025910 1 the same as the language following the word 2 "Caution" on the label for Turbinol 153, 3 correct? i 4 A. Yes, sir. 5 Q. Does that help you a t all in 6 dating it? 7 A. No. Because I don't ever remember 8 seeing a Turbinol label before. And I 9 cannot make out these codes at the bottom. 1 0 That is fraught with errors, you might 1 1 think 153 means January of '53 and 253 1 2 means February of '53, but some labels I've 1 3 seen, that doesn't follow at all. 1 4 Q. But to just touch on one other 1 5 point, you indicated in your testimony of a 1 6 moment ago that given thelanguage in the 1 7 label for MCS-153 you thought it predated 18 1972? 1 9 A. That's correct. 2 0 Q . Based on that same analysis, do 2 1 you believe that the label for Turbinol 153 2 2 is dated before 1972? 2 3 A . I would think so, because we 2 4 generally put the environmental label on 2 5 new shipments, whether it was shipments of IGORE REPORTING COMPANY ST . LOUIS , MISSOURI 2 12 HARTOLDMON0025911 1 Turbinol or MCS, after 1972. I don't 2 know. But that was about the time we 3 stopped industrial fluids, the manufacture 4 of industrial fluids . 5 Q . What was about thetime that you 6 stopped manufacturing? 7 A. The industrialfluids . 8 Q. What was the time? 9 A. It was around '12. '71,'12. 1 0 Q. Do you know whether or not 1 1 production of Turbinol 153 terminated? 1 2 A. No, sir, I don't. 1 3 Q. Let's mark as the next document a 1 4 document bearing production number 1 5 TW2-2006525 through 6528, which is a letter 1 6 on Monsanto Chemical Company stationery, 1 7 dated September 25, 1961. 1 8 ( Transwestern Deposition Exhibit Number 1 9 172 mark'd for identification). 2 0 MR. TALLON: Would you please 2 1 review that? 22 A. Yes, I will. Yes, sir, I've read 23 it . 2 4 Q . Do you recognize that document? 2 5 A. No, sir. I don't think I've ever IGORE REPORTI NG COMPANY ST. LOUIS, MISSOURI 2 13 HARTOLDMON0025912 1 seen it before. 2 Q. Would you turn to the last page of 3 the document, please? 4 A. Yes, sir. 5 Q. Do you know. Dr. Kelly, whether 6 you approved the language appearing under 7 paragraph numbered 3, starting with "This 8 item consists"? 9 A. I don't know if I did. I may and 1 0 I may not have, I don't know. 1 1 Q. Do you recall. Dr. Kelly, ever 1 2 communicating with any representative of 1 3 the Cooper Bessemer Corporation about 1 4 compressor operations? 1 5 A . Cooper who? 1 6 Q Cooper Bessemer. 1 7 A . No, sir, I do not. 1 8 Q Let's mark as the next exhibit 1 9 page memorandum bearing production 2 0 numbers Tran 002552 and 2553. 2 1 (Transwestern Deposition Exhibit Number 2 2 17 3 mark ' d for identification). 2 3 A . Yes, sir. I've read it. 2 4 Q Have you seen that document 2 5 before? (GORE REPORTING COMPANY ST. LOUIS, MISSOUR I 214 HARTOLDMONOQ25913 A I don't recall having seen it. 2 Q Do you recoil e c t whether M r . 3 a r r e t t ever told you that he was h o 1 d i 4 e q u e s t to discuss the t o X i c i ty of T u r b 5 5 3 with Texas Eastern Gas Transmi s s i o n 6 orp . ? 7 A. No, sir, I don't recall that. 8 Q. Do you recollect that Mr. Garrett 9 ever told you that he was holding a request 1 0 to discuss the toxicity of Turbinol 153 1 1 without regard to with whom the discussion 1 2 was to be held? 1 3 A. No, sir. 1 4 Q. Do you recollect ever discuss i n g 1 5 the toxicity of Turbinol 1 5 3 _ w i t h Mr. 1 6 Garrett? 1 7 A. I don't recall. I don't recall 1 8 it. I don't know what the toxicity refers 1 9 to. I don't know if he's referring to 2 0 toxicity to fish or toxicity to humans or 2 1 toxicity to animals, because he's talking 2 2 about fish in the first paragraph and he 2 3 goes down in the third paragraph and he 2 4 talks about toxicity, so I don't know 2 5 whether he's talking about fish or what. I I I ; 0 R E REPORTING COMPANY ST . LOUIS, MISSOURI 215 HARTOLDMONOQ25914 1 1 The answer is no. 2 Q. Okay. Do you remember having a 3 conversatioh with Mr. Garrett where the 4 subject was Turbino] 153? 5 A. No, sir, I don't. 6 Q. Do you remember having a 7 conversation with anybody where the subject 8 was Turbinol 153? 9 A. No. I don't recall much about 1 0 Turbinol. I recall practically nothing 1 1 about Turbinol 153. After all, this was a 1 2 small amount to one company. We're talking 1 3 about fifty thousand dollars in sales to 1 4 one company. s o I don ' t recall it. 1 5 Q What ' s the b a s i s of the statement 1 6 that we''re d i s c u s s i n g f i fty thousand 1 7 dollars in s a 1 e s ? 1 8 A. Well, it was in that big 1 9 memorandum from Hatton transferring it to 2 0 market . 2 1 Q . Is it your understanding that 2 2 fifty thousand dollars in sales would 23 represent a fairly small port i on of the 2 4 o v e r a 11 income of that department? 2 5 A . No. It's important, but -- I GORE REPORTING COMPANY ST. LOUIS, MISSOURI 21 6 HARTOLDMONOQ25915 1 mean any sales is important but this 1 s 2 t o one company f and I don't recall a n awful 3 lot o f c o n v e r s a t ion about Turbinol. I 4 don ' t recall a ny , i n fact. 5 Q This next document should be 6 brief. Could you m ark a two page docu m e n t 7 bearing p r o d u c t i o n numbers Tran 003826 and 8 3827 as E x h i b i t 17 4 9 (Trans western D e p o sition Exhibit Numb e r 1 0 1 7 4 mark ' d for i dentification). 1 1 A . Yes, sir. I've read it. 1 2 Q Have you s een that document b e f o r e 1 3 today? 14 A. No, sir. Not that I can recall. 1 5 Q. Do you recollect having had a 1 6 discussion with anyone where the subjects 1 7 discussed in this document were a topic of 1 8 conversation? 1 9 A. There is no date on this document, 2 0 there is no -- nothing that shows who 2 1 wrote it or to whom it went. 2 2 Q . Right . 23 A . S o , n o , I don't. 2 4 Q Do you recognize the handwritt 2 5 notation a t the top of the first page a IGORE REPORTING COMPANY ST. LOUIS, MIS S OUR I 21 7 HARTOLDMONOQ25916 1 being s omeone's handwriting? 2 A . Someone's, yes, but I don't 3 r e c o g n i z e it. 4 Q Okay. Do you have any knowledge 5 or info rmation as to the source of this 6 documen t within Monsanto? 7 A . No, I have no idea about it. 8 Q Let's look a t Exhibit 175, which 9 will be a two page letter dated January 7, 1 0 1964, b earing production numbers Tran 1 1 012120 and 0 1 2 1 2 1 . ' 1 2 (Trans western Deposition Exhibit Number 1 3 1 7 5 mark'd for identification). 1 4 MR. TALLON: Please revi. ew that. 1 5 A . Yes, I've read it. 1 6 Q Can you i. dentify it? 1 7 A . This is a letter from me to Mr. 1 8 Spore o f Shenango Ceramics, dated January 1 9 7 , 19 6 4 2 0 Q This is a carbon copy of a letter 2 1 that you actually sent to Mr. Spore? 2 2 A . Yes, sir. 2 3 Q Did you write this letter in your 2 4 capacity a s medical director of Monsanto? 2 5 A . Yes, I did. [GORE REPORTING COMPANY ST. LOUIS, MISSOURI 2 18 HARTOLDMONOQ25917 1 Q Did you intend for Mr. Spore t 2 rely on the information in it? e 3 A . Yes, I did. 4 Q Did you write i t on or about 5 January 7 , 1 9 6 4 ? 6 A . Yes, sir. 7 Q I refer you. Dr . Kelly, to the 8 third paragraph on the f irst page. The 9 first sentence states, "The fact remains 1 0 that I would not recommend the use of 1 1 Aroclor 1262 at temperatures above 150 to 1 2 160 degrees fahrenheit without the 1 3 provision of exhaust ventilation to remove 1 4 any vapors that might be released." Do you 1 5 see that? 1 6 A . Yes, sir. 1 7 Q What is the reason. Dr. Kelly, 1 8 you use the range 150 to 160 degrees 1 9 fahrenheit in that explanation to Mr. 2 0 Spore? 2 1 A. He might have asked me. I don't 2 2 really know why he asked that. 2 3 Q . Did you ever recommend against 2 4 using Aroclor 1262 at temperatures above 2 5 160 degrees fahrenheit in any other |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 219 HARTOLDMONOQ25918 1 context? 2 A. Recommend against using it? 3 Q . Yes. 4 A. I don't know if I did or not. 5 Q Do y o u have any p r e sent 6 unde r s t a n d i n g a s to t h e sign i ficance of 7 d e g r e e r a n g e 1 5 0 degr e e s t o 160 degrees 8 fahrenheit as used in this letter? 9 A. No, sir, I don't. 1 0 Q. Was Aroclor 1262 more volatile or 1 1 less volatile than Aroclor 1242? 1 2 A. Less volatile. 1 3 Q. Are yu familiar. Dr. Kelly, with 1 4 work done in Sweden by a Sorhan Jenssen? 1 5 A. Yes,' I am. V 1 6 Q. Can you describe the circumstances 1 7 under which you first became familiar with 1 8 thatwork? 1 9 A. Yes. Something appeared in a 2 0 Swedish newspaper in 1966 or '67, I'm not 2 1 exactly sure of the date, and eventually it 2 2 showed up in the United Kingdom's 2 3 newspapers, and people from Dr. Jenssen 2 4 found what that he believed to be PCB was 2 5 present in the feathers of birds, and some |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 220 HARTOLDMONOQ25919 1 people -- I mean, this information finally 2 got to our research group. I don't know if 3 found t h a t in the feathers of the birds 4 he found i t in the land i n Sweden or in 5 water o f f Sweden. I don' t know whether 6 found it i n the b i r d s -- i n the 7 feathers, I believe. And it got into the 8 -- came to the knowledge of our people i n 9 London, our London plant, London office, 1 0 and they wrote us and asked if we knew 1 1 anything about it. We said this is all 1 2 news to us. So then we s aid why don ' t you 1 3 talk to Jenssen and find out what he 1 4 knows. So Wood went over there and h e 1 5 communicated with the management in St. 1 6 Louis about this and said maybe we ought to 1 7 find out more about what Jenssen and 1 8 Widmark have been doing withthis, because 1 9 at that time therewas confusion with DDT, 2 0 he was looking for an interference with 2 1 DDT, and was looking for DDT in the 2 2 ecosystem, and he found out that he had 2 3 this interference in his chromatograph, and 2 4 eventually he found out the interfering 2 5 compound was PCB. Whose PCB, I don't think |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 22 1 HARTOLDMON0025920 1 he identified it. We probably had less 2 than 2 0 percent of the market in Europe . 3 So we thought well, we'd better find out 4 about this. So we sent a group of people 5 over, including our Mr. Wheeler from the 6 medical department, and taJked to Jenssen 7 and Widmark. And they came back and said 8 this man has got some prettysophisticated 9 instrumentation, spectrophotometers with 1 0 gas chromatography. I'm not good at 1 1 explaining this completely, but it was 1 2 pretty sophisticated. We didn't have it, 1 3 Monsanto didn't have it. So Wheeler came 1 4 back and said it looks like this man may be 1 5 on to something, let's get the equipment 1 6 and check it out. 1 7 Q. Did you say Wheeler? 1 8 A. Wheeler. 1 9 Q. And did Monsanto purchase the 2 0 necessary equipment to check it out? 2 1 A . Yes. It took a little while. I 2 2 this was not a n off the counter i tern. 2 3 Q . Do you know how long it did t a ke ? 2 4 A . N o , I don' t . Months rather t h a n 2 5 weeks. |GORE REPORTING COMPANY ST. LOUIS , MISSOURI 222 HARTOLDMONOQ25921 1 Q. Is it fair to say that the results 2 of the Swedish work were considered serious 3 by Monsanto'at the time? 4 A . Well, first, we wanted -- yes, it 5 was certainly considered important, I think 6 is theterm rather than serious . First of 7 all, we really didn't know what it was. I t 8 was all news to us. And we decided let's 9 find out if it really is PCB out there, and 1 0 where else is it. So, yes, it was 1 1 important to us. 1 2 Q. And how soon after the disclosure 1 3 of the Swedish work to Monsanto in St. 1 4 Louis did Mr. Wheeler go to Sweden? 1 5 A. I think we found out about it in 1 6 '67 and Wheeler went over there in like May 1 7 of '68. I believe I'm correct in the 1 8 dates . 1 9 Q . Inanswer to my question about the 2 0 seriousness of the information a moment ago 2 1 you said that Monsanto considered it 2 2 important. What was the reason for 2 3 considering the information important? 2 4 A . Well, about that time the question 2 5 of non-biodegradabi lity became important. IGORE REPORTING COMPANY ST . LOU IS , MISSOURI 223 HARTOLDMONOQ25922 1 jj it was given a | 2 scientists and lot of attention by ' ecologists, and if we had a 3 product that was out in the environment and 4 conceivably getting into the feathers of 5 birds, we ought to find out more about it. 6 Q. In your use of the term 7 non-biodegradability just now, are you 8 referring to the fact that if PCRs are 9 found in bird feathers or in soil it is not 1 0 biodegrading? 1 1 A. No. Biodegrading -- I'll have to 1 2 qualify that. No. That is not the test 1 3 for biodegradabi1ity. If you take a piece 1 4 of gravel, that doesn't biodegrade. And we 1 5 had thought that PCB was a compound that 1 6 was very inert, much similar to a piece of 1 7 gravel, and if we put the -- if a PCB got 1 8 into the river or estuary or the ocean it 1 9 would go to the bottom and lie there like a 2 0 piece of gravel. Well, something -- if it 2 1 gets into the birds feathers we know that 2 2 something is happening. It isn't lying 2 3 there like a piece of gravel, there is some 2 4 metabolism by some of the marine organisms 2 5 that eventually finds its way in the food |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 224 HARTOLDMONOQ25923 1 c h a i n up into the birds. And that ' s why it 2 was important t o u s . 3 Q Have you heard the term befo r e 4 "Per s i s t s i n the e n v i r o n m e n t " a p p 1 i e d t o 5 PCBs ? 6 A . Yes. 7 Q. And what does that term mean to 8 you? 9 A . I t doesn't biodeg r a d e . 1 0 Q I s the finding of PCBs in the 1 1 feathers o f birds evidence of the 1 2 persisten c e of PCBs in the environment? 1 3 A . Not necessarily. I mean, it's 1 4 question of there is some metabolism in the 1 5 food chain that gets it up to the birds. 1 6 Whether that is - - skips all the lower - 1 7 I mean, now we're speaking theoretical. 1 8 Whether thi s is i n the f ood c hain / i t 1 9 starts with the a 1 g a e an d the n go e s t o the 2 0 shrimp and then i t goes t o t h e m a eke r a 1 and 2 1 then it goe s to the P e r e g r i n e F a 1 con o r the 2 2 Bald Eagle and finally ends up in those 2 3 feathers, that is one way, it has to be 2 4 metabolized. But persistence, 2 5 non-biodegradability is -- you find GORE REPORTING COMPANY ST . LOUIS , MISSOURI 225 HARTOLDMON0025924 1 material in birds and in humans that is 2 biodegradable, obviously. it's in there 3 Food is biodegradable, it ' s in there . You 4 take minerals that can't be bio degraded 5 they can be changed and m etabolized and get 6 into the person ' s body. 7 Q . In the example y ou just gave o f 8 PCBs going into algae, in to shrimp, int o 9 mackera Is, and so forth, and ultimately 1 0 into thefeathers of Bald Eagles, is th a t 1 1 PCB being metabolized or not being 1 2 metabolized? 1 3 A. It's being metabolized. That's a 1 4 phenomenon called bioaccumu1 at i on . There 1 5 is a little bit in the algae, the shrimp. 1 6 The mackeral eats the shrimp, he ends up 1 7 with more PCBs. The Peregrine Falcon eats 1 8 the mackeral and it ends up with more 1 9 PCBs. So it's metabolized and accumulated. 2 0 Q. When you say it ends up with more 2 1 PCBs, what do you mean? 2 2 A. Well, there is more PCBs .in the 2 3 Peregrine Falcon than there was in a 2 4 shrimp. 2 5 Q. Because -- |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 226 HARTOLDMONOQ25925 1 A . 0 f bioaccumulat ion. 2 Q And what is the mechanism that 3 results in 'the greater q u a n t i t y of PCBs 4 the falcon than the fish? 5 A . Bee a u s e if alga e comes u p __ __ 6 these a re a 1 1 t h e o r e t i c a 1 number s . I f the 7 algae c o m e s up with one P a r t per m i 1 1 i o n , 8 the s h r imp e a t s a ] o t of a 1 g a e , s o h e gets 9 a lot of PCBs, even though it's there in 1 0 one part per million, so he may end up with 1 1 a hundred parts per million in his body, so 1 2 the mackeral eats a lot of shrimp and he 1 3 ends up with a higher level of PCB in its 1 4 body than the shrimp has. So along comes 1 5 the eagle and it may eat the mackeral1s 1 6 liver, and finds out that there is more -- 1 7 the mackeral has a higher quantity of PCB 1 8 in its liver and its fat than -- much more 1 9 than way down at the bottom of the food 2 0 chain, the algae, so here is the falcon 2 1 eating the liver and some of the fat of the 2 2 fish and ends up with a higher level of PCB 2 3 than those lower in the food chain. 2 4 Q. What characteristic of PCBs is it 2 5 that results in bioaccumulation, if it's |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 227 HARTOLDMONOQ25926 1 one characteristic? 2 A . I don't know. 3 Q Is`there learning o n that topi 4 or -- 5 A . I'm sure there is pe o p 1 e more 6 knowledgeable than I that c o u Id t e 11 y o 7 Q Did you communicat e with Mr . 8 Wheeler before he traveled t o S w e d e n on 9 trip in May of '68, if that ' s when it w 1 0 A . Yes. 1 1 Q. And for what purpose did you 1 2 communicate with Mr. Wheeler? 1 3 A . I said go o V e r the re and find out 14 v e r y t h i ng you can. I m e a n , the p u r p o s e 1 5 as to f ind out is t h 3. s r e a 1 1 y P C B , how i. s 1 6 e f i n d i n g it. We haven ' t found i t . I 1 7 e a n, we haven't gone d o w n -- were able t o 1 8 get down to levels that he was talking 1 9 about. So find out what he's done and how 2 0 he did it. Can we do it. We, meaning 2 1 Monsanto, not the medical department. 2 2 Q . Why was Mr. Wheeler selected to go 2 3 on this trip? 2 4 A . We], 1, he was a - - the member of 2 5 the medical department, and the medical |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 228 HARTOLDMONOQ25927 1 | department was probably in a sense a t that 2 time closer to environmental problems than 3 anybody , any other group in the company . 4 We sent also a research man, a production 5 man and an analytical chemist from a n 6 analytical chemist's department . 7 Q. And who was the research man who 8 accompanied Mr. Wheeler? 9 A. X thought it was Bill Richard, Dr. 1 0 Richard . I be 1 ieve that was it. 1 1 Q And w h o was the production 1 2 A . I don' t know. Bob, Robert 1 3 Keller. Dr. Robert Keller was the 1 4 analytical man. 1 5 Q. Did those gentlemen render a 1 6 written report upon return from Sweden? 1 7 A. I'm sure they did. 1 8 Q. Do you remember whether they did 1 9 or not? 20 A. Yes, I'm sure. Yes, I know they 2 1 did. 2 2 Q . Were you present during any 2 3 discussion where the results of their trip 2 4 to Sweden was a topic for conversation? 2 5 A . I don't know if I was there when [GORE REPORTING COMPANY ST. LOUIS , MISSOURI 229 HARTOLDMONOQ25928 1 the whole group was there. But, after all, 2 Wheeler was in the office next to me and we 3 talked it over when he came back, what did 4 you find out and wher e do we g o from here. 5 Q And did Mr. Wheeler f i n d out from 6 you where do we go f r o m here , t o use your 7 term ? 8 A . Yes. I thin k the w hoi e task fore 9 was sort of formalize d , and the Y came up 1 0 with an a genda for ac t i o n . I d o n ' t recall 1 1 the d e t a i Is of it. B u t the m a i n -- the 1 2 firs t t h i ng was let's get t h i s i n s trument 1 3 and let's start findi n g out our s e If about 1 4 this. 1 5 Q Were you a member of the task 1 6 t o which you have referred? 1 7 A . No, I was not. 1 8 Q Who was on the task force 1 9 A . 11 w a s Wheeler and Keller , and 2 0 don't know who else. Maybe Richard. But I 2 1 don't know who else was on it. 2 2 Q. Did Dr. Richard report to you upon 2 3 his return? 2 4 A. No. I mean, he never reported to 2 5 me a t any time, he was in the research |G 0 R E REPORTING COMPANY ST. LOUIS, MISSOURI 23 0 HARTOLDMONOQ25929 1 department. Wheeler reported to me, but I 2 think they sent their report and their i 3 recommendations to everybody concerned from 4 the head of the organic division, whoever 5 it was a t that time, to anybody concerned 6 with PCBs. 7 Q. Did you ultimately conclude that 8 the Swedish work was sound? 9 A . Yes. 1 0 Q. And approximately when did you 1 1 reach that conclusion? ' 1 2 A. Gosh, I guess by the end of '58 1 3 - - '68. 1 4 Q. And what factors went into that 1 5 conclusion, from your point of view? 1 6 A. Well, I think that -- I think 1 7 limited work in our analytical laboratory, 1 8 whether it was with new instrumentation or 1 9 not, was part of it, and then there was a 2 0 fellow out in California, Risebrough, who 2 1 came up with some similar information. 2 2 Q. How did you learn of Dr. 2 3 Risebrough's work? 2 4 A. I don't know if he called me or we 2 5 read it in the San Francisco Chronicle, I (GORE REPORTING COMPANY ST. LOUIS, MISSOURI 23 1 HARTOLDMON0025930 1 don't know. 2 Q. Do you know if Dr. Risebrough 3 submitted a' draft of the paper he was 4 proposing to publish to Monsanto for 5 comments? 6 A. I don't recall whether he did or 7 not. We had pretty friendly relations with 8 Risebrough, we'd give him samples and stuff 9 like that when he asked for them. 1 0 Q. Do you reco] lect which Aroclors 1 1 were identified as a result of the Swedish 1 2 work? 1 3 A. Yes. Nothing below 1254. 1 4 Q. And do you recall which Aroclors 1 5 were identified as a result of Risebrough's 1 6 work? 1 7 A. Nothing below 1254. 1 8 Q. Did you participate in any 1 9 discussions in 1968, Dr. Kelly, where the 2 0 subject of the discussion -- or a subject 2 1 of the discussion was the affect on the 2 2 future of PCB-based products of the Swedish 2 3 work? 2 4 A . Well, first of all. I'm not sure 2 5 of the date, I mean, when we did |GORE REPORTING COMPANY ST. LOUIS , MISSOURI 23 2 HARTOLDMONOQ25931 1 participate in discussions a s to where we 2 would go if we found out based on what 3 information' we found out, not only the 4 Swedish work, it would be work that was 5 done by Risebrough. By that time the 6 government was getting very much interested 7 in the presence of PCB in the environment, 8 and they were doing investigative work, 9 too. It wasn't only based on Sweden. 1 0 Sweden and Risebrough started the bail 1 1 rolling, but everybody was examining for 1 2 PCB following those two people. 1 3 Q. And in the period following -- I 1 4 don't know if you just can't identify the 1 5 date, but do you recall participating in 1 6 discussions in '68 about the future of 1 7 PCB-based products following on the Swedish 1 8 work? 1 9 M R . P R E U S S : I think he said that 2 0 he couldn't recall w h e t h er it was '68 o r 2 1 not. 2 2 A. Yes. We had two meetings with the 2 3 executive committee on -- development 2 4 committee, but I don't know the dates. And 2 5 I had numerous meetings with the head of |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 233 HARTOLDMONOQ25932 1 the organic division 2 MR. T A L L 0 N : And who was that, the 3 o f the * orga n i c division? 4 A . I think i t was whoever was the 5 chief a t that time -- I mean, the 6 vice-president in charge of it. But I 7 don't recall. They've had quite a few 8 changes in that, so I don't know who was 9 i n 19 6 8 or '69. 1 0 Q Was i t Howard Bergen? 1 1 A . No, h e wasn't the vice-president 1 2 It was either Mason or Menkler. I mean, I 1 3 don't know. Bergen wasn't that high in the 1 4 organization . 1 5 Q. Let me show you a document. Dr. 1 6 Kelly, which bears production numbers Tran 1 7 008619 through 008622 1 8 (Transwestern Deposition Exhibit Number 1 9 17 6 mark ' d for i d e n t i f i c a t 5. o n ) . 2 0 A . Yes, sir. I've r e a d it. 2 1 Q Have you seen this before? 22 A. I think I have. I don't know 2 3 whose it is, there doesn't seem to be any 2 4 signature on the bottom of it. 2 5 Q. I would note for the record that |G0RE REPORTING COMPANY ST. LOUIS, MISSOURI 23 4 HARTOLDMON0025933 1 there is a 1 i t t 1 e bit of h a ndwriting on the 2 bottom right -hand corner o f the last page. 3 it looks lik e it says " R . E . Keller" . 4 A . Th a t's Keller, not Kelly. 5 Q . K e 1 ler, right. 6 A . Rut whether he wrote it or whether 7 this was his copy or not, I don't know, 8 Q . You think you recall the 9 circumstance s under which you think you may 1 0 have seen th is? 1 1 A . I g uess when it was -- somebody 1 2 put all this together and sent it around to 1 3 the people i nterested. But I don't know 1 4 any more tha n that. 1 5 Q . Wou Id you just take a moment to 1 6 glance at th e first entry on the first 1 7 page, "12/15/66, Report of new chemical 1 8 hazard-New Scientist, December '66, 1 9 Jensen's work". 2 0 A. Yes. 2 1 Q. You stated earlier you were unsure 2 2 of whether the first awarenes s you had of 2 3 Jensen's work was '66 or '67, does 2 4 reviewing that entry or any information on 2 5 this page refresh your recollection as to (GORE REPORTING COMPANY ST. LOUIS, MISSOURI 23 5 HARTOLDMONOQ25934 1 when you learned of Jensen's work? 2 A. No, because I think the New 3 Scientist is a n English publication and 4 that generally doesn't cross my desk. So 5 -- but then when Widmark sent a letter to 6 Ford, that was practically '67, Ford is a t 7 Monsanto, and then I don't know when that 8 -- when the publicity was, sometime before 9 Wood visited Sweden. The press release, I 1 0 don't know when that was. But the news 1 1 story was what caused Wood to go over to 1 2 Sweden in January of '67. 1 3 Q . You had testified earlier, I 1 4 believe, that you thought that Mr. Wood 1 5 might have visited Sweden later on in May 1 6 of '68. 1 7 A. Gee, did I say that? I was 1 8 wrong. 1 9 MR. PREUSS: What was that 2 0 question again? 2 1 MR. TALLON: Let me just -- 2 2 A. He said that I testified earlier 2 3 that Wood went over in '68. 2 4 MR. TALLON : Do you recall when 2 5 Wood went to Sweden? |GORE REPORTING COMPANY ST. LOUIS, MISSOURI 236 HARTOLDMONOQ25935 1 MR. PREUSS: 0 r did you say 2 Wheeler? 3 MR*. T A L L 0 N : That ' s the next 4 question . 5 A. Certainly whoever compiled this 6 sounds like if Wood went to Sweden in '67, 7 that's when he went. 8 Q. And what was Wood's job at the 9 time? 1 0 A . H e was sort of technical service 1 1 in E n gla n d , the Engl sh operation, 1 2 Q Do you r e c o lect communicating 1 3 with him b e f ore he v sited Sweden? 1 4 A G o s h , I don t know if I did or 1 5 not. I think I did, because I said, "Why 1 6 don't you go over and find out more about 1 7 this?" 1 8 Q. Do you attac h any significance to 1 9 the fact that accordi ng to this chronology 2 0 Mr. Wood visited Swed en 16 days after the 2 1 press release of Janu ary 10, 1967? 2 2 A. No. And I d on't even know who LKB 2 3 Instrument Company is . I don't know -- 2 4 maybe they were the p e o p1e who manufactured 2 5 that sophisticated an alytical tool that iI GORE REPORTING COMPANY ST. LOUIS, MISSOURI 237 HARTOLDMON0025936 1 Jensen was using. 2 Q. Let me show you a document Rates 3 s tamped -- one page document Bates stamped 4 Tran 0 0 7 5 6 6 . 5 (Transwestern Deposition Exhibit Number 6 17 7 mark ' d for identification) . 7 MR. TALLON: Why don't you take a 8 look at that document, please , Dr . Kelly. 9 A . Yes, sir, I read i t . 1 0 Q Doctor, I have just a few 1 1 questions on this document. M r . Benignus 1 2 was in St . Louis? 1 3 A . Yes. 1 4 Q What was his job? 1 5 A . He was in the functi o n a 1 fluids 1 6 departmen t, but he was mostly i n the 1 7 dielectri c part. 1 8 Q And Mr. Buchanan was i n St. Louis 1 9 A . Yes. 2 0 Q What was his job? 2 1 A . Someplace in marketi n g , I don't 2 2 know. I mean, in this same f i e 1 d 2 3 Q Mr. Cameron in Bruss els. do you 2 4 know what his job was? 2 5 A . No, I don't. IGORE REPORTING COMPANY ST . LOUIS , MISSOURI 23 8 HARTOLDMONOQ25937 1 Q. Do you know if Mr. Buchanan is 2 still living today? 9 3 A. I don't know. He's younger than 4 I, so he ought to be. 5 Q . G.R. Graham is listed a s being in 6 New York, do you know who that refers to? 7 A. I don't know any of those next 8 five people with the except!, on of Wood. 9 Q. In other words, you don't know 1 0 Steenrod, Evans or Baxter? 1 1 N o , I don ' t . 1 2 Aft e r M r . Baxter's name there is a 1 3 Ruabon? 1 4 A. That's a plant in Wales, I think. 1 5 That's a 1 o cation, ju s t 1 ike Lo n d o n . 1 6 Ruabon is a geographi cal 1 o c a t i o n . 1 7 Q I s there an organizi ng pr i n c i p a 1 1 8 to the 1i s t of recipi e n t s o f t h i s 1 9 memorandu m which you can disc e r n f r o m 2 0 looking a t it? 2 1 A . No , I can't. 2 2 MR . TALLON: Why don ' t w e break 2 3 there. 2 4 (Deposition Recessed) 25 |GORE REPORTING COMPANY ST. LOUIS , MISSOURI 239 HARTOLDMON0025938