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' Depo of Thomas M. Bistline (Monsanto v Aetna) August 10, 1993 Cr.56353.0 page l to Page 157 ACE-FEDERAL REPORTERS, INC. 202-347-3700 CONDENSED TRANSCRIPT AND CONCORDANCE PREPARED BY: ACE-FEDERAL REPORTERS, INC. 1120 G STREET, NW SUITE 500 WASHINGTON, DC 20005 Phone: 202-347-3700 FAX: 202-737-3638 WATER PCB-SD0000066471  Depo of Thomas M. Bistline (Monsanto v Aetna) August 10, 1993 Cr.56353.0 W; Page 1 Page 4 HI IN THE SUPERIOR COURT (21 OF TH E STATE OF DELAWARE 01 IN AND FOR NEW CASTLE COUNTY (4) .............................................. [5| MONSANTO COMPANY, : (6) Plaintiff, : [7] : Civil Action Number |8| v. -88C-JA-118-1-CV |9| AETNA CASUALTY & SURETY COMPANY, : NON -ARBITRATION S10) et al., : CASE 111) Defendants. : ! 12] (13) DEPOSITION OFTHOMAS M. BISTLINE 114) Washington, D. C. 115( Tuesday, August 10, 1993 |16| Deposition of THOMAS M. BISTLINE, called for (17) examination pursuant to notice of deposition, at the law (18! offices of Nussbaum and Wald, One Thomas Circle, N.W., [1] PROCEEDINGS [21 Whereupon, (31 THOMAS M. BISTLINE (41 was called as a witness and, having first been duly sworn. (51 was examined and testified as follows: (6] MR. LEIMKUHLER: Why don't we have this marked as (7) Bistline Exhibit E-1. [81 (Bistline Exhibit E-l identified.) (91 EXAMINATION (10] BY MR. LEIMKUHLER: 111] Q Good morning, Mr. Bistline. (12| A Mr. Leimkuhler. (131 Q Good to have you back. [14] A Thank you. [15] Q Mr. Bistline, could you take a look at what 's [16] been marked Bistline Exhibit E-l and identify itfor me. 117] please. 118] A Yes. This is a document, two pages, entitled Suite [19| 200. at 10:06 a.m. before JULIE BAKER, a Notary Public [20| within and for the District of Columbia, when were present (21) on behalf of the respective parties: [221 - continued - __ HI APPEARANCES: PETER L. TRACEY, ESQ. (2) Potter, Anderson & Corroon 350 Delaware Trust Building [31 Wilmington, Delaware 19899 On behalf of Plaintiff Monsanto Company. (41 MARK J. LEIMKUHLER, ESQ. Nussbaum Sl Wald 151 One Thomas Circle, N.W. Suite 200 |6] Washington, D. C. 20005 On behalf of Lloyds of London, England. (71 ELAINE M. WHITEMAN, ESQ. Christie, Pabarue, Mortensen (81 and Young 1880 J FK Boulevard (91 Tenth Floor Philadelphia, Pennsylvania 19103 110] On behalf of C .E. Heath Compensation and Liability Insurance Company. (111 WILLIAM J. KRAMER, ESQ. (121 Orrick, Herrington Sl Sutcliffe 1131 Old Federal Reserve Bank Building (HI 400 Sansome Street (151 San Francisco, California 94111 (161 On behalfof international Insurance Company (EIL). (171 JUDITH L. CARDILLO, ESQ. 1181 Siff Rosen, P.C. 1191 Wooiworth Building 1201 233 Broadway (211 New York New York 10279 (221 On behalf of First State Insurance Company,_________ Page 3 HI CONTENTS (21 WITNESS EXAMINATION (31 Thomas M. Bistline |4| by Mr. Leimkuhler 4 (51 EXHIBITS (61 BISTLINE DEPOSITION NUMBER IDENTIFIED m Exhibit E-l - Rule 26 statement 4 (191 "Rule26 Statement for Thomas M. Bistline, Esq." (20] Q Can you describefor me the significance of this (211 document as it relates to the expert tesnmony that vou [22[ intend to give in this litigation. Page 5 (11 A This document summarizes, Mr. Leimkuhler, the (21 various topics on which 1 anticipate I will testify as an (3| expert in this case. (4] Q Let me readfor you what has been setforth in (51 Exhibit E-l under the heading *Subject Matter of (61 Testimony. ' And I quote "Mr. Bistline is expected to [7] testify as to the necessity for and the reasonableness of (81 the sums expended by Monsanto in litigating and, in some |9| instances, settling the various third-parry actions arising (10! in connection with the Brio site. Mr. Bistline's tesnmonv 111! will concern the periodfrom April 1990 to date. ` [12; Does what I'vejust read accurately capture the (13! subject matter ofwhat your expert testimony wilt be in (14' this litigation ? (15! A Yes, it does. 116' Q Are there any other subjects that you intend to [17! offer testimony about in your capacity as an expert ? (18: A Not that I'm aware of at this point, no. [19! Q Do you intend to offer expert testimony [20! concerning the numerical amounts that have been spent by (21! Monsanto in connection with the Brio third-party actions ? 122! A I believe that testimony has already been__________ Page 6 Ill provided. I think I spoke to that in the 30(b)(6) [2] deposition. That will be part of the testimony, that the (31 amounts that were expended were reasonable. I think we (4] need to know what those amounts are. IS] Q My question: Is it a subject ofyour expertise (6] as will be utilized by Monsanto in this litigation to (7) testify about the amounts that have been spent by Monsanto (81 in connection with the Brio private actions ? (9) A I don't believe that's a topic of expert (10| testimony, Mr. Leimkuhler. That's a factual matter, in my (111 view. (121 Q In any event, you will not be testifying about 1131 amounts as an expert; is that right ? [14] A My understanding is that the topic of the amounts (15| as amounts will not be the subject of my expert testimony. (16] The reasonableness of the amounts expended and the (17] necessity for them will be topics that I intend to address. ACE-FEDERAL REPORTERS, INC. 202-347-3700 Page 1 to Page 6 WATER PCB-SD0000066472 a Depo of Thomas M. Bistline (Monsanto v Aetna) August 10, 1993 Cr.56353.0 *x(2: [18 Q Can you identify for me which ofthe Brio private [19 actions, or third-party actions, will be the subject of [20 vour testimony as an expert ? [21 A In general, I can tell you that it will be the latter part of the Slaughter case. As I think you know, 1 Page 7 HI assumed responsibility at Monsanto for the day-to-day 121 management of the Brio third-party litigation in April of I3| 1990. At that time,"the Slaughter case was in the [4| appellate - actually, not quite appellate, it was in a [5| post-trial motion phase. So I will be testifying with |6| respect to Slaughter and the progress of that case and with (7| respect to those cases which were on file then in April of [8| 1990 and which were filed against Monsanto subsequent to [91 April of 1990 up until the present. There were -1 forget [10| the precise number - but something on the order, I think, HU of 30 or 35, perhaps more, cases which were commenced, and 1111 the management of the defense of major toxic tort (121 litigation, particularly as it pertains to chemical [13) manufacturers, Monsanto in particular, the handling, the [14) defense, tactics, strategy and settlement of those cases. 115) That's what I've been doing for the past 11 years. [16) Q Is there a particular course ofstudy or an [17) educanonal degree that one can seek in order to become an [ 181 expert in thatfield? [19] A In general, I think a law degree is the [20| educational degree that one would require to undertake this [211 sort of activity. [22)_______Q Other than a law degree - I'm lookingfor Page 10 [ 11 something (21 A Something beyond a law degree? (31 Q- beyond a law degree, or more precisely, [4) focused on thefield ofmanagement ofmajor toxic tort [31 litigation. [6] A1 know of no educational program that provides 1121 I believe that the pleadings in all those cases certainly (13| are documents that have been provided to the Defendants in [14] this case. 1151 Q Do you recall that about a month and a halfago, [16| you gave testimony as a Rule 30(b)(6) witness on behalfof [171 Monsanto ? |18| A Yes, I remember. [19| Q And do you recall during that deposition that you 1201 identified litigation in which Monsanto was involved that [211 concerned the Brio site? [22| A Yes._________________________________________________ Page 8 HI Q Other than the litigations that you identified (2; during that 30(b)(6) deposition, are you aware ofany other 13 actions in which Monsanto is involved with respect to the [41 Brio site which will be the subject ofyour expert [51 testimony in this case ? |6| A Not that I'm presently aware, Mr. Leimkuhler, no. [71 Q Let's go back to Exhibit E-I on thefirst page |8| under the heading "Summary ofBases and Groundsfor [9! Testimony." Let me read as quickly as possible thefirst lie two paragraphs ofthat section. nr "Mr. Bistline is expected to testify that the 117 sums expended by Monsanto in connection with the Brio [131 third-party actions were reasonable and necessary. These 114' sums, which,for the most part, are setforth in Exhibits [151 l(Cf(E)ofMr. Bistline's 30(b)(6) deposition (expenses 1161 incurred through 1992), include, but are not limited to, 117] attorney 'sfees, expert/consultantfees, and other 118] necessary and reasonable litigation expenses. " 19! Let me stop right there and ask you -I'm sorry, 20 let me read the next paragraph also. `Mr. Bistline is [7] expertise in that area. In my view, that's a matter that [8) is acquired by experience. [9) Q Does yourfield ofexpertise have any standards [10] ofconduct by which an expert practicing in thatfield of [111 expertise must abide by ? [12) A Other than the rules of conduct that guide all 1131 lawyers in their practice? Is that what you're referring [14} to? 115) Q Well, my question goes beyond that. I assume as |16| a lawyer, you abide by the Professional Code ofEthics. Is [ 17) there anything in particular that is germane to thefield [18) ofmanagement ofmajor toxic tort litigation that embraces [ 191 a separate or a supplemental code ofconduct or standard of [20] conduct? [21] A I'm aware of no writing that would embody that. [221______ Q Or any unwritten body ofstandards ? Page 11 [1] A I'm uncertain what you mean by "standards." (2) Q Your testimony is that you 're aware ofno written [ 3 ] standards or guidelinesfor conduct ofthe practinoner of (4] management ofmajor toxic tort litigation; is that right? [5| A I'm aware that it is a topic that's frequently [6] discussed by people who practice in the area, but in terms [7] of a code of conduct similar to the rules of ethics that [8| guide all lawyers, I'm not aware that any such writing or [9] thing exists of that nature. [10] Q Either in written or unwrittenform? [11] A That's correct. [12] Q Your answer seemed tofocus more on a code or [13] conduct ofethics. What about a standard ofcompetence ? [14] Is there any sort ofstandard ofcompetence, written or [15] unwritten, that pertains specifically to the management of [ 161 major toxic tort litigation ? 1211 expected to testify that the settlement amounts incurred by [22' Monsanto in connection with certain Brio third-party [17] A I'm not aware of any single, written embodiment [18] of that that applies to all of the attorneys that I know Page 9 II actions, i.e., Acosta, Aguilar and Hardage, were [2 reasonable. " [3 Other than the opinions that are identified in [4 those paragraphs that Ijust read, do you intend to offer (5 any other opinions in this litigation ? [19] that practice in this area. I'm aware that we all share a [201 lot of practices in common, in terms of the manner in which [21] we approach cases, in what we like to do to control [22] expenses, to assure positive outcomes, to deal with Page 12 16 A Not that I'm aware of at this time, no. [7; Q Could you identifyfor me thefield ofknowledge (81 or learning in which you are holding yourselfout as an [91 expert? no A1 believe, Mr. Leimkuhler, 1 have expertise in [ 1 ] particular kinds of situations that may occur in common in [2] those cases. And I believe I said that those matters are [3 ] discussed frequently at ABA meetings and other meetings [4) where lawyers gather to discuss what it is they do for a Page 6 to Page 12 202-347-3700 ACE-FEDERAL REPORTERS, INC. WATER PCB-SD0000066473 B Depo of Thomas M. Bistline (Monsanto v Aetna) August 10. 1993 Cr.56353.0 <ww;: (5| living, and it's in that context that I think a lot of 16) information is shared among those of us who are in this [21] Q At the nme that you were invited, wasanvone [22] else on Monsanto's legal staffinvited to be a member (7) field. 181 Q Out ofthose discussions and that sharing of [9| information, has any sort ofunwritten standard of [10| competence or conduct arisen, inyour view? 1111 A Not in terms of competence or conduct. We share H 21 more practical insights into how we have handled Page 15 111 A Yes. [2] Q Who else was invited? [3] A Mr. Robert Berendt, who's my immediate [4] supervisor. [5] Q Anyone else? particular 1131 situations that have proven successful in a given case that [6] [7] A No. Q Was Mr. Krchma invited to be a member! 1141 might be helpful to our peers of other companies or an 115 j outside practice who face similar situations. 116! Q Are there any treatises or textbooks which relate 1171 specifically to the management ofmajor toxic tort [8] A No, 1 don't believe so. (9| Q Has Mr. Krchma ever been a member ! 1101 A Of PLAC? Ill I Q Yes. 1181 litigation ? |19] A 1 believe DRI published in one of its - it was [20] either a magazine or one of its special publications a [211 couple of years ago, an article on the defense of toxic [121 A I don't believe so. 113 ] Q Is there anyone else in Monsanto s law [14] department, other than yourselfor Mr, Berendt. who is [ 15) either presently or at some time has been a member of PLAC. [221 tort litigation. It is a topic that is addressed Page 13 [ 11 periodically in publications like the BNA Toxics Law Report [16] A I don't believe so. [171 Q When you became a member but before you became [18] part ofthe executi ve committee, did you ha ve any [19) responsibilities as a member ? |21 or the Mealey's Toxics Litigation Report or something [201 A When I first became a member of PLAC , I was on like [31 that. [21] the case selection committee. That was my first [221 affiliation with PLAC. 14] There are several publications of that nature, Page 16 [5) Mealey's, the BNA publication that I referred to and |6] others, that track cases, toxic tort cases, and contain [ 11 Q And what was - can you describe that |2| responsibilityfor me. [ 7) commentaries on various aspects of,tort law or [3 ] A The case selection committee is a committee of management [41 inside corporate counsel who review pending cases to [ S | of toxic tort cases. Various aspects of that have been (5) determine which present issues that are significant and [9] treated by organizations like the Product Liability [6] meritorious enough to warrant PLAC's participation as (10] Advisory Council, PLAC, and other groups that are an 1111 interested in the development of the law of torts and |12| product liability. 1131 Q What is the Product Liability Advisory Council ? [71 amicus in the appellate process. [8] Q Does the case selection committee also [9] participate in drafting the amicus briefs ? 1141 A It's a group of legal professionals engaged in 1151 the defense, either as inside counsel or outside counsel, [10] A Yes. [Ill Q Did you personally participate in drafting amicus [16] of product liability cases. The main function of PLAC is 112] briefsfor PLAC? 117] to-it's twofold really. It is to provide amicus briefs 1181 on significant issues of product liability facing appellate [13] [14] A Yes. Q How many? 1191 courts, both at the state and federal level, and to provide 115] A The year I was on that committee, I acted as |20J information and education to its members on the law of (211 products liability. [22]_______Q Are you a member ofPLAC? [ 16] liaison for, I believe, three or four different cases. [17] Q Can you tell me what issues you wrote about ? [18] A The briefs addressed protection oftrade secret Page 14 ' [19] information, the issue of open and obvious danger as it |1] A I'm on the executive committee. [20] interacts with the failure to warn, an issue on spoliation [21 Q How long have you been a member ofPLAC? [21] of evidence by a plaintiffs expert and, of course, my {31 A Four years now. 122] favorite, which is junk signs. 141 Q What are the requirements ofmembership in PLA C? Page 17 [ 5) A Being a lawyer, an in-house - there are two (61 classes of members. There are corporate members and [7) sustaining members. For a corporate member, the |8) requirement is that you be involved in the defense of (91 product liability litigation. For a sustaining member, [10] that is a person in outside practice, the requirement is 1111 that the attorney be engaged in the defense of product 1121 liability litigation as an outside counsel. Membership is [ 131 by invitation. [14] Q Was there anyone else - withdraw the question. [131 I take it when you became a member, it was by [16) invitation? 117] A That's correct. ]I8| MR. LEIMKUHLER: Off the record. 119| (Discussion off the record.) {1 ] MR. KRAMER: I'm sorry, I couldn't hear that. [2] THE WITNESS: Junk signs. [31 BY MR. LEIMKUHLER: [4] Q Did you participate in the Merrill/Dow case as [5] amicus? [6] A PLAC submitted a brief on the Daubert case. 1 [7] wasn't on case selection at that time, but 1 did see and [8] comment on a copy of the draft brief before it was [9] submitted. [10] Q You were on the case selection committee for one [11] year. Did you have another committee assignment after [12] that? [ 13] A The executive committee. [14] Q What are the prerequisites ofmembership on the [ 15] executive committee ? I20| BY MR. LEIMKUHLER: [16] A Having been a member of the case selection - I ACE-FEDERAL REPORTERS, INC. 202-347-3700 Page 12 to Page 1 WATER PCB-SD0000066474 m Depo of Thomas M. Bistline (Monsanto v Aetna) August 10, 1993 Cr.56353.0 *ax( [ 17| believe all the members of the executive committee have f 181 been on the case selection committee and been invited to 119| become a member of the executive committee. [201 Q How large is the executive committee? [21| A 1 think there are 12 members. That includes the [22| executive director of PLAC. Page 18 [ 11 Q Do you know what the overall membership ofPLA C 121 is? ~ [31 A There are 100 corporate members and 300 [4] sustaining members. [51 Q Your participation in the executive committee did 161 not involve an election ? [7] A No. [81 Q It was purely by invitation ? [9] A Purely by invitation of the members of the [SO] executive committee. 1111 QDo you have a particular title within the |12[ executive committee? |7] are the main ones that 1 can think of that affect the area [81 of my interest. [9] Q Let me draw the question a little bu more |!0| narrowly. Do any ofthe action groups address issues (111 relating to management oftoxic tort litigation to the [12] extent it concerns efficiency in litigation and containment (131 ofdefense costs? (141 ANo. [15) Q Does any ofyour work with PLA C in voi ve issues of 116j maintaining the efficiency ofthe litigation oftoxic tort 117] matters or ofcontaining defense costs ? (18) A Efficiency, yes, because I believe certainly in (191 the area of expert witness - the admissibility of (20) scientific expert witness testimony and the discovery (211 disclosure issues that are ongoing at the present time (221 regarding the proposed amendments to Rule 26. I think those Page 21 [11 go to the efficiency of the litigation process overall. (13] ANo. 1141 Q Do you have a particularJunction within the 1151 executive committee ? 1161 A Other than to be a member and go to the [17) meetings? No. [ 181 Q What is the executive committee's responsibility ? [ 191 A We are responsible for the day-to-day operations [20] of the organization, planning for meetings. We have [211 meetings twice a year, getting reports from the case |22[ selection committee on issues that they are participating Page 19 111 in, hearing from our action groups which are -1 would [21 analogize them to various sections of the ABA litigation [31 section - which focus on particular subject matters of 141 interest to people in litigation practice. (51 Q Anything else? (61 A We hear reports from our treasurer on budget and [7] get an annual report from the auditors, that our books and [8] records are in order. It's an administrative committee. 191 Q Are there any action groups within PLAC which [ 101 deal specifically with the management oftoxic tort 1111 litigation ? [2) Cost containment, there is no committee that I know of (3) within PLAC that deals specifically with that issue. [41 QI understand how rule changes could affect (5) efficiency oflitigation. My question really is addressed (6) more to, given a certain playing-field in litigation, does (7) PLAC in any way address issues ofhow corporate counsel can (8) better control the defense costs that are incurred in (9) connection with toxic tort cases. (10) A On that specific narrow issue? No, not that I'm (111 aware of. No group has that as its sole focus. (12) Q Or relates in any way to issues concerning the (13) control ofdefense costs? (14) A Again, on that very narrow issue, I'm not a ware (15) of any group that has that as its sole focus. (16) Q Does any aspect ofyour involvement in PLAC [ 17] involve issues concerning analysis ofsettlement ? (18) A That's a topic that's frequently discussed, 119) certainly at the meetings, and I believe that one of the (20) firms in PLAC in connection with one of the PLAC members (211 developed a pilot program for the early analysis and (221 evaluation of claims for settlement. [ 121 A As a topic-as a discrete topic, no. Many of [131 the areas touch on issues that affect the management of [ 44] toxic tort litigation. 115) Q Can you give me some examples ofthose? Page 22 [1] MR. LE1MKUHLER: I'm sorry, can you read that (2| back for me. (31 (The reporter read the record as requested.) (16{ A The experts of evidence committee, which has been (171 focused on the development of the law in the admissibility (41 (5] BY MR. LEIMKUHLER: Q Can you describe what the pilot program consisted 118 ] of scientific evidence, principally in toxic tort cases; [19{ the civil procedure committee, which has been focusing on (61 of? (7) AI just have a general awareness of this, 120) the proposed amendments to Rale 2d and automatic (8) Mr. Leimkuhler, but it was, to my recollection, disclosure (91 identification of a particular type of case that this [211 as opposed to the more traditional discovery we're all used (10) corporate member had on a fairly repetitive basis, certain (11) activities that counsel were to perform as a matter of (221 to as lawyers. There's the ALI committee, which is working (12) first priority, certain records that were to be obtained, (13) certain information that was to be obtained from the . Page 20 [ 11 with - not working with, but commenting on, formulating a [2| PLAC position with respect to the proposed revision of the [31 restatement of torts. There is a committee that is focused (4) on the issueof protective orders and efforts to convince 151 the courts of the legitimacy of protecting intellectual [61 property, possession and propriety of manufacturers. Those (14) plaintiff in the case and submitted to a member of the law (15) staff of the corporate member. And then that case would be 116) analyzed to determine whether it was one in which (17) settlement should be pursued as a matter of first priority (18) or whether the case should be, rather resisted vigorously (19) on the merits. (20) Q Did you have any individual involvement in that (21| study? [221_______A Not individual, no. Again, as 1 said, 1 was Page 17 to Page 22 202-347-370C ACE-FEDERAL REPORTERS, INC WATER PCB-SD0000066475 Depo of Thomas M. Bistline (Monsanto v Aetna) August 10, 1993 Cr.56353.0 Page 23 111 aware of it in general and heard and participated in some |2| discussion with respect to results in terms of cost 131 containment and efficiencies that this particular member |4| believed resulted from the use of that program. 151 Q Did you learn anything about settlement analysis 161 from this pilot study that you applied to your work at (7| Monsanto? (8{ A 1 don't recall anything specific that I learned (9| from that. It was a piece of information that, in 1101 appropriate circumstances, provided a model for a method 111 that could be used to analyze cases to determine whether 121 they should be settled or resisted on the merits. 13 ] QDo you know whether that model - withdrawn. 141 Did vou or anyone else at Monsanto apply that 151 model to any ofthe Brio private actions that are at issue 161 in this case ? 17) A The model was not appropriate for application to these kinds of cases. . 191 Q Does PLA C sponsor seminars ? 20j A Yes. 211 Q Have you spoken at any ofthese seminars'! A Not at a PLAC seminar, no.________________________ Page 24 Q Have you attended any ofthe PLA C seminars ? A Yes. Q At any ofthe PLAC seminars that you attended, has the issue ofoverseeing litigation costs in toxic tort cases been addressed? A It's been touched on. I don't recall any talk that focused specifically on that narrow subject. Q Have any seminars that you attended addressed the issue ofanalyzing the potential settlement oftoxic tort cases? A Are you speaking of PLAC now or just any seminar? Q PLAC. A1 don't recall that just in terms of toxic tort cases, Mr. Leimkuhler. Q Are you a member ofany other organizations ofa similar nature to PLAC, and I don 't necessarily mean by subject matter, but organizations such as Bar committees ? Al'ma member of the American Bar Association litigation section and I believe the corporate counsel subgroup of the litigation section. 1 think 1 paid my dues for that this year. Page 25 11 Q Can you describe your activities in the ABA 12 litigation section ? |3 A1 attend seminars. Occasionally, I speak at |4 litigation section, the corporate counsel section 15 seminars. I've also spoken at a tort and insurance 16 practice section seminar. (7 Q What topics have you spoken on as part ofthe (8 corporate council subsection ofthe litigation section of 19 the ABA? HO AI have addressed management of litigation, the 111 toxic tort litigation. I have addressed use of computer 112 support to control costs and assure accuracy and 113 consistency, particularly in discovery responses. I've 114 addressed the issue of the admissibility of scientific us: evidence in toxic tort cases. I've addressed the issue of 116 the use of jury consultants in evaluating and developing 117 strategies for the defense of toxic tort cases. And that's iu: all 1 can recall at the moment. 119 Q You said vou also spoke at a TIPS seminar 120 A Yes. 121 Q That's all caps, T-I-P-S. Can you tell me what 122 the topics were that vou addressed ?_______ Page 26 A1 spoke at one TI PS seminar that was last September in New York, and 1 addressed the issue relating (31 to the inside counsel's role in the management of 141 litigation, particularly toxic tort litigation. 15 ] Q Was that presentation similar to the seminar that |6] you spoke atfor the litigation section ? |7] ' A Yes. (81 Q Similar in content ? (9] A Similar in content, yes. (10] Q Other than ABA seminars, have you spoken at any 1111 other continuing legal education seminars or seminars of [12) any kind? (13) A No - let me take that back. Yes. I have spoken 1141 at two in-house Monsanto seminurs for the members of the 115] Monsanto law department. [ 16| Q What were the subjects you addressed at the 117) in-house seminars? 118) A The application of computer technology to large 119) toxic tort cases that, of course, everybody in-house at (20) Monsanto was aware of, the Agent Orange case and the dioxin (21 cases that we had. And I addressed the - what precisely |22 was the issue? It was right after the Bhopal incident, and Page 27 II it was kind of a two-topic discussion of the legal (2 standards applicable to the chemistry in connection with [3 issues like mass exposures, which was a very current top [4 and what some of the things that Monsanto had done in the [5 wake of that to assure ourselves that a similar situation [6 would not occur with any of our operations. 17' Q Can you think ofany other seminars that you 've 18 spoken at other than the ones you've just mentioned ? 19 A Those are all that 1 can recall, Mr. Leimkuhler. [10 Q At the seminars where the topics ofthe [11 management oftoxic tort litigation were addressed by you, [12 can you tell me the specific issues that you discussed, to (13 the best ofyour recollection ? (14 A Sure. Several. First of all, the need for [15 in-house counsel to be involved in the management, the 116 day-to-day decisionmaking with respect to significant in: cases; to meet and confer with counsel to set clear lines |18 of communication; to agree upon strategy and how strategy (19 is to be implemented; to provide for the appropriate and (20 regular flow of communications, both from counsel inside [21 the company and from inside the company back to outside [22 counsel; the necessity for inside counsel to be familiar Page 28 [ 1 ] with the main scientific issues involved in toxic tort (2| cases that inside counsel may be responsible for [31 supervising, and in general, how Monsanto has met that (4) challenge; the importance of knowing the identity of your [51 adversary's expert witness, chief, medical or scientific [6| witness and some thoughts on how to go about obtaining [7] material for effective cross-examination; the importance of [8] outside counsel being efficient, prompt when projects are ACE-FEDERAL REPORTERS, INC. 202-347-3700 Page 23 to Page 28 WATER PCB-SD0000066476 Depo of Thomas M. Bistline (Monsanto v Aetna) August 10, 1993 Cr.56353.0 x<i: [9 in the works, and the importance for inside counsel MO carefully to scrutinize costs; to assure that work being 111 done by outside counsel is both appropriate in terms of the (12 type of case being undertaken and also, that it's not 113 something that with a little bit of planning and effort can 114 be done by in-house personnel at more reasonable cost; a Iso 115 giving outside counsel a view of the role of an inside 116 lawyer in terms of communicating with senior ma nagementand in the client and what's important in that regard. Those, in 118 general, are the topics. 119 MR. LEIMKUHLER: Let's go off the record for a 120 moment. 121 (Discussion off the record.) BY MR. LEIMKUHLER: Page 29 Q Do you recall the points that you made at the seminar concerning the management oftoxic tort cases that concerned the inside counsel's scrutiny ofcosts incurred by outside counsel ? A 1 don't recall the precise words I used, if that's your question. Q No, that's not. You had identified two general areas that you addressed. One was whether the expenditures |9 were appropriatefor the type ofcase involved, and second, 110 whether work being done by outside counsel would be more 111 efficiently done by inside counsel. 112 A Right. |13 Q Let's take thefirst one. Do you know what [14 points you made in connection with ensuring that the costs 115 expended by outside counsel were appropriatefor the type [16 ofcase 1 117 A That was a general thought, and I believe the [18 point I made there was counsel needed to keep in mind, 119 ultimately, what the value of the case would be, and that a 120 48-state or 50-state survey on a particular legal topic [21 might be appropriate in one case but totally ina ppropriate 122 in another case or a different kind of case. And again, in Page 30 II that general vein, it is appropriate and I think probably [2 incumbent upon inside counsel not to reinvent the wheel T3 every time a project is undertaken. [4 For example, research of that nature which Is [5 done in one case ought to be available, and it ought to be [6 part of inside counsel's job to see that that kind of (7 research is available to other counsel in other parts of [8 the country who may be handling cases for your company that |9 face similar issues, as an example of the kind of |10 efficiency 1 was talking about. 111 Q Did you prepare an outline that was distributed ? 112 A I believe so, yes. 113 Q Do you still have a copry ofit in yourfiles ? [14 A I don't know the answer to that. 1 don't know [15 whether it's still there or not. [16 MR. LEIMKUHLER: Peter, I'd like to get a copy of [17 that. [18 MR. TRACEY: To the extent that it exists, we'll 119 undertake to look for it. [20 MR. LEIMKUHLER: Sure. [21 BY MR. LEIMKUHLER: 122 ______Q Did the seminar that you gave - Page 31 III A It wasn't a seminar. It was, I think, about a [21 20- or 25-minute talk in a three-day seminar. [31 Q Did the talk that you gave at the linganon |4[ section seminar differ in any respectfrom the talk that [51 you gave before the TIPS section seminar/ 16] A I think they were approximately the same. They [7] addressed generally the same kinds of issues. 18] Q Was there a separate outline that you prepared [9] for distribution at the TIPS seminar ? 110] A Yes. [11] Q And do you know whether you have a copy ofthat {12] outline? [13] A I may have. 1 think it was included in the 114] handouts from that seminar. [15| MR. LEIMKUHLER: With regard to that, with regard f 16] to both the litigation section and TIPS section seminars, [17] if you could undertake to determine whether you have copies [18] of those outlines. 119] MR. TRACEY: From what the witness is saying, my [20] understanding is that if they exist, they would be in his [2X ] files, and we'll undertake to look through his files to [22] determine if, in fact, we have them. Page 32 111 BY MR. LEIMKUHLER: [2] Q Do you recall the date ofthe litigation section (31 seminar concerning management oftoxic tort litigation ? ]4] Not the precise date, but the approximate date. [5] A It was in about '88 or '89, Mr. Leimkuhler. I f61 think that's when it was. ]7] Q What about the TIPS seminar ? |8] A The TIPS seminar was last September. (9)Q September'92? (10] A Yes. [It] Q Could you describe the points that you made at [12] the litigation seminar concerning the use ofcomputer [13] support to control costs ? [14] A Again, that was a short topic, in the area of 20 (151 to 25 minutes, describing what 1 call at Monsanto our "PCB [16] discovery database," which in essence, contains all of the [17] interrogatories that have been posed to us, the answers (18) that we had given to those interrogatories, the demands for |19] production of documents that have been made and our |20] responses to those demands, and an explanation of how we [21] set that up, why we set it up, and again, in general terms, [221 how it has helped us in terms of both efficiency and Page 33 consistency in responding to discovery in that type of 121 case, PCB case. [3] Q Was that database set up in-house ? [41 A Yes. (5! Q Does a similar database existfor the Brio [6] actions ? [7] A Not in-house, no. I don't know whether it would [8] at home. Primm has - they probably have the answers on [9] word-processing system, but I don't know that there is a - [10] I know there is not a computerized database of those 111] responses, fully complete computerized database of those [12] responses. We have some on a database but not all them. 113 ] Q With regard to - withdraw the question. Page 28 to Page 33 202-347-3700 ACE-FEDERAL REPORTERS, INC. WATER PCB-SD0000066477 Depo of Thomas M. Bistiine (Monsanto v Aetna) August 10, 1993 Cr.56353.0 |14 Tell me what points you made at the computer (15 support seminar as they concerned the control ofdefense 116 costs. (17 A Are you talking about the one in-house? 118 Q No, the ABA seminar. 119 A That was the one that 1 was talking about, the 120 use of that discovery database as a means of conserving the 121 time of outside counsel in framing responses to discovery and identifying a core set of documents which would be Page 34 responsive to particular types of discovery demands. Both |2i of those result in significant savings in outside legal 131 costs. 141 Q Did any aspect ofyour talk on jury consultants |5] concern cost control? (6) A I touched on the cost control as an aspect of the [71 appropriate use of a jury consultant, yes. 181 Q Can you tell me what you recall discussing [9[ concerning cost control in that context? [101 Ain general, I guess my comments were twofold in [111 that regard. First, it was my recommendation that if a [ 12] jury consultant Ls to be employed in a case, the consultant [ 131 should be employed earlier rather than later so that [ 141 important things can be explored, and discovery needs with 1151 respect to those things and issues can be identified and [ 16) addressed earlier rather than later. 117] Second, 1 guess the primary importance of the use [ 18) of a jury consultant is to assess the recent activity of a [ I9| likely jury to the particular things that in my case, and |20[ in the defense of toxic tort cases, we are likely to [211 address to the jury in the company's defense; whether there are particular portions of the defense that a jury is Page 33 likely to find credible or not credible; if not credible, how to go about addressing that particular issue in the way |3 the jury can understand it better, that we can communicate 14 it better to a jury; and ultimately, to assess the value of 15 the case in terms of our opportunity to prevail, or if 16 we're not going to prevail, what a range of potential loss [7 might be to the company. [8 Q Have you attended any seminars, other than those (9 at which you 've spoken, where the issue ofcontrolling [10 defense costs has been the subject ofa talk ? 111 A Certainly. 112 Q Can you identify which ofthose you've attended ? [13 A I've attended a couple of litigation section 114 seminars, one here in Washington. I don't recall whether [15 the other one was in New York or California -1 just don't [16 recall, it's been several years ago - at which a speaker [17 or maybe two speakers addressed the issue of techniques 118 that had been employed by that individual, typically 119 in-house counsel, to supervise and control costs for 120 outside counsel. [21 I attended a seminar given by Litigation [22 Sciences, at which, not surprisingly, they advocated use of Page 36 jury consultants, and in particular, Litigation Sciences, in an effort to assist in litigation strategy and identify cost savings. PLAC has had - well, I mentioned the case settlement pilot program earlier, and that was part of a [5 morning session at one of their programs, 1 believe, that [6 dealt with, in general, litigation management and cost [7 control. [8 Quite frankly, it's my experience that whenever I [9 go to an ABA seminar, TIPS seminar or corporate counsel [10 seminar, that there will be one or more speakers who [11 address issues of how to control outside counsel costs. [12 QI think you identified three ABA seminars, an LSI [13 seminar and then a PLAC seminar at which these issues were |14 addressed by speakers; is that right ? [15! A That I can recall at the moment, yes, apart from [16 seminars in which 1 was a speaker. (17 Q How long were the talks that were given by the (18 cost control speakers at each ofthose seminars ? 119 A Typically, they're 20- to 25-minute [20 presentations. (21 Q Are there any aspects ofyourformal education [22 that you consider to bear directly on the issue of Page 37 (1 controlling the costs incurred by outside counsel ? (2 A No. Unfortunately, it's my experience that law (3 school doesn't do much to prepare you to practice law oth r (4 than acquaint you generally with legal topics, show you [5 where the library is. [6 MR. LE1MKUHLER: Off the record, [7 (Discussion off the record.) (8 BY MR. LEIMKUHLER: (9 Q Have 1 exhausted your recollection ofthe [10 seminars at which you've spoken concerning issues ofeither 111 cost control or analysis ofsettlement ? [12 A I believe so, yes. I can't recall anything as I (13 sit here. 114 Q Have you, infact, spoken at a seminar concerning [15 settlement analysis ? 116 A Not specifically, no. I have addressed the [17 topic, again, as part of a group of topics related to (18 management of litigation. But I have not spoken [19 specifically and solely on that as the single topic of the [20 presentation. [21 Q You 're referring to the two seminars at which vou [22 spoke on management oftoxic tort cases ? Page 38 d A That's correct. [2 Q Tell me the points that you made concerning (3 settlement analysis in the context ofthose seminar talks. [4 A In general, that settlement is a topic that needs [5 to be addressed with management, that it's important for [6 inside counsel to keep his or her management apprised of [7 both the progress of litigation and the expectation as to [8 outcome; and 1 guess what I would call the company's (9 exposure, what it might cost if an adverse verdict is [10 returned, and in conjunction with that, what counsel's [H estimation of the settlement value of the case is; that it [12 is important for inside counsel to keep in mind that in a 113 business view, the economic value of the case is a very (14 important consideration in determining what strategy is to [15 be employed, and that, I believe, it is part of inside (16 counsel's duty to keep an open mind with respect to the 117 settlement of cases. (18 Q Did your talk include - withdrawn. |19 Did the talks that you gave at the litigation [20 section and TIPS section seminars include discussion of (21 parameters to consider in determining whether or not a [22 settlement is advisable ? ACE-FEDERAL REPORTERS, INC. 202-347-3700 Page 33 to Page 38 WATER PCB-SD0000066478 Depo of Thomas M. Bistline (Monsanto v Aetna) August lyyj ^r.^ojo^.U Page 39 (!) A I touched on that, yes. (21 Q In what respect ? |31 A That in evaluating the settlement potential of |4| the case, simply aside from the money involved, other (5)considerations might come into play, such as, if your |6| client is faced with a product or a situation in which 17) similar cases are likely to be filed in the same 18) jurisdiction or other jurisdictions around the country, |9| that it's important to take a broad view of the litigation |10| and not focus narrowly on an individual case, that that can |ll| affect how a case appropriately is valued for settlement [ 12) purposes. And I think I may have commented on just a |! 31 personal dynamic that is sometimes involved, that extreme 114) antagonism of counsel is typically counterproductive to the (15| resolution of the case that should be settled. 1161 Q At any ofthe talks that you've given, have you (171 addressed parameters to be considered in arriving at a (18) specific amount or specific range that would be considered (19[ a reasonable settlement amount ? 1201 A Other than simply to encourage counsel to have in |2l| mind, as part of that judgment, the company's exposure or 1221 client's exposure to an adverse verdict, I'm always on the Page 40 (11 defense side in these cases, so that's my evaluation. (21 That's the only specific comment i can recall making in 131 that regard. 14) Q In other words. none ofyour talks included the (51 discussion ofhere's how you go about determining whether a |6| particular set amount is reasonable or unreasonable ? |7] A That's correct. f 8 ] Q Have you attended any seminars or received any [9] other training at which the issue ofevaluating settlement |10] has been discussed ? Ill) A Yes. I believe a couple of the seminars that I (12| have attended have had people wbo'veaddressed that. (13( Q Can you tell me what the nature ofthose (141 discussions were? 113( A The most recent one was the September 1992 TIPS !16( seminar in which there was a panel discussion from the (Hi plaintiffs' and the defendants' perspective in evaluating (18| cases for settlement. I can't recall specifically. I 1191 think Stan Chesiey was on the panel, and I can't recall who (20) all else was on there. I remember Mr. Chesiey because he |2l| arrived late, spoke oat of order and left early. (221______ Q He probably had another settlement to catch - Page 41 |1| another seminar to catch. (21 A He had another case he was trying to settle. I (31 recall his explanation. (4) Q Any others you can remember? (51 A I know that -1 believe that the seminar that I (61 attended here in Washington several years ago had a (7( discussion of the settlement of eases, and I can't (81 recall -1 think Tom Henderson was on one of those (9| panels. I recall him because I frequently see him on the (10) other side of cases. There may have been others, (ill Mr. Leimkuhler. I just don't recall them specifically at (12! this time. 1131 Q About how long did these discussions last? Were {14! these in the 20- to 25-minute range ? U51 A The individual presentations were in the 201161 25-minute range, and the panels would last anywhere from an (17) hour to two hours, depending on the number of speakers and 1181 the time allotted. (191 Q Other than PLA C and the ABA. are there any other (201 professional organizations that you belong to ? (21J A I'm a member of the Bar Association of (221 Metropolitan St. Louis. Page 42 (11 Q Are you an active member? (21 A I occasionally go to meetings. I'm not terribly (3) involved with that organization. |4) Q Have you ever attended any seminars sponsored by (5) that Bar association, either as a speaker or as an {61 attendee? (7] A Yes, I did attend a seminar they gave. It's been (8{ several years ago, and 1 can't recall what the topic was. (9) I can remember going, but I don't remember what (101 specifically the topics were. It was in St. Louis, (11) obviously. (121 Q Did the topic have anything to do with the [131 management oftoxic tort cases ? [14] A I don't believe so. I believe it was in (15) connection with recently revised Missouri court rules, and 1161 there was a presentation given on legal ethics, conflicts (17) of interest in representing different interests as it [18] applied to -1 believe as it applied to CERCLA cases. (19| Q Any other organizations? (20) A No. 1211 Q Did you ever give a seminarfor the Bar [221 Association ofSt. Louis ? Page 43 (1) ANo. (21 Q Have you written any legal articles ? (3] A No - well, let me - some of the discussions [4j that I have given at seminar appear in the written (5| materials. I coauthored an article on the medical (61 monitoring claim that arose in one of my cases. (7) MR. LEIMKUHLER: Peter, let me just make a (8] blanket request for any articles that Mr. Bistiine has (9j written or any outlines that he's prepared to the extent (10) that they still exist in his files or that you otherwise (til have access to. (121 MR. TRACEY: We'U make that search. (13) MR. LEIMKUHLER: Okay. (14) BY MR. LEIMKUHLER: (15) Q Have you participated in any way in the creation (161 ofany articles other than to the extent the outlines would (17) be considered articles? (18) ANo. (19) QHave you participated in the preparation ofany (20) textbooks or case books or treatises? (21) ANo. (22) __ Q By the way, with regard to the in-house seminar, - Page 44 m did you prepare an outlinefor the two in-house seminars (2| that you gave? (3) A Yes. [4| MR. LEIMKUHLER: And Peter. I'd like to have (5) those included in the materials that are the subject of our (6| request. [7] MR. TRACEY: These are the in-house seminars that [8) were done for the law department? Page 39 to Page 44 202-347-3700 ACE-FEDERAL REPORTERS, INC. WATER PCB-SD0000066479 ask Depo of Thomas M. Bistiine (Monsanto v Aetna) August 10, 1993 Cr,56353.0 vaxw THE WITNESS: Yes. MR. TRACEY: Without taking a position here - I would like to take it under advisement because I think there may be an attorney-client issue to the extent those appeared solely for internal use in the law department. So I won't say no, but I would like at this point to take that under advisement. MR, LEIMKUHLER: Without agreeing that any pnviTege-would attach, you certainly are free to take whatever position you want. MR. TRACEY: I understand. BY MR. LEIMKUHLER: Q Earlier you mentioned articles or commentaries that appear in Mealey's or in the BNA Toxic Torts Report Page 45 H relating to thefield ofmanagement oftoxic tort cases. 12 Are there any articles in particular that you |3 consider to be learned or authoritative concerning the 14' management oftoxic tort cases ? |5 A None that I can identify for you offhand, no. 16 Q Or articles that, from your understanding, are |7' considered to be standard works in the area ofthe |8 management oftoxic tort cases ? 19 A Not that 1 can think of at this moment, no. 110 Q Any articles that you can identify that you, in 111 particular, have relied upon in your work in the area of 112 managing toxic tort cases ? 113 A No. 114 Q How about any books or treatises ? Are there arty 115 that address the issue ofthe management oftoxic tort |16 cases that you consider to be particularly learned or 117 particularly useful to you in your work ? 118 A No. 119 Q Are there any articles or books or treatises that 120 you keep in your office or keep in a location that are 121 easily accessible to youfor your use in managing toxic 122 tort cases ? Page 46 II A On that particular topic? 12: QYes. 13 A No. |4 Q Are there other individuals in the legal 15 profession that you consider to have expertise in the 16 management oftoxic tort cases that is similar in quality IT to the expertise that you profess to have? I* A Yes. |9 Q Can you identify some ofthose people ? 110 A Certainly. At General Electric, there's a fellow 111 I deal with all the time named Tom Hill, a fellow named 112 Doug Barth at Westinghouse, Jim Scbomper at du Pont 113 du Pont obviously has a very large in-house law staff 114 and I wish I could remember the name of the other fellow I 115 spoke to frequently there, but his name escapes me at the 116 moment. Several individuals at Dow. I'm going to have to |17 go back and look at my Rolodex. 118 Q Is there anyone else at Monsanto who you consider 119 to have expertise ofa similar quality to you ? 120 A Any of the lawyers in Monsanto's litigation group 121 have expertise of varying degrees in the management of |22 these kinds of cases. Bob Bcreadt, my supervisor, is one Page 47 of the best 1 know anymore. Steve Krchma in the environmental group also has - although, I think, to some extent unwillingly, when he got involved in the Slaughter case - a great deal of expertise in this area. Q Why do you say unwillingly ? 16 A He didn't join Monsanto to be a litigation [7 lawyer. It just kind of worked out that way for him. 18 Q What was Mr. Krchma s interest as vou understand 19 it? 110 A Mr. Krchma is an environmental lawyer, but he 111 handles CERCLA litigation and has a great deal of expertise 112 in that area. But Dave Snively, Cornell Boggs, Michael 113 Newport, Marty Zucker, all members of Monsanto's litigation 114 group, are all experienced managers of this kind of 115 litigation. 116 Q Do you recognize anyone in the academic arena as 117 having expernse similar tn nature and quality to yours ? 118 A I don't know if Don Elliott is still with Yale 119 law school or not. I think he's with Fried, Frank or (20 counsel to Fried, Frank in New York at this point, but 1 (21 believe he's still teaching civil procedure at Yale. He (22 certainly has a high degree of expertise in this area. Page 48 111 Q In the management oftoxic tort cases ? |2) A In the management of toxic tort cases. He |3| consulted with General Electric for several years in a 141 hands-on capacity in assisting them with the management of 151 their cases. 16] Q And that management would include cost control (7) issues? |S] A Yes. |9| Q And settlement analysis issues ? (10) A1 assume so, yes. (11) QAre there any lawyers who workfor insurance (12) companies that you believe have expertise similar in nature (13) and quality to yours ? 114) A1 don't deal with lawyers who work for insurance 115) companies very much. I deal much more with in-house 116) counsel at others in my industry and, through PLAC, with 117) other in-house counsel in other industries, so I'm just not 118) as familiar with insurance company law staffs as I am with (19) industry law staff. (20| Q Notwithstanding any personal knowledge, are there |211 lawyers who workfor insurance companies that have a |22) reputation as having expertise in the area ofmanaging Page 49 (1 toxic tort cases ? 12 AI personally don't know of anyone, 13 Mr. Leimkuhier. 14 Q Do you employ any type ofmethodology to (5 determine whether defense costs are reasonable and 16 necessary ? (7 AI don't have a written methodology that I follow. I* Q I'm not askingfor a written methodology. I'm (9 asking you, in the context ofpracticing in your area of 110 expertise, is there a methodology that youfollow to HI ascertain whether costs are reasonable and necessary ? 112 A In general, yes. 113 Q Could you describe that methodologyfor me. 114 A Certainly. Primarily, the criterion is one of (15 what is the potential exposure that the company faces in 116 any particular case, what are the issues involved and what 117 is the quality of the opposing counsel. Those are the 118 primary ingredients in determining what is going to be 119 required to defend a case, what level of expense will be 120 necessary and whether that level of expense is reasonable [21 in connection with, ultimately, the value of the case, what ACE-FEDERAL REPORTERS, INC. 202-347-3700 Page 44 to Page 49 WATER PCB-SD0000066480 BSA Depo of Thomas M. Bistline (Monsanto v Aetna) August 10, 1993 Cr.56353. [121 would be required to settle the ease or what the verdict Page 50 [ 11 potential in the case would be. [21 Q Tell me how the potential exposurefactors into [ 31 those issues. |4) A If we have a case in which the injuries alleged [51 are very minor, in which we are unlikely to see a case of a 161 similar nature develop again, in which it is our assessment [7] that the verdict potential of the case is very modest, it |8| doesn't make much sense to spend hundreds of thousands of [9] dollars in defense of that case. [ i o 1 On the other hand, where a case is one which 1111 presents very grievous alleged injuries, in which the 112) plaintiff for one reason or another may be very sympathetic 1131 and, in our opinion, have a lot of appeal to a potential [ 141 jury, in which the quality of outside counsel on the other 1151 side is very high, and therefore, the value of the case [161 just in terms of what it's going to take to settle and its 117) verdict potential is high, then that kind of a case is one 1181 in which it is likely that outside counsel or defense costs 119| are going to be high. It's just going to take more to [201 defend it. [211 Q You identified the issues as onefactor to be [221 considered. Page 51 [II A Right. [2( Q Tell me how the issues involved impact the issue [31 ofthe reasonableness or necessity ofdefense costs. 14 [ Aina case where a company is likely to face cases 151 of a similar nature. For example, when I was in outside (61 practice, 1 did a lot of defense work for General Motors, [71 and an allegation of a design defect in the General Motors [ 81 product was one which was viewed with a great deal of (9] seriousness, because if a plaintiff were to prevail before [ 10) a jury on a claim that the design of a vehicle is II11 defective, there is the potential for that finding to be (12) applied in other jurisdictions to stop General Motors from 1131 litigating that again, which could create potentially, in [ 141 any event, massive liability. 115) Similar claims, basically claims which would stop [ T6| a defendant from contesting a liability issue that is 117) likely to be faced again and again and again, is one which, [ 181 in my view as a defense counsel, needs to be defended very 1191 vigorously and which makes the case one in which - it's [201 just a more serious case and one in which defense costs are [211 likely to. be higher rather than lower. [22]_______Q dny other way in which the issues involved impact Page 52 |1| the reasonableness or necessity ofdefense costs ? [2| A If the issues are novel or of First impression. (31 It's obviously much more difficult and expensive when [4] you're trying to convince a court of a novel proposition of [51 law rather than applying settled law. (6) Q You identified the quality ofopposing counsel as [7] the third primaryfactor. [81 A Yes. [9] Q How does that impact your view ofthe [ 101 reasonableness or necessity ofdefense costs ? [ill A Well, I think anybody who has defended cases [121 let me just take Texas as an example - would understand [ 131 that if Joe Jamail is on the other side, it's quite a [14] different story than if you gets first-year student out of [15] Houston's law school who is plaintiffs counsel. Once 116[ you've practiced law for a while, once you've been in court f 17) and seen cases tried, it's relatively easy to understand 1181 that an intelligent, vigorous, aggressive representation of [19] the plaintiff is one which results in potential for higher (20) verdicts for a plaintiff and higher defense costs for a (211 defendant. [221_______ Q Are there any otherfactors other than the three Page 53 [ 11 that you identified that you consider in determining [21 whether the level ofexpenses are reasonable and necessary . [31 A Well, the location in which the case is brought [4| is going to affect, certainly, the level of expense. 151 Associated with that, I guess, would be the court in which [6| the case is venued. I don't know whether I mentioned this. (7[ but again, the type of case involved here, whether this is [8] a stand-alone case, one which doesn't have implications [9) other than just for the case itself, it's not one that the [10J company is likely to see again for whatever reason, or is (111 it a case that is likely to - or allegations like it are (12) likely to appear in other places with other plaintiffs. (13] Q Any otherfactors ? [ 14) A Not that 1 can think of at the moment. 115] QSo I take it with regard to thefive items that [16] you mentioned, the potential exposure, the issues involved. [ 17| the quality ofopposing counsel, the situs ofthe [ 18| litigation and the particular court or its venue, those are (19J all things that you would need to know before you could (20) assess the reasonableness and necessity ofdefense costs. (21) Is thatfair to say? [221_______ A Those are all issues that would go into my Page 54 11) evaluation of the reasonableness and necessity of defense (21 costs, yes. [31 QIn order to determine whether defense costs were [4| reasonable or necessary, would you need to know how many [5] lawyers were being assigned to the case ? |6| A I'm having trouble with the question because [7] how many lawyers are assigned to a case is a function of (81 how serious the case is and how many are required. That is (9) something that 1 think is ultimately within the control of [10] the managing in-house counsel, but certainly it's possible (111 to overstaff a case. It's also possible not to have enough (12) lawyers on the case. I've been in both situations. (13) QI would assume that it's the role ofin-house (14) counsel to assess the nature and seriousness ofthe case, (15) andfrom there, make a determination ofhow many lawyers (16) appropriately should be staffed on the case. Is thatfair (17) to say ? f 18) A That's correct. [19) QSo in order to know whether costs are reasonable, [20) you would have to know how many lawyers were working on the [21) case? (221_______ A1 think that kind of puts the cart before the Page 55 (1) horse, though. A serious case is going to require more (2) assistance from counsel. A less serious case would require (3) less by way of staffing. (4) QI understand that some cases will require more (51 staffing than others, butfor a particular case in which [6] you understand its nature,for you to determine whether the [7] costs being incurred by outside counsel are reasonable and Page 49 to Page 55 202-347-3700 ACE-FEDERAL REPORTERS, INC WATER PCB-SD0000066481 w Depo of Thomas M. Bistline (Monsanto v Aetna) August 10, 1993 Cr.56353.0 mxc (8| necessary, you would need to know how many lawyers outside (91 counsel has put on the case. Isn't thatfair to say ? Page 58 (!| case. It's not novel or complex m nature. |I0| A Well. I would certainly want to know what the (21 A It's very difficult, Mr. Leimkuhler. to speculate 1111 proposed staffing was and have a voice in the level of 131 in the abstract about all of these circumstances. If what (12) staffing, yes. 1131 Q Looking at it in retrospect as well, that's one 1141 factor you would need to know? |4] you're telling me is that if this is a question of what is (5 ] the statute of limitations in a personal injury case and a (61 person 20 years out of law school has spent six hours or 1151 A l would want to assess the role played by any |7| seven hours researching that topic, I'd be on the phone 1161 particular lawyer that was active in the case. |8| asking what the heck is going on here. So if that's your (17] Q Would you also need to know anything about the (9) question, you're right. That's not appropriate. 118] experience ofthe lawyers that were on the case? 110] MR. LEIMKUHLER: Off the record. 119] A Certainly. That's a preliminary investigation 111] (Discussion off the record.) [20] that would occur, depending on circumstances. If Monsanto [211 didn't have a lawyer in whom we had trust and confidence |12| BY MR. LEIMKUHLER: 1131 Q As a general matter, is it importantfor you to 114] know, in assessing the reasonableness ofdefense costs, in j221 a particular area, we would certainly interview a number of_________ __ Page 56 [ 1 ] lawyers for a new matter to determine who we felt best ]21 represented our best interest in thecase. (31 Part of that evaluation would be, has the lawyer 14 ] handled particular cases of this nature before? lfsheor 115 j what particularfunctions are being served by what lawyers 116] and whether thefunctions being served are commensurate 117] with their experience? 118] A That's part of the staffing discussion, yes. 119] Qln retrospect, in looking at the bills, that |20| would be something that you wouldfind important to know in (211 determining whether a bill was reasonable ? [5] he has, what's the track record? Are there references [22]______ A Certainly. from [6j people, so to speak, that would help us assess that [7] particular lawyer's confidence and abilities? Page 59 (1 ] Q Would you need to know anything about how the |2| case was being staffedfrom a support point of view? 181 Q Let's assume that you 've selected a particular (3) A You mean clericals or paralegals? |9| firm based on the lawyer who's going to be the leadfor the (4) Q Secretaries, paralegals, clerks. 1101 case. Within thatfirm, would you need to know the (5) A Possibly, depending upon thecase. If it were a 1111 experience ofthe lawyers assigned to the project to be 112] able to ascertain whether the expenditures were reasonable 16] case involving a large number of documents which were (71 external to the company, then I would want to have some (13] and necessary ? (8) feel for who would be involved in handling those 114] A Well, 1 don't put it in the category of documents (15] determining whether expenditures are reasonable or [9] and how they would be handled. Typically, aside from a (16] necessary. I would put that in the category of whether (10] secretary and possibly a few paralegals, if a case does not (17] it's reasonable to assign that particular lawyer to the (11] involve a large number of documents external to the 118] case. For example, if we have a very large, very serious (12] company, we usually try to keep the outside support staff 119] case in which the verdict potential is in the millions of (13] as small as possible. Those are things that we do more |20l dollars, it would not be my expectation that the 1211 second-in-command would be a person straight out of law (221 school. (14] efficiently inside Monsanto. (15] Q In assessing the reasonableness oflegalfees, |16| would it be importantfor you to know the rates that are Page 57 111 On the other hand, if the case is very small and (17] charged by the various lawyers and support staff who had 1181 been working on the case ? |2] doesn't require a great deal of work and effort, I wouldn't 119] A Certainly. That would go into the location of |31 want the firm's senior partner spending a great deal of (20] thecase, where it's brought. The general costs for legal |4] time on the matter. 15 ] Q What ifyou determined that a mid-level partner (211 services within that particular community is something that |6| was in the library doingfairly basic, straightforward (7) legal research? Would you consider that expenditure to be (221 goes into the calculus. Page 60 (81 a reasonable and necessary expenditure ? (1 ] Qln determining whether legal bills or legal costs (9) A It would depend upon the circumstances involved. (2] are reasonable, is it importantfor you to havefamiliarity 110] Q Can you explain that? [3 ] with how long certain projects in a litigation should take (Ill A If it's a novel legal issue and one in which [4] a lawyer? 112] memoranda had been circulated that, for whatever reason (5) A I'm not quite sure what you mean. Is your had (61 question - well, let me just say I don't really understand (13] been found it needed additional work, and the individual (7] what your question is. (14] partner that you had referred to, a mid-level partner, was (8] Q In determining whether a particular charge was 115} an individual who was known for his or her expertise in 116] writing briefs and doing legal research, I would consider (9] reasonable, would it be importantfor you to know the (10] degree ofwork that customarily goes into a particular 1171 that appropriate. (11] project or item ofwork ? 118] Q What ifit wasn't a novel or - |12| A In other words, whether it's a simple project 119] A Novel or important issue in the case? |20| Q What ifit were not novel -1 don't want to |211 suggest that any issue in the case is not important. But |221 let's assume it's afairly straightforward issue in the (13) that should take a short period of time, a complicated (14) project that's going to take longer, involve a more senior (15) person as opposed to a more junior person, those sorts o: 116] things? ACE-FEDERAL REPORTERS, INC. 202-347-3700 Page 55 to Page 6 WATER PCB-SD0000066482 ________________ Depo of Thomas M. Bistline (Monsanto v Aetna) August 10, 1993 Cr.56353.0 #*xr:' 117) Q Right. |18| A That goes into the review of the reasonableness 119) of a charge, yes. |20| Q That is something that would be importantfor [13) A No. It's because our policy is that we don't pay [141 lawyers for - we don't consider that Xerox machine to be a [15) profit center for the law firm. That's not something we |16[ pay for. That's our policy. |211 you? [22| Aina given case, yes. Page 61 [1| Q Wouldjt be importantfor you to know information [17] Q So that policy does not go to the reasonableness (18) or unreasonableness ofthe copy cost? It's simply a matter [191 ofMonsanto policy ? [20) A That's the manner in which I would approach it. [21 concerning the types ofexperts that are neededfor a [31 particular litigation ? j41 A I think that would go to the issues in the case, [21) Qls it important to take into consideration |22| expendituresfor hotels, car rentals, air travel in Page 64 |5| yes. 161 Q What about the ratesfor experts ? Is that [7] something thatyou would normally consider? [ 11 determining whether legal costs are reasonable or [2| necessary ? [3 ] A We have guidelines. 1 think we went into this at [ S | A It depends upon the type of injuries alleged, [4) one of my prior deposition sessions, about the fact that we [91 where the case is pending and who the experts are likely to (51 have guidelines on what we consider to be reasonable. 110| he or will be on the other side. And 1111 Q What, ifanything, do you need to know about the 112) costs ofduplication services, either in thefirm itselfor (131 outside duplication? [14) A It's our general policy that the Xerox machine [15[ isn't a profit center for a law firm. We pay reasonable 1161 costs for copying of documents. If it's more efficient to 117] he done in an outside copy service, then that's what we i 181 anticipate. 119| Q Do you have a view as to what a reasonable cost [6) again, it depends upon the locale. (7) Ql'm not asking you to state Monsanto's corporate [8| policy. I'm asking what you believe to be reasonable or [9] unreasonable and what is important to consider as an (10) expert. So apartfrom what Monsanto's corporate practices (11) are, would it be importantfor you in assessing the 112) reasonableness and necessity ofcosts to consider things (13) such as air travel, car rentals, hotels, those sorts of (14| expenditures? (20) isfor copying services that are done by afirm ? [15) A Let me make sure I understand what your question [211 A I'd have to ask my paralegal. She's very good at [16) is. If your question is, is the level of those costs |22| that.. 117) something that I would consider important to look at in a Page 62 [ 181 case, yes, and that would depend upon the kind of case |1| Q But you don 7 have a view on that at this time ? [19] that's involved. If it's a case in which experts are [21 A It depends upon where, what kind of service we're (20) located around the country, witnesses are located around [31 talking about. If we're talking about copying, for [211 the country, then travel is necessary in the defense of the (4| example, a large number of documents in which the [22) case. But if everybody is located in one place and there's documents Page 65 [51 are turned over to an outside vendor for copying, I think {11 a lot of air travel going on, then that's something that 161 that the going rate, depending on locale, is anywhere from (7) 7 to 11 cents a page, something in that range. If we're [ 8 [ talking about in-house copying, if a lawyer is preparing 191 for a deposition and wants to copy a small group of [2) any in-house lawyer would look at and say what's going on (3) here? What's being done? [41 Q Those are issues that are important to consider [5) in determining whether costs are reasonable or not ? [ 10) documents in preparation for a deposition, charges for [ill in-house Xeroxing vary from 10 to 20 cents a page in my [6) A I think they are issues that everyone would [7) address. You say "important." 1 mean, on a rank order of [12| experience, depending upon the firm and locale. [8) things, I think it's more towards the bottom of the list (131 QDo you consider anything in that range to be [9) than toward the top, but it would certainly be something [M| reasonable? I15| A Depending upon the locale, yes. 116) Q What about in Houston? (10) that would be looked at. ' (11) Q When you are looking at whether legal costs are (12) reasonable or necessary, is it importantfor you to review [171 A I think Houston is on the higher rather than the (131 all the invoices that are presentedfor a particular [ 181 lower end of the cost spectrum for legal services around [14) matter? 119) the country. (15) A Do you mean outside counsel's statements? 1201 QDo you consider it to be an unreasonable cost (16) Q Yes. [211 whenever afirm's copy machine is being operated at a [22| profit?_______________ [17) A That is important for me to look at, yes. [18) Q What about bills that are submitted by other Page 63 [19) vendors? [l| A That's certainly not what 1 anticipate from (20) A It would depend on what type of service was being [2| outside counsel. (31 Q Would you consider that to be an unreasonable [2D provided and the size of the expenditure involved. (22)______ Q What types ofservices and what size of |4| cost? [51 A If I were aware that it were being done, I would . Page 66 [ 1) expenditures do you consider it important to review in [61 seek to have that changed. That would not strike me as a [2| order to determine whether costs are reasonable or (71 cost that I would consider to be one that we would pay. [81 Q Would you consider that cost to be unreasonable ? (3) necessary? (4) A In general, I view it as necessary for an inside [9) A It is not one that I would pay. I would pay for (5) attorney to participate in the selection of expert [ 101 the cost of copying and not for a profit on the copying. (6) witnesses and the determination of whether the fees [Ill Qls that because you would consider any profit (12| component to be cm unreasonable cost? charged (7) by an expert witness and the amount of time spent by in Page 60 to Page 66 202-347-3700 ACE-FEDERAL REPORTERS, INC. WATER PCB-SD0000066483 Depo of Thomas M. BistJine (Monsanto v Aetna) August 10. 1993 Cr. 56353.0 **xr2 131 expert witness working on a case are appropriate and [91 necessary to the case. Certain types of support services, 110| a decision whether, for example, a computerized document |!l| support system is necessary and reasonable, and if it is, II21 what vendor will provide that support or will it be done 1131 in-house by the law firm or by the client. 1141 QAny other vendors that 1151 ~ A rf we're talking about a case involving a large 116| amount of documentation external to the company, perhaps a 1171 copying service, the pricing of copies, who's going to do 1181 it, what the per-page charge is, are we sure we're getting [ 19| the best deal we can get. Those are the things I would 120] want to inform myself about. |211 QAny others? A Well, aside from testifying experts, 1 would also Page 67 11 put in the category consultants. That would be people who m 12 we would not expect to testify but who for one reason or 13 another might be important for us to have working with us |4 on a case, jury consultants or scientific advisors, those 15 sorts of people. It may be necessary in some cases. It |6 may not be in others. (7 QAny other vendors ? (8 A It depends upon where the case is. Do we need an 19 external war room? Is the trial remote from counsel's 110 office? Do we need a satellite office? If we need a m satellite office, what sort of equipment needs to be there, 112 what sort of personnel needs to be there? 113 Q Those are things that you would inform yourself 114 ofto determine whether the costs are reasonable ? 115 A To determine whether they're necessary, and if 116 necessary, whether the costs are reasonable. |17 Q To determine whether costs are reasonable or 118 necessary, is it important that there be sufficient 119 documentation ofexpenditures on invoices ? |20 A Certainly on outside counsel bills. On expert 121 witness bills, some level of detail, depending upon the individual involved, our prior experience with that Page 68 111 individual, the issues involved, a greater or lesser degree [2] of detail may be required. Again, it would depend upon the [31 service being provided and the level of expenditure [41 involved, how much detail would be required to support and 15) justify the expenditure. 16] Q What kind ofdocumentation on outside counsel (71 bills do you consider to be sufficientfor you to determine [ 81 the reasonableness and necessity ofthe cost ? [9J A What costs, Mr. Leimkuhler? 110) Q The costs incurred by - thefees generated by [ 111 outside counsel. 1121 A We're talking now about fees and not [131 disbursements or costs of that nature? 1141 Q Right. 115] A I think it is necessary to have a description by 116] day of the activities engaged in by the legal professional 1171 who is working on the case and the number of hours devoted [IS) to those activities. The description has to be in (19) sufficient detail to determine from the context of the bill (20) what activity is being engaged in so I can assess whether (211 the amount of time devoted by the individual involved is (22( justified.____________________________ _____________________ Page 69 |1| Q What do vou mean to sa\ "in the context of the (2] bill'? (3 ] A It's possible to pluck - if we're talking about (41 a stack of bills, it's possible to pluck an entry out of (51 the bill and say this doesn't tell me what this lawyer or (61 this paralegal was doing. If I review the bill, it becomes [7] perfectly obvious what the lawyer or paralegal was doing in 18] the context of the bill. That's what 1 meant in that (91 regard. 110 j Q Would a good yardsnck be that tfyou could [111 determinefor yourself what the lawver or paralegal was 112| doing m the context of the bill, then the information (131 given is sufficient, but ifyou can '(determine what the [14) lawyer or paralegal was doing, then it's insufficient ? 115) A That's a good rule of thumb. Certainly, if I (16) have a doubt when I review a bill as to what a lawyer was (17) involved in or a paralegal was involved in for the time (18) billed, it's my practice to make an inquiry of counsel to 1191 find out what was going on. |20| Q Are there any otherfactors other than the ones (211 that we've discussed that you would need to know m order |22| to determine whether leg_al_co_sts were reasonable and (1 ] necessary ? (21 A None that 1 can think of as 1 sit here. (3] Q Once you ha ve all that information, what do you (41 do with it to determine whether bills are reasonable or [5] necessary? [6] A Well, it all goes into the manner in which I [71 approach the handling of the case. Assessing the [81 reasonableness and appropriateness of costs is one part of |9] that, but in the evaluation of strategy and tactics and 110) determining what needs to be done to defend a case and in [111 reviewing counsel's bills to determine whether what we have 112) done and planned for has been done appropriately, all of (131 those factors are brought to hear in assessing the costs E141 incurred. 1151 Q Do you believe that litigation budgets play an [ 16] important role in ensuring that the costs that are incurred (17] for a particular litigation are reasonable and necessary ? [ 181 A1 don't have a lot of faith in litigation (19) budgets, particularly for large, hotly contested cases. (201 Q Why not? (211 A A couple reasons. First of all, litigation is (22) inherently unpredictable. A case can gain a momentum of Page 71 (11 its own that can be quite unanticipated at the outset. All (2) of what happens in a case is simply not within the control [31 of either side because the judge may have his or her own (4] ideas about what should happen and when. That can hav a (5] dramatic impact on the level of costs incurred in the case (6] and can be simply outside the ability to predict through a (7] budgetary mechanism. (8] I think it's much more important in assessing the [91 reasonableness and necessity of costs for the person making (101 that determination to be familiar with what's going on in (11) the case, to take an active role in managing the case and (121 making the decisions that need to be made. (131 QAre litigation budgets unnecessary to the ACE-FEDERAL REPORTERS, INC. 202-347-3700 Page 66 to Page 7 WATER PCB-SD0000066484 Depo of Thomas M. Bistline (Monsanto v Aetna) August 10, 1993 Cr.56353.0 ***('; 114) effective control ofcosts to ensure that they 're 115) reasonable and necessary ? 116| A It depends upon what your definition of "budget" 117] is. An overall estimate of the level of expenses that's (18! likely to be incurred, I think, is useful in determining ! 19) whether what's happening is reasonable and necessary. It's [20] certainly usefulin communicating with management and [21 ] getting them to understand what's happening. But I don't |221 think it is necessary to sit down and prepare a lengthy, Page 72 |6| providing the service, obviously. [7) Q Anything else ? |8| A No. I think that's generally what is required. [9[ Q Hourly rate? I would assume you would want 110) that. [11) A That would appear somewhere on the bill. It [12] isn't necessary in each case description. That's something 113) we have an understanding with, typically with counsel. |141 Q With regard to disbursements, what 's important to (151 have on a billfrom outside counsel ? 111 detailed budget for each case. 121 Q How much detail in a budget is necessary ? [31 A Well, in most cases, in my experience, very (4| little detail is necessary in a budget. In fact, in some 15] cases, 1 don't even ask for a budget because I can |6J anticipate from my own experience approximately how much is |7] going to be involved in defending a case. [81 Q Are the Brio private action cases the type in [ 91 which some sort ofbudgetary mechanism is necessary to [10) control costs? [Ill A Only in a sense that we asked for and received, 116) A You want to talk about what type of disbursement, [ 17] because it depends upon the type of disbursement. 118] QOkay. (191 A If we're talking about travel, again, depending [20) upon the amount of travel involved, 1 may require from (211 counsel an itemization of expenses incurred on each trip, [22| airfare, hotel, meal, car rental, if that's involved, Page 75 (1) incidental expenses. (2) Q At what level ofexpenditure would you want to 131 see those itemized expenses ? [41 A I don't have something that's written in stone on [121 from time to time, an estimate of what counsel anticipated 1131 defense costs to be in sort of a ballpark range just so we [51 that. It depends on - if there's going to be a lot of [6] travel involved in the case, then that's what I want to [14) could assure ourselves that we were thinking along the same [15) lines as counsel. [16) MR. LEIMKUHLER: Could you read back that last [17) answer, please. [ 18) (The reporter read the record as requested.) [19| BY MR. LEIMKUHLER: [20| Q Did you receive those in writing ? 17] see. If there's only incidental travel, 1 can typically [8) judge the appropriateness of those expenses simply by (91 seeing an entry for travel expenses. (10) Qln what category do the Brio private actions (11) fall? (12) A Somewhere in the middle. There wasn't a f 13) horrendous amount of travel involved except during the time [21[ A Yes. [221______ Q In your view, did you require anything more than [ 14) period when we were looking for expert witnesses, and 1 was (11 that ? Page 73 115) either directly or indirectly involved in most of that. So [ 16| I had a good handle on what the travel expenses were [2[ Ain the form of a budget, Mr. Leimkuhler? 13) Q Yes. [4J A No, I did not believe that 1 required more than [51 that. [61 Q Why did you believe that that level of [7) informality was sufficient? likely (17) to be. I don't recall that I required an itemized [ 181 breakdown. There are cases that I have required that. (19) Q But you did not in the Brio case? [201 A My recollection is that I did not. I may have [21) questioned the specific item from time to time, but 1 [8] A Because a great part of my working day, every 122) didn't require a detailed breakdown of ail travel-related f9| day, was involved in attending to these cases, speaking 110[ with counsel, reviewing materials, discussing strategy and 1111 reviewing submissions that were to be made before 112] discussing how depositions were to be approached, so I knew Page 76 (1) expenses. (2) Qln what other circumstances do you require, and (3) for what other types ofdisbursements do you require (4) itemization on the outside counsel bill? 1131 what was going on and I bad assured myself that it was 1141 necessary to undertake the actions that were taken, that (5) A Well, we asked for a breakdown of copying costs [6| by vendor in the Brio cases because of the large volume of 1151 people who were doing it were appropriately involved, and (7) records that was necessary for us to accumulate for the [161 from my review of counsel's statements, the amount of [81 individual plaintiffs. That's the only case that I can time [ 17) being spent was appropriate. 118 ] Q We were talking a moment ago about legal bills. [9) recall having had that. Typically, I also like to see (10) court reporter bills because sometimes they can get out of (11) hand, no offense intended. [ 19| You indicated thatyou wanted to see the specific day in (20) which a service was provided, the number ofhours and some (12) (13) MR. TRACEY: None taken. I'm sure. THE WITNESS: Just wait until 1 see this 1211 description ofthe services. What else, other than those 122) three items, would you want to see in a legal bill in order 114] transcript. [15) MR. LEIMKUHLER: That's the de-breaker. Page 74 [ 11 to determine the reasonableness and necessity ofthe (2| charges? [31 A Are we talking just about the fees portion? 14 ] QJust about thefees portion. 15 ] A Well, an identification of the person wbo is [16) THE WITNESS: Again, if there's a lot of [17) deposition activity, and the court reporting expenses are [18) large, I'U want to have some way of assessing that there' s [19) control on those costs. [20) BY MR. LEIMKUHLER: [21) ! Have you done that with regard to the Brio Page 71 to Page 76 202-347-3700 ACE-FEDERAL REPORTERS, INC. WATER PCB-SD0000066485 ssa Depo of Thomas M. Bistiine (Monsanto v Aetna) August 10, 1993 Cr.56353.0 HW; '5 122 ] actions ? Page 77 |!| A We had a mechanism set up for that. |2| Q In what way were the disbursements broken out? [31 A We had set up for the Brio cases what we called a {41 revolving account. We established an account for the use 15] of Woodard, Hall & Primm to pay for expenses such as court j61 reporters or document reproduction. Those expenses (15] (Discussion off the record.) (161 BY MR. LE1MKUHLER: (17] Q Is it your view that it would be extremely 118] difficultfor someone coming in after the fact and look! m: 119] at the expenses in a particular case to second-guess the |20| judgment ofthe lawyers involved as to whether costs were 1211 reasonable or necessary ? (221_______ A It depends on who that individual would he. If Page 80 were [7] paid from that account in the first instance on the (81 authority of Woodard, Hall & Primm. But the invoices for [91 all of those expenses were required to be submitted to me i 101 in St. Louis for my review and approval on an individual Mil invoice basis. And the account, then, was reimbursed for 112] the expenses that I approved. 1131 Q Did those invoices include lawyer travel? f 141 A Typically not, no. 1151 Q What about lawyer meals and lawyer car rentals ? 1161 A No. Those were not reimbursed for that. 117] Q Or lawyer hotel stays? i 18 j ANo. 1191 Q On the bill, how were the copying disbursements 1201 broken out? |2I| A On what bill? |22J_______ Q You referred to a breakout ofcopying Page 78 111 disbursements on outside counsel bills. |2| A What I was just talking about, that revolving (31 account was not tracked through Woodard, Hall & Primm's 141 monthly statements. That was a separate line item for 151 internal copying that was done at the firm that would (6] appear on their bills. I believe it was carried under [7] "duplicating." 18 ] Q Is there any objective yardstick that can be |9) applied in determining the reasonableness or necessity of (10] legal costs, or is it something that is subjective, on a 1111 case-by-case basis only ? |I2| A That's very difficult to answer that question in 1131 the abstract. The reasonableness and necessity of outside 114] counsel bills is largely a matter of judgment by people who 115] participate in the area, who defend these kinds of cases 116] and who understand what the cases involve. Objective 1171 guidelines, I think, can be useful in a general sort of 1181 way, but I think it's as much judgment as anything else (19] that's involved. |20] Q This is more or less a subjective approach on a 121] case-by-case basis ? [22]_______A No, I didn't say that. Much of what goes on in a Page 79 |1| case to determine whether it's reasonable and necessary is |2] pretty general from case to case with few exceptions, |3] unless you get just the very unusual kind of a case. And 141 general guidelines, I think, are very useful and |5| appropriate in those circumstances, if you're in# i 61 bet-your-company case, I think things may be a little [7] different. 181 Q Are any ofthe Brio private actions one that you 191 consider to be a bet-the-company case ? 110) A Not individually, no. 111] Q In the aggregate ? 112] A Even in the aggregate, while they were very 113) serious cases, they were not bet-your-company cases. (141 MR. KRAMER: Off the record. 111 the individual were knowledgeable about this kind of (2) litigation, 1 think that person might be able to arrive at (3] a judgement, for the most part, from the records available, |4| although I think a discussion with the individuals involved |5] would be very helpful. I think an individual without the [6] background in this kind of litigation would be hard-pressed [7] to make a reasonable judgment. (8] MR. LE1MKUHLER: Let's break for lunch. (9] (Whereupon, at 12:40 p.m., the deposition was 110] recessed, to be reconvened at 1:40 p.m. this same day.) Page 81 |1) AFTERNOON SESSION (1:53 p.m.) [2] Whereupon, [3] THOMAS M.B1STL1NE [4] resumed the stand and, having been previously duly sworn |5] was examined and testified further as follows: (6] EXAMINATION (Continued) (7} BY MR. LE1MKUHLER: (8] Q Mr, Bistiine, other than thefactors that we |9] discussed this morning, over the lunch break, did any other [ 10) factors come to mind as things that you would deem 1111 important to know in order to assess whether defense costs 112] are reasonable or necessary in a particular case ? 113] A No, sir, not in any general sense. (14) Q Do you have a general methodology thatyou apply 115] in order to determine whether an amount paid, or proposes 116] to be paid, in settlement is a reasonable amount ? [17] A In general, yes. 118] Q Could you describe the methodology for me. (19] A In general, my approach to settlement is, again. (20) to have in mind what kind of case is involved, whether it' [211 what 1 call a stand-alone case, one that is not likely to [22| recur, one that does not involve issues that are going to Page 82 11 ] affect other cases that are pending against the com pany. (2) keeping in mind where the case is, keeping in mind the (3) nature of the allegations that are being made, and keeping (4) in mind the level of expense that would be involved in (5) defending the case. (6) 1 would assess the likelihood of success on the (7) merits and any adverse impact that would be associated with (81 a jury verdict against the company and arrive at what I (9) would believe to bean amount of money for which I woul (10) recommend at settlement, recognizing also that the ultimate 111] decision on the settlement isn't mine. It's one that I [ 12] recommend usually to my management. (13) Q Why is thefinal say not yours in the context of (141 your work at Monsanto ? (15) A Typically, it's because the nature of the matters 116] I work on is such that the amounts of money involved ten 117] to be significant, and decisions involving that level of (18] expenditure at least have to be reviewed with and ACE-FEDERAL REPORTERS, INC. 202-347-3700 Page 76 to Page 8 WATER PCB-SD0000066486 as*_______ Depo of Thomas M. Bistline (Monsanto v Aetna) August 10, 1993 Cr.56353.0 *SW16) approved [19] by others above me in the company. [20| Q Are those above you in the company in a better |211 position to assess whether a particular settlement is [221 reasonable?_____________________________________ ______ __ Page 83 (l| MR. TRACEY: I'U object to the extent it's [21 calling for speculation. [31 THE WITNESS: I don't believe it's as much that 141 as it is just the nature of the manner in which companies {51 function, Matters which involve the expenditure of certain 161 sums of money require the approval or at least the (71 acquiescence of those in senior management. It's my job as 18 ] an attorney in charge of particular cases to make the case |9) for the reasonableness of the settlement that 1 believe 1101 should be made, if that's the case, or to explain to my 111 ] superiors why I believe a proposed settlement is not (12| reasonable and should not be entertained. 1131 BY MR. LE1MKUHLER: 114] Q Tell me how the question ofwhether a case is 1151 stand-alone in nature versus a case that may have an effect (161 on other matters, how that impacts your view ofthe |171 reasonableness or unreasonableness ofa settlement amount. [18( A Certainly. In litigation in which we are likely 119| to see cases of similar nature brought again, likely by the [201 same plaintiffs lawyer or a lawyer associated with him or [21] her, settling cases for large amounts of money tends to [221 breed more cases, in my view. It encourages others to Page 84 [ 11 believe that they can make money by bringing cases which 121 may lack merit. (31 I believe it's important for a company which is |4| faced with, if not the actuality, then at least the |S] possibility of having a lot of cases brought on the same 16] subject - the same product, for example - to vigorously 17] defend its position, presume that that can be done rather 181 than to agree to settlements which reward people for |9| lawsuits that lack merit. [10] On the other hand, if we have a case that we 111] recently had involving the business that we were no longer [121 involved in in which the costs for defense were large and [ 131 the settlement amount was relatively moderate, 1 1141 recommended and my management agreed that it was [15| appropriate to settle that case. | 16| Q What effect does the locale ofthe case have on [ 17] the issue ofwhether a particular settlement amount is 1181 reasonable? [19] A Cases are more expensive ill different parts of |20| the country. That's just the way it is. It's more (211 expensive to settle a case in a large metropolitan area (221 than it is in a rural area. It's more expensive to settle Page 85 [ 11 a case in a jurisdiction which historically awards larger (2| verdicts than in a more moderate jury award area, so the (31 expectations of people who bring lawsuits are different in [ 4 [ some parts of the country than they are in others. (5 j Certainly, the expectations of plaintiffs counsel are [6] different in some parts of the country than they are in 17] others. 181 Q What is it about the nature ofthe allegations 191 that must be considered to determine whether a particular (101 settlement amount is reasonable ? Ill] A Again, that it is related, Mr. Leimkuhler, [12] somewhat to the type of Case that I mentioned earlier. If )13| there is an allegation that exposure to a particular (14[ Monsanto product causes a specific disease, and we are [15) likely to see that claim again, then it may be more 116] important to defend that case and obtain a jury verdict in (17| our favor than it would be if it were a different kind of 118| claim that the product caused a different condition or (19) breached a warranty, some other type of allegation that we 120) were either less likely to see again or which was going to (211 be less likely to come to the notice of people who would [22[ bring additional lawsuits. Page 86 II ] Q Anything else about the nature ofallegahons |2| that must be considered? (3| A Also, 1 think in some circumstances - it's |4) important for a company to defend itself against [5] allegations of improper conduct which lack substance and (6) which need to be demonstrated to lack substance by a [71 vigorous defense, if not a jury verdict in a defense favor. [8] Q Anything else? |9| A That's all I can think of on that topic at the (101 moment. 111 ] Q What about the level ofexpense necessary to [121 defend the case? What impact does that have on the (13] settlement calculus ? (14] A Well, a case that is going to be very expensive (15{ to defend as opposed, say, perhaps to the amount of verdict [ 16| potential, that is going to have an impact on what a (17) reasonable settlement amount would be, as opposed to a case 118) that was going to be relatively easy and inexpensive to (19] defend. (20) QAreyoudone? (21) A Yes, 1 am. I'm sorry. [221______ Q Tell me what the assessment ofthe likelihood of______ Page 87 III the success on the merits, what effect that has on the (2)settlement calculus. (31 AI think that's rather straightforward. If you've [4] got a good case and you think the chances are you're going (5) to win, the settlement value of the case is lower than if (6) you've gota problem in the case, and it's more probable or [7] more likely that a jury is going to return a verdict |8) against you. Those things have a pretty obvious impact on [9] the settlement value of the case. [10] Q The last item that you mentioned was the impact [ 111 ofa possiblejury verdict. Tell me what impact that has [12] on the settlement calculus. [13] A That, again, relates somewhat to earlier things [14] we've discussed, the likelihood of additional litigation, [15] the likelihood that there would be an encouragement of a [16] particular plaintiffs lawyer or group of plaintiffs' [17] lawyers to believe that there's more money to be made in [18] bringing this kind of case, or that for some reason the [19] company is reluctant to defend the type of allegation [20] that's being made in a particular case. [21 ] Qlsit importantfor you to know - in assessing (22] whether a particular settlement amount is reasonable, is it Page 88 11 ] importantfor you to know the identity ofthe plaintiffs [2] and who they are, their demographics ? [31 A It can be. Again, it goes to, I think - that is [4] all wound up in the likelihood of success on the merits. [5] Q Is it ever not important to know who the [6] plaintiffs are? [7] A Only in the sense that if the settlement demand [8] is so small that it's simply not worth the time to go Page 82 to Page 88 202-347-3700 ACE-FEDERAL REPORTERS, INC. WATER PCB-SD0000066487 as* Depo of Thomas M. Bistime (Monsanto v Aetna) August 10, 1993 Cr.56353.0*x; ' |9| obtain that information, then in my opinion it's not ; 101 important. 1111 Q What ifit's not insubstantial ? (12] A If it's not an insubstantial amount of money, 1131 then I think reasonable efforts probably need to be 114] undertaken to ascertain what the type of claim is that is 1151 being made. 116 ] Q1 'mfocusing on the identity ofthe plaintiffat (17) this point 1181 A I don't think you can separate that from the type 119] of claim that's being made. I think that's ail one piece. |20] Q Is it important to distinguish whether the [21] plaintiffs are, say. adults as opposed to being children ? [221A That, again, goes to the nature of the claim and Page 89 111 the seriousness of the claim, the likelihood of success. |2| Q Would that be afactor that you 'd want to know? |3| A That is a factor, yes. I'm sorry, I keep talking [4] over you and I shouldn't. I apologize. 151 Q That's all right. What proposed settlement {61 amount would you consider to be substantial, one that would 17] require you to know who the plaintiffs are ? [81 A That really depends on the case. I can't give |9| you just a dollar amount in the abstract that that would 110| correspond to. (Ill Q In determining whether a particular settlement 1121 amount is reasonable. would it be importantfor you to have ]13] an assessment ofthejury poolfrom which the jury would 114 ] likely be selected ? 115] A I'm not sure what you mean by the "assessment of 116] the jury pool." 1171 Q Is it importantfor you to know the demographics (18) ofthe locatefrom which thejury will be selected ifthe 119) case were to go to trial? |20j A It could very well be, yes. [21) Q Is there ever a circumstance when it's not |22| important, other than the case is so insubstantial that Page 90 ] 1 ] it's not going through the analysis ? 121 A Or a case in which either the chance of success 131 on the merits are so high or so low, that a trial is 141 something which is to be avoided at all costs or is 151 something that is believed to be required because there is |6) no reasonable amount of money to settle the case. (7) Q Other than those circumstances, is it important [ 81 for you to understand the demographics ofyourjury pool ? |9) A I think that's something that goes into [ 10| likelihood of success on the merits. That's a part of that [ill factor,yes. 112] Q Is it important to know who thejudge is and know [13} the history ofthejudge's decisions in other cases in 114) which similar issues will be presented? [15) A Again, except for the unusual case, are you [ 16) talking about the ones we've excluded from other types of 117] questions of this sort? 1181 Q The ones -I'm excluding cases where the (19) likelihoodofsuccess orfailure is so obvious as to [20| obviate extensive analysis or where the amounts of (21} settlement would be de minimis; excluding those types of [221 cases, the very easy cases. Page 91 |l| A There may he cases where that - well, let me (2 ] answer it this way: The identity of the judge and the 13] judge's history of ruling and predisposition one way or the (41 other usually is a factor that weighs in here. That goes [51 both to the locale where the case is brought and the |6| chances for success on the merits. [7| There are cases, though, where it's not an |8| important factor - the ones you've already identified [91 and there are simply cases in which, for whatever reason. [10] it's important that the case be tried. [11] Q In determining whether to - withdrawn. [12] In determining whether a settlement amount is [ 131 reasonable, is it importantfor you to know the material [14] facts that have been unearthed through the discovery 115) process? 116] A Yes, that certainly is part of the necessity of (17) assessing the case on the merits. [18| Q What about the legal issues ofthe case.' Is it [ 19) importantfor you to understand the legal issues ofthe |20| case to determine whether a settlement is reasonable ? [211 A Again, yes, that is part of the likelihood of [22] assessing the case on the merits. Page 92 [ 1 ] QIs it important to undertake any sort of written [2) or mathematical risk analysis to determine whether a 131 settlement amount is reasonable ? [4| A I don't find that helpful personally. There are [5] those who do. If any individual finds it helpful, then 1 161 would say yes. But it is not particularly helpful to me. 17 ] Q Why is it not helpful to you ? (8) A I find it more helpful to discuss matters (9) verbally than to undertake a mathematical or some sort of [ 10] pro forma written exercise. 1111 QIs there anyone at Monsanto who, in your view, [12] feels differently about that, that such an analysis is an 1131 important exercise to undertake ? [14] MR. TRACEY: I'U object to these things. You're [15) asking for the subject of interpretations of others. [16) You can attempt to answer. You can attempt to [17] answer. [18] THEW1TNESS: I didn't hear what you had said. [19] MR. TRACEY: Was what I said clear? [20| THE WITNESS: I know of no one at Monsanto that (2I| finds it important to engage in either a written or |22| mathematical exercise. Page 93 111 BY MR. LEIMKUHLER: [2] Q To assess the reasonableness ofa settlement or [3] proposed settlement? [4] A Correct. That's not to say that they may not do [5] it, but again, to view that as something that's essential (61 to do, 1 don't know of anybody who believes that at 17] Monsanto. [81 Q Or something that's important to do? [9] A Correct. (10) Q Do you know ofanyone else at Monsanto who, in (11 ] fact, undertakes a written analysis or a mathematical risk 112 ] analysis in assessing the reasonableness ofsettlements ? [13] A No. [14] QIs it importantfor you to assess the quality of [15] opposing counsel in determining whether a settlement is (161 reasonable? [17] A Yes, that goes to both locale and likelihood of (18) success on the merits. 119] Q What about the ability ofthe lawyers [20) representing your interests ? Is that something which is [21) important to consider? |22[_______A Well, I'd like to think if I didn't have Page 94 (11 confidence in my lawyers, they wouldn't be my lawyers. ACE-FEDERAL REPORTERS, INC. 202-347-3700 Page 88 to Page 94 WATER PCB-SD0000066488 ast Depo of Thomas M. Bistiine (Monsanto v Aetna) August 10, 1993 Cr. 56353. Q [2: Q So the answer is (3 A That it's almost a given. If we get to the point Hi in the case where it's a serious case and we're I5| entertaining a trial-or-settle decision, we're going to (6! have full confidence in our counsel. That is an important (7| factor, if we don't, that's an issue that will have been |8| addressed before we get to the settle-or-trial decision. |9! Q Is itfair to sen that in toxic tort litigation, (10 that vou've been involved in, that there is the potential 111 for many different possible outcomes ? Is thatfair to say ? 112 A I'm not sure what you mean by "many different (13 possible outcomes." 114 Q Ifa case went to trial, you could have a defense 115 verdict or you could have a plaintiffs verdict, but within 116] the realm ofpotential plaintiffs workfirst, you could (HI have an extremely high damage awards, so you could have (!8| damage awards which run the gamutfrom zero to whatever. [19] Isn't thatfair to say ? (201 A I believe that's accurate. Whenever you walk 121 into the courtroom, you roll the dice. 22 Q Is it important to consider, in addition to what_______ Page 95 II would be seen as the worst case scenario, the scenario with |2| the highest potential liability to the company, to consider (3 the potentialfor intermediate results and the 141 possibilities that such results might obtain ? (51 AI think that all is covered within what I used as (61 a shorthand expression, "likelihood of success on the (7! merits." [81 Q So that's something that would be important to (9! consider? |10 A Right. The ultimate exposure to the company and [It what the level of that exposure is, yes. 112 Q Is it important to have an understanding ofthe 113 negotiation process between the parties to date to 114' determine whether a potential settlement amount is [15 reasonable ? 116 A I'm not quite sure what you mean by negotiation 117' history of the parties to date. 118 Q In other words, to have knowledge ofwhat's (19 transpired between the parties in their efforts to try to 120 settle the case ? (21 A It may be. It may not be. I think that's a situational circumstance. Page 96 HI Q In general, you can 7 make any characterization (21 ofwhether or not it's important? 01 A In general, I would say that it may be useful 141 information, but I don't think it's absolutely essential to (5| the evaluation of whether a particular settlement demand or (61 settlement possibility i* reasonable or not. I think there (71 are more important things to know. [81 Q Well, ifsomebody were to come to you and ask [9] whether a particular settlement amount is reasonable, would (101 you want to have detailed information concerning the IK discussions that had taken place between the parties ? (12 A If there had been. That would be a piece of (13! information that, if it were available, I would ask for. (141 Q And in making your assessment, you would worn to (15 know that information ? H61 A If it were available, just as an abstract matter. H71 Q Would you want to know any ad damnum that had (181 been in the complaint? (191 A No. I would not consider that to be terribly 1201 important information. Most jurisdictions don't require (21 ad damnum clauses and those that do, in my experience, the (22 number is one that's pulled out of the air by the Page 97 |1 plaintiffs lawyer. [2 Q Would you want to know the amount ofprevious (3 settlement demands and previous counteroffers ? |4 A That could be important. (5 Q Is it something that you would consider important (6 ifyou were asked to assess the reasonableness ofa [7 settlement amount ? (8 A It would depend upon the situation, [9 Mr. Leimkuhler. 110 Q In what circumstances would it be important and [11 would it not be important ? [12 A It would depend upon the level of the settlement 113 situation that was proposed, the number of Plaintiffs (14 involved, the kinds of allegations that were made. I mean, [15 I'm having a hard time distinguishing this from the (16 question you previously asked about the history of (17 settlement negotiations between the parties. It may be an 118 important piece of information. It may not be. It depends (19 upon the situation. [20 Q Like the previous, it's something you would want (21 to know. Ifyou were being asked to pass on the (22 reasonableness ofthe settlement, it would be something you Page 98 (11 would want to know, in general? [2] A In the abstract, probably, yes. (31 Q Any other information that you would want to (4] know? [51 A If I haven't mentioned it already, counsel's (6] assessment is a very important piece of information. [7] Q What about the results ofmockjury studies ? [8] A That could be important, again going to what 1 (91 think of in shorthand terms as an assessment of the |10| likelihood of success on the merits. Not all cases warrant m: a jury exercise. (121 Q What cases do ? (131 AI think those in which the cost of defense or the [141 company's exposure to damages is substantial. They're not [151 inexpensive to conduct and I think not always that [161 helpful. They frequently are, but they're not always that (171 helpful. [1*1 Q Anything else that you can think of? (191 A Not offhand. (20| Q Let's assume you 're in a situation where you 're [21] asked to assess the reasonableness ofa settlement amount, (221 and you 're given all that information that we've Page 99 HI discussed. What do you do with that information ? (21 AI would most likely think about it. Obviously [31 discuss it with my boss, perhaps general counsel, outside [41 counsel. Depending upon the issues involved, there may be [5] a technical or scientific expert that it would be important [6] to speak to. It may not be, but it would be just, in my (71 view, more a matter of weighing the various elements and (81 trying to discern what makes the most sense, what is in the [91 company's best interest in a given situation. [101 Q Would you create any written material as part of [IK your evaluation ? (121 AI may make - if this were a case that I were not [131 familiar with, not having been involved in the day-to-day Page 94 to Page 99 202-347-3700 ACE-FEDERAL REPORTERS, INC. WATER PCB-SD0000066489 Depo of Thomas M. Blstline (Monsanto Aetna) August 10, 1993 Cr.56353.0 'WW'C' 114 management of the case, I may take notes of the various 115 discussions that I had with people whom I talked to about 116 the case. There may be a report. If I were unable to 117 speak directly with my boss or the general counsel, it may 118 be necessary for me to create a written memorandum, but 119 that would be situational. It wouldn't be something I 120 would do as a matter of course. 121 Q Would it be importantfor you to make a writing ofsome lort to enable you to handle the various Page 100 information components, or is it something that can be completely done in your head? A It depends upon the case. If it's a small case, it could all be done in my head, especially if it were one that I had been responsible for handling. If it was a larger case that I had not been involved in, as I said before, I'd probably have some notes. Q What ifit's a large case that you had had involvement in? A There would probably be a lot of written material that was available to me that I wouldn't have to create at the time settlement was being evaluated. QSoas part ofevaluating the settlement or proposed settlement, you wouldn 't need to create any additional paper? A It may well be that I would not. Q It's something that you would be able to work through in your head? A It may well be, yes. Q Would that be truefor cases the size ofthe various Brio actions ? A For many of them, yes. Page 101 11 Q Which ones ? (2 A The Aguilar case, the Hardage case. I don't 13 believe there was any particular need to create extensive, 14 additional written records. We did have quite a bit of [5 written evaluation of various sorts for the Acosta cases, (6 the results of the jury, the exploration - excuse me, the |7 results of the jury simulation and other things of that (8 nature that we looked at in evaluating that case. 19 Q Did you create any written reports in connection 110 with the Acosta settlement? in A I don't know what you mean by "written reports." 112 I took notes of various discussions. 1 may have written 113 memoranda either to my boss or to Mr. Duesenberg or 114 Mr. Dolan about conversations. Again, it depends on what 115 you mean by a "report." There was a fair amount of written [16 material related to settlement. 117 Q Did you use those notes toform a view as to 118 whether the Acosta settlement was reasonable ? 119 A I used those notes to provide me with information |20 that I considered in evaluating the various settlement 121 proposals that were made. 122 ______Q What about thefinal settlement amount ? Did you Page 102 have notes that you used to evaluate the reasonableness of thefinal settlement amount in Acosta ? A Nothing that I created specifically for that purpose, no. Q Anything that had been previously created to review the reasonableness ofthe Acosta settlement? A Nothing specifically. Q Generally. (9 A I think I've referred to some of the things that 110 had been done. We had the jury simulation. We had - and 111 I think all of this is set out in the 30(b)(6) 112 deposition - we had settlement brochures from plaintiff's 113 counsel that we looked at. We had Price Waterhouse wo rking 114 with us, both to evaluate the proposed - the settlements 115 that Farm & Home, Crum & Forster had entered into with 116 certain of the Acosta Plaintiffs. 1 had notes of various 117 conversations that I had with people who had spoken with [18 Mr. Jamail who was acting as lead counsel for the [19 plaintiffs and others plaintiffs' lawyers. I believe I had [20 notes of conversations I had with our outside counsel in [21 discussing matters with them. [22 _____ Q Anything else ? Page 103 111 A 1 may have had some notes that I had from [2] discussions with Mr. Berendt and Mr. Duesenberg and [3] Mr. Dolan, but I haven't mentioned that. [4] Q Anything else that you reviewed ? [5] A Not that I can recall at the moment. [6] QI want to go back to some ofyour experience [7] before you came to Monsanto. You attended Columbiafor )S) college; is that right? (9| A That's correct. [10] Q Were there any courses that you took there which [111 bear on your expertise in the area ofmanagement oftoxic 112] tort litigation and, in particular, the issues concerning [13] reasonableness ofdefense costs or the reasonableness of [14] settlements ? 113] A I took a basic business accounting course that [16] helped me understand just some very fundamental business [17] concepts that you'd think is just part of my educational [18] background. [19] Q Nothing specifically directed toward your area of [20] expertise? (21 ] A No, other than gaining what I thought was a good [221 preparatory education for law school. Page 104 [1 Q Before you went to law school, you worked at [2 Metropolitan Life; is that correct? [3 A Correct. 14 Q Is there anything that you did at Met Life that 15 provided you with training or experience that specifically 16 relates to the area ofexpertise that you say you have in (7 the area ofmanaging toxic tort cases ? (8 A Other than simply giving me some experience in [9 the business world that I otherwise would not have had, (10 nothing specific, no. [11 QI take it there was nothing involved at yourjob [12 at the delicatessen in Fort Lee that relates specifically [13 to this area ofexpertise ? [14 A That's correct, only the general emotional [15 motivation necessary to continue law school. 116 MR. TRACEY: Off the record. 117 (Discussion off the record.) H* BY MR. LEIMKUHLER: [19 QI believe you testified previously that there was [20! nothing in your legal education that specifically relates [21 to issues involved in managing toxic tort cases; is that [22 r'8ht? Page 105 HI A My somewhat facetious remark about law school not ACE-FEDERAL REPORTERS, INC. 202-347-3700 Page 99 to Page 10; WATER PCB-SD0000066490 B Pepo of Thomas M. Bistiine (Monsanto v Aetna) August 10, 1993 Cr.56353.0 aexoc: 121 preparing people particularly well to practice law was, I |3| think, more facetious than what you're making it out to |4| be. A good law school education is necessary to do this. 151 Q What courses or activities were you involved in {61 at Columbia which were specifically directed to the area of ( 7 ] expertise that you 're here to testify about ? |8] A I don't think anybody can function in this sort [16] understanding, also, the role of in-house counsel, the kind [17] of things that a good client, a supportive client can bring 118] to the table; and understanding what happens or what [19] counsel has to do in a situation where that sort of client [20] support is not brought to the table. [211 Those are the kinds of things that I gained [22] experience of at Simpson, Thacher. [ 91 of a role without an understanding of the iaw of torts, of 110| civil procedure; property, that go into it, to some extent, 1111 the process of legal reasoning and decisionmaking that our [ 121 legal system is founded on. I think one has to understand Page 108 111 Q Who were the product liability lawyers that you [2] worked with that you referred to as some ofthefinest m [31 the country? [4] A Roy Reardon, R-e-a-r-d-o-n, Jim Barrett, Conrad [13] that. And certainly for me, I acquired the basic 114| understanding of those topics in taw school. 115 | Q Was there anything in your legal education that 116 ] is specifically directed toward the issue ofwhether |17] defense costs are reasonable or whether settlement amounts 118) are reasonable ? [19] A Specifically, no. In general, 1 would say that [20] understanding the function of counsel, how lawyers go 15] Harper, Mel Cantor. Although he wasn't much older than me, [6] Dennis Jacobs is probably one of the smartest lawyers I [7] worked with. 1 think he's on the Second Circuit now . He 18] wasn't particularly a products liability lawyer but Whitney [9] North Seymour was just a tremendous all-around lawyer. Oh, about [21] doing what they do, to the extent that is something that [221 one gains knowledge of in law school, is important in Page 106 [ 11 assessing the reasonableness of costs fees and settlements. |2] Q You interned at Crummy, O 'Neil, DelDeo 4 Dylan ? |31 A And Dolan. 14] Q My apologies to - Ms. Dolan or Mr. Dolan ? 15] A Mister. 161 Q Was there anything in yourjob responsibilities 17] that bears on the area ofexpertise that you 're testifying [81 about today? [9] A To the extent that what I do today in my [10] I'm sure there are lots of folks I'm forgetting. [11] Q Are these all lawyers who, in your view, would be 112| experts in the area ofmanaging large toxic tort cases ? [131 A I don't know about toxic tort cases because I (141 didn't have experience with toxic torts there and have 1151 never seen any of those lawyers function in that area, [ 16] although I would suspect that they would be very good at [17] that. [18] George Newcombe is another guy, although he [19] graduated law school after I did, he is a first-rate lawyer [20] in the products liability area. [21] Q How many trials did you participate in when you [22| were at Simpson, Thacher? Page 109 110] expertise in this area is a product of my general legal 1111 experience, the answer is yes. 112 ] Q Anything specifically directed towards this area [13] ofexpertise? 114 ] A Nothing specifically directed towards this area 1151 of expertise. 1161 Q What aspects ofyour position at Simpson, Thacher 1171 relate specifically to the area ofexpertise that you 're [18] here to testify about? [ 19] A I think several, Mr. Leimkuhler, and I'm not [20| going to try to rank order them for you. But just covering |2l] them, I think gaining experience in the area of litigating [1] A Somewherebetween IS to 20. [21 Q 15 and 20? [3] A Yes. [4] Q How many ofthosewere in the area ofproduct [5] liability? [6] A1 think almost all of them were. All but three [7] or four were in the product liability area. [8] Q Did youfirst chair any ofthose trials ? [9] A I first chaired four, I think, before 1 left [10] Simpson, Thacher. They were of the smaller variety. (11 ] Q Did youfirst chair assy major tort cases or any [12] large complex cases ? [22] large, complicated cases involving large amounts of money Page 107 111 and issues that are of importance for reasons other than [2| simply that they involve large amounts of money is [3] something that I first gained experience with at Simpson, [4] Thacher & Bartlett? certainly an understanding of trial [ 5 ] practice and what la good trial practice, what's good legal |6| strategy, what is not; having been associated with some of [13] A Not first chair, no. [14] Q How many ofthe cases ofthe 15 or 20 did you [15] second chair? [16] A As opposed to third chair or fourth chair? [17] QLet me ask you this question: Does the term [18] "second chair" have meaning to you? [19] A When you say "second chair," I would think of [20| somebody who is the primary backup trial counsel, and I [21 ] would say in about six or seven cases, 1 had that [7] the best product liability lawyers, certainly in the [221 responsibility. [ 81 New York area if not in the country. [9] So just the whole process of learning [tot litigation: Learning how to handle big cases, what's 1111 involved with that; understanding the various things that [12] go into putting together a big, complicated case; [13] understanding through observation, obviously, more than by 1141 actually doing it, what the role of a lead trial counsel is [ 15] and what makes a good lead trial counsel and what doesn't; Page 110 [1] Q How many ofthose would you consider to be large, [2] complex cases ? [3] A Oh, 1 guess only one would be a large, complex [4] case. 15) Q What case was that? [6] A It was a General Motors product liability case. [7] We had extensive discovery practice and several expert [8] witnesses. It was not as large and complicated as some of [9] the cases I've worked on since, but for the kinds of cases Page 105 to Page 110 202-347-3700 ACE-FEDERAL REPORTERS, INC. WATER PCB-SD0000066491 Depo of Thomas M. Bistiine (Monsanto v Aetna) August 10, 1993 Cr.56353.0 that were in the office at the time, it was a big one. Q What was your role on the remaining, approximatelyfive to 10 cases that went to trial? A It would depend upon where in the hierarchy of the world I was at that point. I would either be assigned to research projects, witness preparation or some other aspect of the case. Actually, I think there was one other case that I was~second chair that was a large complicated case, it was not a product liability case, though, it was a securities case. It's where i met one of Peter's partners for the first time, in fact. ______MR. TRACEY: Bob Payson. Page 111 THE WITNESS: Indeed. 12 MR. LE1MKUHLER: Off the record. 13 (Discussion off the record.) H BY MR. LEIMKUHLER: 15 Q What was your reasonfor going back to Crummy & 16 DelDeo after you had begun work at Simpson, Thacher ? 17 A I had hoped to - two things, really. 1 hoped to 18 broaden the scope of practice to determine whether the mor e |9 general legal practice, rather than strictly a litigation 110 practice would be something that 1 found interesting. And 111 also the hope that instead of a 70-hour work week, I'd hav 112 something on a more human scale. 113 Q But you ended up returning to Simpson, Thacher; 114 is that right? [15 A Yes, I did. 116 Q How long were you at Crummy & DelDeo in that 117 period between Simpson, Thacher ? 118 A 1 think it was about four months. 119 Q And what was your reasonfor returning to 120 Simpson, Thacher? 121 A 1 decided that a general smaller firm practice 122 was not one that was attractive and that even though the Page 112 11 hours were long and arduous at Simpson, Thacher, I m ISSied 12 that practice and wanted to get back to it. [3 Q Did you try any cases while you were at Crummy & 14 DelDeo ? 15 A No. I was not in litigation practice there. It [6 was more of a general corporate trust and estates [7 counseling sort of a practice rather than litigation [8 practice. 19 Q Were you ever invited to become a partner at |10 Simpson, Thacher? 111 A No, I was not. 112 Q While you were at Simpson, Thacher, did you do 113 any product liability workfor any clients other than 114 General Motors ? |15 A I don't recall, Mr. Leimkuhler. 1 don't believe [16 1 did. 117 Q What percentage ofthe time that you were at 118 Simpson, Thacher would you say you spent on product [19 liability matters ? 120; A Overall in the several years that I was there, 121 probably about 60 percent. (22 Q Did any ofthose product liability matters__________ Page 113 involve toxic tort issues in any respect? A No. [31 Q When you left Simpson, Thacher. where aid vou go |4| A Monsanto. (51 Q What were your reasonsfor leaving Simpson. 16| Thacher to go to Monsanto ? [7] A I was not offered the partnership and it was IS| obviously time for me to move on. 191 Q Why Monsanto ? (10) A It was a very attractive job. It is a very |ll| attractive job. It's a very enjoyable job, one that I felt [121 utilized my knowledge of product liability law as well as 113) experience with complex cases and gave me a chance to [14] participate in some very high-visibility matters. I was [I5| also - I'm sorry, let me just add that I was very 1161 impressed with the professional competence of the people [17] that 1 spoke to in the Monsanto law department and also 118] with their general openness and friendliness, which 1 [19] considered to be an important aspect of any job I would [20] enter into. [211 Q Let's set apart the Brio mattersfor the nme [22] being. Explain to me - and ifyou want to do it Page 114 (1 ] chronologically, that'sfine - explain to me vour (2| experience prior to working on the Brio matters in the area [31 ofmanaging toxic tort linganon. [4] A Sure. When I first started at Monsanto in [5] February of 1982, my assignment was to manage the [6] day-to-day handling of three cases. First is the Agent [7] Orange product liability litigation, which involved [8] claims -1 think the class eventually was estimated at (9| 2-1/2 million persons - of injury from exposure to Agent [10] Orange, which was a chemical herbicide used in the Vietnam [111 War that allegedly contained 2378 TCDD, or dioxins as the [ 121 press calls it, just a very large complex, very hotly 1131 contested case, very controversial case, very 114) high-visibility case in terms of the press attention that [15] was paid to the handling of the matter. 116) The second case that 1 was involved in was [ 17) related to the Agent Orange case, and that was the [ 181 insurance coverage dispute between Travelers and Liberty 119| over whether Liberty owed a duty to defend Monsanto in the |20| Agent Orange case. [21] And the third case that I was involved in was [22| what we call for shorthand the Nitro case, which involved Page 115 [1| claims of injury from exposure to dioxin brought by - I [2] can't remember the number now - but a very large number of (3 [ employees and former employees at Monsanto's Nitro, West (4| Virginia plant. Actually, the chemicals were not confined [5| to dioxin in the Nitro case, it was as a result of [6] exposure to many chemical substances which allegedly [7] resulted in injury to the plaintiffs. [8] That was my assignment. When I started, I was to [9] manage day to day the handling of those three cases. [10] Q Had outside counsel been engaged in the Agent [11] Orange case ? [12] A Yes. [13] Q What responsibilities did you have with regard to 1141 o versight ofoutside counsel in that case ? [15] A It was my responsibility initially to become [ 16] familiar with the issues in the case and then to become ACE-FEDERAL REPORTERS, INC. 202-347-3700 Page 110 to Page Ilf WATER PCB-SD0000066492 w Depo of Thomas M. Bistline (Monsanto v Aetna) August 10, 1993 Cr.56353.0 tmtaz) I! 7} involved in making the day-to-day decisions that need to i be i 118] made in handling any large case, what direction discovery i (19! efforts were to Lake, helping to locate company ! documents, |20| company witnesses who would be involved in the case, I j (21! helping to, not draft, but revise the briefs, interrogatory I other [121 insurance company on what those companies considered to be (13| reimbursable expenses or expenses that they would pa\ on a [14] Defendant's behalf. (151 I read general articles on cases in which [221 answers, participating in discussions of strategy and j [ 161 disputes arose about particular items of costs just in the Page 116 ! [171 general course of my reviewing advance sheets and toxic |!| tactics in the case. |2| I don't think there was any part of the case that 131 I wasn't involved in in terms of managing the day-to-day (4) activities. 151 Q Who was your outside counsel in that case ? ' [18) tort periodicals like BNA or Mealey's. (Events, I think. i [19] not advance. j [20] Q You don't recall reviewing any documents that i (211 were provided by insurance companies regarding billing \ [22[ guidelines? 161 A It was the firm of Townley & Updike. [7] Q Were you responsiblefor reviewing the bills that [ 81 were submitted by the lawfirm and by other vendors in the 191 case? Page 119 [11 A 1 don't remember anything in particular iike [2] that. I remember having discussions with insurance company 110) A Other vendors, probably not, because Townley & [31 representatives from Liberty or Travelers or Tom 1111 U pdike paid most of those or they were forwarded directly Engeihardt [ 12 j to Liberty and Travelers for payment. But I did review, [4) on Underwriters' behalf on what they viewed billing and |I3l prior to payment, Townley & Updike's bills. | [31 reimbursement guidelines to be. |14| Q Did you have responsibilityfor recommending [6] Q Do you remember the substance ofany such 115 j whether they would be paid or not ? [7] conversations? 1161 A I had responsibility for reviewing those bills to , 18) A Not from that time period. There have been more 117] determine that the activities we were being billed for were [9] recent discussions with Mr. Engeihardt that I have 118! appropriate, were necessarily involved in the defense of j [10] recollection of from that time period. 1191 the case, that they were reasonable in terms of the amount i [11] Q What do you have recollection ofconcerning [20! of time and the amount of charges, and if I had any [211 question about that, to raise the questions and resolve the [12] billing guidelines in conversations you `ve had with [13] Mr. Engeihardt? 1221 matter. Page 117 [ 14) A In the current time period you're talking about? [15| Q Yes. 111 Q Was there someone above you in the law department [161 A We currently have a discussion under way with [21 who had ultimate responsibility for approving the bills ? [171 Mr. Engeihardt about whether or not the New Mexico [31 A At that time - and I assume we're talking about 141 the early phases of the case-1 don't believe Mr. Berendt [S{ reviewed the bills, certainly not on a line-by-line basis. gross i 118) receipts tax is a reimbursable expense. The state of | [ 19) New Mexico - no, it's Nevada, not New Mexico. The state [6] If I had a question about something in a bill, my practice [20| of Nevada imposes on outside counsel bills a small gross [7) would be to take it to him and discuss it with him before I [ 81 discussed it with counsel. But my recollection is that he [21) receipts tax and Underwriters has declined to reimburse [221 that expense on the theory it's part of counsel's overhead (91 did not review the bill in detail, but that he was aware of Page 120 11 Q| the amount of the bill and in general, what was going on in (1) and therefore, not something that they're going to [Ilf the case. 112] Q Irrespective ofwhether the bills ofother [ (31 vendors were submitted directly to you or not, did you [ 141 review those expenditures to determine their [ 151 reasonableness ? [21 reimburse Monsanto for. (3) Q Any other subjects concerning billing guidelines [4j that you've discussed? [5] A We've had discussions with Mr. Engeihardt in the [6) past over expenses associated with the creation and [ 16) A I monitored the level of expenditures on court [7] maintenance of scientific literature databases by [17] reporters and travel and items like that, yes. [ 181 Q Did either Travelers or Liberty provide you with Monsanto [81 for use in supporting outside counsel and outside experts [ 19] guidelines concerning what costs they intended to [201 reimburse? i [9| on topics like PCBs, dioxins, pentachiorophenoi, benzene. [10) I think those are the science databases that we had [211 A No. They did not provide me with any written 1221 guidelines, if a qaestioa arose with respect to a (111 established. [12] Q Did you have any involvement in the settlement Page 118 [ 1 ] particular bill, we may have had discussions on whether it (131 discussions relating to the Agent Orange litigation ? [14] AI did not have direct involvement in those, no. [2] was an appropriate expense. [31 Q Have you ever utilized any guidelines provided by [151 I participated in discussions one step back from the (161 negotiations, but I was not directly involved in 141 any insurance company in determining whether or not you [ 5 ] would accept any particular charges that were presented to [17) negotiations. [18) Q What do you mean "one step back ' ? [61 you by vendors? [19) A1 participated in meetings, telephone conference [7] A I'm not sure what you mean by "utilized." [ 81 Q Have you ever seen guidelinesfor defense costs [9] that were provided by insurance companies? [20) calls in which Mr. Berendt, who did negotiate that [21) settlement, would discuss with me or with others the issues (101 A I don't recall whether 1 ever actually saw [22| that came up relating to settlement of that case. And I [ill internal guidelines from Liberty or Travelers or some Page 121 Page 115 to Page 121 202-347-3700 ACE-FEDERAL REPORTERS, INC. WATER PCB-SD0000066493 Depo of Thomas M. Bistline (Monsanto v Aetna) August 10, 1993 Cr.56353.0 was aware in general of the negotiations that occurred in the weekend prior to the settlement of that case in 1984. Q Did you conduct any analysis of whether the Agent Orange settlement was reasonable? A i did not do that personally, no. Q Were there any legal bills submittedfor pavment for which Monsanto sought a reduction for any reason in the Agent Orange case ? 19 - A Won't recall whether there were or not. I know 110 that I would, from time to time, have discussions with John |M Sabatta, who was at Townley & Updike, who was my main [12 contact on what certain lawyers were doing or what ceritain 113 expenses were for, but I don't recall, Mr. Leimkuhler, 114 whether I ever asked for a reduction in the amount of fees 115 or expenses as a result of those discussions. [16 Q With regard to the insurance coverage dispute, 117 did Monsanto engage outside counsel? 118 A Yes, we did. 119 Q Were you responsiblefor reviewing bills |20 submitted by that counsel? 121 A Yes, 1 was. Q Who was that counsel ?______________________________ Page 122 A It was the law firm of Alexander & Green, and the lawyer's name was -1 knew I would forget it when you asked me - Bob DeRight, D-e-R-i-g-h-t. Q Was there some settled resolution ofthe insurance coverage dispute ? A Yes, there was. Q Did you participate in negotiation ofthat settlement ? A I didn't directly, no. Mr. DeRight handled those discussions. Q Did you have any occasion to perform an analysis ofthe reasonableness ofthe settlement that was reached? A Oh, 1 instantly recognized that it was reasonable. Q Did you perform an analysis or was that a visceral reaction on your part? A It was a visceral reaction since Liberty had a duty to defend and agreed to share with Travelers in the settlement of the case, which is what we had sought, which had been our position all along. I didn't believe that that required deep analysis. ' ______Q Were there any bills submitted by Alexander <6 Page 123 II Greenfor which you sought a reduction ? [2 A I don't recall. 13 Q What was the ultimate disposition ofthe Nino 14 case? 15 A Ultimately, the claims of eight plaintiffs, I 16 believe it was, were tried and a defense verdict was [7 returned in Monsanto's favor - that's redundant. A I* verdict was returned in Monsanto's favor for the claims of 19 those individuals for injury from exposure of dioxin. no A plaintiff's verdict was returned for a m relatively nominal sum, I believe it was in the 200-to 112 $300,000 range -1 could be wrong, but somewhere around 113 there - in the case of one of those plaintiffs who 114 suffered from a tumor, a bladder cancer exposure from a 115 compound called paraphenyl biphenyl. 116 Q What war the amount ofthe verdict ? 117 A 1 believe it was in the 2- to $300,000 range, 118 Mr. Leimkuhler, but 1 don't recall the specific amount. 119 After that verdict was entered and upheld on appeal, the 120 balance of the cases were disposed of for. 1 think, it was 121 $400,000. 122 ______Q That was a settlement ? Page 124 A Yes. Q Did you participate m settlement discussions [3 A I did not. I wasn't responsible for the case at 14 that time. By the time that the case was tried and 15 ultimately settled, Mr. Sniveiy was involved in that. 16 Q / take it you didn't have occasion to perform an |7 analysis ofthe reasonable settlement amount ? (8 A That's correct. 19 Q Did you review the legal bills that were 110 submitted in the Nitro case by outside counsel ? 111 A Up until the time that Mr. Sniveiy assumed [12 responsibility, yes, I did. 113 Q Was there ever an occasion when vou requested a (14 reduction in any ofthe amounts that were submitted m the [15 bills? 116 A Yes. [17 Q Who was the lawfirm ? |18 A It's the Bowles, McDavid - the name of the firm [19 at the time was Bowles, McDavid, Graff & Love. B-o-w-l-e-s. [20 Q Where is thatfirm located ? 121 A Charleston, West Virginia. [22 Q What was the basisfor your requestfor Page 125 [1 reduction ? [2 A That I believe the work done by the particular |3 lawyer was either nonproductive, required an excessive [4 amount of time to complete or bad not been properly [5 authorized. [6 Q What was the nature ofthe workfor which you (7 sought a reduction ? [8 A I believe there was some research projects [9: undertaken that I had not authorized. There was analysis no of some medical records, as 1 recall, that was duplicative m of wbat we were doing in-house. There were simply thing' 112 that took too long, too much time was spent on items, and I |i3: asked for reductions in the charges of items of that 114 nature. (15 Q Do you have any estimate ofthe total amount of [16 fees charged by the Bowles, McDavidfirm while you were [17 responsiblefor the Nitro case ? (18 A I don't. [19 Q Any estimate atoll? [20 A Mr. Leimkuhler, it would be just wild speculation [21 on my part. It was simply too long ago. (22 ______ Q Was more than SI million expended? Page 126 II A I believe so. [2 Q More than 5 ? [3 A No, I don't believe it was that much. [4 Q Do you know how much a reduction you sought ? IS A Several thousand dollars. It was not just on one [6 bill. There were several instances. It was not frequent, [7 but there were several instances in which I did seek a [8 reduction. 19 Q In the aggregate, that amount is several [10 thousands ? HI A Several thousand dollars, yes. 112 Q Less than 5000? [13 A No, more than that. ACE-FEDERAL REPORTERS, INC. 202-347-3700 Page 121 to Page 126 WATER PCB-SD0000066494 a Depo of Thomas M. Bistline (Monsanto v Aetna) August 10, 1993 Cr.563S3.0 *w<; 1141 Q Less than 10? [9| identified for you some of the areas where we have either a [15] A Less than 100, but I don't know how much. Again, (101 large number of cases or large number of plaintiffs for [16] it was relatively infrequent, and I just don't hare a dear 111) both. All I can say is that we have had PCB cases from [17] recollection of the amounts involved. [ 181 Q Do you have any estimate ofhow much in fees were | i 91 paid to the Townley & Updikefirm in connection with the [201 Agent Orange case ? |211 A I believeit was in the vicinity of 12 - (I2| everywhere from Boston to Guam and a lot of points in 113] between. (14) As I said before, there have been about 400 cases 115! filed during the time I've been responsible for them. 116] Q Overall, there are about 300 to 400 cases ? 1221 somewhere between 12- and $15 million is my recollection, Page 127 [ 11 and that would be up to the time the case was settled in (171 A Filed, yes. 1181 Q Where are the largest litigationsfiled ? (19] A Currently pending, Mr. Leimkuhler? [20| Q Yes. [2[ 1984 or final approval of the settlement was obtained in [211 A 1 think the Paoli cases in Pennsylvania, the [31 '87, '88, somewhere in there. 141 Q Do you know how much infees were paid to the [22] various cases in the city of St. Louis. We have about 300 Page 130 (5 S firm ofAlexander & Green in connection with the insurance 111 plaintiffs there. I guess the case in Guam is still [6) coverage dispute? [2] technically pending. It's on appeal in the Ninth Circuit, [7) A No, I don't. [8) Q Any order ofmagnitude? [3] but it has not been finally disposed of yet. There are |4| other cases. [9| A I can't even estimate those. It's simply been [I0[ too long ago. [ 111 Q What other cases were you assigned to before the [ 121 time that you were assigned to the Brio cases ? (131 A I've been responsible since January of 1985 for [ 14{ the day-to-day supervision of Monsanto's defense in PCB [15] cases. We have had, over that period of time, probably [5] There's a case in western Pennsylvania, the [6] Binghamton casein New York that 1 mentioned. I'd really [7j have to look at my PCB book to give you a much lengthier [81 catalogue than that. Kentucky. If 1 think long enough, I [9| can probably find onejust about anywhere. [ 101 Q Is there one - withdraw the question. [11] / take it you have outside counsel litigating [I6j 300-or-so PCB cases brought against the company. 400 is [121 these cases? a [17] better estimate than 300. [ 181 QAre they concentrated in any particular [13] A We have many outside law firms defending the [14] company. (15) Q Do you have a national coordinator? |19| geographic area or areas? 12.01 A There are a large number of cases pending in [211 state court in Pennsylvania, state and federal court in the [221 Philadelphia area in Pennsylvania. There's a cluster of Page 128 (11 cases in Broome County, New York associated with the [2[ Binghamton office building. [31 We had a number of cases in Louisiana, [16] A Yes. [17] Q Who is that? (18) A The law firm of Smith, Heims, Mullis & Moore in [191 Greensboro, North Carolina. [20] Q Tell me the mechanism by which bills are [211 submitted and bills are paid in the PCB cases. [22]_______ A All bills for services of outside counsel are Page 131 HI Shreveport, associated with an incident involving a [ 1] submitted either to me, if it's one of the cases I'm 151 transformer there. We have several places where we have [21 directly handling, or to Mike Newport, who works with me (61 maybe one or two cases pending but they involve a large [7] number of plaintiffs. on [3] these cases, for our review. . 181 City of St. Louis, we have, I think, five or six [41 If the amount of the bill exceeds $20,000, then [9| cases with about 350 plaintiffs. Until recently, we were 151 it also requires Mr. Berendt's approval. It is then [ f0| involved in the Lone Star Steel litigation in Morris |6) submitted to the Monsanto Chemical Group accounts [ill County, Texas - if you read The Wall Street Journal, payable ! 12| you'll remember that one - which we recently negotiated a [7] department, where I believe there is an additional (i3[ favorable settlement for. [ 141 MR. LE1MKUHLER: 1 think this ia a good time for approval [8] protocol that's required. (151 a break. [91 If the bills exceed $10,000,1 think someone over 116] Were you finished with your answer? [171 THE WITNESS: We can continue the answer. (10) there has to sign them, too, the bills are paid directly by (11) Monsanto, and then Monsanto's risk management group [ 181 MR. LEIMKUHLER: We'U take a break and if {19| Mr. Bistline thinks of some more cases, we'll continue them seeks (12) reimbursement for those fees and expenses from [20] after the break. [211 (Recess.) (22| BY MR. LE1MKUHLER: Page 129 Monsanto's (13) insurance carriers. 114) Q Have there been any bills submitted in the PCB [15] cases which have caused you to seek a reduction ? 111 Q Let me ask you thisfollow-up. You were in the [21 process ofgiving an answer when we took a break. [31 A Yes. [4| Q Other than the cases and locales that you 151 identified right before the break, are there any other [ 61 locales where the PCB cases are being litigated or have 17) been litigated? [16] A Oh, yes. [ 17) Q Can you tell me about those circumstances ? 118) A Over the period of eight years now that I've been (19) working on those cases, there have been many instances in (20) which I've sought and received reductions in PCB outside [211 counsel bills. In virtually every - maybe not every case [22) that has been brought but certainly the majority of them - |8| A In general, they are widely dispersed. I Page 132 Page 126 to Page 132 202-347-3700 ACE-FEDERAL REPORTERS, INC. WATER PCB-SD0000066495 sa Depo of Thomas M. Bistline (Monsanto v Aetna) August 10, 1993 Cr.56353.0 |! ] l'd have to go back literally and investigate each case and | [15) Michigan for, 1 believe, $1-2 million. [21 try to catalogue that for you, but there have been 116] Q Any other substannal PCB settlements tnat vou vr numerous 117) been involved in ? 131 instances in which that has been done. 1181 A The only other settlement that came close to that 141 Q Can you generalize the basisfor your seeking a [19| amount of money was one that we arrived at in the fall of 151 reduction in those cases ? (20] 1991 in connection with a case that was being tried in [61 A There could be a number of things. It could be 1211 St. Louis, the Glen Brown case. We had 10 plaintiffs out [7) work that either was not authorized before it was (221 of the couple of hundred which were then pending in 18) undertaken, work that, in my opinion or Mike's opinion, j Page 135 too !91 much time was spent on, costs that were either excessive or 1101 not authorized, not appropriate. 1111 Q You 're referring to disbursements ? |l2j A Disbursements, yes. I think in general, as a [131 general way of describing the reasons for the reductions, 114) that probably accounts for it. 115) Q Have you been responsiblefor any ofthe |I61 withdraw the question. |171 Do you have an estimate ofhow much in bills 1181 Monsanto has paid in connection with the PCB cases since 1191 vou've been involved with them ? [201 A Probably between 75- and $100 million. [21! Q D yu have an esnmate as to how much in |22| reductions you have sought? Page 133 111 St. Louis, 10 plaintiffs whose cases were tried beginning [2] in, I think it was October of 1991. [3] We were very unfortunate with the venire panel |4] from which the jury in that case was selected. And as 151 trial progressed, it appeared to me and to our trial 16] counsel that several members of the jury were either |7] antagonistic to Monsanto or thought the whole case was a (81 big party. There was laughing and giggling and exchanging [9] of notes and general inattention to procedures in the (10) courtroom. And we ended up settling that case, the claim 1111 of those plaintiffs for, 1 believe, $800,000 prior to final (121 argument. (131 Q What was your role in the settlement ofthat [ 141 case? 115[ A Although I didn't negotiate it directly with the [ 16| plaintiffs' counsel, I was directly responsible for |1] A Overall, I really don't. In some cases, they've 117] obtaining the company's approval, our CEO and general [21 been very substantial; in other cases, they've been |3| relatively minor. I would say probably more than [4| $1 million, but how much moreover that period of time, I [18] counsel, to approve the settlement, and comm unicated with [19] the plaintiffs' counsel that we would agree with that 15 j really don't know. |6| Q Have you been involved in the settlement ofany [7 j ofthese cases? [20] amount. [21 ] Q Did you undertake a settlement analysis in that [22| case? 181 A Yes. 191 Q How many settlements ? 1I0| A Again, I'd have to go back and investigate the 111) files and determine that. We've settled a large number of Page 136 [11 A Not specifically. The $800,000 ended up being 121 the number because that was the amount of the demand that 112) these cases for relatively minor amounts, for the most 131 was on the table and it was one that we rejected prior to 1131 part. [141 Q Are there any instances where, as part ofa |15) single settlement, Monsanto has paid over $1 million ? 1161 A For one of these PCB cases? i17! Q Yes. 1181 A 1 believe there was one instance in which that 1191 was done. [201 Q Did you participate in that settlement? |2l| A Yes, 1 did. 1221_______Q What was your role? Page 134 IU A 1 was the person primarily responsible at that !41 trial and at the appropriate time we inquired of the (51 plaintiffs whether that was still an amount that was still [61 on the table and we,received an affirmative response so w [71 decided to settle the case for that. [8| Q You did not conduct any analysis with regard to (9| the $800,000number? [10] A Not specifically with regard to the $800,000, [11] Mr. Leimkuhler. What we had done prior to the trial of the (12] case was to analyze, to the extent we could, what we (13] thought a possiblejury verdict was or would be and what [ 14) the impact of that might be with respect to the other cases 121 time for the case. This was back in 1985 or'86. There 115) that were then pending in St. Louis. And it was our view |3| was a case that had been tried in '84, prior to my assuming 116) that if we did not get a good jury or if the jury was not |4| responsibility for these cases, in Michigan in which a jury 15] returned a verdict against Monsanto in favor of a farmer [ 17) receptive to Monsanto's defense, that a verdict in the [18) approximate amount of $1-5 to $2 million was a realistic [61 who had claimed that his dairy business had been [19] possibility and that if the jury returned adverse findings destroyed [201 on liability issues, we may have been estopped from [7] by the presence of PCBs and the coating that was put on the IS1 inside of the silo in which he stored feed for his cattle. |9) And just by happenstance, the jury returned a (10} verdict in precisely the amount of the mortgage on the {111 man's farm which, when prejudgment interest and (12] post-judgment interest was added, came up to just over $1 |13l million. And we were able to settle that case and a number 114| of other silo cases which were also pending in northern [211 contending liability with respect to the other plaintiffs [22] in the case. Although we didn't have any good way of Page 137 [ 1) estimating the impact of that, we felt that it would be a (2) very expensive matter to settle or otherwise dispose of. (3) Q Going back to the silo cases, did you conduct an |4) analysis ofthe settlement ofthat case ? (51 A As I recall, yes. It's been a while ago, but we |6| did at least discuss a broad range of issues related to 17] that settlement. I don't recall if it was a written ACE-FEDERAL REPORTERS, INC. 202-347-3700 Page 132 to Page 13 WATER PCB-SD0000066496  Depo of Thomas M. Bistline (Monsanto v Aetna) August 10, 1993 Cr, 56353,0 mX(23; 181 analysis, but the matter was thoroughly discussed and |9| analyzed. And as I said, we settled, I believe it was fire f 101 cases in total, four or five. 11! I Q Any other PCB casesfor which there were [ 121 settlementsfor a significant amount ofmoney ? 1131 A We recently settled the claims in the Lone Star 1141 Steel case, which 1 mentioned to you before. 1 don't know S151 if you're familiar with that case. It is a case brought by Page 140 111 Q What's the largest single settlement amount |2] that's been paid in those cases ? (3| A I'm going to set aside one case, which was a (4| special circumstance because the plaintiff was a Monsanto [31 employee, and discuss that separately. But other than 16] that, the largest amount that was paid in any of those 1161 approximately 3000 plaintiffs who are present or former 1171 employees of the Lone Star Steel plant in Dangerfield, (7) cases was, I believe, $70,000. 181 Q That's the Monsanto share ? 1181 Texas. It's Morris County. It's located in northeastern [191 Texas, midway between Dallas and Shreveport. It's not a [9| A The Monsanto share was $70,000. Typically, we 1101 pay 5-or $10,000 to get out of those cases if we have to 1201 very nice place to be a defendant. Monsanto was one of, 1 |211 think, 200 to 300 defendants in that case and we were part 111) pay money to get out of them. {121 Q Tell me about the Monsanto emplovee case. [22[ of a group that agreed to settle with the plaintiffs, a Page 138 (131 A That was the case of the family of Jack Skeen, {14) S-k-e-e-n, who worked as a processor at Monsanto's |1| group of chemical suppliers. And our settlement amount, I 12) believe, was $225,000. 131 Q Were there other defendants in the silo cases ? 141 A I think there was. I think the Michigan silo 151 company was a defendant in that case, and 1 believe they 161 settled separately. 171 QAnd what about the Glen Brown case ? |81 A Monsanto was the only defendant in that case. [9 ] Q Did you do a settlement analysis in the (13) Chocolate Bayou plant from about 1969 to 1985; 1 think it (16) was'69 to'85, somewhere in that time frame. He developed (17) chronic myelogenous leukemia, which was diagnosed sometime 118] in the early'80s, from which he died in 1985. And his [ 191 family retained John O'Quinn, who's a well-known [201 plaintiffs lawyer in the Houston area. (211 The case was tried in federal court in Galveston (221 and initially the jury returned a verdict in the [ 10) Dangerfield cases? 1111 A Again, I don't know what you would consider an Page 141 [1| plaintiffs favor of $100 million. That verdict was set [I2{ analysis. We discussed the issues. I believe there may [21 aside by the trial judge, and we retried the case on a 1131 have been a memorandum written detailing the history of [31 bifurcated basis with causation being separated as a 1141 negotiations for Mr. Berendt. There may have been a [41 separate issue for first trial. The jury returned a 1131 memorandum that indicated what amounts other (51 verdict in the plaintiffs favor on causation, and at that companies had 116j been able to achieve separate settlements for in that 117] case. But the verdict potential and the company's (6) point, we settled the case for $7,250,000. (71 Q Did you have a role in the settlement ofthat [81 case? exposure f 181 in that case were almost impossible to quantify because of (9] |101 A Yes. Q What was your role ? 119{ the lack of our ability to obtain any meaningful discovery (11) A I was the company's primary negotiator. 120) or cooperation from the court to permit us to develop our [121 Q What did you do to analyze the reasonableness of 1211 case in any fashion. (13) the settlement ofthat case? f221______ Q Other than the cases that you 've mentioned and______ 114) A Several things. First of all. keeping in mind Page 139 I [151 the amount of the initial verdict that bad been returned |1| the Brio cases, are there any other toxic tort casesfor 116] against us, we looked at what the proof had been, the 12] which you have managerial responsibility ? (171 manner in which plaintiffs had been able to introduce PI A Yes. (18) evidence of alleged gross negligence on the company's 141 Q Can you identify thoseforme? part 151 Ain general, I have responsibility for handling 16] cases involving allegations of benzene exposure. Monsanto {7; is not a seller of benzene, but we are a company with a (191 in the first trial and determine that there was a risk [20] there, again, that the jury would return a verdict against (21 ] the company, although, 1 have to add here, without [22] justification. That's a very safe plant to work in. 181 large presence in Tons Gulf Coast area, and we are one of Page 142 [91 what you'd call "usual suspects" that the plaintiffs round 11) The size of the first verdict, the results of a (101 up when someone has a leukemia case to bring. And I have (III been involved in handling those cases for the company [2] mock trial exercise that we had conducted in which, [3] although the mock juries -1 believe there were three {4( panels that conducted this before - all were disposed to (12) since, 1 guess, about 1914. There have been, during that [5] returning a defense verdict, when asked, assume you were [131 period of time, probably 40 or 50 cases of that nature that 114] have been brought against the company. [ 15 ] Q Are those all in the Gulf Coast area ? |6) going to return a verdict for the plaintiffs, what would [7] you do, and the verdicts for the plaintiffs were [8| substantial. f 161 A For the most part. The majority of those cases [91 We also looked at whether or not it was likely [171 are in the Gulf Coast area. There have been other cases [ 10] that other cases of a similar nature could be brought and 1181 involving claims of exposure to benzene that have been [111 we concluded that there was only one other possibility. 119) brought in other parts of the country, and 1 have handled 120) those as well. 1211 Q Have any ofthose been settled? We (12) looked at generally the adverse nature of the publicity (13) that had accrued to the company and would have accrued (22| A Yes. had Page 137 to Page 142 202-347-3700 ACE-FEDERAL REPORTERS, INC WATER PCB-SD0000066497 BSX Depo of Thomas M. Bistline (Monsanto v Aetna) August IQ, 1993 Cr.56353.0 the trial continued and determined that it was in our best interest to put the case behind us at that point for that amount of money. Q Anything else other than the cases you've already mentioned in the toxic tort areafor which you have or have had management responsibility ? A I have, from time to time, responsibility for just cases that come up that involve substantial exposure or potential exposure. One case, which we took to trial in Page 143 Oklahoma City in 1990, involved claims of exposure to the active chemical in mothballs, paradichlorobenzene, by about |3 120 workers in the main post office in Oklahoma City. That H case was tried to a defense verdict in 1990. [5 I've also been responsible for a case that was |6 brought by a purported class of people who were allegedly |7 injured by a release of potassium oxychloride from the Monsanto Krummrich plant in East St. Louis. That case was [9 finally just voluntarily discontinued by the plaintiffs 110 rather than take it to trial. Monsanto paid no settlement. I'm sure there were other cases, but I just can't recall them at the moment. 113 Q Have you identified the substantial ones ? [14 A I think there was one other benzene case, the 115 other Monsanto employee case alleging benzene exposure at 116 the Chocolate Bayou plant, styled The Cummings versus 117 Monsanto. That one, in which Mr. O'Quinn, again, was the 118 plaintiffs counsel, was settled, I guess, about two years [19 ago for $1.2 million. [20 Q What role did you have in the settlement ofthat [21 case? [22 ______ A 1 was the company's primary negotiator for that Page 144 settlement. Q Did you conduct an analysis ofthe settlement demand ? A Yes. I don't recall writing anything, but I had extensive discussions with Mr. Berendt and Mr. Duesenberg [6 on the nature of the claims, the type of evidence that [7 would be offered, the expert opinions that would be [8 offered, the strengths and weaknesses of the plaintiffs [9 legal position. It was a very substantial statute of [10 limitations issue that we believed we would prevail upon, 111 but the trial denied our motion to dismiss for summary 112 judgment on the statute of limitations, and although we (13 believed we would have prevailed on that issue on appeal, [14 Texas courts are not the happiest place to be sometimes. [15 We determined that it was in the company's best interest to [16 settle that case. 117 Q Any other cases, setting apartfor the moment the 118 Brio cases in which you've had an active responsibility ? 119 And this is in the area oftone tort cases. 120 A Right. 1 understand. That's all 1 can recall at 121 the moment. [22 ______ Q When did you learn that you would be an expert Page 145 witness in this case - let me withdraw the question. When were youfirst asked to be an expert witness in this case ? [4] A 1 don't recall exactly. It was sometime after my [51 first round of depositions, which was. as 1 recall, 161 February of this year, that I was first asked. 1 think |7] that's when it was. I don't have a clear recollection. |8| Q So it was in February or perhaps March |9| A It was later than that, Mr. Leimkuhler. It might [10] have been April, but somewhere in that time period. [Ill Q Who initially asked you to be an expert witness 1121 A 1 believe David Snively first raised it with me. 1131 Q Was it raised by correspondence, by telephone [ 141 call, face-to-face meeting? 1151 A It was a face-to-face meeting. [16) Q Can you tell me everything that transpired at [17) that meenng. [18] A Not without violating the attorney-client 119) privilege. [20[ Q Well, l'd like to know - let's startfirst by [211 having me ask you, what did Mr. Snively talk to vou about |22| with regard to your testifying as an expert witness Page 146 [!| A He asked me if I would. [2| Q And what did you say ? [3 j A I don't recall exactly what 1 said. [4| Q What was the substance ofyour response ? (5| A That if he and Mr. Berendt believed that they [6| wanted me to perform that function, that 1 would. [7] Q Did Mr. Snively discuss the areas of testimony 181 that he wanted you to handle as an expert ? |9| MR. TRACEY: Let me interject here. I think we (10) have to be mindful here of the fact that Mr. Bistline is a 1111 Monsanto employee while also appeanng for a deposition as |I2| an expert witness at Monsanto. I guess the parsing that (131 has to be done is the inquiry into his preparation as an [14] expert and what he did in that respect versus conversations [15] that may be outside the scope of that inquiry. [16] MR. LEIMKUHLER: I think any privilege is waived [17] as to matters that could reasonably bear on the content of 1181 his testimony as an expert. So I intend to delve into |!9| this. |20| MR. TRACEY: I'm not going to instruct him not to [211 answer on questions going to what Mr. Bistline did to [22| prepare himself for his expert testimony - not any other Page 147 111 testimony, but his expert testimony - but I will instruct |2| on areas that go beyond that and caution the witness to be 13 J mindful of that distinction in giving his answers. |4| MR. LEIMKUHLER: I don't agree with your cut. I (51 think you're carving out too narrow of an area which is (6) permissible for inquiry in examining an expert witness. 1 [7] think the best way to proceed is for me to ask the [8| questions and we'll see where we run into trouble. (9) MR. TRACEY: 1 have no objection to your asking {10] questions, but 1 was simply carving out what we believe is 1111 the distinction here, and 1 think this is a case where we 1121 have a Monsanto employee who is also appearing as an expert |13| witness. I think there's an attorney-client consideration 114) present there that might not be present were Mr. Bistline [IS] not a Monsanto employee. 116) MR. LEIMKUHLER: There's also a waiver issue [17] that's present that would not be there if Mr. Bistline were 118| not an expert, but Mr. Bistline is an expert. [19] MR. TRACEY: You're alleging - you can allege |20) what you want. |2I] MR. LEIMKUHLER: Let me modify that somewhat. ACE-FEDERAL REPORTERS, INC. 202-347-3700 Page 142 to Page 14" WATER PCB-SD0000066498 EL Depo of Thomas M. Bistline (Monsanto v Aetna) August 10, 1993 Cr.56353.0 122) He's being held out as an expert, and on that basis, we're Page 148 _ [18] restriction that was just articulated, and I will follow [19] the instruction of Mr. Tracey on that. Ml entitled to probe matters discussed which bear on the i2| opinions that he's going to testify to. (31 MR. TRACEY: You and 1 can obviously spend a lot 14) of time debating this. I think I made the distinction that [20] MR. KRAMER: Given that response, perhaps [211 Mr. Tracey misspoke, but he limited the response to [22] discussions that were had in preparation for this Page 151 [51 I would draw clear, and I guess to a certain extent here, 161 since it was the witness who was involved in these [7] conversations and the efforts at preparation, perhaps he is (8) the one that will have to apply his judgment as well to [ 1 ] deposition. I don't think that was the intent of the [2] question nor do I think that would be a proper limitation. [3) Certainly, it would also cover any discussions he 14] had in preparation for his anticipated expert testimony. [9) areas that he feels are outside the scope of the inquiry. 1101 But I' m not trying to prevent your proceeding with your MU questioning. [I2| MR. LEIMKUHLER: Just his answering. Let's read 113) back what was pending before that extended colloquy, if you [5] whether or not it was m preparation for this deposition. (6| MR. TRACEY: And I think that your comment there (7) is correct actually, and that's probably a fair reading of [ 8 ] what I meant. In preparation for his deposition as an [9] expert witness. 110] MR. LEIMKUHLER: I still think that limitation is 114) please. [11] unduly harsh because if there is any information that 115) (The reporter read the record as requested.) 112] Mr. Bistline has obtained which bears in any respect on his [161 THE WITNESS: Mr. Snively's comment to me was [13] testimony whether, his sole objective was prepanng for his 1171 that he wished me to testify about the expenses in handling [14] testimony or not, it's something which is fair ground for 118) the Acosta cases as well as the settlement of the Acosta [15] examination. Let me repeat the question. [19| case. [16] MR. TRACEY: What is your question? [20] BY MR. LEIMKUHLER: [171 BY MR. LEIMKUHLER: (211 Q Tell me as best as you can recall what [221 Mr. Snively said to you concerning those areas of_________ [18] QMy question is asfollows: Mr. Bistline, since 119] your initial discussion with Mr. Snively, have you had any Page 149 [1! testimony. [21 A It was just that, Mr. Leimkuhler. He asked if I [20] discussions with anyone concerning the issue ofcosts [21] incurred by Monsanto in connection with its defense or [22] settlement ofany private actions at the Brio sites ? And______ [3] would be willing to testify as an expert in those areas. [41 Q And you told him in substance that you would? Page 152 [ 11 ifyou have had such discussions, please identify with (51 A Yes. [2] whom. [6[ Q What other discussions transpired concerning your [3] A Yes, I have had discussions, and the individuals [71 anticipated role as an expert between you and Mr. Snively ? [4| with whom I've had those discussions have been either 181 A At that time, none. [5] Mr. Snively, counsel for Monsanto in the underlying [91 Q Did you have anyfurther discussions or cases, 110 correspondence with Mr. Snively concerning the issue of [6] in the Brio cases or counsel for Monsanto in this case, and 111 Monsanto's costs at the Brio sites in defending private [12 actions at the Brio site ? [71 I may have had -1 can't recall exactly when - but 1 may [8] have had a discussion with Mr. Krchma in passing. 13' A Not with Mr. Snively, no. [9| Q Can you identify counselfor Monsanto in the Brio 114' Q With whom else did you have discussions ofthat 110| cases, the underlying cases with whom you've had 115 nature ? (111 discussions ? [16 A I've had discussions with many people about the [12] A Yes. 117 costs incurred in defending and settling these cases. 113 ] Q Is Ms. Cohen one ofthem ? [18 Q Are you referring to discussions that took place [14] A Phyllis Cohen. I T9' before or after your initial conversation with Mr. Snively ? (151 QMr.HaU? [20 A Both. [16] A Mr. Hall. 121 Q Let's leave it at discussions that took place [17] Q Anyone else? 1221 after your meeting with Mr. Snively. With whom else have (18| A Joe Shoebotham. Page 150 [19] QMr. Ellis? HI you discussed the issue oflegal costs or settlements with (21 regard to the Brio private actions ? [201 A Mr. Ellis, yes. He was one. Mr. Jones and [211 Mr. Goldenthau, Larry Goldenthau. [3] MR. TRACEY: Let me just intellect, and I'm not [22]______ QAre those all lawyers ? [41 trying to put a lot of colloquy on the record but to the Page 153 [51 extent that that information was being collected in [ 1 ] A Those are all lawyers. And Tracy Gist, G-i-s-t, 161 preparation for your deposition is the limitation that I [21 who is a paralegal at Woodard, Hall fit Primm. |7] would put on that as opposed to whatever otherwise (3) Q Are the other lawyers that you mentioned lawyers f 81 privileged communications may have been made. [4] at Woodard, Halt? [9] MR. LEIMKUHLER: Peter, I'm not going to accept (51 A Yes. [10 that qualification, and the witness should understand in [6] Q Anyone else other than those individuals within [11 answering the question that 1 stand by my question as it's [7] the category ofcounselfor Monsanto in the underlying [12[ put. And if he intends to limit his answer to meet with [8] cases? [131 your qualification, he's obliged to let me know that [91 A Not that I recall. 114 there's information that's not being provided that's [10] Q Who have you discussed cost matters with whoyou 115' responsive t.-' the question that I put. (111 identified as counselfor Monsanto in the insurance [161 THE - 7NESS: I understand that, Mr. Leimkuhler. (121 litigation? |17] There are conversations that I had that do fall within the [13] A David Curtin, Peter Tracey. Page 147 to Page 153 202-347-3700 ACE-FEDERAL REPORTERS, INC. WATER PCB-SD0000066499 Depo of Thomas M. Bistline (Monsanto v Aetna) August 10. 1993 Cr.56353.0 114) MR. TRACEY: When you say "cost matters," you 1151 mean matters - cost matters relating to the Brio actions? 1161 MR. LEIMKUHLER: That's right. ! 17j THE WITNESS: That's what I understood the ; 18i question to be. (19! BYMR. LEIMKUHLER: |20| Q Are there other cost matters other than those as [211 to which you've had discussions since Mr. Snively first [221 asked you to become an expert witness? Page 154 11] A Just in general, cost matters. I mean, my wife (2| and I talked about the cost of a new car that we recently [31 purchased because my 18-year-old did lethal damage to the 141 old one. |5| Q You caught me. Boy, what an overbroad question. 16 ] Other cost matters relating to the dispute 17] between Monsanto and its insurers. IS] A I have had other discussions, yes. (9 ] Q With whom ? |I0] MR.TRACEY: I think that's outside the scope of |ll| this deposition. I mean, he's not - he's being offered [12] here on the issues that are outlined in his statement. If 1131 you're going into other cost issues, that's not his area of 1141 expertise, and I' m going to instruct him not to answer. 115] He's here to answer as to costs within the scope of this 1161 deposition. 1 think it clearly takes on attorney-client 117) privilege when you step beyond that. 118) MR. LEIMKUHLER: First of aU, I haven't asked of 1191 the substance of any conversations yet, and I'm not saying i201 that that would be impermissible, but right now I'm simply i2! ] asking him to identify conversations that he's had. Is 122) this an instruction not to answer? Page 155 |l] MR. TRACEY: The witness is a lawyer for 12 ] M onsanto, and to the extent that he is also representing [3 ] his client. Monsanto Company, I don't think that it's j 4 ] appropriate for him to have to go beyond the scope of what j 51 is laid out in the Rule 26 statement. So 1 will instruct 161 him not to answer as to discussions he may have had or may 171 not have had as to costs that are not referenced in the 18] Rule 26 statement. [9] BYMR. LEIMKUHLER: 110] Q Can you answer the pending question, 1111 Mr. Bistline ? 1121 A I'm going to follow my counsel's instructions. (13] Q Can you provide me the names ofany individuals 114] with whom you've had discussions about costs at issue in 1151 the Monsanto action, apartfrom as they relate to the Brio |16| private actions? |17] MR. TRACEY: I'm going to instruct him not to 118] answer on that. First of all, it's attorney-client, and 119] second, it's outside the scope of this deposition. (20] THE WITNESS: I'm going to follow my counsel's (211 instruction. |22|_______MR. LEIMKUHLER: Let's go off the record for a Page 156 (1] second. 12 ] (Discussion off the record.) (3) MR. LEIMKUHLER: We have to break because several 141 people have flights to catch or trains to catch. (51 Due to some scheduling confusion, Mr. Bistline |6| will not be available tomorrow, but Mr. Tracey has agreed 17] to get back to me promptly with any available dates that 18] Mr. Bistline has in the future. I would note that we are [9] ending earlier than I anticipated today after starting 110] later than we had originally expected and so the 1111 continuation may last longer than an additional dav tor 1121 that reason. f 13] MR. TRACEY: Well, given Defendants'cooperation [14] in scheduling in this instance, we will accommodate the 115] schedule. 116] MR. LEIMKUHLER: We re ending in the middle of a 117] tussle over privileged issues, and 1 think all parties are [18] simply going to reserve their rights as to their positions. 119] and we'U try to sort that out either between now and the [20] next session or at the next session. So the fact that [211 we're dropping the fight for the moment should not be seen [22] as acquiescence on the pan of Defendants and the positions Page 157 11 ] that have been set forth by Monsanto. [2| MR. TRACEY: 1 have no concluding remarks. (3 ] However, Monsanto does request that this deposition |4] transcript and the exhibits there to be designated (5) protected material in accordance with the Monsanto (6j protective order and any other applicable orders, including [7] the May 25th order. That's all 1 have. [8] Thank you, Mr. Bistline. [9] MR. LEIMKUHLER: Thank you. (10) (Whereupon, at 4:25 p.m.. the deposition was 1111 adjourned, to reconvene at a mutually agreed-upon date.) 114] THOMAS M. BISTLINE ACE-FEDERAL REPORTERS, INC. 202-347-3700 Page 153 to Page 15 WATER PCB-SD0000066500 Basic Sywwrm Apgbqanra Depo of Thomas M. Bistline (Monsanto v Aetna) August IQ, 1993 Cr.56353.Q Look-See Concordance Report 7- - 70-hour (1) 111:11 UNIQUE WORDS; 2,236 TOTAL OCCURANCES; 9,558 NOISE WORDS: 385 TOTAL WORDS IN FILE: 27,294 " ~ SINGLE FILE CONCORDANCE Case sensitive NOISE WORD LIST(S): NOISE.NOI INCLUDES ALL TEXT OCCURRENCES IGNORES PURE NUMBERS word Ranges BOTTOM OF PAGE -$ SI [4] 125:22; 133:4, 15; 134:12 $1.2 [21 134:15; 143:19 $1.5 [1] 136:18 $10,000 (2| 131:9; 140:10 $100 [2] 132:20; 141:1 $15 [1) 126:22 $2 [I] 136:18 $20,000(1] 131:4 $225,000 [1] 138:2 $300,000 [2] 123:12, 17 $400,000(1] 123:21 $7,250,000 (1| 141:6 $70,000 [2] 140:7, 9 $800,000 (4) 135:11; 136:1, 9, 10 - 1- 12:40 |1 ] S0. S> 18-year-old |1] 154:3 1:40 ]1] 80:10 -2 2-1/2 (I) 114:9 25-minute (4J 31:2; 36:19; 41:14, 16 25th (1] 157:7 3- - 300-or-so (1) 127:16 4- - 48-state [1| 29:20 4:25 (1] 157:10 -5 50-state |1] 29:20 -8- 80s ]I] 140:18 - A- ABA (9| 12:3: 19:2: 25:1, 9:26:10: 33:18: 36:9, 12; 41:19 abide (2] 10:11, 16 abilities (11 56:7 ability [3] 71:6; 93:19: 138:19 able [6] 56:12: 80:2; 100:17; 134:13; 138:16; 141:17 absolutely [1] 96:4 abstract [5] 58:3; 78:13; 89:9; 96:16: 98:2 academic (1 ] 47:16 accept (2) 118:5; 150:9 access [1] 43:11 accessible (1] 45:21 accommodate [ 11 156:14 accordance (1] 157:5 account [5] 77:4, 7, 11; 78:3 accounting (1) 103:15 accounts (2) 131:6; 132:14 accrued [2] 142:13 accumulate [1] 76:7 accuracy (1] 25:12 accurate 11 ] 94:20 accurately [1] 5:12 achieve (1] 138:16 Acosta 19] 9:1; 101:5, 10. 18; 102:2, 6. 16; 148:18 acquaint (1] 37:4 acquiescence [2] 83:7; 156:22 acquired [2] 10:8; 105:13 acted [l] 16:15 acting (1] 102:18 action (5119:1, 9; 20:10; 72:8; 155:15 actions [20] 5:9, 21; 6:8, 19; 8:3, 13; 9:1; 23:15; 33:6; 73:14; 75:10; 76:22; 79:8; 100:21; 149:12; 150:2; 151:22; 153:15; 155:16 active (5] 42:1; 55:16; 71:11; 143:2; 144:18 activities [7] 22:11; 25:1; 68:16, 18; 105:5; 116:4, 17 activity [4] 9:21; 34:18; 68:20; 76:17 actuality (1) 84:4 ad [2] 96:17, 21 add (2] 113:15; 141:21 added (1] 134:12 addition [1] 94:22 additional [7] 57:13; 85:22: 87:14; 100:15: 101:4; 131:7; 156:11 address [7] 6:17; 20:10: 21:7: 34:21; 36:11:45:15; 65:7 addressed [24] 12:22: 16:18: 21:5; 24:5, 8; 25:10, 11, 14, 15, 22: 26:2, 16, 21:27:11; 29:8: 31:7; 34:16; 35:17; 36:14; 37:16; 38:5; 39:17; 40:12; 94:8 addressing [1] 35:2 adjourned (1] 157:11 administrative [1] 19:8 admissibility [3] 19:17; 20:19; 25:14 adults [1] 88:21 advance [2] 118:17, 19 adversary (1 ] 28:5 adverse [5] 38:9; 39:22: 82:7: 136:19; 142:12 advisable [ I ] 38:22 advisement (2] 44:11, 15 advisors [1] 67:4 Advisory (21 13:10, 13 advocated [ 1 ] 35:22 affect (61 19:13; 20:7; 21:4; 39:11; 53:4; 82:1 affiliation (1] 15:22 affirmative [1] 136:6 Agent (10] 26:20; 114:6, 9, 17, 20; 115:10; 120:13; 121:3, 8; 126:20 aggregate (3] 79:11, 12; 126:9 aggressive (11 52:18 agree (4) 27:18; 84:8; 135:19; 147:4 agreed (4] 84:14; 122:18; 137:22; 156:6 agreed-upon (1] 157:11 agreeing [1] 44:16 Aguilar (2) 9:1; 101:2 air [4] 63:22; 64:13; 65:1; 96:22 airfare [1] 74:22 Alexander [3] 122:1, 22; 127:5 AL111] 19:22 all-around [1] 108:9 allegation (4] 51:7; 85:13, 19; 87:19 allegations (7] 53:11; 82:3; 85:8; 86:1, 5; 97:14; 139:6 alleged] >47:19 alleged (4] 50:4, 11; 61:8; 141:18 allegedly (3] 114:11; 115:6; 143:6 alleging (2] 143:15; 147:19 allotted (1) 41:18 amendments [2] 19:20; 20:22 American (1] 24:19 53:12: 74:11: 78:6 amicus (5] 13:17: 16:7, i APPEARANCES [1] 9.11:17:5 , 2:1 amount [57] 39:18, 19: appeared (2| 44:1 J 40:6: 66:7. 16: 68:21; 135:5 73:16: 74:20: 75:13; appearing 12] 146:11: 81:15. 16:82:9:83:17: 147:12 84:13. 17: 85:10: 86:15, appellate [4] 7:4; 17:87:22:88:12:89:6, 13:18: 16:7 9. 12: 90:6: 91:12: 92:3: I applicable [2| 27:2: 95:14: 96:9; 97:2, 7: ! 157:6 98:21: 101:15, 22: \ application [2] 23:17: 102:2: 116:19, 20: 26:18 117:10: 121:14; applied [5] 23:6: 123:16, 18; 124:7: 42:18:51:12: 78:9 125:4, 15; 126:9; 131:4; applies (11 11:18 134:10, 19; 135:20: apply |3| 23:14: 81:14; 136:2, 5, 18; 137:12; 148:8 138:1; 140:1,6; 141:15: applying dl 52:5 142:16 amounts (19] 5:20: I apprised (1 ] 38:6 I approach [5] 11:21: 6:3, 4, 7, 13, 14, 15. 16: 63:20: 70:7: 78:20; 8:21; 82:16; 83:21: I 81:19 90:20: 105:17; 106:22: I approached 11 ] 73:12 107:2: 124:14: 126:17: ! appropriate |20| 133:12:138:15 \ 23:10. 17; 27:19: 28:11 analogize (1] 19:2 29:9. 15. 21: 30:1: 34:7 analysis (26] 21:17, 57:17: 58:9: 66:8; 21; 23:5; 37:11, 15: 73:17: 79:5:84:15: 38:3; 48:9; 90:1, 20: 116:18; 118:2; 132:10: 92:2, 12; 93:11, 12; 136:4; 155:4 121:3; 122:11, 15, 21; appropriately |4] 124:7: 125:9; 135:21; 39:11; 54:16; 70:12: 136:8; 137:4, 8; 138:9, 73:15 12; 144:2 appropriateness [2] analyze [3] 23:11; 70:8: 75:8 136:12; 141:12 approval (6] 77:10; analyzed [2] 22:16; 83:6; 127:2; 131:5, 7: 137:9 \ 135:17 analyzing [1] 24:9 approve 111 135:18 Anderson [ 1 ] 2:2 approved [2] 77:12: annual (1) 19:7 82:18 answer [20] 11:12; approving (1 ] 117:2 30:14; 72:17; 78:12; approximate |2| 32:4; 91:2; 92:16, 17; 94:2; 136:18 106:11; 128:16, 17; approximately |4| 129:2; 146:21; 150:12; 31:6; 72:6; 110:12: 154:14, 15, 22; 155:6, 137:16 10, 18 April (5] 5:11; 7:2. 7, 9: answering (2) 148:12; 145:10 150:11 arduous [I] 112:1 answers (4) 32:17; area (47] 10:7; 11:6, 33:8; 115:22; 147:3 19; 20:7, 19:32:14; antagonism (1] 39:14 45:7, 11:47:4, 12, 22: antagonistic (1] 135:7 48:22; 49:9; 55:22: anticipate (4) 5:2; 78:15; 84:21, 22; 85:2: 61:18; 63:1; 72:6 103:11, 19; 104:6, 7, anticipated [4] 72:12; 13:105:6; 106:7, 10, 149:7; 151:4; 156:9 12, 14, 17, 21; 107:8; anybody (3] 52:11; 108:12, 15, 20; 109:4, 93:6; 105:8 7; 114:2: 127:19, 22: anymore [1] 47:1 139:8, 15, 17; 140:20: anywhere (3] 41:16; 142:18; 144:19; 147:5; 62:6; 130:9 154:13 apart (5] 36:15; 64:10; areas |9] 19:13: 29:8: 113:21; 144:17; 155:15 127:19; 129:9; 146:7; apologies [1] 106:4 147:2; 148:9. 22; 149:3 apologize (1] 89:4 arena (1 ] 47:16 appeal [4] 50:13; argument |1] 135:12 123:19; 130:2; 144:13 arisen (1] 12:10 appear [5] 43:4; 44:22; arising [1] 5:9 From $1 to arising WATER PCB-SD0000066501 baste ^yaisms Ap^tscsuora Depo of Thomas M. Bistline (Monsanto v Aetna) August 10, 1993 Cr.56353.0 arose (3| 43:6; 117:22; 118.16 arrive |2) 80:2:82:8 arrived [2| 40:21; 134:19 arriving |1) 39:17 article [2| 12:21; 43:5 articles (10) 43:2, 8. 16. 17:44:21:45:2, 61 10. 19; 118:15 articulated (1) 150:18 ascertain (3) 49:11; 56:12:88:14 aside [5] 39:4; 59:9; 66:22: 140:3: 141:2 asking |8| 49:8, 9: 58:8; 64:7. 8: 92:15; 147:9; 154:21 aspect (5] 21:16; 34:4, 6: 110:16; 113:19 aspects |4] 13:7, 8; 36:21; 106:16 assess (14) 34:18; 35:4; 53:20; 54:14; 55:15; 56:6; 68:20; 81:11:82:6, 21; 93:2, 14: 97:6; 98:21 Assessing (1) 70:7 assessing (11) 58:14; 59:15; 64:11; 70:13; 71:8; 76:18; 87:21; 91:17, 22; 93:12; 106:1 assessment [7] 50:6; 86:22; 89:13, 15; 96:14; 98:6, 9 assign (1] 56:17 assigned (6) 54:5, 7; 56:11; 110:14; 127:11, 12 assignment (3) 17:11; 114:5; 115:8 assist [ 1) 36:2 assistance (1 ] 55:2 assisting (11 48:4 Associated (11 53:5 associated (6) 82:7; 83:20; 107:6; 120:6; 128:1, 4 Association (3) 24:19; 41:21; 42:22 association (1) 42:5 assume (9) 10:15; 48:10; 54:13; 56:8; 57:22; 74:9; 98:20; 117:3; 142:5 assumed [2] 7:1; 124:11 assuming [1] 134:3 assure (5] 11:22; 25:12; 27:5; 28:10; 72:14 assured (1] 73:13 attach [1] 44:17 attempt (2) 92:16 attend [2| 25:3; 42:7 attended (12) 24:1, 3, 8; 35:8, 12, 13, 21; 40:8, 12; 41:6; 42:4; 103:7 attendee (1) 42:6 attending [1] 73:9 attention (1) 114:14 attorney (4) 8:17; 14:11; 66:5; 83:8 attorney-client [5] 44:12; 145:18; 147:13; 154:16; 155:18 attorneys (1) 11:18 attractive (3] 111:22; 113:10, 11 auditors [1] 19:7 authoritative [1] 45:3 authority (1) 77:8 authorized (4) 125:5, 9; 132:7, 10 automatic [1] 19:20 available [8] 30:5, 7; 80:3; 96:13, 16; 100:11; 156:6, 7 avoided (1| 90:4 award (1) 85:2 awards (3) 85:1; 94:17, 18 aware [17] 5:18; 8:2, 6; 9:6; 10:21; 11:2, 5, 8, 17, 19; 21:11, 14; 23:1; 26:20; 63:5; 117:9; 121:1 awareness [1] 22:7 -B- B-o-w-i-e-s (H 124:19 background (2) 80:6; 103:18 backup [1] 109:20 balance [1] 123:20 ballpark [1] 72:13 Bank [1] 2:13 Bar (51 24:18, 19; 41:21; 42:5, 21 Barrett (1) 108:4 Barth [1] 46:12 Bartlett (1) 107:4 based (1) 56:9 Bases (1) 8:8 bask (3) 57:6; 103:15; 105:13 basically [1] 51:15 basis (91 22:10; 77:11; 78:11, 21; 117:5; 124:22; 132:4; 141:3; 147:22 Bayou [21 140:15; 143:16 bear (51 36:22; 70:13; 103:11; 146:17; 148:1 bears [21106:7; 151:12 becomes [1] 69:6 begun [1] 111:6 behalf [8} 2:3, 6, 10, 16, 22; 7:16; 118:14; 119:4 behind [11142:15 believe [651 S:22; 6:9; 7:12; 9:10; 12:2, 19; 15:8, 12, 16; 16:16; 17:17; 20:18; 21:19; 24:20; 29:17; 30:12; 36:5; 37:12; 38:15; 40:11; 41:5; 42:14, 18; 47:21; 48:12; 64:8; 70:15; 73:4, 6: 78:6; 82:9; 83:3, 9, 11; 84:1. 3; 87:17; 94:20; 101:3; 102:19; 104:19; 112:15; 117:4; 122:20; 123:6, 11, 17; 125:2, 8; 126:1, 3, 21; 131:7; 133:18; 134:15; 135:11; 137:9: 138:2,5, 12; 140:7; 142:3; 145:12; 147:10 believed [5] 23:4; 90:5; 144:10. 13: 146:5 believes (1) 93:6 belong (1) 41:20 benzene (6] 120:9; 139:6, 7, 18:143:14, 15 Berendt (10) 15:3, 14; 46:22; 103:2; 117:4; 120:20; 131:5; 138:14; 144:5; 146:5 bet-the-company (1) 79:9 bet-your-company (2) 79:6, 13 BhopaJ (1) 26:22 bifurcated (1) 141:3 bill (20) 58:21; 68:19; 69:2, 5, 6, 8, 12, 16; 73:22; 74:11, 15; 76:4; 77:19, 21; 117:6, 9, 10; ' 118:1; 126:6; 131:4 billed [2] 69:18; 116:17 billing (4) 118:21; 119:4,12; 120:3 bilb [34] 58:19; 60:1; 65:18; 67:20, 21; 68:7; 69:4; 70:4, 11; 73:18; 76:10; 78:1, 6, 14; 116:7, 13, 16; 117:2, 5, 12; 119:20; 121:6, 19; 122:22; 124:9, 15; 130:20, 21. 22; 131:9. 10, 14, 21; 132:17 Binghamton (21 128:2; 130:6 biphenyl (1) 123:15 BISTLINE [2] 3:6; 4:3 Bistline [261 3:3; 4:7, 8, 11,15,16,19; 5:6, 10; 8:11, 15, 20; 43:8; 81:8; 128:19; 146:10, 21; 147:14,17, 18; 151:12, 18; 155:11; 156:5, 8; 157:8 bit [3] 20:9; 28:13; 101:4 bladder (1) 123:14 blanket (1) 43:8 BNA (4) 13:1, 5; 44:22; 118:18 Bob [3] 46:22; 110:22; 122:3 body (1) 10:22 Boggs [1] 47:12 book [1] 130:7 books [4] 19:7; 43:20; 45:14, 19 boss [31 99:3,17; 101:13 Boston (11 129:12 Boulevard [ 1) 2:8 carriers 111 131:13 Bowles (3) 124:18. 19; cart (I) 54:22 125:16 , carving (21 147:5. 10 Boy (1) 154:5 case (275) 5:3: 6:22. breached (11 85:19 7:3, 6. 14:8:5: 12:13: I break [8] 80:8; 81:9; 15:21; 16:3. 8; 17:4, 6. s 128:15, 18, 20; 129:2, 7, 10, 16, 18; 18:21; 5; 156:3 22:9, 14. 15, 18: 23:16: breakdown (3] 75:18, ! 26:20: 28:12: 29:9. 16. 22; 76:5 19,21, 22: 30:5; 33:2: breakout (1) 77:22 34:12, 19: 35:5; 36:3; breed (1) 83:22 38:11, 13:39:4. 10. 11. I brief (21 17:6, 8 | 15; 41:2: 43:20: 47:4; i briefs (6) 13:17: 16:9. \ 49:16, \ 12. 18:57:16; 115:21 : 19, 21. 22: 50:1.4, 5, 7, I bringing (21 84:1; ! 9. 10, 15, 17; 51:4, 19, I 87:18 \ 20; 53:3. 6, 7. 8, 9. 1 1; j Brio (32) 5:10, 21; 6:8, ; 54:5, 7. 8, U, 12, 14, ! 18; 7:2, 21; 8:4, 12. 22; j 16. 21: 55:1, 2. 5, 9, 16, 23:15; 33:5; 72:8; 18; 56:2. 10, 18, 19; 75:10, 19; 76:6, 21; 57:1, 19. 21:58:1, 5: 77:3; 79:8; 100:21; 59:2, 5, 6, 10, 18, 20; 113:21; 114:2; 127:12; 60:22; 61:4, 9: 64:18, 139:1; 144:18; 149:11, 19, 22: 66:8, 9, 15; 12; 150:2; 151:22; 67:4, 8: 68:17; 152:6, 9; 153:15; ! 70:7, 10. 22; 71:2. 5, 155:15 1 11; 72:1. 7; 74:12; 75:6, | broad (2) 39:9; 137:6 19; 76:8: 79:1,2, 3, 6, broaden (1) 111:8 9, 19; 81:12. 20, 21: Broadway (1) 2:20 82:2, 5: 83:8, 10. 14, brochures (1) 102:12 15; 84:10. 15, 16, 21; broken (21 77:2, 20 85:1, 12. 16; 86:12, 14. Broome (11 128:1 17; 87:4, 5, 6, 9, 18. 20; Brown [21 134:21; 89:8, 19, 22; 90:2, 6, 138:7 15; 91:5, 10, 17, 18, 20, budget [7] 19:6; 71:16; 22; 94:4, 14; 72:1, 2, 4, 5; 73:2 95:1,20;99:12, 14, 16; budgetary [2] 71:7; 100:3, 6, 8; 101:2, 8; 72:9 107:12; 110:4, 5, 6, 16, budgets (3] 70:15, 19; 17, IS, 19, 20; 114:13, 71:13 14, 16, 17, 20, 21, 22; Budding [3] 2:2, 13, 19 115:5, 11, 14, 16, 18, building fl| 128:2 20; 116:1, 2, 5, 9, 19; business (61 38:13; ; 117:4, 11; 120:22: 84:11; 103:15, 16; | 121:2, 8; 122:19; 123:4, 104:9; 134:6 13; 124:3, 4, 10; 125:17; 126:20; 127:1; -c- 130:1, C.E. [I] 2:10 cakulus [4] 59:22; 86:13; 87:2, 12 California [2] 2:15; 35:15 call [6] 32:15; 38:8; 81:21; 114:22; 139:9; 145:14 calling [11 83:2 calls [2] 114:12; 120:20 cancer [1] 123:14 Cantor [1] 108:5 capacity [21 5:17; 48:4 caps [11 25:21 capture 11] 5:12 car [5] 63:22; 64:13; 74:22; 77:15; 154:2 CARDILLO [11 2:17 carefully [1] 28:10 Carolina (1] 130:19 carried (1) 78:6 5, 6; 131:21: 132:1; 134:2, 3, 13, 20, 21; 135:4, 7, 10, 14, 22; 136:7, 12, 22; 137:4, 14, 15, 21; 138:5, 7, 8, 17, 18, 21; 139:10; 140:3, 12, 13, 21; 141:2, 6,8, 13; 142:15, 22; 143:4, 5, 8, 14, 15, 21; 144:16; 145:1, 3; 147:11; 148:19; 152:6 case-by-case [2] 78:11, 21 Cases (1) 84:19 cases [172] 7:7, 11. 12; 9:14; 11:21; 12:2: 13:6, 8. 16; 16:4, 16; 19:18; 21:9; 23:11, 18; 24:5, 10, 15:25:15. 17; 26:19, 21; 27:17; 28:2: 29:2; 30:8; 34:20; 37:22; 38:17; 39:7; 40:1, 18:41:7, 10; arose to cases WATER PCB-SD0000066502 Depp of Thomas M. Bistiine (Monsanto v Aetna) August 10, 1993 Cr.56353.Q 42:13, 18: 43:6: 45:1, 4, 143:2 8. 12. 16. 22: chemicals [1] 115:4 46:6, 22: 48:1, 2, 5: chemistry [1] 27:2 49:1; 51:4; 52:11, 17; Chesley [2) 40:19, 20 55:4; 56:4: 67:5; 70:19; chief [l)2S.-5 72:3, 5, 8; 73:9; 75:18; children [1] 88:21 76:6; 77:3; 78:15, 16; Chocolate [2] 140:15; 79:13; 82:1; 83:8, 19, 143:16 21,22; 84:1, 5; 90:13, Christie [ 11 2:7 18, 22; 901, T, 9; chronic [1| 140:17 98:10, 12; 100:20: chronologically [ 1 ] 101:5; 104:7, 21; 114:1 106:22; 107:10; 108:12. | Circle [1) 2:5 13: 109:11, j Circuit [2) 108:7; 130:2 12. 14, 21; 110:2, 9, 12; I circulated [1] 57:12 112:3; 113:13; 114:6; | circumstance [3] 115:9; 118:15; 123:20; ! 89:21: 95:22; 140:4 127:11, 12, 15, 16, 20; circumstances (10) 128:1, 3, 6, 9. 19; 23:10; 55:20; 57:9; 129:4, 6, 10, 11, 14, 16, 58:3; 76:2; 79:5; 86:3; 21, 22; 130:4, 12. 21; 90:7; 97:10; 131:17 131:1, 3, 15, 19; 132:5, City [3] 128:8; 143:1, 3 18; 133:1, 2, 7, 12. 16: city (1) 129:22 134:4, 14; 135:1: \ civil (3) 19:19: 47:21; 136:14; 137:3, 10, 11; 105:10 138:3. claim (8) 43:6: 51:10; 10, 22; 139:1, 6, 11, 13, 85:15, 18; 88:14, 19. 16, 17; 140:2. 7, 10; 22; 89:1 142:10, 17, 21; 143:11; claimed (1) 134:6 144:17, 18, 19; 148:18; claims [12] 21:22; 149:17; 152:5, 6, 10; 51:15; 114:8:115:1; 153:8 123:5, 8; 135:10; catalogue (2| 130:8; 137:13; 139:18; 143:1; 132:2 144:6 catch (4| 40:22; 41:1; class (2) 114:8; 143:6 156:4 classes [1] 14:6 category [5] 56:14, 16; clauses [1] 96:21 67:1; 75:10; 153:7 clear [51 27:17; 92:19; cattle (1) 134:8 126:16; 145:7; 148:5 caught [1] 154:5 clericals (1) 59:3 causation |2) 141:3, 5 clerks (1 ] 59:4 caused |2) 85:18; client [8] 28:17; 39:6, 131:15 22; 66:13; 107:17, 19; caution [1) 147:2 155:3 center (2) 61:15: 63:15 clients [1] 112:13 cents [21 62:7, 11 cluster (1) 127:22 CEO (1) 135:17 Coast [3] 139:8, 15, 17 CERCLA [21 42:18; coating [1] 134:7 47:11 coauthored [1] 43:5 chair [9] 109:8, 11, 13, Coded) 10:16 15, 16, 18, 19; 110:18 code [31 10:19; 11:7, chaired [1| 109:9 12 challenge (1 ] 28:4 Cohen [2] 152:13, 14 chance [2] 90:2; collected [1 ] 150:5 113:13 college [1] 103:8 chances (2) 87:4; 91:6 colloquy [2) 148:13; changed [1] 63:6 150:4 changes (1) 21:4 Columbia (2) 103:7; characterization [1] 105:6 96:1 coming [1] 79:18 charge [4] 60:8, 19; commenced [1] 7:11 66:18; 83:8 commensurate [1] charged [3] 59:17; 58:16 66:6; 125:16 comment [4] 17:8; charges [51 62:10; 40:2; 148:16; 151:6 74:2: 116:20; 118:5; commentaries [2] 125:13 13:7; 44:21 Charleston [1] 124:21 commented [11 39:12 Chemical [1] 131:6 commenting [11 20:1 chemical [51 9:12; comments (1) 34:10 114:10; 115:6; 138:1; committee [27) 14:1; 15:18, 21; 16:3, 8, IS; 17:10, 11, 13, 15, 17, 18, 19, 20; 18:5, 10, 12, 15, 18, 22:19:8, 16, 19, 22: 20:3; 21:2 committees (11 24:18 common [2] 11:20; 12:1 communicate [1] 35:3 communicated [ 1) 135:18 communicating [2) 28:16; 71:20 communication [1] 27:18 communications [2] 27:20; 150:8 community [1] 59:21 companies [9] 12:14; 48:12, 15, 21; 83:4; 118:9, 12, 21; 138:15 Company [51 2:3, 10, 16, 22; 155:3 company [44] 27:21: 30:8; 34:21; 35:7; 38:8; 39:21: 48:18: 49:15; 51:4; 53:10; 59:7, 12; 66:16; 82:1, 8, 19, 20; 84:3; 86:4; 87:19; 95:2, 10; 98:14; 99:9; 115:19, 20; 118:4, 12; 119:2; 127:16; 130:14; 135:17; 138:5, 17; 139:7, 11, 14; 141:11, 18, 21; 142:13; 143:22; 144:15 Compensation [1] 2:10 competence [51 11:13, 14; 12:10, 11; 113:16 complaint [1] 96:18 complete [2| 33:11; 125:4 completely [11 100:2 complex [61 58:1: 109:12; 110:2, 3; 113:13; 114:12 complicated [51 60:13; 106:22; 107:12; 110:8, 18 component [1] 63:12 components [1] 100:1 compound [11 123:15 computer (4] 25:11; 26:18; 32:12; 33:14 computerized [3] 33:10, 11; 66:10 concentrated [11 127:18 concepts (1] 103:17 concern [2] 5:11; 34:5 concerned [3] 7:21; 29:3; 33:15 concerning [21] 5:20; 21:12, 17; 29:2; 32:3, 12; 34:9; 37:10, 14; 38:2; 45:3; 61:2; 96:10; 103:12:117:19; 119:11; 120:3; 148:22; 149:6, 10; 151:20 concerns [11 20:12 concluded [1| 142:11 concluding [1| 157:2 condition [1) 85:18 conduct [15[ 10:10, 12, 19. 20; 11:3, 7. 13; 12:10, 11:86:5: 98:15; 121:3; 136:8; 137:3; 144:2 conducted [2) 142:2, 4 confer (1) 27:17 conference (1) 120:19 confidence [4] 55:21; 56:7; 94:1, 6 ' confined [1] 115:4 conflicts [1| 42:16 confusion |1| 156:5 conjunction [1) 38:10 connection [17] 5:10, 21; 6:8; 8:12, 22; 21:9, 20; 27:2; 29:14; 42:15; 49:21; 101:9; 126:19; 127:5; 132:18; 134:20; 151:21 Conrad [1] 108:4 conserving (1 [ 33:20 consider [34| 36:22: 38:21: 45:3, 16: 46:5, 18: 53:1; 57:7. 16: 61:7: 62:13, 20; 63:3, 7, 8, 11. 14:64:5, 9, 12, 17; 65:4; 66:1; 68:7; 79:9; 89:6; 93:21; 94:22; 95:2, 9; 96:19; 97:5; 110:1; 138:11 consideration [3] 38:14;63:21; 147:13 considerations [ 1) 39:5 considered [10] 39:17, 18; 43:17; 45:7: 50:22; 85:9: 86:2; 101:20; 113:19; 118:12 consisted [1] 22:5 consistency [2] 25:13; 33:1 consultant [5] 8:17; 34:7,12, 18 consultants [5] 25:16; 34:4; 36:1; 67:1, 4 consulted [1] 48:3 contact [1] 121:12 contain [1] 13:6 contained [1] 114:11 containing [1] 20:17 containment [3] 20:12; 21:2; 23:3 contains [1] 32:16 contending [1] 136:21 content [3) 26:8, 9; 146:17 contested [2] 70:19; 114:13 contesting [1] 51:16 contest [9] 12:5; 34:9; 38:3; 49:9; 68:19; 69:1, 8, 12; 82:13 continuation [1] 156:11 continue [3) 104:15; 128:17, 19 continued (1) 142:14 - aDuuiuancx -w 4 cn ' continuing [! | 26:11 control [20] 11:21: 21:8. 13; 25:12: 32:13. 33:15; 34:5, 6. 9: 35:19; 36:7. II, 18: 37:1! 48:6; 54:9: 71:2. 14. 72:10; 76:19 controlling [21 35:9; 37:1 controversial [ 11 114:13 conversation [ 11 149:19 conversations [ 10| 101:14; 102:17. 20: 119:7, 12: 146:14; 148:7: 150:17: 154:19. 21 convince [2] 20:4; 52:4 cooperation (2| 138:20; 156:13 coordinator [1) 130:15 copies [2] 31:17: 66:17 copy [8| 17:8; 30:13. 16: 31:11: 61:17: 62:9 21; 63:18 copying [12] 61:16. 20:62:3, 5. 8:63:10; 66:17; 76:5; 77:19, 22. 78:5 core (1) 33:22 Cornell [1] 47:12 corporate [14) 14:6, 7: 16:4; 18:3: 21:7; 22:10. 15; 24:20; 25:4, 8: 36:9. 64:7, 10; 112:6 correspond [1) 89:10 correspondence [2] 145:13; 149:10 Corroon (1) 2:2 Cost [1) 21:2 cost (30| 23:2; 28:14: 34:5, 6, 9: 36:3, 6. IS: 37:11; 38:9: 48:6: 61:19; 62:18. 20:63:4. 7, 8, 10, 12, 18: 68:8: 98:13; 153:10, 14, 15, 20; 154:1,2, 6, 13 costs [76] 20:13, 17; 21:8, 13; 24:4; 25:12; 28:10; 29:3, 14; 32:13: 33:16; 34:3; 35:10, 19; 36:11; 37:1; 49:5, 11: 50:18; 51:3, 20; 52:1. 10, 20; 53:20; 54:2, 3. 19; 55:7; 58:14: 59:20: 60:1; 61:12, 16; 64:1, 12, 16; 65:5, 11; 66:2; 67:14, 16, 17; 68:9, 10, 13; 69:22:70:8, 13, 16; 71:5, 9, 14; 72:10, 13; 76:5, 19; 78:10; 79:20: 81:11; 84:12; 90:4; 103:13; 105:17; 106:1; 117:19; 118:8, 16; 132:9; 149:11, 17; 150:1; 151:20; 154:15: 155:7, 14 Council [21 13:10. 13 From catalogue to Council WATER PCB-SD0000066503 /vetiavom Depo of Thomas M. Bistiine (Monsanto v Aetna) August IQ, 1993 0.56353.0 council [ 11 25:8 counsel |1151 13:15; 14:12; 16:4; 21:7; 22:11: 24:20:25:4; 26:3: 27:15, 17, 20. 22; 28:2. 8,9, 11, 15; 29:3, 4. 10,11, 15, 18:30:2, 6, 7: 33:21; 35:19, 20; 36:9, 11; 37:1: 38:6. JO, 12. 16: 39:14. 20; 47:20:48:16, 17:49:17; 50:14. 18; 51:18:52:6, 15:53:17; 54:10. 14:55:2,7,9; 63:2: 65:15; 67:9, 20; 68:6, 11; 69:18; 70:11; 72:12, 15; 73:10, 16; 74:13. 15, 21; 76:4; 78:1. 14: 85:5; 93:15; 94:6: 98:5; 99:3, 4, 17; 102:13. 18, 20; 105:20; 107:14. 15. 16, 19; 109:20; 115:10, 14; 116:5: 117:8: 119:20, 22; 120:8: 121:17, 20, 22; 124:10: 130:11, 22; 131:21; 135:6, 16, 18, 19; 143:18; 152:5, 6, 9; 153:7, 11; 155:12, 20 counseling [1] 112:7 counteroffers [1] 97:3 counterproductive [1] 39:14 country [11) 30:8; 39:8; 62:19; 64:20. 21; 84:20: 85:4, 6; 107:8; 108:3; 139:19 County (3) 128:1, 11; 137:18 couple [5] 12:21; 35:13; 40:11; 70:21; 134:22 . course (6) 9:16:16:21; 26:19: 99:20: 103:15: 118:17 courses (2) 103:10; 105:5 court (13| 42:/J; 52:4, 16:53:5, 18; 76:10, 17; 77:5; 117:16: 127:21; 138:20; 140:21 courtroom [2j 94:21; 135:10 courts [31 13:19; 20:5; 144:14 cover (1) 151:3 coverage (4) 114:18; 121:16; 122:5; 127:6 covered [1) 95:5 covering [1) 106:20 create [7] 51:13; 99:10, 18; 100:11, 14; 101:3, 9 created [2) 102:3, 5 creation [2] 43:15; 120:6 credible [3) 35:1 criterion [1| 49:14 cross-examination [1] 28:7 Crum [11 102:15 Crummy [4| 106:2; 111:5, 16; 112:3 Cummings [1) 143:16 current (2) 27:3; 119:14 Currently [1] 129:19 currently (1) 119:16 Curtin [1] 153:13 customarily [1] 60:10 cut [1) 147:4 -D- D-e-R-i-g-h-t [1] 122:3 dairy [1) 134:6 Dallas (1) 137:19 damage [3[ 94:17, 18; 154:3 damages [1) 98:14 damnum [2] 96:17, 21 danger (1) 16:19 Dangerfield [2] 137:17; 138:10 database [7) 32:16; 33:3, 5, 10. 11, 12, 20 databases [2[ 120:7, 10 date [7) 5:11; 32:2, 4; 95:13, 17; 157:11 dates [1] 156:7 Daubert [1] 17:6 Dave (1 ] 47:12 David [2] 145:12; 153:13 day (8) 68:16; 73:8, 9, 19; 80:10; 115:9; 156:11 day-to-day [8] 7:1; 18:19; 27:16; 99:13; 114:6; 115:17; 116:3; 127:14 de [1] 90:21 deal [11) 11:22; 19:10; 46:11:47:4, 11; 48:14, 15; 51:8; 57:2, 3; 66:19 deals [1] 27.-5 dealt [1] 3<5.<5 debating [1] 148:4 decided [2] 111:21; 136:7 decision [4) 66:10; 82:11; 94:5, 8 decisionmaking [2] 27:16; 105:11 decisions [4] 71:12; 82:17; 90:13; 115:17 declined [1] 119:21 deem [1] 81:10 deep [1] 122:21 defect [1] 51:7 defective [1] 51:11 defend [13] 49:19; 50:20; 70:10; 78:15; 84:7; 85:16; 86:4, 12, 15, 19; 87:19; 114:19; 122:18 Defendant [1] 118:14 defendant [5] 51:16; 52:21; 137:20; 138:5, 8 Defendants [3] 7:13; 156:13, 22 defendants [3] 40:17; 137:21; 138:3 defended [2] 51:18; 52:11 defending (5) 72:7; 82:5; 130:13; 149:11, 17 defense (491 9:11, 14; 12:21; 13:15; 14:8, 11; 20:13, 17: 21:8, 13; 25:17; 33:15; 34:20, 21. 22: 35:10; 40:1: 49:5: 50:9, 18;51:3, 6, 18, 20:52:1, 10. 20:53:20; 54:1, 3; 58:14; 64:21; 72:13; 81:11; 84:12; 86:7; 94:14; 98:13; 103:13; 105:17; 116:18; 118:8; 123:6; 127:14; 136:17; 142:5; 143:4; 151:21 definition [1] 71:16 degree (9) 9:17, 19, 20, 22; 10:2, 3; 47:22; 60:10; 68:1 degrees (1 ] 46:21 Delaware (21 2:2, 3 DelDeo [4) 106:2; 111:6, 16; 112:4 delicatessen [1] 104:12 delve [1) 146:18 demand (41 88:7; 96:5; 136:2; 144:3 demands [4] 32:18, 20; 34:1; 97:3 demographics (3) 88:2; 89:17; 90:8 demonstrated (1 ] 86:6 denied [1] 144:11 Dennis [1] 108:6 department [7) 15:14; 26:15; 44:8, 13; 113:17; 117:1; 131:7 depend [71 57:9; 64:18; 65:20; 68:2; 97:8, 12; 110:13 Depending (21 62:15; 99:4 depending [7J 41:17; 55:20; 59:5; 62:6, 12; 67:21; 74:19 depends [12] 61:8; 62:2; 64:6; 67:8; 71:16; 74:17; 75:5; 79:22; 89:8; 97:18; 100:3; 101:14 DEPOSITION [1] 3:6 deposition [20) 6:2; 7:19; 8:2, 15; 62:9,10; 64:4; 76:17; 80:9; 102:12; 146:11; 150:6; 151:1, 5, 8; 154:11, 16; 155:19; 157:3, 10 depositions [2] 73:12; 145:5 DeRight [2] 122:3, 9 describe [7] 4:20; 16:1; 22:5; 25:1; 32:11; 49:13; 81:18 describing (2) 32:15; 91:14; 110:7: II5:IS: 132:13 138:19 description (4) 68:15, i discrete [ 11 / 9:12 18; 73:21; 74:12 I discuss |8| 12:4: 92:8: design (21 51:7, 10 I 99:3; 117:7; 120:21: designated (1) 157:4 | 137:6; 140:5; 146:7 destroyed [1] 134:6 i discussed [ 16] 11:6: detail [71 67:21: 68:2, 12:3: 21:18; 27:12: 4, 19; 72:2, 4; 117:9 40:10: 69:21: 81:9; detailed [3] 72:1; 87:14; 99:1; 117:8; 75:22; 96:10 120:4; 137:8: 138:12; detailing (1| 138:13 148:1; 150:1; 153:10 determination (31 discussing [4| 34:8; 54:15; 66:6; 71:10 i 73:10, 12: 102:21 determine [32] 16:5; Discussion [8] 14:19: 22:16; 23:11; 31:17,22: 28:21: 37:7: 58:11; 49:5; 54:3; 55:6; 56:1; 79:15; 104:17; 111:3; 66:2; 67:14, 15, 17; 156:2 68:7, 19; 69:11, 13, 22; I discussion [11) 2J:2.- 70:4, 11; 74:1; 79:1; ! 27:1; 38:20; 40:5, 16; 81:15; 85:9; 91:20; I 41:7; 58:18:80:4; 92:2; 95:14; 111:8; i 119:16; 151:19; 152:8 116:17; 117:14; 133:11: ! discussions [37] 12:8; 141:19 40:14: 41:13; 43:3; determined [3] 57:5; i 96:11; 99:15: 101:12: 142:14; 144:15 103:2: 115:22: 118:1: determining [19] 119:2, 9; 120:5. 13. 15: 38:14, 21; 40:5; 49:18; 121:10, 15; 122:10; 53:1; 56:15; 58:21; 124:2; 144:5; 149:6, 9, 60:1, 8; 64:1; 65:5; 14, 16, 18, 21; 150:22: 70:10; 71:18; 78:9; 151:3, 20; 152:1,3, 4, 89:11; 91:11, 12; 93:15; 11; 153:21; 154:8; 118:4 155:6, 14 develop [2] 50:6; disease [1] 85:14 138:20 dismiss [1] 144:11 developed (21 21:21; dispersed [1) 129:8 140:16 dispose [1] 137:2 developing [1] 25:16 disposed (31 123:20; development (2) \ 130:3: 142:4 13:11; 19:17 disposition [ 11 123:3 devoted (2) 68:17, 21 dispute [5] 114:18; diagnosed [1] 140:17 121:16; 122:5; 127:6; dice [1) 94:21 154:6 died [1J 140:18 disputes (1) 118:16 differ (1) 31:4 ' distinction [3] 147:3, differently [11 92:12 11:148:4 difficult [41 52:3; 58:2; distinguish (1) 88:20 78:12; 79:18 distinguishing [ 1J dioxin [4] 26:20; 115:1, 97:15 5; 123:9 distributed (1) 20:7/ dioxins (21 114:11; distribution (1| 31:9 120:9 document [5] 4:18, 21; direct [l] 120:14 5:1; 66:10; 77:6 directed [5] 103:19; documentation [3] 105:6, 16; 106:12, 14 66:16; 67:19; 68:6 direction (1) 115:18 documents [12] 7:13; director [1] 17:22 32:19; 33:22; 59:6, 8, disbursement [2] 11; 61:16; 62:4, 10; 74:16, 17 115:19; 118:20 Disbursements [1] doesn't (61 37:3; 50:8; 132:12 53:8; 57:2; 69:5; 107:15 disbursements [7] Dolan [5] 101:14; 68:13; 74:14; 76:3; 103:3; 106:3, 4 77:2, 19; 78:1; 132:11 dollar (1) 89:9 discern (1) 99:8 dollars [41 50:9; 56:20; disclosure (2119:20; 126:5, 11 20:21 Don (1) 47:18 discontinued (1) 143:9 doubt [11 69:76 discovery [13] 19:21; Doug (1) 46:12 20:20; 25:13; 32:16; Dow [21 17:4; 46:16 33:1, 20, 21; 34:1, 14; draft [2] 17:8; 115:21 council to draft WATER PCB-SD0000066504 Depo of Thomas M. Bistline (Monsanto v Aetna) August 10, 1993 Cr.56353.0 drafting [2) 16:9, 11 dramatic (1) 71:5 draw (21 20:9; 14S:5 DR1 (1) 12:19 dropping (1| 156:21 du (2) 46:12. 13 Due i 11 156:5 dues (11 24:21 Duesenberg [3] 101:13; 103:2; 144:5 duly [1] 4:4 duplicating [1] 78:7 duplication (2) 61:12, 13 duplicative [1] 125:10 duty (31 38:16:114:19; 122:18 Dylan |1| 106:2 dynamic [ 1 ] 39:13 - E- E-l (6] 3:7; 4:7, 8, 16; 5:5; 8:7 early (4) 21:21; 40:21; 117:4; 140:18 easily 111 45:21 East (I) 143:8 easy (31 52:17; 86:18; 90:22 economic [1] 38:13 education [7] 13:20; 26:11; 36:21; 103:22; 104:20; 105:4, 15 educational [4| 9:17, 20; 10:6; 103:17 effect (3] 83:15; 84:16; 87:1 effective (21 28:7; 71:14 efficiencies (11 23:3 Efficiency (1) 20:18 efficiency (61 20:12, 16; 21:1, 5; 30:10; 32:22 efficient (2| 28:8; 61:16 efficiently [2] 29:11; 59:14 effort (3) 28:13; 36:2; 57:2 efforts (5] 20:4; 88:13; 95:19; 115:19; 148:7 eight (21 123:5; 131:18 EIL (1) 2:16 ELAINE HI 2:7 election (1) 18:6 Electric (2) 46:10; 48:3 elements (1) 99:7 Elliott (1) 47:18 Ellis [2J 152:19, 20 embodiment (1] 11:17 embody [1] 10:21 embraces (1) 10:18 emotional (1] 104:14 employ [1] 49:4 employed (41 34:12, 13; 35:18; 38:15 employee [6( 140:5, 12; 143:15; 146:11; 147:12, 15 employees [3] 115:3; 137:17 enable (11 99:22 encourage [ 11 39:20 encouragement (1) 87:15 encourages[1] 83:22 end (1) 62:18 ended [3] 111:13; 135:10; 136:1 ending [2] 156:9, 16 engage (21 92:21; 121:17 engaged [51 13:14; 14:11; 68:16, 20; 115:10 Engelhardt [51 119:3, 9, 13, 17; 120:5 England (11 2:6 enjoyable (11 113:11 ensure (1] 71:14 ensuring (2) 29:14; 70:16 enter (1) 113:20 entered [21 102:15; 123:19 entertained [1] 83:12 entertaining (11 94:5 entitled [2] 4:18; 148:1 entry (2) 69:4; 75:9 environmental [2] 47:2, 10 equipment (1) 67:11 escapes [11 46:15 ESQ [51 2:1,4, 7,11, 17 Esq [1] 4:19 essence [1] 32:16 essential (2) 93:5; 96:4 established [2] 77:4; 120:11 estates (1) 112:6 estimate [9] 71:17; 72:12; 125:15, 19; 126:18; 127:9, 17; 132:17, 21 estimated [1] 114:8 estimating [1] 137:1 estimation [1] 38:11 estopped [1] 136:20 Ethics (1) 10:16 ethics [3111:7, 13; 42:16 evaluate [2] 102:1, 14 evaluated [1] 100:12 evaluating [7] 25:16; 39:3; 40:9, 17; 100:13; 101:8, 20 evaluation (8] 21:22; 40:1; 54:1; 56:3; 70:9; 96:5; 99:11; 101:5 event [2] 6:12; 51:14 Events [1] 118:18 eventually [1] 114:8 everybody [2] 26:19; 64:22 evidence (6116:21; 19:16, 18; 25:15; 141:18; 144:6 exactly (3) 145:4; 146:3; 152:7 EXAMINATION [1) 3:2 examination [ 11 151:15 examined (1) 4:5 examining 111 147:6 example |8| 30:4, 9; 51:5:52:12: 56:18; 62:4; 66:10: 84:6 examples [l] 19:15 exceed (1) 131:9 exceeds [1] 131:4 except [2] 75:13: 90:15 exceptions (1) 79:2 excessive [21 125:3; 132:9 exchanging [11135:8 excluded [11 90:16 excluding (2) 90:18, 21 excuse [11 101:6 executive (13) 14:1; 15:18; 17:13, 15, 17, 19, 20, 22; 18:5, 10, 12, 15, 18 exercise [51 92:10, 13, 22: 98:11; 142:2 exhausted [1] 37:9 Exhibit [6] 3:7; 4:7, 8, 16; 5:5; 8:7 Exhibits [1] 8:14 exhibits [1] 157:4 exist (3) 31:20; 33:5; 43:10 exists (2) 11:9; 30:18 expect [1J 67:2 expectation [2] 38:7; 56:20 expectations [2] 85:3, 5 expected [4] 5:6; 8:11, 21; 156:10 expended [61 5:8; 6:3, 16; 8:12; 29:15; 125:22 expenditure [8] 57:7, 8; 65:21: 68:3, 5; 75:2: 82:18; 83:5 expenditures [9| 29:8; 56:12, 15; 63:22; 64:14; 66:1; 67:19; 117:14, 16 expense (8) 49:19, 20; 53:4; 82:4; 86:11; 118:2; 119:18, 22 expenses [251 6:15, 18; 11:22; 53:2; 71:17; 74:21; 75:1, 3, 8, 9, 16; 76:1,17; 77:5, 6, 9,12; 79:19; 118:13; 120:6; 121:13, 15; 131:12; 148:17 expensive (6( 52:3; 84:19, 21, 22; 86:14; 137:2 experience (21) 10:8; 36:8; 37:2; 55:18; 56:11;58:17; 62:12; 67:22; 72:3, 6; 96:21; 103:6; 104:5, 8; 106:11, 21; 107:3, 22; 108:14; 113:13; 114:2 experienced [1] 47:14 expert [47] 4:21; 5:3, 13,17,19:6:9,13,15, i 20; 8:4. 17; 9:9, 18: ! 10:10; 16:21; 20:19, 20: i 28:5: 64:10; 66:5, 7. 8; 1 67:20: 75:14: 99:5; 110:7: 144:7. 22: 145:2, 11, 22: 146:8, 12, 14, 18. 22: 147:1, 6. 12, 18, 22; 149:3, 7; 151:4, 9; 153:22 expertise [28] 6:J: 9:10; 10:7, 9, 11; 46:5, 7, 19, 21:47:4, 11. 17, 22; 48:12, 22; 49:10; 57:15: 103:11, 20; 104:6, 13; 105:7; 106:7, 10. 13. 15, 17: 154:14 experts (8) 19:16; 61:2, 6, 9; 64:19; 66:22: 108:12; 120:8 Explain |1] 113:22 explain (3) 57:10; 83:10; 114:1 explanation (2) 32:20; 41:3 exploration [1) 101:6 explored [1 \ 34:14 exposure (22) 38:9; 39:21, 22; 49:15; 50:2; 53:16; 85:13; 95:10, 11; 98:14; 114:9; 115:1, 6; 123:9, 14; 138:17; 139:6, 18; 142:21, 22; 143:1, 15 exposures (1) 27:3 expression (1) 95:6 extended [1| 148:13 extensive [4] 90:20; 101:3; 110:7; 144:5 extent [14] 20:12; 30:18; 43:9, 16; 44:12; 47:3; 83:1; 105:10, 21; 106:9; 136:12; 148:5; 150:5; 155:2 external (4) 59:7, 11: 66:16; 67:9 extreme (1) 39:13 extremely (2) 79:17; 94:17 -F- face [3] 12:15; 30:9; 51:4 face-to-face [2] 145:14,15 faced [3] 39:6; 51:17; 84:4 faces (I] 49:15 facetious (2) 105:1, 3 facing [1] 13:18 fact [91 31:22; 37:14; 64:4; 72:4; 79:18; 93:11; 110:21; 146:10; 156:20 factor [9] 50:21; 52:7; 55:14; 89:2, 3; 90:11; 91:4, 8; 94:7 factors [71 50:2; 52:22; 53:13; 69:20; 70:13; 81:8, 10 facts [11 91:1-1 factual [I] 6:10 failure (2) 16:20: 90:16 fair [91 53:21: 54: lo 55:9: 94:9. II. 19: 101:15: 151:7. 14 fairly (31 22:10: 57.0. 22 faith [!] 70:18 fall [3] 75:11: 134:19: 150:17 familiar |6] 27:22: 48:18: 71:10; 99:13: 115:16: 137:15 familiarity [ 11 60:2 family [2] 140:13. 19 Farm [ 11 102:15 farm [ 11 134:11 farmer 111 134:5 fashion [ I) 138:21 favor (T| 85:17: 86:7: 123:7, 8; 134:5: 141:1 5 favorable 11 ] 128:13 favorite (I) 16:22 February (3| 114:5: 145:6, 8 Federal (1 ] 2:13 federal [3) 13:19; 127:21; 140:21 feed [1] 134:8 feel (1)59:5 feels (2) 92:12; 148:9 fees (14) 5:17; 59:15: 66:6; 68:10, 12: 74:3. 4 106:1: 121:14; 125:16: 126:18: 127:4; 131:12 fellow (31 46:10, 11, 14 felt [3] 56:1; 113:11: 137:1 field [9] 9:7. 18; 10:4. 9, 10, 17; 12:7:21:6: 45:1 fight [11 156:21 file (11 7:7 Filed (1| 129:17 filed (41 7:5: 39:7; 129:15, 18 files [5] 30:13:31:21: 43:10; 133:11 final (5] 82:13; 101:22: 102:2; 127:2; 135:11 find (61 35:1; 58:20; 69:19; 92:4, 8; 130:9 finding (1) 51:11 findings (1) 136:19 finds [2] 92:5, 21 fine [I] 114:1 finest (I) 108:2 finished (1| 128:16 firm [221 56:9, 10; 57:3; 61:12, 15, 20: 62:12, 21; 63:15: 66:13. 78:5; 111:21; 116:6, 8; 122:1; 124:17, 18. 20: 125:16; 126:19; 127:5: 130:18 firms (2) 21:20: 130:13 First (8) 2:22: 27:14; 34:11; 70:21; 114:6; 141:14; 154:18: 155:18 From drafting to First WATER PCB-SD0000066505 fa. .'wn, Depo of Thomas M. Bistiine (Monsanto v Aetna) August 1770 i_r.30000.u first |271 4:4; 8:7, 9; 15:20. 21; 22:12. 17; 29:13:52:2: 77:7; 94:16; 107:3; 109:8, 9, 11. 13: 110:21; 114:4; 141:4, 19; 142:1; 145:2, 5, 6, 12, 20; 153:21 first-rate (1) 108:19 first-year [ 1 ] 52:14 __ five (51 53:15; 110:12; 128:8:137:9, 10 flights (11 156:4 Floor [11 2:9 flow (11 27:20 focus [5] 11:12; 19:3; 21:11, 15:39:10 focused [4] 10:4; 19:17; 20:3; 24:7 focusing (2) 19:19: 88:16 folks (11 108:10 follow [5] 49:7, 10; 150:18; 155:12, 20 follow-up (1) 129:1 follows (2) 4:5; 151:18 forget (2) 7:9; 122:2 forgetting [1] 108:10 form [31 11:10; 73:2; 101:17 forma |1| 92:10 formal [ 1) 36:21 former (2) 115:3; 137:16 formulating [1( 20:1 Forster (1) 102:15 Fort[l) 104:12 forth (31 5:4; 8:14; 157:1 forwarded [1] 116:11 found (2) 57:13; 111:10 founded (1) 105:12 Four (1) 14:3 four [51 16:16; 109:7, 9: 111:18; 137:10 fourth (1] 109:16 frame (1) 140:16 framing (1) 33:21 Francisco (1) 2:15 Frank (21 47:19, 20 frankly [1] 36:8 free (11 44:17 frequent [1] 126:6 frequently (61 11:5; 12:3; 21:18; 41:9; 46:15; 98:16 Fried (21 47:19, 20 friendliness (1) 113:18 full [1) 94:6 fully (11 33:11 function (8) 13:16; 18:14; 54:7; 83:5; 105:8, 20; 108:15; 146:6 functions (2) 58:15, 16 fundamental [1] 103:16 future (1) 156:8 G-i-s-t [11 153:1 gain [11 70:22 gained (2) 107:3, 21 gaining (2] 103:21; 106:21 gains [1J 105:22 Galveston (11 140:21 gamut (1) 94:18 . gather (1) 12:4 gave (8) 7:16; 30:22; 31:3, 5; 38:19; 42:7; 44:2; 113:13 generalize (11 132:4 generated [1| 68:10 geographic (1) 127:19 George (11 108:18 germane (1) 10:17 giggling (1) 135:8 Gist [11 153:1 give (51 4:22:19:15: 42:21; 89:8; 130:7 Given (1) 150:20 given (141 12:13:21:6; 32:18: 35:21; 36:17; 39:16; 42:16: 43:4; 60:22; 69:13; 94:3; 98:22; 99:9; 156:13 giving (4) 28:15; 104:8; 129:2; 147:3 Glen [21 134:21; 138:7 goes (11) 10:15; 59:22; 60:10, 18; 70:6; 78:22; 88:3, 22; 90:9; 91:4; 93:17 Goldenthau [21 152:21 graduated (1) 108:19 Graff (1) 124:19 great [6] 47:4, 11; 51:8; 57:2, 3; 73:8 greater (1) 68:1 Green (3] 122:1; 123:1; 127:5 Greensboro (1J 130:19 grievous [11 50:11 gross (31 119:17, 20: 141:18 ground (1) 151:14 Grounds (1) 8:8 Group (1) 131:6 group (12) 13:14; 21:11, 15; 37:17; 46:20; 47:2, 14; 62:9; 87:16; 131:11; 137:22; 138:1 groups (4] 13:10; 19:1, 9:20:10 Guam (2) 129:12; 130:1 guess (10] 34:10, 17; 38:8; 53:5; 110:3; 130:1; 139:12; 143:18; 146:12; 148:5 guide (21 10:12; 11:8 guidelines (14) 11:3; 64:3, 5; 78:17; 79:4; 117:19, 22; 118:3, 8, 11, 22; 119:5, 12; 120:3 Gulf [3] 139:8,15,17 guy [11108:18 -G- -H - half |1| 7:15 Hall (71 77:5, 8; 78:3; 152:15, 16; 153:2. 4 hand (4) 50:10; 57:1; 76:11; 84:10 handle (4) 75:16; 99:22; 107:10; 146:8 handled [5] 12:12; 56:4; 59:9; 122:9; 139:19 handles (1| 47:11 handling [13] 9:13; 30:8; 59:8; 70:7; 100:5: 114:6, 15; 115:9, 18: 131:2; 139:5, 11; 148:17 handouts [1] 31:14 hands-on j 11 48:4 happening (2) 71:19. 21 happens (2) 71:2; 107:18 happenstance (1) 134:9 happiest (1) 144:14 hard (11 97:15 hard-pressed [ 1 ] 80:6 Hardage [21 9:1; 101:2 Harper (H 108:5 harsh (1) 151:11 haven't (3) 98:5; 103:3; 154:18 head [3] 100:2, 4, 18 heading [21 5:5; 8:8 hear |3] 17:1; 19:6; 92:18 heard [11 23:1 hearing (1) 19:1 Heath [1] 2:10 heck (1] 58:8 held (1) 147:22 Helms [1] 130:18 help (1] 56:6 helped (2) 32:22; 103:16 helpful (91 12:14; 80:5; 92:4, 5, 6, 7, 8; 98:16, 17 helping [2] 115:19, 21 Henderson (1) 41:8 herbicide (1) 114:10 Herrington (1) 2:12 hierarchy [1] 110:13 high (61 47:22:50:15, 17,19; 90:3: 94:17 high-visibility [2] 113:14; 114:14 higher [4] 51:21; 52:19, 20; 62:17 highest (1) 95:2 Hill (1) 46:11 historically (1) 85:1 history [5] 90:13; 91:3; 95:17; 97:16; 138:13 holding [1] 9:8 Home [1] 102:15 home [1] 33:8 hope [1] 111:11 hoped [2] 111:7 horrendous [1] 75:13 horse [1] 55:1 hotel (21 74:22; 77:17 hotels [2) 63:22: 64:13 hotly (2) 70:19; 114:12 hour (1) 41:17 Hourly (1) 74:9 hours [6] 41:17; 58:6. 7;68:17; 73:20: 112:1 Houston (4) 52:15; 62:16, 17; 140:20 human (1) 111:12 hundred [1] 134:22 hundreds [ 1J 50:8 -I- I'd [11] 30:16; 44:4; 58:7; 61:21; 93:22; 100:7; 111:11; 130:6: 132:1; 133:10; 145:20 I've (16] 5:12: 9:15: 25:5, 13, 15: 35:13; 54:12; 102:9; 110:9; 127:13: 129:15: 131:18, 20; 143:5; 149:16: 152:4 i.e. (11 9:1 ideas [1] 71:4 identification (2) 22:9; 74:5 IDENTIFIED [11 3:6 identified [15] 4:8; 7:20; 8:1; 9:3; 29:7; 34:15; 36:12; 50:21; 52:6; 53:1; 91:8; 129:5, 9; 143:13; 153:11 identify (12) 4:16; 6:18; 9:7; 35:12; 36:2; 45:5, 10; 46:9; 139:4; 152:1, 9; 154:21 identifying [1] 33:22 identity [4] 28:4; 88:1, 16; 91:2 immediate [1] 15:3 impact [12] 51:2, 22; 52:9; 71:5; 82:7; 86:12. 16; 87:8, 10, 11: 136:14; 137:1 impacts [1] 83:16 impermissible [ 1 ] 154:20 implemented [1] 27:19 implications [1] 53:8 importance [5] 28:4, 7, 9; 34:17; 107:1 important [71] 28:17; 34:14; 38:5, 12, 14; 39:9; 57:19, 21; 58:13, 20; 59:16; 60:2, 9, 20; 61:1; 63:21; 64:9, 11, 17; 65:4, 7, 12, 17; 66:1; 67:3, 18; 70:16; 71:8; 74:14; 81:11; 84:3; 85:16:86:4; 87:21; 88:1, 5, 10, 20; 89:12, 17, 22; 90:7, 12; 91:8, 10, 13, 19; 92:1, 13, 21; 93:8, 14, 21; 94:6, 22; 95:8, 12; 96:2, 7, 20; 97:4, 5, 10, 11, 18; 98:6, 8; 99:5, 21; 105:22; 113:19 t ancDruancc y* uooc-'cet > imposes (1| 119:20 impossible (11 138:13 impressed (11 113:16 impression (1| 52:2 improper (11 36:5 in-house (24) 14:5, 26:14, 17, 19: 27:15: 28:14:33:3. 7. 17; 35:19; 43:22: 44:1. 7: 46:13; 48:15. 17; 54:10. 13; 62:8, 11: 65:2; 66:13; 107:16; 125:11 inappropriate (1 j 29:21 inattention [lj 135:9 incident (2] 26:22; 128:4 incidental (2) 75:1, 7 include (51 8:16; 38:18, 20; 48:6; 77:13 included [3] 31:13; 40:4: 44:5 includes |1| 17:21 incumbent 11 ] 30:2 incurred (14) 8:16. 21: 21:8:29:3; 37:1: 55:7: 68:10; 70:14. 16: 71:5. 18; 74:21; 149:17; 151:21 indicated (2] 73:19; 138:15 indirectly (11 75:15 individual (16] 22:20. 22; 35:18; 39:10; 41:15: 57:13, 15; 67:22; 68:1, 21; 76:8; 77:10; 79:22; 80:1, 5; 92:5 individually [1] 79:10 individuals (7) 46:4. 16; 80:4; 123:9; 152:3; 153:6; 155:13 industries [1] 48:17 industry (21 48:16. 19 inexpensive (2) 86:18; 98:15 inform [21 66:20; 67:13 informality [1| 73:7 information [25] 12:6. 9; 13:20; 16:19; 22:13: 23:9; 61:1; 69:12: 70:3: 88:9:96:4, 10, 13, 15. 20; 97:18; 98:3, 6, 22; 99:1; 100:1:101:19; 150:5, 14; 151:11 infrequent [1] 126:16 ingredients (1) 49:18 inherently (1) 70:22 initial [31 141:15; 149:19; 151:19 initially (3) 115:15; 140:22; 145:11 injured [1] 143:7 injuries [3] 50:4, 11; 61:8 injury [51 58:5; 114:9: 115:1, 7; 123:9 inquired (1) 136:4 inquiry [51 69:18; 146:13, 15; 147:6; 148:9 inside [191 13:15:16:4: first to inquiry WATER PCB-SD0000066506 to*snmm Aerbau** Depo of Thomas M. Bistiine (Monsanto v Aetna) August 10. 1993 Cr.56353.0 26:3; 27:20, 21, 22: 28:2, 9. 15:29:3, 11: 30:2. 6:38:6. 12, 15; 59:14; 66:4; 134:8 insights [1| 12:12 instance (3J 77:7; 133:18: 156:14 instances |6] 5:9; 126:6, 7; 131:19; 132:3: 133:14 ~ instantly (11 122:13 instruct [5] 146:20: 147:1; 154:14: 155:5, 17 instruction (3] 150:19; 154:22; 155:21 instructions (1) 155:12 insubstantial [3] 88:11, 12:89:22 insufficient (1) 69:14 Insurance (3) 2:10, 16, 22 insurance (16] 25:5; 48:11, 14, 18, 21; 114:18; 118:4, 9, 12, 21: 119:2; 121:16; 122:5: 127:5; 131:13; 153:11 insurers (1) 154:7 intellectual [lj 20:5 intelligent (1) 52:18 intend (6) 4:22; 5:16, 19; 6:17; 9:4; 146:18 intended [21 76:11; 117:19 intends [11150:12 intent [11 151:1 interacts [ 1) 16:20 interest (10) 19:4; 20:8: 42:17: 47:8; 56:2; 99:9; 134:11, 12; 142:15; 144:15 interested [1| 13:11 interesting [1| 111:10 interests [2) 42:17; 93:20 interject [21 146:9; 150:3 intermediate [ 11 95:3 internal [31 44:13; 78:5; 118:11 International [1] 2:16 interned [1] 106:2 interpretations [1] 92:15 interrogatories [2] 32:17, 18 interrogatory [1] 115:21 interview (1) 55:22 introduced! 141:17 investigate [2| 132:1; 133:10 investigation [11 55:19 invitation [4] 14:13, 16; 18:8, 9 invited [6] 14:21, 22; 15:2, 7; 17:18; 112:9 invoke (1) 77:11 invokes (4) 65:13; 67:19; 77:8, 13 involve (12) 18:6; 20:15: 21:17; 59:11; 60:14; 78:16; 81:22: 83:5: 107:2: 113:1; 128:6: 142:21 involved [67] 7:20; 8:3; 14:8; 27:15; 28:1; 29:9; 39:4, 13; 42:3; 47:3; 49:16: 51:2, 22; 53:7, 16; 57:9; 59:8; 64:19; 65:21; 67:22; 68:1, 4. 21; 69:17; 72:7; 73:9, 15; 74:20, 22; 75:6, 13, 15; 78:19; 79:20: 80:4; 81:20: 82:4, 16; 84:12: 94:10; 97:14; 99:4, 13; 100:6; 104:11,21; 105:5; 107:11; 114:7, 16, 21, 22; 115:17, 20; 116:3, 18; 120:16; 124:5; 126:17; 128:10; 132:19; 133:6; 134:17; 139:11; 143:1; 148:6 involvement [5] 21:16; 22:20; 100:9; 120:12, 14 involving [8) 59:6; 66:15; 82:17; 84:11; 106:22; 128:4; 139:6, 18 Irrespective (1) 117:12 issue [37] 16:19, 20; 20:4; 21:3, 10, 14; 23:15; 24:4, 9; 25:14, 15; 26:2, 22; 35:2, 9, 17; 36:22; 40:9; 44:12; 45:15; 51:2, 16, 57:11, 19, 21, 22; 84:17; 94:7; 105:16; 141:4; 144:10, 13; 147:16; 149:10; 150:1; 151:20; 155:14 issues [51] 13:18; 16:5, 17; 18:22; 19:13; 20:10, 15, 21:21:7, 12, 17:27:3, 12; 28:1; 30:9; 31:7; 34:15; 36:11, 13; 37:10; 48:7, 9; 49:16; 50:3, 21; 51:2, 22; 52:2; 53:16, 22; 61:4; 65:4, 6; 68:1; 81:22; 90:14; 91:18, 19; 99:4; 103:12; 104:21; 107:1; 113:1;115:16; 120:21; 136:20; 137:6; 138:12; 154:12, 13; 156:17 item [4] 60:11; 75:21; 78:4; 87:10 itemization [2] 74:21; 76:4 itemized [2] 75:3,17 items [6] 53:15; 73:22; 117:17; 118:16; 125:12, 13 -J- Jack [1] 140:13 Jacobs [1] 108:6 Jamail (2) 52:13; 102:18 January [1| 127:13 JFK (1 ] 2:8 Jim [21 46:12:108:4 job (8) 30:6; 83:7; 104:11; 106:6; 113:10, 11, 19 Joe (2) 52:13; 152:18 John [2] 121:10; 140:19 join [ 1 ] 47:6 Jones [1] 152:20 Journal [1) 128:11 judge [7] 71:3: 75:8; 90:12, 13; 91:2, 3: 141:2 judgement [1) 80:3 judgment [7] 39:21; 78:14, 18; 79:20; 80:7: 144:12; 148:8 JUDITH [1) 2:17 junior [1| 60:15 Junk [11 17:2 junk [1] 16:22 juries [1] 142:3 jurisdktion (21 39:8; 85:1 jurisdictions [3) 39:8; 51:12: 96:20 jury [41) 25:16:34:4, 7, 12. 18, 19, 21, 22:35:3, 4; 36:1; 50:14; 51:10; 67:4; 82:8; 85:2, 16; 86:7; 87:7, 11; 89:13, 16, 18; 90:8; 98:7, 11; 101:6, 7; 102:10:134:4, 9; 135:4, 6; 136:13, 16, 19: 140:22; 141:4, 20 justification [1) 141:22 justified (11 68:22 justify [1| 68:5 -K- keep [81 29:18; 38:6, 12, 16; 45:20; 59:12; 89:3 keeping [4] 82:2, 3; 141:14 Kentucky [1) 130:8 kinds [8] 12:1; 23:18; 31:7; 46:22; 78:15; 97:14; 107:21; 110:9 knowing [1] 28:4 knowledge [5] 9:7; 48:20; 95:18; 105:22; 113:12 knowledgeable [1] 80:1 KRAMER [4] 2:11; 17:1; 79:14; 150:20 Krchma [6] 15:7, 9; 47:1, 8, 10; 152:8 Krummrich [1) 143:8 -L- lack [5] 84:2, 9; 86:5, 6; 138:19 laid [11 755:5 large [33] 17:20; 26:18; 46:13; 56:18; 59:6. 11: 62:4; 66:15; 70:19: 76:6. 18:83:21: 84:12,21: 100:8; 106:22; 107:2: 108:12; 109:12: 110:1. 3, 8, 18; : 114:12: 115:2. 18: ' 127:20; 128:6: 129:10; 133:11: 139:8 largely [1] 78:14 ' 1 larger (2) 85:1; 100:6 i largest (3) 129:18; I 140:1, 6 Larry [11 152:21 , last [7] 26:1: 32:8: I 41:13, 16: 72:16:87:10: i 156:11 late (11 40:21 latter (1) 6:22 laughing (1) 135:8 1 Law (11 13:1 law [461 9:19, 22; 10:2. 3; 13:7, 11, 20; 15:13; 19:17; 22:14; 26:15; 37:2, 3; 44:8, 13; 46:13; 47:19; 48:18, 19; 52:5, 15, 16; 56:21; 58:6; I 61:15: 63:15; 66:13; i 103:22; 104:1, 15; i 105:1, 2, 4, 9, 14, 22: 108:19; 113:12, 17: 116:8; 117:1; 122:1; 124:17; 130:13. 18 lawsuits [3] 84:9; 85:3, 22 lawyer [34] 10:16; 14:5; 28:16; 47:7, 10; 55:16, 21; 56:3, 7, 9, 17; 60:4; 62:8; 65:2: 69:5, 7, 11, 14, 16; 77:13, 15, 17; 83:20; 87:16; 97:1; 108:8, 9, 19; 122:2; 125:3; 140:20; 155:1 lawyers [37] 10:13; 11:8; 12:4; 19:22; i 46:20; 48:11, 14, 21; 54:5, 7, 12, 15, 20; 55:8, 18; 56:1, 11; 58:15; 59:17; 63:14; 79:20; 87:17; 93:19; 94:1; 102:19; 105:20; 107:7; 108:1, 6, 11, 15; 121:12; 152:22; 153:1, 3 lead (4) 56:9; 102:18; 107:14, 15 learn [2] 23:5; 144:22 learned (3) 23:8; 45:3, 16 Learning (1) 107:10 learning [2] 9:8; 107:9 leave [11 149:21 leaving [1] 113:5 Lee [1] 104:12 legal [381 13:14; 14:22; 26:11; 27:1; 29:20; 34:2; 37:4; 42:16; 43:2; 46:4; 57:7, 11, 16; 59:15, 20; 60:1; 62:18; 64:1; 65:11; 68:16; 1 OQCDWZanx VV -`rv:: 69:22; 73:18 , 22 ; 78:10: 91:18, 19: 104:20; 105:11. 12. 15: 106:10. 107:5: 111:9: 121:6: 124:9: 144:9: 150:1 legitimacy [ 11 20:5 LE1MKUHLER [5-] 2:4; 4:6, 10: 14:18. 20: 17:3: 22:1. 4: 28:19. 22 30:16. 20. 21: 31:15: 32:1: 37:6.8: 43:7.13. 14; 44:4. 16. 20: 58:10. 12; 72:16, 19: 76:15. 20: 79:16:80:8:81:7: 83:13: 93:1: 104:18: 111:2.4:128:14.18, 22; 146:16: 147:4, 16, 21: 148:12. 20: 150:9: 151:10, 17; 153:16, 19: 154:18; 155:9, 22: 156:3. 16; 157:9 Leimkuhier (27) 3:4: 4:12: 5:1: 6:10: 8:6: 9:10; 22:8: 24:15: 27:9: 32:5: 41:11: 49:3; 58:2. 68:9: 73:2:85:11: 97:9' 106:19; 112:15: 121:13 123:18: 125:20: 129:19 136:11; 145:9; 149:2: 150:16 lengthier 111 130:7 lengthy [I) 71:22 lesser [11 68:1 lethal [1] 154:3 leukemia [2] 139:10; 140:17 level [19] 13:19: 49:19. 20:53:2, 4:55:11; 64:16:67:21: 68:3; 71:5, 17: 73:6: 75:2: 82:4, 17:86:11; 95:11: 97:12: 117:16 Liability (3| 2:10: 13:9 13 liability (24| 13:12. 16. 18, 21; 14:9, 12:51:14. 16: 95:2; 107:7: 108:1, 8, 20; 109:5, 7; 110:6, 19; 112:13, 19, 22: 113:12; 114:7; 136:20, 21 liaison (1) 16:16 Liberty [7] 114:18. 19; 116:12; 117:18; 118:11; 119:3; 122:17 library |2) 37:5: 57:6 Life [21 104:2, 4 likelihood (12| 82:6: 86:22:87:14. 15:88:4: 89:1; 90:10, 19: 91:21: 93:17; 95:6; 98:10 limit [1] 150:12 limitation (3 J 150:6; 151:2, 10 limitations [3] 58:5; 144:10, 12 limited [21 8:16; 150:21 line [1| 78:4 line-by-line [ 11 117:5 From insights to line-by-line WATER PCB-SD0000066507 Basic Sysaons A^pdoans Depo of Thomas M. Bistline (Monsanto v Aetna) August 10, 1993 Cr.56353.0 lines (2) 27:17; 72:15 maintenance (11 120:7 list (1] 65:8 major (7) 9:11; 10:4, literally [1] 132:1 18: 11:4, 16; 12:17; literature [1| 120:7 109:11 litigated (2) 129:6, 7 majority (2) 131:22; litigating (4) 5:8; 139:16 51:13: 106:21: 130:11 man (1) 134:11 Litigation (3) 13:2: I manage (2) 114:5; 35:21:36:1 ' i 115:9 litigation (78) 4:22; I management (42) 7:2; 5:14; 6:6; 7:2. 20; 8:18; i 9:11; 10:4, 18; 11:4, 15; 9:5, 12; 10:5. 18: 11:4. \ 12:17:13:7; 19:10, 13; 16; 12:18, 22; 14:9. 12: \ 20:11:25:10: 26:3; 19:2, 4, 11, 14:20:11, 27:11, IS: 28:16; 29:2; 12, 16:21:1. 5. 6; 24:4, 32:3; 36:6; 37:18, 22; 20. 21; 25:2. 4. 8, 10, 38:5, 6; 42:13; 45:1, 4, 11:26:4, 6:27:11; 31:3, 8. 15:46:6, 21:48:1,2, 16:32:2, 3, 12:35:13; 4, 6; 71:20; 82:12; 83:7; 36:2. 6: 37:18; 38:7. 84:14; 99:14; 103:11; 19; 39:9; 46:20; 47:6, 131:11; 11, 13, 15; 53:18; 60:3; 142:19 61:3; 70:15, 17, 18, 21; managerial (I ] 139:2 71:13; 80:2, 6; 83:18: | managers (1| 47:14 87:14; 94:9: 103:12; | managing (10) 45:12, 107:10; 111:9; 112:5, 7; I 21:48:22; 54:10; 71:11 : 114:3, 7; 120:13; j 104:7,21; 108:12; 128:10; 153:12 i 114:3:116:3 litigations (2) 8:1; manner (5) 11:20; 129:18 63:20; 70:6; 83:4; living [11 12:5 141:17 Lloyds (11 2:6 manufacturers (2] locale [8] 62:6, 12, 15; 9:13; 20:6 64:6; 84:16; 89:18; March (1) 145:8 91:5; 93:17 MARK (11 2:4 locales (21 129:4, 6 marked (2] 4:6, 16 locate (1) 115:19 Marty (1| 47:13 located [5] 64:20, 22; mass 111 27:3 124:20; 137:18 massive (1) 51:14 location [3] 45:20; material (61 28:7; 53:3; 59:19 91:13; 99:10; 100:10; London (1) 2:6 101:16; 157:5 Lone (3) 128:10; materials (3) 43:5; 137:13, 17 44:5; 73:10 loss (1) 35:6 i mathematical (4] 92:2, lot (131 11:20: 12:5; ! 9, 22; 93:11 50:13; 51:6: 65:1; I Matter (11 5:5 70:18: 75:5; 76:16; I matter (19] 5:13; 6:10; 84:5; 100:10: 129:12; 10:7; 22:11, 17; 24:18; 148:3:150:4 56:1; 57:4; 58:13; lots 111 108:10 63:18; 65:14; 78:14; Louis (10) 41:22; 96:16; 99:7, 20; 114:15; 42:10, 22; 77:10; 128:8; 116:22; 137:2, 8 129:22; 134:21; 135:1; Matters (1) 83:5 136:15; 143:8 matters (21) 12:2; Louisiana (11 128:3 19:3; 20:17; 82:15; Love (1) 124:19 83:16; 92:8; 102:21; low (11 90:3 112:19, 22; 113:14, 21; lower (31 51:21; 62:18; 114:2; 146:17; 148:1; 87:5 153:10, 14, 15, 20; LSI [1| 36:12 154:1, 6 lunch (2) 80:8; 81:9 McDavid (3) 124:18, 19; 125:16 -M- meal (1) 74:22 machine (3) 61:14; 62:21; 63:14 magazine (1) 12:20 magnitude (1 ] 127:8 main [5] 13:16; 20:7; 28:1; 121:11; 143:3 maintaining [1] 20:16 Mealey (4) 13:2, 5; 44:22; 118:18 meals (1) 77:15 mean |18) 11:1; 24:17; 59:3; 60:5; 65:7, 15; 69:1; 89:15; 94:12; 95:16; 97:14; 101:11, 15; 118:7; 120:18; 153:15; 154:1,11 minimis (1 j 90:21 meaning [1] 109:18 minor (3) 50:5; 133:3, meaningful [1] 138:19 12 means [ 1 ] 33:20 minutes (1) 32:15 meant (21 69:8; 151:8 missed (1) 112:1 mechanism (4| 71:7; Missouri (l|42:/5 72:9; 77:1; 130:20 misspoke |1| 150:21 medical (3) 28:5; 43:5; Mister (1) 106:5 125:10 mock (3) 98:7: 142:2. 3 meet (2] 27:17; 150:12 I model (4) 23:10, 13. meeting (4) 145:14, 15, 17 15, 17; 149:22 moderate (2) 84:13: meetings (8) 12:3; 85:2 18:17,20, 21; 21:19; modest [1] 50:7 42:2; 120:19 modify [1| 147:21 Mel (1) 108:5 moment (13) 25:18; member (23) 13:22; 28:20; 36:15; 45:9; 14:2, 7, 9, 15, 22; 15:7, 46:16; 53:14; 73:18; 9, 15, 17, 19, 20; 17:16, 86:10; 103:5; 143:12; 19; 18:16; 22:10, 14, 144:17, 21; 156:21 15; 23:3; 24:16, 19; momentum [ 1 ] 70:22 41:21; 42:1 money (15] 39:4; 82:9, members (13) 13:20: 16; 83:6, 21; 84:1; 14:6, 7; 17:17, 21; 18:3, 87:17; 88:12; 90:6; 4, 9; 21:20:26:14; ' 106:22; 107:2; 134:19; 47:13; 135:6 137:12; 140:11; 142:16 Membership (1) 14:12 monitored (1) 117:16 membership [3] 14:4; monitoring [1] 43:6 17:14; 18:1 Monsanto [92] 2:3; memoranda [2] 57:12; 5:8, 21; 6:6, 7; 7:1, 8, 101:13 17, 20; 8:3, 12, 22; memorandum [3] 9:13; 14:22; 15:13; 99:18; 138:13, 15 23:7, 14; 26:14, 15, 20; mentioned [14] 27:8; 27:4; 28:3; 32:15; 36:3; 44:21; 53:6, 16; 46:18, 20; 47:6, 13; 85:12; 87:10; 98:5; 55:20; 59:14; 63:19; 103:3; 130:6; 137:14; 64:7, 10; 82:14; 85:14; 138:22; 142:18; 153:3 92:11, 20; 93:7, 10; merit (2) 84:2, 9 103:7; 113:4, 6, 9, 17; meritorious (1) 16:6 114:4, 19; 115:3; 120:2, merits (13] 22:19; 7; 121:7, 17; 123:7, 8; 23:12; 82:7; 87:1; 88:4; 127:14; 131:6, 11, 12; 90:3, 10; 91:6, 17, 22; 132:18; 133:15; 134:5; 93:18; 95:7; 98:10 135:7; 136:17; 137:20; Merrill (1J 17:4 138:8; 139:6; 140:4, 8, method [1] 23:10 9, 12, 14; 143:8, 10, 15, methodology [7] 49:4, 17; 146:11, 12; 147:12, 7, 8. 10, 13; 81:14, 18 15; 149:11; 151:21; Metropolitan [2] 152:5,6,9; 153:7, 11; 41:22; 104:2 154:7; 155:2,3, 15; metropolitan [1] 84:21 157:1,3,5 Mexico (31 119:17, 19 month [1] 7:15 Michael (1) 47:12 monthly (1) 78:4 Michigan (3] 134:4, months (11111:18 15; 138:4 Moore (1) 130:18 mid-level (2) 57:5,14 morning (3) 4:11; 36:5; middle [21 75:12; 81:9 156:16 Morris (2J 128:10; midway [1] 137:19 137:18 Mike [2] 131:2; 132:8 Mortensen (1) 2:7 million (11] 114:9; mortgage [1] 134:10 125:22; 126:22; 132:20; mothballs [1] 143:2 133:4, 15; 134:13, 15; motion (2) 7:5; 144:11 136:18; 141:1; 143:19 motivation [1] 104:15 millions [1] 56:19 Motors [5] 51:6, 7, 12; mind (101 29:18; 38:12, 110:6; 112:14 16; 39:21; 81:10, 20; move[l] 113:8 82:2, 4; 141:14 Ms [2] 106:4; 152:13 mindful [2J 146:10; Mullisdl 130:18 147:3 mutually (1) 157:11 mine [11 82:11 myelogenous [1] 140:17 myself [2| 66:20- 73:11 -N- N.W. (1) 2:5 name (4) 46:14, 15: 122:2; 124:18 named (2) 46:11 names [1| 155:13 narrow (4| 21:10, 14: 24:7; 147:5 narrowly (2| 20:10: 39:10 national |1| 130:15 nature (30) 11:9; 13:4: 24:17; 30:4: 40:13: 47:17; 48:12: 50:6: 51:5; 54:14: 55:6: 56:4: 58:1; 68:13; 82:3. 15: 83:4, 15, 19: 85:8: 86:1: 88:22: 101:8; 125:6. 14: 139:13; 142:10. 12: 144:6; 149:15 necessity (15) 5:7; 6:17: 27:22: 51:3: 52:1. 10:53:20:54:1: 64:12: 68:8; 71:9: 74:1: 78:9. 13; 91:16 needs (61 34:14; 38:4: 51:18; 67:11, 12: 70:10 negligence (1) 141:18 negotiate [21 120:20: 135:15 negotiated [1] 128:12 negotiation (3] 95:13, 16;122:7 negotiations [51 97:17: 120:16, 17; 121:1: 138:14 negotiator (2) 141:11: 143:22 Nevada [2] 119:19. 20 Newcombe [ 1) 108:18 Newport (2) 47:13: 131:2 nice (1) 137:20 Ninth (1] 130:2 Nitro [61 114:22; 115:3. 5; 123:3; 124:10; 125:17 nominal (1) 123:11 nonproductive (11 125:3 normally [1] 61:7 North (21 108:9; 130:19 northeastern [ 1 ] 137:18 northern [11 134:14 note [1] 156:8 notes (10] 99:14; 100:7; 101:12, 17, 19; 102:1, 16, 20; 103:1; 135:9 noticed! 85:21 Notwithstanding (11 48:20 Novel [1] J7.-/9 novel [6] 52:2, 4; 57:11, 18, 20: 58:1 lines to novel WATER PCB-SD0000066508 SOStC WwB AppjfJMBWM Depo of Thomas M. Bistline (Monsanto v Aetna) August 10, 1993 Cr.56353.0 NUMBER (I) 3:6 number (22) 7:10: 41:17; 55:22: 59:6, 11: 62:4:68:17: 73:20: 96:22; 97:13: 115:2: 127:20; 128:3, 7; 129:10: 132:6; 133:11; 134:13; 136:2, 9 numericaLJ 1] $:20 numerous [ i 1 132:2 Nussbaum (1) 2:4 -o - O'Neil |1| 106:2 O'Quinn (2| 140:19; 143:17 object (2) 83:1; 92:14 objection (1) 147:9 Objective [I] 78:16 objective (2) 78:8; 151:13 obliged |1| 150:13 observation |1) 107:13 obtain |4) 85:16; 88:9; 95:4; 138:19 obtained |4| 22:12, 13; 127:2; 151:12 obtaining (2) 28:6; 135:17 obviate [ 1J 90:20 obvious (4) 16:19; 69:7; 87:8; 90:19 Obviously (1) 99:2 obviously (7) 42:11; 46:13; 52:3; 74:6; 107:13; 113:8; 148:3 occasion [3 ] 122:11; 124:6, 13 Occasionally 111 25:3 occasionally [ 1 ] 42:2 occur |3| 12:1; 27:6; 55:20 occurred |1| 121:1 October |1| 135:2 offense |1| 76:11 offer [3] 5:17, 19; 9:4 offered (4) 113:7; 144:7, 8; 154:11' offhand (21 45:5; 98:19 office (7) 45:20; 67:10, 11; 110:10; 128:2; 143:3 Oh [41 108:9; 110:3; 122:13; 131:16 Okay [2] 43:13; 74:18 Oklahoma (2] 143:1, 3 Old 111 2:13 old [ 1 ] 154:4 older (1| 108:5 ones (8J 20:7; 27:8; 69:20; 90:16, 18; 91:8; 101:1; 143:13 ongoing (lj 20:21 open (2) 16:19; 38:16 openness (1) 113:18 operated [ 1 ] 62:21 operations (2) 18:19; 27:6 opinion (4) 50:13; 88:9; 132:8 opinions (4) 9:3, 5; I pages 11) 4:18 144:7; 148:2 | paid [161 24:21; 77:7; opportunity [ 11 35:5 I 81:15, 16:114:15: I opposed [7] 19:21; i 116:11, 15:126:19; 60:15:86:15, 17:88:21; 127:4; 130:21: 131:10: 109:16; 150:7 132:18:133:15; 140:2, opposing (4) 49:17; 6: 143:10 52:6; 53:17; 93:15 panel [3) 40:16, 19; Orange [10] 26:20; 135:3 114:7, 10, 17, 20: \ panels [3] 41:9, 16; 115:11; 120:13; 121:4, 142:4 8; 126:20 Paoli (11129:21 order [16] 7:10: 9:17; paper |1] 100:15 19:8; 40:21; 54:3, 19; paradkhlorobenzene 65:7; 66:2: 69:21; [1| 143:2 73:22; 81:11, IS; paragraph [ 11 8:20 106:20; 127:8; 157:6, 7 paragraphs [2| 8:10; orders [21 20:4; 157:6 9:4 organization [2] paralegal [7] 61:21; 18:20; 42:3 69:6, 7,11, 14, 17; organizations [S] 153:2 13:9; 24:16, 18: 41:20; paralegals [31 59:3, 4, 42:19 10 originally [1) 156:10 parameters [2| 38:21; Orrick [11 2:12 39:17 ought [2] 30:5 paraphenyl [1] 123:15 ourselves [2] 27:5; parsing [1] 146:12 72:14 Part [11 56:3 outcome [ 1) 38:8 part (30) 6:2, 22; 8:14; outcomes (3) 11:22; 15:18; 25:7; 30:6; 36:4; 94:11, 13 37:17:38:15; 39:21; outline [4] 30:11; 31:8, 58:18; 70:8; 73:8; 80:3; 12; 44:1 90:10; 91:16, 21; 99:10; outlined (11 154:12 100:13; 103:17; 116:2; outlines [3] 31:18; 119:22; 122:16; 125:21; 43:9, 16 133:13, 14; 137:21; outset (1) 71:1 139:16; 141:18; 156:22 outside [531 12:15; participate [10] 16:9, 13:15; 14:10, 12; 27:21; 11; 17:4; 66:5; 78:15; 28:8, 11, 15;29:4, 10, 108:21; 113:14; 122:7; 15; 33:21; 34:2; 35:20; 124:2; 133:20 36:11; 37:1; 50:14, 18; participated [5] 23:1; 51:5; 55:7, 8; 59:12; 43:15, 19; 120:15, 19 61:13, 17; 62:5; 63:2; participating (2) 65:15; 67:20; 68:6, 11; 18:22; 115:22 71:6; 74:15; 76:4; 78:1, participation [2] 16:6; 13; 99:3; 102:20; 18:5 115:10, 14; parties (61 95:13, 17, 116:5; 119:20; 120:8; 19; 96:11; 97:17; 121:17; 124:10; 130:11, 156:17 13, 22; 131:20; 146:15; partner [5] 57:3, 5, 14; 148:9; 154:10; 155:19 112:9 Overall (3) 112:20; partners [11110:20 129:16; 133:1 partnership [1] 113:7 overall [3118:1; 21:1; parts [5] 30:7; 84:19; 71:17 85:4, 6; 139:19 overbroad [1] 154:5 party [1] 135:8 overhead (1) 119:22 pass (1) 97:21 overseeing [1] 24:4 passing [1] 152:8 oversight [11115:14 pay (10) 61:15; 63:7, 9, overstaff [1] 54:11 13, 16; 77:5; 118:13; owed [1) 114:19 140:10, 11 oxychloride [1] 143:7 payable [1] 131:6 -P- payment [3] 116:12, 13; 121:6 P.C. (1) 2:18 p.m. [3) 80:9, 10; 157:10 Pabarue [1] 2:7 page (3) 8:7; 62:7, 11 Payson [1] 110:22 PCB [14] 32:15; 33:2; 127:14, 16; 129:6, 11; 130:7, 21; 131:14, 20; 132:18; 133:16; 134:16; 137:11 PCBs [2] 120:9; 134:7 . places [2] 53:12; 128:5 peers [1] 12:14 1 Plaintiff (11 2:3 pending [ 12) 16:4: : plaintiff [221 16:21: 61:9: 82:1; 127:20: 22:14; 50:12: 51:9: 128:6: 129:19: 130:2: 52:15.19.20:83:20: 134:14, 22: 136:15; l 85:5: 87:16: 88:10: 148:13; 155:10 I 94:15, 16: 97:1: 102:12: Pennsylvania [5] 2:9; I 123:10: 140:4, 20: 127:21, 22: 129:21: ! 141:1.5: 143:18; 144:S 130:5 I Plaintiffs [2| 97:13: pentachlorophenol 102:16 [1] 120:9 plaintiffs |31] 40:17: people |191 11:6:19:4; 53:12; 76:8; 87:16: 40:12; 46:9; 56:6: 67:1, 88:1. 6. 21:89:7; 5: 73:15; 78:14: 84:8: ; 102:19: 115:7: 123:5. 85:3, 21; 99:15; 102:17; I 13; 128:7,9; 129:10: 105:2; 113:16: 143:6: 1 130:1: 134:21: 135:1. 149:16:156:4 I 11, 16, 19: 136:5.21: per-page (1) 66:18 \ 137:16, 22: 139:9: percent [I] 112:21 141:17: 142:6, 7: 143:9 percentage [ 1) 112:17 planned (11 70:12 perfectly (1] 69:7 planning (2) 18:20: perform [5] 22:11; 28:13 122:11, 15; 124:6; j plant |6] 115:4: 146:6 137:17: 140:15: 141:22: period [12] 5:11; ! 143:8. 16 60:13; 75:14; 111:17; \ play (2| 39:5: 70:15 119:8, 10. 14: 127:15; \ played [1] 55:15 131:18; 133:4: 139:13; playing [1 ] 21:6 145:10 pleadings [1| 7:12 periodically [11 13:1 please [4| 4:17: 72:17: periodicals [1] 118:18 148:14; 152:1 permissible [1) 147:6 pluck [2] 69:3, 4 permit (1) 138:20 point (101 5:18; 29:18; person [9] 14:10; 44:14: 47:20; 59:2; 56:21; 58:6; 60:15; 88:17; 94:3; 110:14: 71:9; 74:5; 80:2; 134:1 141:6; 142:15 personal [3] 39:13: points |6] 29:1, 14: 48:20; 58:5 32:11; 33:14: 38:2: personally (4) 16:11; 129:12 49:2; 92:4; 121:5 policy (61 61:14; 63:13. personnel [2] 28:14; 16. 17, 19; 64:8 67:12 Pont [2] 46:12, 13 persons [1] 114:9 | pool [3) 89:13. 16: perspective (1 ] 40:17 90:8 pertains [21 9:12; portion [2] 74:3. 4 11:15 portions (11 34:22 PETER [1] 2:1 posed [1] 32:17 Peter [6] 30:16; 43:7; position (8) 20:2: 44:4; 110:20; 150:9; 44:10, 18; 82:21: 84:7: 153:13 106:16; 122:20; 144:9 phase [1] 7:5 positions [2] 156:18, phases [1] 117:4 22 Philadelphia [2] 2:9; positive [1] 11:22 127:22 possession (1) 20:6 phone [1] 58:7 possibilities [1] 95:4 Phyllis [1] 152:14 possibility [4] 84:5; piece [51 23:9; 88:19; 96:6; 136:19; 142:11 96:12; 97:18; 98:6 post [1] 143:3 pilot [4] 21:21; 22:5; post-judgment [ 11 23:6; 36:4 134:12 PLAC [33] 13:10, 16, post-trial [ 1) 7:5 22; 14:2, 4; 15:10, 15, potassium (1| 143:7 20, 22; 16:6, 12; 17:6, potential [211 24:9; 22; 18:1; 19:9; 20:2, 15; 35:6; 39:3; 49:15; 50:1. 21:3, 7,16, 20; 23:19, 2. 7, 13, 17:51:11; 22:24:1, 3,11,13,17; 52:19; 53:16: 56:19; 36:3, 13; 41:19; 48-16 86:16; 94:10, 16: 95:2. place [6] 64:22; 96:11; 3, 14; 138:17; 142:22 137:20; 144:14; 149:18, potentially [ 1 ] 51:13 21 Potter [11 2:2 From NUMBER to Potter WATER PCB-SD0000066509 Basic ^yctesiB App^nMuro practical (1| 12:12 practice [231 10:13; 11:6, 19; 12:15: 14:10: 19:4; 25:6; 37:3; 51:6; 69:18; 105:2; 107:5; 110:7; 111:8, 9, 10,21; 112:2, 5, 7, 8; 117:6 practiced (1 ] 52:16 practices [2] 11:20; 64:10 practicing [2j 10:10; 49:9 practitioner [1] 11:3 precise (3) 7:10; 29:5: 32:4 precisely |3] 10:3; 26:21; 134:10 predict [1| 71:6 predisposition [ 1 ] 91:3 prejudgment [1] 134:11 preliminary [1] 55:19 preparation [10) 43:19; 62:10; 110:15: 146:13: 148:7; 150:6. 22:151:4, 5, 8 preparatory (1) 103:22 prepare [5] 30:11; 37:3; 44:1; 71:22; 146:22 prepared [2] 31:8; 43:9 preparing (3] 62:8; 105:2; 151:13 prerequisites (1 ] 17:14 presence [2] 134:7; 139:8 present (T) 7:9; 16:5; 20:21; 137:16; 147:14, 17 presentation (3) 26:5; 37:20; 42:16 presentations [2| 36:20; 41:15 presented (3| 65:13; 90:14; 118:5 presently [2] 8:6; 15:15 presents [1] 50:11 press [2] 114:12, 14 presume [1] 84:7 pretty [2] 7S>.-2,' 87:8 prevail (4) 35:5, 6; 51:9; 144:10 prevailed [1) 144:13 prevent[1]148:10 previous (3) 97:2, 3, 20 previously [3] 97:16; 102:5; 104:19 Price [1) 102:13 pricing (1) 66:17 Primarily (1) 49:14 primarily [1) 134:1 primary [6] 34:17; 49:18; 52:7; 109:20; 141:11; 143:22 Primm [5] 33:8; 77:5, 8; 78:3; 153:2 of Thomas M. Btstline (Monsanto v Aetna) August 10, 1993 Cr.56353.0 principally |1] 19:18 | protection [1] 16:18 prior (9) 64:4; 67:22; | protective (2] 20:4; 114:2; 116:13; 121:2; 1 157:6 134:3: 135:11; 136:3, I protocol [11 131:8 II I proven (1) 12:13 priority [2] 22:12, 17 | provide [8] 13:17, 19; private (10] 6:8, 18; \ 27:19; 66:12; 101:19; 23:15; 72:8; 75:10; 117:18, 21; 155:13 .. 79:8; 149:11; 150:2; provided [11] 6:1; 151:22; 155:16 7:13; 23:10; 65:21; privilege [4] 44:17; 68:3; 73:20; 104:5; 145:19; 146:16; 154:17 118:3, 9, 21; 150:14 privileged (2| 150:8; provides (1) 10:6 156:17 providing [1] 74:6 pro [1] 92:10 | publication (1 ] 13:5 probable (1) 87:6 probe |1] 148:1 | publications |3) 12:20; \ 13;1,4 problem (11 87:6 i publicity (1| 142:12 procedure [3] 19:19; published [1] 12:19 47:21; 105:10 pulled [1] 96:22 procedures [1] 135:9 purchased [1] 154:3 proceed [1] 147:7 Purely [1] 18:9 proceeding [1] 148:10 purely [1] 18:8 process [7] 16:7; 21:1; purported [1] 143:6 91:15; 95:13; 105:11; purpose (1] 102:4 107:9; 129:2 purposes (1] 39:12 processor [1] 140:14 pursued [1] 22:17 Product (2] 13:9, 13 puts [1] 54:22 product (22) 13:12, 16, putting [1] 107:12 18; 14:9, 11; 39:6; 51:8; 84:6; 85:14, 18; 106:10; -Q- 107:7; 108:1; 109:4, 7; 110:6, 19; 112:13, 18, 22; 113:12;114:7 production (1) 32:19 products [3] 13:21; 108:8, 20 profess [1] 46:7 profession [1] 46:5 Professional [1] 10:16 professional [3] 41:20; 68:16; 113:16 professionals (1) 13:14 profit (5] 61:15; 62:22; 63:10, 11, 15 program (5] 10:6; 21:21; 22:5; 23:4; 36:4 programs (1] 36:5 progress [2] 7:6; 38:7 progressed [1] 135:5 project [5] 30:3; 56:11; 60:11,12.14 projects (4] 28:8; 60:3; 110:15; 125:8 prompt [1] 28:8 qualifkation [2] 150:10, 13 quality (9) 46:6, 19; 47:17; 48:13; 49:17; 50:14; 52:6; 53:17; 93:14 quantify [1] 138:18 question [34] 6:5; 10:15; 14:14; 20:9; 21:5; 29:6; 33:13; 54:6; 58:4, 9; 60:6, 7; 64:15, 16; 78:12; 83:14; 97:16; 109:17; 116:21; 117:6, 22; 130:10:132:16; 145:1; 150:11, 15; 151:2, 15, 16, 18; 153:18; 154:5; 155:10 questioned [1] 75:21 questioning [1] 148:11 questions [5] 90:17; 116:21; 146:21; 147:8, 10 quickly [1] 8:9 quote [1] 5:6 promptly [1] 156:7 proof ]1] 141:16 -R- proper 11] 151:2 R-e-a-r-d-o-o [1] 108:4 properly [1] 125:4 raise [1] 116:21 property (2) 20:6; raised [2] 145:12, 13 105:10 range [10] 35:6; 39:18; proposals (1) 101:21 41:14, 16; 62:7, 13; proposed [11] 19:20; 72:13; 123:12, 17; 20:2, 22; 55:11; 81:15; 137:6 83:11; 89:5; 93:3; rank [2] 65:7; 106:20 97:13; 100:14; 102:14 rate [2] 62:6: 74:9 proposition [1] 52:4 rates [2] 59 . 61:6 propriety [1] 20:6 reaction ]2j .2:16, 17 protected [1] 157:5 read [13] 5:4, 12; 8:9, protecting (1) 20:5 20; 9:4; 22:1, 3; 72:16, 18:118:15; 128:11; 148:12, 15 reading (I| 151:7 realistic (11 136:18 realm (1 ] 94:16 : ; Reardon [1] 108:4 reason (10| 50:12; 53:10; 57:12; 67:2; 87:18; 91:9; 111:5, 19; 121:7; 156:12 reasonable [67] 6:3; 8:13, 18; 9:2; 28:14; 39:19; 40:6; 49:5, 11, 20; 53:2; 54:4, 19; 55:7; i 56:12, 15, 17:57:8; 58:21: 60:2, 9; 61:15, 19; 62:14; 64:1, 5, 8; 65:5, 12:66:2, 11; 67:14, 16, 17:69:22; 70:4, 17; 71:15, 19; ' 79:1,21; 80:7; 81:12, ; 16; 82:22; 83:12; 84:18; 85:10; 86:17; 87:22; 88:13; 89:12; 90:6; 91:13, 20; 92:3; 93:16; 95:15; 96:6, 9; 101:18: I 105:17, 18; 116:19; 121:4; 122:14; 124:7 j ! reasonableness [33] 5:7; 6:16; 51:3; 52:1, 10; 53:20; 54:1; 58:14; 59:15; 60:18; 63:17; 64:12; 68:8; 70:8; 71:9; 74:1; 78:9, 13; 83:9, 17; 93:2, 12; 97:6, 22; 98:21; 102:1. 6; 103:13; 106:1; 117:15; 122:12; 141:12 reasonably [1] 146:17 reasoning [1] 105:11 reasons [4] 70:21; 107:1; 113:5; 132:13 recall [45] 7:15, 19; 23:8; 24:6, 14; 25:18; 27:9; 29:1, 5; 32:2; 34:8; 35:14, 16; 36:15; 37:12; 40:2, 18, 19; 41:3, 8, 9, 11; 42:8; 75:17; 76:9; 103:5; 112:15; 118:10, 20; 121:9, 13; 123:2, 18; 125:10; 137:5, 7; 143:12; 144:4, 20; 145:4, 5; 146:3; 148:21; 152:7; 153:9 receipts [2] 119:18, 21 receive [1] 72:20 received [4] 40:8; 72:11; 131:20; 136:6 recent [3] 34:18; 40:15; 119:9 recently [6] 42:15; 84:11; 128:9, 12; 137:13; 154:2 receptive [1] 136:17 Recess [1] 128:21 recessed [1] 80:10 recognize (1) 47:16 recognized [1] 122:13 recognising [1] 82:10 recollection 110| 22:8; 27:13: 37:9: 75:20; 117:8: 119:10, 11. 126:17, 22: 145:' recommend [2] 82:10, 12 recommendation j: j 34:11 recommended (11 84:14 recommending (1 ] 116:14 reconvene |1| 157:11 reconvened |1] 80:10 record [211 14:18, 19: 22:3: 28:19, 21: 37:6. 7: 56:5: 58:10, 11: 72:18: 79:14, IS: 104:16. 17: 111:2. 3: 148:15: 150:4: 155:22: 156:2 records [6] 19:8; 22:12: 76:7; 80:3: 101:4; 125:10 recur (11 81:22 reduction [10] 121:7, 14: 123:1: 124:14: 125:1. 7: 126:4, 8: 131:15: 132:5 reductions [4] 125:13: 131:20: 132:13, 22 redundant [1] 123:7 referenced [ I ] 155:7 references [ 1 ] 56:5 referred [5] 13:5; 57:14: 77:22: 102:9; 108:2 referring [4] 10:13; 37:21; 132:11: 149:18 regard [17] 28:17; 31:15; 33:13: 34:11: 40:3: 43:22; 53:15; 69:9; 74:14; 76:21; 115:13: 121:16:136:8, 10: 145:22: 150:2 regarding (2) 20:22: 118:21 regular [ 1 ] 27:20 reimbursable [2] 118:13: 119:18 reimburse (3) 117:20; 119:21; 120:2 reimbursed [2] 77:11, 16 reimbursement [2] 119:5; 131:12 reinvent [1] 30:2 rejected [1] 136:3 relate [3] 12:16; 106:17; 155:15 related [5] 37:17; 85:11; 101:16; 114:17: 137:6 relates [6] 4:21:21:12: 87:13: 104:6, 12. 20 relating [7] 20:11: 26:2; 45:1; 120:13, 22; 153:15; 154:6 relatively [7] 52:17: 84:13; 86:18; 123:11; 126:16:133:3, 12 released] 143:7 practical to release WATER PCB-SD0000066510 Apflkaum Depp of Thomas M. Bistline (Monsanto v Aetna) August 10, 1993 Cr.56353.0 relied [ 1 ] 45:11 reluctant (1] 87:19 remaining (1) 110:11 remark (1) 105:1 remarks (1) 157:2 remember (11) 7:18; 40:20: 41:4; 42:9; 46:14; 115:2; 119:1, 2, 6; 128:12- - responses (51 25:13; 32:20; 33:11, 12, 21 responsibilities (3] 15:19; 106:6; 115:13 responsibility [15] 7:1; 16:2; 18:18; 109:22; 115:15; 116:14, 16; I 117:2; 124:12; 134:4; ! 139:2, 5: 142:19, 20; 135:13; 141:7, 10; 143:20; 149:7 roll (1) 94:21 Rolodex (11 46:17 room (1) 67:9 Rosen (1] 2:18 round [2] 139:9; 145:5 Roy (11 108:4 Rule [71 3:7; 4:19: seeking Id 132:4 seeks 111 131:11 selected (4) 56:8; 89:14, 18; 135:4 selection [9] 15:21; 16:3, 8; 17:7, 10, 16, 18:18:22; 66:5 seller (11 139:7 seminar (35] 23:22: 1 i remote 11 ] 67:9 rental[1| 74:22 rentals J3| 63:22; 64:13; 77:15 repeat (1) 151:15 144:18 \ responsible [13] ' 18:19: 28:2; 100:5: j 116:7; 121:19; 124:3: j 125:17; 127:13; 129:15: 7:16: 19:20; 20:22: 155:5, 8 rule (2) 21:4:69:15 rules |3| 10:12: 11:7: 42:15 24:12; 25:6. 19; 26:1, 5; 29:2: 30:22: 31:1, 2. 4. 5, 9, 14:32:3, 7. 8. 12: 33:15, 18: 35:21: 36:9, 10. 13: 37:14; 38:3: i repetitive [1] 22:10 1 132:15; 134:1: 135:16: ruling (1) 91:3 40:16:41:1. 5:42:7, 21; Report (31 13:1, 2; I 143:5 run (21 94:18: 147:8 43:4, 22 44:22 I responsive (2) 34:1; report [3] 19:7; 99:16: 150:15 101:15 restatement [1] 20:3 , reporter [4] 22:3; restriction (1) 150:18 72:18; 76:10; 148:15 result (3] 34:2; 115:5; reporters [2] 77:6; 121:15 117:17 resulted [2] 23:4; reporting (1) 76. /7 i 115:7 reports [4| 18:21; 19:6; | results (8) 23:2: 52:19; 101:9, 11 1 95:3, 4; 98:7:101:6. 7; representation [ 11 i 142:1 52:18 I retained (1) 140:19 representatives (1 ] 119:3 retried [1| 141:2 retrospect [2] 55:13; represented (1) 56:2 58:19 representing [3] return (3( 87:7; 141:20; 42:17; 93:20; 155:2 142:6 reproduction [ 11 77:6 returned (10) 38:10; reputation {1[ 48:22 123:7, 8, 10; 134:5, 9; request |4| 43:8; 44:6; 136:19; 140:22; 141:4, 124:22; 157:3 15 requested |4] 22:3; returning [3] 111:13, 72:18; 124:13; 148:15 19; 142:5 require (13] 9:20; 55:1, review (14] 16:4; 2, 4; 57:2; 72:22; 74:20; 60:18; 65:12; 66:1; 75:22; 76:2, 3; 83:6: 69:6, 16; 73:16; 77:10; 89:7; 96:20 102:6; 116:12; 117:9, required (14) 49:19, 14; 124:9; 131:3 22: 54:8; 68:2, 4; 73:4; reviewed (3] 82:18; 74:8; 75:17, 18: 77:9; 103:4; 117:5 90:5; 122:21; 125:3; reviewing (8) 70:11; 131:8 73:10, 11; 116:7, 16; requirement [2] 14:8, 118:17, 20; 121:19 10 ' revise (1] 115:21 requirements [1] 14:4 revised [1] 42:15 requires (1| 131:5 revision [1] 20:2 research (6] 30:4, 7; revolving (2( 77:4; 57:7, 16; 110:15; 125:8 78:2 researching 11 ] S8;7 reward (1 ] 84:8 Reserve (1| 2:13 Right [6] 29:12; 51:1; reserve (1) 156:18 60:17; 68:14; 95:10; resisted 121 22:18; 144:20 23:12 right [13] 6:13; 8:19; resolution (2) 39:15; 11:4; 26:22; 36:14; 122:4 58:9; 89:5; 103:8; resolve (1) 116:21 104:22; 111:14; 129:5; respect (161 7:6, 7; 153:16; 154:20 8:3; 20:2; 23:2; 27:16; rights [1] 156:18 31:4; 34:15; 38:16; risk 14] 92:2, 93:11; 39:2; 113:1; 117:22; 131:11; 141:19 136:14, 21; 146:14; Robert (1) 15:3 151:12 role (161 26:3; 28:15; responding (1] 33:1 54:13; 55:15; 70:16; response (4) 136:6; 71:11; 105:9; 107:14, 146:4: 150:20, 21 16; 110:11; 133:22; rural (1 ] 84:22 -S- S-k-e-e-n (11 140:14 Sabatta [11121:11 safe [11 141:22 San [1] 2:15 Sansome (11 2:14 satellite [2] 67:10, 11 savings (21 34:2: 36:3 saying [2] 31:19; 154:19 scaled] 111:12 scenario (2) 95:1 schedule [1] 156:15 scheduling (2] 156:5, 14 Schomper (1) 46:12 school [131 37:3; 47:19; 52:15; 56:22; 58:6; 103:22; 104:1, 15; 105:1, 4, 14, 22; 108:19 science (1) 120:10 Sciences [2] 35:22; 36:1 scientific [8] 19:18; 20:20; 25:14; 28:1, 5; 67:4; 99:5; 120:7 scope [7] 111:8; 146:15; 148:9; 154:10, 15; 155:4, 19 scrutinize [1] 28:10 scrutiny [1] 29:5 search [1) 43:12 Second [2] 34:17; 108:7 second (8) 29:9; 109:15, 18, 19; 110:18; 114:16; 155:19; 156:1 second-guess [1] 79:19 second-in-command [1] 56:21 secret [1116:18 Secretaries [1] 59:4 secretary [1] 59:10 section [18] 8:10; 19:3; 24:20, 21; 25:2, 4, 6, 8; 26:6; 31:4, 5, 16; 32:2; 35:13; 38:20 sections (1) 19:2 securities [1] 110:19 seek [4] 9:17; 63:6; 126:7; 131:15 seminars (28) 23:19, 21:24:1, 3, 8:25:3, 5; 26:10, 11, 14, 17:27:7, 10; 31:16; 35:8, 14; 36:12, 16, 18; 37:10, 21; 38:20; 40:8, 11; 42:4; 44:1, 7 senior (4) 28:16; 57:3; 60:14: 83:7 sense (5] 50:8: 72:11: 81:13: 88:7; 99:8 separate (6] 10:19: 31:8: 78:4: 88:18; 138:16; 141:4 separated [1] 141:3 separately [2] 138:6; 140:5 September [4] 26:2: 32:8, 9; 40:15 serious [7] 51:20; 54:8; 55:1, 2; 56:18; 79:13; 94:4 seriousness [3] 51:9; 54:14; 89:1 served (2) 58:15, 16 service [71 61:17: 62:2; 65:20; 66:17; 68:3; 73:20; 74:6 services [8] 59:21; 61:12, 20; 62:18; 65:22; 66:9; 73:21; 130:22 session (3) 36:5; 156:20 sessions (1) 64:4 setting [1] 144:17 settle (13] 41:2; 49:22; 50:16; 84:15, 21, 22; 90:6; 95:20; 134:13; 136:7; 137:2, 22; 144:16 settle-or-trial (1] 94:8 settled (13) 23:12; 39:15; 52:5; 122:4; 124:5; 127:1; 133:11; 137:9, 13; 138:6; 139:21; 141:6; 143:18 settlement [106] 8:21; 9:14; 21:17, 22; 22:17; 23:5; 24:9; 36:4; 37:11, 15; 38:3, 4,11,17,22; 39:3, 11, 19; 40:9, 18, 22; 41:7; 48:9; 81:16, 19:82:10, 11, 21; 83:9, 11, 17:84:13, 17; 85:10; 86:13, 17; 87:2, ODBoraa&a- tv set 5.9. 12.22. 88:7: 89:: 11; 90:21: 91:12. 20: 92:3. 93:2. 3, 15; 95:14: 9o.5. 6, 9; 97:3, 7, 12. I"'. 22. 98:21; 100:12. 13. N. 101:10. 16, 18. 20. 22. 102:2. 6, 12; 105:17; 120:12. 21. 22; 121:2. 4; 122:8, 12. 19; 123:22; 124:2, 7: 12'.2. 128:13: 133:6. 15. 20: 134:18; 135:13. 18. 2.. 137:4. 7; 138:1, 9; 140:1; 141:7, 13; 143:11. 20: 144:1, 2: 148:18: 151:22 settlements 110| 84:8: 93:12; 102:14; 103:14 106:1; 133:9: 134:16: 137:12: 138:16: 150:1 settling (4) 5:9; 83:21: 135:10; 149:17 seven |2( 58:7: 109:21 Seymour 11 ] 108:9 share (5| 11:19: 12:11 122:18: 140:8. 9 shared (11 12:6 sharing 11) 12:8 sheets (1| 118:17 Shoebotham (11 152:18 shorthand (3) 95:6.95.'9/ 114:22 show 11) 37:4 Shreveport [2| 128:4: 137:19 SifT 111 2:18 sign [1] 131:10 significance (11 4:20 significant |6] 13:18: 16:5: 27:16: 34:2: 82:17; 137:12 signs 121 16:22: 17:2 silo [5] 134:8, 14; 137:3; 138:3. 4 simple [1] 60:12 Simpson (15] 106:16: 107:3, 22; 108:22; 109:10; 111:6, 13. 17. 20; 112:1, 10, 12, 18: 113:3, 5 simulation (2) 101:7: 102:10 single [4] 11:17:37:19; 133:15; 140:1 sir [1] 81:13 sit (31 37:13; 70:2; 71:22 site (41 5:10; 7:21: 8:4: 149:12 sites (2j 149:11; 151:22 situation (8] 27:5; 39:6; 97:8, 13,19; 98:20; 99:9; 107:19 situational (2] 95:22; 99:19 situations (4] 12:1, 13 15:54:12 situs [1] 53:17 From relied to situs WATER PCB-SD0000066511 Basic Swtsma AppikBtxxa Depo of Thomas M. Bistline (Monsanto v Aetna) August 10, 1993 Cr.56353.0 six (3) 58:6; 109:21; 128:8 size (4) 65:21, 22; 100:20; 142:1 Skeen [1| 140:15 Slaughter [4| 6:22: 7:5, 6; 47:5 smaller [2] 109:10; 111:21 - smartest [11 108:6 Smith (11 150:18 Snively [16] 47:12; 124:5, 11; 145:12, 21: 146:7: 148:16, 22; 149:7. 10, 15, 19, 22: 151:19; 152:5; 155:21 sole [31 21:11, 15; 151:15 solely [21 57:19; 44:15 somebody [2| 96:8; 109:20 someone [4] 79:18; 117:1; 151:9; 159:10 somewhat [4] 85:12; 87:15: 105:1; 147:21 Somewhere [2] 75:12: 109:1 somewhere (61 74:11: 125:12; 126:22; 127:5; 140:16: 145:10 sorry (61 8:19; 17:1; 22:1: 86:21; 89:5; 113:15 sort [16] 9:21; 11:14; 12:9; 67:11, 12; 72:9, 13; 78:17; 90:17; 92:1, 9; 99:22; 105:8; 107:19; 112:7; 156:19 sorts [4J 60:15; 64:13; 67:5; 101:5 sought [71 121:7; 122:19; 123:1; 125:7; 126:4; 131:20; 132:22 speak [4) 25:3; 56:6; 99:6, 17 speaker [3] 35:16; 36:16; 42:5 speakers [5] 35:17; 36:10, 14, 18:41:17 speaking [2] 24:11; 73:9 special [2] 12:20; 140:4 specific [11] 21:10; 23:8; 27:12; 39:18; 40:2: 73:19; 75:21; 85:14; 104:10; 123:18 Specifically [11 105:19 specifically [23] 11:15; 12:17; 19:10; 21:3; 24:7; 37:16, 19; 40:18; ' 41:11; 42:10; 102:3, 7; 103:19; 104:5, 12, 20; 105:6, 16; 106:12, 14, 17; 136:1, 10 spectrum [1) 62:18 speculate [1] 58:2 speculation [2] 83:2; 125:20 spend [2] 50:8; 148:3 spending (1) 57:3 spent [8] 5:20; 6:7; 58:6; 66:7; 73:17; 112:18; 125:12; 132:9 spoke [81 6:1; 25:19; 26:1, 6; 37:22; 40:21; 46:15; 113:17 spoken [11] 23:21; 25:5, 7; 26:10, 13; 27:8; - 35:9; 37:10, 14, 18; 102:17 spoliation [1] 16:20 sponsor [1] 23:19 sponsored [11 42:4 St [10) 41:22; 42:10, 22; 77:10; 128:8; 129:22; 134:21; 135:1: 136:15; 143:8 stack [ 1) 69:4 staff [6] 14:22; 22:15; 46:13; 48:19; 59:12, 17 staffed [2] 54:16; 59:2 staffing [51 55:3, 5,11, 12; 58:18 staffs [1] 48:18 Stan (1) 40:19 stand [1] 150:11 stand-alone [3] 53:8; 81:21; 83:15 standard [51 10:19; 11:13, 14; 12:9; 45:7 standards [5] 10:9, 22; 11:1, 3; 27:2 Star [3] 128:10; 137:13, 17 start [1] 145:20 started [2] 114:4; 115:8 starting [1] 156:9 State [1] 2:22 state [61 13:19; 64:7; 119:18, 19; 127:21 Statement [1] 4:19 statement [4] 3:7; 154:12; 155:5, 8 statements [3] 65:15; 73:16; 78:4 statute [3] 58:5; 144:9, 12 stays [1] 77:17 Steel [3] 128:10; 137:14, 17 step [3] 120:15,18; 154:17 Steve ]1) 47:1 stone [1] 75:4 stop [3] 8:19; 51:12, 15 stored (1) 134:8 story [1] 52:14 straight [1] 56:21 straightforward [3] 57:6, 22; 87:3 strategies [1] 25:17 strategy [9] 9:14; 27:18; 36:2; 38:14; 70:9; 73:10; 107:6; 115:22 Street [2] 2:14; 128:11 strengths [1] 144:8 strictly [1] 111:9 strike [1] 63:6 student (1) 52:14 studies 11) 98:7 study [3] 9:16: 22:21; 23:6 styled [1) 143:16 subgroup [1) 24:21 Subject (1) 5:5 subject [12J 5:13; 6:5, 15, 19; 8:4; 19:3; 24:7, 18; 35:10; 44:5; 84:6; 92:15 subjective [21 78:10, 20 subjects [3] 5:16; 26:16; 120:3 submissions [11 73:11 submitted [16] 17:6, 9; 22:14; 65:18: 77:9; 116:8:117:13; 121:6, 20; 122:22: 124:10, 14; 130:21; 131:1, 6, 14 subsection [1] 25:8 subsequent [1] 7:8 substance [6] 86:5, 6; 119:6; 146:4; 149:4; 154:19 substances [1] 115:6 substantial [8] 89:6; 98:14; 133:2: 134:16; 142:8, 21; 143:13; 144:9 , success [11] 82:6; 87:1; 88:4; 89:1; 90:2, 10, 19; 91:6; 93:18; 95:6; 98:10 successful [1] 12:13 suffered [1] 123:14 sufficient [5] 67:18; 68:7, 19; 69:13; 73:7 suggest [1] 57:21 Suite [1] 2:5 sum [1] 123:11 summarizes [1] 5:1 Summary [1] 8:8 summary [1] 144:11 sums [4] 5:8; 8:12, 14; 83:6 superiors [1] 83:11 supervise [1] 35:19 supervising [1] 28:3 supervision [1] 127:14 supervisor [2] 15:4; 46:22 supplemental [1] 10:19 suppliers [1] 138:1 support [11] 25:12; 32:13; 33:15; 59:2, 12, 17; 66:9, 11, 12; 68:4; 107:20 supporting [1] 120:8 supportive [1] 107:17 surprisingly [1] 35:22 survey [1] 29:20 suspect (1] 108:16 suspects (1) 139:9 sustaining [3] 14:7, 9; 18:4 Sutcliffe [1] 2:12 sworn [1] 4:4 sympathetic [1] 50:12 system [3] 33:9; 66:11; 105:12 -T- T-I-P-S [1] 25:21 table [4] 107:18, 20; 136:3, 6 tactics [31 9:14; 70:9; 116:1 takes [1] 154:16 talk [9] 24:6; 31:2, 3, 4; 34:4; 35:10; 38:18; 74:16:145:21 talked [2] 99:15; 154:2 talking [17] 30:10: 33:17, 19: 62:3, 8; 66:15: 68:12; 69:3; 73:18; 74:3, 19; 78:2; 89:3; 90:16; 117:3; 119:14 talks [5] 36:17; 38:3, 19; 39:16; 40:4 tax [2] 119:18, 21 TCDD [1] 114:11 teaching [1] 47:21 technical [1] 99:5 technically [1] 130:2 techniques [1] 35:17 technology [1] 26:18 telephone [2] 120:19; 145:13 telling [1] 58:4 tend [1] 82:16 tends [1] 83:21 Tenth [1] 2:9 term (1] 109:17 terms [15] 11:6, 20; 12:11; 23:2; 24:14; 28:11, 16; 32:21, 22; 35:5; 50:16; 98:9; 114:14; 116:3, 19 terribly [2] 42:2; 96:19 testified [2] 4:5; 104:19 testify [II] 5:2, 7; 6:7; 8:11, 21:67:2: 105:7; 106:18; 148:2, 17; 149:3 testifying [5] 6:12; 7:5; 66:22; 106:7; 145:22 Testimony [2] 5:6; 8:9 testimony [23] 4:21; 5:10, 13, 17, 19, 22; 6:2, 10, IS, 20; 7:16; 8:5; 11:2; 20:20; 146:7, 18, 22; 147:1; 149:1; 151:4, 13, 14 Texas [6] 52:12; 128:11; 137:18, 19; 139:8; 144:14 textbooks [2] 12:16; 43:20 Thacher [151 106:16; 107:4, 22; 108:22; 109:10; 111:6, 13, 17, 20; 112:1, 10, 12, 18; 113:3, 6 Thank [3] 4:14; 157:8, 9 theory [1] 119:22 They're [1] 98:14 (`cmcjxruance i* i-zacxt'Sao 4 I they're )5] 36:19: 67:15: 71:14: 98:16: 120:1 they've [2] 133:1. 2 thinking (11 72:14 third [31 J2:7,' 109:16: 114:21 third-party [6] 5:9, 21: 6:19; 7:2:8:13, 22 THOMAS [1] 4:3 Thomas [3) 2:5; 3:3: 4:19 thoroughly [1| 137:8 thoughts 11 ] 28:6 thousand (2| 126:5. II thousands [2] 50:8; 126:10 three [8] 16:16; 36:12; 52:22; 73:22: 109:6: 114:6; 115:9; 142:3 three-day (1 \ 31:2 thumb [I) 69:15 tie-breaker [1] 76:15 TIPS [10] 25:19:26:1; 31:5, 9, 16: 32:7, 8; 36:9: 38:20: 40:15 title [11 18:11 Tom (3) 41:8:46:11: 119:3 tomorrow [ I) 156:6 topic [18] 6:9, 14: 11:5; 12:22; 19:12; 21:18; 27:3; 29:20; 32:14; 37:17, 19; 38:4; 42:8, 12; 46:1; 58:7; 86:9 topics [11) 5:2; 6:17; 25:7, 22; 27:10; 28:18; 37:4, 17; 42:10; 105:14; 120:9 tort [551 9:11; 10:4, 18: 11:4, 16; 12:17, 22; 13:6, 7, 8; 19:10, 14, 18; 20:11, 16; 21:9; 24:4, 9, 14; 25:5. II. 15, 17:26:4, 19:27:11; 28:1; 29:2; 32:3; 34:20; 37:22; 42:13; 45:1, 4, 8. 12, 15, 22; 46:6; 48:1, 2; 49:1; 94:9; 103:12; 104:7, 21; 108:12, 13; 109:11; 113:1; 114:3; 118:18; 139:1; 142:18; 144:19 Torts [I) 44:22 torts [4] 13:11; 20:3; 105:9; 108:14 total [2] 125:15; 137:10 totally [11 29:21 touch [1J 19:13 touched [3] 24:6; 34:6; 39:1 towards [3] 65:8; 106:12, 14 Townley [5] 116:6, 10, 13; 121:11; 126:19 Toxic [1] 44:22 toxic (53) 9:11; 10:4, 18:11:4, 16; 12:17, 21; 13:6, 8; 19:10, 14, 18; 20:11, 16; 21:9; 24:4. 9, six to toxic WATER PCB-SD0000066512 a ApsknaUiccB Depo of Thomas M. Bistiine (Monsanto v Aetna) August 10. 1993 Cr.36353 0 14; 25:11, 15, 17: 26:4 19; 27:11:28:1; 29:2: 32:2: 34:20: 37:22: 87:19: 88:14, 18: 144:6 types (7) 34:1; 61:2; 65:22: 66:9: 76:3; - Vvaiue [8) 29:19; 35:4: warrant (2| 16:6; 98:10 warranty (11 85:19 word-processing | i 1 33:9 42:13:45:1. 4. 8, 12. 15. 21: 46:6: 48:1, 2: 90:16, 21 Typically (6] 36:19; 38:11, 13; 49:21; 50:15 87:5, 9 Washington (3) 2:6: 35:14: 41:6 words |4j 29:5: 40:4 60:12: 95:18 49:1: 94:9; 103:11; 104:7, 59:9; 76:9; 77:14; 82:15:140:9 valued (1) 39:11 variety (1) 109:10 Waterhouse [U 102:13 work (26] 20:15: 23:6. 28:10; 29:10: 45:11. l~ 21; 108:12. 13, 14; 113:1: 11,4:3: J, 18:17; 139:1; 142:18; 144:19 typically (4) 35:18; 39:14: 74:13; 75:7 vary [11 62:11 varying [1| 46:21 vehicle (1( 51:10 We'U (2) 43:12; 128:18 we'U [5] 30:18:31:21; 128:19: 147:8: 156:19 48:11. 14. 21: 51:6: 57:2. 13; 60:10. 11: 82:14, 16: 94:16: Toxics [2| 13:1.2 TRACEY (271 2:1: I -u- vein (1) 30:1 vendor (3) 62;5: 66:12: We're (21 68:12; 156.16 100:17: 111:6. 11: . 112:13: 125:2. 6: 132:' 30:18: 31:19: 43:12: ultimate (41 82:10; 76:6 we're |14) 19:21: 3S:6; 8: 141:22 44:7, 10. 19: 76:12; j 95:10; 117:2; 123:3 83:1; 92:14. 19: 104:16: \ Ultimately 11 ( 123:5 110:22: 146:9. 20; i ultimately (5) 29:19; 147:9. 19: 148:3; 150:3; j 35:4: 49:21: 54:9: 124:5 151:6. 16: 153:14; i unable [1] 99:16 154:10: 155:1. 17: I unanticipated (1] 71:1 156:13; 157:2 uncertain (11 11:1 Tracey (4| 150:19, 21: underlying (3) 152:5, 153:13; 156:6 10; 153:7 track [2] 13:6; 56:5 understand [191 21:4; vendors [7] 65:19; 66:14:67:7: 116:8. 10: 117:13; 118:6 venire (1) 135:3 venue (1) 53:18 venued [1] 53:6 verbally [1] 92:9 verdict (331 38:9: 39:22; 49:22; 50:7, 17; 56:19; 82:8; 85:16; 62:2, 3, 7: 66:15, 18: 69:3: 74:19; 94:4. 5: 117:3: 147:22: 156:21 We've (2) 120:5; 133:11 we've (4! 69:21; 87:14; 90:16; 98:22 weaknesses [ 11 144:8 week [I] 111:11 weekend [1) 121:2 worked (6| 47:7: 104:1: 108:2. 7: 110:9: 140:14 workers |1] 143:3 working (111 19:22: 20:1: 54:20: 59:18: 66:8: 67:3: 68:17: 73:8: 102:13: 114:2: 131:19 works (3j 28:9: 45:7: 131:2 tracked 111 78:3 35:3; 44:19; 47:8; 86:7, 15:87:7, It: weighing (!( 99:7 world (21 104:9: Tracy |1) 153:1 trade (11 16:18 52:12, 17; 55:4, 6; 60:6; 64:15; 71:21; 78:16; 94:15; 123:6, 8. 10, 16, 19; 134:5. 10; 136:13, weighs [1) 91:4 well-known (1) 140:19 110:14 worst |D 95:1 traditional (1) 19:21 90:8; 91:19; 103:16: 17; 138:17: 140:22; West [21 115:3; 124:21 worth (1) 83:S training [2| 40:9; 104:5 trains (1) 156:4 105:12; 144:20; 150:10, 16 141:1. 5, 15, 20: 142:1. 5, 6; 143:4 western [ 11 130:5 Westinghouse (11 wouldn't (5] 57:2: 94:1: 99:19: 100:11. /-' transcript (2) 76:14; understanding [13J verdicts [3] 52:20; 46:12 wound (11 88:4 157:4 6:14; 31:20; 45:6; 85:2; 142:7 wheel [11 30:2 writing (6] 10:21: I l:S: transformer (11 128:5 74:13; 95:12; '105:9, 14, versus [31 83:15; Whenever [1] 94:20 57:16; 72:20: 99:21: transpired (3) 95:19; 20; 107:4, 11, 13, 16, 143:16; 146:14 whenever [2] 36:8; 144:4 145:16; 149:6 18 vicinity (1) 126:21 62:21 written (26] 11:2. 10. travel (131 63:22; 64:13, 21: 65:1; 74:19, understood (!) 153:17 undertake (9) 9:20; Vietnam [11114:10 view (221 6:11; 10:7; Whereupon (3) 4:2; 80:9; 157:10 14. 17; 43:2, 4, 9:49:7. 8; 75:4; 92:1, 10,21: 20: 75:6, 7, 9, 13, 16; 77:13: 117:17 travel-related [ 11 30:19:31:17, 21; 73:14; 92:1, 9, 13; 135:21 undertaken [5] 28:12; 12:10; 28:15; 38:13; 39:9: 51:18; 52:9: 59:2; 61:19; 62:1; 66:4: WHITEMAN [11 2:7 Whitney (11 108:8 who've (11 40:12 93:11; 99:10, 18; 100:10; 101:4. 5. 9. 11. 12. 15: 117:21: 137:7: 75:22 Travelers [61 114:18; 116:12; 117:18; 118:11: 119:3:122:18 treasurer [1] 19:6 treated (1) 13:9 treatises (4) 12:16; 43:20; 45:14, 19 30:3; 88:14; 125:9; 132:8 undertakes |1) 93:11 Underwriters (21 119:4, 21 unduly [1| 151:11 unearthed (1) 91:14 unfortunate [1) 135:3 72:22; 79:17; 83:16, 22; 92:11; 93:5; 99:7: 101:17; 108:11:136:15 viewed [21 51:8; 119:4 vigorous [21 52:18: 86:7 vigorously [3] 22:18; 51:19; 84:6 widely (I! 129:8 wife [1] 154:1 wild (11 125:20 WILLIAM (11 2:11 willing (11 149:3 Wilmington 11) 2:3 win 11) 87:5 wish (1) 46:14 138:13 wrong (D 123:12 wrote (D 16:17 -X- .... Xerox 121 61:14; 63:14 Xeroxing (1) 62:11 tremendous (1J 108:9 trial (22] 67:9; 89:19; 90:3; 94:14; 107:4, 5, 14, 15; 109:20; 110:12; 135:5; 136:4, 11; 141:2, 4, 19; 142:2. 14, 22; Unfortunately (1137:2 unlikely [1] 50:5 unnecessary [I] 71:13 unpredictable (1) 70:22 unreasonable [6] violating [1] 145:18 Virginia [21 115:4; 124:21 virtually (11 131:21 visceral (21 122:16. 17 voice (1) 55:11 wished (11 148:17 withdraw [5] 14:14; 33:13; 130.10; 132:16; 145:1 withdrawn [3] 23:13; 38:18; 91:11 ... -Y- ' ~ Yale (2) 47:18. 21 yardstick [2J 69:10: 78:8 year (51 16:15: 17:11: 143:10; 144:11 trial-or-Mttte (1) 94:5 trials [21 108:21; 109:8 40:6; 62:20; 63:3, 8, 12; 64:9 unreasonableness [21 volume 11) 76:6 voluntarily [11 143:9 WITNESS (14) 3:2: 17:2; 44:9; 76:13, 16; 83:3; 92:18, 20; 111:1; 18:21; 24:22; 145:6 years (11) 9:15; 12:21; 14:3; 35:16; 41:6; 42:8; trip (1[ 74:21 trouble [2154:6; 147:8 63:18; 83:17 unusual [2) 79:3; - W- 128:17: 148:16; 150:16; 153:17; 155:20 48:3; 58:6: 112:20; 131:18, 143:18 true (1) 100:20 90:15 wait (1) 76:13 witness (24) 4:4; 7:16; York (81 2:21; 26:2; Trust [1 ]2:2 unwillingly [2] 47:3, 5 waived (1) 146:16 20:19. 20; 28:5, 6; 35:15; 47:20; 107:8; trust [2] 55:21; 112:6 unwritten (4) 10:22; waiver (1) 147:16 31:19; 66:7, 8; 67:21; 128:1; 130:6 tumor [1| 123:14 11:10, 15; 12:9 wake {1 j 27:5 110:15; 145:1, 2, 11, you'd (3) 89:2; 103:17: tussle (!) 156:17 Updike [5} 116:6,11, Wald (1) 2:4 22; 146:12; 147:2, 6, 139:9 twice (1) 18:21 13; 121:11; 126:19 walk [11 94:20 13; 148:6; 150:10; you'll (D 128:12 two-topic (1 ] 27:1 upheld HI 123:19 Wall (!) 128:11 151:9; 153:22; 155:1 you've (231 27:7, 8; twofold |2} 13:17; useful (6) 45:17; 71:18, wanted [4J 73:19; witnesses (5] 64:20; 35:9, 12; 37:10; 39:16: 34:10 20; 78:17; 79:4; 96:3 112:2; 146:6, 8 66:6; 75:14; 110:8; 52:16; 56:8; 87:3. 6: type (181 22:5'/ 28:12; usual |1) 139:9 wants [11 62:9 115:20 91:8: 94:10; 119:12: 29:9, 15; 33:1; 49:4; utilized [4j 6:6:113:12; War|U 114:11 won't (1 ] 44:14 120:4; 132:19; 134:16: 53:7; 61:8: 65:20; 72:8; 118:3, 7 war [11 67:9 Woodard (51 77:5, 8; 138:22; 142:17: 144:18 74:16, 17:85:12, 19: warn (1) 16:20 78:3; 153:2, 4 152:10; 153:21: 155:14 Wootworth |1) 2:19 Young (I) 2:8 From Toxics to Young WATER_PCB-SD0000066513 Ektaic iw#na Agytwmmna Depo of Thomas M. Bistline (Monsanto v Aetna) August 10, 1993 Cr.56353.0 yours [3| 47:17; 48:13; 82:13 yourself |4) 9:8: 15:14; 67:13:69:11 j I I I -z- zero |1] 94:18 Zucker ]1] 47:13 - yours to Zucker WATER PCB-SD0000066514 TRANSCRIPT OF PROCEEDINGS IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY . MONSANTO COMPANY, Plaintiff, v AETNA CASUALTY & SURETY COMPANY, et al, Defendants. : x Civil Action Number 88C-JA-118-1-CV NON-ARBITRATION CASE EXHIBITS TO THE DEPOSITION OF THOMAS M. BISTLINE PROTECTED MATERIAL: MONSANTO INSURANCE COVERAGE LITIGATION Washington, D. C. ' Tuesday, August 10, 1993 ACE - FEDERAL REPORTERS, INC. Stenorype Reporters 1120 G Street. NW Washington. D.C. 20005 (202) 347-3700 NATIONWIDE COVERAGE 800-336-6646 WATER PCB-SD0000066515 TRANSCRIPT OF PROCEEDINGS IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY MONSANTO COMPANY, Plaintiff, v. AETNA CASUALTY & SURETY COMPANY, et al. , Defendants. -x X Civil Action Number 88C-JA-118-1-CV NON-ARBITRATION CASE EXHIBITS TO THE DEPOSITION OF THOMAS M. BISTLINE PROTECTED MATERIAL: MONSANTO INSURANCE COVERAGE LITIGATION Washington, D. C. ' Tuesday, August 10, 1993 ACE - FEDERAL REPORTERS, INC. Stenorype Reporters 1120 G Street. NW Washington, D.C. 20005 (202) 347-3700 NATIONWIDE COVERAGE 800-336-6646 WATER PCB-SD0000066516 mo. lactoraund and_-J^Berienee Mr. Bistline testified extensively at hi depositions a to Jiis educational background and employment history. Subject Matter of J^iMaonv Mr. Bistline is expected to testify as to the necessity for and reasonableness of the sums expended by Monsanto in litigating and, in some instances, settling the various third-party actions arising in connection with the Brio site. Mr. Bistline's testimony will concern the period from April 1990 to date. Summary,of Bases and Grounds for Testimony Mr. Bistlind is expected to testify that the sums expended by Monsanto in connection with the Brio third-party actions were reasonable and necessary. These sums, which, for the most part, are set forth in Exhibits 1(C)-(1) of Mr. Bistline's 30(b)(6) deposition (expenses incurred through 1992), include, but are not limited to, attorney's fees, expert/consultant fees, and other necessary and reasonable litigation expenses. Mr. Bistline is expected to testify that the settlement amounts incurred by Monsanto in connection with certain Brio third-party actions, i.e.. Acosta. Aguilar, and Hardagf. were reasonable. . In addition to his knowledge, experience, and training, Mr. Bistline's opinions are based on the following: 1 DEPOSITION EXHIBIT 1 DistlirtP 8-10-33 Jd Erotected Material. Monsanto insurance Coverage Litigation WATER PCB-SD0000066517 1. hi* familiarity with market rate for legal % services needed for litigation of similar sophistication and complexity; .2 - his familiarity with the number of hours reasonably expended for tasks associated with the type of litigation in issue; 3. his familiarity with the level of attorney performance customary and necessary in the type of litigation in issue; 4. his familiarity with the types and amounts of expert fees and expenses customarily incurred in the type of litigation in issue; and 5. his familiarity with the operative facts and assumptions employed in arriving at the various settlement amounts that were paid by Monsanto. In addition, Mr. Bistline may rely on the transcripts of depositions taken in this action, and the exhibits thereto. Mr. Bistline may also rely on documents that were produced and pleadings which were filed in this case. Mr. Bistline also may rely on information provided by other persons who have knowledge of the litigation costs and settlement amounts at issue. Mr. Bistline reserves the right to offer further opinions in rebuttal or in response to defendants' experts or other evidence. 9923S protected Material Monsanto inst.5 -'r Coverage Litigation WATER PCB-SD0000066518