Document XRQpwvg7ZVpX41GXV3B2Xoe7J

ANDREA ACOSTA, ET AL VS. MONSANTO COMPANY, ET AL NO. 85-17210-F : IN THE DISTRICT COURT OF : HARRIS COUNTY, T E X A S : 151ST JUDICIAL DISTRICT DEP OS IT ION OF RICHARD J. MAho;:rv TAKEN ON rlAY 22, 1992 TAXABLE COSTS $ _____________ PAID BY: PLP.DEF. MARTIN & ASSOCIATES CERTIFIED COURT REPORTERS 2200 MARKET STREET. SUITE 412 ' GALVESTON. TEXAS 77550 (409) 762-2222 FAX (409) 762-8040 2 1 INDEX 2 3 THE WITNESS: R I C H A R D J. M A H O N E Y 4 5 EXAMINATION: PAGE 6 By Mr. J a m a i l 7 B y Mr. W a r e . .................................. 128 8 B y M r . J a m a i 1 ................................. 165 9 10 E X H I B I T S 11 N U M B E R DESCRIPTION 12 Mahoney 1 Monsanto Company's Motion for Protective Order dated 23rd day 13 of A p r i l , 1992; L e t t e r d a t e d A p r i l 1, 1 9 9 2 t o P h y l l i s J. 14 C o h e n f r o m J o s e p h D. J a m a i l r e q u e s t i n g d e p o s i t i o n s of 15 R i c h a r d J. M a h o n e y a n d W i l l i a m D . Ruckelshaus 16 Mahoney 2 Trust Agreement, Brio Site Task 17 F o r c e , H o u s t o n , T e x a s 18 Mahoney 3 Monsanto Company 1991 Annual Report 19 Mahoney 4 M e m o d a t e d J u n e 23, 1976 from 20 (1212) J o h n J. S p a n o - W o r l d H e a d q u a r t e r s to H. M. K e a t i n g 21 1465 Document titled Shipments to 22 F r i e n d s w o o d Site (Based on Existing Records) dated 12/1/84 23 Guilliams 1 Monsanto' Company's Supplemental 24 R e s p o n s e to P l a i n t i f f s ' First Set of Interrogatories and 25 R e q u e s t for P r o d u c t i o n Martin & Associates (409) 7 62-2222 \ 3 1 2 3 A P P E A R A N C E S: 4 5 FOR THE ACOSTA PLAINTIFFS: 6 Mr. J o s e p h D. J a m a i l M s . Janet Evans 7 Jamail & Kolius 1200 Smith, Suite 2600 8 Houston, Texas 77002 9 FOR THE ASHFORD PLAINTIFFS: 10 Mr. Dalton Jones 11 Ms. P a t r i c i a A. N o w a k Jones & Nowak 12 2 5 2 5 S o u t h S h o r e B o u l e v a r d Marina One - Suite 201 13 H o u s t o n , T e x a s 7 7 0 5 8 14 FOR THE BANES PLAINTIFFS: 15 Mr. R o n a l d D. K r i s t 16 Mr. W i l l i a m G. N e u m a n n , Jr. Krist, Gunn, Weller, Neumann 17 & M o r r i s o n 17555 El Camino Real 18 H o u s t o n , T e x a s 7 7 0 5 8 19 FOR THE BISCHOF PLAINTIFFS: 20 M r . Dana Kirk 21 M r . Mark Schwarz Kirk, Carrigan & Schwarz 22 1200 Smith, S u i t e 1212 Houston, Texas 77002 23 24 25 Martin & Associates (409) 762-2222 4 1 A P P E A R A N C E S (CONTINUED): 2 3 FOR THE DEFENDANTS MONSANTO COMPANY AND MONSANTO CHEMICAL COMPANY: 4 Ms. P h y l l i s J. C o h e n 5 Mr. L a r r y G o l d e n t h a l M r . E d w a r d M. C a r s t a r p h e n 6 Woodard, Hall & Primm 7000 Texas Commerce Tower 7 600 Travis Houston, Texas 77002 8 FOR THE DEFENDANT FARM & HOME SAVINGS 9 ASSOCIATION: 10 M r . B . Lee Ware Ware, Snow & Fogel 11 1100 Louisiana, Suite 5100 Houston, Texas 77002 12 Mr. R u s s e l l B. S e r a f i n 13 V i n s o n & E l k i n s 2500 First City Tower 14 1001 F a n n i n Houston, Texas 77002-6760 15 FOR THE DEFENDANTS AMOCO CHEMICALS 16 C O R P O R A T I O N , A T L A N T I C R I C H F I E L D COMPANY, CHEVRON CHEMICAL COMPANY, UNION CARBIDE 17 C H E M I C A L S & P L A S T I C S C O M P A N Y , INC., A N D HOECHST CELANESE CORPORATION: 18 Mr. G e o r g e S h i p l e y 19 B a k e r & B o t t s 3000 One Shell Plaza 20 910 Louisiana Houston, Texas 77002-4995 21 FOR THE DEFENDANT AYRSHIRE: 22 Mr. Jack Tucker 23 Mr. J o h n M. T e n n e y Tucker, Hendryx & Gascoyne 24 1200 S u m m i t P l a z a East 8 Greenway Plaza 25 Houston, T e x a s 77046 Martin & Associates (409) 7 6 2-2222 1 A P P E A R A N C E S (CONTINUED): 2 3 FOR THE DEFENDANT BFI : 4 Mr. R o n a l d D. S e c r e s t Mr. Curt Webb 5 Beck, Redden & Secrest 1331 Lamar, Suite 1570 6 Houston, Texas 77010 7 Mr. James C a mpbell Kean Litigation Counsel S Browning-Ferris Industries P. 0. B o x 3 1 5 1 9 Houston, Texas 77253 10 FOR THE DEFENDANTS FINA, GE AND COS-MAR 11 Mr. S t e p h e n S. L i v i n g s t o n 12 T h o m p s o n & K n i g h t 3300 First City Center 13 1 7 0 0 P a c i f i c A v e n u e Dallas, Texas 75201 14 15 T H E V I D E O G R A P H E R : 16 Mr. R a y B l a c k s t o n e Legal Media Systems, Inc. 17 230 W e s t c o t t , S u i t e 200 Houston, Texas 77007 18 19 A L S O P R E S E N T : 20 Mr. R o b e r t J. B e r e n d t Ms. Jana Green 21 Ms. J e f f e r i e K m i e c k M s . Donna Ramage 22 Mr. Frank St a g g s Ms. Robin Young 23 24 25 Martin & Associates (409) 7 6 2 - 2 2 2 2 6 1 The oral v i d e o t a p e d d e p o s i t i o n of 2 R I C H A R D J O H N M A H O N E Y was t a k e n on M a y 22, 3 1992, beginning at 10:04 a.m., in the offices 4 of Jamail & Kolius, 1200 Smith, Suite 2600, 5 Houston, Harris County, Texas, before 6 J a n a L. M a r t i n , a C e r t i f i e d C o u r t R e p o r t e r 7 and N o t a r y P u b l i c in and for the State of 8 Texas, pursuant to the Texas Rules of Civil 9 Procedure. 10 11 R I C H A R D J O H N M A H O N E Y 12 w a s c a l l e d as a w i t n e s s and, h a v i n g b e e n 13 f i r s t d u l y s worn, t e s t i f i e d as f o l l o w s : 14 15 E X A M I N A T I O N 16 BY MR. J A M A I L : 17 Q 18 A Mr. M a h o n e y it is, is it? Yes, it is. 19 Q 20 A Would you tell us your full name, please. Richard John Mahoney. 21 Q 22 A Where do you live, Mr. Mahoney? St. Louis. 23 Q 24 Mr. Mahoney, my name is Jo e Jamail. never m et, correct? We've 25 A No, we haven't. Martin & Associates (409) 7 6 2-2222 7 1 Q. I'm the lawyer r e p r e s e n t i n g some of the 2 c h i l d r e n in the case p e n d i n g a g a i n s t M o n s a n t o 3 and othe r s here in Har r i s County. You're 4 here to give your deposition testimony, 5 correct? 6 A. T h a t 's r i g h t . 7 Q. 8 A. Have you given your deposition before? In this c a s e , n o . 9 Q. Any case? 10 A. Yes . 11 Q. H o w m a n y t i m e s ? 12 A. S e v e r a l t i m e s . H a l f a d o z e n t i m e s . 13 Q- G e n e r a l l y , w h a t t y p e o f c a s e s w e r e t h e y t h a t 14 y o u g a v e y o u r d e p o s i t i o n in? 15 A. Oh, t h e y w e r e p r o d u c t c a s e s , e m p l o y e e c a s e s . 16 Q. P e o p l e s u i n g M o n s a n t o ? 17 A . G e n e r a l l y , yes. 18 Q M o r e s p e c i f i c a l l y , w e r e e a c h of t h e c a s e s 19 in-volving a s u i t a g a i n s t M o n s a n t o ? 20 A. Yes . 21 Q. W h a t we do h e r e today, Mr. M a h o n e y , is t a k e 22 y o u r t e s t i m o n y as to w h a t y o u k n o w a b o u t 2 3 facts that I'm going to inquire about. If 24 y o u d o n ' t u n d e r s t a n d o n e of my q u e s t i o n s , I 2 5 w a n t y o u to t e l l me you d o n ' t u n d e r s t a n d it Martin & Associates (409) 7 6 2 - 2 2 2 2 .8 1 2 3A 4Q 5 6 7 8 9 10 11 12 13 A 14 Q 15 16 A 17 Q 18 19 20 21 A 22 Q 23 24 A 25 Q and not speculate on the question and try to guess at an answer. Would you do that? Sure. B e c a u s e wh a t we do here is g o i n g to be made public. T his is a p u b l i c p r o c e e d i n g . And I'm going to want some ideas about Monsanto's policy about pollution, toxic wastes, what M o n s a n t o ' s a t t i t u d e is a b o u t it. So be sure you understand my question because we don't want and you don't want the Jury or the public to get a m i s i n t e r p r e t e d answer. Do you understand? I do. You are the ultimate spokesman for Monsanto, are you not? Yes. I'm chairman and chief executive. The chief e x ecutive officer carries out or e x e c u t e s , I t a k e it -- a n d y o u c o r r e c t me if this is i n a c c u r a t e -- the p o l i c y of the board of d i r e c t o r s . T h a t 's r i g h t . You are both: You are chairman of the board of dire c t o r s that m a k e the p o l i c y -Uh-huh. -- and the chief executive officer who Martin & Associates (409) 7 6 2 - 2 2 2 2 9 1 executes and makes sure they're carried out. 2 A. T h a t 's r i g h t . 3 Q. For how long have you been the chief 4 executive officer? 5 A. Since 1983. 6 Q. 7 A. What were you before that? President. 8 Q- For how long were you president? 9 A. Three years. 10 Q. 1 9 8 0 ? 11 A. 1 9 8 0 . 12 Q. W h a t d i d y o u d o - - l e t ' s s t a r t in 1 9 6 0 . 13 A. I 9 6 0 -- I j o i n e d t h e c o m p a n y in 1962. 14 Q- O k a y . A n d t h e n f r o m '62 t o '70, w h e r e w e r e 15 yo u s t a t i o n e d ? 16 A . I was in M a s s a c h u s e t t s and St. L o u i s d u r i n g 17 t h a t p e r i o d , I t h i n k -- ye s -- a n d I t h i n k I 18 w a s in N e w J e r s e y , as well. 19 Q. W e r e y o u a l w a y s i n v o l v e d in t h e c h e m i c a l p a r t 20 of the company? 21 A, Chemicals and plastics, yes. 22 Q- S a y it a g a i n . 23 A, C h e m i c a l s a n d p l a s t i c s . 24 Q 25 A All right. We generally make a distinction. Martin & Associates (409) 7 6 2-2222 10 1 Q- Okay. How about environmental policy. Were 2 y o u e v e r i n v o l v e d -in m a k i n g e n v i r o n m e n t a l 3 policy for Monsanto? 4 A. As chief executive, certainly. 5 Q. Well, as president you were, too, weren't 6 you? 7 A. To a degree. 8 Q. Just not much? 9 A. You're talking about making policy. 10 Q. A l l r i g h t . L e t m e r e p h r a s e it. W e r e y o u 11 asked at all w h a t your ideas about -- were 12 a b o u t p o l l u t i n g t h e e n v i r o n m e n t w h i l e y o u 13 w e r e p r e s i d e n t ? 14 A. We l l , e n v i r o n m e n t a l p o l i c y ? A s k e d a b o u t ? 15 Sur e . 16 Q. O k a y . 17 A. S u r e . 18 Q- So at l e a s t s i n c e 1980, y o u ' v e b e e n i n v o l v e d 19 w i t h M o n s a n t o r e g a r d i n g its e n v i r o n m e n t a l 20 policy? 2 1 A. Sure. 22 Q W h a t a b o u t i n d u s t r i a l h y g i e n e , Mr. M a h o n e y ? 23 H a v e y o u e v e r i n v o l v e d y o u r s e l f w i t h that? 24 A. W e l l , yes. I ' m t r y i n g to -- yes. 25 Q. O k a y . T h e -- w h e n w e r e y o u t o l d t h a t y o u r Martin & Associates (409) 7 62-2222 d e p o s i t i o n was first r e q u e s t e d in this case? Do you remember? I t h i n k it was about a w e e k ago. Is that the first time? I think s o , yes. A r e W o o d a r d , H a l l & P r i m m y o u r l a w y e r s in this matter? Who? Woodard, Hall & Primm. Have you ever heard of them? Woodard, Hall & Primm? Yes . Yes. Yes. That's our lawyers. Well, you look surprised. I -- I was tryi n g to get -Have you ever seen them before today? I met Mr. Hall today and I -- I was -- the Pri m m part I hadn ' t -I .don't k n o w w h o P r i m m is, e i t her. I don't know. Or what it i s . The -- you met Mr. Hall for the first time today? Yes . And he's your lawyer? Yes . Martin & Associates (409) 762-2222 12 1 Q. 2 3 4 5 6 Q. 7 8 A. 9 Q10 A. 11 Q. 12 A. 13 Q14 A. 15 Q16 A. 17 Q. 18 A. 19 Q20 21 22 A. 23 Q. 24 A. 25 Q. Okay. Did you meet any of these other people up there that pretend to be lawyers? MS. COHEN: I o b j e c t to the form of the question. MR. J A M A I L : I ' l l r e p h r a s e it. Have you met anybody else up there who alleges that they're a lawyer? From this firm? From Woodard, Hall & Primm. Yes. To my right. Who is it? Phyllis. Phyllis what? Cohen. W h e n is the first t ime you me t her? This morning. Anybody else? No . Well, have you talked to anybody about this case that we're talking about before today or this morning? Yes, I have. To whom? Chief counsel -Who is that? Martin & Associates (409) 7 62-2222 13 1A 2Q 3A 4 5Q 6A 7Q 8A 9Q 10 A 11 Q 12 13 14 A 15 Q 16 17 18 Q 19 20 A 21 Q 22 23 A 24 Q 25 A -- M o n s a n t o . R i c h a r d Du e s e n b e r g . W h e r e is he? St. Louis. And Bob B e r e n d t who is -- works in the law d e p a r t m e n t . Who is he? He's sitting at my right over here. Is t h a t h i m t h e r e ? That's him. O k a y . What does he do, now? He handles litigation for the company. Is that the same man that asked the Ju r y to give M o n s a n t o p u n i t i v e d a m a g e s in its action in M a r s h a l l , Tex a s ? I thi n k he was in that case, yes. How did that grab you? MS. COHEN: I object to the form of the question. It's argumentative. What, d i d y o u t h i n k a b o u t h i m a s k i n g for punitive damages on behalf of Monsanto? I t h o u g h t it was a p p r o p r i a t e . Well, I thought you were an outspoken advocate against punitive damages. N o , sir. I'm n o t . Y o u ' r e not? Y o u ' r e in favor of them? I said that punitive damages are being abused Martin & Associates (409) 762-2222 14 1 in this country. 2 Q. 3 Are you in favor of people who have been abused and who have a legitimate right to ask 4 for legitimate damages receiving punitive 5 damages? 6 A , I think that's appropriate, yes. 7Q 8 G o o d e n o u g h for me. T h e -- so a w e e k ago is the first time you heard about your 9 deposition, right? 10 A Yes . 11 Q 12 N o b o d y told you it was w a n t e d A p r i 1 the 1st, I t a k e it. 13 A I don't recall anymore. No, I don't. 14 Q 15 A It didn't happen? I don't -- I just don't k n o w . 16 MR. J A M A I L : M a r k that, w i l l you. 17 18 (A n i n s t r u m e n t w a s m a r k e d M a h o n e y 19 E x h i b i t No. 1 for i d e n t i f i c a t i o n . ) 20 21 Q 22 23 24 Q 25 M r . Mahoney, would you -MR. JAMAIL: W h a t is this, Janet? MS. EVANS: Last page. This has been marked M a h o n e y No. 1 for purposes of identification, and would you Martin & Associates (409) 7 6 2 - 2 2 2 2 16 1 were too busy to come, to be here for a 2 deposition. 3 MS . COHEN: I object -- 4 Q5 Is that your position or not? MS . COHEN: I object to the 6 Q. 7 Did they make it up? MS . COHEN: I o b j e c t to the form of 8 the question. It's argumentative. 9 Q10 Do you find this lawsuit b u r d e n s o m e to you in being able to c o n d u c t the e v e r y d a y affairs of 11 M o n s a n t o ? 12 A. N o . 13 Q- W e l l , t h i s is a n a f f i d a v i t p r e p a r e d a n d f i l e d 14 by y our l a w y e r Mr. Hall w ho y ou just met. 15 D i d he t a l k to y o u last w e e k a b o u t f i l i n g an 16 a f f i d a v i t ? 17 A. No. 18 Q. S i r ? 19 A. No-. 20 Q. 21 22 Did ha? MS . COHEN: I'm going to object to the form of the question. I don't believe 23 t h e r e ' s a n y a f f i d a v i t in t h a t d o c u m e n t . 24 Q D i d y o u t a l k to a n y b o d y l a s t w e e k a n d t e l l 25 anybody from Woodard, Hall & Primm that you Martin & Associates (409) 7 6 2 - 2 2 2 2 1 were just too damn busy to get down here for 2 your deposition this last Wednesday? 3 A. Did I talk to a n y b o d y -- 4 Q. Yes . 5 A. -- at Woodard, Hall? No. 6 Q. 7 Are you at all familiar with the subject matter of wh a t this case is about, 3 M r . Mahoney? 9 A. Yes . 10 Q. As c h i e f e x e c u t i v e o f f i c e r a n d c h a i r m a n , y o u 11 h a v e to be, d o n ' t you? 12 A. Yes . 13 Q. T h i s is a m a j o r l a w s u i t a g a i n s t y o u r 14 c o m p a n y . 15 A. Y e s , it i s . 16 Q. A n d y o u t a k e it s e r i o u s l y ? 17 A. Y e s . 18 Q. A n d y o u d o h a v e s o m e i n f o r m a t i o n t h a t m i g h t 19 b e `u s e f u l t o u s in t h i s m a t t e r , d o n ' t y o u 7 20 Y ou're -here to g ive it if you do? 21 A. If I h a v e it, I ' l l g i v e it. 22 Q. H a v e I b e e n o v e r l y d r a m a t i c so f ar? 23 A . N o . 24 Q. W o u l d y o u r e a d P a r a g r a p h 5 a n d t h e r e s t of 25 t h a t a f f i d a v i t or that r e p r e s e n t a t i o n to the Martin & Associates (409) 7 62-2222 13 1 2 3 4 A. 5 6 7 8 9 10 11 12 13 14 15 Q. 16 A. 17 18 19 20 21 22 23 24 25 C o u r t in w h i c h thi s cas e is p e n d i n g s i g n e d by your lawyer Mr. Hall. J u s t r e a d it out loud. "Plaintiffs are not seeking to depose Mr. M a h o n e y in order to learn any add i t i o n a l information or to serve any useful purpose but instead only" to -- " i n s t e a d only wish to ha r a s s M o n s a n t o in an o v e r l y d r a m a t i c fashion by taking the d e p o s i t i o n of its chairman of the board. Simply, there is no i n f o r m a t i o n that M r . Mahoney could provide which could not be obtained from another witness with more direct personal knowledge and i n v o l v e m e n t in the issues at h a n d . " Read the next paragraph, please, sir. " I n S a l t e r v. U p j o h n 5 9 3 ." a n d s o m e o t h e r references, "the U n i t e d States Court of Appeals for the Fifth Circuit applying Texas law affirmed" that a court -- "a trial c o u r t ' s d e c i s i o n t hat the p l a i n t i f f in a product liability action was not entitled to depose the president of Upjohn until the plaintiff had deposed the corporate employees most familiar with the subject litigation and had determined that the information provided Martin & Associates (409) 762- 2 2 2 2 19 1 2 3 Q. 4 A. 5 6 7 8 9 10 11 12 13 14 15 Q. 16 17 A. 18 Q. 19 A. 20 21 22 23 Q. 24 25 A. by employees with g reater k n o w l e d g e of the facts was inadequate." Please keep reading. P a r a g r a p h 7: " A s c h a i r m a n a n d c h i e f executive officer of a m u l t inational c o r p o r a t i o n , R i c h a r d J. M a h o n e y h a s an e x t r a o r d i n a r i l y d e m a n d i n g s c h e d u l e , and it would be extremely burdensome to both him and M o n s a n t o for him to be d e p o s e d in this manner. Plaintiffs have not demonstrated a good-faith basis for contending that Mr. Mahoney's deposition would be of any r e l e v a n c e -o r t h a t P l a i n t i f f s h a v e a n y legitimate need for such deposition." Did they ask you about that before they filed that? No . It's sign e d by your lawyer Mr. Hall, right? Abo u t this language? No, not about this l a n g u a g e . They asked me about -- they mentioned deposition. They said that they d i d n ' t t h i n k I h a d any b a s i s for it, but -Did you tell them it was too b u r d e n s o m e for you to come down here -- No, I did n ' t say that. Martin & Associates (409) 7 62-2222 20 1 Q- -- and explain to the -- 2 A . No . 3 Q. -- parents and the Jury -- 4 A. No . 5 Q. -- the p a r e n t s of t h e s e c h i l d r e n how come 6 they're s ick? 7 A. No . 8 MR. J A M A I L : I want to attach the 9 entire protective order. 10 Q . The i m p r e s s ion it g i v e s is t h a t you d i d n ' t 11 w a n t to be d e p o s e d at all in t h i s m a t t e r . Is 12 t h a t t r u e or n o t ? ' 13 A. T h e i m p r e s s i o n ? 14 Q. Y e s . 15 A. I guess that's the i m p r e s s i o n it gives, yes. 16 Q . Is it t r u e t h a t you d i d n ' t w a n t to be 17 d e p o s e d ? 18 A . H e r e I am. I'm here. 19 Q. W e l l , d i d y o u w a n t to c o m e on b e h a l f of 20 M o n s a n t o -- 2 1 A. Did I want -- 22 Q. -- a n d e x p l a i n w h y t h e s e c h i l d r e n h a v e b e e n 23 d a m a g e d by t h e e x p o s u r e to t h e c h e m i c a l s 24 m a n u f a c t u r e d an d i m p r o p e r l y , as w e s a y , 25 d i s p o s e d of by M o n s a n t o ? Martin & Associates (409) 762-2222 21 1 A. Say that again. 2 Q. Do y o u w a n t to e x p l a i n t h a t or not? 3 A. I don't have anything to explain. 4 Q. Y o u d o n ' t ? Y o u t h i n k it w a s a l l r i g h t ? 5 A. I d o n ' t k n o w w h a t "it" is y o u ' r e t a l k i n g 6 about. 7 Q. "It" is the i m p r o p e r d i s p o s a l of t o x i c 8 wastes. That's what "it" i s . And my 9 q u e s t i o n is: Is it too b u r d e n s o m e for y o u , 10 as t h e h e a d m a n at M o n s a n t o , to c o m e a n d to 11 e x p l a i n to a J u r y M o n s a n t o ' s p o s i t i o n ? And 12 if it is a p o s i t i o n t h a t y o u think, i t's all 13 r i g h t to e x p o s e t h e s e c h i l d r e n to t o x i c 14 w a s t e s , we w a n t to k n o w it. 15 MS. COHEN: I'm g o i n g to o b j e c t to 16 the q u e s t i o n . T h e r e ' s a b o u t fou r q u e s t i o n s 17 in t h e r e . 18 Q. D i d y o u u n d e r s t a n d it? 19 A. W e l l , I l o s t t h e f i r s t c o u p l e w h e n y o u g o t to 20 the -- 21 Q . A n s w e r the last one. 22 A. Well, let me g et the last one. 23 Q . S u r e . 24 A. I ' m n o t t r y i n g to be c o n t e n t i o u s . 25 Q . I know. Martin & Associates (409) 7 6 2-2222 22 1A 2Q 3 4 5 6 7 8 9 10 11 12 Q 13 A 14 15 Q 16 17 18 19 20 21 22 23 A 24 25 Q I'm just trying to understand the question. Let me just r e p h r a s e it for you. Is it too b u r d ensome on you, as chief executive officer, as your lawyers are claiming, to come here to testify and try to explain Monsanto's position relative to the illnesses caused by the exposure of toxic wastes caused to be deposited in open earthen pits by Monsanto? MS. COHEN: I object to the form of the quest i o n . It's argumentative. You can answer it* You better work out whatever you're going to work out here. It's already worked out. You have to answer the question. MS. COHEN: You can answer the q u e s t i o n , Mr. M a h o n e y , if y o u u n d e r s t a n d it. THE WITNESS: Oh, I'm sorry. I thought you were objecting to the question. MS. COHEN: I'm objecting to the q u e s t i o n . You are free to a n s w e r it. It's not too burdensome because I'm here. I'm here. It's -- and I'm here. So that's not factual what your lawyers said? Martin & Associates (409) 7 6 2 - 2 2 2 2 23 1 A. I'll have to go back and read everything they 2 said and t a k e it one at a time. I mean I 3 d o n ' t w a n t to be c u t e a b o u t it, but the 4 a n s w e r is I'm here. 5 Q. If y o u d o n ' t w a n t to be c u t e a b o u t it, t h e n 6 d o n ' t be c u t e a b o u t it. 7 A . I'm not trying to b e . 8 Q. Okay. My q u e s t i o n is: Do y o u feel like it's 9 necessary for you at all to even make an 10 a p p e a r a n c e to e x p l a i n the p l i g h t of t h ese 11 c h i l d r e n b e c a u s e of their e x p o s u r e to the 12 t o x i c w a s t e s g e n e r a t e d by M o n s a n t o an d c a u s e d 13 to be i m p r o p e r l y d e p o s e d of? 14 A. Well, I' m h e r e to t a l k a b o u t a n y t h i n g I 15 k n o w . 16 Q. Okay. Y o u t h i n k i t ' s a ll r i g h t to d i s p o s e of 17 t o x i c w a s t e s w h e r e t h e y w i l l h a r m p e o p l e ? 18 A. No. 19 Q. T h a t ' s w r o n g , i s n ' t it? 20 A . Y e s . 21 Q. A n d t h a t ' s y o u r p h i l o s o p h y , i s n ' t it? 22 A. Yes. 23 Q. A n y o n e t h a t w o u l d do t h a t w o u l d be v i o l a t i n g 24 the s t a n d a r d s as you k n o w t h e m to exi s t as 25 far as h u m a n d e c e n c y is concer n e d , w o u l d n ' t Martin & Associates (409) 7 6 2 - 2 2 2 2 24 1 they? 2 A. That's right. 3 Q. It would be a gross disregard for the rights 4 of people who are injured and damaged by them 5 by the exposure, wouldn't it? 6 A. T h a t 's r i g h t . 7 Q. 8 It w o u l d be not -- t o t a l l y -- it w o u l d be totally imprudent for someone to do t h a t , 9 w o u l d n 't it? 10 A . Y e s , it w o u l d . 11 Q. W e ' r e p r o b a b l y g o i n g to g e t a l o n g b e t t e r t h a n 12 y o u t h o u g h t we w e r e . T h e -- do y o u h a v e any 13 k n o w l e d g e at all, Mr. M a h o n e y , of t h e B r i o 14 s ite? 15 A. No . 16 Q. H a v e y o u e v e r b e e n t h e r e ? 17 A. No, I h a v e n ' t . 18 Q. H a v e y o u e v e r s e e n a n y p h o t o g r a p h s of it? 19 A. N o ', I d o n ' t t h i n k so. 20 Q. H a v e y o u b e e n g i v e n a n y s t a t i s t i c a l d a t a 21 r e g a r d i n g it? 22 A. No . 23 Q. Do y o u e v e n k n o w h o w m u c h w a s t e , t o x i c w a s t e , 24 M o n s a n t o c a u s e d to be d u m p e d i n t o t h i s site? 25 A. I d o n ' t k n o w -- I d o n ' t k n o w t h e s t u f f a b o u t Martin & Associates (409) 762 - 2 2 2 2 25 1 the Brio site that you're asking. I really 2 d o n 't . 3 Q. Okay. You've never seen any figures or 4 numbers on it? 5 A. No, I h a v e n 't . 6 Q. Your lawyers have never furnished you with 7 you any information regarding this Brio site? S A. Well, you asked about numbers. I -- 9 Q. N u m b e r s of toxic wastes. 10 A. No, I d o n ' t k n o w a n y n u m b e r s . 11 Q. T h e y ' v e n e v e r f u r n i s h e d y o u a n y o f t h o s e 12 n u m b e r s ? 13 A. N o . 14 Q. H a v e t h e y e v e r f u r n i s h e d y o u a n y t h i n g 15 r e g a r d i n g t h e B r i o s i t e ? H a s a n y b o d y ? 16 A. Oh, s ure. 17 Q. W h o ? 18 A. Chief counsel. 19 Q. T h a t w o u l d b e -- 20 A. M r . D u e s e n b e r g . 21 Q All right. He's not h ere t o d a y ? 22 A. No. 2 3 Q. 24 What did he give you? MS. COHEN: I'm going to instruct 25 M r . M a h o n e y not to d i s c l o s e p r i v i l e g e d Martin & Associates (409) 7 62-2222 i 26 1 2 3 4 5 6 7 8 9 10 11 Q 12 13 14 15 A 16 Q 17 A 18 Q 19 20 . 21 22 23 A 24 Q 25 A c o m m u n i c a t i o n -- MR. JAMAIL: Can you speak up, please. MS. COHEN: I'm going to instruct Mr. Mahoney not to disclose privileged c o m m u n i c a t i o n s b etween counsel and himself to the ex t e n t they w e r e ma d e in the c o n t e x t of the attorney/client relationship. MR. JAMAIL: There's no way he understands that. If they were given to you as factual data and you use them in any way to t e s t i f y about, I'm entitled to know about i t . N o w , tell me what numbers he gave you. None. No numbers. No numbe r s of any kind? No . Did he give you -- let my just try to clear it* up , M r . M a h o n e y . I ' m n o t t r y i n g - - I ' m trying- to be -- ask very easy questions, and u s u a l l y I do. Did he give you any statistical data regarding the Brio site? No. Okay. And you've never been to the site? I haven't. Martin & Associates (409) 762-2222 27 1 Q. Do you k n o w how m a n y m i l l i o n s of pounds of 2 styrene tars M o n s a n t o caused to be delivered 3 and stor e d in t h e s e open e a r t h e n pits? 4 A. No, I d o n 't . 5 Q. 6 Do you know how much vinyl c h l o r i d e s or vinyl chloride tars or monomers that Monsanto 7 caused to be sent to these open earthen pits ? 8 A. No . 9 Q. 10 A. Well, what do you know about the Brio site? The Brio site was a company that took 11 m a t e r i a l fro m f a c t o r i e s and r e p r o c e s s e d it 12 an d w e n t o u t of b u s i n e s s as I -- 13 Q. Y o u d o n ' t h a v e a n y f i r s t h a n d k n o w l e d g e ? 14 A. No, I r e a l l y d o n ' t . 15 Q. Y o u w e r e t o l d t h a t ? 16 A. I w a s t o l d t h a t . 17 Q. I ' l l m o v e t o s t r i k e t h a t in t h a t y o u d o n 't 18 h a v e an y f i r s t h a n d k n o w l e d g e . Le t me c l a r i f y 19 my- q u e s t i o n . 20 A. Okay. - 21 Q Do you have any f i r s t h a n d k n o w l e d g e of 22 a n y t h i n g that goes on at the Brio site? 23 A. No . 24 Q. O r a n y t h i n g t h a t w e n t o n a t t h e B r i o s i t e ? 25 A. No . Martin & Associates (409) 762-2222 2S l Q. Have you tried to read anything prior to your 2 d e p o s i t i o n so you could give testimony 3 regarding the Brio site, what its processes 4 were, w h e t h e r or not they s t o r e d c h e m i c a l s in 5 open unlined pits? 6 A. No, I d o n ' t h a v e any -- any b a c k g r o u n d in the 7 Brio site. 8 Q. All right, sir. Then I can ask you some 9 hypothetical questions, perhaps, and we can 10 s h o r t e n th i s . Le t me -- b e f o r e I do that, 11 .M o n s a n t o is p a r t o f w h a t is c a l l e d a 12 S u p e r f u n d T a s k F o r c e as it r e g a r d s th e Brio 13 s i t e , c o r r e c t ? 14 A. Y e s . 15 Q. Y o u k n o w t h a t ? 16 A. Y e s . 17 Q . T h e -- M o n s a n t o h a s b e e n d e s i g n a t e d as t h e 18 p e r s o n or p a r t y m o s t r e a s o n a b l y p r o b a b l y at 19 f a u l t in t h e m a t t e r as far as t h e c l e a n u p 20 c o s t s are c o n c e r n e d ? 2 1 MS. COHEN: I'm going to object to 22 t h e f o r m of th e q u e s t i o n . 23 Q. A l l r i g h t . 24 MS. COHEN: It's a r g u m e n t a t i v e . 25 Q. L e t m e r e p h r a s e it. Do y o u k n o w w h a t P R P is? Martin & Associates (409) 7 6 2-2222 29 1 A. Yes . 2 Q. W h a t d o e s t h a t m e a n to y o u ? 3 A. Principally responsible party. 4 Q. 5 Party. M o n s a n t o is a p r i n c i p a l l y r e s p o n s i b l e p a r t y for the c l e a n u p in the -- M o n s a n t o -- 6 in the Brio site, co r r e c t ? 7 A . I'm guessing. I don't know. I rea l l y -- 8 Q. 9 Nob o d y told you this, as c h a i r m a n of the board? 10 A. I gue s s w e ' r e a PRP, I t h i n k is the -- 11 Q. W e l l , sir, y o u ' r e t h e m a j o r i t y P R P . 12 A. O k a y . 13 Q. T h e y d i d n ' t t e l l y o u t h i s ? 14 A. I 'm t r y i n g to a n s w e r y o u r v e r y s p e c i f i c 15 q u e s t i o n s . 16 Q. I k n o w y o u a r e a n d I w a n t -17 A . I k n o w w e ' r e i n v o l v e d in th e site, and I k n o w 18 w e ' r e i n v o l v e d in a s i g n i f i c a n t way; but 19 y o u ' r e a s k i n g me, " A r e y o u a p r i n c i p a l PRP, 20 m a j o r i t y PRP?" I mean those are que s t i o n s I 21 don't -- I can't answer. 2 2 Q. 2 3 A. All right. You don't know the answer? I don't know the answer to that. 24 Q- Y o u m e a n t h e s e l a w y e r s a n d a l l t h a t c o u n s e l 25 and y our e n v i r o n m e n t a l p e o p l e at M o n s a n t o Martin & Associates (409) 762-2222 30 1 2 3 4 A, 5 6Q 7A 8Q 9 10 A 11 12 Q 13 14 15 16 17 18 A 19 Q 20 A 21 Q 22 A 23 Q 24 25 never told you, "Hey, look we are the m a j o r i t y p a r t n e r in this. We are 55 p e r c e n t responsible'*? Yes. I know that number. I've read that number. Well, that's a majority, isn't it? Yes . And that's a principal party responsible, isn't it? Well, you're g etting into some phrases, now, and I don't want to argue with y o u . I don't want to argue with you, either, and I don't want you to agree just to agree, please. We just have to get to the facts. All right? PRP -- you're aware of that term because you're head of one of the largest c h e m i c a l c o m p a n i e s in the w o r l d . Uh-huh. You know what that means. I certainly do. And that's an EPA -Right. The Environmental Protection Agency came to Monsanto and others and said, "Hey, look. Either you people clean this mess up at Brio Martin & Associates (409) 7 62-2222 31 1 or w e 'r e going to do it and then chargei you 2 and put penalties on you." Isn't that the 3 way that works? 4 A. I d o n't k n o w that that's the way it went at 5 Brio . 6 Q. 7 A. But -It's a p r a c t i c e they do. Sure. 8 Q. 9 A. Tha t ' s g e n e r a l l y the way it works? Sure. 10 Q. W e l l , M o n s a n t o d i d n ' t v o l u n t a r i l y go in t h e r e 11 and say, "Hey, w e ' r e g o i n g to pa y 55 p e r c e n t 12 to c l e a n t h i s up," d i d t h e y ? Y o u k n o w t h a t . 13 A. I d o n ' t -- I d o n ' t k n o w . I d o n ' t k n o w w h a t 14 w a s said. 15 Q. W e l l , y o u k n o w t h e E P A f o r c e d t h a t f r o m t h e m , 16 d o n ' t you? 17 A. I d o n ' t k n o w t hat. 18 Q. N o b o d y t o l d y o u t h a t ? 19 A. No-. 20 Q. O k a y . ,Y o u ' r e a c t i v e l y i n v o l v e d in t h e 21 m a n a g e m e n t and o p e r a t i o n of Monsanto, are you 22 not, sir? 23 A. Y e s , I a m . 24 Q. W a s t h i s j u s t n o t a b i g e n o u g h t h i n g or d e a l 25 for them to come to you and get you to pay Martin & Associates (409) 7 6 2 - 2 2 2 2 32 1 2A 3 4 5 6 7 8Q 9A 10 11 Q 12 13 14 A 15 16 Q 17 18 19 20 21 A 22 23 24 Q 25 atte n t i o n to it? Well, w e ' v e got 42, 0 0 0 p e o p l e in this company, and they're responsible people; and I delegate that authority to them. I listen to their advice. I trust them. And they're h a n d l i n g it, and I d o n ' t get i n v o l v e d in e v e r y t h i n g t h a t goes on in this company. How do you know they're h a n d l i n g it? Near as I can see, they are. I have c o n f i d e n c e in the p e o p l e I put in there. But you've stated you had no reports; you have no firsth a n d - k no w l e d g e ; you don't know anything that's going on over there. Well, I've got confidence in the people h a n d l i n g it. I h a v e to do it t h a t way. What you do, then, so we can get your m a n a g e m e n t style, is tha t the p r o b l e m comes to you and you just -- you pass it on to s o m e b o d y in y o u r c o m p a n y ; a n d t h a t ' s it, as f a r a s ,y o u ' r e c o n c e r n e d ? No. I set po l i c y , a nd I p ut g o o d p e o p l e in place; and I t r u s t t h e i r j u d g m e n t . If I find their judgment wanting, then I remove them. Well, h o w do you k n o w it's w a n t i n g if you haven't made any checks and have no firsthand Martin & Associates (409) 7 6 2 - 2 2 2 2 33 1 2 3 A. 4 5 6 Q. 7 8 9 10 11 A. 12 Q13 A. 14 Q. 15 16 17 A. 18 Q. 19 20 A. 21 22 23 Q. 24 A. 25 kno w l e d g e of a n y t h i n g that's going on at Brio? Well, the p e o p l e I have in p l a c e have a long history of good performance, and I trust them. So that ' s my question. You gave it to t h e m , and t h e n t h a t ' s it: out of sight, out of mind? MS. COHEN: I o b j e c t to the form, of the question. It's argumentative. No . Is that right or wrong? No, it's not right. Okay. But you have done nothing to check to see w h e t h e r or not a n y t h i n g has been done to clean up Brio, have you? Personally, n o . And nobody has reported to you as to what has been done, have they? I h a v e . a g e n e r a l k n o w l e d g e t h e y ' r e in a process. T h e y ' r e in a p r o c e s s to get it c l e a n e d up. That's all you know? That's all I k n o w . It's going along accor d i n g to what the plan was with the EPA, Martin & Associates (409) 7 6 2 - 2 2 2 2 34 1 as n ear as I' m told, and I p r e s u m e it' s on 2 schedule. 3 Q. When did that plan go into effect? 4 A. I don't know. 5 Q. 6 A. 1985? I d o n 't k n o w . 7 Q That would be about right? 8 A. I really don't know. 9 Q. 10 I think that's the year. Is that not the year? Yes. W o u l d it i n t e r e s t you to know 11 that, other t h a n for testing, not one -- not 12 on e c u p f u l of c o n t a m i n a t e d s o i l h a s b e e n 13 r e m o v e d f r o m t h a t s i t e ? W o u l d t h a t at all 14 i n t e r e s t y o u ? 15 A. S u r e it w o u l d . 16 Q- W h y ? 17 A. S e e m s l i k e a l o n g t i m e , b u t t h e r e ' s a p r o c e s s 18 g o i n g on, as I u n d e r s t a n d it, a n d t h a t 19 p r o c e s s is long. It is a very, v e r y l o n g , 20 tenuous p r o c e s s that goes on; and I'm not 21 22 Q. 23 surpr i s e d at the time it takes. You're not? You said it see m e d like a long time. 24 A. B u t I'm not s u r p r i s e d at -25 Q* If B r i o h a d b e e n p r e g n a n t at t h e t ime, t h e Martin & Associates (409) 762-2222 35 1 2 3 4 5 6 7 8Q 9A 10 11 12 13 Q 14 A 15 Q 16 17 A 18 Q 19 20 A 21 22 Q 23 A 24 Q 25 A baby w o u l d be in the t h i r d g r a d e . MS. COHEN: I object to the form of the question. It's argumentative. MR. JAMAIL: It w a sn't a question. It was a statement. MS. COHEN: Then I'll object to the statement on the same basis. Who is R i c h a r d G u i l l i a m s ? Do you know? I've just learned his name this morning. He's w or k i n g on this case on behalf of M o n s a n t o I think out of our Texas -- our Chocolate Bayou plant. You don't know him? I don't know him. And you never heard of him until this morning? That's right. And he's c h a i r m a n of the Brio T a s k Site Force Technical Committee, Monsanto's employee? Well, I don't know the title of that committee. Well, he is. Okay. But you never heard of him till this morning? T h a t 's r i g h t . Martin & Associates (409) 7 6 2 - 2 2 2 2 36 1 Q. J u s t to be f air a b o u t it, yo u just -- -- you 2 have had very little interest in what has 3 gone on out there at Brio? 4 A. I have appropriate interest for what I do for 5 a living. I mean I have people that are 6 f u l l - t i m e on t h e s e t h i n g s . A n d I 'm s u r e -- 7 Q8 You, yourself, have no interest and knowledge about w h a t is g o i n g on there? 9 A. I d o n ' t h a v e a lot of k n o w l e d g e a b o u t it. I 10 h a v e i n t e r e s t in it. Of c o u r s e , I d o . 11 Q. W h a t is y o u r i n t e r e s t in it? 12 A. M y i n t e r e s t is s e e i n g t h a t w h a t e v e r is t h e 13 r i g h t t h i n g to be d o n e is d o n e a n d -- 14 Q. W h a t do y o u m e a n by t h a t ? - 15 A. I've got peo p l e that are c o m p l y i n g wit h -- 16 w i t h th e r e q u i r e m e n t s of th e -- of t h e 17 E n v i r o n m e n t a l P r o t e c t i o n A g e n c y T h e y 're 18 g o o d p e o p l e , a n d I p r e s u m e t h e y 're m o v i n g as 19 f a s t as t h e y p o s s i b l y c a n -- 20 Q . 21 A . W h a t if -- and that's -- I've got good people doing 22 i t . 23 Q. Y o u s a y y o u w a n t to s e e t h e r i g h t t h i n g d o n e ? 24 A. U h - h u h . 25 Q. C o r r e c t ? Martin & Associates (409) 762-2222 1 A. 2 Q. 3 7l i Yes . 1 | i Does that mean if M o n s a n t o did as I earl i e r 3 explained to you, caused toxic wastes to I 4 b e -- b y t h e m i l l i o n s o f p o u n d s b e s t o r e d inj 5 open, unlined, earthen pits where people who i 6 live in the area w o u l d be e x p o s e d to it and ' 7 children were damaged, you would expect I 8 Monsanto to do the right thing by them, 9 w o u l d n 91 you? , 10 A. If people were damaged? 11 Q. Yes . 12 A . O f c o u r s e . 13 Q . S i r , w o u l d yo u ? 14 A. If peo p l e were damaged, of course, I would. 15 Q- A n d if it w a s d o n e in a c a l l o u s e d w a y as I 16 e x p l a i n e d to you, y o u w o u l d n o t h a v e any 17 o b j e c t i o n to t h o s e p e o p l e r e c e i v i n g p u n i t i v e 18 d a m a g e s , w o u l d y o u ? 19 A. If' t h a t w a s -- if t h a t w a s t h e c a s e , 20 a b s o l u t e l y . 21 Q And even if it's a g a i n s t M o n s a n t o ? 22 A. Of c o u r s e . 2 3 Q. 24 A. Very good. If M o n s a n t o did a n y t h i n g wrong, of course. 2 5 Q. All right. The -- do you know how many wells Martin & Associates (409) 762-2222 38 1 2 3 A. 4 Q5 A. 6 Q. 7 A.. 8 Q. 9 10 11 12 13 14 15 16 17 18 19 Q 20 21 22 23 24 25 A have been tested out at that site since 1987 -No . -- for c o n t a m i n a t i o n of water? N o , I d o n 't . Do you know whether any have been tested? I don't know, personally, no, I really don't. Yo u do k n o w t hat M o n s a n t o , b e i n g in c h a r g e of the Task Force t hrough Mr. G u illiams -- and, incidentally, do you know who a Chuck M c L a u g h l i n is? MS. COHEN: I'm going to object to the question -- the form of the q u e s t i o n . MR. JAMAIL: I'll take it -- MS. COHEN: -- b e c a u s e there's two p a r t s to it. MR. J A M A I L : Sure. I'll t a k e it another way. You have told me that you knew who Richard Guilliams was by information you received this morning, and I've told you -- and please accept it -- he's t e s t i f i e d that he's the chairman of the Brio Task Force Technical Committee. All right. Martin & Associates (409) 7 6 2-2222 3S 1 Q. 2 3 A. 4 Q. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q. 24 A. 2 5 Q. Now, Chuck McLaughlin, have you ever heard that name before? No . A l l rig h t . He is an e m p l o y e e of M o n s a n t o . Oka y ? He is the p r o j e c t m a n a g e r of the Brio T a s k -- B rio Site T a s k Force, if y o u ' l l just accept that. MS. COHEN: He is not an e m p l o y e e of Monsanto any longer. He does not work for Monsanto Company. MR. J A M A I L : He used to work for Monsanto. Okay? * Why did you all fire him? No answer. Can you tell me? MS. COHEN: I don't think my d e p o s i t i o n is b e i n g t a k e n tod a y , a n d I d o n ' t think he was fired. M R . J A M A I L : It d o e s n ' t matter whether it's taken or not. I'm asking you a question. How long has it been since he's been an employee of Monsanto? MS. COHEN: I do not kn o w the answer to the question. Do you know the answer to that? No . Okay. Well, as such, based on your Martin & Associates (409) 7 6 2-2222 40 1 2 3 4 5 6 7 8 9 10 11 A 12 Q 13 ` A 14 15 Q 16 17 18 19 20 21 A 22 Q 23 A 24 Q 25 e x p e r i e n c e and your -- in the chemical business and as the highest- ranking officer and. t h e h i g h e s t r a n k i n g m e m b e r of t h e b o a r d of directors of Monsanto, you know that M o n s a n t o does have the r i g h t to go in and test these wells as often as they like to see w hether or not they c ontinue to be c o n t a m i n a t e d ? This is well w a t e r we're talking about. MS. COHEN: I'm g o i n g -I don't know -- I don't know -You don't know what their rights are? I don't know what the rights are, and I'm not sure what the question i s . All right. The q u e s t i o n is: M o n s a n t o does h a v e the r i g h t as the 55 p e r c e n t -- well, as Task Force m a n a g e r , e m p l o y e e of -- I mean R i c h a r d Guilliams, c h a i r m a n of the site, to go. in a n d h a v e t h o s e w e l l s t e s t e d ? MS. COHEN: I o b j e c t to the -I really don't know. If you don't know, tell me you don't know. I don't know. If you w o u l d a s s u m e w i t h me t hat he did have that right, w o u l d you think it prudent on his Martin & Associates (409) 7 6 2 - 2 2 2 2 41 1 2 3 4 5 6A 7Q 8 9 10 11 A 12 Q 13 14 15 16 17 18 19 Q 20 A 21 Q 22 23 24 25 part to go in t h e r e and to t est th o s e wells to see whether they're contaminated with vinyl chlorides and benzene or any other t h i n g ? Do you t h i n k it w o u l d be p r u d e n t for him to go in and c h e c k t h e m now? I suppose. O k a y . T h e -- I w a n t to a s k you, f i r s t , if you've ever seen this before. And I'm not s a y i n g you s h o u l d or s h o u l d n ' t h a v e s e e n it but -No . Y o u ' v e n e v e r s e e n it b e f o r e ? Do y o u m i n d if I walk around there? I want to go over s o m e t h i n g w i t h you here. T h i s is an i n s t r u m e n t m a r k e d -- let me s h o w it to your lawyer. It's a trust agreement, the Brio T ask Force -- MS. COHEN: Thank you. -- Site. Okay? That's the label, correct? Okay. Yes. All right. On Page 6 of this, under Rules of the Donors' Committee, the donors are the o t h e r -- are o t h e r c h e m i c a l c o m p a n i e s that w e r e i n v o l v e d o r i g i n a l l y in the m a t t e r . Just take my word for that. Martin & Associates (409) 762-2222 1 A, 2 Q. 3 4 5 6 7A S 9 10 11 Q 12 A 13 14 Q 15 A 16 17 18 19 Q 20 A 21 Q 22 A 23 24 Q 25 Okay. Okay? If you will look at th a t p a r a g r a p h that I have highlighted there for you, Monsanto has the absolute right to veto a n y t h i n g the d o n o r c o m m i t t e e w a n t s to do, d o n 't t h e y ? The h i g h l i g h t e d part that says "... provided that no d e c i s i o n shall be m a d e p u r s u a n t to this section w i t h o u t the c o n c u r r e n c e of Monsanto Company." That's a veto, isn't it? Well, I don't know. I got -- I don't know the whole c o n t e x t of this thing. Well, as far as -It says "... p r o v i d e d that no d e c i s i o n shall be made pursuant to this Section ..." This s e c t i o n is R u l e s of t h e D o n o r s ' C o m m i t t e e . I'm not a l a w y e r . I'm trying -I know. -- to figure out what this t h i n g -I d o n ' t w a n t yo u to a n s w e r any q u e s t i o n s -I don't know any more than what I can read here, honestly. As far as -- and the Jury will have the whole thing -- Martin & Associates (409) 762- 2 2 2 2 Ji 43 1A 2Q 3 4 5 6 7A 8 9Q 10 A 11 12 13 14 Q 15 16 17 A 18 19 20 Q 21 22 23 24 25 Yes . -- but as far as that par a g r a p h that I've p o i n t e d out to you is c o n c e r n e d , the rules-making powers, Monsanto has the right to veto anything that all the other donors w a n t t o do, if* t h e y s o d e c i d e ? Well, you're going to have to let me read the paragraph. P l e a s e do it. Okay. Monsanto has to agree with the rules of that c o m m i t t e e , is w h a t this t h i n g says to me. M o n s a n t o has' to a g r e e w i t h t h e r u l e s of that committee. So Monsanto would have the right to veto what all the other donor members decided to do regarding the testing of these wells? But I d o n ' t k n o w w h a t e l s e is in here. T h e r e m a y b e 20 other ways that -- you know, it's hard for me to know that. I know. it. But I'm not t r y i n g to t r i c k you. Taking just what that says -- and let's just l i m i t it t o 6, t h e n , w h e r e I ' v e d r a w n w i t h the red pen c i l -- red pen -- M o n s a n t o can veto the other donors as it rela t e s to that paragraph? Martin & Associates (409) 7 6 2 - 2 2 2 2 1 A. 2 3 4 5Q 6A 7Q 8 9A 10 11 Q 12 13 14 15 16 A 17 Q 18 19 20 21 22 23 24 25 Well, it says t h e y h a v e -- w h a t e v e r is done has to be made with their concurrence and that sounds like veto, but veto has a little d i f f e r e n t -All right. -- thi n g than c o n c u r r e n c e , you know. Let me r e p h r a s e it, please. N o t h i n g can get done -I don't to debate you. I'm trying to understa n d what you're -I know you are. N o t h i n g can be done in that p a r a g r a p h -- a n d -I k n o w y o u h a v e n ' t r e a d a l l this, and I d o n ' t want you to -- let's limit it to that p a r a g r a p h -- w i t h o u t M o n s a n t o ' s saying it can be done? I think that's what that says. All right. MR. J A M A I L : We want to introduce this, the entire instrument. MS. COHEN: Did you mark it? MR. JAMAIL: M a r k it. You can do it later, if you want, or you can do it now. I don't care. Mahoney 2 , p l e a s e . Martin & Associates (409) 7 62-2222 45 1 2 3 4Q 5 6 7 8A 9Q 10 11 12 13 14 15 A 16 Q 17 18 19 20 21 22 23 24 A 25 (An i n s t r u m e n t was m a r k e d M a h o n e y Exhibit No. 2 for identification.) Mr. Mahon e y , are you f a m i l i a r at all -- and if y o u ' r e not, j u s t tel l me -- w i t h the l o c a t i o n of the S o u t h b e n d S u b d i v i s i o n as it relates to the Brio superfund site? I t ' s n e a r it, a n d t h a t ' s a l l I know. That's all you know. Do you know that Monsanto and Farm & Home, the developers, had k n o w l e d g e that a s u b d i v i s i o n was going in this close proximity years before they stopped sending chemical wastes, toxic wastes to this site? No, I don't have any k n o w l e d g e of that. If t h a t occu r r e d , do you h a v e an o p i n i o n as a -- well, as a human being and as chief executive officer and chairman of the board as. t o w h e t h e r o r n o t M o n s a n t o s h o u l d h a v e taken steps at that time to ascertain whether or not the wastes they were caus ing to be sent to this site were being properly disposed of? Well, I don't know -- help me u n d e r s t a n d what y o u 're a s k i n g . Martin & Associates (409) 7 62-2222 46 1 Q. 2 3 *A* Okay. MR. JAMAIL: W o u l d back to him slowly, please. you read it 5 (The pending question was read 6 by the reporter.) 7 8 A. I really don't have an opinion. 9 Q. 10 Do yo u t h i n k t h e y can just dump, it w i t h o u t concern as to whether or not people are going 11 to drink the w a t e r that's c o n t a m i n a t e d or 12 b r e a t h e t h e a i r t h a t ' s c o n t a m i n a t e d ? Is that 13 w h a t y o u 're s a y i n g ? 14 A. W e l l , I d o n ' t k n o w t h a t t h e y w e r e d u m p i n g it, 1 5 a n d t h a t 's t h e p o i n t I ' m t r y i n g to m a k e . 16 Q. W e i 1, if t h e y w e r e s t o r i n g it in o p e n , 17 u n l i n e d , e a r t h e n p i t s w h e r e -- 18 A. I d o n ' t k n o w w h a t t h e y w e r e d o i n g -- 19 Q. it could leach into the ground. 20 A. -- and so -- 21 Q * I want you to assume with me that' s what they 22 w e r e doing. 23 MS. C OHEN: T h a t ' s w h a t w h o was 24 doing? 25 Q. M o n s a n t o w a s c a u s i n g i t s w a s t e s to b e p l a c e d Martin & Associates (409) 7 6 2 - 2 2 2 2 47 1 in open, unlined, e a r t h e n pits. 2 A. Is t h a t a fact? 3 Q . Yes, sir. 4 MS. COHEN: Well, I object to 5 that. 6 A. I don't know that. 7 Q. Well, if I tell you to a s s u m e t hat wit h me, 8 w o u l d y o u do it, p l e a s e ? 9 A . Sure. 10 Q. If it's wrong, it's wrong. Then do you think 11 that M o n s a n t o had a r e s p o n s i b i l i t y to make 12 c e r t a i n its w a s t e s w e r e n o t b e i n g s e n t or 13 c a u s i n g t h e m to be s e n t to a p l a c e w h e r e they 14 w e r e i m p r o p e r l y d i s p o s e d of in open, u n l i n e d , 15 e a r t h e n p i t s ? 16 A. It t a k e s a l o n g t i m e to g e t to t h e q u e s t i o n , 17 now. A n d I' m t r y i n g to f i n d th e w o r d s one at 18 a t i m e b e c a u s e I d o n ' t w a n t to s o u n d foolish, 19 bu t I -- 20 Q . You d o n 't . 21 MR. J A M A I L : Would you read it back 22 to h i m , p l e a s e . 23 24 (The p e n d i n g q u e s t i o n wa s r e a d 25 by the report e r . ) Martin & Associates (409) 762 - 2 2 2 2 43 1 Q Do you think they had such responsibility? 2A I don't know. I really don't know. I don't 3 know the facts at the time. 4Q 5 I just gave you the facts. just gave you. Just take what I 6A Well -- 7Q 8A If that was i t . If that -- if -- if -- if -- but you're 9 saying we caused that stuff to be put.in open 10 pits, and t h a t ' s -- 11 Q 12 A Cau s e d it to be sent. I'm having trouble with the hypothetical 13 w h e n -- 14 Q 15 A Let me -- -- when what I know about the facts don't 16 s q u a r e . 17 Q You said you didn't know anything. 18 A And I don't k n o w a lot -- I know -- 19 Q 20 A Do. y o u n o w k n o w s o m e t h i n g a b o u t t h e f a c t s ? I know what I know. And w h a t I -- what I -- 21 I don't know what I don't kn o w and I -- 22 Q 23 You don't know anything firsthand. know -- All you 24 A Right. 25 Q -- is w h a t som e of y o u r l a w y e r s -- Martin & Associates (409) 7 6 2 - 2 2 2 2 49 1 A. 2 3 Q4 A. 5 Q. 6 A. 7 Q. 8 9 A. 10 11 Q . 12 13 14 A. 15 Q . 16 17 18 19 A. 20 . Q 21 22 A. 23 24 Q . 25 I'm trying to understand the hypothetical ve r s u s the real, and I d o n ' t deal -Well, you d o n ' t kn o w --- all day in h y p o t h e t i c a l s . Y o u d o n ' t k n o w w h a t is real, a n y w a y . T h a t 's r i g h t . You say you don't know what went on out there. I really don't know the facts, and I'm trying to go wi t h a h y p o t h e t i c a l, and it's -Well, go w i t h my h y p o t h e t i c a l . If I'm w r o n g , t h e J u d g e a n d the' J u r y w i l l p u n i s h me. Okay? Will you do that? Sure. But you don't know anything other than what your lawyers have told you. You've told me that. Y o u k n o w n o n e of t h e s e facts. Is that correct? That's correct. So they may not have told you the facts / right? I doubt that -- w h a t e v e r they told me, I have c o n fide n c e in them. Well, you have to. You're d e f e n d i n g the lawsuit. Martin & Associates (409) 7 6 2 - 2 2 2 2 50 1 A. Well, I k n o w t h e s e p e o p l e . I 've w o r k e d w i t h 2 them for y e a r s . 3 Q4 Well, y o u ' v e n e v e r k n o w n a bad p e r s o n in y o u r whole life? 5 A. 6 Q. A bad -- of course , I have You've never known anybody that would lie to 7 you in your wh o l e life? 8 A. Certainly, I have. 9 Q. O k a y . Now, let's get back to this case. 10 A. B u t not t h e s e p e o p l e . 11 Q. Do y o u r e m e m b e r my h y p o t h e t ? 12 A. N o w , . d o it a g a i n s o I c a n <g e t it r i g h t . 13 Q. S u p p o s e y o u a r e t h e c h i e f e x e c u t i v e o f f i c e r 14 of M o n s a n t o and s o m e o n e c o m e s to y ou and says 15 to you, "Mr. M a h o n e y , P r e s i d e n t M a h o n e y , we 16 a re s t o r i n g or w e 're c a u s i n g to be sen t -- we 17 a re t hep e o p l e whom a n u f a c t u r e " -- 18 A . U h - h u h . 19 Q. -- a p r o d u c t t h a t c r e a t e s t o x i c w a s t e s . 20 A . Y e s . 21 Q. " A n d we, as the m a n u f a c t u r e r , are g e t t i n g rid 22 of t h e s e w a s t e s and t h e y ' r e b e i n g s t o r e d or 23 p r o c e s s e d in open, u n l i n e d , e a r t h e n pit s that 24 a re m i g r a t i n g into the w a t e r and into the 25 soil." W o u l d you c o n t i n u e just to keep doing Martin & Associates (409) 762- 2 2 2 2 51 1 2 3 A. 4Q 5A 6 7Q 8 9 10 A 11 Q 12 A 13 Q 14 A 15 16 17 Q 18 19 A 20 . Q 21 A 22 Q 23 24 25 A that, or w o u l d y o u do s o m e t h i n g a b o u t it, if that were the fact? Well, I'd first find out who's saying that. O n e of y o u r o w n p e o p l e a r e s a y i n g it. And, s e c o n d l y , I'd find out is it h a z a r d o u s , and I don't know the answer to that. Now, suppose you go out and you inspect and you see that these are the facts. What would you do? I'd ask s o m e b o d y to do w h a t e v e r is r i g h t . W h a t is r i g h t ? I d o n 't k n o w . You're the man that has to decide. No. No. I'd get the p e r s o n who was in c h a r g e of t h a t a r e a a n d I ' d say, " D o w h a t is right." That's the way -Y o u k i n d of r u n it like t h e p o s t o f f i c e . Is that it? No-, i t ' s n o t l i k e t h e p o s t o f f i c e . M r . M ah o n e y -I tell p e o p l e to do w h a t is right. -- would you not stop the deliverance of such t o x i c w a s t e s t h a t can c a u s e c a n c e r in children or not? Would I stop the deliverance of wastes that Martin & Associates (409) 762-2222 52 1 2Q 3A 4 5Q 6 7 8 9A 10 11 Q 12 13 A 14 Q 15 16 A 17 18 Q 19 20 A 21 Q 22 23 24 A 25 Q c o uld c a u s e c a n c e r in c h i l d r e n ? Yes . C e r t a i n l y , if I t h o u g h t it wa s c a u s i n g c a n c e r s in children. If the l i t e r a t u r e said it c o u l d cause cancer and cause other kinds of defects including b i r t h d e f e c t s , w o u l d yo u pu t a stop to it immediat e l y and find out about it? If I t h o u g h t that was g o i n g on, I c e r t a i n l y would. And you wouldn't send another drop out there, would you? Well, I don't k n o w -- you see, you' r e -If t h a t h a p p e n e d , y o u w o u l d -- w o u l d you -I'll go either way. I'd s t o p it. I'd s t o p it. I'd s t o p it, yes, if I kne w those facts. The f a i l u r e to stop it is m a l i c i o u s , isn't it? It w o uld be, i f 'you knew that. Y e s . The failure to stop it would be a gross disregard for the rights of people who might be e x p o s e d to it, w o u l d n ' t it? If yo u k n e w that, it sure w o u l d be. And if you knew that and you d i d n ' t take Martin & Associates (409) 7 6 2 - 2 2 2 2 53 1 s t e p s to s t o p it, it w o u l d be a l m o s t 2 criminal, w o u l d n ' t it? 3 A. It's a big -- it's a big front end of that 4 q u e s t i o n : if y o u k n e w it. 5 Q . Yeah. 6 A. Yeah. 7 Q. If you ha d r e a s o n to k n o w it -- ho w about 8 that? -- and then ignored it? 9 A. W e l l , n o w y o u ' r e g e t t i n g i n t o l a w y e r s ' t e rms. 10 Q. No. T h a t ' s n o t l a w y e r . 11 A. I have no reason to k n o w . 12 Q. T h i s is p e o p l e . T h i s is n o t l a w y e r s . It's 13 p e o p l e . If y o u h a d r e a s o n to k n o w , a r e y o u 14 t a k i n g t h e p o s i t i o n on b e h a l f of M o n s a n t o 15 t h a t it was all r i g h t for yo u just to turn 16 y o u r ass to it and n e g l e c t it and i g n o r e it 17 w h i l e t h e c h e m i c a l s t h a t we t a l k e d a b o u t are 18 s t i l l b e i n g s t o r e d in t h e w a y I t o l d you? Is 19 t h a t all r i g h t , in y o u r o p i n i o n ? 20 MS. COHEN: I obje c t to the form of 21 the q u e s t i o n . 22 A. I d o n ' t u n d e r s t a n d the q u e s t i o n . 23 Q. W ell, let m e t r y to r e p h r a s e it fo r you, 24 sir. A r e you s a y i n g it's e x c u s a b l e c o n d u c t 25 on behalf of a r e a s o n a b l y p r u d e n t chemical Martin & Associates (409) 7 6 2 - 2 2 2 2 54 1 2 3 4 5 A. 6 Q. 7 A. 8 Q9 A. 10 Q. 11 A. 12 13 Q. 14 15 16 17 18 19 20 21 22 23 A. 24 25 <2 manufacturer, once s o m e t h i n g becomes known to him, to ignore the fact that what he's doing c o u l d c a u s e i r r e p a r a b l e d a m a g e to p e o p l e ? Is that all right? Now, are you still on the h y p o t h e t i c a l -Yes . -- or what did I know? No. I'm on the h y p o t h e t i c a l . It's wro n g to cause d a m a g e to p e o p l e -And -- if that's what you ' r e asking, and -- yes, it is. It's a l w a y s w r o n g to h a r m people. A n d if M o n s a n t o had e m p l o y e e s who were responsible employees charged with the duty of making these reports -- and you said you had a gr e a t deal of c o n f i d e n c e in these p e o p l e -- and he r e p o r t e d such, t h a t t h e r e is a subdivision h e r e , and we are sending chemicals that can be harmful to that, do you think Monsanto, as a reasonably prudent chemical c o m p a n y , should have ignored his warning? I -- I'm lost in the h y p o t h e t i c a l . I'm going to h ave to go b ack a g a i n b e c a u s e I r e a l l y -Well, listen closely. Martin & Associates (409) 7 6 2 - 2 2 2 2 55 1 A. 2 3 4 5 6 7 8 9 10 Q. 11 12 13 14 15 16 A. 17 18 19 Q. 20 A. 21 Q. 22 A. 23 Q. 24 A. 25 Q. -- I d o n ' t s p e n d a lot of time in hypothetical. MS. COHEN: Mr. Mahoney, why don't you listen to the hypothetical question and take a m o m e n t to make sure you u n d e r s t a n d -- THE WITNESS: That's what I'm tr y i n g to do. MS. COHEN: -- and if yo u can a n s w e r it, go a h e a d a n d try. Sure. We got plenty of time, and Ms. Martin will be g l a d to r ead it b ack to you. (The pending question was read by the reporter.) Okay. The hypothet -- let me get the h y p o t h e t i c a l . I -- we're sending harmful chemi c a l s in this h y p o t h e t i c a l -Wastes, yes. -- to so mething and it's a subdivision? To Brio, and it's a subdivision. And s o m e b o d y can get injured b e c a u s e of it? Yes . T h e n you s h o u l d n ' t do it. A nd M o n s a n t o k nows that t h e s e toxics, if Martin & Associates (409) 762-2222 56 1 2 3 4A 5Q 6A 7 8Q 9A 10 Q 11 12 13 14 Q 15 A 16 Q 17 18 19 20 21 22 23 A 24 Q 25 A people are exposed to them in quantity, can be dreadfully injured. Should they have continued to send them? Now, this is b ack in the h y p o t h e t i c a l again. Yes . If they know there's a hazardous material that could hurt -- Yes . No. Of c o u r s e not. They s h o u l d n ' t have sent it to begin with, should they? M S . C O H E N : A s s u m i n g the fact of the hypothetical. Assuming the facts. On that hypothetical, of course. N o w , sir, I have to ask you h y p otheticals because are you totally unaware of what went on out there. That's the only way I can qu.est i o n you. But the h y p o t h e t i c a l I a s ked y o u is in e v i d e n c e in t h i s case. T h e r e is an exhibit. is? A Mr. Ron Sadow, do you know who he No . Have you ever heard of him? No . Martin & Associates (409) 7 62-2222 57 1 Q- 2 3 A. 4 Q. 5 6 7 A. 8 Q9 A. 10 . 11 Q- 12 13 14 15 16 17 18 Q19 20 21 22 Q. 2 3 A. 24 Q. 25 A. They did n ' t tell you about M r . Sadow -- your lawyers ? No. That he was reporting this to higher-ups, and they just kind of said "out of sight, out of mind"? Have you ever heard that phrase? I heard that this morning. Who told you? I d i d n ' t -- I didn't know the context. Phyllis. What did she tell you about this out of s i g h t , out of mind?' MS. COHEN: I'm g o i n g to instruct Mr. M a h o n e y not to d i s c l o s e the content of my conversation with him. MR. JAMAIL: Well, baloney. He can tell me w h a t yo u tol d him a b o u t if it's not a lawyer/attorney privilege. What did she tell you about out of sight, out of. m i n d ? MS. COHEN: Mr. Mahoney, I'm going to instruct you not to answer that question. Are you going to answer it? I got an instruction from counsel. Well, what do you have to hide about that? Nothing. Martin & Associates (409) 7 62-2222 . 58 1 Q. 2 A. 3 4 5 A. 6 7 8 9 10 11 12 13 14 15 16 17 Q. 18 19 20 21 22 Q. 23 24 25 We 11 , w o u l d you go on and a n s w e r it, t h e n . Well , look, I -- MS . COHEN: I'm going to instruct you not to answer his q u e s t i o n . -- you two -- MR. J A M A I L : Ms . Cohen? On what basis f MS . COHEN : On the basis of the attorney/client privilege. MR. J A M A I L : You mean you can prep him and tell h i m what to answer, and t h a t 's attorney/client privilege? MS . COHEN: I've stated my r e a s o n . MR. JAMAIL: I disagree. MS . COHEN: Well, you can disagree all you want. I've stated my reason * All right. Well, you go on and answer. MR. JAMAIL: The J u d g e will rule on the objection . Let him answer the question. MS . C O H E N : Mr. Mah o n e y , I 'm instructing you not to answer the question. You' re going to have to come back at some later date, then, Mr. M a h o n e y . M r . M a h o n e y , out of s i g h t , out of m i n d ., in t h e c o n t e x t I 'm u s i n g it is t h a t w e Martin & Associates (409) 762 - 2 2 2 2 59 1 2 3 4 5 6 7 A. 8 Q. 9 A. 10 Q11 A. 12 Q. 13 A. 14 Q. 15 16 A. 17 Q. 18 A. 19 Q. 20 21 22 A. 23 24 25 have got a p r o b l e m ^ w i t h d i s p o s i n g of certain wastes generated by styrene tars and vinyl c h l o r i d e ; so if we c o u l d j ust get t h e m out of sight, we don't have to think about them anymore. We d o n ' t care w h a t it does or who it does it to. Is that y o u r p h i l o s o p h y , sir? No, it's not my p h i l o s o p h y . Is that a p r o p e r p h i l o s o p h y ? Not in that context. Is that a p r o p e r b u s i n e s s t e c h n i q u e ? N o t in the c o n t e x t you d i d it, no. It's imprudent, isn't it? In t h e c o n t e x t y o u d i d it, t h a t ' s right. It would not be the r e a s o n a b l e act of a p r u d e n t c h e m i c a l m a n u f a c t u r e r , w o u l d it? T h e w a y y o u s a i d it. It w o u l d not? Would not. It.would be a total knowing actual disregard for the rights of people who would be injured by it, w o u l d n ' t it? Well, I'm g o i n g to -- b a c k to w h a t -- is this the hypothetical again? I was with you for a while. Now y o u ' r e g e t t i n g it to p u n i s h m e n t of people. Martin & Associates (409) 7 62-2222 60 1 Q ` Out of sight, out of mind. 2A Oh. It's not a good practice, and it 3 shouldn't be done. 4Q It would be an actual knowing disregard for 5 the rights of people who might be injured, 6 correct? 7A Well, I've -- frankly, I've f o r g o t t e n what 8 the o u t - o f - s i g h t , o u t - o f - m i n d h o o k was to -- 9Q Well, we m a k e this waste and it can be toxic 10 a n d p o i s o n o u s a n d stuff, a n d we ju s t g e t it 11 off the p r e m i s e s and don't do a n y t h i n g else 12 a b o u t it. 13 A Okay. If t h a t ' s the context, y o u ' r e m a k i n g 14 toxic, p o i s o n o u s stuff, g e t it off the 15 p r e m i s e s a n d d o n ' t t h i n k a b o u t it, t h a t ' s 16 w r o n g . 17 Q 18 And it w o u l d be an actual k n o w l e d g e a b l e act w h i c h w o u l d resu l t in a total d i s r e g a r d for 19 t h e r i g h t s of p e o p l e w h o m i g h t be i n j u r e d by 20 it? 21 A That's right. 22 Q Correct? 23 A That's right. In that context, sure. 24 Q 25 Yes. MR. J A M A I L : Well, w h e r e is Martin & Associates (409) 762- 2 2 2 2 61 1 2 3 4Q 5 6 7 S 9 10 11 12 A 13 Q 14 A 15 16 Q 17 A 18 Q 19 A 20 Q 21 A 22 23 24 25 Q M r . Sado w ' s e x h i b i t ? Do we ha v e it here? I'd like for h i m to see it. Well, w e ' l l get on to something else. Are you d e n y i n g in any way, sir, b e c a u s e you told me you d o n ' t k n o w any of the facts in this case, that the residents of Southbend Subdivision that are represented by m y s e 1f , M r . K r i s t , M r . Dalton Jones and Mr. Dana Kirk -- do you deny that t h e s e peo p l e were exposed to toxic and carcinogenic chemicals from the Brio site? I don't know w h a t .they were e x p o s e d to. You can't deny that, can you? I have no personal knowledge what they were e x p o s e d to. So you don't deny it? I d o n 't k n o w . So you c a n ' t d e n y it if you d o n ' t know. T h a t ' s right. I c a n ' t d e n y it. Okay. No. That doesn't sound r i g h t . Say that again. That's unfair. MR. J A M A I L : R e a d it. Read it back to him. I'm not trying to be unfair. I'm asking you Martin & Associates (409) 7 6 2 - 2 2 2 2 62 1 2 A. 3 4 5 6 7 8 A. 9 10 11 12 A. 13 Q14 15 A. 16 Q. 17 18 19 20 A. 21 22 23 24 25 Q. to give an answer to me. Well, you know -- MR. JAMAIL: Read it back to him. (The pending question was read by the reporter.) I d o n ' t k n o w w h e t h e r they w e r e is the way I hear the question. MS. COHEN: Of your own personal knowledge. Of my k n owledge. Mr. Mahoney, what did you receive your degree in in co l l e g e ? Chemistry. You will agree, will you not -- or you may not. Don't do it for the sake of agreement. I n e e d y o u r t e s t i m o n y -- t h a t b e n z e n e is a human carcinogen, causes cancer? It causes cancer. I think it's c l a s s i f i e d as a human carcinogen. And there's a whole variety of classifications. I think that's correct. I'm trying to be very specific with the answer -I k n o w it, and I w a n t y o u to be. Martin & Associates (409) 762-2222 63 1 A. -- because there's a lot of technical 2 d e f initions in this business. 3 Q. Well, as far as y o u ' r e c o n c erned, as ch a i r m a n 4 of the board and CEO of one of the biggest 5 c h e m i c a l c o m p a n i e s in the w o r l d and as a 6 chemist, y ou k n o w t hat b e n z e n e is e x t r e m e l y 7 harmful to human beings who are exposed to 8 it? 9 A. Large exposures, I think, is the 10 Q. Y e s . 11 A. -- correct -- 12 Q. W e k n o w t h a t it's- in g a s o l i n e . 13 A. Y e s . A n d t h a t ' s t h e c o n t e x t I ' m t a l k i n g 14 a b o u t . 15 Q Do y o u k n o w a n y b o d y t h a t r u n s a r o u n d s n i f f i n g 16 g a s o l i n e all day? 17 A. N o , I d o n 't . 18 Q. I d o n ' t , e i t h e r . B u t p e o p l e w h o h a v e it -19 a r e e x p o s e d to it in s u f f i c i e n t q u a n t i t i e s 20 c an e x p e c t to s u f f e r s e r i o u s h a r m f u l e f f ects? 21 A. I don't know that. 22 Q- W e l l , y o u k n o w it h a s s ome. 23 A. A lot of b e n z e n e i s n ' t g o o d for you. 24 Q. O k a y . Y o u w o u l d n ' t p u t it on y o u r 25 strawber r i e s, would you? Martin & Associates (409) 7 6 2-2222 64 1A 2Q 3 4A 5 6Q 7 S 9 10 11 12 13 A 14 Q 15 16 A 17 Q 18 A 19 Q 20 A 21 22 Q 23 24 25 A No . How about vinyl chloride? Is that a human carcinogen? Vinyl chloride monomer, I think, has been classified that way. As a c h e m i s t -- well, just as a p e r s o n who r e a d s and is k n o w l e d g e a b l e , b e c a u s e you are in a very high p o s i t i o n in the c h e m i c a l business, you do know that vinyl chlorides and monomers and benzene and -- to name just a few -- are not h e l p f u l to hum a n s who are exposed to them? Th a t ' s right, in that c o n t e x t of exposure. A n d t h e y can, if the e x p o s u r e is g r e a t enough, cause serious harm to people? Yes . Cause cancers? In -- in -- under the d e f i n i t i o n -- Yes . -- of laboratory animals and the variety and there are some h u m a n s , I t h i n k , and -- I d o n ' t w a n t to tak e it -- I d o n ' t w a n t it to be b r o a d e r than my q u e s t i o n in the context I'm gi v i n g it to you. Sure. Okay? Martin & Associates (409) 762-2222 65 1 Q. I won't present to the Jury that it's meant 2 to be . 3 A. Yes . 4 Q. I'm being as straight as I can with you, 5 Mr. Mahoney. 6 A. Let me just make a point. That's probably 7 vinyl chloride, and that's not -- that's not 8 a carcinogen. 9 Q. That's correct. The monomers. 10 A. M o n o m e r s . A n d in c e r t a i n c i r c u m s t a n c e s . 11 T h a t ' s the o n l y p o i n t I'm m a k i n g . 12 Q . We k n o w that. O k a y ? But I'm t a l k i n g a b out 13 in t h e c o n t e x t I ' m t a l k i n g to y o u a b o u t in 14 t h i s case. 15 A. R i g h t . 16 Q . Okay? What about dichloroethane? 17 A. I d o n ' t k n o w a n y t h i n g a b o u t d i c h l o r o e t h a n e . IS Q - And trichloroethane. 19 A. Oh-. T r i c h l o r o e t h a n e . O k a y . T h o s e a r e 20 d r y - c l e a n i n g -- u s e d in d r y - c l e a n i n g . 21 Q . Y o u c a n p r o n o u n c e it. I can't. 22 A. I ' m j u s t t r y i n g to -- 23 Q. I c o u l d n 't even pass c h e m i s t r y , so go ahead. 24 A . Well, t h o s e are, I think, d r y - c l e a n i n g 25 s o l v e n t s . Martin & Associates (409) 762-2222 66 1 Q - And they can be h a r m f u l if e x p o s u r e -- 2 A. I think it's been reported, yes. 3 Q < As cancer-causing agents? 4 A. I think -- I think p e r c h l o r o e t h y l e n e has or 5 trichloroethylene. I'm not sure w h i c h . 6Q And these -- t h e s e c h e m i c a l s w e ' r e t a l k i n g 7 about can cause other problems other than 8 cancers, as far as you know, as far as you've 9 read? 10 A No. I d o n ' t know that for a fact. 11 Q 12 A You don't know one way or the other? I don't know that- for a fact, no, I don't. 13 Q Okay. The -- but we can agree that these 14 c h e m i c a l s c a n c a u s e a d v e r s e h e a l t h e f f e c t s in 15 h u m a n s if e x p o s u r e is g r e a t e n o u g h ? 16 A Certain kinds of exposure, I'm sure. 17 Q 18 Do you agree with me that children, because they are smaller and younger and t e n d e r , are 19 m o r e s u s c e p t i b l e to g r e a t e r r i s k b e c a u s e of 20 e x p o s u r e to c a r c i n o g e n i c chem i c a l s ? 21 A I don't know that. 22 Q 23 A You'll leave that to the doctors? I'd leave that to somebody -- somebody 24 b e s i d e s me. 25 Q Okay. Do you d i s a g r e e , M r . M a h o n e y , with the Martin & Associates (409) 7 6 2-2222 67 1 2 3 4 5 6 7 8 9 A. 10 Q . 11 A. 12 Q . 13 14 15 A. 16 Q . 17 18 A. 19 Q 20 A . 21 Q . 22 23 24 25 test -- well, with this proposition, since you haven't heard the testimony: that the exposure to such chemicals and even the perceived exposure to such chemicals can cause stress and anxiety in people, including children, who believe that they've been e x p o s e d in s u f f i c i e n t q u a n t i t i e s to cause them to have health p r o b l e m s ? I don't know. I don't even have an o p i n i o n . Well, yo u k n o w w h a t s t r e s s is, do n ' t you? Yes . And if p e o p l e b e l i e v e t h a t t h e y ' r e g o i n g to be hurt, they usually get under stress, don't they, norma1ly? Normally, they do. Sure. And they worry about their health, don't they? I s uppos e some do. Well, you would, wouldn't you? Under stress? Yes . MS. COHEN: I'm not sure I understand the question. MR. J A M A I L : I'm not asking you. MS. COHEN: Well, I have an Martin & Associates (409) 7 6 2 - 2 2 2 2 objection because MR. JAMAIL: Okay. Let me rephrase it. MS. COHEN: -- I d o n ' t think the w i t n e s s is c l e a r as to w h a t -MR. J A M A I L : Let me r e p h r a s e it. MS. COHEN: -- h e's r e s p o n d i n g to. If you were fe a r f u l that you had been exposed to highly toxic chemicals and that you were going to have cancer or some other d r e a d e d , horrible disease, that would cause you some mental anxiety, w o u l d n ' t it? I s u p p o s e it would. And you wouldn't have any reason to think others would not react like it? I suppose under those hypothetical conditions you just raised. I mean they're all hypothetical so I'm -Sir, you- s e e m t o d i s l i k e m y h y p o t h e t i c a l q u e s t i o n s so. m u c h . If y o u h a d r e a d a n d t a k e n the time and the inter e s t in these children's welfare and their lives and what your company did to them, I wouldn't have to ask you h y p o t h e t s ; but b e c a u s e yo u h a v e n 't , b e c a u s e it has been b u r d e n s o m e to you, I'm required Martin & Associates (409) 762-2222 69 1 to ask you hypothetical questions. You 2 understand that, don't you? 3 A. Yes . 4 Q. Okay. 5 MS. COHEN: I'm going to object to 6 the form of the question as argumentative. 7 Q. UA The -- do you agree that a corporation, a chemical corporation, a corporation who 9 m a n u f a c t u r e s c h emicals in g reat quantities 10 has certain r e s p o n s i b i l i t i e s to the public? 11 A. A b s o l u t e l y . 12 Q. T e l l m e w h a t y o u t h i n k t h o s e r e s p o n s i b i l i t i e s 13 % a r e . 14 A. Safety of the public, public good, 15 g o o d - q u a l i t y p r o d u c t s , p r o d u c t s t h a t d e l i v e r 16 s e r v i c e and value, all t h o s e things. 17 Q- Y o u m e n t i o n e d t h e m o s t i m p o r t a n t t h i n g f i r s t , 18 a n d t h a t ' s s a f e t y -- 19 A. A b s o l u t e l y . 2 0 Q. -- to the public. And you believe that, 21 d o n't you? 22 A. Yes, I do. 23 Q. W i l l y o u a g r e e t h a t i t is t h e r e s p o n s i b i l i t y 24 of a prudent, r e s p o n s i b l e c h e m i c a l c o m p a n y 25 t h a t ' s in the b u s i n e s s of m a n u f a c t u r i n g and M a v*+ *-> p 70 1 2 3A 4Q 5A 6Q 7A 8 9Q 10 11 A 12 Q 13 14 A 15 16 17 18 Q 19 20 21 22 23 A 24 Q 25 A selling c h e m i c a l s to d e t e r m i n e the effect of its waste products on the receiving stream? On the receiving stream? Y e s , wherever it's going to be sent. You m e a n w h e r e it goes? Yes. Is that a r e s p o n s i b i l i t y ? That's contemporary practice. That's what we do these d a y s . And that's the respons i b i l it y of the chemical company? That's what we do these days. Sir, is it or is it not? A n s w e r "Yes" or "No," and then you can explain. Yes, because I'm going from my experience. And I haven't been involved except for the last several years, and that's the way we do it. Well, in -- a step farther, yo u do that so that you can d e t e r m i n e w h e t h e r the waste as discharged or processed or d isposed of will or will not adversely affect the environment or human life, don't you? Sure. And you have that responsibility, don't you? Y e s , we d o . Martin & Associates (409) 762-2222 i 71 1 Q- A n d is it y o u r r e s p o n s i b i l i t y , also, to 2 acquire a thorough knowledge of subsurface 3 formation before disposing of the chemical 4 w a s t e p r o d u c t s if t h e y ' r e t o x i c and can get 5 into the water? Do you have that 6 responsibility? 7 A. Well, first of all, there's a lot of 3 regulations that describe all that; and the 9 people who handle that stuff, you know, they 10 a s s u r e us that. We d o n ' t go out and -- 11 ' 12 . I know. But t hat is the r e s p o n s i b i l i t y that you have to -- 13 A. Y o u ' v e g o t to be s u r e . T h e l a w is v e r y 14 c l e a r , an d t h a t ' s t h e r i g h t t h i n g to do, 15 a b s o l u t e l y . 16 Q- . A n d y o u h a v e t h a t r e s p o n s i b i l i t y -- 17 A . Yes . 18 Q. -- w i t h o u t q u e s t i o n ? 19 A.- Y e s . 20 Q. A l l right. A n d is it als o y o u r 21 r e s p o n s i b i l i t y -- the c o m p a n y 's , not you 22 p e r s o n a l l y -- okay? -- the c o m p a n y ' s 23 r e s p o n s ib i 1 ity to c o n s i d e r th e p o t e n t i a l 24 t h r e a t o f c o n t a m i n a t i o n o f g r o u n d `. w a t e r 25 b e f o r e d i s p o s i n g of its c h e m i c a l w a s t e s or r Martin & Associates (409) 762-2222 \  - 72 . 1 c a u s i n g it to be d i s p o s e d of in open, u n l i n e d 2 pits? 3 A. I don't know. I don't know. I don't know 4 open, unlined pits. 5 Q. W e l l , s u p p o s e -- let me -- if y o u d o n ' t k no w, 6 let me try on e x p a n d on it. S u p p o s e it's in 7 a c o n t a i n e r of such that can leak into the 8 soil and into the water where people will 9 d r i n k it and also into the air w h e r e people 10 b r e a t h e it. I t h i n k y o u t o l d me e a r l i e r -- 11 A. Y o u ' r e a s k i n g me w h a t w o u l d I do? 12 Q. Yes. W h a t is t h e r e s p o n s i b i l i t y of t h e -- 13 MS. COHEN: Mr. Mahoney, why don't 14 you listen, let him complete his question, 15 and answer that question. 16 THE WITNESS: Okay. 1 7 Q. I t h i n k y o u ' v e t o l d me t h e c o m p a n y d i d h a v e 18 the respon s i b i l it y to make sure that that 19 d i d n ' t h a p p e n . Is that c o r r e c t ? 20 A . Y e s . 2 1 Q. Okay. And you're still of that opinion? 22 A . Y e s . 2 3 Q. T h e y h a v e t h e r e s p o n s i b i l i t y to s ee t h a t 2 4 t h e i r w a s t e s d o n ' t get s t o r e d or put in such 2 5 a place. Y o u ' r e nodding. Is that "Yes"? Martin & Associates (409) 762-2222 73 1A 2Q 3 4 5 6 7 8 9A 10 Q 11 A 12 Q 13 A 14 Q 15 16 17 18 19 20 21 A 22 23 Q 24 A 25 Q Yes. Yes. All right. The -- if you w e r e a p e rson, the CEO of a n u c l e a r p l a n t -- t h i s is a n o t h e r hypothet because it's the only way I can talk to you -- of a nucl e a r plant that p r oduced a lot of n u c l e a r waste -- now, we both know w h a t t h o s e are. We d o n ' t k n o w the c o n t e n t of it, but t h a t ' s bad stuff, r i g h t ? Uh-huh. Nuclear waste can be really bad stuff? Uh-huh. Right? You have to speak up. I'm sorry. Yes. Yes. Do you have a pos i t i o n as to w h e ther or not it is the r e s p o n s i b i l i t y of the n u c l e a r company that manufactures the nuclear product and generates the nuclear waste, manufactures the e n e r g y and also m a n u f a c t u r e s the -- you can't manufacture one without the other, can you? I'm not a -- I do n ' t k now a n y t h i n g about that sort of thing. Okay. Well, part of the w a s t e -I d o u b t it, but I d o n ' t -- I d o n ' t know. Let me get s o m e t h i n g straight. Back to Martin & Associates (409) 76 2- 22 22 0 74 1 Monsanto, you can't manufacture your product 2 without generating some waste, can you? 3 A . T h a t 's r i g h t . 4 Q . And all t h a t w a s t e g e n e r a t e d is p art of the 5 manufacturing process? 6 A. Generally speaking, yes. 7 Q. Sir? 8 A . Yes. 9 MS. COHEN: You need to speak up a 10 little bit, Mr. Mahoney. 11 A. I'm sorry. Yes. 12 Q. T h a t ' s an i n t e g r a l p a r t , p a r t a n d p a r c e l of 13 t h e m a n u f a c t u r i n g p r o c e s s ? 14 A . Y e s . 15 Q . O k a y . N o w , go b a c k to the n u c l e a r wa s t e 16 t h i n g again. W h a t is y o u r p o s i t i o n , as 17 CE O -- if y o u w e r e t h e C E O of a n u c l e a r w a s t e 18 c o m p a n y -- n u c l e a r c o m p a n y t h a t g e n e r a t e d 19 w a s t e an d y o u say, "Well, I ' v e g o t to g e t rid 2 0 of thi,s s t u f f , but , man , t h i s is bad. I t ' s 21 g o i n g to h u r t pe o p l e , a n d it c o u l d be 22 expensive to get rid o f , " do you think they 23 h a v e a r e s p o n s i b i l i t y to m a k e s u r e the p e r s o n 24 t hey -- t hey r e t a i n to get rid of it has the 25 e x p e r t i s e and the e x p e r i e n c e n e c e s s a r y to do Martin & Associates (409) 7 62-2222 75 1 so properly? 2 A . Yes. 3 Q. Th e f a i l u r e to a s c e r t a i n t h a t is a .gross 4 disregard for the rights and welfare and 5 s a f e t y , as y o u p u t it, of t h e p u b l i c , isn't 6 it? 7 A . Yes. 8 Q . And it w o u l d be an act u a l k n o w i n g act of 9 disregard for the safety, health and welfare 10 of the public? 11 A. Now, w e ' r e w i t h t h i s n u c l e a r p e r s o n ? 12 Q . Y e s . 13 A . Y e s . 14 Q. Is t h a t r i g h t ? 15 A . Y e s . 16 Q. He w o u l d h a v e an o b l i g a t i o n to t h o r o u g h l y 17 e x a m i n e a n d c h e c k t h e q u a l i f i c a t i o n s , the 18 e x p e r t i s e a n d th e p r o c e s s e s by w h i c h t h e s e 19 p e o p l e h e ' s c o n t r a c t i n g w i t h w o u l d d i s p o s e of 2 0 i t t o ]Tiake s u r e , a s b e s t h e c o u l d , it w a s 21 d i sposed of properly, correct? 22 A. Yes. That's, I think, a fair statement, 23 y e s . 24 Q . T h a t the p e o p l e tha t w e r e d o i n g it w er e doing 25 it rig h t t hat w e r e d i s p o s i n g of it? Martin & Associates (409) 7 6 2 - 2 2 2 2 76 1 A. 2 Q. 3 A. 4 Q5 6 7 8 9 A. 10 11 Q. 12 A. 13 ' Q. 14 15 16 17 A. 18 Q. 19 20 2 1 A. 22 Q 23 24 A. 25 Q- Y e s . That sounds right. That they had the e x p e r t i s e to do it? Yes . And they would have, of course, a continuing obligation, would they not, to make sure that that -- for as long as they c o n t r a c t e d with them, t h a t t h e y c o n t i n u e d to d i s p o s e of it properly, wouldn't they? They have an o b l i gation under that set, certainly. No question about it? I d o n ' t t h i n k so . And the failure to follow through with those o b l i g a t i o n s and r e s p o n s i b i l i t i e s w o u l d , in your opinion, be a gross disregard for the rights, health and welfare and safety -Now, w h a t is it t h e y w e r e d o i n g ? Well, if they d i d n ' t check to see whet h e r these people had expertise and were disposing of the nuclear waste p roperly -Sure. -- would that be a gross disregard for the rights, health and safety of the public -- T h a t 's r i g h t . -- who might bec o m e exposed to it? Martin & Associates (409) 7 62-2222 77 1A 2Q 3A 4Q 5 6A 7Q 8 9A 10 Q 11 12 13 14 15 16 17 A 18 Q 19 A 20 . Q 21 22 A 23 Q 24 25 A That's right. Is that right? T h a t 's r i g h t . Now, w h a t is the d i f f e r e n c e b e t w e e n that and disposing of toxic chemicals? Is this going to be another hypothetical? Yes. Wh a t is the d i f f e r e n c e b e t w e e n that and -- your ans w e r to that and d i s p o s i n g -I can tell you how I'd behave. Sir, w h a t is the d i f f e r e n c e , in y o u r opinion, as to the p r o p r i e t y of b u s i n e s s m a n a g e m e n t -what is the d i f f e r e n c e b e t w e e n the obli g a t i o n of the nuclear waste manu f a c t u r e r and a chemical waste manufacturer that manufactures wastes that can be carcinogen and harmful, hurtful to people? Well, you just described a nuclear condition. Yes. And now tell me about the chemical product. Same thing. Do the same responsibilities hold for a p e r s o n -Hazardous? -- trying to get rid of chemical wastes that can be harmful to people? If p e o p l e -- if it can be h a r m f u l to people, Martin & Associates (409) 7 6 2 - 2 2 2 2 78 1 absolutely. 2 Q. T h e y h a v e t h e s a m e o b l i g a t i o n , d o n ' t t h e y ? 3 A. Sure. 4 Q. No q u e s t i o n in your m i n d a b o u t it? 5 A. If it can be h a r m f u l to people. 6 Q. T h e r e ' s no q u e s t i o n in y o u r mi n d about it? 7 A. That's right. 8 Q. It would be a total gross disregard for the 9 rights of people's safety, w o u l d n ' t it? 10 A. If p e o p l e k n o w i n g l y do t h i n g s t h a t are 11 w a n t i n g -- 12 M S . C O H E N : Yes or no. 13 A . Y e s . Y e s . Y e s . 14 Q. C a n we t a k e a b o u t a t e n - m i n u t e b r e a k ? 15 A. Okay. 16 THE V I D E O G R A P H E R : G o i n g off the 17 r e c o r d , 1 1 : 0 5 a . m . 18 19 (A r e c e s s w a s t a k e n . ) 20 21 THE VIDEOGRAPHER: 11:15 a.m., on 22 the record. 23 MR. JAMAIL: W o u l d you -- 24 Ms. Martin, w o u l d you p l e a s e m a r k this as 25 M r . M a h o n e y n e x t . Mr . M a h o n e y 3. Martin & Associates (409) 7 62-2222 79 1 2 3 4Q 5 6A 7Q 8 9A 10 Q 11 A 12 Q 13 14 15 A 16 17 18 19 Q 20 21 22 A 23 Q 24 25 (An i n s t r u m e n t was m a r k e d M a h o n e y E x h i b i t N o . 3 f o r i d e n t i f i c a t i o n .) Mr. M a h o n e y , t h i s is r e d u n d a n t , but I g o t to ask it this way: Do you k n o w w h a t that is? Yes. That's our annual report. Okay. Would you turn to where the profit par t is. Which profit part? How much you made last year. Oh. Well, it's right on the front page. First, before you do that, would you explain for the Jury: W h a t is t h e p u r p o s e of this Mahoney 3 that I have just handed you? T h i s is t h e a n n u a l re p o r t , and we sen d it out to s h a r e o w n e r s , te l l t h e m h o w t h e c o m p a n y is d o i n g a n d w h a t o u r f i n a n c i a l c o n d i t i o n is, what our policies are. The -- it's to notify the p u b l i c as to the p r o gress under the m a n a g e m e n t in place of Monsanto? Yes . And to inform them and the shareholders, w h o e v e r t hey are, "This is h o w m u c h we m a d e , " or, " T h i s is h o w m u c h we l o s t " ? Martin & Associates (409) 7 6 2 - 2 2 2 2 30 1 A. T h a t 's r i g h t . 2 Q. In 1989, can you tell me what M o n s a n t o ' s net 3 worth was? 4 A . Well, the 5 Q. In '89. 6 A . Let's see. Shareowners' equity was $29 a 7 share. I have to get how many shares they 8 were. A h u n d r e d t h i r t y - t w o by t h i r t y - s i x -- 9 3.9 billion, looks like. 10 Q. $3.9 billion? 11 A. I'm calculating that, yes. 12 Q. T h a t w a s a p p r o x i m a t e l y t h e n e t w o r t h of 13 M o n s a n t o -- 14 A . Yes. 15 Q- -- in 1 9 8 9 ? 16 A. Yes. 17 Q. 18 Sir, the r e a s o n I'm a s k i n g thi s -- y o u 're p r o b a b l y a w a r e of it -- is so that the Jury 19 c a n p r o p e r l y a s s e s s , if t h e y g e t to t h i s 2 0 p o i n t , ' t h e net worth of M o n s a n t o so that 2 1 p u n i t i v e d a m a g e s can be c o n s i d e r e d ; and in 2 2 o r d e r to c o n s i d e r p u n i t i v e damag e s , t h e y 're 2 3 entitle d to know the worth of the company. 24 That's the reason I'm asking these 25 quest ions. Martin & Associates (409) 762-2222 1 2 3Q 4 5 6Q 7 8 9Q 10 11 12 13 14 15 16 17 18 Q 19 20 . A 21 Q 22 23 A 24 25 MS. COHEN: I o b j e c t to the form of the question. Do you understand? M R . J A M A I L : I want to just enlighten him as to why. Did they go over any of this with you? MS. COHEN: I'm going to instruct him not to answer the question. I wonder why they didn't do that. MS. COHEN: I'm g o i n g to instruct M r . Mahoney not to answer any questions concerning our discussions. MR. JAMAIL: Would you like to take him out and go over it wi t h him now? MS. COHEN: You can proceed with the deposition, Mr. Jamail. MR. JAMAIL: I'm so grateful. Mr. Mahoney, what was the net worth of M o n s a n t o in 1988? Well, I'll hav e to go bac k and find '88. Well, I've got an answer to their admissions, if y o u ' l l just go w i t h me, 3 . 8 - I'm not sure -- I don't t h i n k we go back to '88. far. No, I don't think we go back that Martin & Associates (409) 762-2222 82 1 Q. Well, they a n s w e r e d u n d e r oath that it was 2 worth $3.8 billion, 3,800,000,000. Would 3 that sound about right? 4 A. About right, yes. 5 Q. Would you look, please, at what Monsanto's 6 net wor t h was in 1990. 7 A. It's in that same range. I'd have to 8 multiply the numbers together to get that. 9 Q. A r o u n d $4 b i l l i o n ? 10 A. Well, it's -- t h i r t y - t w o by o n e - t h i r t y is, 11 ro u g h l y , a b o u t four -- a l i t t l e ove r 12 4 b i 1 l i o n . 13 Q. A l i t t l e o v e r 4 b i l l i o n . W o u l d t h e s a m e be 14 t r u e for '91 a n d t o d a y ? 15 A. No. It w a s a b o u t 3 . 6 in '91, a n d i t ' s a b o u t 16 the s a m e today. 17 Q . 3 , 6 0 0 , 0 0 0 , 0 0 0 ? 18 A . Y e s . 19 Q. O k a y . Mr. M a h o n e y , t h e s e f i n a n c i a l 20 statements, annual reports have to be as 21 a c c u r a t e as M o n s a n t o can make them, don't 22 they? 23 A. A b s o l u t e l y . 24 Q. A n d y o u g o to g r e a t p a i n s t o m a k e s u r e t h a t 25 t hey -- that the s t a t e m e n t s mad e are t r u t h f u l Martin & Associates (409) 762-2222 83 1 as much as you can and that the reports are 2 accurate? 3 A. Yes . 4 Q. Including the statements made to the company, 5 the numbers? 6 A. Yes . 7 Q8 Mr. Mahoney, again, since the only way we can talk, a p p a r e n t l y , is by h y p o t h e t -- but by 9 hypothet, I was g etting your opinion as to 10 the q u e s t i o n s I was a s k i n g u n d e r th o s e 11 conditions, and you u n d e r s t o o d that, didn't 12 yo u ? 13 A. T h a t ' s w h a t I g u e s s e d at. I m e a n -- 14 Q. A l l r i g h t . If s o m e o n e w e r e g o i n g to p u n i s h 15 s o m e o n e , let's first d e f i n e w h a t you b e l i e v e 16 p u n i s h m e n t to be, p u n i t i v e or p u n i s h i n g to 17 b e . W h a t do y o u u n d e r s t a n d th e w o r d to 18 m e a n ? 19 A. P e r s o n a l l y ? C o m p a n y ? A r e we h y p o t h e t i c a l 20 again or what? 2 1 Q. 22 A. Company. C o m p a n y . P u n i s h m e n t is pain. 23 Q. If it d i d n ' t h u r t , it w o u l d n ' t be p u n i s h m e n t , 24 w o u l d it? 25 A . T h a t 's right. Martin & Associates (409) 7 6 2-2222 \ 34 1 Q- Okay. M o n s a n t o -- 2 A. Well, I don't know. I don't know. We're 3 g e t t i n g a w f u l l y -- 4 Q . No, w e ' r e n o t . 5 A. -- d i c t i o n a r y here. 6 Q. No. No. I'll get you -- w o u l d you like a 7 dictionary? 8 A. No. I'l l loo k it up b ut I m e a n -- 9 Q. Hey, t h a t ' s m y f a v o r i t e b o o k . 10 A. I ' v e b e e n p u n i s h e d b e f o r e , a n d it d i d n ' t h u r t 11 a lot; and I've b e e n hurt, and it d i d n ' t 12 p u n i s h me. 13 Q. W e l l , if y o u w e r e g o i n g to p u n i s h a l a r g e 14 c o m p a n y , y o u w o u l d h a v e to f i n e t h e m in o r d e r 15 to p u n i s h them, w o u l d n ' t you? 16 A. N o . 17 Q . W h a t w o u l d y o u do w i t h t h e m ? 18 A. If y o u w e r e g o i n g to -- 19 Q . P u n i s h t h e m . Le t me r e p h r a s e it. If the law 20 said that the only r e c o u r s e for p u n i s h m e n t 21 was p u nitive d a m a g e s , once a company had been 22 proven to have been grossly negligent, then 2 3 the damage award would have to be such as 24 w o u l d be hur t f u l , w o u l d it not, for it to be 25 p u n i s h i n g ? Martin & Associates (409) 7 6 2 - 2 2 2 2 85 1 A . To p u n i s h . 2 Q . Yes. 3 A. Anything punishes. A public reputation 4 punishes. I m e a n -- no, I d o n ' t agree with 5 that. 6 Q. W e l l , if t h e l aw -- y o u d i s a g r e e w i t h the 7 law? 8 A. With which law? 9 Q. If the law says the only way that you shall 10 c o n s i d e r p u n i s h i n g these p e o p l e to keep them 11 from d o i n g it a g a i n is to a s s e s s damages, 12 then u n d e r tho s e c o n d i t i o n s , the p u n i s h m e n t 13 w o u l d h a v e to be g r e a t e n o u g h , th e d a m a g e s 14 w o u l d have' to be g r e a t e n o u g h to h u r t , 15 w o u l d n ' t they? 16 A. T h a t ' s t he law. But I 'm j u s t s a y i n g tha t any 17 n u m b e r -- y o u c a n ge t a d v e r s e p u b l i c i t y w h i c h 18 is m o r e h u r t f u l t h a n m o n e y . 19 Q. Oh', I d o n ' t t h i n k so. I ' v e s e e n c o r p o r a t i o n s 20 get adverse publicity and just go on down the 21 r o a d . 22 A. W e l l -- 23 Q. B u t if t h a t -- in th e c o n t e x t t h a t I -- 24 A. In our c o m p a n y it d o e s m a t t e r . It r e a l l y 25 does matter. Martin & Associates (409) 7 6 2 - 2 2 2 2 86 1 Q. In the context that I have asked the 2 q u e s t i o n , if t h a t is t h e o n l y c h o i c e , t h e n 3 the a s s e s s m e n t of p u n i t i v e damages has> to be 4 large enough to hurt, correct? 5 MS. COHEN: I think he's a l r e a d y 6 s a i d " N o . 11 7 A . I said I can see all kinds of ways that 8 d a m a g e s can h u r t that a r e n 't l a r g e . 9 Q. 10 Let me just g i v e it to you again, and please l isten clo s e l y . If the o n l y c h o i c e a J u r y 11 has is to say -- in a n s w e r to a q u e s t i o n of 12 p u n i t i v e dam a g e s , - is to s a y a n u m b e r , a 13 f i g u r e of m o n e y , t h e n u n d e r y o u r own 14 d e f i n i t i o n of p u n i s h , it w o u l d h a v e to be a 15 l arge e n o u g h n u m b e r to hurt, if that was the 16 o nly o p t i o n ? 17 A. I don 't a g r e e . 18 Q- W h y ? 19 A. Because -- 20 Q. B e c a u s e i t ' s M o n s a n t o t h a t 's g o i n g to h a v e to 2 1 pay? 22 MS. COHEN: I o b j e c t to the form of 23 t h e q u e s t i o n . 24 A. No. I j u s t d o n ' t a g r e e w i t h it. 25 Q. H u h ? Martin & Associates (409) 7 6 2-2222 37 1 A. I d o n 't a g r e e . 2 Q. Why? 3 A. I've told you. I think that anything hurts a 4 company. 5 Q. Sir 6 A. Anything hurts a company. 7 Q. -- you're not listening to my question. 8 F o r g e t a b o u t the o t h e r t h i n g s t hat hurt. If 9 the only option of punishment was what I told 10 you, the a s s e s s m e n t of d a m a g e s , t h a t ' s the 11 only o pt i o n that a Jury has -- 12 A. U h - h u h . 13 Q. - - t h e n a r e y o u d e n y i n g t h a t in o r d e r t o m a k e 14 it p u n i s h i n g t h a t it h a s -- a r e y o u s a y i n g it 15 c o u l d be a small a m o u n t -- 16 A. S u r e . 17 Q. -- t h a t d o e s n ' t h u r t ? 18 A. A n y t h i n g h u r t s . 19 Q W o u l d 10 p e r c e n t of y o u r n e t e a r n i n g s h u r t ? 20 A. S u r e , it w o u l d . 21 Q. W h a t w e r e y o u r n e t e a r n i n g s l a s t y e a r ? 22 A. L a s t y e a r ? I d o n ' t know. G e t the book, and 23 w e ' l l g et the a c c u r a t e n u m b e r s . I d o n ' t have 24 to guess. The net earni n g s we r e 296 million 25 last year. Martin & Associates (409) 7 6 2 - 2 2 2 2 33 1 Q. 2 3 4 A. 5 Q. 6 A. 7 Q. 8 9 10 11 Q. 12 13 14 A. 15 Q16 17 18 19 20 2 1 Q. 22 A. 23 Q24 A. 25 Q. Would the complete payment of your net e a r n i n g s as p u n i t i v e d a m a g e s in this case hurt? S u r e , it w o u l d . Okay. $2 w o u l d hurt. Oh, sure. The -- tha t ' s a little miserly, isn't it? MS. COHEN: I object to the form of the question. Don't you think, really? Now, we've been getting along pretty good till now. Now, come on. You're talking about Monsanto shareowners. I'm talking about your company, yes. You didn't -- you weren't bashful about sending your man down there to Marshall to ask for a bunch of punitive damages, were you? MS. COHEN: I o b j e c t to the form of the question. Were you? I didn't send anybody anywhere. You didn't stop him from going, did you? No . You knew he was going, didn't you? Martin & Associates (409) 7 62-2222 89 1 A 2Q 3 4A 5Q 6A 7 8 9 10 11 12 13 Q 14 A 15 Q 16 A 17 18 Q 19 A 20 . Q 21 A 22 Q 23 A 24 25 Sure. You thought you were entitled to them, didn't you? Yes, we did. And you didn't turn them down, did you? No. MR. JAMAIL: dictionary, will you? Give me the M R . K RIST: Break out the dictionary. MR. JAMAIL: Damn, if she d i d n ' t already turn to the page. Would you look under "punitive," sir. Okay. Would you agree with it? Punitive. It says inflicting, in v o l v i n g or aiming at p u n i s h m e n t . T h a t 's what -- Do you agree with that? I'm -- I'm r e a d i n g it. Do you.agree with that definition? Yes. T h a t ' s w h a t it is. And what do you -I wasn't trying to be -- I was trying to understand what you were asking m e . I was j u s t r e a d i n g it, yes. Martin & Associates (409) 762-2222 90 1 Q. You've told me candidly earlier, before you 2 d e c i d e d not to -- to back off of it that 3 "punish" means to hurt. 4 A. " P u n i s h " m e a n s to h u r t , yes. 5 Q. Y o u ' r e s t i l l w i t h t h a t ? 6 A . Yes . 7 Q. Well, $250 million of cleanup costs for some 3 of these chemical waste sites that you 9 created was -- you claim that wouldn't hurt, 10 d i d n ' t you? D i d n ' t you? 11 A. We d e a l in the w o r d " m a t e r i a l i t y , " I think, 12 is w h a t w e t a l k e d 'a b o u t . 13 Q. Now, l e t ' s d o n ' t go to q u a l i f y i n g a b u n c h of 14 s t u f f . D i d y o u c l a i m it or n o t ? 15 A. C l a i m it w h e r e ? S h o w m e w h e r e I c l a i m e d it 16 an d I' l l 17 Q . I'm g o i n g to s h o w y o u r i g h t now, sir. I I S d o n ' t w a n t y o u to g u e s s at a n y t h i n g . T h i s is 19 y o u r f i n a n c i a l a n n u a l r e p o r t , M a h o n e y 3. 20 Just read it to y o u r s e l f for now, starting 21 w i t h t hat last sentence, " B e c a u s e . .." 22 A . Y e s . 2 3 Q. You say in t h e r e tha t M o n s a n t o c o u l d pay 24 $300 m i l l i o n and it w o u l d n ' t a f f e c t the 25 s h a r e h o l d e r s at all, d o n ' t yo u ? Martin & Associates (409) 762-2222 91 1 A 2 <2 3A 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Q 22 A 23 Q 24 25 Let me r ead w h a t it says. Sure . It says, "Because of the un c e r t a i n t i es associated with" remediate -- "remediation activities, Mo n s a n t o ' s future expenses to r e m e d i a t e these sites c o u l d be as much as an additional $300 million. These potential future expenses would be expected to be incurred over the balance of the decade. While the costs and results for remediation of waste disposal sites cannot be predicted with certainty, management believes that, with future d e v e l o p m e n t s in r e m e d i a t i o n technology and evolving government policies t o w a r d e v a l u a t i o n of risks and benefits, M o n s a n t o ' s liq u i d i t y and p r o f i t a b i l i t y in any one year will not be materially affected." Now, that is a d e f i n i t i o n a l -t h a t 's wh y I said " m a t e r i a l . " T h a t 's a definitional thing. "... will not be materially affected," right? That's a definitional thing. Th a t ' s in a d d i t i o n to 250 m i l l i o n you've a l r e a d y s e t a s i d e to c l e a n t h e m up, i s n ' t it, or a h u n d r e d e i g h t y or w h a t e v e r y o u sa i d in Martin & Associates (409) 7 6 2-2222 92 1 2 A. 3 4 Q. 5 A. 6 Q. 7 A. 8 9 Q. 10 11 12 13 14 15 16 17 18 Q. 19 20 . 21 Q. 22 23 24 Q. 25 A . that report? It says wh a t we spent in 1991. That's right. A n d p a r t of t h i s is the B r i o site, i sn't it? I don't know. Well -- I suppose. I mean I'm just reading this thing, now. So if f o u r to fi v e h u n d r e d m i l l i o n d o l l a r s is the cost to clean up the toxic waste generated by Monsanto that they've agreed under the EPA g u i d e l i n e s as part of the superfund to clean u p , that four to f ive hundred million dollars would not materially aff e c t the liq u i d i t y and p r o f i t a b i l i t y of M o n s a n t o in any one year? MS. COHEN: I object to the form -- Is that w h a t y o u ' r e s a y ing? MS. COHEN: I'm going to o b j ect to the form of the question. Y o u can a n s w e r it. MS. COHEN: You can a n s w e r it if you can. You m a y a n s w e r it. I ca n r e a d w h a t -- w h a t -- t h i s is an SEC- Martin & Associates (409) 7 62-2222 93 1 2Q 3A 4 5 6 7 8 9 10 11 Q 12 A 13 14 Q 15 A 16 17 Q 18 19 20 . 21 22 23 24 25 re q u i r e d s t a t e m e n t -- Right. -- and it has all k i n d s of d e f i n i t i o n s , and I have to rely on the people that put the d e f i n i t i o n s and m e e t them. I d o n ' t k n o w -- I mean you have to make these statements according to the Securities and Exchange Commission. And we've got an army of people that look at those words and say those are the rights words. And that was accurate? H ad to be. It w o u l d n ' t be t h e r e if t h e y w e r e n ' t accurate. Sir -- What it said, though, was over a te n - y e a r period -- That $400 m i l l i o n would not m a t e r i a l l y -- four hundred to five hundred million dollars would not materially affect Monsanto's profitability or liquidity. Isn't that what it says? MS. COHEN: I'm g o i n g to object to the form of the q u e s t i o n to the e x t e n t it mischaracterizes the term "materiality" v e r s u s how that t erm is use d u n d e r the Martin & Associates (409) 7 6 2 - 2 2 2 2 94 1 regulations of the Securities and Exchange 2 Commiss ion. 3 MR. JAMAIL: Oh, crap. 4 A. I think that's exactly what -- 5 Q. Is that wh a t it says or not? 6 A. It's a very precise definition. 7 Q. Is that w h a t this says? 8 A . No, it's not, in my ju d g m e n t . 9 Q- W e l l , i n t e r p r e t it f o r me. T e l l m e w h a t y o u 10 t h i n k it m e a n s . 11 A. I ' m g o i n g to t e l l y o u -- I ' m g o i n g to t e l l 12 y o u w h a t t h i s t h i n g -- I c a n o n l y r e a d it and 13 go t h r o u g h t h e S E C r e q u i r e m e n t s . 14 Q Sir, t h a t ' s w h a t was g i v e n to t h e p u b l i c , 15 w a s n ' t it? 16 A. Righ t . A n d it' s a b s o l u t e l y a c c u r a t e . 17 Q. A n d w h a t i t ' s s a y i n g h e r e at t h e e n d -- r e a d 18 it for me. Y o u d o n ' t h a v e to i n t e r p r e t it. 19 A. " M o n s a n t o ' s l i q u i d i t y a n d p r o f i t a b i l i t y in 20 any one y e a r w i l l not be m a t e r i a l l y " -- 2 1 "materially affected" by all the words that 22 w e n t in f r o n t of it. 2 3 Q T h a t 's r i g h t . 24 A. A n d t h e y ' r e a l l v e r y c a r e f u l l y s t a t e d . 2 5 Q. Sure. And t h a t ' s $300 m i l l i o n in a d d i t i o n to Martin & Associates (409) 7 6 2 -2222 95 1 2A 3Q 4 5A 6Q 7A 8 9 10 11 12 Q 13 A 14 15 16 17 18 19 20 21 22 23 24 25 what's already been paid. W i t h a lot of w o r d s a r o u n d it. $300 m i l l i o n in a d d i t i o n to w h a t ' s been paid. I 'm g o i n g to -Is that right? It says, "Because of the u n c e r t a i n t i e s associated with remediation activities, Monsanto's future expenses to remediate these sites could be as much as an a d d i t i o n a l " -but w h a t this says is -Read it all. -- that the costs -- "These potential future expenses would be expected to be incurred over the balance of the decade. While the costs and results of remediation of waste disposal sites cannot be predicted with certainty, management believes that, with f u t u r e d e v e l o p m e n t s in r e m e d i a t i o n t e c h n o l o g y and evolving government policies towards e v a l u a t i o n of risks and be n e f i t s " -- and, t h e r e f o r e -- " M o n s a n t o ' s l i q u i d i t y and p r o f i t a b i l i t y in one year will not be materially affected." It is a n t i c i p a t i n g a w h o l e s e r i e s Martin & Associates (409) 7 6 2 - 2 2 2 2 96 1 of events, and that's what that says . 2 Q< T h a t ' s t h e i r s t a t e m e n t and r e p r e s e n t a t i o n to 3 the public? 4 A, Yes . 5Q Monsanto's? 6A Yes . 7Q And, again, it ends with " M o n s a n t o ' s S l i q u i d i t y and p r o f i t a b i l i t y in any one yeat 9 will not be m a t e rially affected"? 10 A Well, I'm going to have to go back -- 11 Q Is that w h a t it says, the last sentence? 12 A That's the last s e n t e n c e but -- 13 Q That's all I asked you about. 14 MR. J A M A I L : I ' l l i n t r o d u c e it. 15 Q Now, the public has a right to rely on that, 16 d o n ' t t h e y ? 17 A That book? Absolutely. 18 Q And not only that, that's filed with the SEC 19 u n d e r p e n a l t i e s of p e r j u r y , i s n ' t it? 20 A Well, it isn't perjury, I don't think, but 21 it's filed with the SEC under law. 22 Q You're still not supposed to lie or 23 m i s r e p r e s e n t , ar e y o u ? 24 A Absolutely not. 25 Q And while we're -- Martin & Associates (409) 762-2222 97 1 MR. J A M A I L : And I do want to 2 attach this. 3 Q. And while we're on that subject, do you 4 believe it's ever all right to misrepresent 5 f a c t s to the g o v e r n m e n t a b o u t m a t e r i a l -- 6 m a t e r i a l m a t t e r s that -- th a t the g o v e r n m e n t 7 m i ght need in order to p r o t e c t the S environment or protect the people's safety? 9 Do you think it's ever all right for Monsanto 10 or any other chemical c o m p a n y to m i s r e present 11 s u c h facts to the g o v e r n m e n t ? 12 A. M i s r e p r e s e n t i m p o r t a n t f a c t s to t h e 13 g o v e r n m e n t ? 14 Q . Y e s . 15 A. N o . 16 Q. W h y ? 17 A. B e c a u s e m i s r e p r e s e n t a t i o n is w r o n g . 18 Q. T h a t ' s f r a u d , a i n ' t it? 19 A. We l l , I d o n ' t k n o w w h a t -- t h e d e f i n i t i o n of 2 0 f r a u d .- I ' m -- 21 Q . Well, it means to mislead, really. 22 A . Y e s . 23 Q. W o u l d y o u a g r e e w i t h t h a t ? 24 A. Yes. 25 Q. M i s r e p r e s e n t i n g m a t e r i a l f a c t s to t h e Martin & Associates (409) 7 6 2 - 2 2 2 2 93 1 2 3 4 5 6 7 A. 8 Q. 9 10 11 A. 12 Q. 13 14 A. 15 Q. 16 A. 17 18. 19 Q. 20 21 A. 22 Q2 3 A. 24 Q. 25 A. g o v e r n m e n t wh o is c h a r g e d w i t h the r e s p o n s i b i l it y of p r o t e c t i n g the environment and the s a f e t y of p e o p l e who d w e l l in c e r t a i n areas is a g r o s s d i s r e g a r d for the r i g h t s of the p e o p l e who h a v e to be -- who rely on t h o s e reports, is it not? T h e w a y y o u s a i d it, it s u r e is. And it w o u l d be a k n o w i n g m a 1 i c i o u s , w a n t o n , willful act to misrepresent such material facts, w o u l d n ' t it? And under what context, now? F a l s i f y i n g the amo unt of t o x i c wastes put in a certain plac = . Falsifying? Yes. Or m i s r e p r e s e n t i n g it. Well, you said -- I mean you went on to this horrible, horrible, horrible, horrible, and I'm tr y i n g to get -Well I didn't go say "horrible." You said " h o r r i b l e ." N o . .Y o u d i d . Oh, listen. C o m e on. C o m e on. Listen to the question. All right. I'll listen carefully. Martin & Associates (409) 762-2222 99 1 Q. 2 A. 3 Q. 4 5 6 7 8 9 A, 10 Q 11 A 12 Q 13 14 15 16 A 17 Q 18 A 19 Q 20 21 A 22 Q 23 A 24 Q 25 A If M o n s a n t o -- a n d l e t ' s j u s t n a r r o w it. All right. -- the company m i s r e p r e s e n te d material facts to a government agency that was charged with the safety of the e n v i r o n m e n t and health of p eople generally, you've told me, I think, that would be a gross disregard for the rights of those people. Is that c o r r e c t -Yes . -- or not? Yes . To do so w o u l d -- if M o n s a n t o di d t h a t , w o u l d be a wanton, willful, knowing act and disregard of the rights and safety of those people, w o u l d n ' t it? That's right. A n d y o u w o u l d n ' t c o n d o n e it, w o u l d you? No, I wouldn't. And you think that's a proper case for punitive damages, don't you? Now you're into the law again. No. No. You asked for p u n i t i v e in -Yes, you are. Is that right? What is? Martin & Associates (409) 762-2222 100 1 Q2 A. 3 Q. 4 A. 5 6 7 Q8 9 10 11 ' A. 12 Q. 13 A. 14 Q. 15 16 17 18 19 20 A. 21 Q. 22 23 24 25 My question. Did you say "Yes"? I don't know. If that h a p p e n e d -Punitive damage has a very specific legal a s p e c t to it, a n d y o u ' r e a s k i n g in a hypothetical; and I can't answer. You k n e w e n o u g h a b o u t it to ask for it in Marshall, Texas. Wouldn't you say that m i s r e p r e s e n t a t i o n of such facts w o u l d be grounds for punitive damages? I d o n 't k n o w . Y o u d o n ' t d e n y it-, d o y o u ? I d o n 't k n o w . Uh-huh. The superfund cleanup potentially r e s p o n s i b l e p a r t y is d e t e r m i n e d pe r c e n t a g e w i s e among the members who have to p a r t i c i p a t e by -- g e n e r a l l y by the amount of wastes they contri b u t e d to such superfund site. Is that correct? I think that's accurate. A n d y o u ' v e t o l d me e a r l i e r t h a t it is n e v e r proper to m i s r e p r e s e n t facts to anybody r e g a r d i n g the toxic wastes d u m p e d in any such site, e s p e c i a l l y the g o v e r n m e n t a l agency. Is that right? Martin & Associates (409) 762-2222 10 1 1 A. 2 Q. 3 4 5 6 7 A. 8 Q. 9 10 A. 11 Q12 A. 13 Q. 14 A. 15 Q16 A. 17 Q. 18 19 20 21 22 A. 23 Q. 24 A. 25 Q. T h a t 's r i g h t . I'm going to hand you what has been p r e v i o u s l y m a r k e d as Exhibit 1465 in this case, sir, and ask you just to look at the hea d i n g , if yo u would, Mr. M a h o n e y . Do you know what that is? No . It's a M o n s a n t o -- it's w r i t t e n in at the t o p , is it not? Yes, it's w r i t t e n -Read that for me. Well, it says "Monsanto" something. " R e c o r d s ." " R e c o r d s ." It's been furnished by Monsanto. Okay. And this was an exhibit attached to a letter sent to -- take my word for it -- sent to the Environmental Protection Agency. You recognize that as an agency of the government, do you not? Yes, I do. United States Government? Yes . This was what was r e p r e s e n t e d to them -- read Martin & Associates (409) 7 6 2 - 2 2 2 2 102 1 the date of this, please, sir. 2 A. This is that ink -- 3 Q- Yes . 4 A. I t h ink it says 12/4/84. 5 Q. T h a t ' s wha t it looks like to me. 6 A. Okay. It could be 12/11/84. I don't know. 7 Q. 8 And it says for the years 1967 t h r o u gh 1980, and t h i s is an e x h i b i t f u r n i s h e d by M o n s a n t o 9 to the EPA 10 M S . COHEN: I'm g o i n g to o b j e c t to 11 t h e f o r m of t h e q u e s t i o n . I d o n 't t h i n k 12 t h a t ' s b e e n e s t a b l i s h e d . 13 Q. -- in t h e y e a r n i n e t e e n -- D e c e m b e r of 1984. 14 R e a d th e t o t a l a m o u n t of s t y r e n e t a r s it said 15 it s e n t to th e B r i o site. T hat' s w h a t it's 16 r e f e r r i n g to. 17 A. 1 1 1 , 4 9 7 . 1 -- I g u e s s t h a t ' s k, t h o u s a n d 18 p o u n d s . 19 Q. W e l l , is i t ' s 111 m i l l i o n p o u n d s is w h a t t h a t 20 r e a d s .. 21 A. I ' m not s u r e of that. 22 Q. k w a s m i l l i o n t hen. 23 A . W a s it? Okay. I d o n ' t k now. 24 Q . T h a t ' s w h a t ha s b e e n t e s t i f i e d . 111 m i l l i o n 25 p o u n d s of s t y r e n e t ars w ere sent to the Brio Martin & Associates (409) 762-2222 103 1 2 3 4Q 5 6 7 8 9Q 10 11 A 12 Q 13 14 15 16 17 18 19 A 20 Q 21 A 22 Q 23 24 A 25 Q site in the y e a r s I just told you about. MS. COHEN: May I see the exhibit, please. Wou l d you look at what has been m a r k e d as G u i l l i a m s E x h i b i t No. 1 -- G u i l l i a m s Exhibit No. l. MR. JAMAIL: We want to attach t h i s , 1465. -- a n d I'll a s k y o u if y o u ' v e e v e r s e e n that before. No. W e l l , s i r , i t ' s a --- i t ' s a M o n s a n t o C o m p a n y Supplemental Response to Plaintiffs' -- and that's us, me and my co-counsel -- First Set of Interrogatories and Request for Production. I would like for you -- and the date of this is 29th day of April, 1992, correct? That's what it says. Who signed that? Douglas Dougherty. Who signed it? That's his name, but who signed it? Yes. Isn't that Phyllis Cohen? It's your lawyer, right? One of them. Martin & Associates (409) 762-2222 104 1 A . Yes. 2 Q. Did you just meet her today, too? 3 A . Yes. 4 Q . T h ese are a n s w e r s that are sworn to. Okay? 5 MS. COHEN: I o b j e c t to the form of 6 the q u e s t i o n . 7 Q. T h e -- do y o u s ee on E x h i b i t 1465 a n y m e n t i o n S of vinyl chloride or vinyl chloride monomers 9 or vinyl chloride tars or anything at all 10 c o n n e c t e d with vinyl c h l o r i d e s ? 11 A. No. 12 Q. Do y o u a g r e e t h a t m i s r e p r e s e n t a t i o n c a n occ u r 13 by o m i s s ion as w e l l as c o m m i s s i o n ? 14 A . Y e s . 15 Q. T h e r e ' s n o t h i n g t h e r e m e n t i o n e d a b o u r. v i n y l 16 c h l o r i d e s , is there? 17 A. I d o n ' t s e e it, no. I d o n ' t s e e a n y t h i n g . 18 Q. O kay. Now, l o o k at t h i s E x h i b i t 1 a t t a c h e d 19 to' t h e s e s w o r n a n s w e r s g i v e n by y o u r l a w y e r s 20 on y o u r behalf, and w o u l d y o u r e a d w h a t it 2 1 says about the amount of styrene monomer tars 22 delivered to the Brio site. And that's what 23 it's a s k i n g about, t h e B r i o site. R e a d the 24 a m o u n t d e l i v e r e d to the B r i o site that your 2 5 lawyers swear that was d e l i v e r e d by Martin & Associates (409) 7 6 2-2222 105 1 Monsanto. 2 A. 599.40 million pounds.' 3 Q. 599.4 million pounds, right? 4 A. Uh-huh. 5 Q. There seems to be a 498- m i 1 1 ion-pound 6 discrepancy, doesn't there? 7 A. Well, at least -- between these two? 8 Q . Yes. 9 A. Yes. They're different by -- well -- you did 10 the arithmetic? 11 Q. Go a h e a d and do it. 12 A. T h i s o n e is a h u n d r e d e l e v e n , f o u r 13 n i n e t y - s e v e n t h o u s a n d -- a r e y o u c a l l i n g t h a t 14 m i l l i o n ? Okay. 15 Q. I d o n ' t k n o w . M a y b e it ' s t h o u s a n d . Y o u ' r e 16 r e a d i n g it as t h o u s a n d . So it w o u l d be a 17 5 9 9 - m i l l i o n - p o u n d d i s c r e p a n c y ? 18 A. I don't know how to read this thing, frankly. 19 Q. Say it's 111 million. Let's give them the 20 benefit of the doubt. 21 A.- Okay. We'll give them the bene f i t of the 22 doubt. Then, yes, it's the d i f f e r e n c e 23 b e t w e e n t h o s e two, w h a t e v e r y o u -- 24 Q. H o w m u c h is t h e d i f f e r e n c e ? H o w m a n y 25 m i l l i o n s of p o u n d s in d i f f e r e n c e ? Martin & Associates 106 1A 2 3Q 4 cA 6Q 7A 8 9 10 11 Q 12 A 13 14 Q 15 16 17 Q 18 19 20 21 22 23 24 25 Well, let's see. Six hundred from -- it's about 500 million, roughly. 500-million-pound discrepancy. Would you say that could be misleading? Yes . t No q u e s t i o n a b o u t it, is t h e r e ? If w h a t -- I m e a n if y o u 'r e .s a y i n g -- if it's -- I d o n ' t k n o w the c o n t e x t of that d o c u m e n t or that one, but the 500 m i l l i o n is di f fe r e n t . And it's -- If t h e y ' r e t a l k i n g about the same place, it's different. They're talking about the same place and t h e y ' r e t a l k i n g a b o u t the y e a r s '60 to '77. MS. COHEN: I'm going -Correct? And over here they're talking about the years '67 to '80, right? MS. COHEN: I'm going to object to the form'of the question. Can I see the documents, please. MR. J A M A I L : Sure. I attach both of them to this deposition. MS. COHEN: I object to the form of the question. The document 1465 clearly Martin & Associates f*^ n ^ n^nn 10 1 r e f e r e n c e s e x i s t i n g r e c o r d s and d o c u m e n t -- 2 the interrogatory answer clearly references 3 an estimate based on the fact that there's a 4 loss of records. 5 Q- 6 She'd made her objection. If you're looking at this as a normal, rational human being, 7 t h i s w o u l d be m i s r e p r e s e n t a t i v e if this is 8 a c c u r a t e , w o u l d it no t ? L e t m e r e p h r a s e it. 9 1465 is m i s r e p r e s e n t a t i v e of the a c t u a l 10 t o n n a g e sen t if E x h i b i t G u i l l i a m s 1 is 11 a c c u r a t e ? 12 MS. C O H E N : I ' m g o i n g to o b j e c t to 13 t h e f o r m of t h e q u e s t i o n . 14 MR. J A M A I L : Y o u ' v e m a d e it. Let 15 h i m a n s w e r . 16 MS. C O H E N : Mr. M a h o n e y h a s no 17 c o n t e x t in w h i c h 1465 wa s p r e p a r e d . 18 Q. G o a h e a d a n d a n s w e r it, p l e a s e . 19 A. I'm list e n i n g to my -- I'm tryi n g to hear 20 w h a t is g o i n g on. 21 Q. You can answer the question. She's made her 22 obj e c t i o n . 23 MR. J A M A I L : Now, d o n ' t i n t e r r u p t 24 a g a i n . Y o u ' v e m a d e it. 25 Q . If 1465 was s u b m i t t e d to the U n i t e d States Martin & Associates (409) 7 62-2222 108 1 g o v e r n m e n t a l agency, the EPA, and if 2 G u i l l i a m s No. 1 is accurate, 1465 is a 3 m i s r e p r e s e n ta t i o n of what actually was sent 4 to that plant, that dump by Monsanto? 5 A. If that' s a c c u r a t e and t h a t ' s d i f f e r e n t -- 6 Q . Yes. 7 A. -- they're different. Now, 8 mis r e p r e s e n ta t i o n -- and you know that 9 there's a whole bunch of legal words around 10 t h a t phrase, and I -- t h e y ' r e d i f f e r e n t and 11 if that one's more a c c u r a t e than that one, 12 t h a t ' s a c c u r a t e a nd t h a t ' s w r o n g . i 13 Q. If t h i s is w r o n g , it w o u l d b e m i s l e a d i n g , 14 w o u l d n ' t it? 15 A. I d o n ' t k n o w w h e t h e r it was. If you give bad 16 i n f o r m a t i o n , it's m i s l e a d i n g , a b s o l u t e l y . 17 Q. A n d if M o n s a n t o g a v e it, it m i s l e d t h e E P A if 18 t h i s e x h i b i t is c o r r e c t , if G u i l l i a m s 1 is 19 c o r r e c t ? 20 A. If t h e y . - - if s o m e b o d y said, " I'm g o i n g to 21 m i s l e a d the EPA," t h a t ' s it. If it's just, 22 "I pu t t h a t in and" -- I d o n ' t k n o w w h a t 23 t h i s t h i n g is. 24 Q. It s a y s f r o m t h e e x i s t i n g r e c o r d s of 25 M o n s a n t o . Martin & Associates 109 1 A. 2 3 4 5Q 6A 7 8Q 9A 10 11 12 A 13 14 Q 15 A 16 17 Q 18 19 Q 20 21 A 22 23 24 25 If that' s -- and I'm a b s o l u t e l y c e r t a i n somebody pulled the existing records and said t h a t ' s w h a t it was, if t h a t ' s w h a t t hat th i n g says . A n d if t h i s one is c o r r e c t , G u i l l i a m s 1 -Well, I d o n ' t know. Is this an e s t i m a t e or is t his -- Your lawyers swore to this, sir. Okay. MS. COHEN: Why don't you let him read them. Let me find out w h a t w e 've got h ere b e c a u s e I'm -- Y o u just look at it. -- y o u ' r e m i x i n g a lot of l a w y e r w o r d s in her e . See what you've got. MS. COHEN: Why don't you -Sir, you've got a 500-million-pound difference. That's what you've got. Okay. This one says, "Because of the passage of time and consequent loss of records, many documents reflecting sales to the site are no longer available. Many of the individuals who may have knowledge are deceased or Martin & Associates (409) 762-2222 110 1 retired. However, Monsanto provides the 2 f o l l o w i n g e s t i m a t e s of the v o l u m e s of 3 materials sold to the owners of the Brio site 4 during the dates specified based on the 5 information available to it:" And that's 6 599 . 7 N ow, t h i s o n e is a n e s t i -- t h i s is 8 based on existing records, and I don't know 9 w h a t the c o n t e x t of tha t one is. 10 Q. J u s t t a k e t h e t w o at f a c e v a l u e b e c a u s e w e ' r e 11 not g o i n g to go b e h i n d them. O n e of t h e m is 12 w r o n g , isn't it? - 13 MS. C O H E N : I'm g o i n g to o b j e c t to 14 t h e f o r m of th e q u e s t i o n . 15 Q. Is o n e of t h e m w r o n g ? 16 A. Look, a r e w e f i r s t s a y i n g t h e s e a r e -- w e ' r e 17 t a l k i n g a b o u t t h e s a m e t h i n g b e c a u s e I'm -- 18 Q . Y e s , sir. 19 A. Ok-ay. 20 Q . The same Brio site. Is one of t h e m wrong? 2 1 A. One of them must be wrong, but they're 22 different context. One says it's an 23 e s t i m a t e , a n d t h e o t h e r o n e s a y s it c a m e from 24 files; and I d o n ' t k n o w w h i c h one is right. 25 Q. W e l l , y o u d o n ' t h a v e to k n o w . Y o u r l a w y e r s Martin & Associates (409) 762-2222 Ill 1 2 3 4 5 6 7A 8Q 9 10 11 12 A 13 14 Q 15 16 A 17 Q 18 A 19 Q 20 21 A 22 23 24 Q 25 A made that estimate based on whatever records t h e y had. Now, let me ask you this -- and they swore to them -- there's no m ention of vinyl chlorides or any connection with vinyl chloride, vinyl chloride monomers, vinyl c h l o r i d e tars in 1465, is there? I di d n ' t see it when I -- no. No. No. And by l e a v i n g that out and if they actua l l y sent 20 m i l l i o n p o u n d s of t h a t stuff, mi x e d c h l o r i n a t e d solvents, 22 m i l l i o n pounds, then t h a t w o u l d be m i s l e a d i n g , w o u l d n ' t it, 1465? Well, that's not vinyl chloride, I don't t hink. That says "solvents." Well, do you see any c h l o r i n a t e d solvents on this? Well, I d o n ' t find -- no. Sir? No . Then that would be misleading to the reader, wouldn/t it? Yes. MS. COHEN: I obje c t to the form of the question. Did you say "Yes"? In t h e c o n t e x t y o u ' r e g i v i n g it, I d o n ' t Martin & Associates (409) 762-2222 112 1 k n o w -- l e t ' s g e t s t r a i g h t e n e d o u t w h a t it is 2 we're doing here. 3 Q. Y o u ' r e s t r a i g h t e n e d out.. Y o u 're n o t 4 confused. You know good and well that this 5 is m i s l e a d i n g . 6 A. This is d i f f e r e n t from that. 7 Q. S A. And misleading. But this one says -- see , you 're t a l k i n g 9 about misrepr e s e n ta t i o n , and that 's a lega 1 10 term, and I d o n ' t w a n t - - 11 Q. T h a t ' s n o t l egal. 12 A. -- to get cute. 13 Q. M i s r e p r e s e n t a t i o n m e a n s m i s l e a d i n g . 14 A. T h i s o n e ' s s a y s b a s e d on t h i s i n f o r m a t i o n ; 15 t his one says b a s e d on this; and t h e y 're 16 d i f f e r e n t d o c u m e n t s . 17 Q. J u s t t a k e t h e t w o d o c u m e n t s , s i r . A n d if all 18 y o u h a d w e r e t h e s e tw o d o c u m e n t s , o n e of t h e m 19 is m i s r e p r e s e n t i n g t h e f a c t s , isn 't it? 20 M S . C O H E N : I 'm g o i n g to o b j e c t to 21 the form of the q u e s t i o n as - - 22 Q. Is t h a t c o r r e c t or not? 23 MS. COHEN: argumentative. 24 A. I d o n 't k n o w -25 Q. Sir, do y o u k n o w w h a t is r i g h t a n d w h a t is Martin & Associates (409) 762-2222 113 1 2A 3Q 4A 5Q 6A 7Q 8 9A 10 11 12 Q 13 ` 14 15 16 A 17 Q 18 A 19 Q 20 21 22 A 23 Q 24 25 A wrong? Yes, sir. W h i c h o n e of t h e s e is w r o n g ? I d o n 't k n o w . One of th e m is, isn't it? One is d i f f e r e n t . One of t h e m is the w r o n g amount. MS. COHEN: I'm going -One is the w r o n g a m o u n t . MS. COHEN: I'm going to object to the form of the question. If being the w r o n g amo u n t is reli e d on by the governmental agency to assess costs, then that would be m i s l e a d i n g i n f ormation given to that gov e r n m e n t a l agency, w ouldn't it? It w o uld be w r o n g i n f o r m a t i o n . And it w o u l d m i s l e a d them? It would mislead them. A nd it w o u l d h ave m i s l e d them, if this -- if G u i l l i a m s 1 is c o r r e c t , by 500 m i l l i o n p o u n d s of styrene tars, correct? Yes . And would mislead them by 22 million pounds of mixed chlorinated solvents, correct? Yes. In that same definition, yes. Martin & Associates (409) 762-2222 114 1 Q. Okay. Is it your p o l i c y at M o n s a n t o to hide 2 things from the public? 3 A. No . 4 Q5 A. It's not? No, it isn't. 6 Q Do y o u k n o w w h o Mr. J o h n J. S p a n o is? 7 A. No . 8 Q9 A. Have you ever heard of him? No . 10 Q. J . R . T h u r r o t t ? 11 A. No . 12 Q. L e t m e j u s t h a n d t h i s to you, a n d go d o w n 13 t h a t list of p e o p l e at t h e t o p a n d t e l l me if 14 y o u k n o w a n y of them. 15 A. I k n o w L e v i n s k a s ' n ame. I d o n ' t k n o w h i m 16 p e r s o n a l l y . 17 Q. W h a t is w o r l d h e a d q u a r t e r s M o n s a n t o , 18 St. L o u i s ? 19 MS. C O HEN: Le t us t a k e a look at 20 the exhibit, Mr. Jamail. 21 MR. JAMAIL: Okay. Sure. 22 Q. Do y o u k n o w w h a t t h a t is? 23 A. Y e s . T h a t ' s the h e a d q u a r t e r s of M o n s a n t o . 24 Q. O k a y . Y o u ' v e n e v e r h e a r d of J o h n J. S p a n o ? 25 A. No. Martin & Associates (409) 7 6 2 - 2 2 2 2 115 1 Q- Do you k n o w any of t h e s e p e o p l e on this copy 2 list? 3 A. I mentioned I know Levinskas' name - 4 Q. Who is he? 5 A. He was, I think, a -- w h a t do you call it? -- 6 h y g i e n e p e r s o n of s ome kind. T h i s is b a c k in 7 1976. I don't think I was -- S Q- That's not the Dark Ages. 9 A. I k n o w , but it was -- yo u k n o w , I d idn 't know 10 a lot of t h e s e p e o p l e and it was - - 11 Q. Okay. 12 A. L e v i n s k a s , I know- t h e n a m e . T h e o t h e r s I 13 d o n 't . 14 Q. H e w a s a n i n d u s t r i a l h y g i e n i s t , w a s h e n o t ? 15 A. I t h ink so. I'm just t r y i n g to go from 16 m e m o r y . 17 Q. W e l l , w a s it M o n s a n t o ' s p o l i c y t o h i d e t h i n g s 18 f r o m t h e p u b l i c ? 19 A. No. 20 Q If yo u hav e i n f o r m a t i o n t h a t m i g h t be h e l p f u l 21 to ascertain whether or not some of those 22 c h e m i c a I s t h e s e p e o p l e w e r e m a k i n g at 23 M o n s a n t o w e r e t o x i c or not and how the y 24 s h o u l d be d i s p o s e d of and w h e t h e r they were 25 a f f e c t i n g the public, do you th i n k that the Martin & Associates (409) 7 6 2 - 2 2 2 2 117 1 2Q 3A 4Q 5 6 7A 8Q 9A 10 11 Q 12 13 14 15 16 A 17 18 Q 19 20 A 21 Q 22 A 23 24 Q 25 what the legal requirements are. I d i d n ' t s a y " l e g a l . " X n e v e r m e n t i o n e d it. Y e s , but -- That's a hedge, and you don't want to start h edging at this late time in this deposition. No. I'm not hedging. It was wrong to hide such information. It would be wrong to hide harmful information from the public anytime, absolutely. Would you please read what has been marked E xhibit 1212, please, that Mr. Levinskas, your industrial hygienist at Monsanto, got a copy of. W o u l d you read it out loud when y o u ' r e t h r o u g h r e a d i n g it. "As I d i s c u s s e d w i t h you" -- this is from John Spano to somebody named Keating. John Spano says he's with world headquarters, doesn't he? That's -right, yes. Go a h e a d a n d r e a d it. It says "word headquarters," but I'm sure he m e a n t " w o r l d ." Well, it's hard to read the original. That's a retyping. You can't read that. See? Just Martin & Associates (409) 7 6 2 - 2 2 2 2 113 1 2 A. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. go ahead and read that. "As I discussed with you yesterday, I'm glad George Levinskas has put together a statement on his a s s e ssment of toxicity of styrene for 'distribution to Monsanto personnel.' I had not seen it b e f o r e you sent me a copy. However, I agree with you concerning your uneasiness about George's opinion that the statement could be used outs ide the c o m p a n y . I don't think outside use should include press relations purposes. The statement should not be r e l e a s e d in its e n t i r e t y to the p r e s s to a n s w e r que r i e s . Instead, it wo u l d be considered mainly as background for our public relations representatives to phrase specific answers to specific questions. And the proposed answers should be properly cleared within M o n s a n t o before being given to the press. I have no o p i n i o n as to internal or other u s e . "I s u g g e s t t h a t w h a t e v e r distribution you propose should include proper r e s t r i c t i o n s on press use in the covering letter." Mr. Spano, by t h i s memo, is t e l l i n g th e s e Martin & Associates (409) 7 6 2 - 2 2 2 2 1 2 3 4 5A 6 7Q 8A 9Q 10 11 A 12 Q 13 A 14 15 Q 16 A 17 18 19 20 21 22 23 24 25 119 people, including the industrial hygienist Mr. Levinskas, to keep certain information r e g a r d i n g t o x i c i t y of s t y r e n e tars from people, isn't he? No. I d o n ' t --.I can't c o n c l u d e that. He's talking about toxicity of styrene. All right. Of styrene. And -And I -And a s k i n g t h e m not to r e l e a s e it to the press? Well, I'm g o i n g to read w h a t he says -Sure. -- b e c a u s e this is p r e t t y c o n v o l u t e d l a nguage here, and I'm going to read what he s a y s . I d i d n ' t w r i t e it, sir. Look, I k n o w it. I'm s t r u g g l i n g w i t h it. I have to read this kind of stuff all day, and I 'm s y m p a t h e t i c ; b u t I ' m s t r u g g l i n g w i t h it. "I am glad George Levinskas had put t o g e t h e r a s t a t e m e n t on his a s s e s s m e n t of toxicity of styrene for 'distribution to Monsanto personnel worldwide.' I had not seen it b e f o r e you sent me a copy. However, I agree with you concerning your uneasiness about George's opinion that the statement Martin & Associates (409) 7 6 2 - 2 2 2 2 12 0 1 2 3 4 5Q 6 7 8 9A 10 Q 11 A 12 13 Q 14 A 15 16 Q 17 18 19 20 21 A 22 Q 23 A 24 25 Q c o uld be used o u t s i d e the c o m p a n y . " I g u e s s he c o u l d say it c ould be used out of context. I d o n ' t k n o w what he's talk ing a b o u t . Well, what he's saying, for whatever reason MS. COHE N : Mr. M a h o n e y , if you don't know, you don't need to speculate. I really don't know. Do you need some time? Sir? Mr. Mahoney? Look, I can read English; but I'm having t r o u b l e u n d e r s t a n d i n g w h a t t h i s is. I know you can read English. T h i s is a s t r a y m emo. I d o n ' t k n o w w h a t he 's talking about. Let me ask you this: J u s t if s o m e b o d y h a n d e d you this on the street and you were reading it, w o u l d n ' t you get from thi s the interpretation that they didn't want certain i n f o r m a t i o n g i v e n to the p r e s s -O h , I don't know. -- for whatever reason? I c o u l d say t h a t -- I c o u l d say t h a t it c o u l d be taken out of c o n t e x t so -No. No. Martin & Associates (409) 762-2222  12 1 m 1 A . -- wait for q u e s t i o n s and answers. I don't T"* 2 know what he's talking about. 3 Q. L e t ' s d o n ' t take it out of c o n t e x t . Let's 4 sa y t h a t he is -- 5 A . No. T h a t ' s w h a t he is s a y i n g : "I a g r e e w i t h 6 y o u c o n c e r n i n g y o u r u n e a s i n e s s ... t h a t t h e 7 s t a t e m e n t could be used o u t s i d e the company. 8 I don't think outside use should include 9 press relations purposes. The statement 10 s h o u l d n o t ... I n s t e a d , it w o u l d be 1 1 c o n s i d e r e d mainly as b a c k g r o u n d for our 12 p u b l i c r e l a t i o n s r e p r e s e n t a t i v e s to p h r a s e 13 s p e c i f i c a n s w e r s to ..." 14 Q. A n d h e ' s t a l k i n g a b o u t t o x i c i t y of s t y r e n e ? 15 A . T h a t ' s rig h t . T h a t ' s rig h t . 16 Q. A n d h e ' s t e l l i n g -17 A . T h a t m u c h I -- 18 Q. 19 He' s t e l l i n g w h o e v e r the r e c i p i e n t s are of this thing, " D o n ' t t u r n it o v e r to the 20 press" 2 1 M S . COHEN: Ag a i n -- 2 2 Q. 23 -- is he not -- M S . COHEN: -- Mr. M a h o n e y -- 2 4 Q. 25 -- for whatever reason? MS. COHEN: -- if you d o n ' t know, Martin & Associates (409) 76 2- 22 22 1 2 A. 3 Q. 4 A. 5 6 7 Q. 8 9 10 11 12 13 14 15 16 17 A . 18 Q. 19 20 A. 21 22 23 Q. 24 25 d on 't sp ecu late. I r e a l l y d o n 't know. Is th a t what h e 's sa y in g ? I d o n ' t know w hat h e ' s t a l k i n g a b o u t . MR. JAMAIL: I want to in tro d u ce t h is one. Mark i t Mahoney n e x t . No w, l e t me g o b a c k t o M r . S a d o w w i t h y o u f o r a m inute. I f y o u w i l l j u s t t a k e my w o r d f o r i t , u n l e s s he was l y i n g a b o u t i t , w hich I d o n ' t t h i n k he w as, n o r do I ev e n h i n t t h a t he w as, Mr. Sadow was t h e e n v i r o n m e n t a l p r o c e s s te c h n o lo g y m anager f o r a i r and w ater p o l l u t i o n c o n t r o l , h y d r o c a r b o n s and polym ers d i v i s i o n a t M onsanto, T exas C ity , from 1965 to 1973. Do y o u h a v e a n y r e a s o n t o d i s p u t e that? No . T h a t's a p re tty high p o s itio n for th a t p lan t, is n 't it? What did you say? He w a s t h e m a n a g e r ? W ell, I mean t h a t ' s a fa n c y t i t l e . I'm tr y in g to find out I know i t . W e ll, you gave i t - - one of your p e o p le gave i t to him. I d i d n ' t g i v e him th at. Martin & Associates (409) 762-2222 w /r 12 3 1 A. 2 3 Q. 4 A. 5 Q. 6 A. 7 Q. 8 9 A. 10 Q. 11 12 13 A . 14 Q. 15 A. 16 17 Q. 18 19 2 0 Q. 21 22 23 24 2 5 Q. H e ' s t h e m a n a g e r o f p r cte e s s t e c h n o l o g y . T h a t ' s an im p o r t a n t jo b . Im portant job? Yes. I s he a man t h a t s h o u l d be l i s t e n e d t o - - Sure. - - i f he makes r e c o m m e n d a tio n s to h ig h er-u p s Sure. - - r e g a r d i n g p o l l u t i o n and t o x i c i t y of h y d r o c a r b o n s and p o ly m ers and t h i n g s of t h a t nature ? Sure. T h a t was h i s j o b , w a s n ' t i t ? T h a t ' s what is t i t l e i s , and I'm su re t h a t ' s his job. I f management r e f u s e d to l i s t e n to him - - MR. J A M A I L : L e t ' s m a r k t h a t . MS. EVANS: No. I f management r e f u s e d to l i s t e n to him - - MS. COHEN: a look at it . W e ' l l be happy to t a k e MS. EVANS: Y e s , I ' m s u r e y o u would. You're not g e ttin g i t , though. I f management r e f u s e s to l i s t e n to him - - l e t Martin & Associates (409) 76 2- 22 22 124 1 2 3 4 5A 6Q 7A 8Q 9A 10 Q 11 12 13 14 A 15 Q 16 A 17 18 Q 19 A 20 Q 21 A 22 Q 23 A 24 Q 25 me r e p h r a s e it -- i g n o r e s his w a r n i n g s and what he's got to say, then that would be a v i o l a t i o n of M o n s a n t o ' s p o l i c y as you u n d e r s t a n d it? Sure, if he' s t a l k i n g a b o u t his field. Yes? I don't know what he's talking about. No. Let's keep him in his field. Keep him -- sure. And the f a i l u r e to list e n to him w o u l d be the failure to act an a reaso n a b l y prudent c h e m i c a l c o m p a n y as you u n d e r s t a n d it s h o u l d act? Wait just a minute, now. The fail u r e to even a d h e r e -Oh, to listen to him, a b s o l u t e l y . But to a g r e e w i t h h i m is -I'm not saying agree. To.listen, absolutely. Listen, and i n t e r r o g a t e -Sure . -- investigate -- Sure. -- inquire, to make sure he's either right or wrong ? Martin & Associates (409) 762-2222 1* < 3 1 A. 2 Q. 3 4A 5Q 6 7 8A 9Q 10 11 12 13 A 14 15 Q 16 17 18 19 20 21 22 23 24 25 A Perfectly sensible. A n d to f a i l to do so is a c o m p l e t e f a i l u r e to act as a r e a s o n a b l y prud e n t chemical company? If h e ' s t a l k i n g a b o u t i m p o r t a n t stuff, sure. Okay. A n d if w e ' r e t a l k i n g a b o u t t o x i c wastes that can harm people, we're talking about important stuff, aren't we? You're right. The failure to do that, to listen to him and at least investigate, would be a complete d i s r e g a r d on the part of m a n a g e m e n t that he was to r e p o r t to, w o u l d it not? If h e ' s t a l k i n g a b o u t h a z a r d s of tha t kind, sure . Now, I want to read you something that Mr. S a d o w swore to. We a l r e a d y have placed him as M o n s a n t o ' s m a n a g e r in c h a r g e of the place, the air pollution and the water pollution and what have you at the Texas City plant.. Now, the Texas City plant -- you do know this much about this case, don't you? -th e T e x a s C i t y p l a n t is w h a t is i n v o l v e d with Brio, sending their chemical wastes to Brio. That's the plant we're talking about. Yes. Yes. Martin & Associates (409) 7 6 2 - 22 22 12 6 1 Q. Okay. Now, would you read what has been 2 highlighted? 3 MR. J A M A I L : It's line 20, 4 P a g e 2758 f r o m t e s t i m o n y p r e v i o u s l y g i v e n in 5 the Slaughter matter, Counselor. 6 Q. J u s t r e a d it o u t loud. 7 A. "So, b a s i c a l l y , from" -- t h i s is a q u e s t i o n , 8 it says. 9 Q . Yes. 10 A. "So, basically, from 1965 and 1973, once 11 these s t y r e n e m o n o m e r tars we n t o u t s i d e to 12 the R a l p h L o w e f a c i l i t y " -- 13 Q. E x c u s e me. T h e R a l p h L o w e f a c i l i t y is t h e 14 v e r y s a m e f a c i l i t y w e ' r e t a l k i n g a b o u t as 15 Brio. Do yo u k n o w t h a t m u c h a b o u t it? 16 A. Yes. That was the name they used to use. 17 -- "at l e a s t f r o m y o u r d e p a r t m e n t 's 18 s t a n d p o i n t , t hat e n d e d the p r o b l e m ? " 19 A N S W E R : " R i g h t . T h a t wa s s o r t of 2 0 o u t o f - s i g h t , o u t of m i n d ." 21 Q . T h a t was his answer, w a s n ' t it? 22 A. T h a t ' s -- I -- well, yes. A N S W E R : "Right. 23 T h a t wa s s ort of out of sight, out of m i n d . " 24 Q. Now, t h a t is Mr. R o n S a d o w g i v i n g t h a t 25 testimony, correct? Martin & Associates (409) 7 6 2 - 2 2 2 2 12 7 1A 2Q 3A 4Q 5 6 7 8Q 9A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Th a t ' s -Look at the front and make sure. Yes. T h a t l o o k s like it. Mr. Ron Sadow, the man we t a l k e d a b o u t in charge of all this for Monsanto, right? MS. COHEN: I object to the form of the question. Is that right? That's what he says. MR. JAMAIL: I don't have any other questions. MR. KRIST: We have none. MR. KIRK: We have none. MS. COHEN: I have none. T H E V I D E O G R A P H E R : 1 1 : 5 5 a .m ., e n d of deposition. MR. W A R E : H e y , I' h a v e s o m e questions. THE VIDEOGRAPHER: 11:55 a.m. Back on the. r e c o r d . MR. WARE: Why don't we take a break. Generally, when he quits, a lot of people like to leave. THE VIDEOGRAPHER: 11:56 a.m., off the record. Martin & Associates (409) 762-2222 123 1 2 3 4 5 6 7 8Q 9 10 11 12 13 14 15 A 16 Q 17 18 A 19 Q 20 21 22 A 23 Q 24 25 A (A r e c e s s w a s t a k e n . ) No. 2. , THE V I D E O G R A P H E R : This is Tape I t ' s 1 2 : 0 5 p .m ., o n t h e r e c o r d . EXAMINATION BY MR. WARE: Mr. M a h o n e y , my n a m e is Lee W a re. I represent Farm & Home Savings Association and a number of peo p l e -- home b u i l d e r s -- who b u i l t in t h e S o u t h b e n d S u b d i v i s i o n w h i c h is adjacent to the Brio site. Are you familiar with the fact that there is a s u b d i v i s i o n there that this lawsuit involves? Yes . All right. You ' v e been -- y o u ' v e been with Monsanto how long? 30 years. Is -the t e r m line v e r s u s s t a f f -- is th a t m e a n i n g f u l to you in terms of the organization? Yes . How many line people do you have that report directly to you? I guess one. Martin & Associates (409) 7 6 2-2222 129 1 Q. Just one? Who is that? 2 A. That would be the president. 3 Q. Okay. And how many peop l e report direct to 4 h i m in t h a t line? 5 A. Oh, about ten people, I guess. 6 Q. 7 The president has been with Monsanto how long? 3 A. 25 plus years, I think. 9 Q. 10 A. Out of the ten people that report to him -- Ten or so people. 11 Q . O u t of the ten or so t h a t r e p o r t to him, 12 w h o 's been there w h a t is t h e s h o r t e s t 13 l e n g t h of t i m e t h a t a n y b o d y ' s b e e n w i t h 14 M o n s a n t o ? 15 A. T h e s h o r t e s t l e n g t h of t i m e ? 16 Q. Yes , o u t o f t h o s e ten. 17 A. I don't know. I could get you the 18 i n f o r m a t i o n . I j u s t d o n ' t k n o w offha n d . 19 Q Y o u r i n v o l v e m e n t w i t h T e x a s C i t y - - w e r e you 20 e ver ther e ? 21 A. No -- y o u m e a n e v e r in t h e p l a n t ? Yes, I 've 22 b e e n in th e p l a n t ; bu t I ' v e n e v e r b e e n 2 3 a s s i g n e d there, no. 24 Q. W e r e y o u e v e r a t c h o c o l a t e B a y o u ? 25 A. S u r e . Martin & Associates (.409) 7 6 2 - 2 2 2 2 130 1 Q. 2 A, 3 4Q 5 6A 7 8Q 9A 10 11 12 Q 13 A 14 15 Q 16 17 A 18 Q 19 20 21 22 23 24 25 Were you assigned there? Visiting. I've never work e d in the plants. I've never w o r k e d in m a n u f a c t u r i n g . You've never -- you've never been assigned with Monsanto in Texas? No, I've never been in -- I've never been in manufacturing anywhere. A l l right,. But y o u are a c h e m i s t ? Well, I have a d e g r e e in c h e mistry, and I've n e v e r p r a c t i c e d it. I w e n t i n t o m a r k e t i n g after that. I'm not a practicing chemist. Y o u r b a c k g r o u n d is m a r k e t i n g ? My w h o l e care e r has been in c o m m e r c i a l m a r k e t i n g , new products, things like that. And, of course, in r u n n i n g M o n s a n t o ' s business? Yes . All right. If you ass u m e that there are styrene tars that are put in pits in the ground and you assume that somebody builds a s u b d i v i s i o n n ext d oor to it, to w h e r e those pits are, adjacent property, do you have any criticism, from an environmental health s t a n d p o i n t , of the peo p l e who build the subdivision? Martin & Associates (409) 7 6 2 - 2 2 2 2 13 1 1A 2 3 4 5 6Q 7 8 9 10 A 11 12 Q 13 14 A 15 Q 16 A 17 Q 18 A 19 20 21 22 23 Q 24 25 Well, putting a subdivision next to a c h e m i c a l p l a n t is not the g r e a t e s t idea in the world. I mean there's possibilities of explosions and all kinds of things. I don't know s p e c i f i c a l l y this -I'm talking about from an environmental health standpoint. Do you have any criticism of them for doing that from an environmental health standpoint? Well, I wouldn't put a subdivision next to a c h e m i c a l p l a n t if I had a choice, no. I u n d e r s t a n d that.- Do y o u h a v e any criticism? I mean I just don't think it's good practice. Do you have any criticism? Therefore, I have criticism, I guess. W h a t is the b asis of you r c r i t i c i s m ? Well, I b e l i e v e it's -- I think you could -you.could have a plant that could have an emission. It could explode. It p r o b a b l y -probably on occasion puts out smells. I just don't think it's a great idea. Okay. I want you to assume that this particular plant never has an explosion. I want you to assume that the smells are Martin & Associates (409) 762-2222 13 2 1 2 3 4A 5Q 6A 7Q 8A 9Q 10 A 11 12 13 14 Q 15 16 17 18 19 20 A 21 22 23 24 Q 25 controlled, and I want you to assume that there's never an emission. Do you have any other criticisms? And never could, huh? Any other criticisms? You said it never had one? Right. Well, then that doesn't say that it couldn't. Okay'. I mean I w o u l d n ' t -- I w o u l d n ' t site a plant in this day and age in a b u i l t - u p area, and I wouldn't put a housing development next to a plant. If you ass u m e that you have c h l o r i n a t e d s o lvent s in pits and s o m e b o d y bui l d s a subdivision adjacent to the pits on the adjacent property, would you have any additional criticisms other than the ones y o u ' v e a l r e a d y -I'd have to know what the environmental conditions are and a whole bunch of things before I could -- I real l y can't c o m m e n t . I'd have to know a lot more than I know. What about the environmental conditions would be important to you? Martin & Associates (409) 7 6 2 - 2 2 2 2 13 3 1 A. 2 Q. 3 A. 4 5 6Q 7 8A 9Q 10 A 11 Q 12 A 13 14 15 16 17 Q 18 A 19 20 ; 21 22 23 Q 24 25 The e n v i r o n m e n t a l c o n d i t i o n s of which now? Whichever ones are important to you. The e n v i r o n m e n t a l c o n d i t i o n s of the plant, t h a t I'd l ike to k n o w t h a t w h a t e v e r is t h e r e is not g o i n g to h u r t a n y b o d y . Okay. Chlorinated solvents, will they hurt people? They can. Are chlorinated solvents liquids? Yes, chlorinated solvents are liquids. Sure. O k a y . Styrene tars, will they hurt people? Now, there are there are definitions where they d o n ' t have to be so I'm -- I don't want to be cute, but there are definitions; but g e n e r a l l y speaking, t h e y ' r e t h o u g h t of as liquids. Styrene tars, are they liquid? I don't know what styrene tars are, frankly. T h e y ' r e p r o b a b l y s e m i l i q u i d , sort of -- I don't know. I would guess that. I've never w o r k e d in styrene. I just d o n ' t k n o w anything about it. If you ass u m e that what is in the adjacent property are styrene tars and chlorinated s o l v e n t s and t h e y ' r e s t o r e d in pits in the Martin & Associates (409) 7 6 2 - 2 2 2 2 13 4 1 2 3 4 5 6 7A 8 9 10 11 Q 12 13 14 A 15 16 17 Q 18 19 20 A 21 22 23 Q 24 A 25 g r o u n d , is t h e r e any o t h e r a d d i t i o n a l environmental information that you would need before you could state whether or not you would be critical of the p eople that built the subdivision from an environmental health standpoint? I'd want to kn o w what is g o i n g on. Is there a hazard or not? I don't know. But I still think it's not a great idea to put a development next to a chemical plant. It is n o t a g o o d i d e a to s e n d y o u r w a s t e out to a place where there are subdivisions, either, is it? It d e p e n d s on w h a t -- w h a t c o n t r o l s they have, and it depends on a w h o l e bunch of things. Well, assume there are styrene tars and c h l o r i n a t e d solve n t s being put in the ground. I don't know. I really don't know. You have to get somebody more expert than me about that. Do you also have an opinion -I don't have an opinion. THE COURT REPORTER: I'm sorry? Martin & Associates (409) 7 6 2-2222 13 5 1 2 3 Q. 4 5 6 7 A. 8 9 10 11 Q. 12 A. 13 Q. 14 15 16 17 18 19 A. 20 Q. 21 22 A. 23 24 25 MR. WARE: He d o e s n ' t have an opinion. In terms of running a chemical company, what are your r e s p o n s i b i l it i e s ? How do you do the right thing with respect to adjacent property owners ? Well, t h e f i r s t l e v e l is m e e t i n g the law. T h a t ' s a given. The s e c o n d t h i n g is to make sure you've done everything humanly possible to be safe, be a good neighbor, I guess. First of all, you don't blow your plant up? You sure don't. Just because you've got a plant and you've g ot the c a p a b i l i t y to s c r e w it up and b l o w it up, that d o e s n ' t mean that you just -- a chemical manufacturer doesn't have any right to do that and hurt the people adjacent to t h e m , do they? No. You don't have the right to make emissions that would be harmful to them, do you? T h ere are -- now we're going to get t e c h n i c a l . The g e n e r a l a n s w e r is of course not. But there are emissions that are permitted by law and they are permitted by Martin & Associates (409) 7 6 2-2222 13 6 1 2 3 Q4 A, 5 6Q 7A 8 9 10 11 12 13 14 15 Q 16 17 18 A 19 20 Q 21 22 23 A 24 Q 25 law b ec a u s e s o m e b o d y ' s e x a m i n e d levels of emissions and said they are not harmful. I'm talking about harmful emissions. There are emissions that can be considered h a r m f u l that are p e r m i t t e d by law, but -Is that okay? Look, p e o p l e q u a l i f i e d in -- g e n erally, in the Environmental Protection Agency set the standards. We meet the standards, and we don't knowingly violate standards; and that's -- you know, and then you try to do more than that if'you can. I mean it's tough understanding what the laws are half the time. W h a t y o u t r y to do -- t h e r i g h t t h i n g is to do everything humanly possible not to hurt the people next door, right? Right. That's correct. And there's no equivocation about that. And you u n d e r s t a n d that, in terms of the Gulf Coast, there are a lot of refineries, a lot of petrochemical industries, right? Yes . And you understand that there are all kinds of subdivisions that can be affected by what Martin & Associates (409) 7 6 2-2222 137 1 2 3A 4Q 5 6 7 8A 9Q 10 11 12 13 14 15 A 16 Q 17 18 19 20 21 22 23 Q 24 A 25 Q goes on and what happens on those complexes, right? Sure . And you u n d e r s t a n d that it's the duty of -you people who run those complexes not to do -- not to run your b u s i n e s s in such a way as to hurt them? T h a t 's r i g h t . And you may not like where they build their subdivisions; you may not like where they choose to live, but you understand that you don't have any right to hurt them just because they have to live there or choose to live there? T h a t 's r i g h t . And my p e o p l e are s t r a n g e a b o u t g r o u n d -- you can u n d e r s t a n d wh y -- just like you p e o p l e are a little strange about chemicals. Their b u s i n e s s is t e r r i t o r y , ground. T h e y make -they build residences for people. MS. COHEN: I object to the form of the question. You understand that? Yes. Your firm builds homes. Yes. And your firm makes chemicals. Martin & Associates (409) 7 6 2 - 2 2 2 2 138 1 A, 2Q 3 4 5 6 7A 8Q 9 10 11 12 A 13 Q 14 15 16 17 A 18 Q 19 20 21 A 22 Q 23 24 25 A Right And your job, when you're m a k i n g your c h e m i c a l s , is to m a k e s u r e t h a t the c h e m i c a l s that yo u ' r e in the p r o c e s s of m a n u f a c t u r i n g stay on your property and don't get on somebody else's property, right? Right. A n d p a r t of y o u r job is to m a k e s ure that w h e n you take y o u r w a s t e s t r e a m and s e n d it out s o m e p l a c e t h a t it g e t s s e n t s o m e p l a c e w h ere it d o e s n ' t hurt people, right? Yes . Now I want to go back. In terms of environmental health, have you got any c r i t i c i s m of my p e o p l e that you h a v e n ' t told me about? Of your people? Yeah. Farm & Home Savings Association are the pe o p l e that built homes in S o u t h b e n d Subdivision. I d o n ' t k n o w is the answer. I d o n ' t know. Okay. By my count that's the 47th time since 10:43 t hat you h a v e u sed the p h r a s e "I don't know" -- Uh-huh. Martin & Associates (409) 762-2222 139 1 Q. -- this morning. 2 MS. COHEN: I obj.ect to the form of 3 the question. 4 Q W h a t do you h a v e to do to find out if you 5 have any c r i t i c i s m of my clients? 6 MR. JAMAIL: I've got some. 7A Well, I'd have to spend some time and ask 8 some people and get some o pinions and do an 9 investigation, I suppose, and form some sort 10 of opinion. 11 Q 12 Sitting right here, you just don't have any crit -- yo u don't- k n o w if you h a v e any 13 c r i t i c i s m ? 14 M S . C O H E N : O t h e r c r i t i c i s m s ? 15 A I made the ones I made. I just don't think 16 it's a g ood idea to put a p l a n t n ext to -- 17 h o u s e s n e x t to a c h e m i c a l p l a n t . 18 Q 19 And other than that, have you got any criticisms? 20 A I d o n ' t know. I just -- t h e r e ' s 44 or 21 w h a t e v e r it is. 22 Q 23 A 44? I'd be happy to look into the question, but I 24 d o n ' t h a v e an o p i n i o n s i t t i n g here. 25 Q It ' s v e r y i m p o r t a n t for me to k n o w if you Martin & Associates (409) 762-2222 140 1 2 3 4 5 6 7 8 9 10 11 12 I 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. h a v e an y o p i n i o n s or if y o u ' r e g o i n g to form any. I don't have an opinion that I can give you, no. Okay. Your a t t o r n e y s in this case have taken a position that the damages -- that they're going to prove that the damages that arise from the o c c u r r e n c e s that are in q u e s t i o n were the fault of my c 1i e n t s . Do you have any basis for supporting that? I'm not going to answer the question. I d o n ' t -- I don't have an opinion. MR. JAMAIL: v o ice up, please. Will you keep your THE WITNESS: Keep your voice up? MR. JAMAIL: K e e p y our v o i c e up, p l e a s e . I d o n ' t c a r e w h e t h e r y o u a n s w e r it. I just want to hear the question. Do* y o u h a v e a n y b a s i s f o r a t t r i b u t i n g t h e d a m a g e s that these min o r s have s u f f e r e d as being the responsibility of Farm & Home Savings Association and the other people I represent? MS. COHEN: Other than what he's already said that Farm & Home built the Martin & Associates (409) 7 6 2-2222 14 1 1 2 Q. 3 4 5 6 Q. 7 8 9 10 11 12 A. 13 14 15 16 Q. 17 18 A, 19 Q20 21 22 23 A 24 Q 25 subdivision? No. I'm asking any -- any basis at all. THE WITNESS: I don't know how to answer the question. Do you have any advice? Well, let's b r e a k it down. You r l a w y e r s have said that they're going to prove that the damages that these individuals or these children have suffered are caused by my p e o ple. W h a t d a m a g e s are you a w a r e of, if any? Well, I don't know how they're handling the case. I really don't. So I can't intelli g e n t ly answer about the strategy of the case. Are you aware of any damages that these children are suffering? I don't personally know of any. Let me ask you the question. In your job at Monsanto, one of the things that you ought to k eep a p p r i s e d of is w h e t h e r or not y o u ' v e h u r t s o m e b o d y out t h e r e in the public, right? Yes. Yes. All right. Now, have you hurt these kids or not? Martin & Associates (409) 762-2222 14 2 1 A. My i n f o r m a t i o n is no but -- 2 Q Okay. 3 A. T h a t ' s - - y o u ' r e a s k i n g me if - - I'm t e l l i n g 4 you what people have told me. 5 Q. I'm a sk i n g you -- 6 A. People have told me that. 7 MR. J A M A I L : I object to that. 8 Ain't no way -- he d oesn't know any of these 9 f a c t s . Are you denying, Mr. Ware, that these 10 c h i l d r e n are h u rt? 11 MR. WARE: I'm a s k i n g hi m if he's 12 d e n y i n g i t . 13 MR. J A M A I L : Go a h e a d 14 Q. A r e y o u d e n y i n g t h e c h i l d r e n a r e h u r t ? 15 MS. C OHEN: H e ' s t e s t i f i e d t h a t -- 16 he said it's not -- M o n s a n t o did not hur t 17 t h e m . 18 Q. A r e y o u d e n y i n g t h a t ? 19 A. I --- t h e i n f o r m a t i o n I h a v e is t h a t t h e r e 20 were there were no injuries caused by 21 this -- 22 Q. C h e m i c a 1 e x p o s u r e ? 23 A. Y e s . 24 MR. KRIST: Well, I'm g o i n g to 25 o b j e c t to h e a r s a y i n f o r m a t i o n ; that he told Martin & Associates (409) 762-2222 14 3 1 2 3 4 5 6 7 8 9 10 11 12 Q 13 14 15 16 17 Q 18 19 20 A 21 Q 22 A 23 24 Q 25 Mr, Jamail repeatedly he didn't have any knowledge of the facts and now he says that no one's hurt. MR. JAMAIL: And I object MR. KRIST: T h a t 's not his knowledge. MR, JAMAIL: I object further on the basis that Mr. Ware a p p a r e n t l y has entered into some sort of conspiracy with Monsanto to try to minimize these damages. You can't boot strap him, Lawyer. W h a t y o u 've b een t old by y o u r l a w y e r s is that t h e r e is no -M R . J A M A I L : A n d I o b j e c t to it again. He has no way to know the answer to that. What you have been told -- you don't have p e r s o n a l k n o w l e d g e -- what you ' v e been told is.no damage due to chemical exposure? That's correct. And as far as you know -I don't have any personal knowledge of that but As far as you know, there's no way that they have -- given that and given the v a l i d i t y of Martin & Associates (409) 7 6 2-2222 14 4 1 2 3 4A 5Q 6A 7Q 8A 9Q 10 A 11 Q 12 13 14 15 A 16 17 18 Q 19 20 21 Q 22 23 24 25 what they've said, then there's no way that they have of proving that my clients have c a u s e d ttiem a n y d a m a g e ? Who is " t h e y " ? Is that right? Who is " t h e y " ? Your lawyers. Start again. Sure. I've lost t r a c k of the t h i n g . If they shot s t r a i g h t w i t h you and there hasn't been any damage to the individuals due to c h e m i c a l expos u r e , t hen t h e r e is no d a m a g e to be laid off on my client, is there? I don't know. I really don't know how to a n s w e r that. T h i s is a v e r y c o m p l i c a t e d case. T h a t ' s 45. MS. COHEN: I object to the form of the quest i o n , It's a statement. Do you have any -- do you have any information available to you that suggests that my people -- by "my people," I'm talking about my clients, Farm & Home A s s o c i a t i o n -Savings & Loan Association and the builders Martin & Associates (409) 7 6 2-2222 14 5 1 in the s u b d i v i s i o n -- have in any way damaged 2 or hurt anybody? 3 A. I have no personal knowledge. 4 Q. Do you have any in f o r m a t i o n p r o v i d e d to you 5 by anybody other than your lawyers of that? 6 A. No, I have no k n o w l e d g e of -- 7 Q. I'm not just t a l k i n g -- 8 M S . COHEN : Do you have any 9 information from anybody other than your 10 l a w y e r s ? J u s t " Y e s " o r " N o . 11 11 A. No. T h e y -- 12 MS. COHEN: "Yes" or "No." 13 A. T h e a n s w e r is no. 14 Q. rY o u d o n ' t h a v e t o a n s w e r " Y e s " o r " N o . " 15 A. T h e a n s w e r is no, I d o n ' t h a v e an y o t h e r 16 i n f o r m a t i o n b e y o n d the l a w y e r s . T h a t ' s -- 17 t h a t ' s th e a n s w e r : No. 18 Q. A r e y o u a w a r e of a n y -- d o y o u h a v e a n y b a s i s 19 o r . m a k e a n y c o n t e n t i o n t h a t F a r m & H o m e 20 Savings As s o c i a t i o n or my clients need to be 21 punished by punitive damages? 22 A. I d o n ' t h a v e any opinion. 23 MR. J A M A I L : I do. 24 Q. C h l o r i n a t e d s o l v e n t s , do t h e y l e ach? 25 A. I don't know. It depends on the conditions. M a r t i n &. A s s o c i a t e s (409) 7 6 2-2222 14 6 1Q 2 3A 4 5Q 6 7A 8 9Q 10 A 11 Q 12 13 A 14 Q 15 16 17 A 18 Q 19 20 21 22 A 23 Q 24 A 25 Q If you put t h e m in the ground, do they leach into the ground? W h a t is t he g r o u n d ? Cl a y ? Is it c e m e n t ? Is it -Clay wit h p o r o s i t y a s s o c i a t e d wi t h it and p e r m e a b i l i t y a s s o c i a t e d w i t h it. I don't know. I don't know. It all depends is the answer. It could happen? Could. Could not. All depends. If you were g o i n g to put it in the ground, you ought to check on that? Yes . It would be t e rribly important to check on t h a t if you h a v e a s u b d i v i s i o n n e x t door, right? Yes . As I u n d e r s t a n d it, Mr. M a h o n e y , y o u d o n ' t understand the process by which the chemicals that ended up in the Brio site were produced, do you? Mo. That's just not your end of the work? That's not my field. You're not under -- you're not f a m iliar with Martin & Associates (409) 7 6 2-2222 14 7 1 2 3A 4Q 5 6A 7Q 8 9 10 11 A 12 Q 13 14 A 15 Q 16 17 18 19 20 A 21 Q 22 23 24 25 and don't know what the content, chemical content of the chlorinated solvents are? No . You don't know what the content of the s t y r e n e tars are in terms of c h e m i s t r y ? No . You're not even sure about what form they w e r e p u t -- t h e y w e r e in, w h a t state, w h a t p h a s e t hey w e r e in w h e n t h e y w e r e put in the ground, right? That's correct. You don't know anything about the environmental conditions of Brio? No . You have a general feeling that people shouldn't build their houses or shouldn't build too close to chemical plants because the people that run the chemical plant may, for some reason, b low it up? Co u l d be. You u n d e r s t a n d you have to get several -- you p r o b a b l y have to get about 20 miles away not to be a f f e c t e d if the y r e a l l y b l o w one up? MS. COHEN: X obj e c t to the form of the question. Martin & Associates (409) 7 6 2-2222 148 1 Q- You understand that? 2 MS. COHEN: I object to the form of 3 the question. 4 Q. You heard about the Adams Terminal explosion 5 out in P a s a d e n a ? 6 A. Yes . 7 Q. And you know how far away there were people 8 that were affected by that; literally miles 9 away? 10 A. U h - h u h . 11 Q. R i g h t ? 12 A. I don't know. I don't k n o w . 13 Q. Y o u w o u l d n e v e r c o n d o n e s e n d i n g w a s t e p r o d u c t 14 f r o m t h e T e x a s C i t y p l a n t o v e r to a l o c a t i o n 15 t h a t was r i g h t a c r o s s the f r e e w a y from a 16 r e s i d e n t i a l s u b d i v i s i o n , w o u l d you? 17 A. 18 I d o n ' t know. Is it a -- is it a a u t h o r i z e d site or is it not? I m e a n y o u ' r e -- 19 Q - It's an a u t h o r i z e d site. 20 A. H y p o t h e t i c a l now? 21 Q. 22 It's an authorized site. condone that, would you? You would never 2 3 A. There's a lot of people that have to decide 24 t h a t and not me: the f e d e r a l g o v e r n m e n t , the 25 state, local, the home builders. Martin & Associates (409) 7 62-2222 14 9 1 Q- Let me ask you this: If s o m e b o d y at M o n s a n t o 2 d o e s s o m e t h i n g w r o n g , t h e y .do s o m e t h i n g w r o n g 3 and they hurt somebody with your chemicals, 4 the ones that you make, who has the final 5 r e s p o n s i b i l i t y in y o u r o r g a n i z a t i o n to see 6 t h a t t h a t p e r s o n is d i s c i p l i n e d ? 7 A. S o m e b o d y is h u r t b e c a u s e of w h a t ? 8 Q * Chemical exposure from the chemicals that you 9 make. Who at Monsa n t o has the ultimate 10 r e s p o n s i b i l i t y to see -- 11 A. W e l l , I h a v e t h e u l t i m a t e r e s p o n s i b i l i t y for 12 w h a t g o e s on in t h i s c o m p a n y . 13 Q. H a v e y o u e v e r d i s c i p l i n e d a n y b o d y b e c a u s e of 14 an e x p o s u r e of c h e m i c a l s t h a t ' s o c c u r r e d t h a t 15 y o u m a k e ? 16 A. I n e v e r have, no. 17 Q. 18 A. Do you k n o w if your p r e d e c e s s o r ever did? I don't know. 19 Q. 20 21 Do you k n o w if a n y b o d y u n d e r -- t h a t ' s 47 times. MS. COHEN: I obj e c t to the form of 22 t h e q u e s t i o n . 23 Q- D o e s a n y b o d y u n d e r y o u e v e r d i s c i p l i n e 24 a n y b o d y b e c a u s e p e o p l e h a v e b e c o m e e x p o s e d to 25 c h e m i c a l s , wr o n g l y , t h a t you h a v e m a de? Martin & Associates (409) 762-2222 15 0 1A 2Q 3 4 5 6A 7Q 8 9 10 A 11 12 Q 13 14 A 15 Q 16 A 17 18 19 Q 20 A 21 Q 22 23 A 24 Q 25 A I don't know. Have you all ever hurt anybody with the chemicals that you've made by unintentionally or ne g l i g e n t l y letting somebody become exposed to them? Unintentionally? Yes . MS. COHEN: I o b j e c t to the form of the question. I t h i n k the a n s w e r is yes, but I'm not -- do the question again. Sure. Have you all ever hurt anybody with the chemicals you make, unintentionally? I d o n ' t know, s p e c i f i c a l l y , b u t I s u p p o s e so. T h a t 's 48. Yeah. Well, you know, I know what I know. You can keep counting, but I know what I know. O k a y . Wh o in y our o r g a n i z a t i o n -I can c ount, t o o . -- do you look to -- have you ever asked anybody those questions? Of course I have. I have. O k a y . Who did you ask those questions of? Well, we have a large structure that makes Martin & Associates (409) 762- 2 2 2 2 15 1 1 2 3 4Q 5 6 7 8A 9 10 11 Q 12 13 A 14 Q 15 16 17 A 18 19 Q 20 21 22 23 A 24 Q 25 A s u r e t h a t M o n s a n t o is b e h a v i n g p r o p e r l y , and we have a vice president of environmental and safety and manufacturing. When you asked those questions, did anybody ever tell you that Monsanto had unintentionally hurt somebody with chemicals that they manufactured? The a n s w e r is yes, and t h e r e w as an i n c i d e n t 30 y e a r s ago, I guess, t h a t I'm a w a r e of; but I don't know of any since. You all are i n v olved in the c l e a n u p of how many superfund sites at the present time? 50, maybe. Your r e p o r t in the Wall S t r e e t J o u r n a l q u o t e s -- it says y o u ' r e i n v o l v e d in a b o u t 80 s u p e r f u n d sites as a PRP. I don't know. It's -- it could be more, but I think it's less. I don't know. Did you ever -- have you ever asked within your organization, "Has anybody ever been hurt because of these s u perfund sites that we're cleaning up?" Have I asked that? Yes . Yes, I have. Martin & Associates (409) 7 6 2-2222 15 2 1 Q. What have you been told? 2 A. "No. " 3 Q* N o b o d y ' s b e e n h u r t by it? 4 A. Not that anybody knows. 5 Q- O k a y . 6 MR. JAMAIL: You're talking about 7 the c l e a n u p of them? Is that what your 8 question was? 9 Q. I'm talking about before you started cleaning 10 t h e m up, h a s a n y b o d y in M o n s a n t o e v e r 11 s u g g e s t e d to you, a d m i t t e d to you that there 12 h a s b e e n s o m e b o d y t h a t w a s e x p o s e d to 13 c h e m i c a l s -- 14 A. A n d th e a n s w e r is no. 15 Q. -- in o n e o f t h e s e s i t e s ? 16 A. T h e a n s w e r is no. E x p o s e d to c h e m i c a l s or 17 h u r t ? 18 Q- Y e s . 19 A. Y o u s a i d " h u r t . " A n d X s a i d t h e a n s w e r to - - 20 the q u e s t i o n was, "Was a n y b o d y hurt by these 21 s i t e s , " a n d the i n f o r m a t i o n I h a v e is no. 22 Q- I n o t h e r w o r d s , t h e r e ' s b e e n - - y o u ' v e h a d 23 e x p o s u r e s r e p o r t e d to you, but w h a t you ' ve 24 b e e n t o l d is t h a t t h e e x p o s u r e s w e r e n ' t 25 e n o u g h to h u r t a n y b o d y ? Martin & Associates (409) 762-2222 153 1 A, 2 3 4 5 6Q 7 8A 9Q 10 11 12 13 A 14 15 16 Q 17 18 19 20 A 21 22 23 Q 24 25 A I don't know what you mean by "exposure." I mean I'm exposed to e v e r y b o d y in this room but I'm not hurt. You can be exposed to things and not be hurt, so I'll answer that I me a n to come in c o n t a c t with, w h e n I say "exposure." I don't know the answer to that. H a v e you e ver a s k e d if a n y b o d y ha d ever been e x p o s e d to c h e m i c a l as a r e s u l t of any one of these sites? MS. COHEN: He's a l r e a d y said -- I've asked if a n y b o d y has been hurt by c h e m i c a l s in these sites, and the answer I've b e e n g i v e n is "No." Okay. And as far as you know, the last time that M o n s a n t o had an i n v o l v e m e n t in which somebody was accidentally hurt by chemicals was 30 yea r s ago? Well, look, are you talking about accidents in a p l a n t ? We h a v e a m a r v e l o u s s a f e t y r ecord but -I'm talking about outside people. I'm talking about outside people. To my knowledge, then, no. And these weren't Martin & Associates (409) 7 6 2 - 2 2 2 2 154 1 2 3 4 Q. 5 6 7 8 9A 10 11 Q 12 13 A 14 15 16 17 18 19 20 Q 21 A 22 23 24 25 Q o u t s i d e people. T h e s e w e r e p e o p l e in the p l a n t 30 years ago. That's, the one I know about. Today, at the present time, 1992, are you aware of what policies or what procedures yo u ' v e got in p l a c e to make sure that your waste p r o d u c t streams are d i s p o s e d of sa fe l y ? In a general way, and I'm very comfortable with them, ye s . What do you do? What are your general policies? First of all, the Environmenta 1 Protection Agency declares the policies. You don't have a lot of freedom to deviate from the federal and state laws, and so those are f u n d a m e n t a l l y w h a t -- what p e o p l e are working aga i n s t . A nd we m a k e sure t hat w e ' r e in compliance with all the relevant laws. O t h e r .than that, w h a t do you do? Well, I put good peo p l e in p l a c e that I trust and make sure they -- they carry out their responsibilities, including the laws and i n c l u d i n g d o i n g w h a t is right. Have you ever fired anybody? Martin & Associates (409) 7 62-2222 15 5 1A 2Q 3A 4Q 5 6 7A 8Q 9 10 11 A 12 13 14 Q 15 16 A 17 18 Q 19 20 A 21 Q 22 23 24 A 25 Q Did I personally? Yes . Yes . Okay. Do you ever do it b e c a u s e of environmental concerns? Have you ever done it because of environmental concerns? No . Do you fire -- the primary reason when you g e t a r o u n d to f i r i n g p e o p l e -- w h a t is the primary reason you get around to firing them? Well, I've only done it once so the primary reason was that he wasn't capable of doing his jo b . Okay. He wasn't getting something run that you trusted him to run? No. No. No. It was -- he w a s n ' t doing his job. You've never disciplined anybody for environmental reasons? NO. I g u e s s w h a t I'm g e t t i n g to is, as I u n d e r s t a n d it, y o u h a v e -- t h a t y o u put p e o p l e in p o s i t i o n s that you trust. Uh-huh. And apparently you have a tremendous Martin & Associates (409) 7 6 2 - 2 2 2 2 155 1 s e l e c t i o n p r o c e s s b ecause you don't have to 2 get rid of them and don't have to discipline 3 them. 4 MS. COHEN: I object to the form of 5 the question. 6Q Right? 7 A , You a s k e d me if I got rid of many, and the 8 a n s w e r is no. We h ave v e r y g o o d p e o p l e do i n g 9 that work. 10 Q 11 On the people that you've got doing -- making sure that your environmental waste product 12 s t r e a m s are taken, c a r e of -- 13 A Yes . 14 Q 15 -- responsibly today, how do you go about checking on these people that perform those 16 j obs? 17 A Well, the f irst t h i n g I do is I put good 18 p e o p l e in jo b s t h a t r e p o r t to me. 19 Q 20 A I've heard that. T h e s e c o n d t h i n g we do is we a u d i t our 21 p r a c t i c e s . And the t h i r d t h i n g we do is we 22 s tay in c o m p l i a n c e . An d the f o u r t h t h i n g I 23 do is m a k e s p e e c h e s all over the c o u n t r y 24 a b o u t the subject, i n c l u d i n g y e s t e r d a y . 25 Q How do you ever check on it? Martin & Associates (409) 7 62-2222 15 7 1 A. 2 3 4 5 6 7 8 9Q 10 11 12 13 A 14 Q 15 16 A 17 Q 18 19 A 20 Q 21 A 22 23 Q 24 25 A We have a whole variety of internal procedures to check. And they bring them together, and they certify them; and they tell me a b o u t it. An d I -- it's like any other audit we do. We do a s a f e t y audit and financial audit. We do environmental audits, and we ma k e sure we're in c o m p l i a n c e and doing the right thing. When you sell your w a s t e p r o d u c t s t r e a m -say it's chlorinated solvents -- what are you required to do to make sure that they're r e s p o n s i b l y taken' care of? I don't know. Do you ever make any checks of the people that y o u ' r e g i v i n g the s t r e a m to -Do I personally? -- sell i n g the stre a m to. No. Your company. Well, I r e l y on our p e o p l e to do it. Do you. k n o w w h a t the y do? I don't know personally. I'm sure they're doing w h a t e v e r is required. Do you have any opinion as to what they should do? T h e y ou g h t to do w hat is right. Martin & Associates (409) 7 6 2-2222 15 3 1 Q A n d to do w h a t is r i g h t m e a n s w h a t e v e r you 2 have to do b e c a u s e that ' s w h a t the law is? 3 A. N o . Do w h a t i s .r i g h t . A n d s o m e t i m e s the law 4 doesn't go far enough, I don't think. 5Q Okay. 6A And you ought to go beyond the law. 7Q 8 W i t h r e s p e c t to you at M o n s a n t o , if the people that hear this case decide that you 9 need to do s o m e t h i n g you h a v e n ' t done to be 10 in c o m p l i a n c e w i t h t h e law, y o u d o n ' t h a v e 11 any t ro u b l e wi t h them a s s e s s i n g pu n i t i v e 12 d a m a g e s a g a i n s t y-ou a s t h e w a y o f s i g n i f y i n g 13 to y o u w h a t y o u ' r e s u p p o s e d to d o ? 14 A I'm not going to get into an answer of what 15 a b o u t p u n i t i v e d a m a g e s for y o u r set of 16 c o n d i t i o n s . P u n i t i v e d a m a g e s ar e a v e r y 17 s p e c i f i c l e g a l s i t u a t i o n an d t h e y r e q u i r e a 18 full u n d e r s t a n d i n g of w h a t is i n v o l v e d , and I 19 w o n ' t a n s w e r on t h a t b a s i s . 20 Q If t h e J u d g e -- if* it is f u l l y e x p l a i n e d t o 21 t h e m by the J u d g e who is g o i n g to try this 22 case, you w o n ' t hav e any t r o u b l e if the J u dge 23 d e c i d e s t h e y n e e d to s e n d y o u a m e s s a g e as -- 24 u s i n g p u n i t i v e d a m a g e s ? 25 A The Judge has the freedom to do what the Martin & Associates (409) 762 - 2 2 2 2 15 3 1 J u d g e w a nts to do. 2 Q . And you won't question that? 3 A. Look, I d o n ' t -- it d o e s n ' t m a t t e r w h e t h e r I 4 question or not. I don't have any authority 5 to question or not question. We can appeal, 6 and that ' s my -- that ' s my way of protesting, 7 I guess, if t h a t w e r e the case; b ut I d o n ' t 8 know. 9 Q . Other than that? 10 A. O t h e r t h a n t h a t w h a t ? 11 Q . I'm just w o n d e r i n g about w h a t you started off 12 w i t h M r . J a m a i l on a n d w h y y o u t h i n k p u n i t i v e 13 d a m a g e s a r e a p p r o p r i a t e , an d m y n e x t q u e s t i o n 14 is g o i n g to be -- 15 A. I t h i n k t h e y c a n be a p p r o p r i a t e . 16 Q. -- my n e x t q u e s t i o n is g o i n g to be: In w h a t 17 i n s t a n c e ca n y o u t h i n k of t h e y w o u l d be 18 a p p r o p r i a t e a g a i n s t a c h e m i c a l c o m p a n y , 19 a n y -20 A. I d o n ' t h a v e any o p i n i o n . 21 Q. C a n y o u g i v e me a s i n g l e i n s t a n c e w h e r e you 22 would say, "Yes, that's a chemical company 23 that should have had punitive damages awarded 24 aga inst it"? 25 A. W e l l , I d o n ' t k n o w of a n y c a s e s so -- Martin & Associates (409) 7 6 2-2222 16 0 1 Q 2 A 3 4Q 5 A, 6 7 8Q 9 10 11 Q 12 A 13 14 Q 15 A 16 Q 17 A 18 19 Q 20 . 21 A 22 Q 23 A 24 25 Can you dream up one? Oh, I can dream up anything. What would you like? Drearn up o n e . Wanton, willful, malicious, consistent, everyday violation of decent human rights. Absolutely. 80 s u p e r f u n d sites? MS. COHEN: I o b j e c t to the form of the question. Is that j u s t i f i c a t i o n ? Do you know how many people have superfund sites? I imagine quite a few. Name a corporation. 80 s u p e r f u n d sites? Well, f i r s t of all, I d o n ' t k n o w if it's 80. If it's 80, it's 80. Anything there that would suggest to you punitive damages would be appropriate? I d o n 't k n o w . You d o n 't know? You've got to have the facts. Is anybody being injured? Are people behaving responsibly? Did they behave responsibly? Martin & Associates (409) 7 62-2222 16 1 1 2 3Q 4 5 6Q 7 8 9 io 11 12 13 14 15 Q 16 17 18 19 A 20 Q 21 22 A 23 24 Q 25 Did they meet the societal e x p e c t a t i o n s at t h e t i m e 'o r - He has -- and by " h e , " I'm t alking about Mr. Jamail. He has -- MS. COHEN: Don't interrupt him. I'm p o i n t i n g to Mr. Jamail. He has what he c o n t e n d s is a m o u n t a i n of d a t a and information and opinions that children have been harmed because of involvement with these waste products at the Brio site. MR. JAMAIL: I obje c t to that. You also have access to that very same information, Mr. Ware, as does Monsanto. I didn'tmakeitup. Assuming the correctness of that, would that in any way be s o m e t h i n g that you ought to weigh in the stead or take into consideration in d e t e r m i n i n g w h e t h e r or not -W h a t is that again? P u n i t i v e d a m a g e s , is t h a t a n y t h i n g you ought Y o u w e r e g o i n g b a c k and f o r t h ther e . W h a t is it t h a t you w a n t me to a n s w e r ? If you have a m o u n t a i n of -- wh a t somebody claims -- data and opinions of children Martin & Associates (409) 7 6 2-2222 16 2 1 2 3 4 5 6A 7Q 8A 9 10 11 Q 12 A 13 14 15 16 17 18 19 20 21 22 23 Q 24 25 i n j u r e d b e c a u s e o f e x p o s u r e t o c h e m i c a l 's a t the Brio s u p e r f u n d site, is that an instance in w h i c h you w o u l d say m a y b e the c h e m i c a l company ought to be slapped with punitive damages ? For what? For injuring those kids. If t h e r e ' s s e r ious injury c a u s e d by a chemical company, I think that's a candidate, sure. You don't have any trouble with that? Well, I'm giving you the definition, serious injury caused by -- under egregious -- I mean w h a t is the d e f i n i t i o n of p u n i t i v e d a m a g e s ? I didn't even know what the State's d e f i n i t i o n is. Y o u ' r e b a c k to the l a w . I mean I can c o n j u r e up a case but I -- what did they do? What did they intend? When was the standard set? What was the -- what did people, think of at those times when whatever was going on? I don't know. You're asking me to be a lawyer and I'm not. I know you're not a lawyer. What I think the p u b l i c e x p e c t s of you is to be a m a n a g e r of a chemical company. Martin & Associates (409) 7 62-2222 16 3 1 A. 2 Q3 4 5 6 7 8 9A 10 11 Q 12 13 A 14 Q 15 16 17 18 19 20 A 21 22 Q 23 A 24 Q 25 Uh-huh. A n d I t h i n k w h a t t h e p u b l i c w o u l d e x p e c t is that you, as a m anager of a chemical company, w o u l d be able to i d e n t i f y one i n s t a n ce in which you would say, "Yes, that's fine. You need to award punitive damages against that chemical company for that egregious c o n d u c t . " Can you think of any? Do you know how many definitions of punitive d a m a g e s are in this co u n t r y ? I know there's going to be one that's read to this Jury. Well, I d o n ' t k n o w w h a t the s t a n d a r d is. M a y b e you s h o u l d check, if y o u ' r e g o i n g to take and leave your mess down here on the Gulf Coast for all of us to live with. Do you agree with that? MS. COHEN: I o b j e c t to the form of the question. It's argumentative. I don't know. I don't know what you're saying. You just don't care about that, do you? I care a lot. Well, then you haven't done a lot to m a n i f e s t your care, have you? Martin & Associates (409) 762-2222 164 1 A 2Q 3A 4Q 5A 6Q 7 8A 9Q 10 A 11 12 13 14 15 16 17 18 19 Q 20 A 21 22 23 24 A 25 Who? You. Me? Yes . I'm doing my job. In r e s p e c t to t a k i n g c a r e of the m e s s in terms of the Brio s u p e r f u n d site -By my u n d e r s t a n d i n g --- what have you personally done? -- it's moving a ccording to the practice of this government. It's a regulated issue. It's being practiced according to that regulated issue. I would love to do things faster than the regulations. We're moving within the law, trying to get this thing done. The s u p e r f u n d law is a c o m p l e x l a w . It d o e s n ' t let you do m u c h vo l u n t a r i l y . You h a v e to -- I m e a n a s u p e r f u n d is -I .thought you said you weren't a l a w y e r . I k n o w s o m e t h i n g a b o u t s u p e r f u n d s b e c a u s e -- M R . W A R E : Pass the witness. MS. COHEN: You can finish your statement. The superfund law doesn't let you do things ahead of the pace. If you d o , you get Martin & Associates (409) 7 6 2 - 2 2 2 2 15 5 1 punished. You've got to go step by step 2 thro u g h the law, and it's a very complex, 3 t i m e - c o n s u m i n g piece of legislation. I 4 w o u l d n ' t have w r i t t e n it that way. 5 MR. JAMAIL: I have just a few 6 questions. 7 MS. COHEN: I d o n ' t have any 8 questions. 9 10 F U R T H E R E X A M I N A T I O N 11 BY MR. JAMAIL: 12 Q. M r . M a h o n e y l e t m.e c l e a r u p a c o u p l e t h i n g s 13 of w h a t y o u s a i d . D i d I u n d e r s t a n d y o u to 14 s ay t h a t if the law r e q u i r e s s o m e t h i n g , you 15 felt -- you b e l i e v e d t hat t h e r e was an 16 o b l i g a t i o n on the p a r t of the c h e m i c a l 17 c o m p a n y or a n y b o d y e l s e to f o l l o w t h e law? 18 A. T r u e . 19 Q . If t h e law r e q u i r e d an d r e q u i r e s M o n s a n t o and 20 anybody else to operate as an ordinary, 21 p r u d e n t o p e r a t o r of a c h e m i c a l c o m p a n y , then 22 your duty under the law would be to follow 23 t h a t law, w o u l d n ' t it? 24 A. T h a t 's r i g h t . 25 Q . Okay. As a chief e x e c u t i v e officer, I am Martin & Associates (409) 7 6 2-2222 166 1 2 3 4 5 6 7 8 9A 10 11 Q 12 A 13 Q 14 15 Q 16 A 17 Q 18 A 19 20 Q 21 22 23 24 25 aware that you have other duties other than the ones we're talking to you about here today, and I want to refresh your memory. I didn't expect you to know the exact number of superfund sites that Monsanto was involved with, but I t h i n k it's r e p o r t e d in the h i g h l i g h t e d p o r t i o n of your annu a l report. W o u l d you lo o k at it, p l e a s e . It says 80. So the W all S t r e e t J o u r n a l was correct. It says 80 in w h i c h M o n s a n t o is a PRP? Yes. T ell me a g a i n w h a t t hat means. P r i n c i p a l -- MS. COHEN: Potentially. Potentially responsible party? Potentially responsible party. Okay. And there's a lot of them at these individual sites. Mr. Mahoney, I'm going to take you out of your field for a minute. You were asked whether you had any criticism of the developer Farm & Home, and you stated what you had. I h ave o t h e r s c r i t i c i s m s of t h e m in. evidence. Martin & Associates (409) 7 6 2-2222 16 7 1 2 3 4 5 6 7 3 9 10 A 11 Q 12 13 14 15 A 16 Q 17 A 18 19 Q 20 21 22 A 23 Q 24 A 25 Te l l me, based on your e x p e r i e n c e and your expertise and your knowledge and education, w hether or not you think that the d e v e l o p e r -- in this i n s t a n c e , F a r m & H o m e -of this site a d j a c e n t to the Brio dump -- and that's wh a t I'm going to call it -- Brio site -- was a re a s o n a b l y p r u d e n t choice or selection of places to build a subdivision where humans were going to live. R e a s o n a b l y p r u d e n t ? No, I d o n ' t t h i n k so. Do you have an opinion, just based on all your expertise, whether or not they should have gone out and investigated what the hell was in those pits -Well -- -- before they did that? -- I was r e f e r r i n g to the chemical plant. I don't know about -Okay. I'm talking about the Brio site. Okay? S h o u l d the y have i n v e s t i g a t e d , in your opinion, what was in there? I d o n 't k n o w . You d o n 't know? If I were b u i l d i n g one, I would; but, you know Martin & Associates (409) 7 6 2 - 2 2 2 2 163 1 Q. 2 A. 3 4 Q. 5 A. 6 7 Q. 8 9 10 A. 11 Q. 12 A. 13 ' Q. 14 A. 15 16 Q. 17 A. 18 Q. 19 20 21 A . 22 Q. 23 24 A. 25 I'm just asking you about you. If you're asking a hypothetical, I would, yes . You would what? I w o u l d i n v e s t i g a t e it if I were in your hypothetical question. W o uld you like to live in that s u b d i v i s i o n next to that Brio site, knowing what you know now? K n o w i n g what I k n o w now -- Yes. -- a b o u t t h e Brio- site? Yes . I don't think t h e r e ' s any h a z a r d in that subdivis i o n based on -- You still don't think so? No. We have cases of leukemia, cases of children with birth defects, all attributable to this. Do you know about that? I know there's some alleged cases but -- They're not alleged. The doctors say the k i d s h a v e g o t it. I k n o w t h e y ' v e g o t it. I know there are some cases of people who are injured. Martin & Associates (409) 7 6 2-2222 169 1 Q. A r e y o u s a y i n g t h e y ' r e n o t ? 2 A. No, I ' m not. W h a t e v e r t h e y c l a i m t h e y ' v e got 3 I'm sure they've got, and I'm very sorry 4 a b o u t it. 5 Q. W e l l , do y o u c l a i m t h e y d i d n ' t g e t it f r o m 6 the exposure to those chemicals? 7 A. That's right. 8 Q. How do you know that since you don't know any 9 of the facts? 10 A. B e c a u s e o u r p e o p l e h a v e t o l d me that, a n d I 11 rely on t h e m . 12 Q. Y o u s a i d t h e only, o n e s y o u t a l k e d to a b o u t 13 t h i s w e r e y o u r l a w y e r s . 14 A. No. Y o u ' r e s u m m a r i z i n g w h a t w a s said. 15 Q. T h a t ' s a ll y o u b a s e it on? 16 A. T h a t ' s g o o d e n o u g h . 17 Q. Is t h a t a l l y o u b a s e it on? 18 A . Y e s . 19 Q. W h a t y o u r l a w y e r s t o l d y o u ? 20 A . My lawyers summarized the opinions of the 21 peop l e who have looked at the case and they 22 told me that was the case, yes. 23 Q . D i d y o u e v e r t a k e th e t i m e or t h e b o t h e r to 24 r e a d any of the t r a n s c r i b e d t e s t i m o n y of 25 Dr. Byers? Martin & Associates (409) 7 62-2222 170 1 A No, I h a v e n ' t seen his t e s t i m o n y . 2Q Hers . 3 A Hers. I h a v e n ' t s e e n it. 4Q Any of the doctors, Dr. O z o n o f f ? Did you 5 bother to even read that? 6A I haven't read those. 7Q 8 You wer e the one man in c h a r g e that could say that, "This case stops right here and we're 9 going to make this right," aren't you? 10 A r e n ' t you? 11 A I don't know about that. 12 Q 13 A Y o u a r e t h e m a n i.n c h a r g e , a r e n ' t y o u ? Well, there are some other defendants, I 14 t h i n k , is w h a t I' m s a y i n g . 15 Q 16 A But as far as M o n s a n t o is c o n c e r n e d -Oh, yes. 17 Q 18 A -- you're the one man? Yes. 19 Q 20 And you haven't even taken the time or the trouble to read any of the medical testimony 21 in this case or any of the experts' testimony 22 t h a t a t t r i b u t e t h e s e c h i l d r e n ' s i n j u r i e s and 23 m a l a d i e s to y o u r c h e m i c a l wastes. You 24 h a v e n ' t even t a k e n t hat time, h a v e you? 25 A I h a v e n ' t read those, no. Martin & Associates (409) 7 6 2 - 2 2 2 2 1 MR. J A M A I L : I d o n ' t have any 2 others questions. 3 MS. COHEN: I d o n ' t have any 4 quest ions. 5 MR. KRIST: We have none. 6 THE V I D E O G R A P H E R : 12:40 p.m., end 7 of d e p o s i t i o n . 8 9 10 THE STATE OF COUNTY OF 11 I , R I C H A R D J. M A H O N E Y , h e r e b y 12 c e r t i f y that I have read the f o r e g o i n g t r a n s c r i p t of my t e s t i m o n y g i v e n in the 13 f o r e g o i n g n u m b e r e d a n d s t y l e d c a s e a n d t h a t same is true and c o r r e c t to the best of my 14 k n o w l e d g e a n d b e l i e f . I further certify that any and all 15 c o r r e c t i o n s h a v e b e e n m a d e on a s e p a r a t e page 16 17 18 19 20 S U B S C R I B E D AND S W O R N TO B E F O R E ME, 21 this the < day of ^ -- *___________ / 1 9 9 2 22 2 3 N o t a r y P'ublic i n l a n d for the State of 24 My Commission Expires /a-I/- 25 Job No. 92-115 KATHY A EHRHARD Pubifc STATE OF MISSOURI Martin & ST LOUIS COUNTY (409) My Commission Expires OCT 21,1995 Associates 762-2222 1 2 3 4 5 6 7 8 9 10 11 12 13 14 % 15 16 17 18 19 20 21 22 23 24 25 THE STATE OF TEXAS : I / J a n a L. M a r t i n , C e r t i f i e d C o u r t R e p o r t e r in and for the S t a t e of Texas, hereby certify that this deposition t r a n s c r i p t is a t r u e r e c o r d of th e t e s t i m o n y given by the witness named herein, after said w i t n e s s was duly sworn or a f f i r m e d by me. I further certify that I am neither a t t o r n e y nor c o u n s e l for, r e l a t e d to, nor e m p l o y e d by any of the p a r t i e s to the action in w hich this t e s t i m o n y was taken. Further certification requirements, if any, p u r s u a n t to the R u l e s will be c e r t i f i e d to in the S u p p l e m e n t a l C e r t i f i c a t e after they have occurred. S u b s c r i b e d and sworn to on this, the day of _, 1 9 9 2 . Jaiya L. M a r t i n , c C R C e r t i f i c a t e No. 1007 Expires 12/31/92 / My Notary Commission expires 11/17/92 Martin & Associates (409) 7 6 2 -2222