Document Xzr4RkaLgRREyjYOpD83aQ9R

8 seated. Let the record reflect 9 everyone's back in the courtroom. 10 Ladies and gentlemen, I know it's 11 about ten 'til. I'm going to ask 12 the plaintiffs to go ahead and 13 call their next witness. We're 14 going to take maybe a little bit 15 longer lunch break, I don't know. 16 But we'll need to come back in 17 around 2:00 instead of 1:00 or 18 1:30. So I would rather go ahead 19 and put on a little testimony 20 now, maybe break around 12:30 or 21 a quarter to 1:00 and then we'll 22 still get the same lunch break, 23 just be a little bit later today. 013102A 3360 1 So go ahead and call your next 2 witness. 3 MR. STEWART: Robert Kaley, Judge. 4 5 ROBERT GEORGE KALEY, 6 called as a witness, having first been duly sworn, 7 testified as follows; to-wit: 8 9 DIRECT EXAMINATION 10 11 BY MR. STEWART: 12 Q. State your name, if you would, sir, for the 13 ladies and gentlemen of the jury? 14 A. My name is Robert George Kaley, II. 15 Q. And, Mr. Kaley, where do you work? Where 16 are you presently employed? 17 A. I work for Solutia, Inc. in St. Louis, 18 Missouri. 19 Q. To get a little idea of your work history, 20 where did you work before you went to work 21 for Solutia, Inc.? 22 A. I worked for Monsanto Company also in St. 23 Louis. 013102A 3361 1 Q. Now, when did you go to work for Monsanto? 2 A. In December of 1973. 3 Q. And did you work for Monsanto before you 4 went to work for Solutia in about the same 5 position you now hold with Solutia? 6 A. Well, I had several positions within 7 Monsanto. But at the time that Monsanto 8 spun off Solutia I was doing -- it was 9 about the same position at the time of the 10 spin, yes. 11 Q. What was that position that you held with 12 Monsanto when they spun off Solutia? 13 A. I was director environmental affairs. 14 Q. 15 Did you have any particular responsibilities, Dr. Kaley, at the time 16 you were working for Monsanto in 17 connection with i?CBs? '6 WATER PCB-SD0000066765 18 A. 19 Q. 20 21 22 23 1 A. 2 3 4 5 6 Q. 7 8 A. 9 Q. 10 A. 11 12 Q. 13 A. 14 15 16 Q 17 A. 18 19 Q20 21 A. 22 23 1 2 3 4 5 6 7 Q. 8 9 A. 10 Q. 11 12 13 A. 14 Q. 15 16 17 18 A. 19 20 21 Q. 22 23 1 2 Yes, 1 did. What was your position with regard to PCBs? Would you call yourself the - responsible for the corporate stewardship of PCBs for Monsanto before you went to work for Solutia? 0131Q2A 3362 I think that's a fair description. Among my other responsibilities was a responsibility to be knowledgeable and stay knowledgeable about PCB issues both in the past and in the present, yes. When did you first start doing that for Monsanto? It was approximately 1985. Who had done it before you? There was a gentleman named Dr. John Craddock who had done that. And who had done it before Dr. Craddock? Well, there wasn't any -- Before Dr. Craddock there wasn't really any official person doing that job. Who did it unofficially? I don't -- I'm not even sure I know at that time. Do you know a gentleman named William Papageorge? Yes, I do. Yes. Dr. Papageorge worked for Monsanto and had responsibility for PCB issues from I believe about 1970 until 013102A ->o "> -t w -i about 1984. Then there was a period in between where nobody really had that official responsibility --or not -- I'm sorry 1974. And then there was a period in between where no one really that had that official responsibility. And then Mr. Craddock took it and then you took it? Generally that's true, yes. So you took your PCB hat with you when you moved from Monsanto to Solutia is that; is that correct. Dr. Kaley? That's a fair way of putting that, yes. Now, when you make a statement today about that particular problem are you speaking for Solutia or are you speaking for Monsanto? Well, I'm employed by Solutia so the statements I make are being made on behalf of Solutia, Inc. But sometimes don't you have to talk about when you talk about Solutia and the relationship that they have to PCBs and 013102A 3364 your stewardship of PCBs, don't you have to talk about what happened at Monsanto? WATER PCB-SD0000066766 3 A. 4 Q5 6 A. 7 Q8 9 10 11 A. 12 13 Q. 14 15 16 17 A. 18 Q 19 A. 20 Q21 22 23 1 2 A. 3 Q. 4 5 6 A. 7 8 9 10 11 12 13 Q. 14 A. 15 Q16 17 18 19 20 A. 21 22 23 1 Q. 2 A. 3 Q4 5 6 A. 7 8 9 Q10 A. 11 Q. 12 A. I certainly do. Yes, I do. And aren't you familiar with what happened at Monsanto? Yes, I am. Now, in your position as -- And what were you -- I know you said you were stewardship but what was your actual position? It's director of environmental affairs is the official title. So you were the director of environmental affairs for Monsanto before you became the director of environmental affairs for Solutia? That1s correct. Well, where were your offices located? Our offices are in St. Louis. No. I mean, where was your physical office located at the time you worked for Monsanto before it became -- before the spin-off. In a building there in St. 013102A 3365 Louis? Yes. And when the spin-off took place I guess you picked up all your stuff and moved out to a new building, didn't you? Well, actually there was a period of about a year or two years probably -- I think two years where Solutia rented space from Monsanto until we could acquire our own offices. And then when we acquired cur own offices we did move, yes, to another location. Oh, you moved to another location? Yes. So when you became the director of environmental affairs and took this stewardship position about PCBs with Solutia, you just stayed in the same place you were; is that right? Well, actually -- there was actually a move of buildings but we stayed on the same -- on Monsanto's campus for some period of time, yes. 013102A 3366 For the two years? That's correct. When you say "we" who all stayed there with the company? Who all was involved when Monsanto moved over to Solutia? There were a number of people. Primarily people associated with the chemical businesses of Monsanto. So that's what spun off? Right. That's correct. And that was in 1997; is that correct? That's correct. WATER PCB-SD0000066767 13 Q. 14 A. 15 16 Q 17 18 A. 19 20 21 22 Q. 23 A. 1 Q. 2 A. 3 4 5 6 Q. 7 8 9 10 11 A. 12 Q. 13 14 A. 15 Q. 16 17 A. 18 Q. 19 A. 20 Q. 21 22 23 1 A. 2 3 4 Q. 5 6 A. 7 Q. 8 9 10 A. 11 Q. 12 A. 13 Q. 14 A. 15 Q. 16 17 A. 18 Q. 19 20 A. 21 Q. 22 Now, what happened to that other Monsanto? Well, several things have happened to that other Monsanto. Well, can you tell the ladies and gentlemen of the jury what happened? Well, at some point -- and I don't know the exact dates. At some point the Monsanto that we were spun off from merged with a company called Pharmacia. Pharmacia? That's correct. 013102A 3367 And then what happened after that? All right. After -- subsequent to that Pharmacia has spun off a different --a new Monsanto as a -- a -- an independent company. Now, let's see if I understand it now. There was a Monsanto and then they spun y'all off and it was Solutia, and then they got picked up by Pharmacia, and then they spun out a new Monsanto? That's essentially the story, yes. All right. And y'all don't have any connection; is that right? That's correct. We do not. Now, y'all got the Anniston plant, didn't you? That's correct. And by "y'all" I mean Solutia. Solutia. Yes, I understood that. Yes. Now, who else in the management of Monsanto went with you that would work in this environmental area? Who do you report to? 013102A 3368 At this time I -- at that time that they spun off I reported to the remediation department. . You reported to the remediation department? Yes. And in connection with that you had a relationship with this Anniston plant, didn't you? Yes, I did. And made statements about it? Yes, I have. And dealt with the regulators? I have done some of that, yes. And you dealt with the regulators at Region 4, didn't you? Yes. I have done some of that, yes. And you dealt with the regulators at ADEM didn't you? I have, yes. On a regular basis in connection with the remediation efforts there at the Anniston WATER PCB-SD0000066768 23 10 11 12 A 13 14 Q 15 16 17 18 19 A 20 21 Q 22 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Q 16 17 18 19 A 20 21 Q 22 23 A 1Q 2 A, 3Q plant? 013102A 3369 On an occasionally basis. I don't know what regular means. But, yes, we have certainly -- I have interacted with those agencies. Now, as a part of that corporate stewardship responsibilities that you had with Monsanto and then that you have with Solutia, is it fair to say that you're probably the most knowledgeable person in the corporation, whether it's Monsanto or Solutia, about PCBs? I -- I think that's probably a fair statement, yes. Okay. And are you familiar with a recent press release that was put out by -- and I --it referred both to Solutia and to Monsanto but it was -- it appeared in the press. I'm not sure which one you're talking about. In that press release - MR. FORD: Excuse me, Your Honor. We're going to object to him 013102A 3370 reading from any press release. That's rank hearsay, inadmissible. THE COURT: Well, if you want to show it to him and ask him if he's seen it. MR. STEWART: I'll be glad to show it to him, Judge. And it's a statement from the company and I'll be glad to show it him. MR. STEWART: Let me show you - here's a copy. May I approach the witness. Judge? THE COURT: Sure . Here's 622A. I'll ask you, Dr. Kaley, if you will take a look at that. And that's a statement I believe that was issued by Solutia, Incorporated? Yes. I recognize this as a statement that was released by Solutia. Well, you helped put it together, didn't you? Pardon? 013102A 3371 You helped put it together, didn't you? I had input into this, yes. Yeah. And it says in the first statement while - MR. FORD: Objection, Your Honor. It's not admitted into evidence yet. WATER PCB-SD0000066769 8 9 10 11 12 13 14 15 16 17 Q. 18 19 20 21 22 23 1 2 3A 4Q 5 6A 7Q 8 9A 10 Q 11 12 13 14 A. 15 16 Q. 17 18 19 20 21 22 23 1 2 3 A. 4 Q. 5 6 A. 7 8 Q. 9 10 11 12 A. 13 14 Q 15 16 A. 17 MR. STEWART: Well, I offer it into evidence, Judge. MR. FORD: And I don't believe it is admissible in evidence. THE COURT: Overruled. It's admitted. (Whereupon Plaintiffs' Exhibit 622A was offered and admitted into evidence.) You said in that statement, "While PCBs were manufactured at the Anniston facility for four decades and have been found in the environment, Solutia" -- and then it goes on to say something else and I want to ask you about that, "and Monsanto have acted fairly and responsibly in dealing 013102A 3372 with the community and regulators about PCBs in Anniston." Does it say that? Yes, it does. And do you believe that statement to be true. Dr. Kaley? Yes, I do. Well, in fact, you helped put that together, did you not? I helped put the statement together, yes. Now, it's my understanding that at the time you did that you had your Solutia hat on but you were talking about Monsanto. Were you speaking for Monsanto, too? I was speaking for both companies in that time, yes. And in the next statement it says, "From the earliest emergence of environmental concerns about PCBs, Monsanto worked with the government and academic scientists and researchers, to help learn as much as possible about PCBs, their environmental levels and behavior, and their potential health effects." 013102A 3373 Now, do you believe that statement to be true? Yes, I do. And is that Monsanto's position, and I would assume Solutia's position, today? Well, certainly it is Solutia's position. I believe Monsanto would agree with that. Well, now the statement says, in connection with that, it does not refer to Solutia it talks about Monsanto and not just Sol -- It leaves Solutia out. Well, that's because the time period which it is addressing there was no Solutia. Well, are you sure that Monsanto would agree with that statement? I can't speak for what somebody in Monsanto might or might not say. I would WATER PCB-SD0000066770 18 19 20 21 22 A. 23 Q. 1 2 A. 3 Q. 4 5 6 7 8 9 10 11 Q 12 A. 13 Q. 14 15 16 17 A. 18 Q. 19 20 21 A. 22 Q. 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Q. 22 A. 23 Q. A. hope they would, yes. Well, the statement said it. And you helped put it together. Didn't you talk to them about it, Dr. Kaley? I didn't specifically, no. But it's your feeling that they would hold 013102A 3374 that that was true? Yes. Well, let's take a look at some of Monsanto's documents. Let me ask you to take a look at this document, please, sir, Plaintiffs' Exhibit 90. Now, Dr. Kaley, who is Mr. R. Emmet Kelley, M.D.? Who is he? He was the former medical director for Monsanto Company. Did you know him? I did. Now, this memo concerns the publicity about the work of some Swedish scientists, Jenssen, do you -- are you familiar with Dr. Jenssen? Yes, I am. And you heard about the testimony that was given in this case about Dr. Jenssen, have you not? I heard some of it, yes. Okay. And there's a line of the memo -- MR. STEWART: Judge, we would offer 013102A 3375 Plaintiffs' Exhibit 90 into evidence at this time and ask that it be pulled up. THE COURT: It's admitted. (Whereupon Plaintiffs' Exhibit 90 was offered and admitted into evidence.) MR. STEWART: Okay. And let's pull that up, if you would. Can you pull up -- pull up the top line up there? And you've got to look at the memo. These machines work awfully well, Dr. Kaley. We've had a lot of fun with them but this -- you may be able to read that on that better than we can here. THE WITNESS: Okay. MR. STEWART: Tried to pull it up and make it big so folks can -What does that say up there? I believe it says, "Evil publicity on chlorinated biphenyls." 013102A 3376 And - And there's a date February 13, 1967. WATER PCB-SD0000066771 3 Q. 4 A. 5 Q. 6 7 8 9 10 A. 11 12 13 14 15 16 17 18 Q. 19 20 21 22 23 1 2 A. 3 4 Q. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Q. 23 A. 1 2 3 4 5 6 Q. 7 8 9 A. 10 11 12 February what, sir? 13th, I believe, 1967. Okay. And in the last paragraph of the first page there's a reference and I want you to take a look at that, if you would. Can you read that for the ladies and gentlemen of the jury? I'll try. "Due to the importance of the Aroclor products to the organic division we decided on the following plan of action. Since all of the actions require falls -- since all the action required falls within the realm of your authority you accepted the responsibility to follow through on the following." And it says that the company there is going to have a -- well, let's go back to that paragraph again and pull that up. It said, "Due to the importance of the Aroclor products to the organic division." What would that be? What 013102A 3377 would the Aroclor products be? Well, among the Aroclor products were the polychlorinated biphenyl products. And it says that the company's going to make or have a plan of action to make sure that our Aroclor business is not affected by this evil publicity, isn't that what it says on the last paragraph of the first and second page? MR. FORD: Objection, Your Honor, his characterization of what it says. Objection, Your Honor, and move to strike Mr. Stewart's testimony. The document says what it says. THE COURT: Okay. Well, let's -- I'm going to sustain. Can we pull it up and see what it says? MR. STEWART: Let's go to the last paragraph on the last page. Pull that up. Can you read that for us, please, sir? I'll try. "Please do let me know if there 013102A 3378 is anything I can do or any way I can help in getting these actions started and getting our information together so that we can make sure our Aroclor business is not affected by this evil publicity." Now, what evil publicity do you understand from reading that letter the author of the letter was referring to? Well, the publicity, I assume, are the - I think there are two or three articles mentioned on the front page of the memo itself. WATER PCB-SD0000066772 13 Q. 14 15 16 17 A. 18 19 Q. 20 21 A. 22 23 1 2 Q. 3 4 5 6 A. 7 8 9 10 11 12 Q. 13 14 15 16 17 18 19 20 A. 21 22 23 1 2 3 4 5 6 7 8 9 10 Q. 11 12 13 14 15 A. 16 Q. 17 A. 18 Q19 20 21 A. 22 Q. Well, one's a letter from Dinner Widmark of the Institute of Analytical Chemistry at the University of Stockholm to Mr. Jenssen talking about his research? Yes. I think that's a fair characterization. And had that not been widely reported at that time? I -- I -- well, I guess it depends on your definition of widely reported. It appeared in a public press and in English 013102A 3379 science magazine. And had there not been some concerns, serious concerns, raised by the scientific community about the findings of Dr. Jenssen? Well, I would think by February of '67 the scientific community was just beginning to understand and try to come to some understanding of what that publicity was. I don't -- at this point I don't know if they were necessarily concerns raised. Well, how does that square with your earlier statement that --or the statement that you made on January 3, 2002, that from the earliest emergence of the environmental concerns about PCBs Monsanto worked with government and academic scientists and researchers to help learn as much as possible? Well, I think it fits right in perfectly. I think the second indented paragraph on the first page says, ''One of our employees," you know, "sent the LTB 013102A 3380 process. And he -- doctor -- not doctor -- David Wood was summarizing his visit with Jenssen. We were. When we found . that information we made it, you know, the same way everybody else did, we made immediate contact with those researchers to try to understand what was happening in their laboratories and what their findings meant. Well, in this letter dated 2/13/90 -- '67 rather, weren't y'all already aware of some fairly significant things about PCBs and the effect that they were having on the environment surrounding your plant? No. I don't believe we were. Do you know a Dr. Ferguson? I know the name, yes. And you know of the work that Dr. Ferguson did in Snow Creek in Anniston, Alabama, at that time? I have some familiarity with that, yes. And hadn't Dr. Ferguson started his work WATER PCB-SD0000066773 23 1 A. 2 3 Q. 4 5 6 7 A. 8 9 10 11 Q. 12 A. 13 14 15 Q. 16 A. 17 18 Q. 19 20 21 22 A. 23 1 2 3 4 5 6 Q. 7 8 9 A. 10 Q. 11 12 13 A. 14 15 16 17 Q. 18 19 20 21 22 23 A. 1 Q. 2 3 4 5 6 7 A. in 1966? 013102A 3381 He had done some work in 1966; that's right. And weren't y'all fully familiar with the fact that he was finding adverse effect in Snow Creek right off your plant site because of PCBs at that time? No. I don't believe we had that understanding at all. I believe the effects he was reporting were not related to PCBs. Hhat was he reporting? My recollection is some acute effects or some effects on fish, rather, right at our plant outflow. Killing the fish? I believe that was one of the report - the effects he reported, yes. Well, Dr. Kaley, wasn't he finding something in the tests that he did in that creek that looked a little different from the pesticide that he was looking for? Well, he reported that there were some peaks that he couldn't identify in 013102A 3382 Choccolocco Creek, yes. But there were also no environmental effects in Choccolocco Creek. The effects he was reporting on the fish were immediately at our plant outfall. Oh, Dr. Ferguson didn't know about it. But y'all knew what he was finding, didn't you? I don't believe that's correct, no. Well, haven't you been doing tests on PCBs and knew what those peaks looked like to test the quality of that product? There have been some of that going on but that doesn't -- that did not necessarily agree with what Dr. Ferguson was reporting. Now, Dr. Kaley, didn't y'all have tests on that product to determine the quality of that product where you saw what an Aroclor peak looked like at the time Dr. Ferguson was looking for his stuff in the creek, didn't you? That's correct, yes. 013102A 3383 And so when he said, I'm seeing some pesticide peaks above the peaks that I'm finding with this -- I mean some peaks in my pesticide tests that are above what I expected to see in a pesticide, y'all knew exactly what it was. I do not believe that's correct, no. WATER PCB-SD0000066774 8 Q. 9 10 11 12 A. 13 Q. 14 15 16 17 A. 18 19 20 21 Q. 22 23 1 A. 2 Q. 3 4 5 A. 6 Q. 7 A. 8 Q. 9 10 A. 11 12 Q. 13 14 A. 15 Q. 16 17 A. 18 Q. 19 A. 20 21 Q. 22 23 A. 1 2 Q 3 A. 4 5 Q. 6 7 8 9 10 A. 11 12 13 Q. 14 15 16 A. 17 And when Dr. Jenssen was finding this thing in the environment, y'all knew that it was in the environment in Snow Creek right outside your plant, didn't you? I do not believe that's correct, no. Well, did you call up Dr. Jenssen and you said, Well, we found this stuff in the environment, too, right out there in Snow Creek. Did you do that? I don't know whether that such statement was made to Dr. Jenssen or not. I certainly didn't do it because I was working for the company at the time. Well, I'm not asking you if you did it. I'm asking you if Monsanto told him that y'all were finding that in the creek? 013102A 3384 I don't know. You later had some people that did some additional work, Dr. Suttkus, was it, and Dr. Gunning? I'm familiar with those names, yes. Well, when was that? I believe it was in the early 1970s. Early 1970s. And they found it in the creek, didn't they? Yes. By then we were aware it was in the creek. And found it all the way down to Choccolocco Creek, didn't they? I believe that's correct, yes. Did y'all call up Dr. Jenssen or Dr. Risebrough --do you know who he was? Yes, I do. And where did he work? University of California Berkley, I believe, one of the California schools. Okay. Did y'all share with him the information that y'all had? Well, we shared a great deal of 013102A 3385 information with him, yes. Now - We provided him samples we had discussions with him. But I assume that once y'all found out that this stuff was out in the creek and was gathering up in the environment that's what Dr. Jenssen found out, wasn't it? Isn't that what he found out? Dr. Jenssen had found PCBs in some samples, environmental samples, in Europe, yes. And Dr. Risebrough found it in animals, didn't he? Gathering up in animals, bioaccumulating is that what - Well, he found evidence of PCBs in birds, yes. WATER PCB-SD0000066775 18 Q. 19 20 21 22 23 A. 1 2 3 4 5 Q. 6 7 8 9 10 A. 11 12 13 Q. 14 A. 15 Q. 16 17 18 A. 19 20 21 22 Q. 23 1 2 3 4 5 A. 6 7 8 Q. 9 10 11 12 13 14 15 16 17 18 19 20 A. 21 22 23 1 Q2 And I assume that since y'all's corporate emphasis at the time was to work with scientists and to begin to take care of this problem, that y'all rushed out there and cleaned up Snow Creek? We worked with Dr. Risebrough --as the 013102A 3386 statement says, we worked with Dr. Risebrough and other scientists to provide samples to provide information about the PCB situation at the time, yes. That's not what I'm talking about, Dr. Kaley, I'm sure. And I want to make sure you understand my question. Did y'all clean up that creek at that time in the 70s? I don't know if any cleanup was done in the creek in the '70s. I don't know if - in the '70s? Yeah. Well - When you were finding it in the creek in the '70s, did you do anything to clean it up? Well, we were doing things at the plant to restrict our outflow from the plant so that those materials would no longer make it into the creek. Was there a plan of action? You talked about the plan of action to combat this 013102A 3387 evil publicity about the Aroclors, but did you have a plan of action for the people in west Anniston at that time, Dr. Kaley, in 1967 or in 1970? Well, by 1970 we had reported our findings and our information to the State of Alabama, yes. No, sir. That's not what I'm asking you, Dr. Kaley, and I want you to be sure you understand my question. One of those guys, whether it was Ferguson -- I think it was Dr. Ferguson, indicated that whatever was going through that creek down there might affect children and I think he said an animal, some animals, dogs. Did y'all put a plan in place -- You protected your product but did you put a plan in place that protected the people there in west Anniston? I'm not aware of such a plan, no. MR. STEWART: And let's go next to the next statement in that press release if you can. 013102A 3388 This press release says that y'all were not on - - WATER PCB-SD0000066776 3 4 5 6 7 B 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Q. 23 1 2 3 4 5 6 A. 7 B 9 Q. 10 11 12 13 14 Q. 15 A. 16 Q. 17 18 19 20 A. 21 Q. 22 23 1 A. 2 Q. 3 4 5 6 A. 7 8 Q. 9 10 11 A. MR. FORD: Excuse me, Your Honor. I'm going to again object to press releases as hearsay. MR. STEWART: I thought this was in evidence. MR. FORD: Oh. Are you talking about this same press release? MR. STEWART: Yes. MR. FORD: I'm sorry. That's already admitted MR. STEWART: I'm sorry. MR. FORD: I still object. THE COURT: You're still overruled. MR. STEWART: I should have referred to it by exhibit number. MR. FORD: I'm sorry. MR. STEWART: I apologize, George. MR. FORD: All right. Thank you. MR. STEWART: It'S 622A. That press release said that Monsanto's not only worked to help scientists but you 013102A 3389 were actually working to help the government and the regulators in that area; isn't that correct? Have I paraphrased that a little garbley? I want to make sure that I got it right. Well, I mean, the document says, "worked with government and academic scientists and researchers." To help learn as much as possible? Right. Yeah. I'm sorry. You're correct. "To learn -- help learn as much as possible about PCBs." You're right. Thank you. Y'all really weren't doing that, were you? We certainly were. Y'all had a plan for actually how you worked with the government that's a little bit different from this press release, isn't it? Did you or did you not? I'm not aware of what you're addressing. I'm just asking you generally if y'all had a plan a little bit different than what that press release said? 013102A 3390 As a corporation we did not, no. Let me show you what we've marked as Plaintiffs' Exhibit 131. I'll let you take a look at that. And let me let you have some time to take a look at it. Do you want me to read the whole document or do you want to - I just want you to look at it so you're familiar enough with it so I can ask you some questions about it, Doctor. I'm broadly familiar with it. If I can't WATER PCB-SD0000066777 12 13 14 15 Q. 16 17 18 A. 19 20 Q. 21 22 A. 23 Q. 1 2 A. 3 4 Q. 5 A. 6 Q. 7 A. 8 9 Q. 10 A. 11 12 13 14 15 16 17 18 13 20 21 22 23 Q. 1 2 3 A. 4 Q. 5 A. 6 7 8 9 10 11 12 Q. 13 14 15 16 17 18 19 20 21 answer your questions I'11 take some more time to try to find out where I need to look. All right. Now this document has at the top of it E. Wheeler,- is that the Wheeler we talk about earlier? I don't believe we've talked about Mr. Wheeler earlier, no. I get him mixed up with Mr. Kelley all the time. All right. So that's a different person. Who is 013102A 3391 that? He was, I believe, an industrial hygienist at Monsanto. And the date of this document is what? September 9, 1969. And what is the title of the document? "Defense of Aroclor F. Fluids." I believe that stands for functional fluids. And that is the Aroclors in PCB? Among -- yes. There were PCBs and other products, yes. MR. STEWART: Okay. And we would offer that into evidence at this time, Judge, and ask if we can bring it up. THE COURT: It's admitted. (Whereupon Plaintiffs' Exhibit 131 was offered and admitted into evidence.) MR. STEWART: Now, let's take a look at the first paragraph there, please, ma'am if we could. Now, what does that general policy say 013102A 3392 that y'all were going to do at that time -- . Well, it says "Make the -- -- Dr. Kaley? "Make the government, states and universities prove their case but avoid as much confrontation as possible. Comply and work with public officials to meet or exceed requirements ahead of time. Adverse publicity and competition are the real weapons." Real weapons? Okay. Let's take a look at two paragraphs down. "Proved bi" -- no just above that. Now, this says, "Prove bioharm -- let government prove its case on a case-by-case basis. Monsanto was visiting government biolabs in search of toxicological experience and evidence versus Aroclors." What does it mean there, Dr. Kaley, WATER PCB-SD0000066778 22 23 1 2 A. 3 4 5 6 7 8 9 Q10 11 12 A. 13 14 15 16 17 Q. 18 19 20 21 A. 22 Q. 23 1 A. 2 Q. 3 4 5 6 7 A. 8 9 10 Q. 11 12 13 A. 14 15 16 Q. 17 18 19 20 21 22 A. 23 Q. 1 2 3 4 when you say y'all are going to make the government prove it's case on a 013102A 3393 case-by-case basis? Well, I don't know for sure what the writer meant. But to me it would mean that we need to look at each piece of information and each piece of research independently to be sure that it1s properly carried out and that the results are being properly interpreted. Well, do you think that's working with the government to force them, Dr. Kaley, to prove their case on a case-by-case basis? Well, it doesn't say force. It says, "let" and I believe that was working with them. Yes, I believe it was. Because I think everyone was trying to work together to understand this emerging issue. Well, I guess, then that y'all told them about this Ferguson study and this study and work that Mr. Gunning later did. Did y'all share that with them? I don't know. You don't know whether you did that or not? 013102A 3394 I don't know. Well, wouldn't it have been important for those scientists with the government to know that y'all were finding this stuff down there in those creeks and streams and bioaccumulating in those fish? Certainly by -- within a year of this memo the government did know of our information in Snow Creek and other places. Now, during this time frame y'all really weren't truthful with researchers, were you, Dr. Kaley? I don't know what you're speaking of specifically. I would disagree with that characterization. Well, would you agree that if you knew about the harmful effects of a substance such as PCBs, that if you were working with the government and you were working with the scientists that you ought to be truthful with them? I believe that's the case, yes. Let me show you a document, please, sir, 013102A 3395 Plaintiffs' Exhibit 2028. May I approach, Judge? time to look at that. Could you bring that up, Take the please? WATER PCB-SD0000066779 5 A. 6 Q. 7 8 A. 9 Q10 11 A. 12 Q. 13 A. 14 Q. 15 16 A. 17 18 19 20 21 Q. 22 23 1 A. 2 Q. 3 4 5 6 A. 7 8 Q. 9 10 11 12 13 14 A. 15 16 17 18 19 Q. 20 21 22 23 1 2 A. 3 Q. 4 5 A. 6 Q. 7 8 9 10 11 A. 12 13 Q. 14 Okay. I've read the first two pages. That1s what I'm going to be asking you about. Okay. Now, that's a letter from Mr. Papageorge that we've talked about earlier? Yes. William Papageorge, is it not? Yes, it is. And the person who held the position that you now hold about PCBs? Well, it was a different position because he was actually working for the company while it was an ongoing product. But he did have a role as basically the spokesperson for PCB issues, yes. And this is to a doctor -- and I'm probably going to mess his name up, but to a Dr. Basil Continelli, Continelli? 013102A 3396 That's as good as I could do. You and I are together on that one. But he's connected with the drug information center at the Buffalo Children's Hospital, is it not? That's correct. That's what the title says, yes, sir. And apparently he had written to Monsanto and he was concerned about what was happening as far as all this publicity was concerned about PCBs at the time. Does it appear that that's what Papageorge is responding to? Apparently Dr. Continelli had seen an article and he was asking Monsanto questions about what that article said. I don't know which article nor do I know what it said. But, yes, that's... Wouldn't it be fair to say that if there was anybody in Monsanto Chemical Company who knew about the effects of PCBs at that time, at the time of this letter, that Papageorge was somebody who knew about it, 013102A 3397 wasn't it? Either Dr. Papageorge or Dr. Kelley, yes. He had been the plant manager at one time with the Anniston plant, hadn't he? That's correct. And he was familiar, as a result of that, with the history of the plant and the history of the manufacturing of this product and what might have happened at that plant, wasn't he? I don' t know that, what he was or wasn' t familiar with. Well, wouldn't he more than likely be, Doctor? WATER PCB-SD0000066780 15 A. 16 17 18 19 20 21 22 23 1 Q. 2 A. 3 4 5 6 7 8 9 Q. 10 A. 11 Q. 12 13 14 15 16 A. 17 Q. 18 19 20 21 22 23 1 2 3 4 5 6 7 8 Q. 9 10 A. 11 12 Q. 13 14 A. 15 Q. 16 A. 17 18 19 20 21 22 Q. 23 I would think he would have some understanding of certainly ongoing operations. I don't know the depth of his knowledge about history. MR. STEWART: Let's take a look --we can pull it up at the first few sentences there in -- I think the first sentence in the third paragraph, please, ma'am. 013102A 3398 Can you read that for us, Dr. Kaley? Yes. Monsanto has manufactured Aroclors for about 40 years and throughout the period we have not observed any harmful effects on our -- excuse me -- on our employees or our customers employees. And then there's a partial sentence, "extensive animal testing -- " That's what I want you to read. I know. But, Dr. Kaley, this is August 31, 1970. That was not an accurate statement that Mr. Papageorge wrote to this gentleman up there at the Buffalo Children's Hospital, was it? I believe it was, yes. Well, let me show you, if I can, Plaintiffs' Exhibit 2. Now, I want you to take a look, if you would, at page DSLW001398 and DSW001399 of Plaintiffs' Exhibit 2 and read that. I want to ask you some Questions. MR. FORD: Excuse me, Your Honor, 013102A 3399 this hadn't been identified yet as to what it is or whether he knows what it is or where it came from. THE COURT: Well, if you want - MR. STEWART: Judge, it was provided to us in discovery. But do you know -- have you seen this document before, Dr. Kaley? 1 don't know that I've seen this particular document, no. That's a Monsanto document, isn't it, an internal document it? Could very well be. And it makes some references - Well, I would say -- Number one, I would say it's June 1935 so I really don't know whether that -- Monsanto purchased Swann Chemical sometime in 1935. I don't know the exact month. So it -- it could be a Swann Chemical document. I don't know. Well, doesn't it refer to the manufacturing of Aroclors? 013102A WATER PCB-SD0000066781 1 A. 2 Q. 3 4 A. 5 6 7 8 Q. 9 10 A. 11 12 Q. 13 14 A. 15 16 17 18 19 20 21 22 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 1 2 3 4 5 6 7 8 9 3400 Yes, it does. And doesn't it refer to some problems that developed in the plant because of that? Well, I should point out that Swann Chemical developed and manufactured Aroclors before Monsanto purchased the plant. Well, y'all didn't quit making it after you bought the plant? Oh, no. We continued to make Aroclors, yes. Doesn't it refer to some problems that you had in the plant after that time? It does. MR. STEWART: And, Judge, we would offer it into evidence at this time. MR. FORD: I'm not sure he's identified it sufficiently to be offered. Your Honor. THE COURT: Well - MR. STEWART: Judge, I believe he's indicated -013102A 3401 THE COURT: Let's go ahead and recess for lunch and during lunch we'll talk about getting the person here who can properly identify this. MR. STEWART: That's fine. That's fine with me. THE COURT: Okay. We'll be in recess until two o'clock. (Jury was excused at 12:30) (12:35) (Jury is not present) (All parties are present) MR. FORD: I don't know why but there was something attached to Plaintiffs' Exhibit 2028 which has nothing to do with exhibit 2028 . MR. FETTERMAN: That was just a copying error. We would like to take that off. 013102A 3402 MR. FORD: I want to have that removed if I may. It's out of sequence in numbers and everything else. I don't know what the purpose was in putting that on there. MR. FETTERMAN: It was no purpose. MR. FORD: It had to be surreptitious and underhanded. WATER PCB-SD0000066782 10 MR. FETTERMAN: No, it wasn't 11 surreptitious. 12 THE COURT: What document - 13 MR. WHITE: It's not that one. 14 Judge. 15 MR. FORD: 2028, the letter to Dr. 16 Continelli, there was some pages 17 attached that have nothing to do 18 with that -19 MR. FETTERMAN: And we would withdraw 20 their being offered. 21 MR. FORD: -- they weren't - 22 shouldn't have been attached, the 23 ones that are attached. 013102A 3403 1 MR. FORD: In the event the Court 2 admits 2, which is this 1935 3 document, there is a chart on the 4 back of it which has nothing to 5 do with the contents of the 6 document either which - 7 MR. STEWART: Judge, I didn't know 8 the chart was there. 9 MR. FORD: The chart was no purpose 10 with respect to this line of 11 examination in which reference 12 refers to material which could 13 become inflammatory for no 14 reason. 15 THE COURT: Yeah. 16 MR. STEWART: Okay. It's part of 17 the document. 18 THE COURT: It hasn't been admitted 19 yet but we'll take plaintiff page 20 three off -- page four, I'm 21 sorry. Page four that has 22 DSW001400 at the bottom right 23 corner. 013102A 3404 1 MR. FORD: Yes, sir. 2 MR. FETTERMAN: Well, perhaps, Judge, 3 since it's a document that they 4 produced, came out of their 5 files, has their Bates number on 6 it that -- you know, if we agree 7 to take off that last page they 8 might withdraw any objections 9 they have to that document. 10 MR. WHITE: That's a New York rule. 11 MR. FORD: Perhaps we might. 12 MR. STEWART: Now, listen, I want to 13 correct something from you, Jere, 14 so you don't feel so offended by 15 anything that Mr. Fetterman said. 16 He comes from Mobile, you know. 17 MR. WHITE: I know that. 18 MR. STEWART: And he would love to 19 move back. WATER PCB-SD0000066783 20 MR. FETTERMAN: But they've gone to 21 great lengths to make sure that 22 this jury understands where my 23 present residence is. 013102A 3405 1 MR. WHITE: Judge, similarly on 2 Plaintiffs' Exhibit number 622A. 3 Come here, Dan, so you can look 4 over my shoulder. This was the 5 press release. It's got 6 information in it about insurance 7 and reserves and then it talks e about -9 THE COURT: Well, why did y'all put 10 it in there? 11 MR. WHITE: Well, we didn't write 12 this for - 13 THE COURT: Litigation purposes, I 14 know. 15 MR. WHITE: -- litigation purposes. 16 THE COURT: But you did do it for 17 defense purposes. 18 MR. WHITE: No, not for defense 19 purposes, not for this lawsuit. 20 Yes, sir. 21 THE COURT: Well, I don't know. It's 22 partially for this lawsuit. 23 Solutia states its side of the 013102A 3406 1 story so I think the story is 2 about this case. 3 MR. WHITE: That's in response to - 4 THE COURT: I know, Washington Post. 5 MR. WHITE: Yes, sir. An article - 6 THE COURT: But the article was about 7 this case. So what are you 8 talking about? 9 MR. WHITE: The very last paragraph 10 down at the end. 11 MR. STEWART: Now, that was in, Jere. 12 Y'all keep coming back and 13 getting on to my documents. That 14 was already in. 15 THE COURT: The last paragraph on the 16 first page? 17 MR. WHITE: Right here. Are we 18 looking at the same thing? 19 THE COURT: Yes, I think so. 20 MR. WHITE: "Solutia believes -- " 21 THE COURT: Are you talking about 22 that first sentence? 23 MR. WHITE: The whole paragraph. 013102A 3407 1 MR. FORD: That appears to be the 2 writer's summary of some evidence 3 he got from Solutia, not what 4 Solutia actually said. WATER PCB-SD0000066784 5 MR. FETTERMAN: Well, Judge, if you 6 look up there it comes right off 7 the Solutia, Inc. Investor 8 Relations website. It's a 9 Solutia statement. It1s on their 10 website. 11 MR. WHITE: Well, whether we -- let's 12 assume - 13 THE COURT: Oh, I see. On the top of 14 the next page it talks about the 15 company self-insurance reserves. 16 MR. WHITE: That's right. 17 MR. STEWART: We're not interested in 18 that. You can qualify on that. 19 We don't want that kind of stuff 20 before the jury, Judge. 21 MR. WHITE: I didn't think you did. 22 THE COURT: Y'all work on 23 redacting -- 013102A 3408 1 MR. STEWART: Yeah. I'll work on 2 redacting that. 3 (Break at 12:45) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 013102A WATER PCB-SD0000066785 b<r- 3409 1 (2:08 p.m.) 2 (Jury present.) 3 (All parties present.) 4 5 DIRECT EXAMINATION RESUMED 6 7 BY MR. STEWART: 8 Q. Dr. Kaley, before we broke for lunch, we 9 were taking a look at Plaintiffs' 10 Exhibit Number Two. And I believe you 11 have identified that as a document that 12 had to do with Aroclors, the operators 13 in distilled Aroclors. Is that y'all's 14 trade name for PCBs? 15 A. Yeah. Operators in the Aroclor 16 department. 17 Q. But that is Monsanto's trade name for 18 PCBs? 19 A. After 1935 it was Monsanto's trade name 20 for a number of products, which included 21 PCBs. 22 Q. So that would be your document? 23 A. No. Looking at this document and 013102B 3410 1 looking at the date, it may be a Swann 2 document; it may be a Monsanto document. 3 Aroclor was also the Swann trade name 4 for those materials. I really don't 5 know, Mr. Stewart. 6 Q. 7 Well, are you saying y'all didn't have possession of this document when you 8 took over as the steward of the PCB 9 problem? 10 A. I'm sure that Monsanto had this 11 document. I don't know for sure, but 12 that would make sense, yes. 13 Q. Doesn't it have your Bates number on it, 14 DSW 001279 on the first page? 15 A. My understanding is those were documents 16 that were produced by Monsanto or 17 Solutia, yes. 18 Q. And y'all produced those from either St. 19 Louis or -- 20 MR. FORD: Judge, we have 21 withdrawn the objection to 22 this. I don't see any reason 23 to belabor this. 013102B 3411 1 MR. STEWART: I'm sorry. I just 2 wanted to make sure he agreed 3 that it was his. 4 I would offer it in 5 evidence. 6 THE COURT: It is admitted. 7 (Whereupon Plaintiffs' 8 Exhibit 2 was offered and 9 admitted into evidence.) WATER PCB-SD0000066786 10 Q. 11 12 13 14 A. 15 Q. 16 17 18 19 A. 20 21 22 23 This document predates, obviously, the letter that Papageorge wrote on August 31st, 1970 to Dr. Basil Continelli, doesn't it? Yes, it does. On page two of that document -- Get the first sentence up there on the second paragraph, if you would. What does that say, now? It says, "In May" -- I believe it is 1935 -- "the operators in distilled Aroclors, both Badger" -- and I think it is 1269 -- I'm not sure what that means -- "began to develop a severe type of 1 2 Q. 3 4 5 .6 7 8 9 10 11 12 13 A. 14 Q. 15 16 17 18 19 20 A. 21 22 23 1 2 3 Q. 4 A. 5 6 7 Q. 8 9 A. 10 11 12 13 14 15 Q. 16 17 18 19 dermatitis." Let's go down to the third or fourth paragraph from the bottom which starts off "skin specialists." Pull that up. And then would you read that for us? Does that say, "Skin specialists were consulted, but cure of the disease was found to be slow and difficult. The company became involved in expensive litigation since suit was entered by a majority of the men affected." Is that correct? You read that correctly. Would that indicate to one who read it. Dr. Kaley, that these employees who were working either for Swann or for Monsanto had suffered some fairly severe form of skin disease as a result of being around PCBs? No, it wouldn't. The middle part of that paragraph --of the large first paragraph, explains Monsanto's or Swann's understanding of the cause of 013102B 3413 that disease, which was an impurity in one of the raw materials. What is the raw material? The raw material in here is called Benzol, B-e-n-z-o-1, which is today known as benzene. So that's a part of the process that you all used to make PCBs? Yes. The benzene is a raw material to biphenyl, and then the biphenyl is chlorinated. And one of that impurity was carried through the process and apparently was the outcome --or caused that dermatitis outbreak. But as a result of that particular event, didn't y'all put in adequate ventilation facilities? Highlight, that if you would. Is that, right? WATER PCB-SD0000066787 20 A. 21 Q. 22 23 1 2 3 4 5 A. 6 7 Q. 8 9 10 11 A. 12 13 14 15 Q. 16 17 18 A. 19 Q. 20 21 22 23 It does say that, yes. Let's go to the next page, please, if you would, of that document. And tell us what happened there. 013102B 3414 And bring it up so he can read it, please, ma'am. Now, number five, what does that say? It says the men are examined regularly by the plant physician. And were those people who were examined regularly by the plant physician, Dr. Kaley, involved in the production of Aroclors? Well, my understanding was all of the Anniston plant employees were examined by the physician regularly, but certainly the Aroclor men were, yes. Were they examined by the plant physician, those who were involved in the PCBs, manufacturing PCBs? Yes. I'm sure they were. Well, you have just indicated --We can take that down, please. You just indicated this was caused -- this particular instance was caused by a product that was used in 2 3 4 5 6 7 A. 8 9 10 11 12 Q. 13 14 15 16 17 Q. 18 19 A. 20 21 Q. 22 23 A. 1 Q2 A. 3 Q. manufacturing Aroclors. Are you saying that Monsanto did not know before this letter was written on August 31st, 1970 that PCBs caused problems for individuals who were around it, health problems, adverse health problems? I think Monsanto understood that PCBs could cause skin problems. This particular one wasn't caused by them, but they can cause dermatological problems. Let's pull up Plaintiffs' Exhibit 8, Number 8. MR. STEWART: Could I approach, Judge? THE COURT: Yes. Take a look at that, if you would. What is that. Dr. Kaley? Well, judging from the title, it says it is a salesman's manual, Aroclor. And that was a document of Monsanto Chemical Company's, isn't it? It says that up at the top, yes. 013102B 3416 Do you know the date of that document? Apparently it is October 1st of 1944. Can you turn with me over in there -- I WATER PCB-SD0000066788 4 5 6 7 8 9 10 11 12 13 Q. 14 15 A. 16 17 Q. 18 19 20 21 22 Q. 23 1 2 A. 3 Q. 4 A. 5 6 7 Q. 8 9 10 11 12 Q. 13 A. 14 15 16 17 18 19 20 21 22 Q. 23 1 2 3 Q. 4 A. 5 6 7 8 9 10 Q. 11 12 13 think it is about eight pages over. Let me make sure. Put that up. MR. STEWART: We would offer this document into evidence, Exhibit 8. THE COURT: It is admitted. (Whereupon Plaintiffs' Exhibit 8 was offered and admitted into evidence.) Now, what workers are these -- is this talking to -- or talking about? I don't know for sure without looking at the whole document. Okay. I'll give you a little time. I may help you. Let's just go to page five, if you can. MR. STEWART: We will take that down, please, ma'am. Let me show you the first page, if you will. This is the salesmen's manual for 013102B 3417 Aroclor? Yes. I see that, yes. So we are talking about Aroclors? Well, that is a presumption. Without looking, I don't know. It probably is, but I don't know that for sure. Let's turn to page five. All right. Go down to the bottom of the page where it talks about toxicity. MR. STEWART: Bring it up, please, ma'am. All right. Can you read that for us? It says, "All chlorinated hydrocarbons have measurable degree of toxicity to the animal organism. Aroclors are no exception. The symptoms of Aroclor poisoning are pore acne" -- I think it says pore acne -- "or chloracne, nodular eruptions of the hair follicles or sebaceous glands as a result of insufficient cleansing of the skin." Then it goes on over on the next page and talks I think -- Yeah. 013102B 3418 MR. STEWART: Go to the next page, please. Pull it up, please. What does that say? It says, "Acute yellow atrophy of the liver in which the liver cells show swelling, hypergranulation, hyaline inclusions, and vaculation as a result of extensive exposure over long periods of time." Now, this is talking about problems humans would have as a result of being exposed to PCBs over a long period of time? WATER PCB-SD0000066789 14 A. 15 16 17 18 Q. 19 20 21 22 A. 23 1 2 Q. 3 4 5 A. 6 7 8 9 Q. 10 11 12 13 14 15 16 17 18 Q. 19 20 A. 22 23 1 Q. 2 3 4 A. 5 Q. 6 7 A. 8 9 10 Q. 11 12 13 14 15 16 Q. 17 18 19 A. 20 21 22 23 Presumably. It says animal organism. I assume -- This mentions humans. It is not clear from the document itself, though. The salesmen's manual wasn1t given to animals, was it? It was given to people that might be exposed to Aroclors, wasn't it, Dr. Kaley? It was used for the salesmen to discuss the product characteristics with the 013102B 3419 customer - And to sell to customers who weren't animals, but people, what they might see as a result of this thing? Again, he may have been talking about humans; he may have been talking about animal studies. I don't know from this document. And as a result of having this document, certainly Dr. Papageorge was aware of that. Let's take a look at Plaintiffs' Exhibit 28, if we can. Well, let's go to Plaintiffs' Exhibit 67. MR. STEWART: May I approach, Judge? THE COURT: Certainly. Let me give you the original. Can you identify that document? As we discussed before, Elmer wheeler 'was a Monsanto employee. So other than that, I can't. It looks like it, but it doesn't say Monsanto on it but -- 013102B 3420 Is that a letter from Mr. Wheeler to a gentleman named Richard Davis, dated September 3rd, 1965? Yes, it is. Did that document come from y'all's archives? Presumably yes. MR. STEWART: We would offer it in evidence, Judge. And we would like to pull up the first page of that document, Dr. Kaley. THE COURT: It is admitted. (Whereupon Plaintiffs' Exhibit 67 was offered and admitted into evidence.) Let's take a look at the first sentence of that and highlight that. What does that say. Dr. Kaley? It says, "As I told you on the telephone, Mr." -- I think it says Haredos -- "called me earlier this week quite disturbed as a result of my letter of October 27th." WATER PCB-SD0000066790 1 Q. 2 A. 3 Q. 4 5 6 7 8 9 10 11 12 Q. 13 A. 14 15 16 17 18 19 20 21 22 23 1 Q. 2 3 4 5 S 7 A. 8 9 10 11 12 13 Q. 14 A. 15 16 17 18 Q. 19 20 21 22 A. 23 1 Q2 A. 3 4 5 Q. 6 7 8 A. 013102B 3421 August 27th? August 27th. Correct. He corrected me, and I corrected you, to be sure the record is correct. MR. STEWART: Let's go down to paragraph two down at the bottom, please, ma'am, and pull that up. It is the bottom of the second paragraph about Mr. Haredos went on to say, right there. What does that say? ft says, "Mr. Haredos went on to say that in his own plant hot Aroclor spills on the floor were common and that his own employees had complained of discomfort. I was brutally frank and told him that this had to stop before he killed somebody with liver or kidney damage, not because of a single exposure necessarily, but only to emphasize that eight-hour daily exposures of this type would be completely unsafe." 013102B 3422 So Mr. Papageorge said that after forty years Monsanto had not observed any harmful effects on its employees, and the employees of its customers. That statement just wasn't an accurate statement, was it, Dr. Kaley? I believe it was an accurate statement. This doesn't say that those people had anything wrong with them. It says that their exposures needed to be kept below to threshold limit which had been established for PCBs. Do what, now? In the middle it talks about a threshold limit value of PCBs in air, which is an industrial standard for exposure to those materials. Now, let's go back to one of these statements. You indicated and I believe you said Monsanto had, that from the earliest - Mr. Stewart, I'm sorry. Are you back to the press release? 013102B 3423 Yes. Could I ask the court reporter if I could have that in front of me while you are reading from it? Certainly. It says from the earliest - You can have that copy and take a look at it. Thank you. WATER PCB-SD0000066791 9 Q. 10 A. 11 12 13 14 15 16 17 18 19 A. 20 Q. 21 22 23 1 2 3 4 5 A. 6 Q. 7 8 9 10 11 Q. 12 13 14 15 17 18 19 A. 20 Q. 21 22 A. 23 Q. 1 2 3 4 5 A. 6 7 8 9 Q10 11 12 13 14 15 16 17 Q. 18 I'm sorry. No problem. It says, "From the earliest emergence of environmental concerns about PCBs Monsanto worked with government and academic scientists and researchers to help learn as much as possible." And I went back and looked at your testimony earlier -- You stand by that statement still, I assume? Yes, sir. You said that we worked with Dr. Risebrough, as the statement says, "We worked with Dr. Risebrough and other scientists to provide samples to provide 013102B 3424 information about the PCB situation at the time." That is what you said this morning? Yes, sir. Let me show you, if I can. Plaintiffs' Exhibit 2067. MR. STEWART: Can I approach, Judge? THE COURT: Certainly. I'll ask you to take a look at and identify it, if you would, for me. Well, I gave you the wrong one again. I have got to keep this little yellow sticker on there so it gets into evidence. Would you look at that? This is Mr. Papageorge again, I believe. Yes, sir. And this is a letter to Mr. Robert W. Risebrough? Dr. Risebrough. Dr. Robert W. Risebrough. And it is in 013102B 3425 response to a letter that Dr. Risebrough wrote to him apparently, is it not, about some concerns about the company. Is that not correct? From the first sentence it says, "I understand and respect the strong belief you express in your letter of October 25th." Let's pull that up, please. MR. STEWART: We would offer that in evidence, please, sir, if we can. THE COURT: Is it admitted. (Whereupon Plaintiffs' Exhibit 2067 was offered and admitted into evidence.) Now, pull up the first paragraph. This says -- This is Papageorge writing to WATER PCB-SD0000066792 19 20 21 22 23 1 2 3 4 5 6 7 A. 8 9 10 Q. 11 A. 12 13 14 15 16 17 18 19 20 21 22 23 2 3 A. 4 5 6 7 8 9 10 11 12 Q. 13 14 15 16 17 18 19 A. 20 21 22 23 1 2 3 Dr. Risebrough, to build your position at the time. Apparently Dr. Risebrough had a strong belief that you couldn't protect the environment unless it was possible to relate PCB production 013102B 3426 figures and environmental input to contamination levels in fish and other components of the biosphere. What is "input," Dr. Kaley? Stuff that left your plant site and perhaps got in the environment? I think it isn't necessarily our plant site; it is materials by whatever source are put into the environment. Okay. And let's take a look at this next paragraph and see what Dr. Risebrough was asking y'all to do. "It is the company's position with respect to the possible PCB contamination of the environment that our responsibility should and do include not only consideration of our employees, shareholders and customers, but also consideration of all other persons." And then let's go to the next paragraph and see what y'all told him. Apparently he's looking for some information. 013102B 3427 Let's see what y'all told him. What does that say? Says, "It is with these responsibilities in mind that we have been reluctant to divulge PCB usage numbers to the general public. We are extremely concerned and sincerely believe that abstract production figures can be misunderstood, misinterpreted, and misapplied to the detriment of the interests of both the public and the company." Now, is this just a way of saying to Dr. Risebrough, who you claimed before we went to lunch that you were going to cooperate with, that y'all weren't going to tell him about production figures and the stuff that left your plant site and got into the atmosphere? It was an explanation of why we weren't disclosing that information to him specifically, but it goes on to tell Dr. Risebrough that we are going to give that information to the U.S. Government 013102B 3428 and it will then be available -- I think it says as part of a complete and thorough scientific study. WATER PCB-SD0000066793 4 Q5 6 A. 7 Q. 8 9 A. 10 Q11 12 13 14 15 16 17 A. 18 19 20 21 22 A. 23 1 2 3 4 5 6 7 Q. 8 9 10 11 12 13 14 15 Q. 16 17 18 A. 19 Q. 20 A. 21 Q. 22 23 A. 1 Q. 2 A. 3 4 5 6 7 8 9 10 11 Q. 12 13 Oh, so y"all were going to make it available to the government? Yes, sir. That is what y'all chose to do; is that correct? That's correct. And it is it your position -- You are telling the ladies and gentlemen of the jury that rather than let this gentleman who was concerned about this stuff, gathering information on it, and thought it might cause harm, y'all turned it over to the U.S. government? Yes, it - MR. FORD: Objection -- Excuse me. Objection, Your Honor. That is argumentative. THE COURT: Overruled. Yes. The U.S. government had begun a task force of a number of agencies which 013102B 3429 were going to study and investigate the entire PCB situation at the time, and we were working with that government task force to make that information available to them with the proper safeguards. That's correct. Wasn't it this same time frame y'all were trying to make a determination as to whether or not to let them know what left the plant site up here in Anniston? 1971. By 1971, we were making reports of what was leaving our plant site. MR. STEWART: Let me have 2092, please, ma'am. Take a look at that document, if you would, Dr. Kaley, and then I want to ask you some questions about it. Okay. I've taken a quick look at it. And that is your document? It appears be a Monsanto document, yes. And that is a letter from a W. B. Papageorge to a W. R. Richard? Yes. 013102B 3430 And that is dated January 26, 1972? Yes. MR. STEWART: We'd offer that into evidence at this time, this whole set of documents. Judge. THE COURT: It is admitted. (Whereupon Plaintiffs' Exhibit 2092 was offered and admitted into evidence.) Let's bring up the second page, please, ma'am. Pull it up. We've got the technology, might as well use it. WATER PCB-SD0000066794 14 15 A. 16 17 18 Q. 19 20 A. 21 22 Q. 23 1 2 A. 3 4 Q. 5 6 7 8 9 10 11 A. 12 Q. 13 14 15 16 A. 17 18 19 20 21 22 23 1 2 3 4 5 6 Q. 7 8 9 10 11 A. 12 Q. 13 14 A. 15 Q 16 A. 17 18 19 20 Q 21 A. 22 23 Who is Dr. Robert E. Opferkuch? I don't know other than he apparently works for Monsanto Research Corporation in Dayton. I don't know specifically. And there is a Gene Jessee there. Was he the Anniston plant manager? At some point in time, yes. In '72 he would have been. He would have been corporate at that time, wouldn't he? Isn't that about 013102B 3431 right? In '72? I believe he was still the plant manager. Oh, I see. And requested permission to include the results of the Anniston PCB removal study. Then the letter goes on to say, "It appears that this may be an opportunity to share some of the costs of the study with MRC. Are you interested?" Yes. So Mr. Papageorge is writing . Mr. Richards and saying, can we get this money from the government? Is that it? And take a look at some things? Well, Monsanto Research Corporation - if I can explain -- was kind of an independent research arm of Monsanto and really wasn't involved in the day-to-day operations of the company. And in fact was mostly a government contractor. So like other groups, they applied for government grants to study a variety of 013102B 3432 issues. And I think, yes, at this point it looks like that corporation is asking whether -- you know, is preparing to submit a grant to the government for study or something with regard to PCBs. Now, on the front page of this document, there is a little note from a fellow named "Jim S" or Jim Savage to Mr. Papageorge? Was Mr. Savage a Monsanto employee? Yes, he was. Working at corporate headquarters at that time? I believe so. What does that say? I think it says, "I don't see any problem unless you think that the studies are an admission we used to pollute." "We used to pollute." Is that right? That is what it says, yes. MR. STEWART: Now, let's have a look at Plaintiffs' Exhibit WATER PCB-SD0000066795 1 2 Q. 3 4 A. 5 6 7 8 9 10 11 12 13 14 15 16 17 Q. 18 19 20 A. 21 Q. 22 23 1 2 3 4 5 5 7 8 9 A. 10 11 12 13 14 Q. 15 16 A. 17 Q. 18 19 20 21 22 23 A. 1 Q2 3 4 A. 5 6 7 8 013102B 3433 2102, please, ma'am. Take a look at that. Is that a letter from M. L. Mullins to G. L. Jessee? Yes, sir. MR. STEWART: We would offer that in evidence. Judge. THE COURT: It is admitted. (Whereupon Plaintiffs' Exhibit 2102 was offered and admitted into evidence.) MR. STEWART: Now, bring that up, if you would. Can you pull ' that out, please, ma'am, so the ladies and gentlemen of the jury can see it and the Court can see it. This is a litter from Mr. Mullins to Mr. Jessee about this information that was requested. What does that say? Do you want me to read the whole thing? Well, doesn't it say, Dr. Kaley, that there was some serious concerns on the part of Mr. Mullins that he expressed to 013102B 3434 Mr. Jessee that if you turned over the information about what left the Anniston plant, provided that wasn't "screened by a qualified individual to insure that no statements are transmitted to EPA which might prove incriminating. For example..." What did they not want to tell the EPA at that time? It says, "For example, we would not want to document concentration of PCBs in our plant discharge, pounds of product loss to the river over some period of time, etc." Then its goes on to say down there something else, doesn't it? Yes. "If such a screening can be completed and any potentially damaging statements removed or revised, we see no reason why the results of this work cannot be available to MRC." Is that what it says? That is what it says. 013102B 3435 Now, help me a little bit. But does that -- is that full disclosure to the EPA? Well, apparently not. Well, it is not full disclosure to the MRC. And I frankly don't understand why he would say that because we were already disclosing our discharges to the Alabama WATER PCB-SD0000066796 9 10 Q11 12 13 14 15 16 17 18 19 20 Q. 21 22 A. 23 1 2 3 Q. 4 A. 5 6 7 8 Q. 9 10 11 12 A. 13 14 Q. 15 IS 17 18 19 20 A. 21 22 23 1 2 3 4 Q. 5 6 7 8 9 A. 10 11 12 Q. 13 14 15 16 17 A. 18 Q. regulators. We heard about that earlier. But what I'm saying is -- MR. FORD: Excuse me. Would you let him finish, Mr. Stewart MR. STEWART: I'm sorry. THE COURT: Were you finished? THE WITNESS: I think I am now. MR. STEWART: I thought he was. I'm sorry, George. I won't talk over him. But this was going to the EPA, wasn't it? The information -No. The information was going to Monsanto Research Corporation in order 013102B 3436 to incorporate it into a grant request from the EPA. It was going to the EPA, though? Presumably at some point, had the request been granted, there would have been a report to the EPA but not at this point. Well, wasn't the EPA looking at that time to try to find out what was coming off plant sites and what was getting into the environment? With regard to that specific time, I'm not sure. I don't know. I thought you said just a few minutes ago to the ladies and gentlemen of the jury that you might net have given that information to Dr. Risebrough but you were giving it to the government in this task force. That was specific information we were giving to the government, was specific -- excuse me -- specific information with regard to our -- our marketing and 013102B 3437 PCB usage among our customers. That is different from what this document is talking about. Wait just a minute. Let me understand what you are telling me now. I want to understand it. Are you saying that the government was looking for what y'all were selling your customers? The government, yes. I mean, if we go back to that document, that is specifically what it was talking about. So the government is looking for what y'all are selling your customers, and your testimony here today is that you told them what you were selling your customers; is that right? Yes, we did. On a cooperative basis. Is that right. WATER PCB-SD0000066797 19 20 A. 21 Q. 22 23 A. 1 Q2 3 A. 4 5 Q. 6 7 8 A. 9 10 Q. 11 A. 12 Q. 13 A. 14 Q. 15 16 A. 17 18 Q. 19 20 21 22 A. 23 2 3 4 5 6 7 8 9 10 Q. 11 12 13 A. 14 15 16 17 Q. 18 A. 19 Q. 20 21 22 A. 23 1 2 3 Dr. Kaley? Yes. We told them. Let's take a look at Plaintiffs' Exhibit 2110. Here you go. Dr. Kaley. Thank you. 013102B 3438 Can you identify that document for us, please, sir? It appears to me to be another memo from Mr. Mullins to Mr. Jessee. This is a memo from them about this same report or same grant that this research fellow was asking about, isn't it? I haven't read it. If I can have a minute, please. Oh, certainly, certainly. Absolutely. Okay. Have you reviewed it, sir? I have reviewed it. And he is referring to the same grant application? Yes, sir. It appears to be so, yes, sir. Because it appears that some of these letters are -- It refers to a letter of February 23rd, 1972, and that is the one we just looked at. That is correct. MR. STEWART: We would offer that 013102B 3439 into evidence. Judge. And we would like to bring it up. THE COURT: It is admitted. (Whereupon Plaintiffs' Exhibit 2110 was offered and admitted into evidence.) MR. STEWART: Pull up the first two paragraphs up there, please, ma'am. Now, this appears, Dr. Kaley, to state that they're not going to let this grant application be made because of what? I guess because -- seems logical to assume that any conclusion drawn by MRC study would be imposed on us at WGK and possibly Anniston residuals. Up above there it refers to Toby Bell? Yes. Who says that if you remove the data - and the data refers to something fairly significant, doesn't it? I don't know if it is significant or not. It is talking about plant losses 013102B 3440 and flows and dates. It is the information that was being discussed in the previous two memos. WATER PCB-SD0000066798 4 Q. 5 6 7 A. 8 9 10 Q. 11 12 A. 13 Q. 14 15 16 17 18 19 A. 20 21 Q. 22 A. 23 1 2 Q. 3 A. 4 Q. 5 6 7 8 9 10 11 A. 12 Q. 13 14 15 16 17 A. 18 19 20 21 22 23 1 2 3 Q. 4 5 6 7 8 9 10 11 A. 12 Q. 13 A. The loss of PCB waste from the plant site. Isn't that effluent? Isn't that what they are talking about? I don't know if it was waste or what it was. It was presumably PCB effluent, yes. At the plant site in Anniston? Toby Bell worked in Anniston? Yes, sir. And then in the last paragraph -- Well, next to the -- three from above - By the way, who are Jack Garrett --We know who Mr. Papageorge is. They concur in this assessment. Who is Jack Garrett? Jack Garrett was in the medical department at Monsanto. Anniston department - He was in the medical department in Anniston. He is an industrial 013102B 3441 hygienist. In the medical department? I believe so. Look at the third one from the bottom. Pull that up. Now, that says, "While this seems to be a severe approach to take with an arm of our company, I do not see how else we would could adequately control the use of such information." That is what it says. Yes. But I understood you earlier to say that the government wanted to use this information to find out how much of this stuff was getting into the environment. What were y'all - No. That isn't what I said. I said this was a grant application from a research corporation, an arm of Monsanto that was looking to use the information to try to get an EPA grant. As I sit here, I have no idea what the study was or what use the EPA might or might not 013102B 3442 have made of it. I just don't know, Mr. Stewart. Let's go to the last sentence there. Let me ask you one more question about this, and we will close the loop. "I am returning the PCB report to Toby Bell as Iunderstand it is the only copy." Have you ever seen that report. Dr. Kaley? Not to my knowledge. So you have never seen that -I don't know specifically. WATER PCB-SD0000066799 14 Q 15 A 16 17 18 19 Q 20 21 22 23 1Q 2 3A 4 5 6Q 7 8 9 10 11 12 A 13 14 Q 15 16 17 A 18 19 Q 20 21 22 23 A 1 2Q 3 4 5 6 7A 8 9Q 10 11 A 12 13 14 15 16 17 18 19 20 21 22 23 Q. -- report? I don't know specifically what the report is talking about. I don't know that there is a report that I would identify with that. Apparently the report had on it what left the plant site. MR. FORD: Object to counsel testifying, Your Honor. THE COURT: Sustained. 013102B 3443 But you have never seen that report, have you? As I said, I have not seen a report that I know to be identified with that report. Now, I believe you indicated earlier that y'all voluntarily provided information to the United States government when they asked for it about production figures and who you sold stuff to. We provided the information with certain constraints, yes. And that was a part of what you were saying y'all did to act responsibly, wasn't it, Dr. Kaley? I believe that was a responsible action, yes. Let me show you Plaintiffs' Exhibit 2057, if I can, Dr. Kaley. Can you identify that document for us, please, sir? Well, it says a Monsanto document at the 013102B 3444 top. And it is a letter from a gentleman whose name I won't try to pronounce to a D. R. Hansen. Is that another employee that you know to be working for Monsanto? No, I don't. I don't recognize either one of those names. But this is one of y'all's internal documents? I believe so, yes. MR. STEWART: We would offer 2057 into evidence and ask her to bring it up. THE COURT: It is admitted. (Whereupon Plaintiffs' Exhibit 2057 was offered and admitted into evidence.) MR. STEWART: Pull that first paragraph up. Well, make it the first two. Make it the first two, please. Now, apparently somebody called the WATER PCB-SD0000066800 1 2 3 4 5 6 7 8 9 A. 10 11 Q. 12 13 14 15 A. 16 Q. 17 18 19 20 21 22 23 1 2 3 4 5 6 7 8 9 10 11 12 13 A. 14 15 16 Q. 17 18 19 A. 20 21 22 Q. 23 1 2 3 A. 4 Q. 5 6 7 A. 8 013102B 3445 office on Friday morning, August the 13th, and asked for the organic division sales. Apparently that is where Mr. Bob Bevacqua worked. Is that probably so? And he identified himself as a Mr. Dave Anderson, and he was asking about polychlorinated biphenyls from Monsanto. It turned out he was from where? It says the U.S. Attorney General's Office. And then he suggested that this matter be discussed that Mr. Anderson was asking about with Bill Papageorge; is that right? Yes. And let's take a look at the next paragraph, next two paragraphs in this letter. In this paragraph, and I quote, "My reason for writing this memo is to is first to inform you that we received this type of call and secondly to give my compliments to Marjorie Davies for her quick thinking and awareness of 013102B 3446 Monsanto's difficulties in this business area. I shudder to think how easily it would have been for someone to receive this call and start spilling the beans as to whom we have been selling polychlorinated biphenyl products." Now, is that activities that you would characterize as working with the U.S. Government? This guy was from the U.S. Attorney's office, calling, and apparently trying to find out who y'all were selling this stuff to. No. That isn't what it says. It says he was asking to buy polychlorinated biphenyls. Now, you know. Dr. Kaley, that a guy who is a U.S. Attorney ain't going to be buying polychlorinated biphenyls. Well, that's true. Apparently he was misrepresenting himself to the first person who answered the call. Would it be that he might have been misrepresenting himself because it was 013102B 3447 difficult to get the information out of y'all? I have no idea. Well, you certainly didn't tell him at this point in time as far as this letter is concerned? No. Because as we previously discussed, we were in negotiations with the WATER PCB-SD0000066801 9 10 11 12 13 14 Q. 15 16 17 18 19 20 21 22 A. 23 1 Q. 2 3 4 5 6 7 8 A. 9 10 11 12 Q. 13 14 15 IS 17 18 19 20 21 22 A. 23 1 2 3 Q. 4 5 6 A. 7 8 9 10 11 12 Q. 13 14 15 A. 16 Q17 18 A. government -- discussions with the government information, our sales and usage information at that time. And that was the situation under which we were willing to do that. Now, Dr. Kaley, Monsanto had suggested, and so have you, in public statements that y'all acted responsibly and to protect the environment of west Anniston and the soils around that plant in west Anniston in 1971, closed down Aroclor production. Is that correct? Do you agree with that statement? Yes. We did close down Aroclor production in 1971. 013102B 3448 I believe the way it has been put in the trial of this case, that was a good thing, we did that because it was a good thing and it was a responsible thing. Now, as the person who has been responsible, do you agree with that statement? Yes, I think it was a responsible part of all of the things that we were doing in that time frame to try to understand and deal with the PCB issues, yes. Take a look at Plaintiffs' Exhibit 227. See if this might shed some light. I believe it was previously admitted, but I will give you a copy of it, sir, to see if you can take a look at it. -Just take a look at that document, if you would, Dr. Kaley. There were several considerations that went into that particular decision, weren't there? Well, there are certainly a number of paragraphs in this document. I haven't 013102B 3449 read it all, but presumably that's correct. Well, take your time to read it. I want to ask you some questions about it. I don't want to be unfair to you. Okay. MR. STEWART: Now, let's take a look --We would offer Plaintiffs' Exhibit 227 into evidence. THE COURT: Is admitted. This is minutes, is it not, of a 12/4/70 meeting on Aroclor manufacturing sites; is that correct? That reflects the title, yes. Let1s go to paragraph number seven on page three. Okay. WATER PCB-SD0000066802 19 20 21 22 Q. 23 1 A. 2 Q. 3 4 5 A. 6 Q. 7 8 9 10 11 A. 12 13 Q. 14 15 16 17 18 19 20 21 22 23 2 3 A. 4 5 6 Q. 7 8 A. 9 Q. 10 11 12 13 14 15 16 17 18 A. 19 Q. 20 21 22 23 1 A. 2 Q. 3 A. MR. STEWART: Now, if you could, pull that up, please, ma'am, and pull out paragraph seven. Now, this had to do with shutting down Anniston liquid Aroclor, did it not? 013102B 3450 Yes. This consideration here. The question put was, "Do the legal and PR considerations dictate?" Is that right? That's what it says. And the answer seems to be "not quite." It says, "While recent Illinois regulatory activity indicates some threat that the PCB control at WGK" - What is WGK? That the W. G. Krummrich plant in Sauget, Illinois. Bill Papageorge, who used to run this plant, "stated that the Law and Medical Departments and others would welcome a decision to shut down Anniston liquid Aroclor since the legal threats are more imminent and the problems more visible." And it says, "There is some uncertainly as to where this block belongs on the diagram." Do y'all have a block diagram that y'all use --or they use -- pardon me, 013102B 3451 Dr. Kaley -- to make this decision? Is that attached to this letter? Yes. MR. STEWART: Could we pull it up, please, ma'am? It may be my age, but this looks like some of the planning I do. I'm with you. I'm trying to figure this chart out. But I've looked on there, and I have read it carefully, and you just had an opportunity to. where on there does it say that you all or Monsanto -- pardon me again -- Monsanto looked at the problems that PCB production might cause with the people in west Anniston? Where on that chart is that? I don't see it on there. It says, "Can we afford to drop some business." And, "Are savings substantial." It even asks about capital for Anniston pollution. What happened to that? 013102B 3452 I don't know. Doesn't this letter refer to that? I have scanned it. I haven't -- it may. WATER PCB-SD0000066803 5 6 7 8 A. 9 10 11 12 13 14 Q. 15 16 17 18 19 20 21 22 23 1 2 3 4 A. 5 6 Q. 7 8 9 10 A. 11 12 13 14 15 Q16 17 A. 18 19 Q. 20 21 22 A. 23 1 Q. 2 3 4 5 A. 6 7 8 9 10 Q. 11 12 13 A. That is number four? Number three? I think it is number four. Do you know where they got the capital they needed? Or did they just shut her down? Certainly I know that there were some efforts going on prior to the shutdown to try to reduce the number of discharges from the plant. I don't know specifically what the monies talked about in this document are. My worthy colleague has pointed out that there is an answer in this letter. It's unfair to you to -- Let's look on the conclusions page and see if something was said about that. Turn to page three and paragraph three. Can we pull that up? What does that say, now? "PCB pollution capital at Anniston should be held to a minimum consistent with the 013102B 3453 timing of the phase-out and reasonable control of the chlorinated terphenyl." Is that another PCB type product? Well, is it related. That's the other component of the Aroclor product line. Is that a corporate way of saying that we are just not going to spend a whole heck of a lot of money down there at Anniston when we shut her down? That is one of the conclusions of these minutes. I don't believe that is an enacted. We did continue to enact up until the shutdown of the plant a variety of pollution reduction measures. I assume one of those was cleaning up Snow Creek? We were certainly reducing our emissions to Snow Creek at that time frame, yes. I'm not talking about reducing your emissions; I'm talking about cleaning it up. I don't know that that was specifically done. 013102B 3454 I assume some of that was doing the air tests about that time to find out if something was happening in that neighborhood that shouldn't happen? At that time it was practically impossible to do air tests at the kind of levels that would be expected to be out there. It was a very difficult procedure. Dr. Kaley, you are not telling me that y'all didn't do air tests in this time, are you? No. WATER PCB-SD0000066804 14 Q15 16 A. 17 18 19 20 21 22 23 Q. 1 2 3 A. 4 Q. 5 6 7 8 A. 9 10 Q. 11 12 A. 13 14 Q. 15 16 17 18 A. 19 20 2. 21 A. 22 Q. 23 1 2 A. 3 Q. 4 A. 5 6 Q. 7 A. 8 9 10 11 12 13 14 15 16 17 18 19 20 Q. 21 22 A. You are not telling the ladies and gentlemen of the jury that, are you? No, I'm not. We did air tests near our process where the levels would have been expected to be higher. But at trace levels you would expect to see in the environment, it is a very difficult analysis now, and it was even more difficult thirty or forty years ago. Now, you said in this press release -- 013102B 3455 Do you still have that up there with you? Yes, I do. You said in this press release that y'all worked with scientists. There was a way that y'all worked with scientists, wasn't there? I'm sorry. I don't understand your question. Well, if somebody criticized Monsanto, y'all hired them, didn't you? I don't know what the basis of that question is. Let me show you Plaintiffs' Exhibit 2118. Can you identify that document, please, for the ladies and gentlemen of the jury? It is a memo or a letter or note from Mr. Papageorge to a variety of folks. Good old Mr. Papageorge agam? Yes. And he writes to a Callis, Corey, Graham, Hill and Metcalf. Do you know 013102B 3456 who those people are? I know who some of them are. Are they Monsanto employees? Certainly. And they have Monsanto addresses, so presumably they are. Yes. And this is a Monsanto document? Yes. Yeah. I mean, it seems to have been written by Mr. Papageorge, yes. MR. STEWART: We would offer that in evidence at this time. Plaintiffs' Exhibit 2118. And bring it up if you could. THE COURT: It is admitted. (Whereupon Plaintiffs' Exhibit 2118 was offered and admitted into evidence.) MR. STEWART: Now, would you pull up the first two paragraphs, please. Dr. Lee was the fellow who worked at the University of Wisconsin, wasn't he? That is what it says, yes. WATER PCB-SD0000066805 23 Q- It says at the time Dr. Lee appeared to 1 2 3 4 5 6 A. 7 Q. 8 9 A. 10 Q11 12 13 14 15 A. 16 17 18 19 20 21 22 23 1 Q. 2 3 A. 4 Q. 5 6 7 8 9 A. 10 11 12 13 Q. 14 15 16 17 18 A. 19 Q. 20 A. 21 Q. 22 23 1 2 3 4 A. 5 6 7 conduct himself as a responsible scientist, anxious to preserve objectivity in the environmental matters. What did you get your degree in? Environmental chemistry. Is that not what a scientist is supposed to do, Dr. Kaley? Yes, sir. To conduct himself in an objective manner and say to the world, if you find something like Dr. Jenssen did or Dr. Risebrough did, that there may be a problem? I think if that's been established -- I kind of lost you because I was getting ready to answer -- yes, as a responsible scientist, yes, I believe scientists should behave as responsible scientists. MR. STEWART: Bring up the next three paragraphs, please, ma'am. The next two. I'm sorry. 013102B 3458 Now, Dr. Papageorge had a little criticism of Dr. Lee, doesn't he? Well, is it an observation. Well, some instances during which "Dr. Lee appears to strike out with limited information." He was making some critical comments about PCBs, wasn't he? Apparently he was making some comment about the fact that there were trace levels, low levels, of PCBs in Economics Laboratories dishwasher compounds, yes. And there was a belief on Dr. Papageorge's part that unless he is hired he might react negatively to some kind of proposal that he made to consult with him; is that right? That is what that sentence says, yes. Might say something else bad about PCBs? Or something, not necessarily just PCBs. And what happened? Let1s take a look at the next paragraph and see what happened to Dr. Lee. 013102B 3459 I'm sorry. I forgot the money. What does it say about the money there? It says, "If we do agree to some arrangement we could tend to neutralize any tendency on his part to criticize Monsanto." WATER PCB-SD0000066806 8 Q. 9 10 11 12 13 14 15 16 17 A. 18 Q. 19 20 21 A. 22 23 1 2 3 4 5 6 7 8 9 10 11 Q. 12 13 14 15 16 17 18 A. 19 Q. 20 21 22 23 1 2 3 4 5 6 7 8 9 10 A. 11 12 13 14 Q. 15 16 17 Now, let's take a look and see what was done. Take the next paragraph. What does he say there? "Propose that rather than commit Monsanto to an annual arrangement, we should approach Dr. Lee to determine if he could be available on a sporadic or as needed basis." Do you know whether or not he was hired? I do not. Let's take a look at Plaintiffs' Exhibit 2125. Can you identify that document, please, sir? Is it a -- Appears to be a letter to Professor Lee -- or a contract. I can't tell. Apparently there is a page 013102B 3460 missing. But it is some sort of agreement, apparently, between Mr. Lee and the Monsanto Company. MR. STEWART: Okay. We would offer that into evidence, if we could, Judge. THE COURT: It is admitted. (Whereupon Plaintiffs' Exhibit 2125 was offered and admitted into evidence.) Let's take a look at the first page of that document. And pull up the last part of the first paragraph, please, ma'am. And then pull down through the first full sentence on the next paragraph. So they did hire him, did they not? Apparently so. On the next page it says in fact what they paid him. Let's take a look at that. This is June 13th of '72. The second paragraph there, "Monsanto agrees to pay you at the rate of three hundred 013102B 3461 dollars per day for each day of consulting services actually provided... or forty dollars per hour spent on behalf of Monsanto in your office." Now, Dr. Kaley, you all have made arrangements, have you not, with other scientists after they were critical of Monsanto? I don't know. We have made arrangements with lots of scientists, some of whom may have been critical of Monsanto and some who may not have been. And you have made arrangements with scientists after they in fact. Dr. Kaley, were critical of PCBs themselves, had done tests on PCBs and WATER PCB-SD0000066807 18 19 20 A 21 22 Q 23 A 1 Q. 2 3 A. 4 Q5 6 7 A. 8 9 Q10 11 A. 12 Q. 13 A. 14 Q. 15 16 A. 17 Q18 19 A. 20 Q. 21 A. 22 23 Q. 1 2 3 4 A. 5 6 Q. 7 8 9 10 A. 11 12 13 Q. 14 A. 15 16 17 18 19 Q. 20 21 22 A. 23 Q. 1 2 found that they --in rats, and found that they were harmful to those animals. 1 am not sure what you are talking about. Do you know a Dr. Renate Kimbrough? Yes, I do. 013102B 3462 Do you know whether or not y'all have had her do work for you in the past? Yes, we have. When was the last time that you know of that y'all had her do some work for you here in the Anniston area? She visited Anniston on our behalf, I believe, in 1995. Oh, she came down to Anniston on your behalf? Yes, she did. Who asked her to do that? I did. And did you ask her to go out and take a tour of the community? Yes, I did. Did you ask her to talk to any state officials? I don't recall that specifically. Well, did she while she was there? Not that I know of, not while she was in Anniston that I know of, no. Did he she ever talk by phone to any 013102B 3463 state official working with ADEM or the Alabama Department of Public health at your request? She may have. I don't recall specifically. Did she ever make criticism of documents that were put out by the Alabama Department of Public Health, at your request? Yes. She filed criticisms or comments on a draft risk assessment that ADPH had done, yes. You asked her to do that? I asked her to take a look at the document and give her our -- her my thoughts on that document, yes. I'm sorry I think I misspoke. To give me her thoughts on that document, yes. Now, who were you working for at the time. Dr. Kaley, you asked her to do that? I was working for Monsanto Company. And what had this report been put out 013102B 3464 about? I mean, about the PCB problem in west Anniston? WATER PCB-SD0000066808 3 A. 4 5 6 Q. 7 A. 8 Q. 9 A. 10 11 Q. 12 A. 13 Q. 14 15 A. 16 Q. 17 18 19 A. 20 21 22 Q. 23 1 2 3 4 A. 5 6 7 8 9 10 11 Q. 12 A. 13 Q. 14 15 A. 16 Q. 17 A. 18 19 Q. 20 A. 21 Q. 22 A. 23 1 2 3 Q. 4 5 6 7 8 9 10 Q. 11 It was specifically about some risk assessment on fish in Choccolocco Creek, yes. Well, now, is she a scientist? Yes, she is. And where does she work? She is an independent consultant right now. Oh, she is an independent consultant? Yes, she is. Wasn't she at one time working for the government? Yes, she did. Didn't she do some tests back when she was working for the United States government and say that PCBs were bad? She reported in, I believe, a 1974 publication that according to her studies PCBs cause cancer in rats, yes. Is that what Dr. Levinskas and all those folks got upset about and went rushing 013102B 3465 up there to see Dr. Kimbrough about back in the '70s when she came out and she said PCBs were bad? I don't know that I would say that they were all upset about it. Certainly, it was new information. It was information that we were interested in, and yes, I believe that some Monsanto representatives did meet v/ith Dr. Kimbrough, yes. Met with Dr. Kimbrough. Yes. She does some work for GE, too, doesn't she? Not in that time frame, no. She did sometime recently, didn't she? Recently she has performed a study on behalf of General Electric, yes. Wasn't that about PCBs? Yes, it was. Wasn't that about the Hudson River? Not specifically. It was about GE worker population on plants on the 013102B 3466 Hudson River; it wasn't about the Hudson River. Dr. Kaley, didn't GE wave that Renate Kimbrough report all over New York City - MR. FORD: objection, Your Honor. We are not responsible for whatever GE may have done. THE COURT: I'll sustain. Now, we've talked about, Dr. Kaley, what y'all did in connection with closing the WATER PCB-SD0000066809 12 13 14 15 16 17 18 19 20 21 22 23 Q- 1 2 A. 3 Q. 4 A. 5 6 Q7 8 9 A. 10 11 Q. 12 13 14 15 16 17 18 Q. 19 20 A. 21 Q. 22 23 1 2Q 3 4 5 6 7 8A 9 10 11 Q 12 13 14 15 A 16 Q 17 18 19 A 20 21 plant, some of the things y'all had to do with scientists. But y'all also attempted in this same time frame to influence regulators who were trying to do something about PCBs, didn't you? MR. FORD: Object to the word "influence," Your Honor, to be positive or negative. MR. STEWART: I didn't say either way. THE COURT: Overruled. In May of 1975 Monsanto was a part of 013102B 3467 the PCB working committee, wasn't it? I'm - Back in the '70s? I'm not sure what you are talking about. It very well could be. If you would, take a look at that, please, sir. Let me get that out of your way. Thank you. Okay. I've reviewed it briefly. Okay. Let's take a look. MR. STEWART: We would offer that into evidence. THE COURT: It is admitted. (Whereupon Plaintiffs' Exhibit 2164 was offered and admitted into evidence.) Is that a letter from Mr. Papageorge to C. A. Tuttle? Yes, it is. Let's take a look at the first page. MR. STEWART: Can you bring that up, please, the first two 013102B 3468 paragraphs? Now, this refers to Mr. Papageorge is writing to Mr. Tuttle about an EPA -- I mean a PCB working committee, when Monsanto wanted to submit an action plan relative to the work of that committee. Is that correct? Well, it talks about the fact that there was this EIA. I am not sure what EIA stands for. Neither am I. You and I are at a loss there together. But this was a working committee, was it not, on PCBs? It says that. What they were trying to do was get an action plan to respond to EPA, weren't they? It says -- Well, to get an action plan, I guess, apparently to address issues with EPA, yes. That would be a fair WATER PCB-SD0000066810 22 23 Q. 1 2 3 4 5 6 7 8 9 10 A. 11 Q. 12 13 14 15 16 17 Q. 18 19 20 21 22 23 A. 1 Q2 3 A. 4 Q. 5 6 7 A. 8 Q. 9 10 A. 11 12 13 14 15 16 17 Q. 18 19 20 A. 21 22 23 1 2 3 4 5 6 characterization for it. Let's take a look at paragraph one, 013102B 3469 right under that. And the first part of that says, "We will remain informed of personnel changes within EPA and establish communications with those individuals with any influence in the promulgation of effluent standards." Now, that is standards for stuff that was leaving the plant going into the water, correct? At some point, yes. And then on down there it says what y'all are going to be doing -- what Monsanto is going to be doing with those people. MR. STEWART: Let's go to paragraph three here. Y'all were going to meet personally with those individuals. And you had a strategy there, Monsanto did. You were going to be using your data and your information to influence, what, the definition of PCBs? Do you see that? I do. 013102B 3470 Analytical methods and round-robin testing; is that right? Yes. And then, "absorption by soil and significance to landfill disposal and entrapment by sediment in water bodies." Yes. What does that have reference to, if you know, Dr. Kaley? I don't know specifically. I know that we had done some studies of PCBs absorption in soil and the fact that if you take water containing PCBs and run it through different kinds of soil, that it adheres to that soil. I would guess that that is what it would be. Was the EPA going to set some kind of standards as to what could go into the water? I don't know. These are all -- All six of these are really pretty objective kinds of things, definition of PCBs and testing. And certainly, we had a lot of 013102B 3471 experience on that. So I don't know specifically what information is being presented. As I said, these are things that we currently had research going on. So it makes sense that we were presenting our information. WATER PCB-SD0000066811 7 Q8 9 A. 10 Q. 11 12 A. 13 Q. 14 15 16 17 A. 18 19 Q. 20 21 22 23 1 2 A. 3 Q. 4 5 A. 6 Q. 7 A. 8 9 10 11 12 Q. 13 A. 14 15 16 17 Q. 18 19 20 21 22 23 A. 1 Q. 2 3 4 5 A. 6 Q. 7 8 9 10 A. 11 12 Q. 13 A. 14 Q. 15 16 Then on the next page you were looking at some other things, were you not? Yes. Toxicity studies, background levels, bioaccumulation. Correct. And y'all were going to attempt to influence the EPA as to how they dealt with those particular kind of problems in the environment. We were going to use our information with discussions with the EPA, yes. Well, y'all had, did you not -- In this group at that time -- And I left it before here. But General Electric and Westinghouse, were those customers of 013102B 3472 y'all's? Yes, they were. Y'all had pretty good inside contact with the EPA at that time, didn't you? I have no idea. Dr. Kaley? I don't know. Obviously, we knew of the people in this memo. I don't know that they were inside contacts. It is fairly common for the industrial regulated community to meet with the regulators. What did you just say, sir? I said is it fairly common for the regulated community to meet with the regulators to try to understand where the regulations are going. Wouldn't that be in the context of public meetings where you would meet with them just like anybody else would, just like citizens from west Anniston would or citizens from anywhere would. Dr. Kaley? Certainly. 013102B 3473 Y'all wouldn't have any kind of special kind of relationship with them where you would know what they would say before they said it, would you? I don't know. Let me show you Plaintiffs' 22 -- or 2174 and ask you to take a look at that. Dr. Kaley, and ask you if you could please identify it for us. It appears to be some kind of a draft statement. Some kind of a what? Draft statement. And on the front of it is a note from Papageorge? MR. FORD: Excuse me, Your Honor. WATER PCB-SD0000066812 17 That hasn't been offered yet, 18 and I want to make an 19 objection it to. 20 (Whereupon a side-bar 21 conference was had outside 22 the hearing of the jury, 23 during which the following 013102B 3474 1 occurred.) 2 THE COURT: State your objection. 3 MR. FORD: This is a proposal or 4 statement to be made before 5 some congressional committee, 6 subcommittee on the 7 environment. It is a 8 Constitutional right to 9 present matters such as that 10 outside -- This concerns a 11 statement made in a 12 Congressional subcommittee, 13 subcommittee on environment, 14 dated October 21, 1975, a 15 presentation made by 16 Monsanto. To allow this to 17 be used in a civil trial 18 would violate the defendant1s 19 right to free speech, a right 20 of the Constitution of the 21 United States. 22 MR. WHITE: I don't have any cases 23 because I didn't know we were 013102B 3475 1 going to be here. But there 2 is a body of law that when 3 you get into things such as 4 lobbying or meeting with 5 regulators or congressmen or 6 whatever, that that is not 7 admissible for purposes like 8 this because it infringes on 9 a citizen's First Amendment 10 rights to contact their 11 representatives and 12 regulators. 13 THE COURT: Is this guy a 14 repres entative ? 15 MR. STEWART: No, sir, Judge. 16 THE COURT: Is he a regulator? 17 MR. STEWART: A regulator. 18 MR. WHITE: It is the same thing. 19 THE COURT: And that was the law 20 in October of 1975? 21 MR. WHITE: No, sir. But it is 22 common. It is the law now. 23 I have dealt with this 013102B 3476 1 before. No, I'll tell you WATER PCB-SD0000066813 2 how I've dealt with it 3 before. It was in the 4 context of contacts with like 5 federal regulators who 6 oversee automobile safety 7 standards and things like 8 that, that that has been kept 9 out because of the reasons 10 I've stated, because it has a 11 chilling effect on those 12 affected by the possible 13 legislation. 14 THE COURT: This whole thing is 15 having a chilling effect on 16 me. 17 MR. FORD: This is a statement 18 made by a regulator. It is 19 not anything Monsanto 20 created. It is a statement 21 made by an EPA regulator to 22 some subcommittee that 23 Monsanto just happened to 013102B 3477 1 receive a copy of. It is not 2 generated by Monsanto. 3 MR. STEWART: Judge, while we are 4 fussing about this, can we 5 let them go out? I have been 6 going about an hour. 7 THE COURT: Ladies and gentlemen, 8 let's go ahead and take a 3 brief recess. 10 (Jury not present.) 11 MR. FORD: I'm sorry, judge. I 12 withdraw my original 13 objection on the First 14 Amendment rights, but I want 15 to reassert the objection - 16 I will accede to Mr. White 17 further about the case. 18 MR. WHITE: I think it is the 19 Noerr Pennington, N-o-e-r-r, 20 document that has been out 21 there for years about how 22 speech to government agencies 23 is protected speech. In 013102B 3478 1 addition, my recollection 2 is - 3 THE COURT: Protected - 4 MR. WHITE: Under the First 5 Amendment. 6 THE COURT: How so? When you are 7 talking about protection, you 8 are talking about different 9 levels of protection and 10 different ways of protection. 11 MR. WHITE: Yes, sir. And I think WATER PCB-SD0000066814 12 I can help. There is a 13 relatively recent United 14 States Supreme Court case 15 that dealt with the so-called 16 fraud on the FDA theory, 17 where they claimed that these 18 drug manufactures were trying 19 to get drugs approved by the 20 FDA misrepresented to them 21 what the drug could or could 22 not do. 23 And the United States 013102B 3479 1 Supreme Court said that is 2 not a tort because the FDA - 3 it is their responsibility to 4 make sure that the 5 information that they receive 6 is correct and they are the 7 ones that have the power to 8 impose sanctions on the 9 businesses that may provide 10 incorrect information to 11 them. 12 THE COURT: How is that analogous 13 to what we are dealing with 14 here? 15 MR. STEWART: Judge, could I state 16 for the record - 17 MR. WHITE: I'm sorry. Go ahead, ^X U Donald. 19 MR. STEWART: I wanted to clear up 20 for the record what we are 21 talking about. We are 22 talking about a note from a 23 Toni to a Mr. Bergen, who are 013102B 3480 1 obviously Monsanto employees. 2 And they are talking about a 3 copy, and it says a bootleg 4 copy of a speech that a 5 regulator was going to make 6 to a Congressional committee. 7 This does not have to 8 do at all with a contact that 9 was made by Monsanto with the 10 regulator unless they will 11 admit for the record that 12 they helped him write his 13 speech that he was going to 14 make to the committee. I 15 mean, I don't know. It says 16 bootleg copy of a speech. 17 That is what it appears to 18 be, which he was going to 19 make, as I understand it, on 20 -- to, rather, October 21st, WATER PCB-SD0000066815 21 1975, to the subcommittee on 22 the environmental committee 23 on commerce. 013102B 3481 1 And he was a Dr. John 2 L. Buckley, and he was 3 talking about the PCB 4 problem. 5 But this does not 6 involve a contact they were 7 making with anybody. This 8 involved them receiving a 9 copy of the bootlegged speech 10 that he was apparently going 11 to make ahead of time. So I 12 don't see how that violates 13 their free speech or their 14 right to free speech at all. 15 MR. PRATER: Let's look at it 16 aside from that, Your Honor. 17 Unless they can show some 18 evidence that what was stated 19 in the speech was in any way 20 influenced by us getting an 21 advance copy of this speech, 22 it has absolutely no 23 relevance to any issue in 013102B 3482 1 this case. 2 MR. FETTERMAN: May I speak to 3 that, Judge? 4 THE COURT: Go ahead. 5 MR. FORD: There is no evidence of 6 whose notes are on here 7 either, Your Honor. 8 THE COURT: That's right. I don11 9 know where this is going 10 other than simply showing 11 they had a copy prior to his 12 statement. But I see a lot 13 of notes on here. I haven't 14 read the statement that 15 Dr. Buckley wanted to make, 16 and I haven't read the 17 changes that have been made 18 and have no idea who made 19 those changes and what 20 significance they have. I 21 don't know if the plaintiffs 22 are trying to go into the 23 fact that someone did make 013102B 3483 1 comments and if those 2 comments were then related to 3 Dr. Buckley or someone else. 4 MR. STEWART: Judge, the document WATER PCB-SD0000066816 5 itself is all we have to 6 offer on this particular 7 point. There is nothing 8 beyond that. We feel like 9 the jury ought to have a 10 right to see it in line with 11 what Dr. Kaley has said 12 publicly they either did or 13 did not do in connection with 14 this area. 15 They make statements 16 that we cooperated with 17 regulators, did the kinds of 18 things we were supposed to 19 do. And I think the jury has 20 a right to know how. 21 We have already put 22 information in, Judge, that 23 was not objected to prior to 013102B 3484 1 this time about conversations 2 they had with Mr. Crockett 3 down- at the ADEM place. And 4 they didn't object to them. 5 It wasn't objected to at all. 6 MR. FETTERMAN: And we put in the 7 preceding memo which talked 8 about the very things they 9 are now objecting to. If 10 they had a First Amendment 11 issue, what they are really 12 objecting to is they don't 13 like this particular 14 document. But they have 15 already waived that objection 16 with the previous document. 17 Judge. 18 MR. FORD: I don't agree with 19 that. 20 MR. FETTERMAN: In addition, I 21 would just suggest that this 22 document is relevant because 23 it shows the close 013102B 3485 1 relationship and the 2 influence that -- they were 3 talking about staying in 4 touch with personnel changes 5 at the EPA, and they were 6 obviously able to get bootleg 7 copies. So it is obviously 8 relevant to evidence we have 9 already put in, Judge. 10 MR. FORD: For all we know, it 11 could have been stolen. 12 MR. PRATER: I think they made an 13 interesting concession just 14 now, that this is all they WATER PCB-SD0000066817 15 have, that this Exhibit 2174 16 is all they have on this 17 point. They don't have any 18 evidence of how Monsanto got 19 this document. It could have 20 come from GE or anyplace. 21 There is no evidence before 22 this jury, that can be placed 23 before this jury based on 013102B 3486 1 what they just said, that it 2 came from the EPA. 3 MR. FETTERMAN: But, Judge - 4 MR. PRATER: Let me finish. 5 MR. STEWART: Let him finish, Dan. 6 MR. PRATER: There is no evidence 7 of that, Your Honor. In 8 addition, they have admitted 9 that there is no evidence 10 that what was said at this 11 meeting by this government 12 official was in any way 13 influenced by Monsanto. 14 They simply want to get 15 this document into evidence 16 because it says "bootleg 17 copy." And that would merely 18 seek to inflame the jury on 19 nothing more than a 20 collateral matter. 21 THE COURT: Well, I'm going to sustain because I'm not sure 23 you need this one particular 013102B 3487 1 document to inflame this 2 jury. I think there has been 3 plenty of other evidence to 4 do that. 5 (A break was taken.) 6 (Jury present.) 7 (All parties present.) 8 9 DIRECT EXAMINATION RESUMED 10 11 BY MR. STEWART: 12 Q. Dr. Kaley, Monsanto regularly monitored 13 its people that worked around PCBs, 14 didn't it, medically monitored? 15 MR. WHITE: Objection, Your Honor. 16 Med monitoring is not 17 relevant to this. 18 THE COURT: Okay. You may be 19 right. Y'all want to come up 20 here? 21 (Whereupon a side-bar 22 conference was had outside 23 the hearing of the jury, 013102B WATER PCB-SD0000066818 3488 1 during which the following 2 occurred.) 3 THE COURT: Where are you wanting 4 to go with this? 5 MR. STEWART: I'm just asking and 6 trying to determine if they 1 knew about the health effects 8 that were caused by PCBs. 9 MR. WHITE: It is not relevant. 10 THE COURT: I'm going to sustain 11 and let you rephrase your 12 question. 13 MR. STEWART: I can ask if he knew 14 about the health effects? 15 MR. WHITE: Let me ask you this: 16 Are you talking about for the 17 workers? 18 MR. STEWART: I'm ultimately going 19 to ask about the people out 20 there. But I will leave off 21 the medical monitoring part. 22 MR. WHITE: Again, this is not an 23 injury case. So I don't see 013102B 3489 1 the relevancy of health 2 effects, you know, sitting 3 here thinking about it. We 4 object to the whole line of 5 questioning. They are not 6 making any claim in this case 7 that anybody is sick. 8 MR. STEWART: The things they were 9 checking for back in that 10 period of time confirm what 11 our health experts talked 12 about, and that also ties in 13 not with any kind of personal 14 injury claim but the 15 emotional distress our 16 clients feel about -- about 17 validating their feelings. 18 THE COURT: Doesn't it tie into 19 the reason that folks say 20 these things are harmful? 21 MR. STEWART: Sort of confirms 22 what our people are saying. 23 THE COURT: Sort of an underlying 013102B 3490 1 basis for the lawsuit. 2 MR. FORD: Checking somebody who 3 is exposed to this stuff in 4 hundreds or thousand of 5 micrograms or nanograms on a 6 regular basis with them 7 heated and everything else is 8 not the same as somebody 9 living a mile away. WATER PCB-SD0000066819 10 MR. STEWART: Judge, our experts 11 have indicated in the first 12 place that the long term 13 exposure that our people have 14 to the environmental exposure 15 is more toxic and for longer IS periods of time, not subject 17 to the ventilation. So that 18 is a misstatement, frankly, 19 of what our folks said. 20 MR. FETTERMAN: And we have 21 testimony in the record that 22 our plaintiffs have higher 23 levels than the Anniston PCB 013102B 3491 1 workers. That came in 2 through Dr. Nisbet, the 3 higher PCB levels. 4 MR. WHITE: That would only be 5 relevant if there were some 6 claim, viable legal claim 7 that they were at risk. And 8 again, that - 9 MR. STEWART: Judge, I think there 10 is a viable legal claim that 11 these things are harmful and 12 that they place people who 13 would buy our clients' 14 properties, for instance, at 15 risk. That is why they are IS asking them to clean the 17 blooming thing up. 18 I thought that is why 19 we were here in the first 20 place. They have things that 21 they were testing them for 22 that tie in to -- I'm not 23 asking about medical 013102B 3492 1 monitoring -- but that tie in 2 to what our experts have said 3 are the harmful effects of 4 PCBs, which was not said by 5 Nisbet and Clapp, and I think 6 that's relevant evidence. I 7 do. 8 THE COURT: What group of people 9 are you talking about? 10 MR. STEWART: The people they are 11 checking, the people who were 12 involved in the Aroclor 13 production inside the plant. 14 MR. WHITE: Again, checking goes 15 to med monitoring. 16 MR. STEWART: Actually I - 17 THE COURT: Not necessarily. WATER PCB-SD0000066820 18 MR. WHITE: That is what medical 19 monitoring is. 20 MR. STEWART: That is not what 21 y'all argued at the Supreme 22 Court. 23 THE COURT: Don't you check people 013102B 3493 1 not necessarily for medical 2 monitoring but also for the 3 purpose of knowing what 4 effects the chemicals they 5 are working with have? That 6 is not to say they would 7 check them to make sure they 8 got proper medical treatment 9 if something happened to 10 them. 11 MR. WHITE: I don't think that is 12 where he is going with this, 13 Your Honor. 14 MR. STEWART: That is what they 15 said they were doing when 16 they argued at the Supreme 17 Court, doing surveillance on 18 on these people to see if it 19 was having some kind of toxic 20 effect and then take them out 21 of the department. That is 22 what they said. 23 MR. FETTERMAN: Judge, I think it 013102B 3494 1 is certainly relevant that 2 more than fifty years ago 3 that they were looking and 4 monitoring and checking for 5 the very same adverse health 6 effects like liver problem, 7 likes gastrointestinal 8 problems that our experts 9 came in fifty years later and 10 testified PCBs cause adverse 11 health effects. And they are 12 now challenging that. 13 It is consistent and 14 corroborates with our 15 experts, and we are entitled 16 to show that this company, 17 over fifty years ago, was 18 concerned about the same 19 thing our experts are 20 testifying about today. 21 MR. WHITE: And none of these 22 ailments or conditions he 23 says we were checking for do 013102B 3495 1 any of these plaintiffs 2 complain about. WATER PCB-SD0000066821 3 THE COURT: Yeah? So? 4 MR. WHITE: Well, it is not 5 relevant. 6 THE COURT: It is not relevant on 7 any issue in this case? 8 MR. WHITE: Yes, sir. Absolutely. 9 It is not relevant. 10 MR. STEWART: He wants to try it 11 in a vacuum. 12 MR. WHITE: Well, I've got to tell 13 you - 14 THE COURT: Here is what I'm going 15 to do. Ladies and gentlemen, 16 we will be in recess until 17 9:15 tomorrow morning. 18 (Jury not present.) 19 THE COURT: Gentlemen, y'all 20 follow me to Anniston. 21 (Adjournment at 4:00 p.m.) 22 23 013102B WATER PCB-SD0000066822