Document Yjvnpp24okNEEOQmpb749X2MV

1 .J IN THE CIRCUIT CDURT OF THE TWENTIETH JUDICIAL CIRCUIT ST. CLAIR COUNTY, ILLINOIS 4 FRANCES E. KENNER, ET AL., 5 Plaintiffs, ) 6 vs. ) Case Na. B0-L-370 7 MONSANTO COMPANY, B Defendant. 3 10 11 REPCPT OF PROCEEDINGS IS March SI, 13BB 13 14 Before the HONORABLE RICHARD P. GOLDENHERSH, CIRCUIT JUDGE 15 16 APPEARANCES: 17 MR. REX CARR and MR. JEROME SEIGFREID, Attorneys at IB Law, on Behalf of the Plaintiffs; and 13 MR. KENNETH HEINEMAN, MR. JOSEPH NASSIF, and MR. 50 JAMES C. CRAUEN, Attorneys at Law, on Eehalf of 51 the Defendant, Monsanto Company. SS 53 Kathleen Watson Brunsmann 54 Official Court Reporter INDEX OF WITNESSES 2 3 DR. RAYMOND SU5KIND W 4 Further Cross Examination By Mr. Carr......... 2 5 5 7 INDEX OF EXHIBITS a 9 E l l.n fe lO Ji 10 1703 nar,,kad 45 Admitted 45 11 1740-A 134 135 12 13 14 15 IB 17 10 19 20 21 22 23 24 2 1 BE IT REMEMBERED AND CERTIFIED, that heretofore on s to--w11, Friday, March 21, 1906 the matter as hereinbefore 3 set forth came on for hearing before the Honorable Richard 4 P. Goldenhersh, Circuit Judge, in and far the Twentieth 5 Judicial Circuit, and the following was had of record, to6 wit: 7 B DR. RAYMOND SUSKIND, 9 having previously been sworn upon his oath, 10 testified further as follows: 11 12 FURTHER CROSS EXAMINATION 13 BY MR. CARR: 14 Tammy, would you give the witness Exhibit 1779. 15 Dr. Suskind, the clerk has given you Plaintiffs' 1779 again, 16 which if you recall is the group exhibit of Dr. Nestmann's 17 reports, and I think we had finished Mr. Haney, and the next 10 one in that group is Mr. Hollis Martin. Would you turn to 19 that page, please. It's B34B450 on the bottom, right-hand 20 corner. 21 A Yes, I have it before me. 22 Q Mr. Martin has chief complaints of pain in the 23 back of the legs and the feet, and that his nerves are -- I 24 can't make that out -- shakey? Yes, it's repeated down in 3 1 the First paragraph there. Is that correct, sir? 2 A Yes, it looks like shakey, sir. 3 Q And his trouble started some three, Four years 4 ago. The pain, he says, may be so severe that it will make 5 him Fall down, does it not, sir? You seB that right in the 6 bottom oF the First paragraph? 7 A Yes, sir, I see that, sir. 8 Doctor, that kind aF pain that would be severe 9 enough to cause somebody to Fall down would be quite severe, 10 would it not? Have a pain in your leg -- 11 A It could be, sir, yBS. 12 Well, it would be, would it not? Pain in your 13 legs so bad that you couldn't stand up. 14 A I assume that that's correct, sir. 15 Q And, Doctor, he also reported that, I assume, when IB that occurs it takes about an hour For the pain in his legs 17 to disappear. 18 A This is what the report reads oF his complaints, 19 sir, yes. 20 H e 's been having that problem as oF that time For 21 three or Four years, according to his statement, sir. 22 A Well, that's in the First sentence. "His trouble 23 started three or Four years ago." The pain started in the back oF his leg, yes. 04 1 Doctor, this complaint of pain now that these men 2 have had here in 1955 and, of course, the same complaint of 3 pain, at least many of the ones that we went through here, 4 and that you saw in '79, these are all consistent symptoms, 5 aren't they, sir? 6 A Some of them do have pain, sir, yes, sir. 7 My question is, sir, these are all consistent 8 symptoms, aren't they, sir? 9 A They sound like they're the same symptoms. 10 Q My question is, sir, they are all consistent 11 symptoms, aren't they, sir? 12 A I don't know what you mean by consistent, sir. 13 Doctor, why didn't you say that before you gave me 14 all these various unresponsive answers. Consistent means 15 Jive with one another, or the same, or not contradictory, go 16 along the same way. You know what consistent means. 17 A No, I 'm not altogether sure in this case that they IB are consistent, sir. 19 Now, you do know what consistent means then, sir, 20 don't you, sir? 21 A Well, if you define it for me, I know what it 22 means, sir. 23 Q Doctor, you know what it means. You're older than 24 I am, I 'm sure you've used it many more times than I. 5 JP 1 You're well read, an educated man. Everyone knows what 2 consistent means. You're starting out this morning the same 3 way. Doctor, are these pains in your judgment, the symptoms 4 that they've had from '49 to '50, to '55, and up through 5 '79, are they the same kind of complaint? 6 8 They are pain, sir, so that would make them the 7 same -- 8 My question, sir, are they the same kind of 9 complaint, sir? 10 A It would appear that they are described similarly, 11 yes. 12 Is that a yes to my question, Doctor? 13 A But I 'm not sure about the consistency. 14 Q Doctor, is that a yes to my question? You keep 15 adding these things, then you say yes. When we read this 15 record to you a week from now, or a month from now, you'll 17 say that I was Just answering yes to that part that I said, 18 not yes to your question. So you understand why I insist 19 upon an answer to my question. Doctor, are these the same 20 kind of complaints, sir? 21 A I don't know, sir. 22 You don't know, sir? 23 A No, I do not know. Q Have they each complained of pains in their legs? 6 1 A They have complained oF pains in the lBgs, yes, 2 sir. 3 Have they each complained of those pains in the 4 legs, sir? 5 A Yes, sir. 6 Therefore, are they the same complaints -- kind of 7 complaints, sir, if each have made the same complaint, 8 they're the same kind of complaint, aren't they, sir? 9 A They are the same kinds of complaints, sir, but 10 I'm not sure that they are the same kinds of pain, sir. 11 Q Doctor, I didn't ask you that, did I? 12 A I thought you were, sir. That would mean 13 consistent. Then they would be consistent. 14 I said these symptoms are consistent, are they 15 not, sir, and you have -- 15 A I said I didn't know, sir. 17 Doctor, if they are the same complaints, thBy are 18 consistent if they're the same, aren't they, sir? 19 A If they are the same kinds ofpain. 20 Q If they are the samecomplaints, the complaints 21 are consistent, aren't they, sir? 22 A The complaints may be the same, but the pain may 23 not be consistent, sir. 24 Doctor, I'm asking you, if you'll listen to my 7 1 question, the complaints are consistent, aren't they, sir? 2 A I da not know, sir. 3 Doctor, are they making the same complaints? 4 A They are making the same kinds of complaints, yes. 5 Q And if they'rB making the same kinds of E complaints, they are consistent, aren't they, sir? 7 A I do not know, sir. B Q Doctor, doesn't -- isn't a complaint that's the 9 same as another complaint consistent with it? 10 A No, sir. 11 It isn't? 12 A No. 13 How do you define consistent, Doctor? 14 A If they are the same kind -- 15 Q How do you define consistent, Doctor? 16 A My definition in this instance of consistent -- 17 Not in this instance. In the world in general ! IB you define the word consistent? 19 HR. HEINEMAN : Objection, interrupted the answer, 20 your Honor. 21 THE COURT: Objection is overruled. 22 THE WITNESS: They are alike in quality and quantity. CBy Mr. Carr} And, Doctor, these -- alike means SO 1 A Yes, sir, I believe he is, sir. E Doctor, his reflexes, he has the hyperactive knee 3 and ankle Jerk, but the normally active biceps and triceps 4 jerks on the deep tendon reflex test; isn't that correct, 5 sir? 6 A That's correct, sir. 7 His abdominals and cremasteric, whatever that is 8 -- what is a cremasteric reflex, Doctor? 9 ft It's the reflex when you stroke the jaw area. 10 Q And that's one plus, and his abdominals are one 11 plus. IS A Right. 13 Q Doctor, he too has been given a diagnosis by Dr. 14 Nestmann that he has a moderately severe psychoneurosis; 15 isn't that correct, sir? IB A That's one of the diagnoses, sir, yes. 17 Q And again Mr. Ulright's -- Dr. Nestmann*s diagnosis 10 with respect to Mr. Wright was omitted from the report that 19 was submitted to the Workmen's Compensation Commission, was E0 it not, sir? El A No, sir. SS 0 Does thecompensationreport contain the diagnosis S3 moderately severe psychoneurosis? 54 A In this particularreport -- 21 1 Q Excuse me, Doctor, would you answer the question? 2 8 TherB is no diagnosis, sir. 3 Would you answer my question, sir? 4 A No, in this particular report there is no 5 diagnosis, sir. 6 Q Would you read the question that I asked the 7 witness? 8 9 (Question read.) 10 11 THE WITNESS: This report does not, sir. 12 Q CBy Hr. Carr) Is your answer with respect to the 13 report that was submitted to th Workmen's Compensation 14 Commission, Dr. Suskind? 15 A This report, sir. 16 Doctor, your use of the word "this," because one 17 can't see what you're pointing to, this report, you're 18 pointing to the report that was submitted to the Workmen's 19 Compensation Commission, are you not, sir? 20 A I am only referring to the report that you have 21 given me which you have said were the reports submitted to 22 the Workmen's Compensation. But I don't know that they're 23 the only reports that were submitted. 24 Doctor, did you understand that the Judge is the 22 1 Judge of whether or not this is submitted to the Workmen's 2 Compensation Commission, and that he has ruled and held that 3 it is a report that was submitted to the Workmen's 4 Compensaion Commission? 5 A It is, sir. 6 Do you understand that you may not overrule the 7 Judge, Dr. 5uskind, that you are obligated -- 8 MR. HEINEMAN: Your Honor, I object to this. Your 9 Honor, I object to this. 10 THE COURT: Gentlemen, wait a second. Let's 11 approach the bench. 12 13 CThe Following proceedings were had at the bench 14 out of the hearing of the Jury:) 15 16 MR. HEINEMAN: Again, your Honor -- 17 THE COURT: First of all, you better make speaking 18 objections up here. Those are the ones that are to be made 19 up here. 20 MR. HEINEMAN: All right. Your Honor, again this 21 procedure is patently unfair to the Defendants. You let Mr. 22 Carr sit there and make these speeches in Front of the Jury, 23 which are patently wrong, and everybody knows that they're 24 wrong, and then you make me come up here and don't let me S3 1 respond so that the Jury can hear my response. I object to s that. I think it's patently unfair, and I want to make that 3 clear for the record again noui. 4 Secondly, it's not within his province to correct 5 this witness. The Court has instructed the witness. Those 6 questions are improper. Those statements are improper. In 7 addition, the witness has said you are the one that told me 8 these are documents submitted to the Worker's Compensation. 9 That is absolutely accurate. He doesn't know whether they 10 are or not. He was told by the Court and by Mr. Carr 11 yesterday that they were submitted to the Worker's 18 Compensation Commission. He doesn't know that. 13 MR. CARR: But he is challenging it, Counsel. 14 MR. HEINEMAN: He isn't challenging it. 15 MR. CARR: He most certainly is. H e 's refusing to 16 answer the question. He is casting doubt on whether or not 17 these reports were submitted to the Worker's Comp, 18 MR. HEINEMAN: No, he didn't. 19 MR. CARR: He is saying that I Just have to take SO your word for it, when in fact the Court has ruled on it. SI You have given them to us, you have told us these were SS submitted to the commission. They're marked on the front of S3 them they were submitted to the Commission, and this witness S4 has no right to challenge that. He has no right to leave 24 i 1 the implication to the Jury that thase were somehow or other 2 Just things that I said were submitted to the Commission, 3 because I have no idea what was submitted to the Commission. 4 I have relied on what you have said, and the Court has 5 relied upon what you havB said. 6 MR. HEINEMAN: No, you have said it. 7 MR. CARR: The Court has ruled that they were B submitted to the Commission. 9 riR. HE INEMAN: The Court has ruled -- 10 MR. CARR: This witness does not have the right to 11 contradict the Court, and neither do you, Counsel. You can 12 put it in the record that you don't agree with the Court, 13 but you haven't got the right to contradict the Court. 14 MR. HEINEMAN: Now Just one minute, Mr. Carr. 15 This witness was saying tha he doesn't know if these are the IE only records that were submitted to the Worker's Comp 17 Commission. He said that. Hb doesn't -- he has no IB knowledge -- 19 MR. CARR: That has nothing to do with it. I 20 didn't ask him whether or not they wBre the only records. 21 MR. HEINEMAN: Do you mind if I say something 22 here? He has no knowledge as to whether or not these things 23 were submitted to the Commission. All he knows is he as 24 told that. And he has said -- Mr. Carr asked him when you 25 1 say this record, what are you referring to. He said I'm a referring to this document that you said was submitted to 3 the Commission. That's what he said. That's a perfectly 4 reasonable, honest response to the question. 5 THE COURT: First of all, I have found that those 6 are the records submitted to the Comp Commission. They have 7 been accepted on that basis. They've been used on that a basis. 9 Number two, his comment about any other records is 10 not at all responsive to the question that was asked of him. 11 It follows a long pattern that this witness has had of ia interjecting matters that are unresponsive to the questions 13 that are asked of him. 14 Number three, I think it is proper impeachment of 15 the witness to question him as to his knowledge that his IB going against the dictate, or an order, or a request of thB 17 Court, under the circumstances what Nr. Carr did was not 10 improper. If it were improper I would order it stopped, and 19 I would correct it. I heard what was said. I know what has eo happened in this matter. What he did was not improper. ai The witness' response as to the other, you know, ea not knowing whether anything else was submitted, is not at 03 all responsive to the question. There's a long pattern that 34 this witness has had of making non-responsive answers to 26 1 questions oF Counsel. I think that covers all the grounds 2 that you had. 3 Number three -- number three, I have ordered that 4 all these types of arguments be made up here For reasons 1 5 have already made in the record, and I think that despite 6 the actions of this witness in other matters that have gone 7 on, that these arguments are made at the bench has made the B proceedings in Front of the Jury a lot smoother, a lot less 9 abrasive, and has generally helped in the conduct of this 10 trial. 11 From my witnessing of how things have proceeded 12 since I have put Forth this order, the motions are to be 13 argued at the bench. I think it was a wise move, and I am 14 going to continue to enforce that, enforce it strictly. I 15 think it has definitely helped. In the progress of this 16 trial I think it has helped. I think that it's something 17 that I should continue, and I will probably adopt it in IB other trials in the future. I think it has proved to have 19 worked out very well. I think that covers everything. 20 MR. HEINEMAN: There's one more thing, your Honor. 21 I would like to have a continuing abjection. I 'm not sure 22 if the Court gave me a continuing objection yesterday to any 23 questioning of this witness on this Plaintiffs' Exhibit 24 1 7 8 2 . 27 1 THE COURT: I think I did, but I will again. s MR. HEINEMAN: Without it being admitted into 3 evidence on the basis that this witness has never seen the 4 document before, he didn't prepare it, he knows about it, 5 and, therefore, it can't be usBd as impeachment of him. So 6 it has to be used-- it has to be put in evidence before he 7 can be questioned about it. B THE COURT: I think you asked for one yesterday. 9 I gave it, but I will give it again in case it wasn't from 10 yesterday. 11 12 CThe following proceedings were had in the 13 presence and hearing of the Jury:) 14 15 CBy Hr. Carr) Dr. Suskind, by the response that 16 you gave to me, you have implied that there may be other 17 reports of Dr. Nestmann that have been submitted to the IB Worker's Compensation Commission in addition to or different 19 from the ones that are contained in Plaintiff's Exhibit 20 17B2. Do you have any knowledge that any other reports were 21 submitted to the Commission other than those reports that 22 are contained in 17B27 23 A I know at least one, sir. 24 Do you have any knowledge, sir -- you do have SB 1 knowledge of o h b , sir? s A Yes. 3 Q What one is that? 4 A That's an a Mr. CecilCunningham. S Doctor, Cecil- Cunningham's report is included in 6 bath groups. It's included in 1779 and it's included in 7 17BS. Now whBre is the report -- and these are the two Q reports that we have been given by Monsanto. Have you seen S soma other report, sir, a third report? 10 A Well, I'm not altogether sure about the first onB. 11 If it's the one of June Bth, which was a date of an 15 examination. The date of an examination of Mr. Cunningham 13 on Juns Bth in which -- and I havB read this recently -- he 14 indisted that he has a moderately severe psychoneurosis. 15 Q Doctor, is the report of June Bth that you're IB talking about, sir -- 17 A Yes. IB Q -- on Cecil Cunningham? 19 A Ybs . E0 All right. Now, Doctor, turn to the exhibit on El Cecil Cunningham, that is part of 178S, which has been EE submitted to the Commission, and see if you see there, sir, S3 the diagnosis of psychoneurosis. E4 A I don't see it in this copy, sir. 29 1 Q All right. Now, Doctor, turn to Exhibit 1779, the 2 one that we were looking at, sir, that is the group exhibit 3 that we started to go through, and wb want through Nr. Cecil 4 Cunningham, and see, sir, if you note that in that report, 5 bearing the same datB, June B, 1955, that in that report 6 there is a diagnosis of moderately severe or severe 7 psychoneurosis, Do you s s b that, sir? 8 A I don't see a date on this one, sir. The one I 'm 8 referring to had a definite date, June B, 1955. 10 Well, Doctor, if you will compare the two reports 11 you will s s b that they are exactly the same, word for word, 12 with the exception that the diagnosis of moderately severs 13 psycfionBurosis is left out; isn't that correct, sir? 14 A No, sir. 15 Q Are theyexactly thesamB, sir? 18 A No, sir. 17 Q What is the difference between the one in 1779 and IB the one that was given to thB Commission, 1702? 19 A The difference is that the one in 1779 Dr. 20 Nestmann says my diagnoses on this man are oral leukoplakia, 21 left testicular atrophy, moderately severe or severe 22 psychoneurosis. In thB onB that you have given me in 17B2 23 there is no diagnosis at all. 24 Certainly. I'll acceptthat, Doctor. 30 1 A That's ths real difference. a Q The one that was submitted tc the Commission does 3 not include the diagnosis of this oral leukoplBkia, left 4 testicular atrophy, or moderately severe or severe 5 psychonBurosiS; is that correct, sir? 6 A That's correct, sir. 7 Q So the Commission did not know that this man had B thBse three problems insofar as you can tell from that 9 report; isn't that correct, sir? 10 A No, sir. No, sir. 11 Does that report tell the Commission that he had 12 the problems of severe psychoneurosis? 13 A No, sir. t v 14 It does tell the Commission, if you read ths 15 report, that h e 's got thB oral- leukoplakia, doesn't it, sir? 16 If you read the full report. 17 A In 1779, yes, sir. IB If you read the full repot, it does tell thB 19 Commission that he has left testicular atrophy, doesn't it, 20 sir? If you read the full report. The second paragraph, 21 second page of Cecil Cunningham's report, sir, the last line 22 in the second paragraph, where it says ''the left testis is 23 atrophic," do you see that, sir? 24 A Are you referring to 1779, sir? 31 1 Q I am, indeed. a A Where is it now, sir? 3 And it is in 17B2 in exactly the samB language, is 4 it net, sir? 5 A Where is the quotation, sir? I'm sorry, I didn't G ,get it. 7 Q Were you listening to ms, Dr. Suskind? B A Ye s , I am listening. 5 Q Were you at the time that I told you uihere it was, 10 sir? 11 A I was trying to, sir, yes. 12 Doctor, I told you it was on the second page, 13 second paragraph, last line, both in the 17B2 and in the 14 1779 exhibit. 15 A Yes, sir, I see it, sir. IS Q It is in both exhibits, isn't it, sir? 17 A It is in both exhibits. IB So the Industrial Commission, the Workmen's 19 Compensation, was told that he had this atrophic testical, 20 was it not, sir? 21 A Yes, sir. 22 Q But the diagnosis of left testicular atrophy was 23 not there, was it, sir? The final diagnosis. 24 A In this report, no, sir. 32 X So ths Commission would havB to read that rsport, 2 1782, and make its own diagnosis that there was testicular 3 atrophy, would thBy not? 4 A No, sir. No, sir. 5 They wouldn't, sir? 6 A No, sir, 7 You think thB description is sufficient? 0 A No, but there are other ways oF transmitting it, 9 0 Doctor, you understand my question, though -- 10 A Yb s , sir. 11 Q -- relating to this -- 12 A Yes. 13 G -- report? 14 A Yes, 15 There arB other ways of transmitting it, indeed. IB By testimony, by letter from lawyers, by all kinds of 17 things. But, Doctor, I'm examining you with regard to these 10 reports and the contents of these reports. You surely 19 understand that, don't you, sir? 20 A Yes, sir. 21 Now, Doctor, with regard to the important 22 diagnosis that I'm asking you about, the Industrial 1 23 Commission, the UJorker's Compensation Commission was not 24 told that in Dr. Nestmann's opinion this man was modBratey 33 1 severB or severe psychoneurotic; isn't that correct, sir? 2 A No, sir. 3 Q That isn't correct? 4 A It is correct. 5 It is correct. They wBrBn't told that? G A^ In ths report that I have, in 17B2 -- 7 Q Excuse me, Doctor, is it correct or not, they were a not told that his diagnosis tuas a moderately severe or 9 severe psychoneurosis? 10 A From this report they weren't told, yes, sir. 11 Q That's what I'm asking you about, Doctor. 12 A From this report there's no indication of any 13 diagnosis, right, sir. 14 Q That diagnosis is omitted, is it not, sir? 15 A All the diagnoses areomitted, sir. 16 Excuse me, Doctor, that diagnosis is omitted, is 17 it not, sir? IB A Yes, sir. Yes, sir. 19 Q And, Doctor, are there any other reports of which 20 you are aware that deal with Cecil Cunningham that was 21 submitted to the Commission other than the one that's in 22 Exhibit 17B2? 23 A Yes, sir. 24 Q And where is that report, sir? 34 1 ft Well, right in 178E, sir. 3 There is another report? 3 ft Yes, sir. 4 Q Another of Dr. Nestmann's in 17BE? i 5 A Yes, sir. 6 Q Would you point it out to me, please, sir. 7 Doctor, what you are doing now, I asked you for a report, B did I not, sir? 9 A Well, this is a report, sir. 10 Q Excuse ms. Doctor, did I ask you For a report of 11 D r . Nestmann? Did I ask you where there was another report IE of Dr. Nestmann in this exhibit? 13 A This is a report of Dr. Nestmann, sir. 14 Would you answer my question, please, Doctor? 15 A Yes. 16 Q Yo u 'vb showed me a page that is the Monsanto's 17 lawyers summary of Dr. Nestmann's testimony, have you not, IB sir? 19 A I don't believe that's a Monsanto -- E0 Indeed it is a Monsanto. You see that, sir? El Brief on behalf of Monsanto Chemical Company. Do you see EE that? This is part of their brief, Doctor. Do you E3 understand that? E4 A Yas, sir. 35 1 Q All right. Now what you are reading there, 5 Doctor, what you dirBotBd my attention to, Doctor, was a 3 summary of a lawyer for Monsanto of Dr. Nestmann's 4 testimony; isn't that correct, sir? 5 A No, I don't know that, sir. 6 Doctor, what does it say at the top of the page? 7 A It doesn't say that it's a lawyer's testimony. B Q What does it say, sir, at the top of the page? 3 A It says name, Cecil Cunningham, claim number, 10 summary of Dr. Nestmann's testimony -- 11 Q Thank you, Doctor. 15 A -- June B, 1355. 13 All right, Doctor. That's enough, doctor. Does 14 it say that this is Dr. Nestmann's report, or doBs it say 15 this is a summary of Dr. Nestmann's testimony? 16 A It's a report on Dr. Nestmann's testimony. 17 Yes, indeed, Doctor. Now I asked you for a report 18 of Dr, Nestmann's -- a report of Dr. Nestmann, did I not, 13 sir? 50 A Well, this is a report, I would say, of Dr. 51 Nestmann. It's Dr. Nestmann's testimony, sir. 55 Now, Doctor, this is what a lawyer is summarizing, 23 and you know it. 54 A No, I do not know it, sir. I didn't even realize B 1 the same, doesn't it, sir? E A Alike in quality and quantity would be the same, 3 yes, if they are alike. 4 Q And, Doctor, they are making the same kind if 5 complaints, aren't they, sir? 6 A No. 7 Well, Doctor, were they complaining of pain in '49 B and '50 in their legs? 9 A Yes, they were. Some of them were, some of them 10 wBren't . 11 Did you describe those complaints as, quote, pain IE in the legs? 13 A Yes. 14 Now did they make -- did you describe the pains in 15 the same way in '53, that is pain in the legs? 16 A We described them qualitatively, the kinds of pain 17 they had. 10 Q Doctor, did they describe them the same way as 19 pains in the legs? SO A We started out by saying they had pains in the SI legs, and then we qualifiedthem, sir. SS Q Doctor, my questionis did you describe the pains S3 as pain in the legs? S4 A Initially, yes, sir. 9 1 HR. HEINEMAN: AskBd and answered three times. S THE COURT: Overruled. 3 CBy Hr. Carr3 Doctor, did you ask them the 4 question do they have pain in *79 in their legs, muscle 5 pains? 6 A Yes, we did, sir. 7 You didn't ask for any quality or any quantity, B you Just said do you have pains; isn't that right, sir? 9 A We did ask about quality and the physicians -- 10 Doctor, my question is, sir, in the questionnaire 11 that you gave, where they checked current muscle pains, all ie you asked was did they have pains. 13 A Only in that questionnaire, sir, yes. 14 ' And, Doctor, they described it as pains, did they 15 not? 16 A In that questionnaire, yes. 17 So in *49, in *50, '53 and *79 they have said they ie have pains in the legs; isn't that right, sir? 19 A Some of them did, sir. 50 And, Doctor, they're making the same complaint, 51 quote, Df pains in the legs in these various years, aren't 55 they, sir? S3 A They're making the same complaint, sir. 54 Thank you, Doctor. Now, Doctor,^this man also I 10 1 says that his nerves have been shakey for somB three years, a doesn't he, sir? 3 A Yes, sir. 4 Q And that is a consistent complaint that others 5 before him, many, many others before him have made; isn't 6 that correct, sir? 7 A I don't know about the many, sir, but some have. Q Wall, Doctor, you know that the majority of the 9 reports that w e 've read thus far, they complain of 10 nervousness, don't they, sir? 11 A Some of ,them have, sir. 15 And in your s c b Ib af -- in '53 in your scale of 13 number cf complaints, that's about -- here, that's number 14 17, that's the fourth most complaint, even including the 15 chloracne, isn't it, sir? Aches and pains is first, fatigue IE is second, and nervousness and irritability is third in the 17 non-cutaneous clinical symptoms; isn't that correct, sir? 19 A Would you repeat the question,please. 13 50 \ CQuestion read.} 51 55 Q CBy nr. Carr} Let me restate it, Doctor. S3 A Yes, sir, 54 Q Nervousness and irritability is the fourth most 11 1 frequent clinical symptom including cutaneous lesions; 2 isn't that correct, sir? If you'll turn to page 5 of 3 Exhibit -- 4 A That is true, sir. 5 Q And, Doctor, of the non-cutaneous clinical 6 symptoms it is the third most frequent symptom, isn't it, 7 sir? e A Yes, sir. s And, Doctor, interms ofnumbers, approximately 50 10 percent of thB people that you saw in '53 had that clinical li symptom, didn't they, sir? 12 A Yes, sir. 13 G Doctor, this man also states that his sexual 14 desirB, his libido, has decreased from two or three times a 15 week to only once a week, has he not, sir? But he states 16 that he has no difficulty in maintaining thB erBotion once 17 it occurs; isn't that correct, sir? IB A That's what he states, sir. That's what the 19 record states. 20 And, Doctor, his reflexes are all in the range of HI -- deep tendon reflexes are all in the range of two plus, 22 which would be considered a normally average reflex; isn't 23 that correct, sir? 24 A Yes, sir. 12 1 Q Doctor, this gentleman too had a diagnosis of s moderate degree of psychoneurosis, did ha not, sir? 3 A Dr. Nestmann records that, sir, yes. 4 And, Doctor, I think we've previously established 5 that insofar as Martin is concerned, the report that's in ) 6 Exhibit 17B2 does not include the diagnosis of 7 psychonBurosis for Mr, Martin, does it, sir? You don't havB B that exhibit? 9 A I don't have it, so I can't verify it, sir. 10 You couldn't remember the man's name in any event. 11 Last night we had an opportunity to put the names on these IS various tabs, and if you would turn to -- I think w e 'd be 13 better off if we keep it together, if we can do this. 14 A I 'll be careful. 15 Q The report referring to Hollis Martin that was IB submited to ths Workmen's Compensation Commission in West 17 Uirginia doesn't have the diagnosis of moderate degree of IB psychoneurosis, does it, sir, in regard to Mr. Martin? 19 A There is no diagnosis, sir. SO Would you answer my question, sir, please. 21 MR. HEINEMAN: Objection. That is responsive to 25 the question. S3 THE COURT: Objection is overruled. f 24 THE WITNESS: Well, I indicated there is no \ \ 13 1 diagnosis at all. 2 CBy Mr. Carr) Iunderstand you said that, Doctor. 3 A Yes, 4 But I'd like For you to have an answer to my 5 question directly so that I may use it some day, if I 6 need to, to prove uihat you said directly and Fully, 7 concisely and completely. So would you answer my question e in the way I phrased it, sir. 9 A Would you repeat the question, please. 10 11 (Question read.) 12 13 THE WITNESS: No, it doesn't have that speciFic. 14 Q (By hr. Carr) All right. Now, Doctor, turning to 15 the next person, Mr, Richardson, in Exhibit 1779, his report 15 is datBd thB 14th or H4th oF 1955, and his chieF complaints 17 were at that time leg, arms and chest ache all the time, and 18 he thinks he has a sugar lack; is that correct, sir? 19 A I assume that that's the word, sir. 20 Q Doctor, this report calls him the First man who 21 worked in the building Following the explosion. I think you 22 said yesterday there was no explosion, it was a reaction. 23 A A run-away reaction, sir. 24 Q And was not an explosion. 14 1 ft No, sir, not an explosion. 2 So, if Dr. NBstmann characterized it as an 3 explosion that would he incorrect? 4 ft Well, I think that people have called it an 5 explosion because there was a suddsn burst of* material 6 coming out of the autoclave. I think that's why it was 7 callBd an explosion. But it was simply a run-auiay reaction. S A valve blew. 3 A valve blew and then the material came out the 10 valve within the building, and out the stack outside thB 11 building? 12 A Yes, to some degree, sir, yes. 13 Q So it wasn't an explosion at all? \ 14 ft Well, it was characterized by soma people as an 15 explosion. 16 Q I understand that, Doctor. You said that. 17 A But from a technical standpoint it was a sudden IB opsning of a valve, due to excessive pressure and 19 temperature, and that is a run-away reaction. 50 Q All right, Doctor, that wouldn't be then a loud 21 bang, or a big loud noise like a bomb, or anything like 25 that? 23 A No, I don't think so. 54 The valve opened? 15 1 A Right. a And the material came cut, and it was called an 3 explosion, although, in fact, it was not an explosion? 4 A Right. 5 Q Nothing like you would get in a war or a bomb or 6 something blowing up? 7 A Correct; correct. B Is that correct, sir? 3 A That's correct. 10 Q Nothing, like that? 11 A That's correct. 15 Q All right, I guess it wouldn't bB anything that 13 would, if someone was in there, they wouldn't think there 14 was a bomb going off or anything like that? 15 A I don't beliBve so, sir. 16 Q All right. In any event, Doctor, according to 17 this report, Mr. Richardson started having these symptoms IB sometime after this reaction; is that correct, sir? 19 A It says he had the symptoms sometime later, yes.| 20 Doctor, insofar as his reactions are concerned, he SI has four plus knee jerks, which an a scale for activity 25 would be considered hyperactive, and his other reflexes, 23 deep tendon reflexes there would be two plus or within the 24 normally active range; is that correct, sir? 16 1 A Yb s . 2 Q He too had a diagnosis made by Dr. Nestmann this 3 time of a mild psychoneurosis, did he not, sir? 4 A Yes, sir. 5 Q Doctor, if you'd turn to Exhibit 1728, that S diagnosis oF mild psychoneurosis is not on the report that 7 was submitted to the Workmen's Compensation Commission, is Q it, sir? 9 A This is fir.Richardson? 10 Q Well, Doctor, I think you testified yesterday, you 11 looked at all of them, and that diagnosis uiasnot on any of 15 them; isn't that correct, sir? 13 A I didn't say anything about these -- these records 14 because we didn't havs time, sir. 15 Q Well, Doctor, I asked you to look at the records IB yesterday, and to tell me whether or not the diagnosis of 17 psychoneurosis appeared an any of those reports of Dr. 18 Nestmann. Don't you recall that? That was the very last 19 thing we were doing at the close of thB day. The very last 20 answer was that none of those reports contained thB 21 diagnosis of psychaneurosis. 22 A Yes. 23 Q You do recall that, don't you, sir? t 24 A I believe so. 17 1 Q All right. And Mr, Richardson is one of those E that you looked at yesterday, and his doBS not -- his record 3 that was submitted to the Workmen's Compensation Commission 4 does not contain the diagnosis of mild psychoneurosis, does 5 it, sir? 6 A No. And it's similar to the previous report we 7 discussed. 8 Q Doctor, the next person in Exhibit 1779 is Lowell 9 Wright, and his is dated August 3rd, '55; is that correct, 10 sir? 11 A I believB so. IS Q His chief complaints are aches and pains in the 13 joints, legs go to sleep a lot, and headaches often, which 14 havB been termed sinus Headaches; correct, sir? 15 A Yes, sir. 15 Q Hb states to Dr, -- according to Dr. Nestmann's 17 report that Hb 's had this trouble since '51, and he worked IB in the building two years after the explosion, and that 19 would make it '51, wouldn't it, sir? SO A I assume that that's correct,sir. SI Dr. Nestmann here says that the building exploded. ss He must have really thought there was a bomb or something go S3 off there; is that right, sir? 24 A Well, I don't beliBve he knew what the situation IQ 1 was, sir. 2 Q Apparently not, if he thought the building 3 exploded. The building didn't explode at all, did it, sir? 1 Just this valve. 5 A No, sir. B Q Sir? 7 A No. 0 , Is that right, sir? 9 A No, it did not, sir. 10 It is right that the building did not explode? 11 A That's quite true, sir. IS Q All right. Doctor, this man reported to Dr. 13 Nestmann that hB had achBs and pains in thB Joints that are 14 not as troublesome now as they mere when he marked in the IB plant. He had also bBfore, before that, he had also 16 apparently been told by Dr. Halloran that he had a nerve or 17 a pulse dead in the foot or leg. There mould be quite a 10 difference between a nerve and a pulse, wouldn't there, sir? 19 A That'sthe man's description, sir. 20 Q But there is quite a difference between a nerve 21 and a pulse, obviously, is there not, sir? 22 A Yes, I believe so. 23 Q Doctor, his complaints, he says he noticed a 24 throbbing in his legs, his legs tire easily, about the same 19 1 when it started some three years before; is that correct, sir? 3 A Yes, that's what the record reads, sir. 4 Q And, Doctor, he states that he has less problems 5 when h e 's off work with his leg, but he notices pain on the 6 right when he squats, and his legs have been going to sleep 7 a lot since the onset of the rash, squatting will do it, 8 sitting for any length of tima will do it; is that correct, 9 sir? 10 A Those are the recorded complaints, sir, yes, sir. 11 Q Doctor, it also says here his headaches have been IE present since he started to work at Monsanto. Well, that 13 would predate the run-away reaction, would it not, sir? 14 A I don't know when he started -- IS Q I don't know either. IS A I don't knew when ha started to work, sir. 17 Q It doesn't say when he started to work. So it 18 might have been, might not have been. Doctor, he stated in 19 the System Review section that his libido at one time was E0 depressed, worried him a great deal, was unable to get an El erection. It would appear from reading this description EE that while the libido was depressed at one time, it would no S3 longer be considered depressed; would that be correct, sir? 24 He's talking about in the past tense, is he not, sir? 36 1 that. s Q You didn't, did you? 3 A No, sir. 4 Q Now you do realize it? 5 A I'm not even sure that I d o . I don't know that 6 this is a -- 7 Doctor, I want you to assume that that is a 0 lawyer's summary of Dr. Nestmann's testimony, since you 9 don't know it. Will you assume that, please, sir? 10 A I am assuming that, sir. 11 Q IF it is a summary, it's not the doctor's report, 12 is it, sir? 13 MR. HEINENAN: Objection, your Honor. Nay Counsel 14 approach the bench? 15 THE COURT: Yes. Yes, you may. IB 17 CThe Following proceedings uera had at the bench 10 out oF thB presence and hearing oF the jury:} 19 20 NR. HEINENAN: This is a, iF we 're talking about 21 the right thing here, what the doctor is reFerring to is a 22 direct quote From the testimony. 23 THE COURT: Yes, but that's not a report. That's 24 what he was asked. 37 1 MR. HEINEMAN: Hb was asked is that a lawyer's 2 summary? 3 THE COURT: He said yes. * MR. HEINEMAN: Uhat he's got hBre, question, 5 quote. It's a quotation. 6 THE COURT: Yes. 7 MR. HEINEMAN: It's a quotation from his 8 testimony. 8 THE COURT: Yes, as part of a summary of Dr. 10 Nestmann's testimony, 11 MR. HEINEMAN: That's right. i 12 THE COURT: Right. It's not a report. 13 MR. HEINEMAN: UJhat he is saying is that this -- 14 uihat this witness is saying is that this is clearly a report 15 of what Dr. Nestmann said. 16 MR. CARR: No question about that. 17 THE COURT: But that's not a report. 10 MR. CARR: It's not Dr. Nestmann's report. 19 THE COURT: You've been in practice a long time, 20 you know what a report is and you know what testimony is. 21 That's the point he's trying to make. That's all, we all 22 know that. You knew that your first year out of law school. 23 MR. HEINEMAN: Uhat h e 's saying is there's nothing 24 there but thB lawyer's summary. That's what he askBd the 38 1 witness. That *s not true. What there is is a direct a quotation from what the doctor testified to in Front of the 3 Worker's Compensation Commission. That's not just a 4 summary. 5 THE COURT: I, have seen a lot of instances, and 6 I 've done, and I'm surB you have too, where part of a 7 summary of something includes a quotation, a small portion B that you want to use in the exact language for soma reason, 3 usually for clearing of the materials or some other reason. 10 The fact that it contains a quotation is not a report. 11 It's a summary, number one. Number two, this is 15 conjecture. Whether it is a summary, or whether it's a 13 summary and a quotation, it is testimony and not a report. 14 W e 're going down a sidB alley. I would overrule your 15 objection on this basis, I think we should get back -- 16 MR. HEINEMAN: This is thB very reason why it's 17 improper for the witness to be questioned about something 18 that's not in evidence that the jury can look at for 13 themselves, because the question implies that all you have 50 in here is lawyer's language, and that is a direct quote 51 from the doctor. That's what's wrong with the implication 55 that Mr. Carr made. I object to it. 53 THE COURT: Absolutely not. Overruled. 54 39 1 CThe following proceedings were had in the s presence and hearing of the jury:) 3 4 Q CBy Hr. Carr) Doctor, you are and have been aware 5 at least since yesterday that Dr. Nestmann did testify at 6 the hearing with regard to Cecil Cunningham; isn't that 7 correct, sir? B A Yes, sir. 5 Q And, Doctor, you knew that when I started asking 10 you questions about Dr. Nestmann's reports, did you not, 11 sir? IS A Yes, sir. 13 Now, my question, sir, disregard for the time 14 being, we'll get to it, disregard for the time being, sir, 15 Dr. Nestmann's testimony, IB A Okay, 1 will. 17 Will you do that, sir? Hy question to you, sir, IS was there ever a report of D r , Nestmann that was submitted IS to the Commission in which it was stated that Dr. Nestmann's SO diagnosis was he had a moderately severe or severe SI psychonBurosis? ss A I really don'tknow, sir. S3 Well, then, Doctor, thB only knowledge that you E4 have of reports that were submitted to the Commission is 40 X that rapart which is contained in Plaintiffs * Exhibit 17B2; 2 isn't that correct, sir? 3 A No. 4 Q What other knowledge da you have of Dr. Nestmann's 5 reports that was submitted to the Commission other than that 6 one that's contained in that exhibit? 7 A UBry frankly, sir, I am not -- I don't know G whether or not the report in 1779 wasn't submitted. You 9 know I really don't know that it wasn't. 10 Doctor, my question to you, sir, is what knowledge 11 do you have that a report was submitted to the Commission 12 other than the one that is in 1782? You understand my 13 question? Please answer my question, sir. If you know that 14 1773 was submitted to the Commission, if you know that Dr. 15 Nestmann's report as it regards Cecil Cunningham was in fact 16 submitted to the Commission, that's fine, and I 'll question 17 you on that and w e 'll discover where it is in the 18 Commission's record. W e 'll ask Monsanto to produce that 19 particular copy. 20 A Okay. 21 But at this point in time, Doctor, the only one 22 that Monsanto has produced that was submitted to thB 23 Commission is the one that is in 1782. Now do you know of 24 some other report that Monsanto has not produced to us that 41 1 uias submitted to thB Commission other than the one in 17B2? a A No, I do not know, sir. 3 Q All right. And the one that is in 17B2 does not 4 contain the diagnosis of moderately severe or severe 5 psychonsurosis, does it, sir? E A In this particular copy, it does not, sir. 7 Q Doctor, is there any copy in which it does appear, B sir? 9 A I don't know, sir. 10 Now, Doctor, these various reports that w e 've been 11 through, we have completed the Exhibit 1779, have we net, 12 sir? 13 A I don't know. Have we? 14 Q Doctor, do you have knowledge of any report that 15 was submitted to the Commission in which the diagnosis of 16 Dr. Nestmann was severe or moderate ar mild psychoneurosis, 17 sir? IB A Yes. 19 Q And what report is that, sir? 20 A It's a report of the testimony of Dr, Nestmann -- 21 Doctor, you're talking about testimony. Do you 22 understand what thB word ''report" means? 23 A There's a report of the testimony, sir. 24 Q Doctor, do you understand? I 'm not asking about a 42 1 report of testimony. 2 A Yes, sir. 3 You know that I 'm asking you abot a Dr. Nestmann 4 report, don't you, sir, a written report as we've Just gonB 5 through, sir? 6 A No, I don't understand that, sir, because report 7 to me -- e Q Doctor, we went through that whBn we talked about a the summary of the lawyer's summary of Dr. Nestmann's 10 testimony, did wa not? il A Right. 12 Doctor, you da know that a report of a doctor is 13 as is in 1779, or those documents in 17B2 that bear his name 14 and his signature. You understand that. That is a doctor's 15 report. You do know that, don't you, sir? 1E A No, sir. 17 Q You don't know that? 18 A No, sir. 19 Q All right,Doctor. If you don't know that then 20 we'll have to pass to the next subject. Do you know of any 21 documents, sir, signed by Dr. Nestmann that were submitted 22 to thB Commission with regard to any of these people in 23 which the diagnosis of psychoneurosis was contained, sir? 24 A Yes, sir, in a report. In a report. I regard 43 1 that as a report. 2 Doctor, did you hear my question? It included the 3 ujord signed by Dr. Nestmann. 4 A Well, I would assume that the testimony that he 5 gave -- 6 MR. CARR: Your Honor, this witness insists upon 7 playing games. B THE WITNESS: -- would be signed too. No, I 'm 9 not. 10 MR. CARR: He knows the difference between 11 testimony. 12 CBy Mr. Carr) Doctor, what makes you think that 13 Or. Nestmann signed the testimony? 14 A He could sign a transcript. 15 Q Who told you that? 15 A I don't know. He could have, sir. 17 Q Doctor, now you're simply speculating, and Dr. 18 Nestmann did not sign his testimony. A court reporter 19 certifies that it's correct. Have you ever signed your 20 testimony in court, sir? 21 A Not in court, but I havB certainly -- 22 Q Did you sign your testimony in Worker's 23 Compensation? 24 A I 've signed depositions, sir. 44 1 G Sur, you have. Did you sign your transcript of s testimony before the Worker's Compensation Commission in 3 this very matter, Dr# Suskind? 4 A I don't recall, sir. 5 Doctor, back to ths question that I asked you, do 6 you know of any reports signed by Dr. Nestmann, submitted to 7 the Commission in which he states that any of these people 8 had psychoneurosis? 8 A If you mBan doctors' letters -- 10 You heard what I said. 11 A Doctors' letters, no, I don't know of any other. ie Doctor, I don't mean doctors' letters, I said 13 report. I didn't say letter. I said any report signed by 14 Dr. Nestmann that was submitted to the Commission in which 15 he says there's a psychoneurosis. 15 A Yes, sir, I do. 17 G What is that, sir? 18 A That's a report an Nr. Willard. 18 Yes, Doctor, I have it in my hand. 80 A Yes, sir. SI Q There is a report with regard to Nr. EH isn't there, sir? S3 A Yes, sir. flay 3rd, 1953, sir. S4 Q Yes, Doctor. I 'd like to have it marked as a 45 1 Plaintiffs' exhibit. s 3 (Plaintiffs* Exhibit 1783 was marked for 4 identification by thB court reporter.!) 5 6 (By Mr. Carr) I hand you now what's been marked 7 Plaintiffs' Exhibit 1783 and ask you if you recognize that e as the report signed by Dr. Nestmanh in 1953? You do 9 recognize that. It has his signature, does it not? 10 A Yes, sir. 11 Q It has the state compensation stamp on it. is A Yes, it does. i 13 MR. CARR: I offer that into evidence, if it 14 please the Court. 15 THE COURT: Any abjections? IB MR. HEINEMAN: Your Honor, we make the same record 17 we mads before with respect to documents of this kind. 18 THE COURT: Fine. 19 MR. HEINEMAN: I think the Court has already SO ruled. 21 THE COURT: I will incorporate arguments of both E2 Counsel. It's admitted over objection. S3 MR. CARR: I ask leave'to pass it to the jury. 24 THE COURT: Yes you may. 46 X CBy Mr. Carr} Doctor, this raport is in relatively small print and it's somewhat difficult to read. 3 Have you beBn given a report that you have with you that 4 would be blown up that would have better -- 5 A No, I don't havB anything of that nature with me, e sir. 7 Q You were aware of this report, weren't you, sir? s A I was aware of this report, yes, sir. 9 Q You've read it, haven't you, sir? 10 A I believe I havB, yes, sir. 11 Yes. You read it probably just last night, didn't IS you? 13 A No, sir. 14 All right, Doctor, that's notimportant. 15 A I read it many days ago, sir. 16 This report is dated May 4, 1353, and it was a 17 report that was sent directly to the Commission; is that ia correct, sir? 19 A It was repuBstad by the Commission, sir, yes, sir. 0 MR. CARR; Your Honor, would you direct the 1 witness to respond to my question and not tell me whether or 2 not it was requested by the Commission, 3 THE COURT: Doctor, please respond to the 24 question. "s. 47 1 THE WITNESS: Yes, sir. 2 THE COURT: I don't think that that was a 3 responsive answer. Listen to the question again and please 4 respond to the question. 5 THE WITNESS: Yes, sir. 6 THE COURT: I 'm sorry, I didn't hear what you 7 said, sir. a THE WITNESS: Sorry. I said yes, it was sent to 9 the Commission. This is in answer to his question, sir. 10 THE COURT: Thank you. 11 D CBy Mr. Carr) Doctor, in regard to this report, 12 with respect to Hr. Willard, the Commission did ask Dr. 13 Nestmann to examine Mr. Willard, did they not, sir? 14 A I believe they did. IS Yes. And after this report was submitted some two 16 to three years after this report was submitted Monsanto 17 hired Dr. Nestmann to examine some 25 others, did they not, IB sir? 19 A I don't know whether they hired him or not. t 20 You don't know that, sir? 21 A No, sir, 22 W e 'll get to that in a moment. You don't know 3 that from that point on, after this report was made, that 24 Dr. Nestmann became a Monsanto witness, testifying in behalf 40 1 F Monsanto, submitting reports in behalf of Monsanto? A I know that he did it at least once. 3 Q Well, Doctor, you know that he did it more than 4 that. This exhibit is already in evidence in which he has 5 described that Dr. Nestmann, his findings concerning G psychoneurosis in most of the employees he has examined for 7 us. You know that, don't you, sir? 8 A That's what that Wager report reads. Whether it's a accurate -- 10 That's what Mr. Wager of the Monsanto Company says n about Dr. Nestmann, doesn't he, sir? is A That's what he says in that report, sir. 13 Q Doctor, back to this report, Dr. Nestmann says as 14 far as the present illness is concerned that the man has got IS a considerable number of symptoms, doesn't he, sir, no 16 strength for four years, shortness of breath far four years, 17 pain like a toothache beneath both knees? Does he not, sir? 16 Present for four years. Do you see that, sir? 13 A Yes, I do, sir. SO Unable to sleep, darned nervous for four years. SI Do you see that, sir? as A Yes, I do, sir. S3 These complaints that h e 's made there are very S4 similar to the complaints that many of these other workers 49 1 made; Isn't that correct, sir? 2 A There are some similarities, 3 It's not unique with Mr. Willard, is it, sir? 4 A I believe that there is a uniqueness about Mr. 5 Willard, yes, sir. 6 Q Doctor, I didn't ask you if there was a uniqueness 7 about Mr. Willard. Hopefully there's a uniqueness about all B of us. My question, sir, is that the complaints that h e 's 9 making there, sir, are not unique, they are thB same or 10 similar to the complaints made by many, many others. 11 A No, sir. 12 They're not, sir? 13 A No, they are more numerous, sir. 14 Q Well, he may have more complaints, sir, but the 15 complaints he has are similar to the ones that others have 15 made; isn't that right, sir? 17 A Some of them are, right, sir. 10 Q Doctor, there's a lot of men complained about loss 19 of strength, weakness, have they not? 20 A Some of them have. 21 Q Doctor, more than some. Df the ones that you 22 examined, a considerable number; isn't that correct, sir? 23 A Some of them, sir. 24 Well, Doctor, when you say some of them, how many 50 a da you mBan, sir? 2 A Well, I can't tell you what the exact numbers 3 were. But in my memory, sir, they weren't a very large 4 number, which you are inferring, sir. 5 Q Doctor, thBre were 21 of your 3G that complained 6 of fatigue, 27 complained of acheiness and pains; isn't that 7 correct, sir? B A That's in 1953, sir, yes. 9 Q Isn't that correct, sir? Now that's a 10 considerable number, isn't it, sir? 11 H R . HEINEMAN: Objection, your Honor, thB question 12 was on weakness, wasn't it? 13 THE COURT: Objection is overruled, 14 Q CBy Mr. Carr5 Isn't this a considerable number, 15 Doctor, HI fatigue, 27 aches and pains? 16 A Yes, that -- that is. 17 Q Doctor, second complaint is shortness of breath. IB Now there's a considerable number that have complained of 13 shortness of breath, aren't there, sir? 20 A No, sir. 21 Q Doctor, there's nine, according to your report in 22 1953. 23 A Well, we haven't counted those who complained of 24 shortness of breath, so -- SI 1 Q Yb s , you did, Doctor. On page five you have the s ones that complained of shortness of brBath. 3 A Okay. 4 Q Don't you, sir? 5 A That's nine, sir. B Doctor, you did count them, didn't you, sir? 7 A Yes, sir. 8 Q There's nine. 8 A Okay. 10 That's a considerable number, isn't it, sir? i 11 A Yes, sir, 15 Q And, Doctor, complains of painbeneathboth knees, 13 but especially the right knee, there most of thetime, it 14 comes and goes, A considerable number of men complained 15 about pains in the legs, didn't they, sir? IB A Some of them did, yes, sir. 17 Q Doctor, is 57 a considerable number? Doctor, is 18 57 a considerable number? Page 5 of your 1953 report, if 18 that's uihat you're trying to find, Doctor. SO THE COURT; Doctor, please answer the question. 51 THE WITNESS: I can't answer that question that S way, sir. S3 Q CBy Mr. Carr 5 Doctor, my question is is 57 a 54 considerable number. That's my question. 52 1 A 27, yBs, sir, that's a considerable numbsr. But e that doesn't refer to the pains in the legs. 3 Q That's my question, Doctor. Doctor, that's my 4 question. Is 27 a considerable number? S A 27 achBS and pains in a variety of places may be, 6 but you're referring to Mr. Idillard -- 7 Q Doctor, I'll get to what I'm referring to in a B moment. 9 A Well, you started off with one question, and then 10 you shift to another. 11 Doctor, if I da that, it's because I want to do IS that. I have thB right to do that. You do not havB the 13 right to propose the questions that I may ask you. If I 14 twist anything -- 15 MR. HEINEMAN: Objection, your Honor, he doesn't IB have a right to confuse the witness. 17 Q CBy Mr. Carr) If I misrepresent anything, your 18 lawyer r-- 19 THE COURT: Gentlemen, could you approach the 20 bench for a minute, please. 21 2E CThe following proceedings were had at the bench 23 out of the hearing of the jury:? 24 S3 X THE COURT: If you make otib mors remark likB that s in Front of this jury in the course of this, I'm holding you 3 in contempt. 4 MR. HEINEMAN: Your Honor, do you conceive in your 5 years of sitting on the bench that what hB was doing right 6 then, Mr. Carr was doing, is proper? Do you havs any 7 conception that that was a proper behavior for a lawyer in B questioning a witness? 3 THE COURT: Uhat he did was not improper. Ulhat 10 you did is a violation of my rules against speaking 11 objections. Mr. Carr has bBen trying to explain to this 12 witness what h B 's supposed to do, and he's explained to him 13 a number of times. The witness does not -- and I have 14 explained to this witness a number of times. Uhat you did 15 was in violation of my rule against speaking objections. 16 i MR. HEINEMAN: Your Honor -17 THE COURT: I don't want it done again. IB MR. HEINEMAN: Your Honor, it is true that what I 13 j\jst said was a speaking abjection, and it was in violation 20 of your order, and it was unintentional, and I apologize to HI the Court for that. 22 THE COURT: The apology is accepted. 23 MR. HEINEMAN: I must say that my emotions were 24 aroused by the impropriety of what I was observing Mr. Carr 54 1 doing, an I strenuously object to what h a 's doing as 5 absolutely improper. He is not entitled to chastise the 3 witness. H e 's not entitled to instruct the witness. The 4 Court's province is to instruct thB witness. I object to 5 it. I Just got carried away. 6 THE COURT: Let's take a break, 7 B CThe following proceedings were had in the S presence and hearing of the Jury:} 10 11 THE COURT: Ladies and gentlemen, we'll take a 15 short recess at this time. I would remind you that you're 13 not to discuss this matter among yourselves, with anyone 14 outside the Jury panel. We'll take a short recess at this 15 time. 1 1G 17 CShort recess.) 18 IS CBy Hr. Carr) Dr. Suskind, at the break you SO suggested that whBn I described the 57 people who had aches SI and pains according to your report in 1553 you suggested 25 that I misrepresented that because thB exhibit with regard 53 to Willard refers to pains in the legs. Do you recall that, 54 sir? 55 1 A Yss. 2 Q Doctor, in point of Fact, do you know how many 3 people were actually complaining of pains in the legs in 4 1953 according to your report, sir? 5 A I haven't counted them, sir. 6 Q Would it surprise you --- would it surprise you, 7 sir, if I told you that at least 19 were yet complaining of B pain in the legs in 1953 according to your report, sir? 3 A I can't comment, because I haven't counted them, 10 sir. 11 Doctor, but you have commented. You have stated 12 to this Jury that I twisted or misrepresented when I asked 13 the question weren't a large number of people having this 14 same kind of complaint, that is pain in the legs, and you 15 said my question was improper because it was suggested by ) 16 that that a large number had pain in the legs likB Willard, 17 when in fact a large number did not havB pain in the legs* 18 Do you recall that, sir? That was the implication. 19 A No, 1 do not recall it the way you stated, sir. 20 Do you agree, Doctor, that you suggested in this 21 courtroom that I was misstating your record insofar as pain BE in the legs? 23 A No, I did not, sir. 24 Q ;Do you agree, then, Doctor, that there were a 55 1 largB number Df individuaIs who had pain in thB legs in 2 13537 3 A I haven't counted them, so X can't tell you, sir. 4 Q * you disagree with my assertion, sir, that I 5 have cauntBd them and there's 19 at lsast, sir? 6 A Since I haven't counted them, I can't verify it, 7 sir. B UJb II, Doctor, it's your report, and are you saying S that it's not correct? 10 A No, I'm not at all, sir, not at all. 11 Doctor, do you agree that a large number did IE indeed havB pain in their legs, or so reported to you and so 13 you reported to us in your 1353 report? 14 A There were a number of persons of the 35 who had 15 complained, had complained of pains in the legs. 16 Q Now, Doctor, that is not responsive to my 17 question. My question is a large number of persons in '53 IB who presently complain of pains in the legs, 13 A N o . E0 Da you agree that there was a large number of the SI workers that you examined in 1953 that had present / es complaints of pains in the legs, sir? 23 A No, sir, E4 Q Do you quarrel with the number 13 as being a large 57 1 number? a A I ind u Id quarrel with that, sir. 3 Q You say 13 out of 36 examined would not be a large 4 number? 5 A It might not be, sir. S Q Doctor, is IS a large number? You said earlier 7 nine was a large number. Now IS is not a large number. B NR. HEINEMAN: Objection. May Counsel approach g the bench? io THE COURT: Yes, you may. il 15 CThe Fallowing proceedings were had at the bench 13 out of the hearing of the Jury5 14 15 MR. HEINEMAN: Your Honor, we have hBre another 16 misrepresentation by Mr. Carr of what the witness testified 17 to. He just said you testified before that nine was a large IB number. The witness testified in response to Mr, Carr's 1S question that nine was a considerable number. 20 MR. CARR: Well, I'll amend that. 21 MR. HEINEMAN: Thank you. 22 THE COURT: Okay. Fine. 23 24 - 58 1 CThe following proceedings were had in the a presence and hearing of the jury:? 3 4 CBy Hr. Carr) Doctor, do you agree that IS is a 5 considerable number of peoplB to have this complaint? 6 A Yes, 1 do, sir. 7 Q Yes. So then you would agree that Mr. Willard, 8 and would you agree with my statement to you, sir, that at 9 least 19 had that complaint? 10 A I can't agree, because I haven't counted them. 11 Would you disagree? 15 A I would assume that you are accurate, sir. 13 Q Doctor, if that is in the record, and yourreport 14 is in the record, then that is a considerable number that IS had the complaint of pain in the legs in 1953. 16 A They had complaints of pain in the leg. 17 Is that correct, sir? 18 A That would be so, sir, if the 19 is accurate. 19 So M r . Willard then was not unique in his 50 complaint, was he, sir? 21 A Oh, yes, he was, sir, 55 Q 19 have similar complaints, sir. 53 A I'm not saying -- it had nothing to do with pains 54 in the legs, sir. I 59 1 Q Doctor, my question had to do with pains in tha 2 legs. I 've asked you, and I uiBnt down, utas going down this 3 list of complaints, sir, and asking you whether or not hr. 4 Willard was unique, that's how we got on this -- 5 A 1 said he was unique, sir. 6 Doctor, my question to you is having pain in the 7 legs, the complaint of pain in the legs, is that unique? 8 A No, sir, that is not -- that is not unique, sir. 9 That is my question, Doctor. 10 A Well, if that's your question, that is not unique. 11 Q Doctor, the next complaint that he had, that h e 's 12 unable to sleep and darned nervous far four years, that is 13 not a unique complaint, is it, sir? Doctor, uie've already 14 established that 17 of your people that you examined in 1953 15 had the complaint of nervousness. This category here, 16 number four, unable to sleep, too darned nervous for Four 17 years, there's a large number of people that were darned 18 nervous, weren't there, sir? 19 A There was 17 who complained about nervousness, 20 sir. 21 Hb was not unique in having complaints of 22 nervousness, was he, sir? 23 A That aspect of it is not unique, sir. 24 Doctor, wb also described that h e 's lost BO 1 confidence in himsEtlf For the past one and a half years; is s that correct, sir? Is that what it says, sir? 3 A That's what it reads, sir. 4 Q ` That's net unique, is it, sir? 5 A Yes, sir. 6 Q Doctor, there was a significant number of persons 7 examined by Dr. Nestmann that, the reports that we have, all 8 except one, were he had diagnoses, all except one were 9 diagnosed as psychoneurotic, weren't they, sir? 10 A Which exhibit are you referring to? 11 Exhibit 1779 that we Just went through, sir. IS All except one on the reports where he made diagnoses or 13 impressions, all except one tuBrs considered psychoneurotic; 14 isn't that correct, sir? 15 A That's correct for that question, sir. IB Q All right, Doctor. Now, a psychoneurotic indeed 17 loses or has little confidence in himself; isn't that IB correct, sir? 19 A No, sir. SO D , That isn't correct? SI A No, that is not a -- that doesn't need -- that SS does not need to be a characteristic of psychoneurosis. 23 Doesn't need to be, but may be, Doctor. 24 A Dh, in rare intances, sir. I 61 1 Only in rare. Well, then, Doctor, perhaps this is 5 ne that we can not establish, but certainly that others 3 have got the problem of lost confidence; is that correct, 4 sir? 5 A That is unique, sir. E Q This you would say would be unique. The complaint 7 of cough continually would also be unique, would it not, Q sir? 3 A I think so. 10 And his complaint of quivering, something in the 11 upper abdomen, present For two and a half yBars -- 1 well, 15 there were a number of complaints of upper quadrant pain, 13 wasn't there, sir? 14 A That is not pain, sir, that is quivering. IS 1 understand that. IE A Completly different. 17 Q Doctor, I understand that. There was a number of 18 persons that had abdominal complaints, weren't there, sir? \ 13 A There was some. Not many, sir. A very few. 50 Q Not many, sir? 21 A N o . 55 How many do you judge there were, Doctor? S3 A I have no idea. 24 Well, Doctor, if you have no idea -- 62 1 A From my recollection -- 2 Q Doctor, how can you say that there weren't many if 3 you have no idBa? Have you counted them, sir? 4 A I haven't counted them recently, sir. I'd be 3 happy tD do that For you, if you want me to. 6 Q Doctor, when we went through Dr. Nestmann's report 7 there were a number of these people that complained of B abdominal complaints, weren't there, sir? 3 A No, sir, I don't recall that, 10 Q Look at the very first one, Jeffers, stomach 11 aches. Chief complaint was stomach ache, wasit not,sir? 12 AIt says "like it is a little weak." 1don't know 13 what that rBally means, sir. 14 Doctor, you may not know what it really means, 13 just like I don't know what it really means to say there's 16 quivering in the stomach. That isn't the point. The point 17 is there werB a number d F others that had like complaints. IB A Out of the 1783 there's just one, sir. 13 Q Out of 1703? 20 A I mean 1779. I 'm sorry. Among the chief 21 complaints, the stomach seems like it's a little weak is 22 okay for Mr. JeffBrs, but in looking through the rest of 23 them I don't find any stomach complaints among the chief 24 complaints, sir. 63 1 Well, there may not be emong the chief complaints, s but they are in the body. If you look at Wright, h e 's got 3 upset stomach a lot of times and belly ache, doesn't he, 4 sir? 5 8 hr. Wright? G Q Yes. I think it's the last -- second to last ans, 7 8 Okay. Yes, I sea that, sir. 8 Q Doctor, in your examination in 1953 you found a 9 number that had these complaints of pain in the abdomen, did 10 you not, sir? 11 A A history of having had complaints. IS Q Yes, Doctor, that's what -- 13 A A history. But not in 1953, sir. 14 Q Doctor, if you'll just look at your boxscore on 15 the first page, on page 34, therB is two out -- at least 1G two, sir, out of that first group of six that havB these 17 complaints, present complaints of pain in the right upper IB quadrant, aren't there, sir? 19 A This man had a little problem, sir, yes. Mr. 2D Steele. i 21 Q Doctor, I'm not trying to ask you to diagnose it, 22 All I'm trying to establish with you, sir, is that his 23 complaints were not unique. That's all I'm trying to 24 establish, Doctor. B4 1 A For 1953 they would have been unique because I a don't Find in the other areas of thB boxscores that there 3 were pains in the abdomen, sir. 4 Q Dell, Doctor, at least two in your boxscore had j 5 the pains -- 6 A Only two out of 36 complained of soreness in the 7 right upper quadrant, and they appear to be similar. It's B so designated. 3 Q Yes. 10 A But I don't see in the boxscores that there are 11 any other persons who complain about abdominal discomfort or ia stomach illness, or whatever. So that hr. Willard's 13 complaint to me would be unique about his stomach complaint. 14 Q Doctor, you had a number that had a development of 15 ulcers, did you not, sir? IS A There was some that had history of ulcers. I 17 can't count them. I know what they were like in '79, sir, 18 but 1 can't tell you about 53. 19 Well, Doctor, in '73 you Found of the exposed so people that a significant number, I think you even called it El a statistically significant number, had stomach ulcers, aa didn't you, sir? 23 A Had a history of having -- E4 Q Isn't that right? 65 1 A -- of having upper gastrointestinal ulcers. a Isn't that correct, sir? 3 A That is correct, sir, 4 That was one of the Feu things that you did find s that was statistically significanti isn't that correct, sir? 6 A That was one of the things that by history tue 7 found. B Doctor, w e 're talking about Hr. Willard's history S herB, aren't we, and his complaint -- 10 A Correct -- 11 Q -- complaint about this stomach pain or quivering; IS correct, sir? 13 A Correct. 14 Q And it dBVBloped from 1353 to 1979 that what Mr. 15 Willard's complaint was with his abdomen, you found to be 16 statistically significant by *79; isn't that correct, sir? 17 A ThBrB's no history of ulcBr in Dr. Nsstmann's IB records, IS Q Doctor, I'm not asking about a history of -- SO A ArB you talking about quivering? SI I'm asking about stomachproblems thatdeveloped 25 to be true, sir, according to your study of '79, That's S3 what I 'm asking about. 54 A We are talking about -- BE 1 Q No, Doctor, excuse me. Listen to my question. s A I will, sir.^ 3 Q You found a significant number of stomach problems 4 by history ta have existed in 1979, did you not, sir? 5 A No, sir. > B Is an ulcer a significant problem, Doctor? 7 A U)e found upper gastrointestinal ulcers -- B My question, sir -- B A That's part of stomach problems. 10 Q My question, sir, is an ulcer stomach problems? 11 A It is a stomach -- it's a gastrointestinal 12 problem, sir. ^ 13 Q Is that part of the stomach, sir? 14 A It could be part of the stomach. 15 Q Yes, Doctor. 16 A Some of them did not have stomach ulcers. 17 0 Doctor, is it a significant problem to have 18 ulcers? 13 A It might be, if it uierB -- if it were verified, 20 sir. 21 Q Doctor, did you find -- did you report in your i 22 report in 19B4 that it was statistically significant, this 23 number of persons with a history of stomach ulcer? 24 A UJe thought that thB -- that the frequency of 67 1 gastrointestinal ulcers, not any other problem, but e gastrointestinal ulcers, history of, was statistically 3 significant, yes, sir. 4 And it is a stomach problem, isn't it, sir? 5 A It's one, of the stomach problems, sir, 6 Q It is a stomach problem, isn't it, sir? 7 A Some of them are stomach problems. Q Q Some of the ulcers are stomach problems? 9 A Right. Some of them are. 10 P And some of them are not? 11 A That's right. 12 These gastrointestinal ulcBrs that you found, sir, 13 by history houi many of them mere stomach ulcers? 14 A I can't tell you, but we combined the duodenal 15 with the stomach, sir, in order to be accurate. 16 Doctor, the duodenal is directly adjoining the 17 stomach, is it not, sir? 18 A Correct, sir. 19 Q Yes. Now, Doctor, hr,Willard's problemthen the 20 history confirmed, by that 1 mean historically it was 21 confirmed that the stomach problems were significant in the 22 exposed people; isn't that correct, sir? 23 A Not in 1953, sir. 24 Doctor, did you listen to my question? I said 66 1 history. Historically, sir, his problem was confirmed to be 2 statistically significant, that is stomach problems, sir. 3 A No, sir. 4 Did you find in '79 to be statistically 5 significant? 6 A Stomach ulcers and duodenal ulcers. 7 Yes. B A I don't know what his problems were here, sir. 9 Did you find that to be significant? 10 A I don't know what his problems were here, sir. 11 Q Doctor, you're not listening to my question. 12 A I am, sir. 13 Did you find a stomach ulcer and duodenal ulcers 14 to be statistically significant in *79? 15 A Ule did, sir. IB D Yes. 17 A It's in the paper. IB Q And, Doctor, was Willard complaining of a stomach 19 problem in '53? This report that's in front of you, Doctor, 20 the symptom that we 're talking about, the complaint that 21 we're talking about was related to the stomach, wasn't it, 22 sir? 23 A No, sir. If you're talking about number seven, 24 quivering like -- 65 1 Q An air hammer in the upper abdomen. e A I don't know what that means, sir. That's not a 3 stomach problem. It can be anything. It could be a muscle 4 problem. 5 Q And it could be a stomach problem? 6 A It could be a liver problem. 7 Q Doctor -- B A It could be an Bsophageal problem. S It could be a stomach problem? 10 A UBry remote. It's very remote, because it's not 11 defined here, sir. 15 Q Doctor, indeed. 13 A You are certainly right, sir. 14 Q The person writing it down didn't define it, sir, 15 but it could be a stomach problem, couldn't it, sir? IS A Not necessarily, sir. 17 Q Doctor, I didn't ask you not necessarily, did I, IB sir? Aren't you going to concede that this problem that he 19 had just might conceivably have been, his complaints might 50 conceivably have been a stomach problem? 51 A No, sir. 55 Q You're not going to concede to that? 23 A No, sir. I'm not going to concede to that because 54 it's inaccurate. 70 1 Let's pass on to the next problem, Doctor. 2 A Thank you, sir. 3 Q Doctor, this gentleman also had a complaint of 4 being hot or cold all the time, and I can't read that, takes 5 a chest cold, or catches, it looks like takes a chest cold 6 at frequent intervals, present two and a half years; is that 7 correct, sir? B A That's what number nineappears tobe, sir. 9 Doctor, there uiere others thathavecomplained 10 over the years about infectious problems, were there not, 11 sir? 12 A No, sir, very few. 13 Q Well, Doctor, very few is others, isn't it, sir? 14 A Not out of -- not uniquely, sir. 15 0 Doctor, is very few others -- hr. Willard was not 16 unique in having complaints of colds following this 17 exposure, was he, sir? IB A Having frequent colds might be unique, sir. Yes, 19 he complained about frequent colds. 20 Q All right. I think that's unique, sir. 21 A When people do have colds, you and I have colds -- 22 Excuse me, Doctor. Do you think that's unique 23 then? 24 A Yes. I think that he is complaining uniquely. 71 1 Doctor, I don't know that I understand that. Has a he gat a unique complaint? 3 A He has a unique complaint, sir, yes. 4 Q All right. Doctor, the reporter, Dr. Nestmann, 5 goes on to say that he uias exposed to the explosion as S previously described March B, 1943, doesn't he, sir? 7 A Yes, sir. / B Q In point of fact, w e 've already established that 9 it was not an explosion, haven't we, sir? 10 A Well, not in the sense that explos/ions are usually 11 regarded -- IS UJe already established that it was not an 13 explosion, Doctor. I think you can answer that question. 14 A Yes. 15 Q Did wb establish that this morning? IE A Yes. 17 Doctor, I established it with you for a purpose 18 this morning, because I knew I was going to ask about this 19 report. BO A Okay. 21 Q As you know -- 1 see you smiling -- as you know 22 the problem of explosion, and his problems, you know that 23 Dr, Nestmann related it to an explosion, don't you, sir? 24 Now you know that, don't you, sir? 72 1 A Yss. Dr. NBStmarm has described it bBfore as an 2 explosion. 3 Q Doctor, in point of Fact, hr. Willard wasn't even 4 in there when it exploded or whatever occurred, was he, sir? 5 A That's quite true, sir. 6 Yes. But Dr. Nestmann reports that he was, 7 doesn't he, sir? 0 A I don't believe he says that he was exposed to thB 9 explosion. 10 Q Oh, that's exactly what he said in that line we 11 just read. Patient was exposed to the explosion as 12 previously described. That's exactly what he says, isn't 13 it, sir? 14 A H e 's saying that generically, sir. 15 Q Exc u s b me, Doctor. That is exactly what h e 's 16 saying that this patient was exposed to the explosion; isn't 17 that correct, sir? 18 A Yes. 19 Q Yes. And, Doctor, you know that because you 20 checked it when you saw where I was going at recess. I see 21 you nodding your head yes. I'd like the record to get that. 22 You know because you went back and looked at the report and 23 saw that he wasn't in the explosion, that he only came in 24 hours later, isn't that correct, sir? 1 A I have known that For 35 years, sir. s Q Fine, Doctor. 3 A Okay. I knew that in 1949, and I 've known 4 since. I 've talked about it many times about Willard's i i 5 relationship to that run-away reaction. | G All right. Tell tnB this, Doctor, you knew th 7 this report by Nestmann was submitted to the Commission 8 *53 in which he says his psychoneurosis is related to t i 9 explosion, like combat Fatigue, Did you ever tell the j 10 Commission that this statement of Dr. NBstmann was not t* i 11 and that this man was not in the explosion, and that his 12 psychoneurosis could not be like combat fatiguB? Did yo 13 ever tell the Commission that? 14 A I didn't have to, sir. 15 Q All right, Doctor. 16 A I didn't have to. ! 17 Q Let's go on to this report, Doctor. This repo 18 by Dr, Nestmann in 1953 states, does it not, sir, that o 19 the last page, the last paragraph, any psychoneurotic j 20 individual does poorly under stress, whether this stress 21 an explosion, whether it is front-line duty in the servi I 22 or any athsr traumatic experience, makes no difference?! 'i 23 Isn't that what he said, sir? j i 24 A That is what he wrote at that time, sir. ! 74 1 Q Yes, Doctor. He did write that at that time, and 2 he related this, he said this man was a psychoneurotic who 3 reacted poorly to this explosion that he wasn't even in; 4 isn't that correct, sir? 5 A No, sir, it is not correct, sir. 6 Q Oh, Doctor, didn't he tell -- doesn't he say here 7 that this man reacted poorly to astress of the explosion, B equating it to front-line duty? 9 A That is what -- that is what the sentence reads, 10 sir. 11 Yes, indeed, it does. 12 A Yes, it does. 13 Q But you know that Mr. Willard's problem came after 14 his exposure and developed sometime after his exposure, that 15 is nervousness; you know that, don't you, sir? IB A I know that Nr. Willard wasn't present -- 17 Q Excuse me, Doctor. IB A -- at the time of the run-away reaction. 13 Q Read my question back to him, please. 20 21 CQuestion read.) 22 23 THE WITNESS: Would you read it again? I'm sorry. 24 75 1 CBy fir. Carr 5 Don't you, sir? e A I'm asking her to read it again, sir. 3 4 (Question read.} 5 6 IKE WITNESS: I don't bslisvs you said exposure, 7 sir, did you? 8 CBy Mr. Carr} Yes. I said exposure, Doctor. S A It came as -- in relation to his exposure. 10 Q My question was, Doctor, it came -- his 11 nervousness developed at some time after his exposure, did 12 it not, sir? 13 A I 'm not sure I understand the question. Exposure 14 to -- IB To the product of the run-away reaction. IB A To thB run-away reaction? 17 To the TCDD, sir. 10 A Well, hB uias still -- hB was still working when IS his complaints of nervousness occurred. 0 Q Doctor, my question is -- 21 A He was still working. 22 -- my question is these complaints started after 23 the exposure, did they not, sir? 24 A During the exposure, sir, not after. During. 76 1 Q They occurred after he was First exposed, did they 2 not, sir? 3 A After he was firstexposed, u b s ,sir. 4 Q Yes, Doctor. 5 A Yes. 6 Q He did not have complaints of nervousness prior to 7 the exposure, did he, sir? 8 A I don't know that. 9 Q Doctor, you do know that. Look at your records, 10 sir, and see if there's any statement in your 1953 report or 11 in your 1950 report, or your 1949 report, that he was 12 nervous prior to this episode, sir. 13 A No, I don't have any record of that, sir. No. 14 He states he became nervous after this exposure, 15 did he not, sir? 16 A Yes, sir. 17 Q And, Doctor, it was some months after the IB exposure, wasn't it, sir, that he started having his 19 problems? 20 A I believe that's true, sir. 21 He didn't even notice the acne until six weeks 22 after the first exposure; isn't that correct, sir? ' 23 A I haven't referred to the 1949 report recently, 24 but that may be accurate, sir. 77 1 Q Well, it reports that ha entered the building 2 several hours after the explosion, symptoms were first noted 3 by this patient about six weeks following his first 4 exposure, that's what it says, and followed by an aching 5 type of pain in thB calf of his leg. That's in Exibit 1694, 6 sir. It wasn't until mid August that he was even aware of 7 his comedones. After he had his first episode of pain in B the calves he experienced repeated bouts of such pain with 9 increased intensity with time. During the first part of 10 1549 the aching was so intense that he was unable to walk 11 and entered a hospital where he remained for IB days. In 12 *49 h e 's complaining -- he complained Df insomnia and 13 nervousness; isn't that correct, sir, since the 14 hospitalization? 15 A At thB time we first examined him he complained of IB insomnia and nervousness, yes. 17 Q Isn't what I read to you correct, sir? 18 A That is correct, sir. 19 And, Doctor, the report that Dr. Nsstmann gave to 20 the Commission that this man was a psychoneurotic 21 individual, who all of his problems stemmed from an 22 explosion like in combat, simply borne out by thB record 23 relating to fir. UJillard, is it, sir? 24 A I believe it is borne out by -- 78 1 Q Doctor, is there anything in the record that 2 suggests this man mas psychoneurotic? 3 A Yes, sir. 4 Q Before his exposure. 5 A Before, no. 6 Q Yes, Doctor. 7 A But in the 1953 report, yes. 8 Sir, is there anything to suggest that he was made 9 psychoneurotic by an explosion similar to combat? 10 A By an explosion? 11 Yes, Doctor. 12 A No, sir. 13 Because there wasn't an explosion, and even if 14 there was, he wasn't there when it exploded. 15 A That's quite true, sir. IB 0 He could not be reacting to stress of an explosion 17 as suggested by Dr. Nestmann, could he, sir? Answer that 10 question, please, Dr. Suskind. 19 A Yes, sir, he could be. 20 He could? 4? 21 A Yes, sir. 22 He could be reacting to strsss of an explosion 23 where he wasn't -- when he wasn't even there, and it didn't 24 explode? 79 1 A Yes, sir. a Q Doctor, haw can you react to something that didn't 3 exist? ., 4 A hay I answer the question? 5 Q Doctor, my question is haw can you react to B something that doesn't exist. 7 A Okay. Or, Nestmann refers to the explosion in a B generic fashion. He is not talking about the actual 9 incidsnt. He's talking about the results of that incident. 10 H e 's talking about, and he knew what he was talking about, 11 he knBW that he was talking about the materials of that so- 12 called explosion. And hr. Willard was exposed to the 13 products of that run-away reaction. That is what Nestmann 14 is likely to mean. And I -- and also ths fear, he is 15 reacting as in combat fatiguB. Combat fatigue refers to a 16 state of psychaneurosis in which the combat person develops 17 a fear of thB risk, the risk of combat. The fear of the 19 risk of combat. And that's what Dr. Nestmann is talking 19 about. 20 Q Doctor, I'm quite interested in the first part of 21 your answer wherB you say -- 22 THE COURT: hr. Carr, before you pursue that, is 23 this a good place to break? 24 MR. CARR: No, your Honor. I 'd like to get this 80 1 point established. a THE COURT: Bo ahead. 3 CBy Mr. Carr) Where you say Dr. Nestmann said his 4 psychonsurosis is caused by the exposure to the material. 5 A I didn't say that, 6 MR. CARR: Would you read the First part of his 7 answer back please, 8 THE WITNESS: I said -- 8 MR. CARR: Would you read the First part of his 10 answer back. 11 15 (Answer read.) 13 14 MR. CARR: Thank you, 15 THE WITNESS: That's what I meant, sir. IS CBy Mr. Carr) Yes, indeed. He wasexposed to the 17 products of the run-away reaction to the materials, was he IB not, sir? That's what you said, and that's what you meant, 19 isn't it, sir? BO A Correct, sir. 51 Thank you, Doctor. BE A And he had symptoms From that. 23 Thank you, Doctor. One oF thesymptoms that he 24 had From that was the psychoneurosis? B1 1 A No, sir, absolutely not 5 Q Doctor, isn't that what Followed his exposure to 3 thB materials? 4 A It's the Fear oF that. 5 Doctor, did the psychoneurosis Follow his exposure 6 to the materials? 7 A The psychoneurosis Followed this man, as Dr. B Nestmann points out -- 9 Q Doctor, my question is -- 10 A -- combat Fatigue, which is the Fear. 11 0 Doctor -- IS A The Fear oF that problem. 13 You're not listening to my question. 14 A I am indeed, sir. 15 Q Fsychoneurosis Followed the exposure to the 16 materials oF thB explosion? 17 A The risks From the materials oF that explosion, IB sir. 19 Q Doctor, you're not answering my question. SO HR. CARR: Your Honor, would you direct the SI witness to answer my question. 5S THE COURT: Doctor, answer the question. S3 THE WITNESS: Yes, sir. S4 THE COURT: Answer the question as it is asked oF 02 1 you, please. 2 THE WITNESS: Okay. Would you ask the question 3 again, please. 4 MR. CARR: Would you read the question to him 5 again, please. 6 7 CQuestion read.) 0 9 CBy Nr. Carr) Did it not, sir? 10 A No, sir. 11 Q He Ljas psychoneurotic before he was exposed to the 12 materials? 13 A I don't know, sir. 14 Q The psychoneurosis followed his exposure to the 15 materials, it came after his exposure to the materials of 16 the explosion, did it not, sir? 17 A It followed, but was not caused by. IB Q Doctor, my question is in point of time, the 19 psychoneurosis came after his exposure to the materials in 20 the explosion, did it not, sir? 21 A After his exposure to that -- to those materials 22 in time. 23 Thank you, Doctor. 24 A Only in time, sir. 83 1 MR. CARR: That's all I need, your Honor. 2 THE COURT: W e 'll break until 1:15 For lunch. 3 Court is in recess. 4 5 CLunch recess.) 6 7 THE COURT: Ladies and gentlemen, I may not have Q told you earliBr, w e 're going to break at 3:00 today, rather 9 than at quarter to five. So I may have told you earlier, 10 but I don't think I did. Hr. Carr, you may proceed. 11 Q CBy fir. Carr) Dr. Suskind, I think we established 12 just shortly before noon that Or. Nestmann was referring to 13 the -- talking about the results of the exposure, that he 14 was talking about the materials of the so-called explosion, 15 and that he was exposed to the products of the run-away IB reaction, and that was what Dr. Nestmann was likely to 17 mean. Do you recall that, sir, when he described the IB psychoneurosis that Nr. Willard had? 19 A I do recall I said that. 20 Q Yes. 21 A But that was only part of it, though. 22 I understand that, Doctor. But that part -- w e 'll 23 explore the other part in a moment. What Dr. Nestmann was 24 saying then in your Judgment was that this man, who you say B4 1 Dr. Nestmann knew what he was talking about, but the man he 2 was talking about was exposed to the products of the run 3 away reaction, and after that exposure to that material 4 developed this psychoneurosis; correct, sir? 5 In time, yes, sir. 6 Q And, Doctor, you know that therB have been, not 7 Just this man that has bBen diagnosed as having 8 psychoneurosis, or having nervousness, but that a 9 significant number of these mBn had similar problems; isn't 10 that correct, sir? 11 A I believe they did, sir. 12 And you also know Doctor, that all of these 13 problems according to your reports, all of these problems 14 connected with this nervousness and the. psychoneuroses all o 15 developed following the explosion, and for that matter IB following the chloracne, the cutaneous lesions; isn't that 17 correct, sir? 18 A In time, sir, yes. 19 Q Doctor, well, in point of time these men, the ,35 20 that you examined, 23 of the 36 developed problems, and of 21 those 35, 17 of them developed nervousness problems; isn't 22 that correct, sir? 23 A They did. 24 Q Doctor, was there a history of anything else, 05 1 anything else that they might have been exposed to or might 2 have been subject tc that could account For the causation aF 3 these psychoneuroses, any other materials that they were 4 exposed to that you're aware of, that could account For the 5 psychoneuroses and these nervousness problems developing at 6 the point oF time that they developed? 7 A Yes, sir. B What other material orwhat other circumstances 9 were involved, sir? 10 A ` The circumstances were the Fact that there was a ' \ 11 run-away reaction, there were people who became sick. 12 Doctor, that's the thing that you already said. 13 A t1ay I Finish, sir? 14 Q My question to you, sir -- 15 A You said circumstances, and I will give you the 16 cicumstances. 17 MR. CARR: Your Honor, will you ask the witness to 1B stop when I 'm trying to ask him a question, clarifying it. 19 HR. HEINEMAN: Your Honor, may we approach the 20 bench on that subject? 21 THE COURT: Yes, you may. 22 23 CThe Following proceedings were had at the bench 24 out of the hearing oF the jury:3 BE 1 fIR. HE INEMAN: Mr. Carr objects, he asks the 2 question, he says what other circumstances, sir. The man 3 gets about eight words out of his mouth, Mr. Carr doesn't 4 like what h e 's saying, so he objects to it. He starts 5 interrupting him, 6 THE COURT: Keep it down. 7 MR. HE INEMAN: Then he asks you for help,' saying 8 the man is interrupting his question. Now the problem is he 9 interrupted the witness* answer and I object to it. I*d 10 like the witness to be able to explain the circumstances 11 that Mr. Carr asked For in the question. IS MR. CARR: Mr. Heineman is ignoring my question, 13 which said what other materials other than materials in the 14 explosion, and what other circumstances other than the 15 incident could account For the psychoneurosis. 16 MR. HEINEMAN: Well -17 MR, CARR: May I Finish please. ThB witness is 18 relating this same circumstance. I 've asked him For what 13 other circumstances, what other materials could they be T SO exposed to to account For these problems. That's what I SI asked him. 25 MR. HEINEMAN: Could I have the court reporter 23 read the question back? 24 THE COURT: No. I heard it. I heard the answer. B7 1 Hr. Carr's account of it is correct. It was not responsive s to the question. It was repeating what he said before. 3 Your objection is overruled. 4 5 CThe fallowing proceedings were had in the 6 presence and hearing of the Jury:) 7 8 Q CBy Mr. Carr) Doctor, in case I didn't make it 9 clear in my question to you, sir, my question to you is what 10 other materials other than the materials in this incident or 11 what other circumstances other than this incident could IE account for, to have caused the nervousness and the 13 psychoneuroses, sir? 14 A What I had attempted to say, sir, was that as a 15 consequence of this incident, as a consequence of this 16 incident -- 17 Doctor, that's where I interrupted you. I want to 18 know what other circumstances or other materials. I know 19 about the consequences from this incident. You're trying to SO tell me the consequences of this incident. Now exclude SI that, Doctor. What I 'm asking you, sir, other than this ss incident, other than the materials involved in this S3 incident, what other materials or what other circumstances, 54 sir, could account for the nervousness or the neuroses? BS 1 A I am attempting to answer that question in terms t s of circumstances, sir. 3 Okay. Let's do it one at a time, sir. Any other 4 materials that you are aware of that are in the record that s 5 could account Far these problems? 6 A I don't know. I can't answer that question. 7 My question, sir, are there any other materials. B You da know what's in the record. You made thB record. Are 3 there any other materials in the record that you know of to 3.0 which these men were exposed that could havB caused the 11 nervousness and the psychoneuroses? IS A I cannot answer that question because you ftave 13 related it to cause, and I can't relate it to cause. 14 Doctor, my question is -- 15 A You said cause, sir, and I can't accept that, 16 Q Doctor, my question is what other materials, other 17 than these materials, could have caused this nervousness? 18 A I can't answer that question, sir. 19 Is it because you don't know of any other 20 materials -- 51 A No, because you used the ward ''cause," sir. BE Yes, Doctor, I am using the word cause because the 53 psychoneurosis was caused either by, as Dr. Nestmann said, 24 the materials to which they were exposed, or to the incident B9 1 iself. That's what Dr. Nestmann has said. I 'm now E exploring with you, Doctor, what other causes could there 3 be, A, what other materials other than the material in this 4 exposure, B, what other circumstances, other than the 5 circumstances of this exposure, this incident, this 6 reaction. Now that's what I'm doing, Doctor. Now what 7 other materials do you know of that the men were exposed to 8 that could have caused these nervous problems, 9 psychoneuroses problems that these men all had, 17 of them 10 had? 11 A I can cite one, sir. IE Q Please do, sir. 13 A This is one, and you have read it to me, where the 14 man indicated that his nervousness seemed to be caused by 15 niran. Niran is a rubber additive. IB Q I don't recall the niran. 17 A Well, I do, sir. And it's in the record. IB Q I 'll accept that, Doctor. That's fine. Anything 19 other than the niran? E0 A I don't know, sir. El All right. Now what other circumstances, sir, EE other than this incident are you aware of that's in the E3 record, sir, that could cause this nervousness or I E4 psychoneuroses that these men had? Are there any other 90 1 incidents or circumstances that could have caused this, E other than the one in question? 3 A I cannot answer that either, sir, because I don't 4 know. 5 Q Doctor, is the answer that you don't know of any 6 othBr circumstances that could have caused it, or any other 7 incident that could have caused it? 0 A I cannot answer the question, sir. 9 MR. CARR: Your Honor, would you direct the 10 witness to answer that question. 11 THE COURT: Doctor? IE THE WITNESS: Yes, sir? 13 THE COURT: The question has been clearly put. 14 You have to answer the question. 15 THE WITNESS: Would you repeat the question, 16 please? 17 10 (Question read.} 19 SO THE WITNESS: I don't know of any other incidents. El Q CBy Nr. Carr) Thank you, Doctor. And, Doctor, so EE far as your knowledge is concerned, other than the one S3 incident of the niran exposure, the materials to which these 34 gentlemen were exposed to, which preceded their onset of 91 1 neuroses was the 2,4,5-T and its contaminant; isn't that s correct, sir? 3 A These men who were referring to -- 4 Would you answer that question, please, Doctor. 5 A Were exposed to 2,4,5-T and its contaminants, yes, 5 sir. 7 Q Is that a yes to my question, sir? B A Yes, I believe it is. 9 Q And, Doctor, the only circumstances that you're 10 aware of that would be related to or predated or preceded 11 their nervousness and psychoneurotic condition was the 12 incident and the circumstances surrounding the incident; 13 isn't that correct, sir? 14 A That I can't answer either, because -- 15 Q Doctor/ my question is so far as you know, and I IB thought you just gave us the answer that this is the only 17 circumstance so far as you know, you have no knowledge of 18 any other incident or any other circumstances that could 19 have caused this psychoneurosis; isn't that ccrrect, sir? 20 A I believe -- I believe I do, if I search my memory 21 for cause of psychoneurosis. 22 Q Didn't you Just tell me, Doctor, that you knew of 23 no other circumstances or incident that could have caused 24 the psychoneurosis in these men that were involved in this 35 1 incident? Didn't you Just tell us that, sir? E A IF you're talking about industrial incident, 3 that's true. 4 Doctor, do you know -- 5 A Industrial incident. 6 Doctor, do you know, do you have knowledge of any 7 incidents in thesB men's lives that caused their B psychoneurosis, that could have caused their psychoneurosis? 9 What incident, if any, do you have knowledge oF that could 10 have caused it, sir?. 11 A There are any number oF persons -- IS Doctor, there are any number oF causes oF 13 neuroses. I'm asking you what is your knowledge in these 14 group of people's lives, in these men's lives that could 15 have caused their psychoneurosis, other than thB incident in 16 question? I'm asking you about your knowledge. 17 A Are you reFBrring to -- IB MR. HEINEMAN: Excuse me, Doctor, let me object. 19 Your Honor, objection. He interrupted the answer. BO THE COURT: The objection is overruled. SI THE WITNESS: Are you reFerring to 1779? Are you BE reFerring to these people? S3 Q CBy Mr. Carr} Doctor, you understand the question 24 that I'm asking you? 93 X A No, I don't. I have to refer to specific people. s 0 I'm talking about these men that you said in 1953, 3 these men that Dr. Nestmann has seen and said has 4 psychoneuroses. Those are the men that I'm talking about, 5 sir. What incidents, other than this run-atuay reaction 6 incident was there in the lives of these men of which you 7 have knowledge, sir, that could have caused the e psychoneurosis? 3 A I can name one, sir. 10 Please do. 11 A Harold Young. IS Q Yes. 13 A Harold Young. 14 What incident in his life could have caused the 15 psychoneurosis, sir, other than the incident in question? IG A Okay. This was 1950 -- 17 Q Doctor, my question -- 18 A I'm talking about an incident, sir. 13 Q Yes. E0 A A specific incident. El Q Right. as A And please let me finish. He was as a result of S3 treatment, he had become hyperpigmented, and he didn't 54 realize how hyperpigmented he had become. This is 1350 now. 94 1 It's in West Uirginia. 2 Q Doctor, let me interrupt For a minute. The 3 hyperpigmentation was caused by exposure to these materials, 4 was it not, sir? 5 ft Let me tell you about the circumstances, though, 6 sir. 7 Q Was it not caused by the exposure to these e materials? s A Not necessarily. It could have been caused by the 10 treatment. n Q Doctor, did you not report that it was caused by 12 exposure to the materials? 13 A But I 'm not talking about the hyperpigmentation, 14 I'm talking about the incident. 15 Q Doctor -- 15 A Please let me Finish. 17 Doctor, would you please conFine yourselF to IB circumstances othBr than the incident in question. 19 A I will, sir. 20 Doctor, the hyperpigmentation was caused by the 21 incident in question. 22 A I will, sir, iF you'll let me Finish. 23 MR. CARR: Your Honor, would you instruct the 24 witness to let me Finish my question? 95 1 MR. HEINEMAN : Objection, your Honor, he interrupted the answer. 3 THE COURT: Doctor, please wait until the attorney 4 has finished the question. 5 Q CBy Mr. Carr) Doctor, the hyperpigmentation was 5 caused by the incident in question, was it not, sir? 7 A No, sir. B It was not? 9 A It was one factor, sir. 10 Doctor -- 11 A Only a few hadhyperpigmentation, sir. IE Yes, and he was one of the few that had it, wasn't 13 he, sir? Nothing else happened, he wasn't exposed to 14 anything else to cause the hyperpigmentation, other than the 15 materials, was he, sir? IB A I don't know, sir. He was being treated -- 17 Doctor, look at your report, and let's get that IB established first. 19 A He was being treated for his -- E0 MR. CARR: Your Honor, would you direct the El witness to look at his report. EE THE COURT: Doctor, please follow the question. S3 Q CBy Mr. Carr) Doctor, page 13 of your 1953 -- E4 A I'm talking about page 10 on my 1950 report, sir. 36 1 Doctor, page 10 refers to Mr. Selby and fir. a Willard. Page 13 refers to Harold Young. 3 A I'm sorry, sir, it's in the 1950 report. 4 Q 1950 report? 5 A Yes, sir, it is. It's on page -- 6 Excuse me one minute. Are you talking about 7 Exhibit -- 0 A It's on page 10. 3 Yes, Doctor. He, according to thisreport, and 10 according to your 1953 report, he developed chloracne, did 11 he not, sir? ia A I'm reading on page 10, sir, and I'd like that to 13 be read. Ule all know he developed chloracne. I 'm not 14 talking about his chloracne, I 'm talking about the 15 hyperpigmentation and the fact -- 15 Doctor -- 17 A -- that he became emotionallydisturbed -- 10 Q Doctor -- your Honor, would you direct the witness 19 to let me ask him a question. eo THE COURT: Doctor, please, I've asked you before. ei Please follow my requests. Let the attorney ask his ea question and then respond only to the question. 33 THE WITNESS: Yes. B4 Q CBy fir. Carr) Doctor, this man, Harold Young, 97 1 developed chloracne, did he net, sir? 5 A Among other things, ha did, sir. 3 Q And he uient to a local dermatologist, did he not, 4 sir, For X-rays -- X-ray management of his skin lesions, 5 sir. E A Correct. 7 Q And after several visits to the dermatologist his a skin became dark and remained a grayish-brown color For 9 about a year; isn't that right, sir? 10 A That is correct, sir. u Q And while hereceived peeling therapy From another 15 dermatologist, he developed this same hyperpigmentation 13 problem again, did he not, sir? i 14 A Yes, sir. 15 This hyperpigmentation caused this man to go in 15 seclusion, did it not, sir? 17 A No, sir. 18 Q Doctor, look at page 9, if you would, sir. Your 19 very words, sir, quote, the hyperpigmentation has caused 50 this patient to go into seclusion. Dr. Suskind -- 21 A There's an explanation For it, sir. 52 MR. CARR: Your Honor, would you direct the 53 witness to lBt me Finish my question. 24 THE CDURT: Doctor, w e 've gone through this three SB 1 times in thB last half heur. Let the attorney ask tha 2 question, please. 3 Q CBy nr. Carr) Doctor, the words, quote, the 4 hyperpigmentation has caused this patient to go into t 5 seclusion are your words, are they not, sir? 6 A They arB, sir. 7 And, Doctor, it also paints out that this man was 0 a handsome man, active man before this hyperpigmentation S took place, and he developed a number of psychological 10 problems, things that he deeply resented following this 11 hyperpigmentation; isn't that correct, sir? 12 A No, sir. 13 Q It's not correct, sir? 14 A No, sir, it's not correct. It's not complete. t 15 Doctor, I haven't read the entire report to you, 16 but haven't I read to you what this report says, among other 17 things? 18 A Paraphrased it, yes. 13 Is it true that, Doctor, that he was a handsome f 20 man and quite proud of it, as you say on page 10? El A Yes. 22 Is it true that it caused him to have a condition 23 which he deeply resented and as a result has secluded 24 himself from most social activity? Is that also true? 99 X A No, sir. 2 Doctor, isn't that what you said? Didn't I read 3 it to you, as a result has secluded himself from most social 4 activity? 5 A That's anly part of it, sir. U)hy don't you read 6 the whole sentence? 7 I'll be glad to read the whole sentence, Doctor. 8 A Right from this man is -- from the melanoma, sir. 9 Q Let me read the entire paragraph. 10 A Okay, if you would, please. 11 Sure, Doctor, that you wrote in this exhibit. 12 ''The interview revealed the presence of a disturbing 13 emotional problem." Is that correct so far? 14 A Right. 15 "This man is handsome and quite proud of it." IB Correct, sir? 17 A That's what I wrote, sir. IB Q "He also has strong racial prejudice." 19 A That's correct. 20 Isn't that correct also, sir? 21 A That's right. 22 ''The melanoma has caused him to be mistaken for a 23 Negro, which hB deeply resents, and as a result has secluded 24 himself from mast social activity." 100 X 6 That's correct, sir. 5 Doctor, is that what you wanted me to read, that 3 this man resentsd being mistaken for a NsgroT Is that what 4 you wanted me to read, because that's what I omitted? 5 6 Correct. E G You wanted me to read that? 7 A That was in 1343, sir. B i understand that, Doctor. 9 A And there was -- 10 Q It's not 1949 now, and I wished to omit that 11 statement, Doctor. IE A But I think -- 13 G I avoided, I wished not to read that statement, 14 but you wanted it read, did you not? 15 A I did, because that points out the reason for his 16 psychaneurosis, sir. 17 He was caused to be psychoneurotic because of his IB appearance, was he not, sir? 19 A Because of his fears because of his social 50 prejudices too. El Q Did it cause him to be psychoneurotic because of EE his appearance, sir? 3 A Because of people's reaction to his appearance. 24 MR. CARR: Your Honor, would you instruct the 101 1 witness to answer my question? S THE COURT: Doctor. 3 THE WITNESS: I thought I had. 4 THE CORT: You've got to respond to the question 5 that was asked of you, not another question. Please G respond. 7 THE WITNESS: Would you read the question, please. 8 9 CQuestion read.? 10 11 THE WITNESS: No, sir. 15 (By Nr. Carr? What, other than this appearance, 13 caused him to be psychaneurotic, Doctor? 14 A The social reaction. 15 Q What caused the social reaction,Doctor? 16 A His hyperpigmentation, sir. 17 Q His hyperpigmentation caused the social reaction, 10 which caused the psychoneurosis ; is that correct, sir? 19 A Which may have been responsible for his -- SO Is that correct, sir? El A Yes, sir. SE And, therefore, the psychansurosis was a direct E3 cause,- right in linB, was it not, sir, with his 24 psychoneurosis and the hyperpigmentation? 102 1 A That was odb Factor, sir. 2 Yes, Doctor, that was the factor which caused this 3 man -- was there anything else, other than the 4 hyperpigmentation, sir, that caused his psychonsurosis, sir? 5 A Yes. 6 UJhat else, sir? 7 A His own prejudices at the time, sir. B D Doctor -- S A His own attitudes, 10 Indeed, Doctor. 11 A That's quite true, sir, and I think you've got to 12 facB it, whether it's '49 or '86. 13 Q No question about that, Doctor, indeed we do have 14 to face that. And some people have to facB it everyday of 15 their life, Doctor, 16 A You said it, sir. 17 Now, Doctor -- IB A I agree with you, completely. 19 Did Monsanto hire Just unprejudiced people in 20 1343, or did they hire the run-of-the-mill people as they 21 come in, both prejudiced and unprejudiced? 22 A I have no idea, sir. i 23 Q Doctor, indeed you do havB an idea. It's in 24 Charleston, West Uirginia. There are prejudiced people, 103 1 thsrB are unprejudiced people in Charleston and Nitro, West s (Jirginia, Just like there is in Belleville, just like there 3 is in East St. Louis, You know it's a Fact, don't you, sir? 4 MR. HEXNEMAN: May Counsel approach the bench? 5 THE COURT: Yes you may. B i 7 CThe following proceedings were had at the bench B out of the hearing of the jury:} 9 10 MR. HEINEMAN: This is surely not conceivably 11 relevant whether Monsanto hirBS prejudiced people or 15 unprejudied people. 13 MR. CARR: It is relevant, because, your Honor, 14 nobody is entitled ta be a perfect person, and, therefore, 15 if one gets injured because he is an imperfect person, that 1G is not a defense that it was caused by the product which 17 acts upon a prejudied person, and, therefore, the injury is IB the same regardless of it. The causation was thB material 19 that caused the hyperpigmentation. 50 MR. HEINEMAN: That's about as far reaching a 51 theory as I 've ever hBard about. This whole Nitro issue is 25 not relevant to the lawsuit, let alone what Monsanto's 23 hiring practices were. 54 MR. CARR: It is most certainly. It is relevant 104 X to show what dioxin caused, which your company has deniBd 2 and covered up the effects of what dioxin can cause for 3 many, many years, 4 THE COURT: Two things. There1s an old addage 5 that one takes a plaintiff as one finds them. I think 6 that's basically what you're saying here. 7 MR. CARR: That's correct. e THE COURT: This was opened up by your witness' s insistence on that part of it being read in the manner, I 10 might add, that was unresponsive to the question that was 11 being asked of him at the time, On thB basis of both of IS those grounds, your objection is overruled. You have long, 13 months ago, made your objection as far as the relevancy of 14 the Nitro incident. UJe covered it a long, long time ago. 15 So the objection is overruled, 15 17 CThe following proceedings were had in the IB presence and hearing of the jury:} 19 SO MR. CARR: Kathy, would you read the last 21 question. 1 22 23 CQuestion read.) 24 i 105 1 THE WITNESS: Probably so, sir, yes. s CBy Hr. Carr} Doctor, you know that thB emotional 3 make-up and the prejudices for good or bad that are in all 4 of us go into make up each of us; you know that, don't you, 5 sir? B NR. HEINEMAN: Excuse me, your Honor, may Counsel 7 approach thB bench again? ' B THE COURT: Yes, you may. 3 10 (The following proceedings were had at the bench 11 out of the hearing of the jury:! 15 13 NR. HEINENAN: Your Honor -14 THE COURT: Wait 'till hB gets up hBre. 15 NR. HEINENAN: Your Honor, the pursuit of this IB entire thing is nothing -- it has nothing to do with the 17 merits of this lawsuit. It is designed to inflame members 18 of the jury. I object to it. I think it's an issue that we IS must discuss very strongly. I would ask the Court for a 50 recess so that tua can go into chambers and discuss this 21 question. It is a very serious problem to be raising these 25 issues in front of this Jury. 23 NR. CARR: I didn't raise the issue, Counsel. 24 THE COURT: The objection is overruled. I've 106 1 already ruled on it. I think my ruling is correct. Your s objection is overruled. It has bBen more than adequately 3 covered at this conference at the bench, fly ruling is that I 4 it's not improper. The abjection is overruled. I 'll make 5 it a continuing objection to the line of questioning, 6 reserving all of your objections. 7 8 CThe following proceedings were had in the 9 presence and hearing of the Jury:) 10 11 MR. CARR: Would you read my last question again? 12 13 (Question read.) 14 15 THE WITNESS: In part, sir, yes. IB Q (By Hr. Carr) Doctor, is it your belief that 17 Monsanto is entitled to expose to contaminants only those 18 people who are unprejudiced or are people who have biases 19 and prejudices also entitled not to be exposed to harmful 20 materials? 21 A I don't understand the question, sir. 22 MR. HEINEMAN: Your Honor, may Counsel approach 23 the bench? 24 Q (By Mr. Carr) It's so simple -- 107 1 THE COURT: Yes, you may. a 3 CThe following proceedings ujsre had at thB bBnch 4 out of the hearing of thB Jury:) 5 6 MR. HEINEMAN: This is completely irrelevant, your 7 Honor. The question, to ask this witness* opinion as to a what Monsanto is or is not entitled to do is absolutely a irrelevant. Now this is ridiculous. Mr. Carr continues to 10 pursue this question. He*s trying to raise some n inflammatory issue in front of thB jury. I mean it*s bad is enough that it*s gone as far as it has, but he keeps 13 pursuing it and turning thB knifB in this issue in front of 14 this Jury, and I object to it. Whether or not Monsanto is 15 entitled to do this or isn*t entitled to do it, this witness 16 is not competent to say. 17 MR. CARR: But he has done so. He has implied, he IB said, "Ahh, this person is prejudiced," H e 's implied, 19 therefore, it's just tough that he happened to get -- SO MR. HEINEMAN: That isn't what he said. SI MR. CARR: Yes, indeed. ss THE COURT: Okay. You are now repeating S3 objections. The other two times you came up here they were S4 new, they hadn't been raised before. You are now repeating xoa 1 irrelevance and inflammatory objections. You've made it 2 before, in which I've also made as a continuing objection. 3 They are continuing. They are For this entire line d F 4 questioning. Unless you have a new abjection, don't -- I 5 notice also that after each of the questions in this line of 6 questioning there's been such an objection. Unless you have 7 a new objection and not a continuing objection, because I a don't want every question stopped for a minute or a couplB g of minutes and have you come up to the bench for a 10 conference for something w e 've already done. So keep that 11 in mind in your future objections. As I've done before, 12 these objections are overruled. 13 14 CThe following proceedings were had in thB 15 presence and hearing of thB jury:} IB 17 MR. CARR: Would you read the last question again, ie please. 19 20 CQuestion read.) 21 22 THE WITNESS: I think the quesion -- the answer is 23 very obvious. It's no, sir. 24 CBy Mr. Carr) Monsanto is entitled to harm 109 1 anybody, whether they're prejudied or unprejudiced; isn't E that correct, sir? 3 A I don't know how to answer that question. You use 4 the word "entitled." 5 Q The employer takes the employees in that condition 6 that they're Found, they't b -subject to an examination, a 7 pyhsical, if they want a mental examination, and they take Q those employees for good or bad as they are; isn't that 9 correct? 10 A Absolutely, sir. Absolutely. 11 Q Simply because this man is racially prejudiced is 15 no reason Far him not to be able to say that his emotional 13 problems were caused by his -- his psychDneurotic problems 14 were caused by the hyperpigmentation, which was caused by 15 the chemical; isn't that correct, sir? 16 A I don't understand the question. It's a very long 17 one, sir. It has many different parts. Would you mind IB repeating the question so I can take it apart. 19 20 (Question read.) SI 52 THE WITNESS: I didn't say that. 53 Q (By fir. Carr) Could you answer that question, 54 please, sir. 110 1 A I don't know how to answer it, sir. s You can answer it yes, Monsanto, or you can answer 3 it no, Monsanto. 4 A Would you restate the question so I understand it, 5 sir, please. 6 Q Would you read the question again to him, please. 7 B CQuestion read.) 9 10 THE WITNESS: He can say that if he wishes, sure. 11 Q CBy Mr. Carr) Doctor -- 1 A The answer was yes, he can say that if he wishes. 13 Doctor, isn't it appropriate that he should say V 14 that, that his hyperpigmentaion, if he is a prejudiced 15 individual, and the hyperpigmentation acts upon him as he 16 was the way Monsanto hired him, isn't he entitled to say, 17 "Hey, I 'm psychoneurotic because of what Monsanto did to me IB as a human being, as an entity, with my prejudices, with my 19 likes, with my dislikes?" Isn't he entitled to say that, E0 sir? El A If he wants to, yes, sir. sa MR. HEINEMAN: Your Honor, excuse me, may we S3 approach the bench? E4 THE COURT: Yes, you may. \ 111 1 CThe following proceedings were had at the bench s out of the hearing of the jury.O 3 4 MR HEINENAN: Now he's asking the witness to make 5 mortal judgments, legal judgments, what this man is entitled 6 to da or entitled not to da. That's not relevant. 7 NR. CARR: Oh, your Honor -- a NR. HEINENAN: This witness is not competent for a that. 10 THE COURT: I want to stop you right now. You are u repeating an objection you made before, and I asked you not 12 to do it. I have overruled it before. I am overruling it 13 now. This question is no different than the other question. 14 NR. HEINENAN: It is different. 15 THE CDURT: It is not. Objection is overruled. IB Let's get back to the question. 17 IB CThe following proceedings were had in the 19 presence and hearing of the jury:5 20 \ 21 Q CBy Nr. Carr} Doctor, you understand the reason 22 for that question is because you said that Harold Young was 23 prejudiced, and his psychoneurosis results from his 24 prejudice; isn't that correct, sir? 112 1 A No, sir. s 1 What did his pshchoneurasis result from, then, 3 sir? 4 A The psychonBurosis, as I understand it, in part or 5 altogether, and psychoneuroses are not due tD just one 6 thing, sir, there are many factors, many factors. 7 Q Doctor, when you get back to it, would you answer 8 my question, sir? S A Yes, I will, indeed. He found himself in a 10 socially difficult situation. To him he was unacceptable. 11 Now that's a social situation. 12 Q And what caused -- 13 A That's a social situaicn. 14 What caused him to be unacceptable in his eyes, 1S Doctor? 16 A In his eyes, the hyperpigmentation did. 17 Doctor, and what caused thB hyperpigmentation? IB A The treatment that he got. 19 Q And what caused the treatment that he got, Doctor? 20 UJhy did he get the treatment that he got? El A Well, he had chloracnB to start with. 25 Yes, Doctor. And what caused the chloracne, 23 Doctor? 24 A The chloracne was associated with his exposure to i 113 1 TCP. . e Q Doctor, his psychoneurosis is related to the 3 circumstance in 1949, is it not, sir? 4 A Not altogether. 5 Q Doctor, I didn't say altogether, did I, sir? I 6 said it is related to thB 1949 incident, is it not, sir? 7 A Remotely, yes. o 6 Q Remotely? 9 A Yes. 10 Q The chloracns istreated by an ordinary type 11 treatment tha dermatologists use,X-ray, andbecause of this 12 man's particular molecular make-up, X-rays on his skin, 13 maybe not on your skin, and maybe not on my skin, but the 14 way this man is made, the X-rays caused him to be grayish15 brown in color. 16 A Correct, 17 And that caused -- and the grayish-brown in color 18 caused the social problem, and that social problem caused 19 the neurosis, coupled with his prejudice; isn't that 50 correct, sir? 21 A I would say inpart. 22 Wall, what else is there involved? 23 A Well -- 24 Q What have I omitted, Doctor? 114 1 A He was having problems at home. 2 Q Oh, Doctor, where's that? 3 to Well -- 4 Where's that? 5 to He told us -- 6 Problems at home not connected with his appearance 7 and his view of himself, Doctor? B to I don't know. I have no idea. 9 Doctor, why do you 3ay it if you don't know? Back 10 to my question, please, sir. The social problem was caused 11 by a combination of the way he existed as a human being, 12 coupled with the grayish-brownish color; isn't that correct, 13 sir? 14 to The social problem was associated with some of 15 that, yes, sir. 16 Q It was caused by it, wasn't it, Doctor? Is there 17 any other cause mentioned in your report other than his IB grayish-brownish color that caused his social problems and 19 caused his problems at home and caused all of his problems, 20 psychoneurotically speaking? 21 to Yes, the incidents that occur. 22 What incidents that occur, Doctor? 23 to The incidents that w e 've referred to. It happened 24 to be on a bus. 115 X Doctorf that's all connected with his grayishs brownish color, isn't it, sir? 3 A Yes, but -- 4 Doctor -- 5 A IF the incident hadn't occurred, sir -- 6 G Doctor, will you get back to my question. 7 A IF the incident hadn't occurred, he wouldn't have Q reacted that way. 3 Doctor, would you get back to my question, sir. 10 The incident was caused by his grahish-brownish color, 11 wasn't it, sir? 12 A No, sir. 13 What other cause was there, sir? 14 A The incident was also caused by the social 15 prejudices oF that era, sir, in West Uirginia. 16 The social prejudies oF that era are not sd Far 17 gone, they're still here in this era, sir. The question ia that I'm asking you, Doctor, his social problems were caused 19 by the hyperpigmentation, the grayish-brownish color, were 20 they not, sir? As he was living -- 21 A In part, sir. 22 0 As he was living as a human being at that time in 23 that society. 24 A In part, sir. In part. 116 1 Q What else caused the social problem, sir? a A As I just pointed out, the cultural attitudes that 3 existed in that -- 4 Doctor, that's the culture that he was living in. 5 That's the fluid that hB was swimming in. He would not have 6 had the problems in that culture were he not grayish-brown, 7 would he, sir? 8 MR. HEINEMAN: Object, your Honor, he interrupted 9 thB answer. 10 THE COURT: Objection is overruled. 11 THE WITNESS: There were many questions there. 12 Would you repeat the question? 13 Q CBy Mr. Carr) Doctor, he would not have had the 14 reaction on "the bus and elsewhere were he not that color. 15 He would not have perceived these actions as being against 16 him. 17 A Probably not, sir. IQ Doctor, was the color, the grayish-brownish color 13 that caused it, when he went out in public, and he saw ao people reacting to this particular grayish-brownish color; 21 isn't that correct, sir? aa A That's true, sir. 83 And, Doctor, that was caused by thB treatment that 84 he received on his particular kind of skin; isn't that 117 1 right, sir? 2 A Probably sa, sir. 3 And, Doctor, ths treatment tuas necessary and used 4 by competent dermatologists on others who had chloracne; 5 isn't that correct, sir? 6 A No, sir. 7 Oh, other dermatologists did not use k-ray B treatment? 9 A They did eroneously,unfortunately. 10 D My question is didn't other competent 11 dermatologists use X-ray on the chloracnB? 12 A Others did, but competent I mould have to say I 13 don't know. I would question their competency. 14 Q Doctor, are you now blaming the dermatologists, 15 Doctor? 16 A I 'm Just saying that the dermatologists didn't 17 realize -- IB Q My question, Doctor, are you now blaming the 19 dermatologist? Do I have to go through and demonstrate to 20 you -- 21 A I 'm not blaming them, sir. It was inappropriate 52 treatment For chloraone. 23 Q Who knew that, Doctor? Did the dermatologist know 24 it? 1 A They could havB realized it -- 2 Did the dermatologist know it, Doctor? 3 A They could have realized it by dtping it. 4 Could have realized by doing it, 5 A Yes, sir. They could have realized their error -- 6 first of all, X-ray didn't cure it, X-ray cpnly made it 7 morse. B Doctor, who knew that? Who had xperiBnce in 9 treating chloracne at that time? 10 ft There were a few people who did. 11 How many in the country, sir? 12 ft Well, I don't know numbers, sir. 13 It would be very Few, wouldn't it, sir? 14 ft There would be a Few. 15 Q Yes,. Doctor, a few. Are you blaming these 16 dermatologists for using a treatment that qnly a very few 17 people might know would be inappropriate? IB A I 'm not blaming them, sir, no. 19 Doctor, let's pass on from ths dermatologists. 20 His treatment was caused -- the treatment qaused the 21 grayish-brownish color, didn't it, sir? 22 A In that man, yes. 23 And the treatment was called for 24 chloracne, wasn't it, sir? 113 X A It wasn't called far, sir. s Q Doctor, did the man rrfake the decision to treat 3 himsBlf with X-ray or did a doctor exercising his best 4 judgment at that time, whether far the good or far the bad, 5 did a doctor make the decision that this is chloracne, or E this is acne, I better treat it with X-ray? Did a doctor do 7 that? B A A doctor madB the decision, yes, sir. 3 Q And the doctor was caused to make the decision 10 because he saw the condition in the man; isn't that correct, 11 sir? 15 A Yes. 13 And the condition in the man was caused by the 14 5,4,5-T and its contaminant, wasn't it, sir? 15 A The condition was associated with 5,4,5-T and its 16 contaminants. 17 Q The chloracne was not caused, sir. Haven't you IB demonstrated time and time again that TCDD causes chloracne? 13 Didn't you write a paper saying chloracne - hallmark of 50 dioxin exposure? 51 A Hr. Carr, you said 5,4,5-T. i 55 Q And its contaminants, Doctor. S3 A 5,4,5-T doesn't cause chloracne. 54 Q Doctor, did you hear me say 5,4,5-T and its 120 { 1 contaminants? 2 A You have to separate them, 3 Dotor, did you hear me say uthen you're exposed to 4 2,4,5-T? It has got the contaminant in it, you can't 5 separate it. 6 A Yes, you can. 7 Monsanto could have separated it, couldn't they, B sir? 3 A No. We have proven -- 10 Now, Doctor, without all this byplay, sir, the 11 contaminant in the 2,4,5-T is what caused the condition that 12 caused the dermatologist to treat thB condition; isn't that 13 right, sir? 14 A I assume that that's so, sir. 15 Q And the man's biological make-up, coupled with IB that treatment is uihat caused the grayish-brownish color; 17 isn't that correct, sir? IB A Ulould you repeat the question, please. i 13 20 (Question read.? 21 22 THE WITNESS: Yes, I believe it is, sir. 1 23 Q (By Mr. Carr? And, Doctor, the grayish-brownish 24 color coupled with the man's prejudices caused his i 151 I 1 psychoneurosis, did it not, sir? 5 A No, sir. 3 What caused it iF it wasn't those two things, sir, 4 his grayish-brownish color and his prejudice? What other 5 Factor caused it? 6 A The social response -- 7 G3 Doctor -- B A -- aF his Friends. 9 Q -- that was a response, that was a result. 10 NR. HEINENAN: Objection, Can the witness answer? 11 THE COURT: The abjection is overruled. J IE CBy Nr. Carr!) That was a result oF his color and 13 his prejudice, was it not, sir? The social response was a 14 result oF his color and his prejudice combined? 15 A No, sir. 16 Q We haven't established that? \ 17 A No, sir. IQ Q All right. What caused the social result then, 19 Doctor, iF it wasn't his prejudice coupled with his color? ao A The social response, sir, and please let me 51 Finish, the social response to this man unFortunately at the SE time was the result oF a cultural attitude. Cultural 53 attitude. And his prejudices had nothing to do with it. ) 54 Nothing to do with the cultural response. His prejudice was T" 122 r ,j c i 1 involved in how he reacted to that -- s Q And that caused the neurosis and that's what my 3 question is aiming at, Doctor. 4 A Let me finish, sir. The combination of the fact 5 that he had prejudices and there were social responses which 6 he resented, the combined circumstance played a role in his 7 neurosis. a Doctor, I'll certainly accept that, and, 9 therefore, the circumstances in question, the incident was 10 responsible for, coupled with these other problems, the u attitudes of society, his own attitudes, his biological 12 make-up, the treatment that he got caused by his 13 psychoneurosis; isn't that correct, sir? They were all 14 factors which added together caused his neurosis; isn't that 15 correct, sir? 16 A No. There was a sequence of events, sir. 17 Q Doctor, isn't that what you do when you have a IB sequence of events, you add things together? 19 A It's not additive. Sequence doesn't mean 20 addition, sir. 21 Q Doctor, these events combined to cause the 22 psychoneurosis, did thBy not, sir? ( 23 A The events lad to the psychoneurosis, yes, sir. 24 Q Doctor, it is, therefore, an incident that is i 1 123 1 associated with the circumstances, but I asked you to give 2 me psychoneuroses cases that were not connected uiith, that 3 were not associated with this circumstance of this 1949 4 autoclave reaction. Now, sir, please name me, if you can, 5 any psychoneurosis in these mBn, one or more, that was not 6 associatd with the circumstance in question, sir. 7 A UJs only examined those people -- B Doctor, would you answer my question, please, sir. i 3 A I said we only examined those people who had 10 chloracne. 11 NR. CARR: Your Honor, would you direct the 12 witness to answer my question, 13 THE COURT: Doctor. 14 THE WITNESS: Yes, sir. 15 THE COURT: Please answer the question. You have 16 to give an answer that responds to the question and not an 17 answer that's not related to it. IB THE WITNESS: Thank you. Would you read the 13 question, please, 20 21 (Question read.5 22 23 THE WITNESS: I don't know of any case other than 24 those we examined, and thoss that you have presented to me, 124 1 sir. 2 CBy Mr. Garrl Then you know oF no casBS other 3 than these that are associated with the incident, no 4 circumstances, sir, other than the incident that could have J 5 caused the psychoneurosis in these men? 6 A I haven't looked for them, sir. 7 Q Sir? 8 A I haven't looked For them. 3 Doctor, is an answer to my question that you havB 10 no knowledge of any circumstance other than this '49 11 reaction that could have played a rale in causing these men 12 to become neurotic? 13 A My answer is that I only know these cases which 14 you have^presented to me, sir. 15 MR. CARR: Your Honor, plBase direct the witness 1G to answer my question. 17 THE WITNESS: Well, I am. IB THE COURT: Doctor, you're not. ThB answer was 19 not responsive to the question. Please listen to the 20 question again and respond to the question that was asked oF 21 you and not something else. Could you read the question 22 back one more time? 23 MR. HEINEMAN; Your Honor, may Counsel approach 24 the bench? 125 1 THE COURT: Yes, you may. 5 3 CThs Following proceedings were had at the bench 4 out of the hearing of the jury:J 5 6 MR. HEINEMAN: Your Honor, I'd like to object. 7 That answer was directly responsive to the question. B THE COURT: No, it was not. He was asked whether 9 he knew of any. He gave an explanation as to why he did not 10 know of any others, and that being that he hasn't looked for 11 any others. That may be a reason for an answer that he IS doesn't know of any others, but it is not in answer to the 13 question of do you know of any others. It's just typical of 14 what he's been doing throughout this. He was asked does he 15 know of any others, for his knowledge or lack of knowledge, 16 rather in answering the question about whether such 17 knowledge exists. It was not at all responsive to the IB question. 19 MR. HEINEMAN: Obviously I disagree with the SO Court's interpretation. The answer in my opinion was SI responsive to the question. I object to the Court's ss instruction of the witness. S3 THE COURT: Objection is overruled. 24 126 1 CThe following proceedings ware had in the s presence and hearing of the jury:) 3 4 CBy Mr. Carr) Would you answer the question, S please, Dr. Suskind. 5 A I don't know of any other cases except those we \ 7 discussed, sir. a Q Doctor, that isn't my question. My question is do 9 you know of any other circumstance that could have caused 10 the psychoneuroses in these men, other than the circumstance 11 of this autoclave reaction? 15 A I 'm not sure I can answer the question, sir. 13 Do you have knowledge of any other circumstances 14 that could havB caused any one of these men to become t 15 neurotic other than the circumstances of the autoclave 16 reaction? 17 A If the Court will permit mB, if I looked for them, 10 sir, I could answer the question. If I looked for them, 19 Doctor, I'm asking you as to your present SO knowledge. You suggested to this jury when I started on 21 this line of cross examination that there were other 25 circumstances that caused thesB men to be neurotic, I wish 23 to establish, as you know, Doctor, that you don't know of 54 any other circumstances. 127 1 You gave us one that you said was a circumstance 2 not connected with the incident, Now I'm asking you, sir, 3 do you know oF any other circumstances that could have 4 caused these men to become neurotic other than their 5 connection with this incident? 6 Now just tell me whether you have knowledge. If 7 you do know of some other circumstances, then tell me what e they are. If you don't know of any other circumstances, For 3 whatever reason you don't know of any other circumstances, 10 you haven't read it, you haven't looked for it, then tell 11 me, sir, that you don't know of any other circumstances 12 other than this incident that could have caused these men to 13 become neurotic. 14 A I can answer that question, sir. From the work 15 I've donB, I don't know of any other. IS All right. 17 A From the work I've done. 18 Q Thank you, Doctor. Then we have either the 19 incident itself caused the men to become neurotic, so far as 20 you know, or the materials that were involved in the 21 incident caused the men to become neurotic according to Or. 22 Nestmann; is that correct, sir? 23 A Would you read the question back, 24 120 1 CQuestion read.) s 3 THE WITNESS: I would say no, sir. 4 Q CBy Mr. Carr) How is it incorrect, Doctor? 5 A It's incorrect because I believe that when Dr. 6 Nestmann compares, in Mr. Willard, For example, the 7 psychaneurosis to combat fatigue, which we went into S earlier, what he was saying was that thBSB -- this man at 9 least developed a fear of thB, of what might happen, a Fear. 10 This is an anxiety neurosis. 11 There are 29 different kinds of neuroses, and Mr, IS Willard had a kind of chronic anxiety neurosis, the fear of 13 his becoming ill. For example, he knew that his father had 14 died d F a stroke in his '40's. He knew that his brothers, 15 one brother died of a -- of a coronary occlusion at age 46 16 and another at 60, and hB was Fearful. Hb was fearful that 17 this circumstance might produce heart diseasa. And that was 16 an anxiety reaction, sir, 13 That was thereabout a circumstance that led him to SO believe that it might cause heart disease? 1 A I can tell you what that was. Earlier when we gg examined these people in '43 and '50 they ware ill. They 3 had problems. We described them. Those people who 54 developed psychoneuroses, anxiety neuroses, some of their 129 1 Fears -- thBir Fears didn't go away. They continued to have 2 those Fears. So they had aches and pains and they had 3 nervousness and Mr. Willard complained of heart disease, and 4 I think Dr. Nestmann was saying that as in combat fatigue 5 thBy had -- they had Fears oF the risks that the original -- 6 the original incident might have been responsible for. 7 0 Well, Doctor, then their psychoneuroses was 6 associated with the incident because their fear was caused 9 by the incident; isn't that correct, sir? 10 A The fears were related to the incident, yes. 11 Q Doctor, and it wasn't an explosion that caused 12 these men to be fearful, was it, sir? 13 A Well, I don't believe there was an explosion, sir. 14 Q It wasn't an explosion that caused these men to be 15 Fearful, was it, sir? 16 A N o . 17 Q It was what happened to their body following their 10 exposure that caused them to be Fearful, wasn't it, sir? 19 A That happened to some of them, especially right 20 after the incident, sir, yes. 21 Doctor, it was what happened to all of them, the 22 original Four that you saw and 29 out of the 36 that you saw 23 in '53, that's what put the fear in them, isn't it, sir? 24 A No, sir. 130 1 Wall, what is it -- what is it that you just explained to us, sir, that put the Fear in them? Didn't>you 3 just tell us it was what happened to them, what happened to 4 their bodies that caused them to be Fearful? Didn't you 5 just tell us that, Doctor, or am I imagining that? 6 ft No, I said that, sir. 7 Q All right. Doctor, that's what I said. 8 A Hold it, sir. Not in 1953, sir. In 1953 there 9 were a few, and we cite Willard as one of them, who was a 10 continuous complainer and who was psychoneurotic. We only Il cited him and some others, but mostly him. I have referred ls to that description of his psychoneurosis on e number of 13 occasions, and it's not different from this. It's not 14 different from this. As a matter of fact, this is dated May 15 4, 1955, and our examination was -- 16 Q 1953. Doctor, it's 1953. 17 A I'm sorry, *53. IQ Q Yes. IS A I'm sorry. Thank you. And our examination was in SO the middle of April in 1953. So what we were doing SI essentially was seeing the same thing. ss And that's fine, Doctor. How was it caused in S3 him? It was caused by fear, wasn't it, Doctor? E4 A I bBlieve he*hadsome fear, sure. 131 1 And the fear mas caused by what happened to his B body, wasn't it, sir? 3 A Originally. 4 Well, Doctor, I don't care whether it's originally 5 or Finally. ThB fear that that man had in him was caused in G him by what happened in his body. 7 A Back in 1950, '43. B Back in 1949, back in 1950, whenever it happened. 9 The fear that was caused to him was caused by what happened 10 to his body, wasn't that correct, sir? 11 A I believe that was part of it, plus the fact -- 1H Well, what else, Doctor, what other things caused 13 his fear, other than what happened to his body? 14 A I was describing his fear of heart disease, sir. 15 Q That's something that happened to his body. He IB worried about is he going to get heart disease. 17 A That was not the result of the incident, sir. IB That was a fear because he had a family history of heart 19 disease and stroke. SO Q Doctor, shouldn't he have a fear of heart disease SI if h B 's got a history of heart disease in his family? B2 Shouldn't he have a fear? 23 A But that has nothing to do with the incident. 24 Excuse me, Doctor. I suggest to you it has 13S 1 everything to do with it. Hasn't he got the right to have a s Fear if he's got a Family history oF heart disease? Hasn't 3 he got the right to have that Fear, Doctor? 4 A I cannot accept the word ''right," sir, because 5 there's no such thing as right. 6 Isn't it a consequence oF a Family history oF 7 heart disease, isn't it a consequence that you too will have e that Fear that perhaps it's going to happen to you? 9 A Yes. xo And, Doctor, when you have that kind oF history n you know that it takes less trauma, less exposure to toxic IE substances, less other things to cause heart disease in you 13 than it does in perhaps somebody that has no Family history; 14 isn't that also true? 15 A No, sir. IB Oh, in what way is itFalse? 17 A Well, you know, I 'm not altogether sure that I IB understand what you're associating this with. 19 Doctor, you knowexactly what I 'm saying. E0 A Would you read the question, please, the First El question. EE S3 CQuestion read.) S4 133 1 THE WITNESS: Absolutely not. That's not so, sir. i There's no proof of that at all in all studies that have 3 bsen done. 4 Q CBy Mr. Carr) Doctor, is it a belief that people 5 have? 6 A What is a belief that people have? 7 As I stated, that exposure to toxic substances, to B trauma, to things of this sort, can^cause heart disease? 9 A No. It's -- if it is, it's an eroneous belief, 10 sir. 11 Q Whether it's eroneous or not is immaterial to me. IE It caused a Fear in this man, did it not, sir? / 13 A No, sir. 14 Q What caused the fear then, sir? What uias he 15 afraid of? Was ha afraid of dying of a heart attack because 16 he uas exposed to these substances? Was that his fear? 17 A He uas afraid of dying Df a heart attack because 16 he had a family history, sir. 19 Q And not associated with this substance, sir? SO A The Family history wasn't associated with it. El Q Doctor, did he have the neurotic condition before EE he was exposed to the substance or not, according to your S3 records? Let me answer it, Doctor. It was stated on page 24 five that the nervousness in all of these individuals came 134 1 up after the exposure to thB substance. That's what you a said in 1953; isn't that right, sir? 3 A That's what us were told, yes. 4 So his nervousness, his fear came up after his 5 exposure to the toxic substances; isn't that right, sir? 6 A His nervousness, yes. 7 Q find Dr. Nestmann even described it as being 8 exposed to toxic gases, didn't he, sir? 9 A Yes, I believe that he does have that kind of 10 description. 11 So this man's fear of heart disease cams up, his IS neurosis came up after his exposure, didn't it, sir? 13 A In time, sir, yes. 14 In time, that's whatI'm talking about. After is 15 in time, isn't it, sir? Could I have an exhibit marked IB 174B-A? 17 IB CPlaintiffs' Exhibit 1748-A was marked for 19 identification by the court reporter.! SO SI CBy hr. Carr! Doctor, you recognize what's been SB marked 174B-A as a blow-up of Plaintiffs' Exhibit 1748? S3 The Identification is right there, Doctor. You're looking 24 at thB wrong place, Doctor. Look up here. Do you recognize 135 1 it as a blDW-up of Plaintiffs' Exhibit 174B7 A Yes. 3 MR. CARR: I offer 174B-A into evidence, if it 4 plsase the Court. 5 THE COURT: Any objection? 6 MR. HEINEMAN: It's this thing? i 7 MR. CARR: Yes. a MR. HE INEMAN: Your Honor, may we incorporate the 3 same abjection that uie made uiith respect to this document 10 that we did before? 11 THE COURT: Sure. I 'll incorporate all arguments IE on it. It's admitted ovBr objection. 13 THE WITNESS: There we are, 14 CBy Mr. Carr) Doctor, of thosB persons, of the 36 15 that you saw in 1S53, of those persons that died according 16 to the death certificates that we have up to the prssent 17 time, how many of those people died of heart disease or ia something that's been described as circlatory disease which ( 13 could well be heart disease? And, Doctor, the men that died 50 of heart disease at agB 4E, at age of 40.5, at age of 35, at El age of -- I 'm sorry, I'm reading the wrong callumn. I'm SE reading their life expectancy. I apologize. Died of heart S3 disease at the age of 43, 43, circlatory disease at 75, E4 heart disease at 4E, heart disease at 54, heart disease at 136 1 47, heart disBasB at 43, heart diseasa at 45 and at 69; 2 isn't that correct, sir? 3 MR. HEINEMAN: Excuse me, your Honor. 4 THE WITNESS: I don't see a 47, sir. 5 MR. HEINEMAN: Ex c u s b me. 6 THE WITNESS: I sea the numbers -- 7 MR. CARR: Did I say 47? 8 THE WITNESS: Yes. That's all right, Whatever it S mas, 10 MR. CARR: 67. 11 THE WITNESS: 67. IE MR. HEINEMAN: That's what it was. 13 Q CBy Mr. Carr) Isn't that correct, sir? 14 A Yes. 15 Doctor, would it be reasonable to say that there 16 arB no othBr causes of death other than the cancer on these 17 death certificates; isn't that correct, sir? IS A I don't know, sir. I haven't seBn them. 15 On this chart, Doctor. 20 A You said death certificates, and let's stick to 21 that. I haven't seen the death certificates. There could 22 have been other causas too. ' 23 Q Doctor, you have seen the deathcertificates 24 because ws went through them when we made this board. 137 1 There were two other causes, one mas Steele, a neurotic, who s committed suicide, a psychoneurotic, got psychoneurotic 3 after that, and committed suicide, and the other, sir, was a 4 man that uias killed in an automobile-train collision. 5 M R . HEINEHAN: Objection. 6 Q CBy fir. Carr) Those are the deaths, sir, 7 HR. HEINEHAN: Objection, your Honor. Hay Counsel e aproach the bench? 3 THE COURT: Sure. 10 11 CThe following proceedings were had at the bench IH out of the hearing of the jury:) 13 14 HR. HEINEHAN: I don't bBlieve w e 've had any 15 evidence that SteelB was a psychoneurotic. I object to that IB potion of the question. 17 HR. CARR: I'll be glad to change that. I will be IB glad to change that. 19 HR. HEINEHAN: But why was it said in the first 50 place, when you know thB evidence isn't in thera? HI THE COURT: Objection is sustained. 55 53 CThe following proceedings were had in the H4 presence and hearing of the jury:) 139 1 CBy Nr. Carri Doctor, with regard tD Nr. Steele, 2 we have no report on Steele From Dr. Nestmann, have we, sir? 3 Do we, sir? 4 A I haven't seen it. 5 But we do have your report which -- 6 A in the exhibits. 7 We do have your report which said he had B nervousness Following the accidenti correct, sir? Page 9 d F 9 Exhibit 1701, Doctor, your 1953 report. 10 A He had a history oF nervousness. A history. 11 D Yes, Doctor, indeed. Following the incident? IS A Right. 13 Q And not bBfore; correct, Doctor? 14 A Yes. 15 And this man committed suicide, didn't he, sir? 1G A I don't know. 17 Doctor, oF thedeath certiFicatesthat you've seen IB oF the men, oF thB 35 that have died subsequent to their 19 exposure, it's been cancer or heart disease, hasn't it, sir? 20 A No. What I was reFerring to is the other -- 21 Q Excuse me, Doctor, could you answer my question, 22 pleasB, sir. 23 A No, sir. 24 What other causes oF death have we had oFthese 139 1 35, sir, other than cancer cr heart disease? 2 A On the -- 3 And other than the accident and the suicide. 4 A Dn the death certificates there are usually 5 secondary causes. S Excuse me, Doctor. 7 A And I haven't seenthat. 0 UJe went through the death certificates, Doctor. 9 You looked at each of them. You agreed at the time the L 10 cause of death on the death certificates on these men was as 11 stated here, Doctor. 12 A Those were listed as the primary cause, sir. 13 Q Doctor, I don't carB what it was listed. 14 A I d o . 15 Da you agree this was the cause of death? 1G A It was the primary cause given, sir. 17 Q Fine with me, Doctor. The primary cause of death IB were these conditions, cancer and hBart diseasej correct, 19 sir? 20 A That's what was listed, and that's how you have it 21 listed, sir. 22 Q Now, Doctor, would you say that a fear in Mr. 23 Willard that he might die of heart disease would be 24 reasonable? 140 1 A No, sir, bBcause our findings on Mr. UJillard werB 5 negative. 3 All right, Doctor. Your findings on all thesa 4 peopla lUBre negative as far as heart. You didn't diagnose a 5 single one of them as having any heart problems when you saw 6 them in 1953, did you, sir? 7 A We didn't do ECG's on these people, sir. B Q Then why do you say you didn't find it in Mr, 9 Willard, sir? 10 A In 1979 wb didn't find it in Nr. Willard, sir. 11 Doctor, we're talking about fears that developed 12 in 1953, 1949 and 1950, aren't ujb, sir? 13 A You gave me -- you gave me -- we're talking about 14 causes of death, and Mr. Willard. 15 Q Doctor, did you find -- no, uia're talking about 15 his fear, Doctor. 17 A Okay. Fears which would lead to death due to IB heart disease? 19 Q Oh, no, Doctor. I'm not saying the fear causes 20 the heart disease. Did you believe that I said fear causes 21 heart disease? I'm suggesting to you, Doctor, that this 22 exposure, either the materials caused the neuroses, or the 23 incident itself caused the neuroses is what I'm suggesting 24 to you, that you have said, and Dr. Nsstmann has said; isn't 141 1 that correct, sir? 2 A I have said it was the circumstance, yes, 3 That caused it; correct, sir? 4 A That might be responsible For their anxiety. 5 Q Doctor -- oh, is the nervousness now something G different than the neurosis? 7 A No, it isn't. I called it a few minutes ago -- B The neuroses, the nervousness, thB anxiety, was 3 caused by in these men what happened to them at the time of 10 and following the incident when they were exposed to the 11 5,4,5-T and its contaminant; isn't that correct, sir? 15 A No, sir. 13 How is it incorrect, Doctor? 14 A It's incorrect because they feared what might 15 happen to them. 16 Q Doctor, isn't that what I said? 17 MR. HEINEMAN: Objection, hB interrupted the 18 answer. IS THE WITNESS: I don't think you said it that way-. 50 THE COURT: The objection is overruled. 51 CBy Mr. Carr} I'll accept that statement. It was 55 their fear of what was going to happen to thBmthat caused 53 the neurosis; correct, sir? 54 A That is associated with the neurosis, yes. 142 1 Q What caused thB fear, Doctor? a A As we said before, the fear was stimulated by the 3 presence in 1343 and '50 of illness. 4 Q Yes. 5 A And they Feared that going back in to the plant or 6 working in that plant might have an adverse eFFect on them. 7 Doctor, they continued to have that Fear even when a they didn't work in the place where thB 2,4,5-T was made, s didn't they? 10 A Yes, they did. 11 0 IhBy continued to have it, and that Fear was 12 caused by the incident, wasn't it, sir? 13 A It was caused by the circumstance of the incident. 14 Yes. Thank you, Doctor. 15 THE COURT: Mr. Carr, is this a good point to 1G break? 17 MR. CARR: Yes, yaUr Honor. IB THE COURT: Ladies and gentlemen, we, as I told 13 you before, are going to break For the day at this point in HO time. We will resume again Monday at 3:30. I would remind 21 you as I do on any overnight break, you're not to read, 22 listen to or watch anything about this case in particular or 23 subject matter in general in any of the media, print or 24 electronic. Thank you For your attention and cooperation 143 1 this meek. Have a good weekend. U s 'll see you Monday 2 morning. Court is adjourned. 3 Gentlemen, could I see you For a minute? 4 5 CThe following proceedings were had in chambers 6 out oF the presence of the Jury:5 7 B MR. CRAUEN: Before we gat into the two motions S that have been tendered since the 55th of February, we would 10 make a Motion for Mistrial based an what we consider to be 11 some outrages in the courtroom this afternoon. IS U)e would like the Court to make available to us 13 a -- a copy of the audio tape, because in many respects the 14 record itself perhaps can't do justice to that which has 15 happened. But in his abuse and examination of Or. Suskind, 16 M r . Carr has absolutely gone beyond the bounds. He has 17 suggested in front of the Jury, without any interference by 10 the Court, that Monsanto could have had a mental examination IS of its employees and excluded people with prejudices, they SO hired people with prejudices. ai He has resorted to some things that I'm sorry to 22 have to say this, but apparently w e 're trying a different S3 case. He is Just abusing Dr. Suskind beyond any semblance S4 of reason, and then the final straw is that Mr. Carr can sit  144 1 there and make thssB on-going speeches in the form of s questions, and Mr. Heineman was ordered not to even -- he 3 can't make a speaking objection, Then hB was ordered not to 4 approach the bench anymore with objections, S THE COURT: No, that's not correct, With repeats S of the same abjections, 7 MR. CRAUEN: Judge, that whole scenario was Mr. B Carr, with no objections sustained, was Just doing his thing 9 in Front of that Jury, and the bottom line was to suggest to 10 the Jury, which is biracial, that Monsanto is in Favor oF 11 prejudice. Now that's simply inappropriate For this kind oF ie a trial or any trial. That's precisely what he did with, we 13 think, malice and Forethought. That's the part I hate to 14 say, because that isn't an issue in this case, or any case, 15 but he injected it in this case. He did irreparable damage 16 in Front oF that jury, and he did it intentionally. 17 UJs make a Motion For a Mistrial because oF that 18 conduct. U)e would likB a copy oF the audio tape For Future 13 purposes because the cold printed record can't show that Mr. 80 Carr stands in Front oF the witness, yells at the witness, 21 interrupts the witness, walks on his answers, makes 22 oratorical speeches in the Form oF questions, and then 23 suggests that we hired people with prejudice when we could 24 have excluded them with mental examinations. That's f 145 1 outrageous. a Let ma Just go ahead and touch on all the rest of 3 it. 4 MR. CARR: No, I'd like to reply to that first. 5 THE COURT: I'd prefer to do it one at a timB, It S mould be easier for ma to fallout. 7 MR. CRAUEN: UJe ask for two things. Ills mould like a a copy of the audio tape, number ana, and me mill pay 3 whatever expenses. We will make copies under whatever 10 safeguards the Court wants to impose upon us, but we would 11 like a copy of that tape. And number two, ws want a IS mistrial because of the prejudice that went on in that 13 courtroom this afternoon that has gone on continuously, I 14 might say. 15 MR. CARR: Your Honor, in response to thB two 16 statements Counsel has made, suggestions, or motions, as far 17 as the video tape is concerned, I don't know that there -- 10 is there a video tape? 19 THE COURT: There's audio. There's no video. 20 MR. CRAUEN: I said audio. SI MR. CARR: Oh, I thought you said video. To me I se don't see that it makes much difference one way or the S3 other. It isn't appropriate to make it part of the record. 54 I suppose it can be, but I haven't researched the 146 1 proposition, and I would ask For leave to respond to that 2 after I've had an opportunity to determine what is 3 appropriate under the circumstances. It may be perfectly 4 proper. It may be improper. I wish not to get into a 5 position of disagreeing until I know to what I speak on the 6 point. 7 As far as the major point that they're making, a G (lotion for Mistrial, it's suggesting that I accused Monsanto 9 of hiring prejudiced people. It's absurd on the face of it. 10 My line of questioning, perhaps Counsel couldn't hear 11 since -- IS MR. CRAUEN: I heard very wall, Mr. Carr. 13 MR. CARR: -- since my back was to him. 14 MR. CRAUEN: Mr. Carr would be -- 15 MR. CARR: May I finish, Mr, Craven? 16 MR. CRAUEN: Wb II -- 17 MR. CARR: Your Honor, would you tell Mr. Craven 16 to let me finish? 19 THE COURT: Bo ahead, Mr.carr. 20 MR. CARR: My line of quesioning was aimed at 21 showing that anybody and everybody takes the plaintiffs as 22 they find them. The suggestion of the witness was that Mr. 23 Young was prejudiced. The implication being to the Jury 24 that this prejudiced individual somehow or another was not i 147 1 entitled to thB earns protection, the same rights under the 2 law, that an unprejudiced person is, 3 My question, as the Court is aware, and as Counsel 4 is aware, because h e 's at the bench, not Counsel Craven, but 5 Hr. Heineman, my line of questioning was aimed at showing 6 that the employer takes the employee as they Find him, 7 whether they'rB prejudiced or unprejudiced. B In Nitre, Ulest Uirginia, as the witness himself 3 pointed out, a prejudiced community, where this plant was 10 located and the people there are subject to those 11 prejudices. The witness suggested that somehow or other 12 because this Harold Young reacted to that prejudice in that, 13 what he could consider an unreasonable way, that somehow or 14 other his psychoneurosis doesn't count, because it was a 15 product of his own prejudice living in an environment that's IE prejudiced. 17 For the sake of cross examination I accepted that 18 as true and then by further questions pointed out that the 19 employer doesn't screen their employees. They take them bs 20 they find them as every employer does, and that to say 21 simply because somebody is prejudiced that they're not 22 entitled to protection of the law is an absurdity. That was 23 the line of questioning, that was the intent of the 24 questioning. 148 1 Then it didn't even Bnter my mind, quite Frankly, s to suggest that Monsanto hired prejudiced people, or that it 3 Idas obligated to hire unprejudiced people. The race issue 4 was injected into the case unnecessarily by the witness. I 5 had avoided when I went through Exhibit 1701, the 1953 S report, from the beginning, I avoided carefully the words 7 relating to Negro, and this exhibit 1701 was never passed to B the Jury. The Witness Suskind up until today also avoided 9 thB problems, the social problems of Harold Young as being 10 associated with his perception by the community that he was 11 a Negro and his reaction thereto. I avoided it carefully IS because I wished not to offend any jurors, and wished not to 13 have race to have anything to do with this case. But the 14 witness insisted that I read, as a matter of fact, insisted 15 vehemently that I -- I First directed his attention to page 16 nine, where all the entire problems were set out. He 17 insisted on going to page ten. Then X reed around the IB racial prejudice, and the Negro description in the exhibit, 19 and the witness insisted that I read it all. SO I would not consciously use a racial element in SI any lawsuit at any time. The Court knows my long history in E2 the area of racial relations, as Jim Craven knows or should S3 know. I assume hB knows it. Maybe he doesn't. But race is 24 not something that I injected in the case. I did not ask 149 1 thB questions oF Suskind relating to the employer's ability 2 to hire For the purpose of in any way suggesting that they 3 should be blamed because they hired unprejudiced -- because 4 they hired prejudiced people. It would be an absurdity. 5 I'm too -- I'm much too good of a lawyer to try to prove 5 that a stupid thing like that -- every employer on earth 7 hires prejudiced people, and there's no law that says they 0 are required to do anything else except hire the man as they 9 come. So it's ridiculous For him to even suggest that. I 10 oppose the motion. 11 THE COURT: Judge. 12 MR. CRAUEN: On the question oF the tape, I don't 13 know why fir. Carr needs time, but in any event, iF the Court 14 is going to give him time we request that the tape be 15 impounded. 16 THE COURT: Right. 17 MR. CRAUEN: And securely so, and that all tapes 10 oF this trial be impounded. UJe would like to make 19 arrangements to get copies oF today's tape at the earliest 20 passible time. HI Now the question oF injecting race into this 22 trial, that tape will indicate who did what to who and when 23 and when he did, when Dr. Suskind kept saying there WBre 24 other reasons, and Mr. Carr kept saying well, all right, I 150 1 tried to avoid riding this. s He did it to give the impression that the 3 prejudice was partly Dr. Suskind's, and then uihen he did 4 read that material he did it in that context. It was Just 5 apparent to everybody in the courtroom and to the Jury, who 6 perked up their ears, that we had a question of racial 7 prejudice arising in West Uirginia. And if you come in off 0 of Mars and listen to this trial you would think that the 3 plaintiffs were the West Uirginia Nitre workers. That's 10 another subject. But, nonetheless, w e 're entitled to that 11 tape. IE Ule're entitled to a mistrial. Mr. Carr has 13 intentionally injected this thing. I regret saying that, 14 because yes, I'm not trying to say Rex Carr is prejudiced. 15 I don't even for a moment entertain that notion. But 16 sometimes he gets over zealous as an advocate, and today he 17 broke all the bounds. He can be as free of prejudice as a 10 new fallen snow, but he can use it as an advocate, and today 19 he broke the bounds. I've never seen a witness treated that E0 way . El NR. CARR: It is so strange to me that I should be EE accused of that which Nonsanto's witness did. Monsanto was S3 the one that injected this issue in the case, not me. I met E4 the issue and examined it. It's very strange. I don't 151 1 understand how you can accuse the victim of being the s perpetrateor of the crime. Because that's what happened. 3 It was your side or the table that injected race into the 4 case. It was yaur side of the table that wanted to bring 5 out the way thB community reacted to this man because of his 6 color. It was unnessary. All you had tc do was to say the 7 man was psychoneurotic because of his pigmentation, which is B all you had to do, which is what' I did. The only thing 3 required to do tD prove the point that Suskind wanted to 10 provB. He didn't have to bring in race at all. But he 11 insisted on it. 12 THE COURT: I'm going to have the tape impounded. 13 I will make arrangements For that. I've never looked into 14 that question myself, as a matter of fact. 15 MR. CRAUEN: May we get a copy of it? 16 THE CQURT: Pardon? 17 MR. CRAUEN: May wb get a copy of it? IB THE COURT: Well, we'll take care of it later. IS I 'm going to have him impound it for right now. 20 As Far as the Motion for Mistrial, I am denying 21 it. I think -- I listened to all of this, I saw all of 22 this, I took nates on this as I take notes throughout all of 53 this case, for a number of reasons, this is exactly one of 24 the types of reasons why. This whole issue of race was 152 1 injected by repeated non-responsive answers -- repeated non2 respcnsiva statements, they were in no way answers, of Dr. 3 Suskind to questions propounded by plaintiffs1 attorney, 4 It was brought out in such a way so that 5 apparently plaintiffs' counsel in his Judgment decided that 6 reading this could not be avoided. Once it got out it was 7 handled in a responsible way, 1 completely disagree with B your assessment of how it was handled in front of the Jury. 9 I think that it would be an outrage to let this case be 10 mistried on the basis and on the motion of the party whose 11 witness caused this incident to happen. Number one. IS Number two, I think the incident was handled 13 correctly. I don't think that Monsanto was prejudiced by 14 it. I don't think anything happened out there that would 15 justify a mistrial being granted Dn motion of Monsanto under IB thsss circumstances, Nothing at all. 17 It was injected by this witness as one of many IS non-responsivB answers, non-responsive statements that have 19 been given by this witness repeatedly in his examinations, SO and it's something that once it was brought out, I think was 21 handled as correctly as any situation like that can possibly 22 be handled. 23 I think that the characterization, thB statement 24 that the characterization was made that Monsanto hires 153 1 prejudiced people is totally inaccurate. The whole thrust s af this was that Monsanto took these people as they Found 3 them, and this one apparently was Found with racial 4 prejudice, which aggravated the situation, which Mr. Carr 5 attempted to causally relate to the autoclave run-away B reaction. 7 There is no basis at all For a mistrial. Under B these circumstances, and thBre is especially no basis Far a 9 mistrial on something that was brought out by Monsanto's 10 witness' improper conduct. Your motion is overruled as Far 11 as the mistrial. IE Your motion is taken under advisement as Far as 13 the tape. I think the operator is still here so I will make 14 arrangments right now to make sura that the tape, the audio 15 tape oF today's proceedings, is kept so that it's not 16 erased. Ex c u s b me just a minute. 17 18 CDiscussion held oFF the record.3 19 SO MR. CRAVEN: Judge, the question has arisen, is 21 there not an audio of this entire proceeding, an audio tape? 2E THE COURT: I don't know. I think a lot of those I S3 tapes, once the -- the tapes are basically usBd as back-up i E4 For the reporters. I think after some point in time tapes i 154 1 are reused, and I would assume that these are too after a a paint in time, and especially under our circumstances when 3 these transcripts are turned out at such a fast rate, I 4 don't know -- I don't know how far back audio tapes of this 5 proceedings are still in existence. I Just haven't checked. 6 But normally'what they do is they will make tapes of this, 7 they're available if someonB needs to listen to thBm, you a know, something is last, mainly if a reporter has problems. 9 I don't know how far back any of these tapes go, I haven't 10 inquired. 11 MR. CRAUEN: Ue arB now asking that thB tapes be IB preserved and we arB asking for copies of thB tapes. 13 THE COURT: I 'll take that under advisement. 14 MR. CARR: Well, if the entire trial isn't 15 preserved, I sure as hell would object to Just the Monsanto 1G part being preserved. It's kind of late to make a motion to 17 preserve audio of just the Monsanto part of the case. IB THE COURT: I don't know. I'll have to find out. 19 I just don't know what has happened to that, It's not come BO up. I'll have to find out. ai MR. CRAUEN: Well, in any event, we would like HB copies af everything that is in existence. UJe'd like to S3 have some information as to what is or is not in Bxistance. E4 THE COURT: I'll try tD get that for you. 155 1 HR. CRAUEN: Now may I move on to the other 2 motion? 3 THE COURT: Sure. 4 HR. CRAUEN: We Filed on the 25th of February a 5 Hotion to Uoir Dire thB Jury uiith reference to another S article where Hr. Carr is quoted extensively with reference 7 to this trial. That article was in a Belleville newspaper. Q It was more of the same and, of course, it's one of a 3 continuing series of -- 10 HR. CARR: I hope you're not arguing that motiqn t 11 now. IB HR. CRAUEN: Yes, I am. 13 HR. CARR: W e 'rB not up for argument. I haven't 14 filed my response yet. 15 HR. CRAUEN: This motion was filed the 25th of IB February. 17 HR. CARR: I understand that, but I haven't filed IB my response yet. 19 HR. CRAUEN: Are we at your pleasure on this? 20 HR. CARR: Yes, The Court gave me leave to file a SI response. W e 're at the Court's pleasure, The Court said I 22 may file a response. 23 HR, CRAUEN: Judge, this is an article that 24 appeared in February, on the 16th, Sunday, the 15th of ,V f 1 February. a THE COURT: I know. I read it. l `r !' 3 MR. CRAUEN: Ule want to have the Jury1voir dirBd, 4 and delay and no decision is a denial of the motion. 5 MR. CARR: Well, I don't know how that is. 6 THE COURT: I didn't hear you. 7 MR. CARR: I don't know how giving me an !I a opportunity to File a response in viBw of what yIti ou all have 9 been doing in the Supreme Court to us, and theseII motions 10 could be considered a denial of the motion. y I eii xpect to 11 have a resDonse on File to your motion next week. | ia MR. CRAUEN: Rex, you've had a month,!or almost a 13 month. I ,' i 14 MR. CARR: There was another motion that I 15 responded to, I think, this week, and a week ago I think I 15 responded to.the Supreme Court in something, and two weeks 17 beFore that I responded to the Supreme Court, plus I've been 10 trying this lawsit everyday. I don't have the time back in 18 the o FFIc b during the day to File these -- prepare these v1 ao motions, prepare responses. I have a problem oF working at ! ai night to get the casB ready For the next day For the next aa witness, and I'm simply not equipped to work 84 hours a day. aa I 'll have a response to that motion on File next week. an MR. CRAUEN: Look at the total unreality oF that. 157 1 Judge, this is simply -- there has to bB evBnhandedness. s W e 're asking to have the Jury asked about a story that i 3 appeared in the Belleville newspaper, Front page I think it 4 was, the 16th of February. The reason For it is to 5 ascertain iF the Jurors read fir. Carr's remarks about this ii 6 case, including what a bad person, bad company Monsanto is, 7 and how much money the prior settlement was, and so Forth, S all of which iF the Jury read it would entitle us to same 9 kind oF relieF, Yet w e 've been going on with thB trial For 10 almost a month, since this was published, and Mr. Carr has 11 succeeded in not -- raising it, raising it, raising it, IS that's a prejudice to us in itselF, the delay. 13 Now, iF this jury read that article, we should be 14 able to ascertain that, we should be able to make a record 15 on it, we should not have to go to trial beFore a jury 16 that's been reading Mr. Carr's (holdingForth oF thB case. 17 We say in here that this is a deliberate -- one' oF a 16 series -- IS THE COURT: I read both motions. SO MR. CRAUEN: An on-going thing. H e 's saying nD, El no, at his pleasure we'll do it. Judge, his pleasure -- SS MR. CARR: It is the Court's pleasure. The Court, i S3 I think, is the one that gave me leave, Counsel; not you and 24 not me. 'i- ! 150 1 l| 1 1. MR. CRAUEN: I understand that. j 2i 3 MR. CARR: It's the Court that ordered me, and 11 I 'll obBy the Court's order. 1 4 MR. CRAUEN: It should be apparent to^anyone that k| 5 me Filed this at the earliest practical time, that there i1 6 were some non-court days in there. Ule Filed this as soon as 11 7 we could aftpr that. W e 've gotten nothing. ThB dBlay e itself is a prejudice to us. 1 ; 1 9 MR. CARR: Hold it, Counsel, when was' that news i 10 story published that you're complaining oFT | 11 MR. CRAUEN: The ISth of February. I 12 MR. CARR: You Filed this motion when?f 13 MR. CRAUEN: The 25th. 14 MR. CARR: That's nine days later. j 15 MR. CRAUEN: That's right. IE M R CARR: Okay. ! i 17 MR. CRAUEN: It was on a Sunday, and I think there 1i 18 were one or two court days during that week, and that's all. i i 19 It's not right to have to keep trying;a case i before a jury that may have bean reading Mr. Carr's o ru HI holdingForth about this case, and the Fact thatthe co',11 22 defendant settled for Four million dollars, his'versions of | 23 this trial. 1 2*4 OF course, we didn't ever get a chance to vair i ii i _____________________________________ j_____ 153 1 dire about his holdingfarth for the New York Times when the 2 reprint of that was in the Post Dispatch. Now here is the 3 hometown paper of the Jury, we can't even voir dire the 4 jury. If he has his way, when we get around to it, it will 5 be stale, 6 THE COURT: Do you have anything to say? 7 MR, CARR: Yes, As I suggested, your Honor, 1*11 B have our response on file Monday. 9 THE COURT: This was raised once before, I believe 10 by Mr. Heineman, I think it was raised by you earlier. 11 MR. NASSIF: Last week, 12 MR. HEINEMAN: Yes. 13 THE COURT: I stated at the time, I don't remember 14 when it was raised, but it was raised by you before, and I 15 stated at the time that I had read the article, I*ve read 16 the motion, I did not think that waiting would makB it 17 stale, and that it was not prejudice to the defendant, IB Ule had a thorough discussion at the time of what 13 was going on as far as the trial was concerned about matters 20 in the Supreme Court in these particular motions, and I 21 would incorporate what happened there, I would 'incorporate 22 what I said then also. 23 And the sum and substance of what I said was 24 basically, number one, Monsanto was not prejudiced by the 150 1 delay in consideration of the motions; and number two, that a the way I preferred that thesB motions be handled by me, and 3 what I have Found most effective is to have oral argument on 4 them if requested after the time that there has been a i 5 response by movant, response by respondent to the motion, 6 and that if they want a further supplemental response by the 7 movant, that the argument is shorter, better and my decision 0 is easier after that. 9 Number three, in the priority of matters before 10 this Court, obviously anything in the Supreme Court takes 11 precedence over anything in this Court. When thB Jury is 12 available, trial in front of the jury takes precedence over 13 anything that w e 're going to do back here. 14 Hr. Carr has indicated that next week h B 'll have a 15 response on file. That response is timely. If you wish to IB make a -- you're the mcvant, you're entitled to thB last 17 word, if you want to file a response on that, then it will 18 bs argued, I do not think that that is prejudicial to your 19 client. I think that it is a timely proceeding. 20 In the context of everything that's going an, and 21 that after that response is filed, and if you wish to do so 22 after you've made a reply to that, the appropriate time to 23 argue it after court sometime not in jury time. That's my 24 position. That was my position then and it's my position 1B1 1 now. I don't think anything has changed. 2 MR. CRAUEN: Can we Fix a specific calendar an 3 this? Mr. Csrr is going to file a response on Monday. Can 4 wa file a reply on Wednesday, sometime during the day 5 Wednesday, and argue it at the conclusion of the taking of E evidence an Wednesday? 7 MR. CARR: Well, your Honor, I wouldn't object to a that, Bxcapt what they may reply to, if they assert 9 something new that is, in fact, not a reply to my motion, as 10 they do from time to time, I would want leave to reply to ii any new matter that they assert. But other than that I IE won't object to the schedule. 13 THE COURT: FinB. So Wednesday we'll plan on 14 arguing it. 15 MR. CRAUEN: Wednesday at the -- 1G THE COURT: After court. 17 MR. CRAUEN: After court. IB THE COURT: Right. 19 MR. CRAUEN: H e 'll file his answer on Monday, or E0 his reply on Monday, and w b '11 reply to it. El THE COURT: By Wednesday. EE MR. CRAUEN: Will that be also true of the other 23 motions? 24 THE COURT: Both motions. 1E2 X MR. CARR: I won't have a response ready on the 2 second motion. 3 THE COURT: I thought you meant both (notions. i 4 MR. CARR: No, I don't havs it ready yet. I'm 5 still working on it. I j 6 MR. CRAUEN: You know, Judge, there's!Just i 7 something that ofFends my SBnss of logic. Uie're going into i B the third year of a trial. This motion raises the question ;l 3 that no Jury can reasonably be expected to try the Nitro 10 case, which Mr. Carr is doing, and these plaintiffs, and 11 take the medical testimony and to sit there and'endurB this I 12 kind of case and then try to pick and choose and sort and 13 make sense out of this case. Now what the Appellate Court 14 said in -- 15 THE COURT: Wait a minute. You're arguing the IB motion now. 17 MR. CRAUEN: UJhat I'm saying now his notion of the IB time sequence compels us to go ahead and keep right on i 19 trying the casB, which is a fairly strong indication to me | 20 that he thinks h e 's going to prevail on thB motion. That i 21 doesn't seem right. It just doesn't seem right (that you 22 have to keep trying something when you're saying the trying 23 of it offends thB laws of this state. 24 THE COURT: Well, I disagree with you. My 163 1 position has always bean on these motions and on requests to s adjourn these proceedings and order that these motions go 3 forward that we are going to continue trying it and handle 4 these motions at the time. 5 I think I made clear before on the record that if 6 you're seeking an ultimate relief of an end and the end 7 comes because of that seeking of this ultimate rBlieF of an S end X amount of time afterwards rather than earlier, you 9 still got the end. If the motion is denied, you have not 10 lost the intervening timB in proceeding on the trial. 11 I have consistently taken the position, unless its IS been an impossibility, or same extraneous reason had 13 interfered that this matter should proceed while we were 14 considering these motions, and I 'vb read both of the motions 15 when they were Filsd -* excuse me. I'm trying to get over a 16 cold. I'vb read both of these motions when they were filed. 17 My impression then, and I haven't heard anything to change IB it, is that the trial should proceed while we are 19 considering them. SO I think as far as a priority as to time that your 51 motion on a voir dire of the jury would take precedence as 28 far as being handled first. I think also it is the second 23 motion, the motion on the asking for a mistrial, is by the 24 nature of the matters that you state, the allegations that 154 1 you make, and the relief that you seek a much more 2 complicated and meatier, I guess you mould say, motion, and 3 under the circumstances then I think it mould be very 4 reasonable that that one be briefed and argued second, both 5 on the basis of the material allegations of the motions by 6 comparison, and as to the -- any possibility of time 7 affecting the substance of the motions mhich it mould be 0 more likely to do in the voir dire situation, by your omn 9 argument, than it mould on the mistrial motion. 10 So under those circumstances, mhat I mould like to 11 do, is after the argument on Wednesday, or perhaps on 12 Thursday, if me could agreB to a -- mail, I'd prefer it on 13 Wednesday, actually, if me could agree to a time schedule 14 for briefing and then ultimately argue it on the Motion for 15 a Mistrial that you filed. So me keep it rolling. 15 MR. CRAUEN: Can me fix that calendar nom then? 17 THE COURT: Pardon? 10 MR. CRAUEN: Can me fix the calendar nom? 19 THE COURT: I haven't asked anyone to think about 20 it. I don't knom if both of you are ready to give me a 21 suggestion nom. I'm milling. 22 MR. CARR: I mill mork next meekend, your Honor, 23 in order to get the other motion -- my response to the other 24 motion read, and I should have a response to that motion 165 X then ready for the week after this coming week. As far as 2 I'm concerned then ids could argue it sometime that following 3 week< The week that I filB thB response. 4 THE COURT: So next week we're going to argue this 5 other one and sometime the next week file a response to 6 that? 7 MR. CARR: Right. 0 MR. CRAUEN: A week from Monday he'll file a 9 response to the Motion for Mistrial? 10 MR. CARR: I should be able to do so. 11 MR. CRAUEN: And we would file our reply sometime IB on Wednesday and argue it on the following Wednesday, so 13 it's a week later; is that what you're saying? 14 THE COURT: Is that acceptable to you? 15 MR. CARR: Fine with me. IB THE COURT: Fine. 17 MR. HEINEMAN: All right. IS THE CDURT: After court again. LBt me make that 19 clear. I don't want you to have to come down here in the E0 morning expecting to ague this and wait until five to do it. 21 MR. CARR: Your Honor, there is one thing I would SB ask the Court to consider doing, and it's certainly within S3 the Court's power to da as it wishes, of course, but as the E4 Court knows, for thB past two months Monsanto -- any time 1EE 1 the Court rules on a motion of this sort, Monsanto files a 2 Motion For Supervisory Order in the Supreme Court, 3 Most recently they took advantage, I don't know if 4 it's deliberate or not, but they took advantage of a rule 5 that says I have to F U b a reply within thrBB days in the 6 Supreme Court if something is personally served. Maybe it 7 was FivB days. I Forget which, either thrBe or Five. B It's impassible For me to, if the court issues 3 orders an these motions, more than -- it's impossible For me 10 to respond, First of all, to more than one a week because of 11 the trial. They have at least eight pending now in the 12 Supreme Court that they Filed. I'm Fairly sure there's 13 eight. 14 This, of course, Mr. Craven is here only because 15 he is their Appellate counsel, and he intends obviously to IE take these matters on up to the Supreme Court, as is his 17 right to do, but From my viewpoint I can't respond under the IB constraints of the Supreme Court rules to more than one IS motion at a time. They caught mB in the bind last time. 20 They Filed twa motions at one time in the Supreme Court. 21 One I don't even think they served you with, but one you 22 were served with as a respondent, and one you were not a 23 respondent. There were two filed. 24 THE COURT: I didn't get a copy of one of them. 1G7 1 MR. CARR: I had a hell of a time replying to 2 those, and did not reply to either of those within the time 3 allowed by the Supreme Court because I was busy trying this 4 case. 5 What I would ask if the Court could consider E making rulings on these motions in a FramBwark that would 7 give me an opportunity if they*re going to File a motion, B give me an opportunity to adequately respond without asking 9 the Court to recess the trial so that I can respond, because 10 the next time I get caught in a switch like that, I don't 11 want to ask leave of counsel to agree For time For me to 12 File in the Supreme Court. 13 X want to be timely in the Supreme Court, but I 14 can't be timely when they're doing this and try the case as 15 well. So for the sakB of -- but I can be timely if I get 16 thB weekend between motions to work on them. 5o what I 17 would ask the Court to do, if it's possible to do it, rather IB than ask For a recess From time to time to write my response 19 to the Supreme Court, that you time your orders so that I 50 will have appropriate timB after the orders in which to 21 respond to their motions. I don't know whether it's 55 appropriate or not, but I'd like For thB Court to consider 23 it. 54 MR. CRAUEN: I'd have to say that this IBB X anticipatory winning that Mr. Carr does all the time kind of 2 doesn't -- 3 MR. CARR: Counsel, both of these motions have 4 already been ruled upon, similar motions havB already been 5 ruled upon by the Court. 6 MR. CRAUEN: Then why don't you have time to 7 respond to them? B HR. CARR: Counsel was even so sure that we 9 wouldn't even need arguments he suggested to the court, 10 ''Judge, we don't need to argue it, Just go ahead and rule on 11 it." 12 MR. HEINEMAN: What are you talking about? 13 MR. CARR: When you Filed these motions. 14 MR. NA5S1F: Said he didn't need oral argument on 15 it. The Judge asked you if you needed time to file a 16 written response. You said yes. He asked Ken if he needed 17 oral argument, and Ken said no. IB MR. CRAUEN: The last time that Mr. Carr filed 19 some responses in the Supreme Court they mere late under the 20 rule. He filed a Motion to File Instanter. We filed a 21 written consent to his Motion to File Instanter. Your 22 Honor wasn't served with a copy of something, but it was a 23 case in which you're not a respondent. 24 THE COURT: I understand that. 169 1 MR. CRAUEN: I assumed you didn't want a copy of 2 it. When this Court rules we may need time to prepare our 3 response in the Supreme Court to Mr. Carr's Motion for 4 Supervisory Order. We would like to think that we would be 5 able to have the same kind of consideration to respond to 5 his Petition for Supervision. That's a distinct 7 possibility. I don't think we need to go into anticipatory 8 rulings. 9 MR. CARR: I have nothing further to say, Judge, 10 THE COURT: Fine. Okay. 11 12 CCourt adjourned.) 13 14 15 16 17 18 19 20 21 22 23  170 1 STATE OF ILLINOIS 1 2 TWENTIETH JUDICIAL CIRCUIT ) 3 COUNTY OF ST. CLAIR 1 4 5 I, KATHLEEN WATSON BRUNSMANN, one of the Official 6 Court Reporters, do hereby certify that the foregoing 7 transcript is a true and correct copy of said transcript. B 9 DATED: March 28, 19B6. 10 11 12 13 KATHLEEN WATSON BRUNSMANN, RPR, CSR 14 Official Court Reporter 15 16 17 18 19 20 21 22 23 24 171 1 STATE OF ILLINOIS ) S TWENTIETH JUDICIAL CIRCUIT ) 3 COUNTY OF ST. CLAIR 4 ) ) 5 I, RICHARD P. GOLDENHERSH, CIRCUIT JUDGE, do 6 hereby certify that the foregoing transcript is a true and 7 correct copy of said transcript. B 9 DATED: March SB, 1986 10 11 1E RICHARD P. GOLDENHERSH, CIRCUIT JUDGE 13 14 15 1B 17 1B 19 eo SI EE S3 E4