Document Z4KBmBp2a55BwDkVXpK2JxYDY

1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS ( BEAUMONT DIVISION CECIL SCOTT, ET AL v. MONSANTO COMPANY ] ] ] No.B-84-1103-CA VOLUME 1 l t f I jT"-. {F-* /"N VI d MA nlJ C1T TM ' -i `j K Y April 29, 1987 1300 Post Oak Boulevard Houston, Texas Jerry Kelley, Court Reporter L Nell McCallum & Associates Inc. 2900 Smith, Suite 104 Houston, Texas 77006 (713) 523-3767 ( NFI I MO CALLUM & ASSOCIATES. INC. HARTOLDMON0021092 2 1 APPEARANCES 2 3 4 For the Plaintiffs: 5 6 David M. Lacey 7 William Little 8 Attorneys at Law 9 Gilpin, Pohl & Bennett 10 Allied Bank Tower, 23rd Floor 11 1300 Post Oak Boulevard 12 Houston, Texas 77056 M1' i 13 14 and 15 16 Thomas W. Henderson 17 Attorney at Law 18 Henderson & Goldberg 19 1030 Fifth Avenue 20 Pittsburgh, Pennsylvania 15219 21 22 23 24 25 HARTOLDMON0021093 1 For the Defendant: 2 3 Jonathan B. Shoebotham 4 Attorney at Law 5 Woodard, Hall & Primm 6 4700 Texas Commerce Tower 7 Houston, Texas 77002 8 9 and .. 10 11 Walter J. Crawford Jr. 12 Attorney at Law 13 Wells, Peyton, Beard, 14 Greenberg, Hunt & Crawford 15 624 Petroleum Building 16 Post Office Box 3708 17 Beaumont, Texas 77704 18 19 20 Video operator: 21 22 Johnna Coalson 23 24 25 3 t- it. i-. HARTOLDMON0021094 4 1 Deposition of R. Emmet Kelly, M.D., taken on 2 April 29, 1987, at 1300 Post Oak Boulevard, Houston, 3 Texas, between the hours of 9 a.m. and 5:15 p.m. before 4 Jerry Kelley, CSR No. 2004 and Notary Public in and for 5 the State of Texas. 6 7 8 9 10 11 VIDEO OPERATOR: This deposition is being ` *! i . 12 taken in Cause No. B-84-1103-CA and is filed in the ,J 13 United States District Court for the Eastern District of 14 Texas, Beaumont Division. The style of the case is 15 Cecil Scott, et al versus Monsanto Company. 16 For identification purposes, the video 17 technician is Johnna Coalson of the firm Executive 18 Services, and the certified court reporter present today 19 is Jerry Kelley of the firm Nell McCallum & Associates. 20 - Today's date is April 29, 1987, and the time 21 is approximately 9:15 a.m. 22 We are here today to take the oral and video 23 deposition of the witness Dr. R. Emmet Kelly. We are 24 located at 1300 Post Oak Boulevard, Houston, Texas. 25 At this time will counsel please state their HARTOLDMON0021095 5 1 appearances for the record? 2 .. MR. LACEY: David Lacey representing the 3 plaintiffs. 4 MR. HENDERSON: Thomas Henderson for the 5 plaintiffs. 6 MR. SHOEBOTHAM: Jon Shoebotham representing 7 Monsanto Company. 8 MR. CRAWFORD: Walter Crawford representing 9 Monsanto. 10 VIDEO OPERATOR: Will the court reporter 11 please swear in the witness. t 10 i 12 13 14 15 16 17 18 R. EMMET KELLY, M.D., 19 being duly sworn, testified as follows: 20 21 EXAMINATION BY 22 MR. LACEY: 23 Q Will you state your full name for the record, 24 please, sir? 25 A R., for Robert, Emmet Kelly, MD. HARTOLDMON0021096 6 1 Q And where do you live, Dr. Kelly? 2 A 665 South Skinker, S k i n k e r, Boulevard, 3 St. Louis, Missouri, 63105. 4 Q If you would, give me a very brief summary of 5 your education after high school. 6 A I graduated from St. Louis University with a 7 bachelor of science in medicine in 1930. It was a 8 combined course. And I received my MD from St. Louis 9 University Medical School in 1932. And I spent three 10 years in training at St. Louis City Hospital. 11 Q Was that an internship and residency? 1 i- 12 A That is correct. 13 Q And did that result in any particular 14 specialty? 15 A Internal medicine. 16 Q Okay. And are you board certified in 17 internal medicine? 18 A Yes, I'm board certified in internal 19 medicine, recertified in internal medicine, and board 20 -certified in occupational medicine under Preventive 21 Medicine Board. 22 Q When did you become board certified in 23 internal medicine? 24 A 1955 or 1956. 25 Q And when did you become board certified in HARTOLDMON0021097 7 1 occupational medicine? 2 A One of those two years also. 3 Q Have you had any subsequent formal 4 educational training since the completion of your 5 residency in approximately 1935? 6 A Yes. I had quite a few one- and two-week 7 courses in internal medicine during the course of those 8 subsequent years. 9 Q Is this continuing medical education of the 10 type required to maintain your certification? ,,: 11 A In the internal medicine it's not required fcp ft: i _ 12 take continuing medical education courses. But it is .of 13 that type. 14 Q Okay. 15 After you completed your residency, did you 16 go into private practice? 17 A Yes. 18 Q And where was that? 19 A In St. Louis, Missouri. 20 Q And that would be beginning in about 1935? 21 A January -- no, July of 1935. 22 Q And in that private practice, how long did 23 you remain employed full time in private practice? 24 A Approximately six months full time. 25 Q What did you do after that? HARTOLDMON0021098 8 1 A I continued private practice until I went in 2 the service in 1942, but in January of 1936 I became 3 engaged part-time with the Monsanto Company. 4 Q They were located in St. Louis primarily? 5 A Yes. 6 Q And what did you do for Monsanto Company? 7 A Well, I took care of the large plant they had 8 in St. Louis. I was their company physician to take 9 care of occupational conditions as well as to establish 10 a preventive medical program in the plant. 11 Q Approximately how much time did you devote t| 12 that part-time employment from January 1936 until you 13 entered the service in World War II? 14 A Approximately four hours a day. 15 Q And would that be half time for the work load 16 you had at that point, or a third time? What was that? 17 A Probably between 30 to 40 percent. 18 Q I understand that you left that part-time 19 employment, I guess also your private practice, when 20 -World War II came along. 21 A That is correct. 22 Q And did you serve in the military in a 23 medical capacity? 24 A Yes. I was in the Army Medical Corps and was 25 associated with the chemical warfare service in their HARTOLDMON0021099 9 1 installations at Pine Bluff Arsenal and Edgewood, 2 Maryland. . 3 Q And what years did that encompass? 4 A Approximately March of '42 until January of 5 '46, give or take a couple of months. 6 Q All right. 7 Upon your discharge from the service, what 8 did you do? 9 A Well, I came back then geographically full 10 time with the Monsanto Company as head of their 11 newly-formed medical department. `. 12 Q Did you have any private practice at all on - 13 the side? 14 A No. I might have had an occasional 15 consultation with an occupational case, but it was 16 relatively minor. I had no private office. 17 Q Okay. When was this medical department 18 formed that you became the head of? 19 A January of -- January or February of 1946. 20 Q So it was contemporaneous with your return to 21 Monsanto? 22 A That's correct. 23 Q And how long did you remain employed full 24 time by Monsanto? 25 A Until December the 1st, 1974. HARTOLDMON0021100 10 1 Q And was that a normal retirement date for 2 you? - ................ . 3 A At 65. 4 Q Do you currently receive any retirement 5 benefits from Monsanto? 6 A Yes; I have a pension. 7 Q About how much is that? 8 A Well, it's deposited in the bank, so I'm not 9 so sure, but it's approximately $30,000 a year. 10 Q In the course of your employment with ,.? 11 Monsanto, did you ever get any stock options or anytHin^ 12 like that that allowed you to buy stock in the company?-' 13 A Yes, I did. 14 Q Did you exercise thoseoptions? 15 A Yes, I did. 16 Q Are you currently a stockholder in Monsanto? 17 A Yes. 18 Q Do you know approximately how many shares you 19 own at this point? 20 - A Well, that's a little confusing, because I 21 own in my own name probably 200, but in a trust that I 22 have set up approximately 1700 shares. 23 Q The trust benefits members of your family? 24 A Well, it really -- it's a living trust that 25 benefits the trustees. HARTOLDMON0021101 11 1 Q Are you one of the trustees? 2 A That's correct. . 3 Q Okay. So you are the beneficiary, then, of 4 almost 2,000 shares of Monsanto stock? 5 A That's correct. 6 Q What sort of dividends do you get each year 7 from Monsanto on that stock? 8 A I don't remember. Two dollars and something 9 a share. I don't know what it is. 10 Q So we would be talking something on the order 11 of $4,000 or so? /- j , 12 A Three to four thousand, yes. "* 13 Q Okay. Do you have any other financial 14 relationships with Monsanto other than your retirement 15 pay and your stock ownership? 16 A No, with the exception that I've been called 17 in consultation on various matters from time to time 18 during the last three, four, five years. 19 Q Called by Monsanto? 20 A That's correct. 21 Q When you are called in on a consultation 22 basis, are you compensated for your time? 23 A Yes, I am. 24 Q And how are you compensated for your time? 25 A Do you mean the amount or -- HARTOLDMONOQ21102 12 1 Q Yes. 2 A With either $100 to a $125 an hour, depending 3 on where is the location of the services and how long 4 the services last. 5 Q Could you give me an approximation of how 6 much money you've earned in, say, the last three years 7 from Monsanto in this consultation business? 8 A Well, that varies a great deal, because about 9 three years ago, at the time of the Agent Orange 10 problems, I was quite involved. Last year I think it11 was almost nothing. So I think it's varied from $3o/o(^Q 12 to zero. - 13 Q Okay. And is that consultation primarily in 14 connection with lawsuits in which Monsanto finds itself 15 a defendant? 16 A Not -- I can't under -- make out exactly what 17 you mean by primarily. Some of the ones -- some of the 18 work was going over records of their employees, not for 19 lawsuits. Some of the work was going over various 20 -problems that they may have had in their department that 21 I might have had specific expertise on. But a good part 22 of it was in lawsuits. 23 Q I guess what I was asking you is whether 50 24 percent or more of it would be in connection with 25 lawsuits, either preparation for defense of them or HARTOLDMONOQ21103 13 1 actually involved in reviewing documents and giving 2 testimony. 3 A Probably that's correct. 4 Q Okay. 5 You mentioned $30,000 or so that you thought 6 you got the year you were working on -- or one of the 7 years you were working on Agent Orange. Was that in 8 connection with that lawsuit? 9 A Yes, that's correct. 10 Q Okay. / 11 And are you consulting with Monsanto in j 12 connection with this particular lawsuit? * 13 A Yes. 14 Q Okay. 15 You are here today to give your testimony in 16 connection with this lawsuit where the plaintiffs have 17 claims against Monsanto arising out of its production of 18 PCBs. Are you familiar with that? 19 A Yes. 20 Q Have you had occasion to meet with either 21 Monsanto employees, Monsanto in-house lawyers or 22 Monsanto retained trial counsel regarding this lawsuit? 23 A Let's break it down, Mr. Lacey. If you mean 24 by Monsanto employees the plaintiffs in this case, I 25 have not. If you mean by Monsanto employees their HARTOLDMON0021104 14 1 in-house counsel, I have talked to them on two 2 occasions. I spent yesterday afternoon with outside 3 counsel. 4 Q Which plaintiffs do you understand are 5 employees of Monsanto or ever were? 6 A I don't know. 7 Q Okay. 8 A I have to correct myself. I presume these 9 plaintiffs are not. I have not gone over their medical 10 records, but I remember now they are not Monsanto 11 employees. `. 12 Q So the only -- am I correct in understanding; 13 the only Monsanto employees you've met with are in-house 14 lawyers for Monsanto? 15 A Yes, with the exception of the secretarial 16 people. 17 Q Who work for those lawyers? 18 A That's right. 19 Q When did you first start consulting with 20 -Monsanto about this case? 21 A I may have had a telephone call or something 22 six or eight months ago, but I think it was only in the 23 last three to four weeks that I did any consultation 24 with them. 25 Q Have you reviewed any documents whatsoever in HARTOLDMON0021105 15 1 preparation for or in connection with your consultation 2 work? 3 A Yes, sir. 4 Q When did you first start reviewingdocuments? 5 A Within the last three weeks. 6 Q Okay. And who provided you thedocuments to 7 review? 8 A Both the in-house counsel and the outside 9 counsel. 10 Q Can you tell me generically what type of 11 documents you reviewed? 1 ft' i . 12 A Yes. I thought they were -- to the best of 13 my impression, they were documents that were submitted 14 by the plaintiffs' counsel. 15 Q Well, can you tell me what they were? 16 A Yes. They were reprints of various 17 toxicological and medical articles relating to the PCBs 18 and chlorinated naphthalenes. 19 Q Okay. Any other documents reviewed besides 20 -reprints of articles? 21 A Well, there were probably reviews that were 22 collected by or authored by various people, either 23 government agencies or individuals who did reviews on 24 their own that I reviewed, yes, sir. 25 Q Were any of the documents that you reviewed HARTOLDMONOQ21106 16 1 documents from Monsanto's files? 2 A It's hard to say whether they were from 3 Monsanto's file for this particular -- for this 4 particular case. I had some documents or reviews that I 5 had collected in the literature the last three or four 6 years that I had as far as myself was concerned. 7 Q What I'm asking is whether you were provided 8 any documents for your review by either in-house or 9 trial counsel for Monsanto that came from the files of 10 Monsanto. ,< 11 A Yes. I said that. They gave me some ` j. 12 documents, yes. -- 13 Q That came from Monsanto's files? 14 A Yes. 15 Q What documents did you review that came from 16 Monsanto's files? 17 A Well, the reprints came from Monsanto's file. 18 The reprints of medical articles presumably came from 19 Monsanto's file. There were some bits of correspondence 20 -that I had signed or that I was a -- were copied to me, 21 carbon copied to me during my time at Monsanto. 22 Q In this case, and let me just show you a 23 document to illustrate what I'm talking about, Monsanto 24 has produced various documents and they all have on them 25 a number at the bottom that begins with the initials SCM HARTOLDMON0021107 17 1 and then various digits. Documents that you reviewed 2 from Monsanto, did they all have those numbers on them? 3 A I can't remember. 4 Q You didn't notice whether they did or did 5 not? 6 A No, I didn't pay any attention. Some had 7 them, but I can't say all of them did. 8 Q I see. 9 What documents did you review that you 10 understood were from the plaintiffs in this case? 11 A Reprints of medical articles dating back tzo j. 12 1936. 13 Q And did you find those also in the files of 14 Monsanto as well? 15 A I didn't find them in the files, Mr. Lacey. 16 They were given to me by the in-house counsel or given 17 to me by the outside counsel. 18 Q I believe you told me that you reviewed some 19 reprints of articles that were from Monsanto's files. 20 -Correct? 21 A Yes, if I told you that. But that is -- if 22 we mean the same thing by files. They were given to me 23 by Monsanto. So whether they came from their files or 24 whether the Monsanto people photostated them and never 25 put them in their files and gave them to me, I don't HARTOLDMON0021108 18 1 know, but I got them from Monsanto. 2 Q I see. But you don't know where any of the 3 documents came from, then. Is that correct? 4 A Well, they came from Monsanto, as far as I 5 was concerned. They were given to me by Monsanto. They 6 were reprints of published medical articles. 7 Q My question to you is: You don't know 8 whether they were documents that were found in 9 Monsanto's files initially, that is, files maintained by 10 the company, or whether they came from some other 11 source. Is that correct? i- 12 A I do not know whether they were documents ' 13 that were physically based in Monsanto's files. They 14 were documents that were handed to me by Monsanto 15 personnel. 16 Q Okay. Did you have a set of documents for 17 your own use and review to keep with you in connection 18 with your consultation in this matter? 19 A No. But during the course of the last few 20 years I had various PCB documents that were given to me 21 by Monsanto in various consultations that I had with 22 them that I kept, yes, sir. 23 MR. CRAWFORD: Doctor, he is just asking 24 about this case. So try to limit your answer to his 25 question, if you would, and we will get along a little HARTOLDMON0021109 19 1 faster. 2 THE WITNESS: Okay, fine. 3 Would you repeat the question? 4 ME. LACEY: Yes. Let me see if I understand. 5 Q I'm trying to find out whether the documents 6 first that were given to you by counsel for Monsanto in 7 connection with this specific lawsuit were documents you 8 were able to keep and have for your reference in 9 connection with this consultation work. 10 A No. << 11 Q They've all been returned toMonsanto `j.. 12 counsel? 13 A They either all have been returned or they're 14 sitting in the hotel room to be given back to them, yes, 15 sir . 16 Q Okay. That's the hotel room here in Houston? 17 A Yes. 18 Q Haveany of them alreadybeen givenback to 19 them? 20 A Some of -- yes, some of the ones that I have 21 seen I didn't take with me, yes, sir. 22 Q And the ones that you have seen are the ones 23 that are already in the files you have on PCBs. 24 Correct? 25 A They are not in my personal files, they are HARTOLDMON0021110 20 1 in my attache case in the hotel room. And I was 2 instructed to give them back when I left Houston, 3 Because, as I understand, they are exhibits in this 4 case. 5 Q Well, let me -- let me see if I can sort this 6 out, though. You told me that you have consulted with 7 Monsanto previous to this case in other cases involving 8 PCBs. Correct? 9 A Correct. 10 Q And you have developed a file of documents' . . i11 given to you by Monsanto m connection with those other^. 12 PCB cases that you maintained. Correct? 13 A Yes. 14 Q And if in connection with a new PCB 15 consultation like this case you are tendered an article 16 that you already have in your file from a previous case, 17 you don't take the article tendered to you in connection 18 with the new case, you just refer to the existing file 19 copy. Correct? 20 A Well, I don't need to refer to the existing 21 file copy, because they have given -- they have shown me 22 an article that is an exhibit in this case. So I don't 23 need to look back in any other file. 24 Q Well, I'm trying to find out whether or not 25 when you are given an article in connection with a HARTOLDMON0021 111 21 1 current consultation like this case and you already have 2 a copy of it in your file of articles previously given 3 you by Monsanto in connection with a prior PCB case you 4 retain the article given to you in this case. 5 A No, I do not. 6 Q If you obtain an article in connection with 7 this consultation that you do not already have in your 8 file which were given to you in connection with previous 9 PCB consultations, do you retain the new article for 10 your file? A I have not retained them as yet, but if it: ft i . 12 were an article that was important I would ask for a 13 copy. 14 Q Fine. And on each occasion when you've asked 15 for a copy of an article you've not previously had, has 16 Monsanto allowed you to have it? 17 A In this case I have not asked for any copies 18 as yet. 19 Q That's not my question. 20 A Oh. What is your question? 21 Q Have you ever previously asked Monsanto for 22 the privilege of retaining a copy of an article you 23 don't already have in your files and been denied that 24 privilege? 25 A Not to the best of my recollection. HARTOLDMON0021112 22 1 Q Now, does that file of articles you already 2 have oh PCBs provide you with a source of knowledge that 3 you draw on in rendering opinions and in testifying in 4 PCB cases? 5 A Yes. 6 Q And do you from time to time refer to that 7 file to refresh your recollection about the articles and 8 their contents? 9 A Yes. . 10 Q You don't have a photographic memory, I take 11 it. t Ui . 12 A That is correct. - 13 Q Okay 14 A Could I have a glass of water, please? 15 MR. LACEY: Certainly. 16 Let's go off the record for a second and we 17 will get that. 18 VIDEO OPERATOR: We're going off the record. 19 The time is 9:36 a.m. 20 [Recess] 21 MR. LACEY: What was my last question and 22 answer? 23 COURT REPORTER: 24 "Q You don't have a photographic memory, I take 25 it. HARTOLDMON0021113 23 1 "A That is correct." 2 VIDEO OPERATOR: We're now back on the 3 record. The time is 9:42 a.m. 4 MR. LACEY: 5 Q Dr. Kelly, you are appearing as a witness in 6 this case in several different capacities. Are you 7 aware of that fact? 8 A No, I'm not aware of how many different 9 capacities. . 10 Q Okay. Let me see if I can clarify that. *T / 11 had asked for your deposition sometime back simply by j-, . 12 noticing it and arranging for you to come and testify.-' 13 Are you aware of that fact? 14 A All I -- no, I am not. I received a subpoena 15 to appear in St. Louis. 16 Q Right. That was my point. I subpoenaed you 17 for a deposition in St. Louis. 18 A That is correct. Someone did. 19 Q Yes. 20 A I don't recall who did. 21 Q Okay. And that deposition was moved as to 22 time and place by agreement and therefore you are here 23 today in my office. Correct? 24 A Correct. 25 Q In addition to simply being here as a witness HARTOLDMONOQ21114 24 1 who I wanted to talk with about Monsanto's work with 2 PCBs, you have been retained as an expert witness in 3 this case, have you not? 4 A Yes. 5 MR. SHOEBOTHAM: Just for purposes of 6 clarification. I'm not sure the word "retained" as an 7 expert witness is accurate. We have certainly 8 designated Dr. Kelly as an expert witness. 9 MR. LACEY: 10 Q Well, you've even written an expert witness's 11 report, have you not? / j. 12 A When? About what? - 13 MR. LACEY: Let me ask the court reporter to 14 mark this. 15 [Exhibit 1 marked] 16 MR. LACEY: 17 Q Dr. Kelly, let me show you what the court 18 reporter has marked as Exhibit No. 1. 19 A Well, this is a report of my qualifications. 20 I didn't -- didn't understand this to be a report as far 21 as the details of this case is concerned. Just as -- 22 shows an abbreviated curriculum vitae and my knowledge 23 about Monsanto's experience with polychlorinated 24 biphenyls in the area of occupational health. 25 Q So there are other matters about which you HARTOLDMON0021115 25 1 are going to be able to testify as an expert that are 2 not contained in your report that's marked as Exhibit 1. 3 Is that correct? 4 A I don't know. 5 Q Well, let me see if I can just understand 6 this. When were you retained as an expert witness in 7 this case? 8 A Well, again, I'm not sure that I have been 9 retained. There has been no contract, no statement as 10 far as what I am to testify about. I'm here as a 11 witness as far as facts are concerned, and my experiences . 12 with Monsanto. If that constitutes being an expert 13 witness, fine. 14 Q You don't know -- 15 MR. SHOEBOTHAM: Mr. Lacey, if I can clarify 16 this. We have designated -- 17 MR. LACEY: No, I'll clarify it with the 18 witness. Let me clarify it with the witness. 19 MR. SHOEBOTHAM: Well, I think Dr. Kelly may 20 not be aware -- 21 MR. LACEY: I want to find out what he's 22 aware of, Jon. Just let me ask the question. 23 MR. SHOEBOTHAM: Well, if I could, Mr. Lacey, 24 I'd like to tell you. We have designated Dr. Kelly as 25 an expert witness. We feel that many of his opinions HARTOLDMON0021116 26 1 will be expert in nature. I'm not aware of any retainer 2 agreement. I wanted to clarify that on the record if " 3 that's all right. 4 MR. LACEY: 5 Q Have you been paid for your consultation time 6 in this case? 7 A No. 8 Q I see. Do you anticipate being paid for your 9 consultation time in this case just as you have been on 10 other cases? .<< 11 A Yes. 1 ft i 12 Q So, in terms of being paid for your work in^; 13 connection with this case, you expect to be paid for 14 your work, do you not? 15 A I expect to be paid for my time, yes, sir. 16 Q Okay. That's what you sell, your time. 17 Correct? 18 A Yes. 19 Q So what --what we know there is you haven't 20 worked out the details of it yet, but you are going to 21 be paid for your time? 22 A I would hope so. 23 Q Okay. 24 Now, when did you learn that you were being 25 designated by the attorneys for Monsanto an expert HARTOLDMON0021117 27 1 witness? 2 A Within the last week or ten days. 3 Q And in fact you wrote this report to Mr. 4 Hall. Do you understand Mr. Hall to be one of the trial 5 counsel for Monsanto? 6 A That's correct. 7 Q Did you talk with Mr. Hall before you wrote 8 him this report? 9 A No, I did not. I've never talked to Mr. Hall 10 about this report. . 11 Q Well, how is it that you addressed a letted 12 to Mr. Hall that constituted your report to him in this1 13 case? Let me show you Deposition Exhibit 1 again, then. 14 A Well, I was asked by Monsanto counsel to 15 write him a letter. 16 Q What Monsanto counsel? 17 A Mr. Bistline. 18 Q And who is Mr. Bistline? 19 A He's in-house counsel for Monsanto. 20 Q I see. Was it Mr. Bistline who called you 21 first about this case? 22 A Yes. 23 Q And what did Mr. Bistline ask that you 24 include in your report to Mr. Hall? 25 A He asked me to include a brief explanation or HARTOLDMON0021118 28 1 history of my role with Monsanto while I was employed, 2 to list my knowledge concerning the health effects of 3 polybiphenyls as related to Monsanto employees. 4 Q And did you understand that the reason you 5 were writing that report was because you were being 6 designated as an expert witness? 7 A Yes. 8 Q And who told you that you were going to be an 9 expert witness for Monsanto, Mr. Bistline? 10 A Mr. Bistline. 11 Q I see. And did Mr. Bistline tell you what: j. . 12 the parameters of your testimony as an expert were going 13 to be? 14 A No, he did not. 15 Q Has anybody told you yet what the parameters 16 of your expert testimony are going to be? 17 A No, they have not. 18 Q Was it Mr. Bistline who provided you with the 19 documents about this case that you've been provided with 20 today? 21 A Mr. Bistline provided me some and Mr. 22 Crawford provided me some. 23 Q I see. When did you first talk with Mr. 24 Crawford? 25 A Probably in the last two weeks. He may have HARTOLDMON0021119 29 1 talked to me sometime previously, but I don't recall. .2 '. Q Okay. 3 Did you make any notes of your first 4 conversations with Mr. Bistline? 5 A I made nonotes of any correspondence. 6 Q I see. 7 A Communications with any lawyer. 8 Q I see. So all you have is your recollection 9 to go on there? 10 A That's correct. -1' t- 11 Q Is that a habit or practice that you have, o^-. . 12 not making any notes of any correspondence or 13 communications you have? 14 A Communications rather. You said 15 correspondence and communications. 16 Q Yes. 17 A Any correspondence, obviously I would keep 18 the correspondence. But I do not make notes of 19 communications. 20 Q Why is that? 21 A I guess I'm not legally trained. 22 Q Well, you don't have a photographicmemory. 23 Does it ever seem important to you to remember the 24 things that you were told? 25 A Yes. fcr-1 i r* a i i IRAQ. A 00/-V HARTOLDMONOQ21120 30 1 Q And one of the ways people remember things 2 they're told if they don't have a photographic memory is 3 to write it down, isn't it? 4 A Somepeople do andsome people don't. 5 Q Okay. It's yourhabit not to? 6 A That is correct. 7 Q Has it always been your habit not to make 8 notes of things that are told to you? 9 A That is correct. 10 Q So, for example, throughout your medical .v 11 practice, if a patient came in and reported his sympton^s 12 to you, you would not write those symptoms down, you "* 13 would simply remember them in your head? 14 A No, that is not correct. We're talking about 15 two different things. 16 Q Okay. Well, let me ask about your employment 17 as an administrative person at Monsanto. Is it true 18 that if you received calls not about a patient and his 19 history but about administrative matters or people 20 inquiring about matters, you would make no written 21 record of those calls? 22 A That is not correct. I would make a written 23 record. 24 Q Well, why is it, then, you don't make written 25 records relating to your retention as a consultant by HARTOLDMON0021121 31 1 Monsanto? 2 MR. SHOEBOTHAM: Mr. Lacey, that question has 3 been asked and answered. 4 MR. LACEY: It has not been answered. 5 MR. SHOEBOTHAM: I object to it on that 6 basis. 7 MR. LACEY: You can go ahead and answer the 8 question, 9 MR. SHOEBOTHAM: I think you've already 10 answered the question. Dr. Kelly. If you have anything 11 different to add, feel free to do that. i it 12 THE WITNESS: Would you repeat the quest ion,- 13 please? 14 COURT REPORTER: "Well, why is it that you 15 don't make written records relating to your retention as 16 a consultant by Monsanto?" 17 A I've never thought it necessary. 18 MR. LACEY: 19 Q Have youever been instructed byany lawyers 20 representing Monsanto that it's better not to make 21 written records of communications you have with them? 22 A No. 23 Q I see. 24 Did youobtain any documentsfrom Mr. 25 Crawford regarding this matter? HARTOLDMONOQ21122 33 1 Q What else do you draw upon besides the 2 information that you've been given by the counsel for 3 Monsanto in this case, the information you've previously 4 been given by Monsanto about PCBs that you draw upon for 5 your opinion which is expressed in Deposition Exhibit 6 No. 1? 7 A Forty years of experience with Monsanto, 8 forty years of reviewing current medical literature. 9 Q Okay. 10 Does your opinions that you hold and which11 you've been retained to give have any bearing to the1 j. 12 documents that you maintain in your PCB files in 13 connection with yourconsulting business? 14 A [No reply] 15 MR. SHOEBOTHAM: Do you understand the 16 question, Dr. Kelly? 17 THE WITNESS: No, I don't understand the 18 question. 19 MR. LACEY: I'm going to make it very clear. 20 Q Your review of documents and records while 21 you were with Monsanto stopped in 1974, when you 22 retired. Correct? 23 A My review ofMonsanto records -- 24 Q Yes. 25 A -- did not stop in 1974, because I have HARTOLDMON0021123 34 1 reviewed some in the last two weeks. 2 Q Okay. But let me clarify my question. As an 3 employee of Monsanto, you've had no additional review of 4 Monsanto files in the ordinary course of Monsanto 5 business since your retirement in 1974. Correct? 6 A With the exception of other cases that I 7 might have been involved with. 8 Q I understand. You've also reviewed documents 9 specifically in connection with this case. 10 A Yes. 11 Q Correct? 12 A Yes. 1 l. ni *v 13 Q And then there is a group of documents that 14 you have reviewed and medical literature that you have 15 reviewed between the time that you left employment with 16 Monsanto as medical director and the time that you got 17 the first documents in connection with this case. 18 Correct? 19 A Yes. 20 Q And your review of those documents form a 21 part of the basis for the opinions you express in this 22 case, do they not? 23 A If by documents you mean published medical 24 literature, yes. 25 Q Okay. And those things we would find in part HARTOLDMON0021124 35 1 at least in the files that you maintain in your 2 consulting business. Correct? 3 A You wouldfind a very small part. 4 Q But some of them would bethere? 5 A They may. 6 Q Okay. 7 Now, one of the other hats that you are 8 wearing here today is -- I have a letter, and I don't 9 know if you've seen it or not, but I have a letter dated 10 April 28th from Mr. Hall designating you as a witnessr'to / 11 testify on behalf of Monsanto regarding certain matters^-, f 12 about which the company has been asked pursuant to the ' 13 Federal Rules of Civil Procedure to designate an expert 14 or a witness to testify about that. Are you aware of 15 that? 16 A Not until now. 17 Q Okay. Well, let me tell you the categories 18 of the notice that we call a 30(b) (6) notice that you 19 have been designated to testify about. This notice 20 asked Monsanto to designate a person or persons who have 21 the greatest knowledge within Monsanto and/or its 22 subsidiaries or affiliates about certain topics. And 23 you've been designated along with William Pappageorge. 24 Do you know Mr. Pappageorge? 25 A Yes. HARTOLDMONOQ21125 36 1 Q You've been designated along with Mr. 2 Pappageorge on Topic No. 2. Let me read that topic to 3 you. "Those policies and practices Monsanto employed at 4 its PCB manufacturing and distribution facilities 5 regarding the handling of PCBs by Monsanto personnel and 6 any PCB-related health or other problems experienced by 7 Monsanto personnel at these facilities." Do you 8 understand the topic? 9 A Yes. 10 Q ,Have you made any review of any documents >in / 11 preparation to come here and testify on behalf of 12 Monsanto with regard to that matter? "* 13 A No. 14 Q I see. 15 Another topic for which you have been 16 designated is Topic No. 4. Let me read that topic to 17 you. "Any and all medical, toxicological and/or 18 epidemiological research conducted by or for Monsanto 19 regarding the use and hazards of PCBs, specifically the 20 individual, departmental and consulting research 21 assignments by Monsanto in this area, operating budgets 22 for such research, Monsanto's staffing for such 23 research, and input into this research provided by 24 Monsanto's management." 25 A Am I supposed to answer that yes or no? May HARTOLDMON0021126 37 1 I read it? 2 Q Surely. Feel free to review Topic No. 4. 3 A Because there are quite a few different items 4 in that. , 5 Q Yes, there are. 6 A Can I break them down? 7 Q Feel free to look at that. My whole purpose 8 of bringing this to your attention is that you have been 9 designated by Monsanto and its trial counsel to testify 10 as one of the two people that's indicated to have the- 11 greatest knowledge about that area. 1 2 A Right. 1 j. i- - 13 Q And my real question to you is: Are you 14 aware that you are testifying as the corporate 15 representative, one of two people with the greatest 16 knowledge about that area? 17 A I am now. 18 Q But you were not before Ishowed this to you? 19 A I have not seen this before. But I will 20 answer. 21 Q Okay. Well, my question -- I'll askyou 22 specific questions about it. I wanted to know whether 23 you were aware of your designation on behalf of Monsanto 24 to testify about that area prior to this very moment. 25 A To all these areas? HARTOLDMON0021127 38 1 Q To all those areas. 2 A No. 3 Q Okay. Have you made any preparation to 4 testify about that today? 5 A No. 6 MR. LACEY: Okay. 7 MR. SHOEBOTHAM: So the record is clear, we 8 have designated Dr. Kelly in response to your notice 9 pursuant to the Federal Rules of Civil Procedure as one 10 of two individuals to discuss these areas. We've done 11 that pursuant to the Federal Rules of Civil Procedure, *r i- 12 not necessarily adopting the language which I think you* 13 included in your question. I think also Mr. Pappageorge 14 will be in a position to discuss the items that you have 15 just discussed with Dr. Kelly. 16 MR. LACEY: Well, you certainly -- 17 Q You aren't prepared to discuss those areas 18 well today by having reviewed documents, are you? 19 A Which areas? There are several very -- 20 Q Any of the areas in Topic 4. 21 MR. SHOEBOTHAM: Mr. Lacey, if I may, I think 22 your questions are confusing Dr. Kelly. He has been 23 designated as a person who can discuss the areas within 24 this topic. And we did that both by a telephone call to 25 Mr. Pohl about two weeks ago and by a letter which you a i r- i i i in a n A t'PA/'i a -rr mi/t HARTOLDMONOQ21128 39 1 have in your hands right now, 2 MR. LACEY: 3 Q My question to you, Dr. Kelly, is: Some of 4 those areas are not easy to deal with off the top of 5 your head after being retired for 13 years, are they? 6 A That is correct. 7 Q And in order to testify accurately regarding 8 many of those areas it would be necessary for you to 9 review documents to prepare to testify, would it not? 10 A It would in some of them. Some of them would 11 not. /- tvV r 12 Q And yet -- -- 13 A For example -- 14 Q You've answered my question. 15 MR. SHOEBOTHAM: Let's let the witness finish 16 his answer if we could, Mr. Lacey. 17 MR. LACEY: Sure. 18 A Operating budgets for such research. That 19 did not come under my responsibility. 20 I have reviewed epidemiological research 21 conducted by Monsanto. 22 The input into research provided by 23 Monsanto's management, I don't know what that means. 24 I don't believe I had anything to do with that. 25 MR. LACEY: HARTOLDMONOQ21129 40 1 Q And the very point of that is: For areas 2 that you don't know about now out of the top of your 3 head, if you were going to testify on Monsanto's behalf 4 about those matters it would be necessary to go and 5 review documents before you could testify about them, 6 would it not? 7 MR. SHOEBOTHAM: Mr. Lacey, he has just told 8 you that may or may not be the case. Do you want him to 9 tell you that again? 10 MR. LACEY: About those specific areas, yes, 11 I do. t j- . _TL *> THE WITNESS: Which specific areas? 13 MR. LACEY: Budget, for example. 14 Q To testify about that on behalf of Monsanto, 15 since you don't know about it in your head right now, it 16 would be necessary for you look at documents, to 17 testify, would it not? 18 MR. SHOEBOTHAM: Mr. Lacey, I would 19 appreciate it if you would show Dr. Kelly a little 20 courtesy in your questions. Dr. Kelly is doing the best 21 he can to answer your questions and answer them to the 22 best of his ability. 23 MR. LACEY: Well, if you'll let him answer 24 the question, I'm sure he's doing quite well. 25 MR. SHOEBOTHAM: Would you restate the HARTOLDMON0021130 41 1 question for him and ask it to him in a fashion that he 2 can understand and that will be -- 3 MR. LACEY: Surely. Sure. 4 MR. SHOEBOTHAM: -- that will be fair? 5 MR. LACEY: May I see the notice, please? 6 Q Dr. Kelly, you indicated that with regard to 7 the specific topic under 4 of operating budgets for 8 research that you were not personally responsible for 9 that area. Correct? 10 A If you designate research into toxicological 11 matters, I was. 12 Q Okay. 1 It i 13 A If you designate research into manufacturing 14 research or development research, I was not. 15 Q Well, let me go back and let's get very clear 16 with the notice. The notice on Topic 4 relates to 17 medical, toxicological and/or epidemiological research 18 conducted by or for Monsanto regarding the use and 19 hazards of PCBs. 20 Now, with regard to operating budgets for 21 that research, was that an area for which you were 22 responsible during your tenure as medical director of 23 Monsanto? 24 A Not all of them. We did not do 25 epidemiological research during my tenure with Monsanto. HARTOLDMON0021131 42 1 Q But you were responsible for medical research 2 and toxicological research? ' 3 A That is correct. 4 Q And you had budget responsibility for those 5 areas? 6 A That is correct. 7 Q And yet you can certainly not tell me today, 8 can you, the budget that you had in any particular time 9 frame for those areas without first reviewing documents, 10 can you? ,- 11 A I cannot. ` . fr i- _ 12 Q And you can't have reviewed the documents - 13 unless somebody told you you had been designated to 14 testify about that, can you? 15 MR. SHOEBOTHAM: Well, that's not necessarily 16 true. I think Dr. Kelly has told you, Mr. Lacey, that 17 he has reviewed a number of documents beginning, I 18 believe he said, three to four weeks ago up through 19 yesterday. 20 MR. LACEY: 21 Q Did you review any documents about the 22 operating budget for medical and toxicological research? 23 A No. 24 Q Are you prepared today to testify about what 25 those budgets were? HARTOLDMON0021132 43 1 A No. 2 Q Okay. If you wentback andreviewed Monsanto 3 records, you could refresh your memory about those 4 areas, could you not? 5 A If those -- yes, if those records were still 6 available. 7 Q And you didn't know until this very instance 8 that you might even need to ask for those records in 9 order to review them to testify, did you? 10 A I did not know. 11 Q Okay.And so you've not asked orreviewed! j. 12 those records, have you? "* 1r>- A Which records? For thebudgets? 14 Q The budgets. 15 A The budgets. No, I have not asked for a 16 review of the budgets. 17 Q Okay. 18 Now, additionally, you were responsible for 19 Monsanto's staffing for medical and toxicological 20 research, were you not? 21 A We did not have a research laboratory for 22 toxicological purposes while I was medical director of 23 Monsanto. I was responsible for staffing the 24 toxicological department with toxicologists. 25 Q Okay. And again in order to describe the HARTOLDMON0021133 44 1 specific staffing it would be necessary to review 2 records, would it not? 3 A No. I remember the toxicologists that we 4 had. 5 Q I see. And you remember all the secretarial 6 staff and all the support staff that went with it? 7 A No. 8 Q So, again, in order to describe the staffing 9 it would be necessary to review records, would it not? 10 MR. SHOEBOTHAM: I object to the question,.- 11 Mr. Lacey. He has told you he can remember the 1j 12 toxicologists and he is prepared to testify on it. 13 MR. LACEY: And I -- 14 Q And staffing includes more than just 15 toxicologists, does it not? 16 MR. SHOEBOTHAM: Mr. Lacey, where in your 17 notice does it say that you want to discuss with Dr. 18 Kelly secretaries and staff in the toxicology 19 department? 20 MR. LACEY: It says staffing. 21 MR. SHOEBOTHAM: Would you please point out 22 to me where it says -- 23 MR. LACEY: I'll be happy to. 24 MR. SHOEBOTHAM: -- you would like to discuss 25 with Dr Kelly here today secretaries in the medical HARTOLDMON0021134 45 1 department? 2 MR. LACEY: ...................... ' - 3 Q Does staff include everybody that works for 4 the group? 5 A Usually staffing refers to professional 6 staff. 7 Q I see. I see. Okay. That's your 8 understanding of it. Correct? 9 A That's my understanding, yes, sir. 10 Q All right. 11 And with regard to the consulting research j , 12 assignments by Monsanto as to medical and toxicological' 13 research, was that a matter for which you were 14 responsible? 15 A That is correct. 16 Q And would it be necessary for you to give 17 your best testimony on behalf of Monsanto with regard to 18 that, to review records? 19 A I could give you general information about 20 it. I could not give you costs, I could not give you 21 exact findings without reviewing the toxicological 22 reports that we received. 23 Q Okay. And again that would require some 24 review of Monsanto records for your best testimony on 25 those matters, would it not? HARTOLDMONOQ21135 46 1 A For my complete testimony -- 2 Q For your complete testimony? 3 A For my complete testimony, yes. 4 Q Okay. 5 You've also been designated in another area, 6 along again with Mr. Pappageorge, Area No. 5. Let me 7 address that one with you. It specifically is 8 Monsanto's efforts, if any, to monitor available medical 9 and scientific literature regarding the hazards to human 10 health associated with exposures to PCBs, including the 11 monitoring of animal studies, the amount of resources, j . 12 including funding, manpower and equipment, devoted by-' 13 Monsanto to such efforts, and Monsanto's efforts to 14 monitor and protect the health of its own employees, 15 their customers' employees and the general public from 16 any hazards of exposure to PCBs. 17 Again I take it you were not aware that you 18 were going to be Monsanto's designated representative 19 along with Mr. Pappageorge to testify about those 20 matters until just now. Is that correct? 21 A That is correct. 22 Q And again you've not reviewed any documents 23 of the company in preparation for giving testimony about 24 that. Is that correct? 25 A Well, no, it isn't correct. Because you have HARTOLDMON0021136 47 1 listed a large variety of topics there. I have reviewed 2 some records of the company that are germane to 3 individual parts of that paragraph. 4 Q So as to some parts you have reviewed 5 appropriate records, as to others you have not? 6 A That is correct. 7 Q Okay. 8 And agdin in order to give your best 9 testimony with regard to all of those areas there are 10 additional records you would have needed to review -J' 11 before today. Correct? t- j , 12 A May I see all those areas? - 13 Q Certainly. It's TopicNo. 5. And that's a 14 copy of the notice. 15 A There are statements in here that I have not 16 during my time with Monsanto carried out. Where it says 17 monitor the health of their customers' employees, I did 18 not monitor health of customers' employees. I would 19 have to review records about what available medical and 20 scientific literature I had reviewed. 21 Q So there are things you would need to look at 22 in order to give your best testimony about that? 23 A Yes. 24 Q Now, would thedocuments that youhave back 25 in your hotel room assist you in testifying about these HARTOLDMONOQ21137 48 1 areas in which you've been designated as corporate 2 representative of the company? 3 A It would assist me, but it would not be the 4 sole evidence of which I would base any testimony. 5 Q In fact, there would be other documents that 6 you have not even reviewed that you would want to review 7 before giving your best testimony? 8 A There would be other information that is 9 available to me, as I. said, on the basis of my clinical 10 and occupational experience over these several decade-s. 11 Q And there would also be other Monsanto 1 It i 12 documents you would specifically want to review before-* 13 you could give your best testimony about each -- 14 MR. SHOEBOTHAM: Mr. Lacey -- 15 MR. LACEY: 16 Q -- of these areas. Is that correct? 17 MR. SHOEBOTHAM: Mr. Lacey, if I could, what 18 do you mean when you say before he could give his best 19 testimony? Why don't you pose questions to him about 20 particular areas and see whether he needs to review 21 documents in order to -- to answer those particular 22 areas? Your question is pretty vague and ambiguous. 23 MR. LACEY: Let me just get the answer to the 24 question. 25 Q In addition to the documents you have back in HARTOLDMON0021138 49 1 your hotel room, and your experience with the company, 2 in order to give your best testimony with regard to 3 these areas in which you've been designated as an expert 4 or a representative for the company, there are 5 additional company documents you would need to review. 6 Correct? 7 A No. I do not know what additional company 8 documents might be available. 9 Q .. But that's my point. You would need to 10 search for them and find out if they exist before you- 11 could give your best testimony -- ` j.. 12 A No. > 13 Q -- would you not? 14 A No, that's not correct. 15 MR. SHOEBOTHAM: Mr. Lacey, for the record, 16 too, you are sitting there with about 20,000 pages of 17 documents behind you that have been provided to you by 18 Monsanto. You are certainly free at any point in the 19 deposition and I'm sure that you will show him quite a 20 few documents that he can testify from or testify about. 21 MR. LACEY: Well, I'll endeavor to show him 22 some documents, Mr. Shoebotham. You sent me several 23 folders late yesterday evening that I saw for the first 24 time after we picked a jury in this case. I don't know 25 how many more documents you have in your office you HARTOLDMON0021139 50 1 intend to dribble out to me over time. But I certainly 2 don't have all the Monsanto documents that this man 3 would have access to. 4 MR. SHOEBOTHAM: Mr. Lacey -- 5 MR. LACEY: And he's here as a corporate 6 representative. And I'm trying to establish very 7 clearly that you didn't even bother to tell him he was 8 going to be a corporate representative or to assist him 9 in getting prepared to testify about areas where you 10 designated him as one of the people who could testifyon 11 behalf of the corporation about those areas. /- 12 MR. SHOEBOTHAM: Mr. Lacey, I first of all - 13 don't appreciate the insinuation that I have some 14 documents in my possession that you are entitled to that 15 I haven't produced to you. That has not occurred. 16 Secondly, I met, pursuant to your request by 17 telephone yesterday morning, with Dr. Kelly all day 18 yesterday and I showed him a vast number of documents. 19 Specifically, I showed him documents which you told me 20 on the telephone yesterday morning that you wanted to 21 have him review, particularly technical bulletins and 22 things of that nature. So I don't think that I have in 23 any way done anything improper. 24 MR. LACEY: I appreciate your assistance. 25 When did you first get the documents that you delivered HARTOLDMONOQ21140 52 1 have given in other cases either by trial or deposition. 2 Can you tell me as best you can recall the other cases 3 in which you have testified by deposition? 4 A About what? 5 Q About anything. 6 A In the case of Monsanto. Is that correct? 7 Q Anybody. How many depositions have you given 8 in your life. Dr. Kelly? 9 A Between 10 and 40. 10 Q Okay. I want you to tell me as much as you 11 can currently recall about the depositions you've ` j; . 12 previously given. I'm interested in particular in who * 13 you were testifying for -- that is, who paid you to 14 testify, if anyone -- and what the case involved. 15 A Well, I can't recollect all of them. Some 16 were for plaintiffs, some were for defendants, some were 17 for Monsanto. I have no recollection of the depositions 18 that I have given since -- during my time with Monsanto 19 or afterwards. I -- 20 Q Well, let's just start with the ones you do 21 recall. 22 A I gave depositions -- let me start with the 23 trials, because that is simpler. 24 Q Okay. Okay. Well, let's go with trials. 25 And let me ask you before you start that: How many HARTOLDMON0021141 53 1 times have you testified at a trial? 2 A Probably in the neighborhood of five. 3 Q Okay. Tell me about those. 4 A One was a trial concerning allegations of 5 harm due to PCB in painted silos. 6 Q And where was that case pending? 7 A Bad Axe, Michigan. 8 COURT REPORTER: Would you say that again, 9 please, sir? 10 THE WITNESS: Bad Axe. Or Broken Ax. I'nv 11 not exactly sure. i j , 12 MR. LACEY: Okay. - 13 Q And who called you as a witness in that case? 14 A The Monsanto defense lawyers. 15 Q Okay. 16 A The second one was a trial at Nitro, West 17 Virginia. 18 Q At where? 19 A Nitro, West Virginia. Charleston, West 20 Virginia. 21 Q Okay. And what did that involve? 22 A Exposure to herbicides. 23 Q Do you know specificallywhatherbicides? 24 A 2,4,5-T. 25 Q Okay. Does that have some trade name or HARTOLDMONOQ21142 54 1 anything? 2 A It may -- any number of companies made it. 3 But I don t recall. 4 Q Is there any generic name under which it 5 went? We ve used PCBs as sort of a generic name. Did 6 that have a generic name? 7 A Well, 2,4,5-T is the generic name. It's 8 2,4-Trichlorophenoxyacetic acid. 9 Q All right. And who called you to testify as 10 a witness in that case? 11 A The defendant's lawyers. /j , . 12 Q And the defendant was? 13 A Beg your pardon. 14 Q And the defendant was? 15 A Monsanto Company. 16 Q Okay. 17 A I testified as a defendant in an ammonium 18 nitrate case -- 19 Q Where was that? 20 A -- in which I was called by American 21 Cyanamid. 22 Q Where was that pending? 23 A In St. Louis. 24 Q Okay. What else? 25 A I was called as a plaintiff's witness in a HARTOLDMON0021143 55 1 trial of a railroad engineer who was exposed to diesel 2 fumes in St. Louis. 3 Q Okay. What else? 4 A I'm sure during the early days of 1935 to 5 1942 I was called in on various private patients who had 6 suffered injuries in automobile accidents or something 7 like that, but I don't recall the details. 8 Q Since World War II your recollection is 9 you've testified four times, then? 10 A I may have more, but those are the ones I .can 11 recall right now. 12 Q Did Monsanto make diesel fuel? 1 ;. iv i 13 A No. Whether or not at the time of the -- 14 their Lyon Oil merger they had a diesel component in 15 their hydrocarbon stream I don't know. 16 Q Okay. 17 Now tell me about thedepositions that you 18 recall. 19 A I gave depositions in the Agent Orange case. 20 Q Okay. And what was the chemical involved 21 there? 22 A 2,4,5-T. 23 Q Is that the samechemical thatwas involved 24 in this testimony for Monsanto at Charleston, West 25 Virginia? HARTOLDMON0021144 56 1 A It was one of the components. There may have 2 been something else in the Agent Orange at that time. 3 Q Okay. And who called you to testify in the 4 Agent Orange case? 5 A The defendants' attorneys. 6 Q Was Monsanto a defendant? 7 A They were one of seven defendants. 8 Q Okay. Was there a particular attorney who 9 called you to testify? 10 A Yes. But I don't remember their name. They / 11 were a New York firm. I don't remember their name. j(-, 12 Q Were they representing Monsanto? 13 A That's correct. 14 Q Okay. 15 What other depositions have you given? 16 A I've given a deposition in a case called the 17 Outboard Marine case, of which there was a question of 18 allegations of environmental damage from PCBs. 19 Q Okay. And who called youto testify there? 20 A The lawyer for thedefendant. Thedefendant 21 was Monsanto. 22 Q What other cases? 23 A I gave a deposition in a case that involved 24 some plasticizer in dental wax, but I don't recall much 25 about it. HARTOLDMON0021145 57 1 Q A plasticizer in dental wax? 2 A That's correct. 3 Q What is dental wax? 4 A That is something that you make impressions 5 for your -- when you are making false teeth. You take 6 an impression. 7 Q What was the plasticizer involved? 8 A I don't remember. 9 Q Who was the defendant that called you to 10 testify? 11 A Well, the ultimate defendant was Monsanto/ ii it1- i- 12 don't recall the lawyer. -J 13 Q Okay. But Monsanto was one of the 14 defendants? 15 A Yes. 16 Q You don't -- 17 A I don't know if there were more than one 18 defendant, but I know Monsanto was a defendant. 19 Q Okay. You don'trecall whether the 20 plasticizer involved there were PCBs? 21 A It was not. 22 Q Okay. 23 What other depositions? 24 A There may be more. I don't recall them. I 25 mean there were more, but I just don't recall them. HARTOLDMON0021146 58 1 Q Okay. 2 Do you recall any depositions that you have 3 given for plaintiffs in a case involving exposure to 4 chemicals? 5 A Yes. Well, the diesel fuel. Fuel is a 6 chemical. 7 Q And you gave not only trial testimony but 8 also a deposition? 9 A That is correct. 10 Q Okay. Any others? 11 A I don't recall. But I know there have been >- t 12 some, but I don't recall them. - 13 Q Where you testified on behalf of plaintiffs 14 who had problems resulting from exposure to a chemical? 15 A Either to chemical or to mechanical injury. 16 Q Now let me separate out the mechanical 17 injury. I'm not interested in mechanical injury in my 18 question right now. I'm trying to find out in what 19 cases you have testified for a plaintiff, an injured 20 person who is claiming to have suffered problems as a 21 result of exposure to a chemical. 22 A I can't recall them, Mr. Lacey. I know I 23 have done one or two. 24 I've just recalled another case, trial, in -- 25 where I was called by the lawyers for Ward Transformer HARTOLDMON0021147 59 1 Company in a PCB case in North Carolina. 2 Q Okay. A case in North Carolina where 3 Warren -- 4 A Ward Trans -- 5 Q Ward Transformer called you? 6 A That's correct. 7 Q And they were the defendant? 8 A That's correct. 9 Q Involved PCBs? 10 A Correct. 11 Q Did they buy their PCBs from Monsanto? 12 A I don't know. Because they reclaimed 13 transformers. And I don't know where they got their 14 PCBs. 15 Q Okay. 16 Any other cases you can recall where you gave 17 depositions? 18 A Theremay be some, but I can't recall any 19 more off the top ofmyhead. 20 Q Okay. 21 Let me ask you about this one case you do 22 recall where you testified for the plaintiff in a case 23 involving chemical exposure. That was the diesel fumes. 24 Correct? 25 A That's correct. HARTOLDMON0021148 60 1 Q Did you find a particular pathology in that 2 patient that was related to that patient's exposure to 3 diesel fumes? 4 A Yes. 5 Q And what was the pathology? 6 A He had pulmonary problems. 7 Q Can you tell me specifically what they were? 8 A He wheezed. 9 Q I see. Anything else? 10 A He was short of breath. 11 Q Anything else? ` r\: i 12 A I think that's a good part of his problem. - 13 Q Okay. And who was that patient suing? Or 14 that plaintiff suing. 15 A Some railroad. I don't know which one. 16 Q I see. Do you know what the basis for the 17 claim was? 18 A Yes. He was an engineer in the roundhouse, 19 and the diesel fumes, when he backed up the freight 20 engine, would blow into his cab. 21 Q I see. Was that a workmen's compensation 22 case? 23 A Yes. 24 Q During the course of the next day or so while 25 we're taking your deposition, if you think of any other HARTOLDMON0021149 61 1 cases in which you've testified, will you let me know? 2 A Be happy to. 3 Q Okay. 4 Now I want to try to understand a little bit 5 about your medical background. Your training came at 6 St. Louis University? 7 A My medical education came at St. Louis 8 University. My postgraduate training was at St. Louis 9 City Hospital. 10 Q Is that associated somehow with the St. Louis 11 University Medical School? J ` i. It i 12 A Well, they had a teaching facility at 13 their -- at the city hospital, yes. 14 Q So it was related? 15 A Well, no, it was apublicinstitution. 16 St. Louis University staffed some of the services, 17 Washington University staffed some of the services. 18 Q Okay. , 19 Did your training while you were at St. Louis 20 University involve occupational medicine specifically? 21 A During the years of my medical school, from 22 1932 to 1936, there was some mention made of specific 23 occupational diseases. 24 Q I see. 25 A Therewere no formaloccupational medical HARTOLDMONOQ21150 62 1 courses. 2 Q I have gotten the impression that a couple of 3 the leaders in working in the occupational industrial 4 hygiene areas were Harvard and University of Cincinnati. 5 Is that correct? 6 A Well, I -- there were people at Harvard and 7 at University of Cincinnati who did a great deal of work 8 in occupational medicine. But as far as Harvard was 9 concerned, they did more in industrial hygiene, whereas 10 the University of Cincinnati did both medical and 11 industrial hygiene. ij-, 12 Q My real question is whether those 13 institutions were two of the early leading institutions 14 in the area of occupational medicine and industrial 15 hygiene. 16 MR. SHOEBOTHAM: Do you know what Mr. Lacey 17 means when he says leading institutions. Dr. Kelly? 18 THE WITNESS: No. I think because it all 19 depends who is -- in whose evaluation. 20 MR. LACEY: Well, let me -- let me see if I 21 can clarify that. 22 Q I don't have a medical background, Doctor, 23 but I had the privilege attending Duke in an artsy 24 program in the early Seventies. And Duke had a very 25 fine medical school, I understood. That's what I heard. HARTOLDMONOQ21151 63 1 And I heard that -- from time to time that their medical 2 school was like third or fourth in the nation, and at 3 the top of the heap was Johns Hopkins that everybody was 4 shooting at. Do doctors kind of rank medical schools, 5 and is there some view of what's good and what's better 6 and what's best? 7 A Some doctors may. I don't. 8 Q You're not aware of anything about that? 9 A No. There is no ranking that I'm aware of. 10 Q I see. ,- 11 Have you in your own mind ever reached any ft i- 12 conclusion about places that seemed to have the 13 outstanding programs in things like industrial hygiene 14 and occupational medicine and the like? 15 A Yes. I think Cincinnati had it and I think 16 University of Pittsburgh had it. 17 Q Okay. What about Harvard? 18 A Harvard did not have any occupational medical 19 courses. 20 Q I see. So the two schools that you would 21 place at the top of the heap, then, would have been 22 University of Cincinnati and University of Pittsburgh in 23 your own ranking? 24 A I said I didn't rank them. I said they had 25 good programs. Other schools may have had programs that HARTOLDMONOQ21152 64 1 I was not familiar with. 2 Q I see. 3 In making decisions on behalf of Monsanto 4 about getting assistance from outside groups on matters 5 like occupational health and industrial hygiene, did you 6 have any particular institutions that you personally 7 favored because of what you considered to be their 8 prominent positions? 9 A University of Cincinnati. 10 Q Okay. And so at least your personal 11 selection for much of the outside work that you had clor^e . 12 from time to time revolved around their programs. Is 13 that correct? 14 A Outside work for what? Would you clarify 15 that again? You said industrial hygiene, occupational 16 medicine? 17 Q Yes. 18 A Yes, University of Cincinnati. 19 Q Okay. And you sent your matters there 20 because you thought that they were very well qualified 21 to do that work. Correct? 22 A Yes, sir. 23 Q In your own view today what would you 24 identify as the leading institutions with regard to 25 matters of industrial hygiene and occupational health? HARTOLDMONOQ21153 65 1 A I'm not prepared to answer that question. I 2 don't know. 3 Q Do you still consider the University of 4 Cincinnati to be a good institution? 5 A Yes. I don't believe it's as good now as it 6 was then, but -- 7 Q Okay. Other than that, you don't have any 8 idea of what institutions are in your opinion doing 9 better or worse in that area nowadays. Is that correct? 10 A That's correct. There may be some that I 11 don't know about. t t; .i 12 Q Okay. And you aren't aware of any you do - 13 know about that you would list as doing good work in 14 that area? 15 A I just don't know any, that's correct. 16 Q Okay. That's all I need to know. 17 Let me talk to you a little bit about your 18 actual part-time work for Monsanto from the mid-1930s, I 19 guess, July of 1935, through January or February of 20 1942. Okay? 21 A Yes, sir. 22 Q During that time frame from 1935 until 23 January or February 1942 -- 24 A Pardon me. You said '45 the first -- 25 Q I'm sorry. It should be -- didn't you go HARTOLDMONOQ21154 66 1 into the service in '42? 2 A That's correct. But you said from '45 -- 3 Q I appreciate you correcting me. Let me -- 4 let me make my question clear. You worked part-time 5 with Monsanto from mid-1935 until January or February 6 1942. Correct? 7 A Yes. 8 Q Then you went into the service for a period 9 of time? - 10 A Yes. - t- 11 Q Okay. And you came back as the medical j(-, 12 director of the new medical department in 1946? 13 A Yes. 14 Q Okay. I want to focus right now on the work 15 that you did for Monsanto during your part-time 16 employment from '35 to '42. Okay? 17 A Yes. Okay. 18 Q Now, part of that work involved being the 19 company's plant physician. Correct? 20 A Yes, sir. 21 Q And what plant were you the plant physician 22 for? 23 A It was the St. Louis plant. At that time it 24 was called Plant A, and it was then -- the name was 25 changed sometime to the Queeny plant. I don't know when HARTOLDMONOQ21155 67 1 that name change was inaugurated. 2 Q Did each company plant have a plant doctor in 3 the period that you were the plant doctor for the 4 St. Louis plant, also known as Plant A, also known as 5 the Queeny plant? 6 A Some did and some didn't. 7 Q Okay. Do you know how the distinction was 8 made between which plants had plant doctors and which 9 ones didn't? 10 A By size. 11 Q The larger plants had plant doctors? 1 12 A That is correct. And a plant of 30 or 40 - 13 just had the name of a plant physician that they sent 14 injuries to. 15 Q Okay. 16 Now, were there more than one plant in the 17 St. Louis area? 18 A Yes. 19 Q What other plants were in the St. Louis area? 20 A There was a plant called Plant B. 21 Q Okay. 22 A On the east side of the Mississippi River, 23 called Monsanto Illinois. The name of the plant has 24 been changed to Krummrich plant, Krummerich. 25 The name of the city has been changed to Sauget, a nonet a rro HARTOLDMON0021156 68 1 S a u g e t. 2 Q You almost need a road map to follow that 3 one, don't you? 4 A Well, it's the same place. 5 Q Okay. 6 A Then there was a plant in the southern part 7 of the city of St. Louis called the Carondelet plant. 8 Q Would you spell that? 9 A Carondelet. 10 Q Did that have a letter number associated w-ith 11 it? ' Iv 12 A I think it was Plant C. I'm not sure. -J 13 Q Okay. Any other plants in the St. Louis 14 area? 15 A No. 16 Q Who was the company physician for the Plant 17 B? 18 A There was a -- there were two doctors, 19 Dr. R. B. and Dr. B. E. Ellis, Ellis. 20 Q And were they located in St. Louis or on the 21 other side of the river? 22 A In East St. Louis. 23 Q And that's -- 24 A That's the other side of the river. 25 Q Okay. So they were in Illinois and you were I R fl /** A itR/i o. A oo/~\/-i a -T-r*o ifcir* HARTOLDMONOQ21157 69 1 in Missouri? 2 A That's correct. 3 Q What about Plant C? Was there a company 4 doctor for that plant? 5 A No. At first when I first came there they 6 had just the name of neighboring physicians that they 7 sent injuries to. Later on, when we obtained part-time 8 physicians at the Queeny plant in addition to myself, 9 some of our part-time physicians serviced the Carondelet 10 plant. 11 Q Now, what were the specific duties of a 1 i- 12 company plant physician or plant doctor? ,J 13 A Specifically, they were to take care of any 14 occupational injuries or occupational conditions. 15 Q Does that mean if someone mashed his hand in 16 the door while at work you would see that person? 17 A I would see the person or he would be sent to 18 the hospital and I would arrange for specialized medical 19 care. 20 Q Okay. Were there any other duties that were 21 assigned to each plant doctor? 22 A Yes. Again it depended on the time the 23 doctor spent. He carried out physical examinations on 24 the employees. 25 Q Now, are these preemployment physicals or MPi I IMP PAM IIM R, ARSnPIATPQ IMP HARTOLDMONOQ21158 70 1 post-employment physicals or what? 2 A These are preemployment physicals and 3 employment physicals during the course of his 4 employment. 5 Q Okay. It was customary for Monsanto to have 6 a preemployment physical on a new employee applying? 7 A Yes. . 8 Q And what was the purpose of that 9 preemployment physical? 10 A To find out the state of his health and to-" 11 find out to see whether his health was in -- where he iIt i 12 could be placed in the plant that would not cause any - 13 ill effects to the employee. 14 Q You would be screening out things like bad 15 backs, bad knees, things of that sort? 16 A Well, certainly therewould be some 17 screening, depending on whether the man was going to be 18 doing heavy manual work. We would not want a person in 19 there with a bad back who couldn't do the heavy work. 20 So there would -- but it was really more of a placement 21 exam than a screening exam. 22 Q Well, what sort of -- 23 A In other words, to turn the people down. 24 Q I'm sorry. 25 A In other words, the amount of people who were HARTOLDMON0021159 71 1 rejected was relatively small. The amount of people who 2 were placed in various jobs with or without limitations 3 were so placed on the basis of their physical 4 examination. 5 Q Let me get you to give me some examples of 6 how you would screen an employee and have them placed in 7 a particular job based on limitations. 8 A Well, if a man gave an allergic history, he 9 would not be placed in an area where he would come in 10 contact with fumes or dusts. 11 Q Okay. And would you ever be in a situation j. 12 where you would turn down an employee because of an -J 13 allergic history so that he simply would not be able to 14 get a job with Monsanto? 15 A That could occur, yes, sir. 16 Q Okay. 17 Now, what sort of things went on in the 18 preemployment physical? Did you take a history from 19 them? 20 A Yes, sir. 21 Q Did you perform a physical examination? 22 A Yes, sir. 23 Q Did you do anything else? 24 A Yes, sir. 25 Q What else? HARTOLDMON0021160 72 1 A We did urinalysis on all people; some people 2 we did x-rays on; and the scope of the physical 3 examination was widened as the years progressed. 4 From '36 to '74 there was an increase in sophistication 5 in examination procedures, and we went along with the 6 sophistication. 7 Q How long did you actually physically perform 8 these examinations yourself? 9 A I physically performed examinations until 10 1942, when I went in service. Then I performed physical 11 examinations on salaried people in the general office . *t: i 12 off and on until 1974. .J 13 Q Do I understand that after 1942 you were no 14 longer doing these screening exams for people working in 15 the actual plants? 16 A Well, during the first four years, of course, 17 I was not with Monsanto at all, until '46. And then I 18 was not at the plant itself, no, sir; I was at the 19 general office. 20 Q So others then were doing the screening exams 21 of Monsanto plant employees after 1942? 22 A Yes, other people were. 23 Q Okay. 24 What was the purpose of conducting a 25 urinalysis? HARTOLDMON0021161 73 1 A To see if they had any kidney or bladder 2 problems. 3 Q And what would you be looking for in that? 4 What sort of tests did you have performed? 5 A You test for diabetes, you test for red cells 6 in the urine, you test for albumin in the urine. 7 Q Okay. And the x-rays. What was x-rayed? 8 A That varied. In some plants where there was 9 heavy manual labor they did back x-rays. In the 10 majority of plants they did chest x-rays. Some plants 11 they did not do chest x-rays. i j . . 12 Q What was the difference between the plants ,v 13 that did chest x-rays and the plants that did not do 14 chest x-rays? 15 A The presence or absence of chemical fumes or 16 dusts. 17 Q Now, you mentioned that in addition to doing 18 preemployment physicals from the period of 1935 up to 19 1942, when you went in the service, you also did 20 physicals on existing employees. Correct? 21 A Correct. 22 Q Was there a routine schedule by which all 23 employees had medical examinations? 24 A At which plant? 25 Q Whatever plants you worked at. HARTOLDMON0021162 74 1 A Well, as I said, I was only a plant physician 2 at the Queeny plant. 3 Q Okay. 4 A There was a regular schedule there where the 5 employees had routine periodic examinations. 6 Q And do you recall what that schedule was? 7 A It varied between 12 months and 24 months. 8 Q Did it vary with the work people were doing 9 or just with the time frame? 10 A It varied with the work people were doingit 11 varied with the age of the individual, it varied with j. 12 the doctor's hours available. - 13 Q Okay. What was the variation that took place 14 with regard to the work that people were doing? What 15 factors suggested the more frequent versus the less 16 frequent examinations? 17 A If we had products that had a definite 18 possibility of affecting the worker, we examined them 19 more frequently. For example, if a person were exposed 20 to a compound that might cause nasal irritation, we 21 looked at the individual's nose every three months. If 22 a man were in the shipping room, he would be examined 23 every two years, two years and a half. 24 Q Okay. And what about the age factor? How 25 did that work? HARTOLDMON0021163 75 1 A The older the man would be, the more likely 2 he would be suffering the consequences of getting old. 3 And he was examined from the standpoint of picking up 4 incipient nonoccupational conditions. 5 Q If you found an incipient nonoccupational 6 condition in an employment examination, what was done? 7 A He was referred to his family physician. 8 Q Anything else? 9 A Well, no, nothing else was done. 10 Q Did you ever conclude that advancing age made 11 people more likely to be sensitive to industrial 1 j. 12 exposure problems? >v 13 A I never did. 14 Q And those types of considerations had nothing 15 to do with the more frequent exams for older employees? 16 A That is correct. 17 Q Now, in addition to actually performing these 18 examinations, what other functions, if any, did you have 19 in your part-time employment with Monsanto? 20 A There was an enormous amount of health 21 education and consultation on private medical matters on 22 the part of the employees. 23 Q Explain what you mean by that, if you would. 24 A Certainly. We had a doctor there four hours 25 a day. The employee was free to come in and talk to the Mn /> a i I IM n A OO A t A HARTOLDMONOQ21164 76 1 doctor about his health, his wife's health, his 2 children's health, whether they were getting the right 3 medical care, where they should go, any of these things. 4 Q You might advise them on their diet, things 5 like that? 6 A Yes. Stop smoking. 7 Q Okay. Anything else you did as a part-time 8 physician besides this private consultation with 9 employees at their discretion or desire? 10 A Yes. I went through the departments of tbe 11 plant at more or less regular intervals to check on whajt . 12 exposures the men might conceivably be subject to and 13 what the general housekeeping of the plant was. 14 Q Was this a particular assignment that you 15 had, or did you take this duty upon yourself? 16 A I took it upon myself. 17 Q Did that ever get formalized into something 18 that you specifically had the right or the authority to 19 do? 20 A Well, I always had the right and the 21 authority. After we had industrial hygienists, I 22 believe it was formalized. 23 Q And that's -- that's after your part-time 24 employment, though, isn't it? 25 A Yes. Well, during my part-time employment, HARTOLDMONOQ21165 77 1 no, but I must have had the right, because nobody ever 2 questioned it. 3 Q Okay. In connection with those periodic 4 trips through the plant -- and was this all at the 5 Queeny plant? 6 A That's correct. 7 Q During these periodic trips through the plant 8 where you checked on exposure and general housekeeping, 9 did you ever find any problems? 10 A Yes, we would find problems. 11 Q What did you do about them? ^ i- j _ 12 A Corrected them. -- 13 Q And how would you do that? 14 A By talking to the manufacturing 15 superintendent. 16 Q Did you ever have any trouble getting their 17 compliance? 18 A Not that I can recall. 19 I'll have to correct a statement that you 20 made. When I made these part-time -- as I was -- when I 21 was a part-time physician, at some times I went on 22 regular basis in the latter years from 1938 to '42 to 23 other plants and went through their -- those plants. 24 Q What other plants did you go to? 25 A We only had five or six at that time. There HARTOLDMON0021166 78 1 was the Springfield plant, the Boston plant, the 2 Anniston plant, the Norfolk plant, the Nitro plant, 3 Carondelet plant. 4 MR. SHOEBOTHAM: Mr. Lacey, at a convenient 5 point in here for you, if we could give Dr. Kelly a 6 break I would appreciate it. 7 MR. LACEY: Why don't we just do it right 8 now. 9 VIDEO OPERATOR: The time is 10:46 a.m. We 10 are going off the record. ,<- 11 [Recess] 1 ft i _ 12 VIDEO OPERATOR: The time is 10:59. We arev 13 now back on the record. 14 MR. LACEY: 15 Q Dr. Kelly, before we took a break, you 16 indicated that from sometime in around 1938 to 1942 you 17 went to plants other than the Queeny plant. Correct? 18 A Yes, sir. Correct. 19 Q And the purpose of those visits was what? 20 A To check on their medical staffing, to check 21 on what medical hazards might or might not exist, to 22 check on the environment in the plant itself. 23 Q And did you go to each one of the other 24 plants that you named? 25 A Yes, sir, I did. nn iiiva o a A TPr i mo HARTOLDMON0021167 79 1 Q Okay. On how many occasions, approximately, 2 did you visit each one of those plants? Was this one 3 grand tour or did you do it on a scheduled basis? 4 A I did it on a more or less scheduled basis. 5 I tried to see one of the plants -- each of the plants 6 every year. I was, in effect, a medical director 7 without portfolio. 8 Q Okay. 9 Can you recall generally what sort of 10 chemicals were made at the Springfield plant? << , 11 A Plastics. / . . i 12 Q At the Boston plant? 13 A Inorganic chemicals. 14 Q At the Anniston plant? 15 A That varied. They madeabrasive compounds 16 for a while, they made chlorinated biphenyls -- 17 Q That's PCBs? 18 A PCB. They made Parathion, which is a 19 phosphate-based insecticide. 20 Q Norfolk? 21 A They made caffeine and one or two other minor 22 chemicals that did not exist -- this plant did not exist 23 for a very long period of time. 24 Q Nitro? 25 A Rubber chemicals. And later onagricultural HARTOLDMON0021168 80 1 chemicals. 2 Q And the Carondeleto? 3 A Carondelet. 4 Q Carondelet. Okay. 5 A They made food grade phosphate chemicals. 6 Q When you say food grade, what do you mean? 7 A Well, it was -- it goes into dentifrices, it 8 goes into phosphate baking powders and things of that 9 sort 10 Q Okay. 11 And the Queeny plant? 1: ni 12 A They made a large variety of organic .7 13 chemicals. 14 Q Did eachdepartment in eachplant have 15 exactly the same requirements with regard to protections 16 to be provided to the workmen in that section of each 17 plant? 18 A No, sir. 19 Q Why not? 20 A Because in certainplants, in certain 21 departments of individual plants, there would be the 22 possibility of absorption of skin chemicals -- of 23 chemicals through the skin, and they would have 24 specialized coveralls and change of clothing provided 25 for them. In other departments where such a hazard did ........ ---- HARTOLDMON0021169 81 1 not exist, they would not. 2 Q Were there any other differences between 3 departments and plants besides this skin absorption 4 problem you mentioned? 5 A I don't know what you mean by differences. 6 Q Well, was there some place that everybody had 7 an air line to them and others they didn't or anything 8 like that? I'm trying to find out protective measures 9 that might be needed in different sections of different 10 plants. 11 A Well, yes, some had areas where, because of i *t: i 12 noise, ear protection had to be -- had to be worn if yoii 13 went in there; some had respirators available; some had 14 them where respirators were mandatory for certain parts 15 of a job; some places had to have protective aprons; 16 some people had to wear gloves at some time. Almost all 17 the plants had the same requirement for goggles and 18 safety shoes. 19 Q What were the requirements for goggles and 20 safety shoes that were generally true for all plants? 21 A Everybody had to wear them. 22 Q Okay. And safety shoe, we mean one that's 23 got a steel toe so if you drop something on it it won't 24 hurt your toe? 25 A That's correct. an /> a A on HARTOLDMON0021170 82 1 Q And what was the requirement for goggles? 2 A In some plant -- in some departments it was 3 mandatory, in some departments the people just had them 4 in case there was a spill or sometime someone had to 5 wear goggles. 6 Q Not everybody wore goggles all the time? 7 A Some departmentsthey did. 8 Q Okay. But in other departments they did not? 9 A They did not. 10 Q Okay. 11 And the level of protection provided varied i 12 from departments within one plant depending on what , v 13 people were working with? 14 A Yes, sir. 15 Q And varied from plant to plantdepending on 16 what people were working with? 17 A Yes, sir. 18 Q And you also mentioned in addition to looking 19 at the environment within the plants you looked at the 20 medical hazards. Do the medical hazards vary within 21 sections of the plant depending on what people were 22 working with? 23 A Well, yes, sir. Some peoplewere working 24 with chemicals that were dangerous, some people were 25 working with chemicals like aspirin that was not i in a A nnrvAi A TPf ikia HARTOLDMON0021171 83 1 dangerous. 2 Q Okay. 3 And with regard to your review of medical 4 staffing, that was making sure you had an appropriate 5 plant doctor at each plant? 6 A Yes, sir. 7 Q Did thosedoctors also have the 8 responsibility to periodically review their own plants 9 to check on housekeeping and the like? 10 A Some did and some didn't. 11 Q To the extent that they were responsible f:or:. it i- 12 those types of reviews, did they report to you even -J 13 though you didn't have the portfolio of medical 14 director? / 15 A They were plant employees. They reported to 16 me if there were any occupational conditions that had 17 occurred that they had recognized. There again, we have 18 to state it depends on how much available doctor time we 19 could get. 20 Q And that was a function of and I guess in 21 part how much each plant could afford to pay for a 22 doctor to be there? 23 A No, sir. It was a question of how available 24 doctors were. Because in those days there was a doctor 25 shortage. MEM MC CAM I IM R, ASSOCIATES INC HARTOLDMON0021172 84 1 Q Okay. In some places it was less severe than 2 others and so you had more doctor time at the plant? 3 A That's correct. 4 Q Okay. 5 Did you from time to time in connection with 6 these plant reviews recommend greater levels of personal 7 protection for employees in a particular section of the 8 plant? 9 A Yes, sir. .. 10 Q That was within the scope of somethingyou- 11 could comment on? />tv.r 12 A Yes, sir. -- 13 Q And to whom wouldthoserecommendations be 14 made? 15 A To whom? 16 Q Yes. 17 A They would be made to the plant manager and 18 to the manufacturing superintendent in St. Louis. 19 Q So you would tell both the person in charge 20 of the plant at the location you visited and his boss in 21 St. Louis? 22 A That's correct. 23 Q And were those recommendations generally 24 followed? 25 A Yes, sir. HARTOLDMONOQ21173 85 1 Q Did you ever find any sections of any plant 2 where the precautions that were being taken were more 3 than you considered necessary? 4 A No, sir. 5 Q Okay. Would you have had the freedom to 6 suggest a lessening of protections if you thought that 7 was appropriate? 8 A Well, it never came up, so I can't answer 9 that. . 10 Q Okay. I mean I guess my question is: Would 11 you -- if you found that, would you have felt ` j.. . 12 comfortable making a recommendation that you didn't nee`d 13 something that was being done? 14 A No, sir. Because I would believe that they 15 had instituted those precautions for a particular reason 16 that I never knew when that particular reason might 17 become important again. 18 Q Okay. So your view would only be to add 19 precautions that you saw, not to remove any that you 20 felt were unnecessary? 21 A That's correct. 22 Q Okay. And in the business of working with 23 chemicals is it one of those things where it's better 24 safe than sorry? Is that what you are saying, in 25 essence? an A I < in a t r o IMP HARTOLDMON0021174 86 1 A No. What I'm saying is that you recommend 2 the precaution that it's necessary to keep people from 3 having any ill effect from the chemical. Period. 4 Q Well, my question to you is: If there's a 5 question in your mind about whether a particular 6 precaution is necessary or not, it would be better to 7 institute the precaution and be on the safe side than 8 fail to institute it and then have a problem appear. Is 9 that correct? 10 A Well, that is a very broad question that 11 think you would have to be more specific about. 1. 12 Q You can't answer that question? - 13 A Repeat it. Will you please? 14 COURT REPORTER: "Well, my question to you 15 is: If there is a question in your mind about whether a 16 particular precaution is necessary or not, it would be 17 better to institute the precaution and be on the safe 18 side than fail to institute it and then have a problem 19 appear. Is that correct?" 20 THE WITNESS: Yes, certainly. But -- yes, 21 the answer is yes. But it's a question: Is it one in a 22 million or is it one in ten? So a vague possibility 23 would not mean that precaution should be taken. 24 MR. LACEY: 25 Q Well, tell me about situations where you HARTOLDMONOQ21175 87 1 actually did recommend additional precautions that were 2 not being taken in the plant before you made your 3 review. 4 A I recommended exhaust ventilation at -- spot 5 ventilation at various places in the manufacturing 6 installations. I recommended clothing and protective 7 clothing at various times in various departments. We're 8 still dealing now from 1936 to '42? 9 Q Yes. 10 A We did not have an industrialhygienist at- 11 that time, so I made recommendations as far as ` If: i- 12 protection of the workers by engineering methodsand 13 protection of the workers by personal protective 14 methods, yes, sir, I did that. 15 Q Okay. And my question to you is: By way of 16 telling us at what level it became important to you to 17 make recommendation if you thought the chances were one 18 out of a thousand there could be a problem did you make 19 the recommendation to go ahead and have the protection 20 or did it have to get to be one out of ten before you 21 worried about it? 22 A I can't quantify that between one and ten and 23 one and a thousand. If I thought there was a 24 foreseeable likelihood of ill effect, I would recommend 25 it. HARTOLDMON0021176 88 1 Q Okay. 2 Now, when you talked about protective 3 clothing, what sort of protective clothing did you 4 recommend in particular locations? 5 A Some had daily change of coveralls, some had 6 aprons, some had gloves. 7 Q When you say coveralls, are you talking about 8 something that Monsanto itself provided? 9 A Yes, sir. 10 Q Did every employee in the plant have his own 11 coveralls supplied by the company? 12 A No, sir. ` i -J 13 Q Those who didn't have company-supplied 14 coveralls, what did they do? 15 A That varied again with the plant. Some used 16 their clothes -- their work clothes they brought from -- 17 from home, went home with them. 18 Q Okay. 19 A Some had company clothing, somehadcompany 20 clothing provided daily, some had company clothing 21 provided weekly, some had company clothing provided 22 three times a year that they laundered at home 23 themselves. 24 Q If a personhad companyclothing that was 25 provided to them and they didn't have a daily change. MFI I Mr C AI I IIM Ri ASSOCIATES INC. HARTOLDMON0021177 89 1 were they free to take it home or did they have to leave 2 it there at the plant? 3 A I don't know. 4 Q Okay. 5 A I don't remember that. 6 Q You don't know whether anyemployees actually 7 took company clothing home? 8 A I have no knowledge of it. 9 Q Okay. Were there employees with company 10 clothing who had laundry done for them by the company, so 11 they didn't have to worry with that? 12 A Yes, sir, there were. 1 ' . It i ,J 13 Q And that was incertain specific departments? 14 A That's correct. 15 Q For those employees that had company clothing 16 provided, were they provided paid time on their shift to 17 change into their company clothing at the beginning of 18 the shift and change out of it at the end of the shift? 19 A ,1 think that varied. In some plants they may 20 have had 15 minutes, in some plants they did not. 21 Q Okay. Where people did make clothing 22 changes, were showers always provided for them to bathe 23 after the conclusion of the shift? 24 A Yes, sir. 25 Q Was that available atevery plant? NELL MC CALLUM & ASSOCIATES. INC, HARTOLDMONOQ21178 90 1 A In the vast majority of plants locker rooms 2 and showers were available................ 3 Q Okay. 4 A I can't say whether it was present at all 5 plants. 6 Q Okay. Were there any particular lines of 7 product for which taking a shower was something that was 8 required as a part of the safety precautions you put 9 into place? - 10 A Yes, sir. .<< 11 Q Were there other lines where that was not 1 iI 12 required? 13 A Yes, sir. 14 Q And again that varied depending upon the 15 hazards of what was beingworked with? 16 A Yes, sir. Potential hazards. 17 Q Okay. Did you ever recommend that a 18 particular -- or that theemployees of aparticular 19 section of a plant be provided with shower time where 20 they were not as a part of additional protection? 21 A No, sir. 22 Q Okay. 23 In terms of information given to employees, 24 and I'm talking again about the time frame from 1935 to 25 1942, about the hazards of anything they were working mci i t\nn r ai i iim e. AccnriATirc imp HARTOLDMON0021179 91 1 with, what sort of information was given to Monsanto's 2 own employees? - .................. 3 A Monsanto had a safety department and had 4 safety meetings with the employees. The 5 manufacturing -- the plant manager and the manufacturing 6 superintendent were given information that included the 7 potential toxic effects, if any, of their products. 8 That then was given to the manufacturing 9 superintendents, to the superintendent of the individual 10 department, then he instructed the workers. 11 Q From whom did these people get the 1 it i 12 information with which they instructed the workers? -J 13 A Either from the medical department in 14 St. Louis or the safety department. 15 Q Okay. Well, now, before 1942 there really 16 isn't a medical department except, I guess, you without 17 portfolio. Is that correct? 18 A That is correct. But it still -- from I 19 would say '38 to '42 we sent out quite a bit of 20 information on various products. 21 Q When you say "we," is that we you? 22 A I. I. 23 Q You're the "we"? 24 A I'm the "we." 25 Q Okay. So you were then the primary source of hnn n \ q.mci i a i i iM AccnriATC? imp HARTOLDMON0021180 92 1 information from 1938 to 1942 on the hazards of the 2 products being manufactured by Monsanto as that 3 information was supplied to your workmen? 4 A No, sir. I was the primary source for new 5 products. There was a body of information that had been 6 developed by plant experience over the years as to the 7 safe handling of the products, the raw materials and the 8 finished products that was available at each plant. 9 Q . Did you have any input into that body of 10 knowledge with regard to existing products? 11 A I had some. I don't recall what it was. 1 : It i 12 Q I mean that in fact is why you would go .J 13 around to existing plants and review what was going on, 14 to see if they needed to be upgraded because of what you 15 could observe about hazards. Correct? 16 A Yes, sir. 17 Q When a presentation was going to be made, did 18 someone confirm with you the accuracy of what was to be 19 said to the workmen about the hazards of the particular 20 product? 21 A I don't believe that could be answered in a 22 yes or no. If a foreman is talking to his workers about 23 a -- a product to be used in a particular department, he 24 didn't check with me. I had given information to the 25 manufacturing superintendent, and the central medical HARTOLDMONOQ21181 93 1 department accepted -- or realized it was a 2 manufacturing man's -- manufacturing superintendent's 3 responsibility to pass this information down to the 4 actual foreman who was in charge of the workers. 5 Q I guess what I'm trying to find out is the 6 original source of the information that was passed 7 along, whether to the manufacturing superintendent or 8 the plant manager, would he try to confirm the 9 information he was going to pass down to his foreman 10 with you before it was passed down the chain? ., 11 A Not necessarily. I mean I had convinced ` Ir i 12 myself that the manufacturing -- the plant manager and,; 13 the manufacturing superintendent knew what the hazards 14 were because at the conclusion of every one of my plant 15 visits I spoke both with the manufacturing 16 superintendent and the plant manager and said, "This is 17 what we have." 18 Q So you may have previously talked with them 19 and explained the hazards so they wouldn't contact you 20 before another presentation was to be made, then. Is 21 that what you are saying? 22 A That's correct. 23 Q Okay. But the original source of the 24 information that they would be passing out would be at 25 least screened and discussed by you with them? mpi I MC CAI I IJM & ASSOCIATES INC. HARTOLDMON0021182 94 1 A Yes. I don't know what you mean by 2 screening, but it was certainly discussed by me. 3 Q Well, let me see if I can be very specific. 4 If a particular plant manager at the time that you 5 completed your review of one of the plants asked you 6 about a specific recommendation to examine -- for 7 example, to add protective clothing and he indicated it 8 was unnecessary, you would explain to him why you 9 thought it was necessary, would you not? 10 A Yes, sir. ,< 11 Q So his ideas would be checked against yours j. . 12 on what hazards were potentially there and what steps - 13 were appropriate to prevent them. Correct? 14 A Yes. But that -- you are implying that there 15 was a confrontation between the plant manager and myself 16 on what the safe handling procedures were. That was not 17 the case. I do not recall any plant manager disagreeing 18 with me on any safe handling procedures that I y 19 recommended. 20 Q Okay. You were always the final word if 21 there was any question. Correct? 22 A As far as safe handling and medical hazards 23 was concerned. Now, there is a safety department in 24 each plant, there's a central safety department in the 25 St. Louis plant, there is very close correlation between iv i r* i *nn PAI I I IM fi. ACQnPIATCC IMP HARTOLDMON0021183 95 1 the medical department in St. Louis and the safety 2 department. The safety department in the plants is a 3 full-time man or men, so that they did a great deal of 4 the passing down of medical information. 5 Q The source, again, however, came back to you? 6 A That is correct. 7 Q Okay. There weren't two fountains of 8 knowledge of medical wisdom in Monsanto, there was one, 9 which came from the medical department and might be 10 passed down through line jobs like plant managers and-- 11 foremen and supervisors or might be passed down through^, 12 staff jobs like safety people. Correct? - * 13 A Or passed directly to the plant physician. 14 Q Which again would come from you to the plant 15 physician? 16 A Correct. 17 Q Okay. 18 Was there any effort to have any type of 19 written materials available to instruct workers about 20 hazards? Again I'm talking from 1935 to 1942. 21 A From whom? From the medical department? 22 Q From anybody within Monsanto. 23 A There were safety bulletins that instructed 24 workers about the safe handling of various products. 25 There were departmental rules that were posted in each NELL MC CALLUM & ASSOCIATES. INC. HARTOLDMON0021184 97 1 instructions posted in the plant was so that they could 2 be present to be reviewed from time to time and remind 3 workers of any oral instructions that had been given. 4 Correct? 5 A That was probably not the sole reason. In 6 other words -- 7 Q I didn't say the sole reason. 8 A Huh? 9 Q I didn't say the sole reason. 10 A What did you say? 11 Q I said one of the reasons you had written 1 It i 12 instructions and written documents in the plants telling 13 workers about hazards was to reinforce any oral 14 instructions or warnings that were given. Isn't that 15 correct? 16 A Well, no. Because there are sometimes that 17 we had oral instructions that we did not have written 18 instructions on. In other words, the safe handling 19 procedures and the safe -- the possible hazards were 20 instructed to the worker in his safety meetings and in 21 his meetings with his foreman, and he was -- may or may 2 2 not have been -- had a -- a written communication given 23 to him. 24 Q Are you telling me there may have been things 25 that the foreman said to the employee, "Listen up, I'm NELL MC CALLUM & ASSOCIATES. INC. HARTOLDMON0021185 98 1 gonna say it once and this is your chance to get it and 2 if you don't get it now you'll never hear it again"? 3 A No, sir, I'm not saying that. 4 Q If you had oral instructions only about 5 environmental hazards or medical hazards, you would want 6 to repeat those from time to time to reinforce them, 7 would you not? 8 A Yes, sir. 9 Q And if you didn't repeat them orally from 10 time to time then you might reinforce them with things 11 in writing posted around the plant or given to the t ?r i 12 workmen. Correct? 13 A Yes, sir. 14 Q There's a benefit in having warnings that are 15 repeated and reinforced, isn't there? 16 A That depends. Will you give me an example. 17 for example? 18 Q Sure. Sure. Let me go back and use 19 something you mentioned earlier. You mentioned that in 20 talking and counseling with these plant employees that 21 you would advise them to stop smoking. Correct? 2 2 A Yes, sir. ' 23 Q You had concluded, I take it, back in the 24 Thirties and early Forties that smoking wasn't 25 particularly good for people. MCI I MC CALLUM & ASSOCIATES. INC. HARTOLDMON0021186 99 1 A Yes, sir. 2 Q You agree with the Surgeon General, I guess, 3 of the United States in his views on smoking and the 4 hazards of it. 5 A Yes, sir. 6 Q And one of the things that's been done to try 7 to reinforce that hazard is to require each pack of 8 cigarettes to have a warning on it. Correct? 9 A Yes, sir. .. 10 Q And each advertisement carries a warning, 11 doesn'tit? 12 A Yes, sir. 1 ;. i -v 13 Q And that reinforces the concern and the 14 warning that's been delivered orally by the Surgeon 15 General from time to time if you happen to watch the TV 16 when he's on. Correct? 17 A Not necessarily. I don't know if that keeps 18 anybody from buying a package of cigarettes, the fact 19 that there's this warning on this. 20 Q No. But it reinforces the warning, doesn't 21 it? It's kind of hard not to at least be aware of it 22 when it's there in writing in front of you, isn't it? 23 A Again, not necessarily. I don't know whether 24 that has kept any two-pack-a-day smoker from smoking. 25 Q That wasn't my question. NELL MC CALLUM & ASSOCIATES, INC. . HARTOLDMONOQ21187 100 1 A What was -- 2 Q My question is: When you have the warning 3 there in writing, it reinforces the existence of the 4 warning. I didn't say it made it effective. But it 5 reinforces the existence of it, doesn't it? 6 A If the man doesn't read it and if the man 7 doesn't pay any attention to it, it doesn't reinforce 8 any warning. 9 Q I suppose if you make a conscious effort not 10 to look at the pack of cigarettes on the side that says 11 anything about smoking, then you won't be reinforced / ' ti i- 12 about it. ,J 13 A Or if you ignore it. 14 Q Okay. Well, now, you can ignore it by still 15 knowing it's there and just choosing to not follow it, 16 can't you? 17 A Yes, sir. 18 Q But that doesn't mean the written warning 19 doesn't remind you of the warning, does it? 20 A No, sir it doesn't. 21 Q Okay. And so let me go back, then, with that 22 example. The written warnings help to reinforce the 23 presence or the existence of oral warnings, do they not? 24 A In some cases they may, yes, sir. 25 Q Now, if I understand correctly, in 1942 you NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021188 101 1 went into the military service in connection with 2 chemical warfare things for about four years? 3 A Yes, sir. 4 Q Did somebody replace you at Monsanto during 5 that period of time? 6 A Yes, sir. 7 Q Who was your replacement during the war 8 years? 9 A A Dr. Charles Metz. 10 Q And did Dr. Metz have the same duties that.. 11 you did? 12 A No, sir. i- It i . ,1 13 Q What were Dr. Metz's duties? 14 A Strictly plant physician. 15 Q So Dr. Metz didn't go from plant to plant 16 reviewing on a yearly basis safe procedures? 17 A Not that I know of. 18 Q Okay. 19 Now, did you also, prior to 1942, make an 20 effort to review published literature with regard to 21 matters like industrial hygiene, and in particular with 22 regard to chemicals that Monsanto might make? 23 A Yes, sir. 24 Q Do you know whether Dr. Metz had that 25 function during the war years? NELL MC CALLUM & ASSOCIATES. INC. HARTOLDMON0021189 102 1 A I do not know. 2 Q Okay. 3 What journals did you review, prior to World 4 War II, looking for articles of interest? 5 A There were magazi nes, there were about three 6 journals: The Journal of Industrial Hygiene and 7 Toxicology, which is now defunct; there was an 8 Industrial Medical Association Journal; there was a 9 British Journal of Industrial Hygiene; there were 10 various governmental publications that were available,; 11 there were one or two textbooks on industrial medicirie: ~ ft i- 12 there have been bulletins from the Manufacturing ,j 13 Chemists Association on specific products; and there may 14 have been bulletins from other organizations. 15 Q Did your review attempt to cover any 16 significant publication in the English language that 17 might bear on matters of industrial hygiene and 18 occupational health? 19 A Yes, sir. 20 Q Did you actuallypersonally review the 21 periodic publications as they came through to see what 22 they had? 23 A Yes, sir. 24 Q And did youactually readarticles that 25 appeared to be of interest? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21190 103 1 A Yes, sir. 2 Q Would anyarticle that dealtwith a product 3 that Monsanto made be an article you deemed of interest? 4 A Yes, sir. 5 Q What would you do when youfound an article 6 that dealt with a product Monsanto made? 7 A If it contained any new relevant material, I 8 would forward it to the plant doctor at that place, I 9 would forward it to the safety department, and I would 10 forward it to the plant manager at the particular 11 location. ' 1 fi i 12 Q Would you also keep a copy of that article , j 13 for your files? 14 A Yes, sir. 15 Q Did you actually keep themedical journals 16 themselves in some type of library? 17 A Yes, sir. 18 Q Did that library remain with Monsanto up 19 until the time of your retirement? 20 A Yes, sir. 21 Q And the journals that are in that Monsanto 22 library, would they have been reviewed by somebody at or 23 about the time they came in in order to determine if 24 there were any articles of interest to Monsanto 25 products? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021191 104 1 A What time frame? 2 Q From the time you started doing that until 3 the time you retired. 4 A Oh, yes, there would be -- there were other 5 journals along the way. 6 Q That were added in? 7 A That were added in after 1946. 8 Q Certainly. 9 A And we had other people besides myself who 10 would be reviewing them. ,, 11 Q I'm just trying to find out if whether 1 i 12 somebody at Monsanto during the period of time when you; 13 started reviewing journals up until your retirement 14 would have had the responsibility to look at the 15 journals in the library and make sure that any articles 16 of interest to Monsanto had been appropriately noted and 17 distributed. 18 A Yes, sir. 19 MR. LACEY: Okay. 20 VIDEO OPERATOR: Excuse me. I need to take a 21 short pause. 22 [Recess] 23 VIDEO OPERATOR: Okay. 24 MR. LACEY: 25 Q With regard to your review of publications, NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21192 105 1 when you were I guess we would call it almost the 2 quasi-medical director without title, when did that 3 actually start? What year? 4 A As soon as -- it started sometime very 5 shortly after I became plant physician. It started very 6 shortly after 1936. 7 Q Okay. 8 Would other plant physicians also be 9 reviewing relevant articles on industrial hygiene and 10 the like? ,,, 11 A In 1936? 1 t(: i . 12 Q Yes. In the time frame when you were a plan;t 13 physician. 14 A I do not believe so. 15 Q Did someone specifically assign you the duty 16 on behalf of Monsanto to make that review? Or did you 17 take that upon yourself? 18 A I took it upon myself. 19 Q When you started your review, did you go back 20 in time to pick up earlier issues of these journals and 21 see if there were already published articles of interest 22 with regard to products that Monsanto was making? 23 A On some products, yes. 24 Q Other products no? 25 A Yes, sir. Aspirin, caffeine, vanolin,things NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21193 106 1 that were -- that were either pharmaceuticals or pro -- 2 or food grade chemicals, I didn't go back and look and 3 see if there was anything on those. 4 Q Did you go back and look and see if there 5 were anything on those things which were not 6 pharmaceuticals and food grade chemicals? 7 A Some. If a question came up in my own mind 8 or in an employee's mind that a compound may or may not 9 be hazardous to him in his particular exposure, I would 10 check the past literature, yes, sir. 11 Q Did you go back and check the past literatures 12 on PCBs? ,J 13 A Yes, sir. 14 Q What was it that caused you to go back and 15 check past literature on PCBs? 16 A Two things. One was historically there had 17 been an epidemic of chloracne at a plant that had been 18 taken over by Monsanto. And, secondly, there was a 19 great amount of interest in ill effects from wire- 20 impregnating compounds that were mostly chlorinated 21 naphthalene and in some cases may have had a certain 22 percentage of chlorinated diphenyl or PCBs in it. 23 Q How far back did you go in reviewing 24 literature on PCBs? 25 A '34, '30, something of that sort. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21194 107 1 Q This plant that was taken over by Monsanto, 2 that was the Anniston, Alabama, plant, was it not? 3 A Yes, sir. 4 Q And that had been a plant previously owned 5 and operated by the Swann Chemical Company? 6 A Yes, sir. 7 Q Monsanto bought it from Swann? 8 A Yes, sir. 9 Q Swann was the company that had started the 10 commercial manufacturing of PCBs? 11 A I don't know. 1 i 12 Q Do you know when the commercial manufactur 13 of PCBs started? 14 A In the United States? 15 Q In the United States or anywhere else. 16 A No. I think it was something in the 1930s, 17 but I'm not sure. 18 Q Okay. 19 A Whether it was overseas before that or not I 20 don't know. 21 Q You think it was in the 1930s as far as the 22 United States goes? Is that what you are saying? 23 A To the best of my recollection. 24 Q And that's why you went back toliterature 25 before 1936 to look for PCB materials? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021195 108 1 A Well, I can't at this date state how far back 2 I went. Generally when you look up a search, you tell 3 the librarian at the medical library, you say, "Check." 4 And whether I told her to stop at '36 or '30 or '20 5 I don't remember 50 years later. 6 Q Certainly. The library that you refer to, 7 was that the Monsanto medical library or a medical 8 library belonging to some other institution in the 9 St. Louis area? 10 A Both. Because the medical library that we,. 11 had was right in our department. The medical library _ If i12 that -- of the medical society had the indices, and tb^y 13 would carry out a search for us. For me, rather. 14 Q All right. 15 In your review of materials from 1935 up till 16 the time that you left to go to the service in 1942, did 17 you ever find any articles on PCBs? 18 A Yes, sir. 19 Q And did you reviewthose and passalong the 20 information in them? 21 A Yes, sir. 22 Q What other functionsbesides being theplant 23 doctor, making the plant inspections, reviewing 24 published literature about Monsanto products did you 25 have up till 1942? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021196 109 1 A I answeredcustomer inquiries about 2 toxicological products -- problems, and any -- and 3 reviewed any reports of possible ill effects that might 4 have occurred from using Monsanto products. 5 Q Now, when you talk about reports of possible 6 ill effects, are you talking about reports outside of 7 the plants themselves or in the plants? 8 A Both. 9 Q So this would be reports both during 10 manufacture and after sale? 11 A Yes, sir. 1 It i . 12 Q And with regard tocustomerinquiries, was , 13 there somebody in St. Louis who knew if there were a 14 customer inquiry, an operator or somebody like that for 15 Monsanto who knew if there were customer inquiries about 16 the hazards of a product to direct that call to you? 17 A Yes, sir. At some time before 1942 it was a 18 company policy that all letters and telephone inquiries 19 relating to possible ill effects of individuals using or 20 exposed to Monsanto products would be -- such inquiries 21 would be passed on to the medical department. 22 Q And, again, the medical department meant you? 23 A Meant myself, yes, sir. 24 Q Who established that policy? 25 A I think I did. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021197 110 1 Q Who was required to approve that policy? 2 A Well, at that particular time we had a 3 management committee of three people right underneath 4 the president. I believe I talked to one of them. And 5 they were happy to -- to oblige by sending the letters 6 and telephone communications to me. 7 Q Let me see if I understand the sequence. Did 8 this management committee act on your recommendation and 9 say, "We agree Dr. Kelly ought to review all of the 10 correspondence and field all of the inquiries about 11 possible ill effects"? 1 tv i` 12 A He ought to field all the inquiries and he ,J 13 ought to answer all the customer inquiries concerning 14 toxicological properties and/or possible ill effects 15 from Monsanto products, yes, sir. 16 Q Now, was that communication passed throughout 17 the country to all these plants that Monsanto had so 18 that a plant manager, for example, who might get a call 19 in Boston, Massachusetts, would know to give your name 20 and your phone number to the caller? 21 A Yes, sir. 22 Q All right. And about when did -- did you 23 acquire this particular job? 24 A [No reply] 25 Q In the Thirties? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021198 111 1 A Sometime around 1938. 2 Q When you started getting these additional 3 responsibilities, did that up the amount of time you 4 were spending with Monsanto in your part-time 5 employment? 6 A Well, not necessarily. Because by that time 7 I had the operations at the Queeny plant running pretty 8 much at a -- more streamlined and there weren't all that 9 many letters and telephone calls. 10 Q Okay. 11 Now, in reviewing and commenting on customer' ti i . 12 inquiries, did that also encompass reviewing any ,} 13 literature that the company might issue with regard to 14 particular products? 15 A Yes, sir. 16 Q Was there also a directive that any 17 literature that the company sent outwhich related to 18 toxicology or health effects had to be approved by you 19 before it went out? 20 A Well, I can't answer whether it was a 21 directive in that form. The medical department wrote 22 the toxicological properties -- described the 23 toxicological properties and safe handling material for 24 products, then it was incorporated into various 25 bulletins. Whether I saw every final bulletin or not I NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021199 112 1 don't know. In other words, if a bulletin was reprinted 2 and they took the toxicological paragraph out of one 3 bulletin and put it in a new bulletin, I don't believe I 4 reviewed it. 5 Q Right. I think I understand. Let me see if 6 I understand correctly. The medical department would 7 write the section of any literature that went out to 8 customers about toxicology and safe handling. 9 A Yes, sir. 10 Q Correct? 11 A Yes, sir. 1 - *0 i 12 Q And that information would be given to ,j 13 whoever was pulling the bulletin together, and they 14 would put that information verbatim into the bulletin. 15 Correct? 16 A I don't know about verbatim. Theymight, 17 because of space, do some slight editorializing. And 18 let me say also as far as safe handling is concerned 19 there was input from the safety department as far as 20 fire or explosion or something like that that was not a 21 medical department responsibility. 22 Q But if it had to do with health hazards from 23 exposure to chemicals as opposed to some mechanical 24 problem like fire or whatever, that was -- 25 A Medical department responsibility. NELL MC CALLUM & ASSOCIATES, INC. . HARTOLDMON0021200 113 1 Q -- medical department. And the information 2 the medical department provided would go out with 3 literature subject to space editing only? 4 A Yes, sir. 5 Q And it was certainly not the province of the 6 person editing it to change the substance of what was 7 said? 8 A No, sir. 9 Q And then if abulletin were reprinted they 10 might not come back and ask you, "Is this the same __ 11 information you would give out today?" it might just 'get. ft i- 12 reprinted? , 13 A They might, they might not, yes, sir. 14 Q Okay. 15 Now, when we talk about the medical 16 department, up till 1942 we're talking about you? 17 A Me, correct. 18 Q Okay. What aboutthe period from 1942 to 19 1946? Do you know if anybody was carrying out that 20 function? 21 A I would have tospeculate. So I cannot 22 answer it. I do not know who might have been doing it. 23 Q Okay. Do you know even whether it was done 24 or not? 25 A I think it was done in some cases, it was not NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021201 114 1 done in some cases. 2 Q All right. 3 Now, you mentioned also fielding customer 4 inquiries or looking at information regarding medical 5 problems arising from Monsanto chemicals that had been 6 sold. What sort of inquiries would you get from 7 customers prior to 1942? 8 A They would either call up or write and say, 9 "We are going to start using product X. What -- can you 10 tell us something about the toxicological problems that 11 might be associated with it?" 12 Q Okay. 1, ft i ,; 13 A Or they might say, "We have some employees 14 who are working with product X who are exhibiting these 15 symptoms. Do you think this may be related to product 16 X?" ' ' 17 Q And the reason they would contact Monsanto 18 would be because Monsanto was the manufacturer of the 19 product they were calling about or writing about? 20 A Yes, sir. 21 Q And thesepeople at leastassumed that you 22 would be a good source ofinformation aboutthose sorts 23 of problems. Correct? 24 A Yes, sir. 25 Q And did you consider yourself a good source NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021202 115 1 to answer those sorts of questions? 2 A Yes, sir. 3 Q And did you always endeavor to provide them 4 with that information? 5 A Yes, sir. 6 Q In cases where a customer might call and say, 7 "We're having a particular problem with a product at 8 Monsanto we're using," did you go out and investigate 9 the problem? 10 A In which timeframe again? 11 Q Up to 1942. 1. tt i- . 12 A I recall some cases that I did in that time,.; 13 frame, yes, sir. 14 Q What can you tell me about those cases? 15 A Well, one case,to the best of my 16 recollection, was before the war. It was a PCB case in 17 which the people were filling a -- a thermometer bulb, 18 which is not the kind of a bulb that you put in an oral 19 thermometer, it was a sort of a thing about the size of 20 a golf ball, and it had something to do with ovens or 21 something of the sort, and the women were dipping this 22 into liquid aroclors and had developed chloracne. So I 23 went out to see the operation and told them, "This is in 24 contradistinction to all our warnings; don't do it." So 25 they stopped and started doing that with mechanical NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021203 116 1 means and the problem vanished. 2 I went to some cases with -- on wood-treating 3 chemicals where they had either skin problems or the 4 possibility of systemic absorption and I made 5 recommendations as to about being more strict and 6 following the safety precautions that we had outlined. 7 Q Prior to 1942 how did Monsanto outline safety 8 precautions to its customers? 9 A I can only speak from 1936 to '42. I do not 10 know how they did in the Twenties. 11 Q Fine. 1 li i- 12 A They had development bulletins, they had , j 13 product bulletins, they had -- which were printed, of 14 course, and distributed. They had the people in the 15 technical service departments who were trying to 16 introduce the product would advise the workers -- the 17 potential customer of any problems that might be 18 expected if the product were used unwisely. 19 Q Anything else? 20 A There may, but those are the ones that come 21 to mind right at present. 22 Q Would you expect that the customers, and 23 particularly the ones that you went and saw, would have 24 a copy of any of these development bulletins or product 25 bulletins so they could have it for a reference? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021204 117 1 A Yes, I would expect that, yes, sir. 2 Q And you would expect them to read it and rely 3 on it? 4 A Yes, sir. 5 Q And therefore it would be important from 6 Monsanto's view that the information in there be 7 correct? 8 A Yes, sir. It should be correct, yes, sir. 9 Q The technical service representatives that 10 you mentioned, are these the same thing as salesmen? 11 A No. ' it i 12 Q What's the difference between a salesman and; 13 a technical service representative? 14 A A technical service representative is more of 15 a research-oriented individual that has followed the 16 product from its developmental stage in the research 17 laboratory through its introduction into possible uses 18 by the trade. The salesman is the man who markets 19 established products that are -- have passed through 20 these earlier stages. 21 Q Well, is a technical service representative 22 the type of guy who tries to get a particular customer 23 to start using a product for a particular purpose the 24 first time, then the salesman keeps on supplying the 25 need? Is that what you are saying? NEI 1 MC CALLUM & ASSOCIATES. INC. HARTOLDMON0021205 118 1 A Not in the sense that you've characterized 2 it. First, the technical serviceman is an individual 3 who explains the functions of the product and its 4 possible uses by the prospective buyer. Once the man 5 has used these small amounts, because they may be sent 6 to him for use in his research laboratory in pints, 7 pounds or something like that -- when he has found out 8 that he is -- has a use for this product and it is put 9 into our catalog, then the salesman goes out and tries 10 to continue selling it, yes, sir. 11 Q Would the salesmen actually themselves al^o ` If i 12 be a source of safety precaution information? Or would; 13 they just hand out the bulletins that were prepared for 14 that purpose? 15 A They would hand out the bulletins that were 16 prepared for that purpose. And they would field any 17 inquiries as far as the safe handling precautions or the 18 possible toxic effects back to the medical department in 19 St. Louis. 20 Q Let me ask you if a salesman went out to make 21 a sales call on an established customer and in the 22 course of that discussion there was a question about the 23 safe handling of a Monsanto product, was the salesman 24 free to offer his view on that or did he simply have to 25 give him your name and number? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021206 119 1 A No, he had all these -- the product bulletins 2 that had information in it. Certainly he was free to 3 quote these and hand him that literature. 4 Q Was he free to fill in any gaps, so to speak, 5 that might exist or offer his opinion of what that meant 6 in a particular application? 7 A That would be purely conjecture. I don't 8 know what you mean by that particular instance. Fill in 9 gaps of what? 10 A Well, let me -- let me try to be more ,. 11 specific again. We have a salesman that goes to a piant ft i 12 and he wants to sell a particular product. And the , j 13 customer there says, "Well, can I do this with it?" and 14 describes exactly how he plans to use it. Now, does the 15 salesman say, "Yes, you can do that, that's okay," or 16 does he say, "Well, you need to call the medical 17 department and ask them whether you can do that or not"? 18 A No. He certainly knows enough about his 19 product and he knows the use in other people's factories 20 rather than this prospective client's and he can say, 21 "Yes, this is safe to use in this manner." 22 Q Okay. So the salesman, then, would be a part 23 of the system for distributing information about the 24 appropriate handling of Monsanto products? 25 A Yes, sir. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021207 120 1 Q Okay. 2 Now, in terms of the review of literature and 3 fielding of customer inquiries and the like, you are 4 not certain what happened during the years of World War 5 II? 6 A No, sir, I'm not. 7 Q Okay. 8 When you came back to Monsanto in 1946, there 9 was a formal medical department? 10 A Yes, sir. 11 Q And you were the head of it? ; ` It i 12 A Yes, sir. , 13 Q And were you still basically it again? 14 A For the first year or so, yes, sir. 15 Q Okay. 16 And when you came back to Monsanto after the 17 war, did you continue to have the same functions as the 18 now head of the medical department that you had 19 previously had in the three or four years preceding 20 World War II? 21 A Yes, sir,with one exception: There was more 22 of an interest in toxicology at the end of the war and 23 so that particular function was part of the medical 24 department's function when the department was 25 formalized. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021208 121 1 Q And what is toxicology? 2 A Toxicology is the science that determines the 3 hazards of any particular substance. 4 Q Now, had you been doing that in fact before 5 the war? 6 A We did some testing. I'm not exactly sure 7 when we did it and how much we did. I can't answer 8 that. I think we did some at University of Cincinnati, 9 but I -- I'm not sure. 10 Q Okay. 11 How did the medical department go about It i 12 carrying out its assignment in toxicology? , 13 A That varied withthe time. 14 Q Well, immediately after World War II. 1946 15 and '47, let's say. 16 A If we had a product that I was uncertain 17 about the toxicology of or if customers had asked me for 18 information that I was not in a position to answer based 19 on my knowledge with the compound or the literature 20 references, we then proceeded to do some toxicological 21 work on animals. 22 Q And who did this work? 23 A It varied. If it were just acute dosing, it 24 was done at a local laboratory in St. Louis. If it were 25 more sophisticated, it was done at the University of NELL MC CALLUM & ASSOCIATES. INC. HARTOLDMON0021209 122 1 Cincinnati. As time went on, we used other 2 laboratories. 3 Q We'll come back to that in a second. But I 4 want to follow up on what happened with regard to other 5 matters that were in your portfolio, so to speak, during 6 the war. When you came back, did you ensure that all of 7 the publications that took place during the war years 8 had been appropriately reviewed and circulated within 9 Monsanto? 10 A All the publications on -- that might have,11 been published during the war? They were in the fil^s . L i' . 12 of -- any inquiries and there were files that related ,to 13 some of the products that were handed over to the 14 medical department. 15 Q Let me -- let me try to make -- maybe I 16 didn't make my question clear. Sometime in -- in the 17 mid-1930s you started reviewing the journals that had 18 information on industrial hygiene, occupational health 19 and the like. 20 A Yes, sir. 21 Q And you did that up until1942, when you went 22 into the service. 23 A Yes, sir. 24 Q Now, when you came back in 1946 youcontinued 25 to do that? NELL MC CALLUM & ASSOCIATES. INC. HARTOLDMON0021210 123 1 A Yes, sir. . 2 Q Now, what I'm trying to find out is whether 3 when you came back you made sure that anything that was 4 published between 1942 and 1946 that should have been 5 reviewed in accordance with the procedures you had 6 established had in fact been reviewed and disseminated 7 as necessary. 8 A I think in great part the answer to that is 9 yes. I cannot be positive on all particular products. 10 I do know that there were files that showed that some.. 11 information had been disseminated, there were files 6f ' h' i12 reprints that had occurred, been collected during those; 13 war years. 14 Q So you attempted to assure yourself that that 15 had been done to a satisfactory basis? 16 A Yes, sir. 17 Q And you were satisfied with whatever you 18 concluded after you got through with checking that out? 19 A Yes, sir. 20 Q To the extent you weren'tsatisfied with a 21 particular product, you corrected the problem? 22 A If there were any reason to, yes, sir. 23 Q My point is, when you got through there 24 weren't any things left undone that you felt should have 25 been done. Correct? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21211 124 1 A There always could be some things left undone 2 that I wouldn't know about or hadn't appreciated at the 3 time. 4 Q I understand that. But my point is, you made 5 an effort to make sure that things had been properly 6 done during that period of time you were gone, and if 7 you found a particular thing that you thought should 8 have been done that wasn't, you did it when you came 9 back? 10 A Y e s, s i r . ,,, 11 Q Okay. 1 h- i- 12 Did you reinstitute the procedure of going ,tb 13 the plants on an annual basis to review matters there 14 concerning health and environmental problems? 15 A Yes, sir. 16 Q And did you make those inspections yourself 17 personally? 18 A Yes, sir. 19 Q How long did you make the personal plant 20 inspections for Monsanto? 21 A Well, I made personal plant inspections up 22 till November of 1974. 23 Q Okay. Well, how long was it that you were 24 the only person really available for that purpose? 25 A Probably one or two years at the most. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021212 125 1 Q So '48, '49, something like that? 2 A Yes, sir. Even might have been less than 3 ' 48. 4 Q And who did you get to assist you in doing 5 that? 6 A We had a part-time internist, a Dr. Mezera, 7 M e z e r a, who is dead; and we had an industrial 8 hygiene -- hygienist, Mr. Elmer Wheeler, who came aboard 9 early in the postwar years. I'm not exactly sure when 10 he came. 11 Q What is an industrial hygienist? 1 ft i- 12 A An industrial hygienist is an individual who 13 has chemical or chemical engineering training who is 14 able to evaluate the work environment and assess whether 15 or not any particular exposure could be deleterious to 16 the worker. 17 Q And when Mr. Wheeler came on did he become 18 the person primarily responsible for these plant reviews 19 then? 20 A No, sir. He became responsible for the 21 industrial hygiene part of the plant. In other words, 22 he would go through the plant itself. But as far as the 23 medical department staffing and my medical visits to the 24 plant, I was responsible for that. 25 Q So am I to understand that you and Mr. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021213 126 1 Wheeler, after he came, worked as a team? 2 A Yes, sir. 3 Q And would you both go to the plants and go 4 out and look around? 5 A Not at the same time, no, certainly not. He 6 would go with a different point of view in mind. He 7 would go with -- from an engineering point of view. I 8 was not an expert in industrial hygiene, so I was not 9 in -- had that qualification. I was, however, an expert 10 in plant exposures, and I knew where more obvious 11 chemical hazards were and I would go through the plants," ft i12 myself when I went there because I wanted to be sure , i 13 that I knew what was being made in the plants in case 14 any inquiries came up to me. 15 Q Well, let me ask a question to kind of help 16 me understand the distinction. If, for example, you and 17 Mr. Wheeler went to a plant in, say, 1950 and someone 18 was going to conclude that a particular group within 19 that plant needed to start having protective clothing 20 issued on a daily basis, who would be the person who 21 probably would be making that determination and 22 recommendation? 23 A It would probably come from me, but I think 24 Mr. Wheeler may have given me a great amount of input 25 into it. NELL MC CALLUM & ASSOCIATES. INC. HARTOLDMON0021214 127 1 Q Okay. And if someone were going to recommend 2 a change in the piping in the unit, in the way the 3 chemical was made, was that a recommendation that was 4 likely going to come from you or from Mr. Wheeler? 5 A It would come from Mr. Wheeler, but it would 6 come through me. I mean I would say: Our industrial 7 hygiene department has evaluated this particular 8 situation and recommends this, and I agree it should be 9 done. 10 Q Besides making plant inspections, what other 11 functions would an industrial hygienist have? 1 li i- 12 A Well, it depends upon the particular , j. 13 organization he works for. 14 Q Well, let's try to talk about Monsanto. 15 A Monsanto. He reviewed toxicological 16 information until we started engaging toxicologists. 17 Q Did that mean you no longer reviewed it? 18 A I didn't review it in depth as much as I did 19 before. 20 Q What else? , 21 A He would also have responsibilities on giving 22 information to customers about whether or not exhaust 23 ventilation was needed, whether any particular 24 engineering problems had -- engineering procedures had 25 to be carried out when the product was being used. And NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021215 128 1 in our particular department he did write answers on -- 2 he did write -- answer questions about toxicological 3 matters. 4 Q So within the function of the medical 5 department did he become the primary responder to 6 questions about toxicological problems? 7 A No, sir, I don't believe so. I think I -- we 8 sat -- our desks were -- our rooms were next to each 9 other. So it was not a -- we all had had carbons of any 10 correspondence. And he talked to me a great deal about 11 what should be answered on a particular inquiry. So ;if it i 12 it were the same inquiry that had been asked three or , j 13 four times, he obviously would go out and answer it 14 himself. But anything that was different, I was the 15 primary responsible individual. 16 Q You still made sure that what went out for 17 the first time from your department was subject to your 18 review? 19 A Yes, sir. 20 Q Was that true even ifit went out over his 21 signature? 22 A Yes, sir. 23 Q And did thatbasic format remainall the way 24 through until your retirement, that you made sure things 25 that were new went out with your review even if it went NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021216 129 1 out over someone else's signature? 2 A Not necessarily. Because as the department 3 grew when we developed another full-time physician, he 4 was responsible for certain areas; when we developed 5 toxicologists, they would answer questions of their own. 6 Q Okay. Without consulting with you? 7 A There again, I -- I can't answer that 8 definitely. Again, we were all in one large department. 9 We were -- I mean not so large, a close department. And 10 we had weekly meetings and everyday contact and we saw 11 each other's carbons. So I think when it went out ffom- Ui 12 a toxicologist it reflected the views of the medical , j 13 department, including my own. 14 Q Okay. 15 When the medical department was formed 16 immediately after World War II, it had a staff of -- 17 term it a professional staff, leave out any secretaries 18 or anything, just one, you. 19 A Right. 20 Q How big was the staff, talkingabout 21 professional staff, at the time that you retired from 22 Monsanto? 23 A We hadtwo full-timephysicians, two 24 part-time physicians, four industrial hygienists, three 25 or four toxicologists. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021217 130 1 Q Anyone else? 2 A We had a librarian also. She was not a 3 technically-trained librarian, but she was a research 4 assistant who functioned as a librarian. 5 Q You mentioned to me earlier when the medical 6 department or the -- really, the beginning medical 7 department before World War II got its responsibilities 8 you could talk directly to the three-person 9 administrative committee and get something worked out. 10 Did you retain a close position to the top management, of 11 Monsanto during the time that you were medical director.? Ir i 12 A Yes, sir. ,1 13 Q How did your reporting chain work within the 14 medical department? 15 A Well, we reported to a vice president for 16 administrative services. We sent a monthly-- either 17 monthly or quarterly medical report to him, and we sent 18 a yearly report to the executive committee of the 19 company, the top four or five people in the company. 20 And on any serious matters we would report -- we would 21 have frequent contacts with the vice presidents in 22 charge of the varying departments. I think -- well, 23 that's it. 24 Q The way the company was set up, you could 25 directly contact people who were at the vice president MCI I Mr r A It I IM Ri ASSOrt ATCS IMP. HARTOLDMON0021218 131 1 level with regard to particular operations and speak to 2 them and work with them on problems? 3 A Oh, certainly. And I could speak directly 4 with the president and the chairman of the board. 5 Q Okay. And did that remain true throughout 6 your function as medical director? 7 A Yes, sir. 8 Q Now, going back to Mr. Wheeler, who joined 9 you as industrial hygienist in I guess the late 1940s -- 10 A No, I think he came about a year, year and,.a 11 half after I came back in '46. So he came back, '46/ 12 '47, I believe. ,j 13 Q Okay. You mentioned that he would deal with 14 customer inquiries. Were you still getting customer 15 inquiries about the appropriate way to deal with 16 Monsanto-manufactured chemicals after the war? 17 A Yes, sir. 18 Q Is that something that happened throughout 19 the time that you were with the medical department? 20 A Did we get customer inquiries -- 21 Q Yes. 22 A -- about safe handling? Yes. 23 Q That was just one of the regular functions 24 that the medical department had to carry out all the 25 time that you were there? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021219 132 1 A Yes, sir. 2 Q And I take it from what you've told me Mr. 3 Wheeler would from time to time offer specific opinions 4 on the way a particular customer's facility should be 5 designed in order to handle materials safely. Is that 6 correct? 7 A No, sir, it isn't. Not design. 8 Q I see. Operated? What's the right word? 9 A He recommended whatindustrial hygiene 10 procedures should be used in an existing plant -- 11 Q I see. 1. i 12 A -- as to afford their employees protection , J 13 from any particular hazard. 14 Q Okay. And could thatinvolve even 15 recommending constructing some type of additional 16 physical material to handle the problems? 17 A It might be a spot or general ventilation, it 18 might be changing a manually-operated centrifuge to a 19 self-emptying centrifuge. It could be suggestions of 20 that manner. But he did not design people's plants for 21 them. 22 Q Okay. Do you know if he ever consulted 23 anybody about a plant design, about which would be the 24 best way to do it to handle a particular Monsanto 25 product? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021220 133 1 A Yes, I think he was in the insecticide field. 2 Q - Okay. And again he was free to assist 3 customers in that way? 4 A Yes, sir, if they came to him, yes, sir. 5 Q Did Monsanto ever make customers aware of the 6 fact that it had someone on its staff who could consider 7 these matt ers and assist them in trying to solve any 8 potential problems? 9 A They must have, because they came to us with 10 problems. ,,. 11 Q Okay. 1 M' i 12 What do you mean when you use the term ,J 13 "general ventilation"? What is general ventilation? 14 A Well, if you take this room and you have a 15 fan at one end and you get ten air changes a minute, 16 that's general ventilation. 17 If you have a smoking barbecue pit here and 18 you put a suction over it to take away the fumes, that's 19 spot ventilation. 20 Q Okay. 21 Did Mr. Wheeler or you, after World War II 22 I'm talking about now, ever go and visit any customer 23 facilities with regard to addressing a customer's use of 24 Monsanto chemicals? 25 A Yes, sir. Mr. Wheeler did quite often in the NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021221 134 1 insecticide operations. 2 Q What about you? Did you ever make any 3 customer visits after you became the medical director? 4 A Yes, I have. I don't know how many, but I 5 recall going to Boeing Aircraft when they had hydraulic 6 fluid problems. I've been to other plants. But I did 7 not make as many as Mr. Wheeler did. 8 Q Okay. 9 Now, what was the hydraulic problem that 10 Boeing Aircraft had? 11 A They had dermatitis from a Skydraul. ; i 12 MR. HENDERSON: From a what? .7 13 THE WITNESS: Skydraul. Skydraul. 14 MR. LACEY: 15 Q Dermatitis is an irritation of the skin? 16 A No, it's a sensitivity. 17 Q Sensitivity of the skin. 18 A In other words, if you put paint remover on 19 your skin, that's an irritation. If you put poison ivy 20 extract on your skin and you get blisters, that's a 21 sensitivity. 22 Q Okay. And the problem was -- 23 A Sensitivity. 24 Q -- sensitivity. There was some reaction that 25 you could see on the skin? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021222 135 1 A Yes, sir. 2 Q Were you ever able to help them determine 3 what the problem was -- 4 A Yes, sir. 5 Q -- and how to deal with it? 6 A Yes, sir, we were. 7 Q What was the problem? 8 A We were able to determine that it was a 9 corrosion inhibitor that was present in one percent or 10 so of the fluid. And by changing that we eliminated ,the 11 problem. 12 Q Okay. / tv i' . ,J 13 Do you recall any other customer visits that 14 you made besides Boeing Aircraft? 15 A I did some, but I don't recall them. 16 Q Okay. 17 Do you -- do you recall whether any of the 18 other visits you made or any visits that you did make 19 after the war related to PCBs? 20 A I don't think there were any visits that I 21 made after the war and -- to the best of my 22 recollection. Because also to the best of my 23 recollection we didn't have any inquiries or reports of 24 any ill effects from PCBs from our customers. 25 Q Did Mr. Wheeler report to you as his NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21223 136 1 supervisor who you checked his time and made sure he was 2 doing things he was supposed to be doing, et cetera? 3 A Yes, sir, he was under my -- he was in my 4 department. 5 Q Did you look at his expense account and make 6 sure it was in order and those sorts of things? 7 A I signed them. I didn't check to see whether 8 he took a cab rather than walked. 9 Q Well, I understand that. You would be 10 reviewing, though, where he was going and what he was,, 11 doing to make sure that you were carrying out your 1 ; i 12 administrative duties? ,J 13 A Yes, sir. 14 Q Okay. 15 Now, what sort of visits was Mr. Wheeler, who 16 was apparently in the field much more than you, making 17 to customers? 18 A I can recall, as I said, quite a few on -- on 19 insecticides when we got into the insecticide field and 20 had very highly toxic insecticides. He made quite a few 21 on hydraulic fluids, he made some visits on heat 2 2 exchange visits and heat exchange products. And I'm 23 sure he made others, but I don't recall. 24 Q Okay. You used the word "highly toxic" to 25 discuss insecticides. What do you mean when you say NELL MC CALLUM & ASSOCIATES, INC, HARTOLDMON0021224 137 1 highly toxic? 2 A Well, that -- there are no standard 3 definitions of highly toxic, but if you have a product 4 that is toxic in milligrams per kilogram -- when I say 5 that, five, ten milligrams per kilogram -- that was 6 considered by me highly toxic. 7 Q Okay. What about moderately toxic? What 8 would be -- what would be your standard there? 9 A We had a list of about five gradations of 10 toxicity from highly toxic to moderately toxic to 11 slightly toxic to practically nontoxic. But I don't' 10 12 recall what the parameters were in each group. 13 Q Were those parameters established by some 14 sort of quantitative measure, so many milligrams per 15 kilogram -- 16 A Usually it was a -- usually these toxic 17 classifications referred to acute toxic dose, and those 18 were generally based on the LD 50, or lethal dose for 50 19 percent of the animals in rodents. 20 Q Okay. 21 Did you ever get down to a category of 22 anything you considered to be nontoxic? 23 A Well, Idon't think anybody can state that 24 even plain tablesalt or water could be considered 25 nontoxic. Because if you take enough salt or you take NELL MC CALLUM & ASSOCIATES, INC, HARTOLDMONOQ21225 138 1 enough water things are going to happen to you. But for 2 all practical purposes, yes, some things could be 3 considered nontoxic, certainly. 4 Q You can go in a toy store today and pick up a 5 toy and it will say it's nontoxic. Is that a term that 6 you-all were using in this gradation of toxicity from 7 highly toxic down to nontoxic? 8 A I would think that term is a legal term 9 rather than really a medical term. 10 Q Okay. I guess my question still is: Did ,you 11 have a gradation that went down to nontoxic? Or werd ft i 12 they all toxic in some degree? ,; 13 A We had practicallynontoxic. 14 Q Okay. 15 And you indicated to me, I think, that the 16 gradation of toxicity was based on determining the acute 17 LD 50 for rodents. 18 A Yes, sir? 19 Q Now -- 20 A Based largely onthat. Now, there may be 21 other factors that might enter into it. 22 Q Who would assign the label to a chemical as 23 acutely toxic or moderately toxic or slightly toxic or 24 practically nontoxic? Was that you who made that final 25 call? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021226 139 1 A You have to explain what you mean by the 2 label. Are you talking about a label that is on the 3 drum of the information or do you mean the designation 4 of calling it a toxic or slightly toxic or -- 5 Q Let me -- let me see if I can give you an 6 example. I assume that the labels that might go on a 7 drum would be the same terminology you use within 8 Monsanto to describe the product. I mean I assume you 9 wouldn't have a label that went out that said it's 10 highly toxic if you internally considered it to only be 11 slightly toxic. Correct? 1 ' fi i 12 A We did not put these gradations on labels ,j 13 that were put on containers. 14 Q Okay. Now, my question is if you've got -- 15 you did use these labels what, internally within the 16 plant? 17 A These designations. Let's -- just not to 18 confuse me about labeling -- 19 Q Okay. 20 A -- let's use the designation rather than the 21 term label. 22 Q Okay. There were places within Monsanto 23 where the designation of highly toxic, moderately toxic, 24 slightly toxic and practically nontoxic were used. 25 Correct? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021227 140 1 A They were used primarily in bulletins and in 2 answers to inquiries from people inside Monsanto, yes, 3 sir . 4 Q Okay. 5 Now, if we have a particular inquiry that's 6 raised about a chemical X and the answer is going to 7 come back it's either highly toxic, moderately toxic, 8 slightly toxic or practically nontoxic, who would make 9 the final decision, after reviewing the relevant 10 information, "We're going to say this one is moderately 11 toxic"? Was that you? 1 ' li i 12 A Either I or our toxicologists at that time., J 13 Q Okay. When did you first acquire 14 toxicologists at Monsanto? 15 A I think sometime around the Fifties. I don't 16 recall when. 17 Q Late Fifties, earlySixties, something like 18 that? 19 A I -- I can't -- I don't believe it was the 20 Sixties. I think it was in the Fifties sometime. I 21 don't remember. 22 Q Who was the first toxicologist that you got? 23 A William Hunt. 24 Q Mr. Hunt is deceased, isn'the? 25 A Yes, he is. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21228 141 1 Q Who was the next toxicologist you got? 2 A He was a Dr. Hunt. He was a Ph.D. from the 3 Food and Drug Administration. That was Dr. Hunt. Dr. 4 Levinksksas, Levinsksas. 5 Q Levinsksas? 6 A s a s. 7 Q And Dr. Levinsksas is still with Monsanto, is 8 he not? 9 A Yes, he is. 10 Q Do you know how much time elapsed between _ 11 your hiring of Dr. Hunt and your hiring of Dr. 1 If; i' 12 Levinsksas? 13 A I can't be positive. 14 Q Who was the third toxicologist you got? 15 A Either a Dr. Paul Wright or a Dr. Fred 16 Yohannsen, Yohannsen. 17 Q And I guess the one who wasn't third was 18 fourth. 19 A That's correct. 20 Q Now, does that encompass all the 21 toxicologists you had while you were at Monsanto? 22 A Yes, sir. 23 Q Okay. There may havebeenothers hired since 24 you retired? 25 A I know they have. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021229 142 1 Q Okay. Do you know who the other 2 toxicologists that have been hired since you retired 3 are? 4 A They have a large number of toxicologists 5 now. 6 Q Okay. 7 Is Mr. or -- I'm sorry-- Dr. Wrightstill 8 with Monsanto? 9 A No, he isn't. 10 Q Has he retired? , 11 A He resigned. 1 r ! 12 Q Was that near retirement age? , j. 13 A No, it wasn't. 14 Q Why did he resign? 15 A He resigned because hewas involved in a 16 criminal action that related to a laboratory that he had 17 worked with -- worked in before he came to work at 18 Monsanto. 19 Q What laboratory was that? 20 A Industrial Biotest Laboratory. 21 Q He had worked for Industrial Biotest before 22 he ever worked for Monsanto? 23 A No, sir. He worked for Monsanto as a 24 research chemist in the agricultural department. He 25 went to Industrial Biotest and worked there one or two NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021230 143 1 years and came back to work for Monsanto for -- I don't 2 know when he came back, but it was two or three years. 3 He resigned after I left Monsanto. 4 Q I see. Did you -- but you hired him in? 5 A Indirectly, yes. I mean the toxicological 6 department at that time reported to -- to Hunt, to 7 Wheeler, and so he was hired by -- I gave him the final 8 okay, yes, sir. 9 Q Okay. I mean the department was still small 10 enough you made the final decision. If a fellow was .. 11 proposed for hiring that you didn't like, you wouldn^t Si i- 12 hire him? , 13 A That's correct. 14 Q Now, the entire toxicologicaldepartment 15 reported to Mr. Wheeler? 16 A Right. 17 Q Who in turn reported to you? 18 A Yes, sir. 19 Q Was Mr. Wheeler your right-hand man in 20 everything? 21 A No, sir. He reported -- Dr. Johnson, who 22 came in the Fifties, was the associate medical director 23 or the assistant medical director. The department -- 24 toxicological department reported to Mr. Wheeler, but 25 that was more primarily for administrative reasons, NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021231 144 1 because he was not a toxicologist, whereas Dr. Hunt, Dr. 2 Levinsksas, Dr. Yohannsen were Ph.D.s in toxicology and 3 Dr. Wright had worked as a Ph.D. in our research 4 department, had spent two years at Industrial Biotest. 5 MR. SHOEBOTHAM: David, when you are at a 6 good stopping point can we take our lunch break? 7 MR. LACEY: Yeah. Let me just ask one other 8 question here. 9 MR. SHOEBOTHAM: Sure. Whenever it's 10 convenient. 11 Q Dr. Johnson -- 1 it 12 A Yohannsen. Oh, Johnson? Sorry. 13 Q Yes. Dr. Johnson was the secondfull-time 14 medical doctor you had on your staff? 15 A Yes, sir. 16 Q And did he remain there throughout your 17 entire employment as medical director? 18 A No, sir. 19 Q What happened to Dr. Johnson? 20 A He resigned and went to become director of 21 environmental health at B. F. Goodrich. 22 Q Okay. And about when did that happen? 23 A Two and a half years before I retired. 24 Q '71, '72? 25 A Something of that sort. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021232 145 1 Q Now, the reporting -- I'm just trying to get 2 this clear in my mind. The toxicologists reported to 3 Mr. Wheeler? 4 A They -- 5 Q At least administratively? 6 A Administratively, yes. 7 Q And Mr. Wheeler reported to Dr. Johnson or to 8 you? 9 A I don't think it was that formal. 10 Q Okay. It wasn't big enough it needed a lo.t 11 of structure? 1 12 A That's right. 13 Q Okay. 14 Did Dr. Johnson have any particular 15 responsibility over toxicology or industrial hygiene 16 separate and apart from yourself? 17 A No. But he shared a lot of my duties and 18 responsibilities, yes. 19 Q In other words, you shared with each other. 20 Instead of having clear delineations, you took care of 21 certain things and he took care of others? 22 A Yes. With the one exception that in textile 23 chemicals he had more experience and he handled textile 24 chemicals much more than I did because he came from our 25 Chemstrand operation. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021233 146 1 Q And who replaced Dr. Johnson when he left? 2 A Dr. Roush, Roush. 3 Q Is he still there? 4 A Yes, he is still there. 5 Q Did he replace you when you left? 6 A Yes. 7 MR. LACEY: This is probably a good place to 8 stop for lunch. 9 What time do you want to come back? 10 MR. SHOEBOTHAM: Maybe an hour or so. 11 MR. LACEY: About 1:30? 12 MR. SHOEBOTHAM: That's sounds good. 13 VIDEO OPERATOR: We're now going off the 14 record. The time is 12:28 p.m. 15 [Recess] 16 VIDEO OPERATOR: We're now back on the 17 record. The time is 2:20 p.m. 18 MR. SHOEBOTHAM: Just for the record, during 19 the lunch break we went to Dr. Kelly's hotel room and 20 got at Dr. Kelly's hotel room the documents that I and 21 Mr. Bistline had provided him which were discussed this 22 morning and provided those to Mr. Lacey before we 23 commenced this afternoon. 24 MR. LACEY: 25 Q Dr. Kelly, are all the documents that you NELL MC CALLUM & ASSOCIATES. INC. HARTOLDMON0021234 147 1 ever had provided to you in connection with this 2 particular lawsuit here on the coffee table for my 3 review? 4 A I can't be sure. I looked at an awful lot of 5 documents at their office yesterday. And I don't know 6 if any of those were duplicates of this or might have 7 been other ones. I don't know. But I have no other 8 documents. 9 Q So everything that you personally had in your 10 possession today came here? , 11 A Yes. 1 It i 12 Q And you may or may not have been shown other; 13 documents by the Monsanto lawyers yesterday? 14 A I was shown other documents. 15 Q Was shown. Okay. Do you know whether any of 16 the documents that you were shown by the Monsanto 17 lawyers yesterday were documents that did not have one 18 of the numbers I've previously shown you at the bottom, 19 the SCM 0 numbers at the bottom? 20 A No, it was my belief that these were all 21 plaintiffs' exhibits. 22 Q That you were shown yesterday? 23 A Yes. 24 Q Can you describe for me the types of 25 documents that you were shown yesterday but you don't NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21235 148 1 have in your possession? 2 A Some were reprints of old medical articles, 3 some were technical bulletins, some were labels. 4 Q Were these labels Monsanto labels? 5 A Yes. 6 Q When you sayplaintiffs'exhibits, you mean 7 documents produced to the plaintiffs, then? 8 A Yes. 9 Q Okay. I thought youmeant documents that had 10 come originally from the plaintiff for some reason. ,,, 11 That isn't what you meant at all? 1 ft i 12 A I meant there were documents that I was told; 13 had come from the plaintiffs' attorney. 14 MR. LACEY: Okay. 15 MR. SHOEBOTHAM: I think what Dr. Kelly means 16 is documents that have been produced in connection with 17 the lawsuit. 18 THE WITNESS: That's what I mean. 19 MR. LACEY: Okay. 20 Q Well, you understand that theMonsanto 21 documents that have been produced have been produced by 22 Monsanto to me. Correct? 23 A I don't know. 24 Q I see. Okay. 25 During the period of time when you were not NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021236 149 1 with Monsanto but rather serving in the military, do you 2 know whether or not any inquiries were made to Monsanto 3 concerning problems with PCBs? 4 A I do not know that. 5 Q In your review of material after you came 6 back to Monsanto in 1946 as medical director you did 7 review literature to the extent it had not previously 8 been reviewed to make sure the relevant literature was 9 circulated. Correct? 10 A That is correct. 11 Q Did you review any records regarding 1. Ii; i 12 inquiries made to Monsanto during that period of time ,j 13 about its products or information provided by Monsanto 14 to others about its products? 15 A There were files that were related to some 16 inquiries about Monsanto products. I do not recall the 17 details of those files. I do not recall whether any had 18 any reference to PCBs. 19 Q Did you review those files, however, when you 20 came back, to bring yourself up to date? 21 A I reviewed the files that were given to me 22 that related to various products and various matters 23 that I had been carrying out before I went to the 24 service. Whether that was the extent of four years work 25 I don't know. NELL MC CALLUM 8/ ASSOCIATES. INC. HARTOLDMON0021237 150 1 Q Okay. Was it your request that those files 2 be brought to you for your review so you could bring 3 yourself up to date? 4 A I can11 answer that. I don't remember. 5 Q Were the files provided to you for the 6 purpose of allowing yourself to bring yourself up to 7 date? 8 A Well, and to be the repository of the files. 9 Q Well, I guess what I'm trying to find out is 10 why they were reviewed. Was it for the purpose of 11 bringing yourself up to date? L ft i 12 A I think that was one of the reasons. But the 13 other -- there may be other reasons why they were given 14 to me. They -- they knew somebody was back who would be 15 dealing with these matters. 16 Q Did somebody specifically give them to you 17 and say, "Review them"? 18 A No, they said, "Here are a bunch of files; 19 they're yours." 20 Q Okay. And then as you put theminto your 21 filing system you reviewed them before you put them 22 there? 23 A That's correct. 24 Q All right. 25 I've seen the term "housekeeping" or "good NELL MC CALLUM & ASSOCIATES. INC. HARTOLDMON0021238 151 1 housekeeping" used in connection with the chemical 2 business. Does that involve keeping stuff up off the 3 floor and keeping it clean, basically? 4 A Keeping stuff inside the reactors, keeping 5 stuff inside the vessels and keeping the premises clean, 6 yes. 7 Q The chemical plant equivalent of having the 8 house dusted and the clothes in the dirty clothes 9 hamper? 10 A Yes, I -- 11 Q And is good housekeeping something that arly : It' i 12 chemical plant ought to perform in any section of the , j 13 plant? 14 A I can't comment on other people's chemical 15 plants, but I can comment on Monsanto's. 16 Q Will you, please? 17 A Yes. I think it should be kept as clean 18 as -- as feasible. Some operations inherently produce 19 dust and have to be taken care of at particular times 20 during the working day. 21 Q The need for good housekeeping would apply 22 even in a section of a chemical plant that made 23 something like aspirin, though, wouldn't it? 24 A Well, I would think it would be extremely 25 important in the case of a pharmaceutical like aspirin. mpi i mc r.Ai i iim a assnniATFS iwc HARTOLDMONOQ21239 153 1 A That would depend on a variety of things. 2 Q Such as? 3 A Such as whether the people had any ill 4 effects, whether they had written us or called us or 5 communicated with us that they had any problems with our 6 product, any specific product. 7 Q If you hadn't gotten a specific notice of a 8 problem, you wouldn't want him doing that? 9 A Whether I would want him to or not, I don't 10 believe that -- I think it was a question of time and., 11 priorities. 1 i 12 Q It would not be a priority, then, to do tha,tj 13 unless a problem had come to your attention? 14 A With the exception of insecticides in -- 15 which were being made by relatively unsophisticated 16 people, insecticide formulators. He might have gone 17 into those plants before he was requested to by the -- 18 the company. That would be because we had known that 19 similar plants had troubles. But I don't know how often 20 that was. 21 Q Okay. In that particular case that would be 22 because of some reason to have a question about whether 23 or not they were handling your product correctly? 24 A Whether they would be in a position to handle 25 it. That might have even been before they -- they were MFI I MCCAI I IIMX, ASSOCIATES INC HARTOLDMON0021240 154 1 sold the material. Remember now we're dealing with one 2 particular very toxic group of chemicals. 3 Q Those insecticides were what you considered 4 highly toxic? 5 A Yes, sir. 6 Q And, by the way, you mentioned to me that 7 that type of classification might involve five to ten 8 milligrams per kilogram of an LD 50 dose in a rat. 9 A Yes, sir. 10 Q Can you tell me what five totenmilligrams 11 per kilogram translates into in parts per million or 1 If i 12 parts per billion? ,J 13 A Of the diet? 14 Q Yes. 15 A Well, if you take a human being who weighs 16 60 kilograms or 70 kilograms, he has a diet of roughly 17 100 grams of carbohydrate, 150 grams of fat, 50 grams of 18 protein, 200 grams -- 19 Q That would be 300 grams, wouldn't it? 100, 20 150 and 50. 21 A No, I didn't -- 100 is carbohydrate -- 22 Q Right. 23 A' -- 50 is protein and 50 is fat. 24 Q Oh, I'm sorry. Okay. Fifty andfifty. All 25 right. mci i mp n ai i mm AccnriATCC imp HARTOLDMONOQ21241 155 1 A That would be 200 grams of dry weight. If he 2 has let's say ten milligrams per kilogram. He weighs 60 3 kilograms, he gets 600 milligrams per 200 grams. 200 4 grams is 200 times 1,000, that's 200,000 milligrams, and 5 he is taking 600 of them. 6 Q That's 200,000 -- 7 A Milligrams. 8 Q -- milligrams and he's -- -- 9 A In 200. In 200 grams of food. So he is 10 taking 600 milligrams in 200,000. So in parts per , 11 million that's six over 20, 000 times 50 would be 300 1 12 parts per mill ion. 13 Q 300 parts per mi llion? 14 A Please, I do not have a calculator with me 15 and I'm do ing this. 16 Q Let 's see if we can -- we've gotten a 17 calculator her e, if we can get it turned on. 18 MR. SHOEBOTHAM: Why don't we do th is -- 19 MR. LACEY: Oh, there it is right there. 20 said on. That was the tricky part. 21 THE WITNESS: We have 200 grams times 1,000 22 milligrams in a gram. That equals 200,000 milligrams. 23 He has -- he weighs 60 kilograms. Divide that by 60. 24 That's 3300 -- 3300 milligrams per kilo. He has 10 25 milligrams per kilogram of the compound that he is MPI I A/IPPAI t lIMft A^QHPIATPQ IMA HARTOLDMON0021242 156 1 taking. So we divide that by 10. That's 333 -- 2 that's -- that's one milligram -- that's roughly 333 -- 3 I'll need a pencil and paper on this. I can't really do 4 this. 5 MR. SHOEBOTHAM: Why don't we -- why don't we 6 do this. Let's -- if you would like him to figure out 7 that problem, Mr. Lacey, why don't we save that for a 8 break or something. 9 MR. LACEY: That's fine. 10 MR. SHOEBOTHAM: I'd be more than happy to,, 11 have him figure it out for you, but it sounds pretty 1 i 12 complicated. ,J 13 MR. LACEY: Okay. 14 Q I thought we might get you to help us do 15 that. If you would do that at a break -- 16 A Just write down what you want and I will do 17 my best. 18 Q Let me set down what I want, and maybe Mr. 19 Shoebotham can make note of it so you can do this at a 20 -hreak. You've given me the approximate standard for a 21 highly toxic material, which I understood you told me 22 was five to ten milligrams per kilogram of body weight 23 for the acute toxic LD 50 for a rodent. 24 A Right. 25 Q And I'm trying to find out what that means in ivti- i min r a i i lirv/l Q. Aoonm A-rro jm/-v HARTOLDMON0021243 157 1 parts per million. 2 A Of the diet? 3 Q Uh-huh. That's right. And let me just -- to 4 also help us kind of fill out this schedule, if you can 5 give me also what the parts per million would be of the 6 diet roughly of a moderately toxic substance as you use 7 that term. 8 Do we need to go off the record, Jon, for 9 you? 10 MR. SHOEBOTHAM: I need to take a phone c^ll, 11 if that's all right. If you wouldn't mind. 1 Mi 12 VIDEO OPERATOR: We're going off the recordJ 13 The time is 2:36 p.m. 14 [Recess] 15 VIDEO OPERATOR: We're now back on the 16 record. The time is 2:42 p.m. 17 MR. LACEY: 18 Q Let me ask you as we're filling out this 19 schedule to also give me the approximate quantity in 20 parts per.million of the diet for what would be a 21 moderately toxic chemical and a slightly toxic chemical, 22 just to have an idea of how those things fit together. 23 And I trust Mr. Shoebotham has written that down and 24 you-all can get together at a break and work out the 25 math and we can have that move pretty quickly. Mr i r m /- a i I iim o. Aoo/^r*iA-rco i Mr HARTOLDMON0021244 158 1 Going back to the visiting of plants, I take 2 it from our discussion this morning that you would 3 anticipate that a customer of Monsanto would be supplied 4 with the appropriate technical literature on the 5 products that they bought so that they would know what 6 your department had to say about toxicology and safe 7 handling. Correct? 8 A Yes. 9 Q That was the intention of Monsanto that 10 customers have those technical bulletins and literature. 11 Correct? 12 A Correct. 1 It i ,J 13 Q And am Icorrect in understanding that when 14 you went into customers' plants you might from time to 15 time see customers who were not using your materials in 16 accordance with what you would have intended based on 17 what you wrote about toxicology and safe handling? # 18 MR. SHOEBOTHAM: Are you specifically talking 19 about PCB products, Mr. Lacey? 20 _ MR. LACEY: No,I'm talking about any 21 products. 22 MR. SHOEBOTHAM: Any other products? 23 A The few times that I went into customer 24 plants I went in on the basis of reports from them that 25 they had real or presumed health problems with their WELL MC CALLUM & ASSOCIATES. INC. HARTOLDMON0021245 159 1 employees. Where they had real health problems, I found 2 that they were not carrying out the safe handling 3 procedures that we had recommended. 4 MR. LACEY: 5 Q Did you obtain reports from Mr. Wheeler 6 indicating that he had some of the same experiences you 7 did, that is, going into plants and finding health 8 problems because they were not -- the customers were not 9 carrying out the procedures provided by Monsanto? 10 A Please -- we were interrupted. . 11 COURT REPORTER: "Did you obtain reports from h' i 12 Mr. Wheeler indicating that he had some of the same , j 13 experiences you did, that is, going into plants and 14 finding health problems because they were not -- the 15 customers were not carrying out the procedures provided 16 by Monsanto?" 17 MR. SHOEBOTHAM: Again, as I understand his 18 question, this is any Monsanto products, not necessarily 19 PCB products. 20 _ MR. LACEY: That's correct. 21 A Yes, in some cases that is correct. 22 MR. LACEY: 23 Q Did that experience cause you and Mr. Wheeler 24 and others in your department to review your technical 25 literature and see if the problem might lay with the way MFI I Mr CAM IIM R, ASSOCIATES INC HARTOLDMONOQ21246 160 1 in which your warnings were worded, that they for some 2 reason weren't communicating what you meant to 3 communicate about safe handling practices and 4 toxicology? 5 A No, sir. Because when they did follow the 6 warnings and safe handling procedures that we had 7 recommended, they -- the problems vanished. And the 8 vast majority of the customers who were using the 9 product in concordance with our safe handling procedures 10 and warnings did not have any problems. 11 Q That wasn't my question. Let me make it 1 If i 12 clearer. When you found a customer who was having ,j 13 problems because they weren't handling the product in 14 the way in which you had intended that they should, did 15 you determine whether or not they had the technical 16 literature? . 17 A I can't recollect whether I did or not. I 18 don't know whether -- I can't remember 40 years ago. 19 Q Okay. 20 _A I don't remember. 21 Q Did you determinewhetheror not they simply 22 decided to ignore the technical literature? 23 A Again, Ican't remember. But I know they 24 were not following what we had -- what had been 25 recommended. HARTOLDMON0021247 161 1 Q And what I'm trying to find out is you 2 discovered a situation where there was some 3 misunderstanding in their interpretation of what you 4 meant to say or what you were trying to say. 5 A No, sir, there was no such misunderstanding. 6 Q In no case did you ever find that problem? 7 A None that I can recall. 8 Q Okay. 9 Now, from the time that you became 10 responsible for the general areas that fell under the-- 11 medical department, in particular reviewing information^, 12 that went out, that would be about 1938 or so? , 13 A Yes, sir. 14 Q What sort of materials were being supplied to 15 customers with regard to PCBs? 16 A Materials that weresupplied tothe customer 17 regarding PCBs included technical bulletins, product 18 bulletins and letters in answers to inquiries. 19 Q Okay. So up to 1942 there would be technical 20 -bulletins and there would be letters in response to 21 inquiry? 22 A Yes, sir. 23 Q Anything else? 24 A Product bulletins, if that was -- or 25 technical bulletins. HARTOLDMON0021248 162 1 Q What's the difference between a technical 2 bulletin and a product bulletin? 3 A A technical bulletin is more oriented towards 4 a beginning use of a product, it is recommending various 5 uses for the product, whereas a product bulletin refers 6 to established uses of a product. 7 Q Did you have any warning labels that went out 8 with the products, PCB products, that were sold? 9 A We had labels on the containers of PCBs that 10 contained safe handling instructions. ,< 11 Q Okay. Anything else that would communicate It i 12 to a customer anything about health hazards or safe . J 13 handling? 14 MR. SHOEBOTHAM: Do you mean that would have 15 come from Monsanto as opposed to what was available to 16 them in the published literature? 17 MR. LACEY: That came from the manufacturer. 18 A Well, I have told you that we had warnings on 19 the labels, I have told you that we had product and 20 -technical bulletins that contained safe handling data, I 21 told you that we had letters from the medical department 22 in answer to any of the inquiries. 23 MR. LACEY: 24 Q That's what I'm asking. Is that it? 25 A That's all I can recollect right now. There ........................ HARTOLDMON0021249 163 1 may be more. I don't think of it right now. 2 Q Let me ask you to -- at this point I'm going 3 to ask the reporter to leave a blank in your deposition. 4 If you think of anything else before you read and sign 5 your deposition, will you fill in the blank and let me 6 know about that? 7 A Yes, I will. 8 9 10 11 ' ' " 12 Q Okay. " U i ,J 13 Now I want to show you some documents that 14 have been provided to me by Monsanto and try to identify 15 these documents and get you to indicate to me, if you 16 can, what you know about the toxicology and safe 17 handling information in them. First I want to show you 18 a document 1508 through 1518 and ask if you have seen 19 that type of document before. 20 _A I've seen it in the last couple of days. 21 Q Okay. 22 A I don't recall whether I saw it in the years 23 '36 to '42 or not. 24 Q Okay. Mr. Shoebotham showed it to you in the 25 last couple of days? MFI I MO CAI I IJM Ri ASSOC! ATFS INC HARTOLDMON0021250 16 4 1 A That's correct. 2 Q Okay. ~ 3 Let me show you another document, 1519 4 through 1528, and ask if you recognize that document. 5 A My answer to that is the same. I've seen it 6 a couple of days ago when shown by Mr. Shoebotham. I 7 don't recall whether I ever saw it in my days with 8 Monsanto. 9 Q I see. When you say a couple of days ago, 10 are you talking about yesterday or -- - 11 A Yesterday. 12 Q Yesterday. All right. 1 tr i 13 Now, those two documents that I have just 14 shown you have the name of Swann Chemical Company on 15 them. Correct? 16 A Yes, sir. 17 Q And Swann was the company that Monsanto 18 bought when it acquired the Anniston, Alabama, plant 19 that made PCBs. Correct? 20 --A Yes, sir. 21 Q After Monsanto acquired that plant, did 22 Monsanto continue to send out technical bulletins with 23 the Swann name on them? 24 A I have no idea whether they did or not. 25 Q Okay. Are you aware from the time that you m r* i n/in n/M i iim o. APonm Arm im/-* HARTOLDMON0021251 165 1 came on at Monsanto and had responsibility for the 2 toxicology and safe handling literature in Monsanto 3 technical bulletins and product literature any use of 4 literature with the Swann name on it? 5 A I have no recollection of any such knowledge. 6 Q Okay. 7 Do you know whether or not Monsanto put out a 8 technical bulletin or product literature like those two 9 Swann documents with a Monsanto name on it? 10 A What do you mean by like? Do you mean -- 11 Q Containing this same type of information. 1 .' 10 i- 12 A Do you mean -- well, the same type. But , 13 again do you mean to say that they put out this bulletin 14 only they changed the name of Swann to Monsanto Company? 15 Is that what you are asking me? 16 Q That -- that would be a fine question. Do 17 you know the answer to that one? . 18 A I don't know -- 19 Q Okay. 20 _A -- whether they did or not. 21 Q Okay. 22 A I never saw a Monsanto bulletin similar to 23 what you've described. 24 Q Okay. Did you see any -- strike that. 25 These bulletins that Swann put out, are those NELL MC CALLUM & ASSOCIATES. INC. HARTOLDMON0021252 166 1 what you call technical bulletins or are they what you 2 call product bulletins? . 3 A I think what these would be would be 4 bulletins that describe the physical properties of 5 aroclors. That's the way they label them. 6 Q Right. 7 A If that were -- I would say they were 8 technical bulletins because they suggest means of 9 employing Aroclor as it's on the third paragraph of the 10 first page. 11 Q Now let me show you another document, 155^ tt i- 12 through 1580, and ask if you've ever seen a document 13 like that. 14 A I've seen documents similar to it. I can't 15 say that I have seen this identical document. I've seen 16 an awful lot of documents. I may have been shown this 17 the last -- yesterday. I may have seen it during my 18 time at Monsanto, but I don't know whether I've seen 19 this identical document at that time. 20 --Q Well, let me ask you about the documents, 21 either technical bulletins or product literature that 22 Monsanto did put out before 1942 on PCBs. Did they 23 contain information like that document in front of you? 24 A I can't answer that unless I'd see the 25 documents with the date on it. I don't remember. NELL MC CALLUM & ASSOCIATES, INC, HARTOLDMONOQ21253 167 1 Q Well, did Monsanto put out dated documents on 2 PCBs? Or were they undated? 3 A I don't know whether they put out dated 4 documents. I think some were dated, some may not have 5 been dated. But I don't know. 6 Q Do you know whether Monsanto in fact put out 7 any technical bulletins or product literature on PCBs at 8 all prior to 1942? 9 A They might very well have been. But I do not 10 recollect what the bulletin was. I have no recollection 11 of that. ` hi 12 Q Are you telling me, then, that it's possible1 13 Monsanto put out no technical bulletins at all on PCBs 14 up until 1942? 15 A I think it would be extremely improbable if 16 they ever did, because they put out technical bulletins 17 on all their products and on all new developments of a 18 product. I cannot recall when they put one out or the 19 exact type of a document, but, as I say, they put it out 20 .on almost all their chemicals and it would be extremely 21 remote if they didn't do it. 22 Q But you don't specifically remember a 23 document that was put out on PCBs? Is that correct? 24 A I don't specifically remember a document put 25 out in the 1930s, no, I don't. Fifty years ago, no. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21254 168 1 Q Okay. 2 Let me ask you to look at the section of that 3 document that deals with toxicology and safe handling. 4 A Yes, sir. 5 Q Take a second to review that, if you would. 6 A Yes, sir. 7 Q Is that language that you approved? 8 A I may have. 9 Q What's the question about may have? What 10 would be -- 11 A I don't know the date of this document. >o ft 12 don't know when I -- whether I approved it or not. , 13 Q I see. Review the document, see if you can 14 find anything on there that would help you date the 15 document. 16 A Where they talk about experimental work on 17 animals shows that prolonged exposure to Aroclor vapors 18 evolved at high temperatures will lead to systemic toxic 19 effects, that may date it in the Fifties, but I do not 20 -know whether that is the reference that they -- I know 21 we did some work in the Fifties on Aroclor vapors 22 evolved at high temperatures, but I do not know whether 23 that was the basis -- that work was the basis for this 24 statement, so I can't be sure that dates it. 25 Q Okay. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021255 169 1 A They suggest the use of it in plastics as a 2 plasticizer, which puts it into the frame of whenever 3 they were selling it as a plasticizer. I'm not familiar 4 with the time frame of that. 5 Q Was that use as a plasticizer something that 6 was checked out with the medical department before the 7 use was approved? 8 A Yes. 9 Q And you approved the use of PCBs as a 10 plasticizer? 11 A Yes, in some areas, yes, sir. 1 It i 12 Q Okay. Do you recall whether that was before; 13 or after your service in World War II? 14 A I think it was after. 15 Q Okay. 16 A That's the only things I can think that might 17 date it, to answer your question. 18 Q How about that last page right there with 19 that received stamp on it? 20 _A I don't know what that means. 21 Q Well, what does it say? 22 A It said, "Received June the 18th, 1945." 23 Q Is that a Monsanto date stamp? 24 A I can't make it out. 25 Q I see. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021256 170 1 A But I would find that hard for me to use that 2 as a date if they refer to the evolution of animal work 3 at high temperatures, which to the best of my 4 recollection was done in '54, in the middle Fifties. 5 Q Well, can you explain to me, then, why 6 Monsanto would be producing that document to me with a 7 date stamp on it for 1945? 8 A I can't explain at all to you. 9 Q It doesn't make any sense to you? 10 A No. I just said I cannot explain why they.. 11 did it to you -- gave it to you. 1 ' It i- . 12 Q But it's your opinion that document would ,J 13 have to be in the 1950s? 14 A Not -- I said if they base that document -- 15 if they base the toxicological statement on animal work 16 that we carried out in the 1950s, that would have to be 17 in the 1950s. 18 Q Well, that's your toxicological statement, 19 isn't it? 20 _A I don't know if it is mine. I told you I do 21 not recollect whether that is my toxicological statement 22 or not. 23 Q I see. 24 Well, let me show you another document, 25 numbered 33 through 54, and ask you to take a look at NELL MC CALLUM & ASSOCIATES. INC. HARTOLDMON0021257 171 1 that. 2 A Yes, sir, I've looked at it. 3 Q All right. Is that document similar to the 4 preceding one? 5 A Yes, sir, it is. 6 Q Almost identical? 7 A Well, it doesn't have that 1945 stamp on the 8 back. 9 Q No, it doesn't, does it? 10 A I haven't seen it yet. I haven't come to it. 11 Q Look at the first page of that document. 'Do. tr i 12 you see what's penciled in there in hand as a date? , j 13 A It says 1946. 14 Q Again, would you doubt that that could be the 15 date of the document? 16 A I haven't the slightest idea whether that 17 date is correct or not. 18 Q Okay. If that's not a correct date for the 19 document, do you have any idea why somebody would have 20 penciled that in on that copy and then provided it to 21 me? 22 A I haven't the slightest idea whether this was 23 penciled in by parties unknown. I don't know who 24 penciled it in. I have no idea about how that date got 25 on there. NELL MC CALLUM & ASSOCIATES. INC. HARTOLDMON0021258 172 1 Q I see. Well, let me tell you it was on the 2 document when I received it from Monsanto, if that's of 3 any help to you in trying to date the document. 4 MR. SHOEBOTHAM: Mr. Lacey, I think he has 5 told you very clearly he doesn't know anything about the 6 date that's written on the first page of the document. 7 MR. LACEY: I'm trying to date the document. 8 Q Is that a document -- you can review it as 9 much as you need -- that could have been prepared and 10 produced and sent out by Monsanto to customers in 194,6? 11 A No, I would find that hard to believe. 1; is- i 12 Because I do not know of experimental work on animals at 13 prolonged exposure to Aroclor vapors evolved at high 14 temperatures. I thought that that work was done in 1954 15 and that was the first work done. Now, there may have 16 been others that I don't know about and that was the 17 basis for this statement. And if that was true, 18 conceivably it might have been in '46. But I don't 19 believe it. 20 -Q Well, let me get real plain on that. If it 21 was done in 1946, that's your toxicological statement. 22 Correct? 23 A No. It may not be. Because I came back in 24 1946, in February or March. I don't know when that went 25 to the printer. So it may very well not have been my NELL MC CALLUM & ASSOCIATES, INC, HARTOLDMON0021259 173 1 toxicological statement. 2 Q Let me ask you to take a look at those first 3 two Swann documents, if you would. Can you date those 4 for me? 5 A Yes. Copyright 1932, Swann Chemical Company. 6 Copyright 1934, Swann Chemical Company. 7 Q That's a pretty good practice, to date 8 technical literature, isn't it? 9 A I don't believe I am an authority on dating 10 literature. So I can't answer your question. 11 Q Well, it's certainly helpful to have a datie I? i 12 on it, isn't it? ,J 13 A Well, it's helpful in this particular 14 discussion today. 15 Q Well, let's go a little bit further. If you 16 had a piece of technical literature in your file that 17 was 30 years old, how much reliance would you want to 18 place on that? 19 A That would depend on the information in the 20 .bulletin and that would depend on the product, that 21 would depend on a lot of varying things. 22 Q I see. 23 A Most of these bulletins are sent out with a 24 covering letter and conceivably the covering letters are 25 always dated. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021260 174 1 Q Is it your testimony that typically there 2 would be cover letters that went out with each one of 3 these bulletins that were dated? 4 A No, I'm not saying that at all. I said most 5 of the bulletins that are sent out may be sent out with 6 a covering letter. 7 Q Well, if that's the case, we still would want 8 to know the date of the bulletin to make sure we sent 9 out the most current version to our customer, wouldn't 10 we? 11 A Yes, I'm sure we would. 1 12 Q And having a date would help ensure that the-' 13 person who was sending them out picked up the most 14 current version, wouldn't it? 15 A Yes, I think that's correct. 16 Q Can't we agree that then it would be a good 17 practice to at least have a date on the document? 18 A It would be helpful. 19 Q For a lot of reasons? 20 _A Well, for just that one reason you said. You 21 would have the latest bulletin. You wouldn't be giving 22 a person an old bulletin. 23 Q And it would be helpful to the -- to the 24 customer to make sure he had current information on 25 which he was going to rely, too, wouldn't it? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021261 175 1 A Well, conceivably when he received it from 2 Monsanto he knew that that was current as far as 3 Monsanto was giving it. As far as he was getting it 4 from Monsanto. If this resurrected in his file ten 5 years later I can see there might be a problem with no 6 date on it. 7 Q So, again, it would be good practice to date 8 them, for a lot of reasons, including reference 9 purposes. Correct? 10 MR. SHOEBOTHAM: The question has been asked 11 and answered, Mr. Lacey. I'm going to have to object. It i 12 It's been asked and answered three or four times by Dr.,; 13 Kelly. 14 A I would say I could see the advantage of 15 having a date on a bulletin. 16 ' MR. LACEY: Okay. 17 Q Let me show you another document, 1581 18 through 1605, ask you to review that and see if you can 19 tell me the date of that document. 20 _A I don't know what PL 847-71 is. I don't know 21 if that's a date or not. Somebody in the printing 22 department would have to decide whether that's a 1971 23 date or not. It appears to me that that's the common 24 way people express dates. But whether this is a code of 25 something else besides a date I can't say. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021262 176 1 Q From the information in the document, what 2 does the apparent dating of it to you seem to be? 3 A Information in the document shows that it was 4 published after 1931. Because they referred to a paper 5 published in 1931. They -- under toxicity they refer to 6 the same prolonged experimental work in animals, that 7 prolonged exposure to Aroclor vapors evolved at high 8 temperatures would lead to systemic effects. That leads 9 me to believe it was after 1954. So we're left with 10 definitely after 1931. If this PL 8-47-71 refers to ,a 11 date, it could be 1971. In my belief, if they're ' / - It i 12 referring to animal work that was done in '54, it's 13 after 1954. 14 Q Would that document present appropriate 15 toxicological and safe handling information as it should 16 have in it was a 1954 document? 17 A I don't understand the question. Would 18 you -- 19 Q Well, let me try to make it clearer. You 20 monitored or people in your department monitored the 21 literature about products that Monsanto made, didn't 22 you? 23 A Yes. 24 Q You specifically monitored the literature 25 about PCBs? MCI I l\/ir PAI I IIM fi, ACCnriATPQ IMP HARTOLDMON0021263 177 1 A Yes. 2 -Q And developments in the literature might make 3 previous statements about dermatology, toxicology and 4 safe handling inappropriate, mighten they? 5 A They might. But they don't make these 6 inappropriate. 7 Q That's my question. In view of the state of 8 the knowledge of Monsanto and in particular your 9 knowledge as the medical director, and the literature, 10 would that be an appropriate statement for a 1954 11 document with regard to toxicology and safe handling?' Is' i 12 A The statements that say how to control the , 13 vapors as well as protection by suitable garments from 14 stints of bodily contact with liquid aroclors should 15 prevent any untoward respect would be appropriate prior 16 to, '54, after '54. Prior to '54, I do not know if that 17 statement about experimental work on animals was 18 available at that time. 19 Q It wouldn't be appropriate to make statements 20 that weren't based on the literature, would it? 21 A No. Or our own work. 22 Q Certainly. 23 A The statement is repeated bodily contact with 24 liquid aroclors may lead to an acneform skin eruption 25 would be appropriate prior to 1954, yes, sir. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21264 178 1 Q Would those statements with regard to 2 toxicology and safe handling be appropriate if the 3 document were published in 1971? 4 A Yes, that would be appropriate. 5 Q Okay. Nothing would need to be added to it 6 to make it appropriate or nothing would need to be 7 subtracted from it if it were a '71 document. Is that 8 correct? 9 A Well, the safe handling data may be phrased 10 somewhat differently. In other words, in 1971, where,,we 11 had 14 more years of industrial experience with -- than, li i 12 we had in 1954 , we may not have had to -- to be -- to , j 13 delineate the occurrence of acneform skin eruption, we 14 would just be appropriate to say avoid repeated contact 15 or prolonged contact. 16 Q So you think the document could be even less 17 specific in *71 than it was as written? 18 A I said the industrial experience of 17 years 19 from the years 1954 to 1971 could -- would allow the 20 same -- would demand the same safe handling data, but in 21 the absence of a skin eruption it would not be necessary 22 to talk about conditions that were not occurring in 23 industry during those 17 years. 24 Q Who was responsible within Monsanto for 25 actually putting together the nontoxicology-dermatology- NELL MC CALLUM & ASSOCIATES. INC. HARTOLDMON0021265 179 1 safe handling portions of these bulletins? 2.. --A The nontoxicology, nonsafe handling data? 3 Q Yeah. 4 A You mean -- 5 Q The rest of the book. 6 A The rest of the book? 7 Q Yes. 8 A Somebody in the marketing department, 9 somebody in the research department, somebody in the 10 advertising department. I don't know who would be the 11 person. We did not have a department of bulletins. 1 12 Q Okay. My point is, I mean there's a lot of, j 13 information in that bulletin other than the part that 14 your department would have contributed? 15 A A great deal, yes, sir. 16 Q And yourdepartment simply made their 17 contribution and whoever it was that was responsibility 18 for getting that bulletin out got the rest of it 19 together and inserted what you said was appropriate and 20 got it out? 21 A Yes, sir. 22 Q Okay. 23 Let me hand you another document, 1606 24 through 1634, and ask that you review this document. 25 A Yes, sir, I've reviewed it. NELL MC CALLUM & ASSOCIATES. INC. HARTOLDMON0021266 180 1 Q What do you estimate the date of that 2 document to be? 3 A Well, there is no date on it. I do not find 4 that 4/17/71 -- oh, yes, I do. 10/48/71. That's back 5 there on the second-to-last page. Conceivably that may 6 be a date. I do not know what PGB means. 7 Q Okay. 8 A Printed general bulletin? I haven't the 9 slightest idea. They talk about -- 10 MR. SHOEBOTHAM: Let me -- Dr. Kelly, does,,, 11 the fact that it has 48 in it indicate to you that itf 12 not a date? 10/48/71. .J 13 THE WITNESS: Oh, yeah, I guess it is. There 14 are not 48 days in a month. So it probably is not a 15 date. 16 They talk about our skin testing with the 17 material. And if I had the report from our skin testing 18 for primary irritancy or sensitization, I could tell you 19 when -- I could put a floor under it. I couldn't put a 20 ceiling. I could tell you it was printed after he did 21 this, but I couldn't tell you how late, how long 22 afterwards it was done. 23 MR. LACEY: 24 Q So you can be sure it's after whatever date 25 you did your work on skin sensitization? NELL MC CALLUM & ASSOCIATES INC. HARTOLDMONOQ21267 181 1 A Yes. 2 --Q But you can't tell how long after that? 3 A That's correct. 4 Q Is there anything that indicates to you from 5 any other discussion about toxicology and safe handling 6 a date before which it's not likely the document went 7 out? 8 A Well, then when they talk about allowable 9 limit of ten milligrams per cubic meter of air for 10 Aroclor 1268, if one were to get the book of the 11 American Government industrial hygienists and run 1- ti i . 12 through the Fifties, Sixties, Seventies, or whenever ,j 13 they started, and see when they put Aroclor 1268 as ten 14 milligrams per cubic meter, that 'might help fix a date. 15 Q Is there anything about that bulletin that 16 suggests a 1954 or later date in there, as you mentioned 17 on some of the others? 18 A '54 or later? 19 Q Yes. I know on some of the other ones you 20 indicated you thought they were '54 or later because of 21 certain information. 22 A Well, it -- here it talks about the 23 experimental work in animals indicates a max safe 24 concentration of vapors is at a range of .5 to 1 25 milligram per cubic meter. That presumably refers to R,MCI I MP. CAM I IM ASSOCIATES INC HARTOLDMONOQ21268 182 1 our middle Fifties work. 2 --Q Okay. So here we've got several things we 3 can look at. We know it's after the sensitization on 4 the skin work, we've got this work in the mid-Fifties on 5 the experimental work with animals, and we've got when 6 this -- what book was it that was published? 7 A Maximum or threshold limit values for 8 industrial substances put out by the American Conference 9 on Government and Industrial Hygienists. 10 Q Okay. 11 Let me hand you another bulletin. By the 1 i 12 way, all of these that you've been looking at, would you 13 consider all of those thus far to be technical 14 bulletins? 15 A I think so. Becausethey'resuggested 16 applications. 17 Q In fact, they allwear thesame technical 18 bulletin or application data bulletin number, don't 19 they, P-115? 20 A The last two I looked at were. I don't know 21 about all of them. 22 Q Well, if we go back and -- some of the 23 others -- they all bear that P-115, do they not? 24 A Yes, they do. 25 Q Even going back to the one that's got that MCI I R/IP PA! I MR/I 0. ACCnPIATCQ IMP HARTOLDMON0021269 183 1 1945 received stamp on it. Correct? 2 --A I'll have to look and see if that's in here. 3 Yes, sir. 4 Q Okay. 5 Let me show you another bulletin, 1635 6 through 1663, also an application data bulletin P-115, 7 and ask that you take a look at that, see if you can 8 help us date it. 9 A Well, it was after September the 28th, 1944, 10 because they mention that date in here. 11 Q Okay. '. It i 12 A I don't know when Du Pont put Teflon in , 13 general use. And if they found that out, that might 14 also be a floor. Because they mention about the 15 relationship of Aroclor to Teflon when used as a gasket. 16 But I don't know when Du Pont put out Teflon. 17 Skin patch tests are the same as before. 18 And the work on the concentrations allowable 19 limits are the same as the previous bulletin. As far as 20 dating is concerned. You would have to find out when 21 that was -- when the government industrial hygienist -- 22 hygienists put that out. 23 They mention technical bulletin P-131. 24 Conceivably that may have something that might help date 25 i t. NELL MC CALLUM & ASSOCIATES INC. HARTOLDMON0021270 184 1 And they have that Code No. 44971, which I 2 don't know what that means. So that's all I can tell 3 you as far as dating is concerned. 4 Q Is that like the others, then, you think it 5 because of the toxicology and safe handling data is 6 after 1954? 7 A I would think so, yes, sir. 8 Q In the documents that you reviewed yesterday 9 with Mr. Shoebotham did you find any technical bulletins 10 or product bulletins that you thought were the ones t,hat 11 Monsanto had issued about PCBs prior to 1954? 1- ft i- . 12 A I reviewed quite a lot of documents by , 13 skimming over them. I didn't review them in depth. I 14 cannot answer whether any of those might have been 15 before -- when? 16 Q 1954. 17 A Before 1954? I can't recall whether they 18 were or not. 19 Q If I understand your testimony correctly, you 20 believe that each of the documents put out by Monsanto 21 that we've looked at thus far, and I'm talking here now 22 about the documents 1559 through 1580, 33 through 54, 23 1581 through 1605, 1606 through 1663, and 1635 through 24 1663, were all probably after 1954 due to the reference 25 to those tests. Correct? NPI I MC CALI UM & ASSOCIATES INC HARTOLDMON0021271 185 1 A I said that I could be positive about the 2 ones that had referred to the skin testing of the 3 plasticize material. I could put a -- the early date if 4 I knew when those were done. I said that if that 5 reference to animal exposure at elevated temperatures 6 referred to our work at the University of Cincinnati in 7 the middle Fifties these bulletins would have to be done 8 after 1954. 9 Q And I believe you also told me you're not 10 aware of any other work previous to that date that would 11 account for those statements. Correct? 12 A That's correct. 1ft i ,j 13 VIDEO OPERATOR: Excuse me. I need to take a 14 short pause. 15 [Recess] 16 VIDEO OPERATOR: We're now back on the 17 record. The time is 3:43 p.m. 18 MR. LACEY: 19 Q Let me show you another document Application 20 Data Bulletin P-115, documents 1664 through 1692, and 21 ask you to take a look at that one. 22 A To take a look with what purpose? 23 Q Well, I wanted to ask you about the dating of 24 the document -- 25 A Okay. WELL MC CALLUM & ASSOCIATES. INC. HARTOLDMONOQ21272 186 1 Q -- if I can. 2 ~A No, Mr. Lacey, I cannot see anything on there 3 that would allow me to date this bulletin, with the 4 exception of the same statements I made concerning the 5 experimental work on animals at elevated temperature. 6 If that refers to the works we did at the University of 7 Cincinnati, it's sometime after 1954. 8 Q Did the people in the medical department who 9 prepared and/or reviewed toxicological and .. 10 dermatological and safe handling discussions that went 11 into these bulletins maintain files that had the suppor-t Hi 12 documents for the statements that were made at the time* 13 they were prepared? 14 A Any toxicological reports that we had 15 received from any organization were kept. Letters that 16 might have had some influence on toxicological 17 statements may or may not have been kept, because we 18 had -- the company had a retention schedules for 19 correspondence which really was -- instead of retention, 20 it was a -- it was a destruction. We threw them out 21 every five years or so. But any reports we received 22 were always kept. 23 Q My question was slightly different. Maybe I * 24 didn't phrase it well. What I want to know is whether, 25 for example, as you or a person in your department would mpi i Mr tai i i im & asshpi atfs iMr HARTOLDMONOQ21273 187 1 prepare information on toxicology and safe handling or 2 review information that you had previously approved, 3 would you prepare any sort of source or bibliography or 4 other backup material for the statement at the time it 5 was prepared so you could later determine the basis for 6 the statements that you had authorized? 7 A No, sir, we did not. 8 Q Was it the situation that each time you 9 reconsidered the issue of dermatology and toxicology and 10 safe handling statements you would go back and 11 completely review your entire files once again with 1 h i- 12 regard to what ought to be said? ,J 13 A No, sir, we didn't have to review the files, 14 because I think we were pretty familiar with the 15 toxicological and dermatological effects of the majority 16 of our compounds on which we had to write bulletins. 17 Q So that you already pretty much had it in 18 your head? 19 A That's correct. Or readily available. 20 Q Let me show you another document, called 21 The Aroclor Compounds, document 84 through 131, and ask 22 if you can give me a date on that document. 23 A Well, I've come across one date that looks 24 like 11/29/45, but it's referring to a figure about the 25 dielectric constants. I don't know if that's a date or NELL MC CALLUM & ASSOCIATES. INC. HARTOLDMON0021274 188 1 not, but it would appear to be. But that would be a 2 lower limit date. ' 3 There's another reference for 1953, so this 4 is after 1953. 5 Q All right. 6 A They talk about the skin testing for 7 sensitization and primary irritancy. So it would be 8 after whenever we had those tests carried out at Barnard 9 Skin and Cancer Hospital. 10 COURT REPORTER: At where? 11 THE WITNESS: Barnard Skin and Cancer 1- ft i- 12 Hospital. 13 COURT REPORTER: Thank you. 14 THE WITNESS: That's all I can tell you as 15 far as the dating is concerned. 16 MR. LACEY: Okay. 17 Q The references to the toxicology and safe 18 handling don't tell us anything more than that it was 19 after the work that you had done at Barnard? 20 A Barnard Skin and Cancer Hospital, right. 21 Q Okay. 22 Let me show you a document called a technical 23 bulletin No. P-137, document 17576 through 17588, that 24 does have a date on it, March 28th, 1949. 25 MR. SHOEBOTHAM: I'm sorry. The first page? NELL MC CALLUM 8, ASSOCIATES. INC. HARTOLDMONOQ21275 189 1 What was that? 2 - - . MR. LACEY: . 3 Q Can you read the number there at the bottom. 4 Dr. Kelly? 5 A SCM 017576. 6 MR. SHOEBOTHAM: Thank you. 7 THE WITNESS: Yes, sir, it has a date on it. 8 MR. LACEY: 9 Q Very helpful, isn't it? 10 A Yes, it is, in this context. 11 Q Take a look at the document briefly. I'm* I t i- 12 particularly going to ask you about the section that ha<s 13 to do with toxicology and handling procedures. 14 A Yes, sir, I've read it. 15 Q Is that section information that you would 16 have reviewed prior to it being put in that bulletin? 17 A Yes, I believe it is. 18 Q And that deals with information on the use of 19 some PCB compounds for a specific purpose, does it not? 20 A Yes. In die-casting machines. 21 Q Does that information seem consistent with 22 what you believe was available to you at the time that 23 bulletin was written? 24 A Yes, sir. 25 Q Anything about that information that would mci i iwir rAi i i im AccnriATCQ imp HARTOLDMON0021276 190 1 help us in any way date the rest of these documents that 2 we-' ve previously looked at that don't have dates on 3 them? 4 A Well, there's still some stuff about Aroclor 5 1254 being used as a -- either -- neither a skin 6 irritant or a skin sensitizer. But that refers back to 7 bulletin P-115, which we have here, which we have had. 8 But we've had several different P-115s, so I don't know 9 how it helps us in here. 10 Q Well, that does tell us that there was son\e 11 bulletin P-115 -- 12 A Yes. 1 -, It L .J 13 Q -- that was in existence prior to this 14 document, doesn't it? 15 A That's correct, yes, sir. There are other 16 skin tests that were carried out that would have 17 different dates before 19 -- March the 28th, 1949. 18 Q And what impact does that have on helping us 19 date these other documents, if any? 20 A I don't think it has any help particularly. 21 Q Okay. So the only real help we get from this 22 and dating these other documents is to know that at 23 least some version of bulletin P-115 existed before the 24 date of that document? 25 A Yes, sir. NELL MC CALLUM & ASSOCIATES. INC, HARTOLDMONOQ21277 191 1 Q Okay. 2 - Was there some group at Monsanto that kept 3 file copies of the various technical bulletins that went 4 out? And in particular I'm thinking whether you could 5 go and review what you had previously said about 6 dermatology and toxicology in a particular type of 7 bulletin. 8 A I believe that we kept -- to the best of my 9 recollection, we kept a copy of the latest technical 10 bulletin on products. I cannot be absolutely sure tl^is 11 occurred on all the products, but I believe we had ttiaU h: i- 12 in our product file during my time at Monsanto. ,J 13 Q When you say we, are you talking about the 14 medical department? 15 A The medical department, yes, sir. 16 Q My question was really whether Monsanto as a 17 larger entity maintained a permanent file of the various 18 bulletins it had sent out. 19 A I don't know. 20 Q The reason I ask that, I noted that on the 21 two Swann documents, one of them, document 1519 and 22 following, has a stamp on it that says To Be Retained In 23 Files and indicates it's to be retained permanently. 24 A I don't know who put that on. I don't 25 think -- I have no recollection of ever seeing that NELL MC CALLUM & ASSOCIATES. INC. HARTOLDMON0021278 192 1 while I was at Monsanto. 2 -Q The idea of keeping a copy of each version of 3 the technical bulletins that was sent out permanently in 4 the files is a pretty good idea, isn't it? 5 A I don't think so. The latest bulletins 6 always presumably have the more adequate information 7 that's based on experience that has been generated 8 either industrialwise or animalwise or literaturewise 9 since the previous bulletin. 10 Q I see. 11 The other Swann document, 1508 and following,, ?V i- 12 has a stamp on it that says: "From the files of the WGK 13 library. Please return." What is the WGK library? 14 A That is the -- presumably the Krummrich 15 plant, William G. Krummrich, for whom the plant was 16 named. That was called Plant B, and that was where 17 aroclors were made at some time during my stay at 18 Monsanto. I don't know the years when it was made. 19 Q Apparently that one that has that stamp is a 20 copy that actually came out of that library, is it not? 21 A At some time obviously it was in that 22 library. Whether -- whoever sent you these got it out 23 of a file someplace. I don't know where they got it. 24 Q Are you aware of any libraries at Monsanto 25 that preserved copies of the various technical bulletins NPI I MC CAM IIM R, ASSnntATFS INC HARTOLDMON0021279 193 1 that went out for reference purposes? 2 -A No, I am not aware of any such action. 3 Q Do you know why these Swann bulletins would 4 not have been destroyed in the ordinary routine record 5 destruction at Monsanto? 6 A I haven't the slightest idea why they 7 weren't. 8 Q Okay. 9 Let me show you another document, labeled 10 Toxicology and Safe Handling of Monsanto Aroclor . 11 Chlorinated Diphenyl, document -- 1- Hi 12 COURT REPORTER: Excuse me. Toxicology -- 13 and then I missed it. 14 MR. LACEY: Toxicology and Safe Handling of 15 Monsanto Aroclor Chlorinated Diphenyl. 16 Q That's PCBs, isn't it? 17 A That's correct. 18 Q No. 18731 through 18737. I'll first ask if 19 you've ever seen that document before. 20 A I may have. I don't know whether I did or 21 not. I may have. 22 Q Okay. Can you tell what the date of that 23 document is from anything contained in it? 24 A No. I can tell you it came from our English 25 operation. NELL MC CALLUM & ASSOCIATES. INC. HARTOLDMONOQ21280 194 1 Q How can you tell us that? 2 ~A It says -- if this attached sheet has been 3 there all the time, it says Monsanto House, 48 Victoria 4 Street, London SW1, which is Great Britain. 5 Q Why would your English operation have 6 documents on PCBs? 7 A They manufactured PCBs in one of the plants 8 in the United Kingdom. 9 Q Did your duties as medical director encompass 10 worldwide Monsanto? 11 A After 1954 they were worldwide, with the 1 . U- i 12 exception of our Australian and Japanese plants. ,j 13 Q What was manufactured in your Australian 14 plant? 15 A Pharmaceuticals. I've never been at the 16 Australian plant. So I know they manufactured 17 pharmaceuticals. I don't know what else they 18 manufactured. I did not believe they manufactured PCBs. 19 Q What was manufactured at your Japanese plant? 20 A Textiles. I don't know what else they 21 manufactured. I was not in our Japanese plants. 22 Q Okay. 23 So from after 1954 statements and literature 24 coming from operations in Europe regarding toxicology 25 and safe handling would have been subject to review and mci i Mr' rAl I IIM s, Accnr'iftTcc imp HARTOLDMONOQ21281 195 1 approval or even creation by the medical department 2 pr-ior to their issuance. Correct? 3 A Not exactly. Because we did not have as much 4 control over our European operations as we did in the 5 United States, just because of space, time and geography 6 and the difference of the two cultures. We didn't have 7 the same operation, control. 8 Q Well, do you know whether or not the medical 9 department, the corporate medical department, would have 10 reviewed that particular document on the toxicology and 11 safe handling of Monsanto aroclors, before it was 1' It i- - 12 published, to approve what was said in it? , 13 A I think we would have. But I can't be 14 positive. 15 Q Okay. Is there anything about the document 16 that will help you date it for us? 17 A Well, again, they limit -- it may be limited 18 by when they state the threshold limit was 1 milligram 19 of the lower-chlorinated aroclors and .5 milligrams of 20 the more highly-chlorinated compounds per cubic meter of 21 air. Whenever those values were originally promulgated, 22 that would show the earliest time. 23 Q That it could have been issued? 24 A Yes. And if they were ever changed 25 afterwards, it would show the interval in which it was NFII MC CALI DM R, ASSOCIATES INC. HARTOLDMONOQ21282 196 1 published. 2 - Q - With a document that came from your English 3 operations, would it be possible there would be 4 different values in England from those in the United 5 States for threshold limit values? 6 A Well, they may not even have had any values 7 established in England. 8 Q I guess my question is: Monsanto aroclors 9 are Monsanto aroclors and you would want to have the 10 same safe handling whether the plant and the customer,,- 11 was in England or the United States or Australia or 1 - ' i 12 Japan or wherever. Correct? .J 13 A You would want safe handling sufficient to 14 cause absence of any ill effect no matter where we sold 15 the stuff, yes. 16 Q Okay. Would you review those and tell me if 17 there's anything about those particular safe handling 18 procedures and toxicology that you think is 19 inappropriate for use in the United States? 20 A Well, I think on the page where it says the 21 higher the chlorine content the more toxic the material 22 is likely to be, if one gets up to 62 to 68 percent, the 23 toxicity drops down. 24 Q So you think that statement is inaccurate? 25 A It depends on how high the chlorine goes. NELL MC CALLUM & ASSOCIATES. INC. HARTOLDMONOQ21283 197 1 1254, which is 54 percent chlorine, is more toxic than 2 1242, but then as you get up higher it is not. 3 Q That's one of the problems with general 4 statements like that when you use words like high, low, 5 prompt, whatever, you don't know what you mean, do you? 6 A Well, you know what you mean. The question 7 is whether the other person knows what you mean. And 8 how much can you put into a statement that does not end 9 up with a whole litany of material? 10 Q Anything else about that document that you-- 11 don't think is correct? 12 A [No reply] 1 -' it t .v 13 MR. CRAWFORD: Well, Doctor, you are not 14 saying that last statement was incorrect, are you? 15 THE WITNESS: No, no, it isn't incorrect. 16 MR. CRAWFORD: Okay. 17 THE WITNESS: But -- 18 MR. CRAWFORD: Listen to the question, then. 19 MR. LACEY: Well, let me ask you. 20 Q Is it correct to say the higher the 21 chlorination the higher the toxicity? 22 A Up to a certain point, this is correct. 23 Q And then it becomes incorrect as you go 24 further up? 25 A That's correct. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21284 198 1 Q So the statement that would suggest a linear 2 relationship between higher chlorination and higher 3 toxicity until the highest chlorination is incorrect, 4 isn't it? 5 A Well, it says the more -- the more toxic 6 material is likely to be. I do not know what he means 7 by likely to be means. 8 Q I see. 9 A He doesn't say that as a definite statement. 10 Q Okay. Well, it's a little bit confusing to 11 you what was meant by that? 1 . i - 12 A Well, I think he isn't as positive as a ,J 13 statement might have been made in the basis of years 14 after this was printed. Because conceivably the 15 toxicological information was available at the time this 16 was published that didn't have toxicological data on 17 1262 and 1268. 18 And also one has to recognize to whom this is 19 going. I do not know what the situation of the 20 customers in the United Kingdom is. I do not know the 21 sophistication of the customers, I don't know whether 22 this went out to very small operations for various 23 things. So I do not know. So they are certainly 24 covering all bases in this particular statement. 25 Q Let me ask you, is there anything else in NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21285 199 1 that document like the higher chlorination that you have 2 any question about? I want you to review the entire 3 document. 4 A Now, you mean question about the accuracy of 5 the statements? 6 Q Yes. Or which you have difficulty 7 understanding and interpreting. 8 MR. CRAWFORD: David, while he's looking at 9 that, I want to mention one thing. You say statements 10 which are accurate or inaccurate. Of course, that's 11 going to depend on what was available during the tiiW - i12 frame. And I don't know if we've nailed that down yet.i 13 So it may be a question that's impossible to really 14 answer without that information. 15 A I'm a little confused by the wording if 16 Aroclor is improperly handled and allowed to come into 17 continuous contact with the skin or otherwise is 18 ingested into the body. Usually in the United States 19 ingestion means taking orally. Whether or not the 20 people in England would use that term if the material 21 came into the body via breathing. So that would be 22 differences in our English language. 23 MR. LACEY: 24 Q Is that question about ingestion cleared up 25 on the next page there? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21286 200 1 A I haven't got to it yet. 2 -Q I see. 3 A Where it says here precautions, aroclors can 4 be handled with safety provided strict standard of 5 personal hygiene is observed, they can also be handled 6 with safety provided that proper engineering and proper 7 ventilation is provided. That isn't put in here. 8 Q So you think it needs to, in addition to 9 mentioning strict standards of personal hygiene, also 10 mention certain types of engineering? 11 A Well, if -- well, we will see if they cov^r-, ff i 12 that down there. But strict standards of personal ,j 13 hygiene would not be recommended if the material is 14 inside pipes. 15 Q And if it were not inside pipes then strict 16 standards of personal hygiene would be recommended? 17 A Yes, sir. 18 I think in certain -- where it says if 19 Aroclor is used at -- in certain circumstances confined 20 space work respirators should be worn, I believe that 21 other -- other methods could be added there. 22 Q For example? 23 A Ventilation, airline respirators, if you 24 needed it. Depends on how confining the confined space 25 is. NELL MC CALLUM & ASSOCIATES, INC, HARTOLDMON0021287 201 1 Q That's not clear from that document? 2 - .A Well, it said inhalation should be avoided, 3 adequate ventilation should always be supplied, 4 particularly if Aroclor is used at elevated 5 temperatures. In certain circumstances confined space 6 work respirators should be used. Now, respirators are 7 only temporary protective devices. If there's going to 8 be a repeated confined space operation, ventilation 9 would have to be provided. 10 Q And it's also, I take it, not clear to you,, 11 exactly what is meant by confined space. 1-- vi 12 A Well, confined space depends on how big theJ 13 space is. I don't know. 14 Q That's what I'm saying. It's not able to be 15 told from that, is it? 16 A No. But I would imagine the average 17 technical individual has this idea of what a confined 18 space is depending on his particular use of the product. 19 It's hard to quantify what's a fair exposure 20 to Aroclor. Ingestion. Aroclor obviously is not 21 intended to be taken orally. Inhalation. I have never 22 heard of a person being overcome with aroclors. 23 Q Does it warn about that? 24 A The patient should be taken out in fresh air 25 at once. If there's great difficulty in breathing, be IMELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021288 202 1 prepared to administer artificial respiration. I've 2 never heard of anybody being in that situation. 3 Q You don't think that's an appropriate warning 4 to be put in a book on toxicology and safe handling? 5 A Well, no fault with it. If the person isn't 6 breathing, be prepared to administer artificial 7 respiration, certainly. But I don't know that they have 8 to say this is -- but no documentation this has ever 9 occurred. I don't think they have to put that down. 10 Q It's more than what you think is needed? 11 A No. It depends on what -- what they wrot^ - tt i12 this for and for whom they wrote it. And, as I say, the 13 people that they were sending this to. Because 14 obviously they're sending it to people where they say: 15 This is information for your health department. So 16 they're sending it to the management of customers. Yes, 17 sir. 18 Q Would you have any fault with anybody in your 19 department who reviewed that document and approved it to 20 go out like it is? 21 A No, I wouldn't. Depending on the time frame. 22 Q Well, after what date would you have fault 23 with that document had it gone out just like that? 24 A Whatever faults I have are very, very, very 25 small. I don't see much wrong with this document, for NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021289 I 203 1 goodness sakes, except little -- little items about the 2 higher the chlorine content, the more toxic it's liable 3 to be. I think I would say, well, when it reaches a 4 certain peak chloration, the toxicity lessens. I don't 5 think that's an important addition to this document. So 6 on the whole I wouldn't have had any -- any problems 7 approving this document. 8 Q Well, let me ask you again. After what date 9 would you have any questions at all about approving that 10 document for distribution to the medical departments ,of 11 Monsanto customers? 1 i 12 A If they needed this type of information, if. i 13 they were of the type of operation that needed this, 14 this is fine. But I would not have sent this out to 15 Monsanto medical departments -- I mean to the medical 16 departments of Monsanto customers, because these medical 17 departments were sophisticated medical departments, the 18 literature was present in the United States, rather 19 easily available, and we had enough information in our 20 handling and -- safe handling and precautionary 21 statements that had prevented any ill effects. So as of 22 up to right now those are the statements I'd have to 23 make about this. 24 Q Let me ask my question again. After what 25 date -- and maybe you're telling me you never would have NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021290 204 1 sent that document out to a customer that had a medical 2 department. If that's what you're saying, you can tell 3 me that. I'm just trying to find out the date after 4 which you would not have approved sending that document 5 to Monsanto customers for -- of PCBs who had medical 6 departments. 7 A Well, I cannot answer that question, because 8 I have to know what the customer was, what information 9 had already been sent the customer. I would not have 10 approved sending this data out to all Monsanto 11 customers, no, sir. `-- Ui 12 Q Let me ask you about some specific customers'. 13 Would you have had any problems sending that document -- 14 and what's the document number again, just so we can 15 identify it? 16 A 18731. 17 Q Throughwhat's the last pagenumber there? 18 A 18736. 19 Q Would you have had anyproblem sending that 20 document to the medical department of the Westinghouse 21 plant in Bloomington, Indiana? 22 A I wouldn't have any problem, but I think it 23 would be superfluous. The medical department of the 24 Westinghouse Company in Bloomington as well as in 25 Pittsburgh knew just as much about the chlorinated NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21291 205 1 biphenyls as Monsanto did. 2 -Q Would you have approved sending that to the 3 medical department of the Tennessee Valley Authority? 4 A My answer is the same, because they are just 5 as sophisticated and they had all the knowledge that I 6 had of the toxicity of the chlorinated biphenyls. 7 Q What about the medical department of any 8 company in Texas that may have come into contact or used 9 products that contained PCBs? Are they all big 10 sophisticated companies that don't need that help? 11 A They were getting adequate help from our 1 _ fi i 12 technical bulletins that had adequate warnings and , 13 adequate toxicological information in it. 14 Q The primary difference between that document 15 right there you are currently holding in your hand and 16 these technical bulletins we've previously looked at is 17 that has far more information than any of these 18 technical bulletins. 19 A This is six pages, yes. This is six pages. 20 And the other one is three or four paragraphs, yes, sir. 21 This is a lot more detailed information. Whether it's 22 necessary or not in England is one thing. Whether it's 23 necessary in the United States, I did not think it was. 24 Q Okay. And that's really the bottom line, 25 isn't it? You thought that far less information could NELL MC CALLUM & ASSOCIATES, INC, HARTOLDMONOQ21292 206 1 be submitted in the United States than apparently your 2 people in England thought needed to be submitted there. 3 Correct? 4 A We both had ideas of what information should 5 be submitted to accomplish the desired end, which was 6 the prevention of any ill effects in any of our users. 7 Q And I guess what you are telling me is those 8 are matters about which reasonable people could disagree 9 on what was needed. Correct? 10 A No, I don't think reasonable people could,.11 disagree. Because if somebody looked at the warningsi it i 12 and information we sent out in the United States and .1 13 equated that with the fact that we didn't have any 14 trouble in any of our customers for 30 years, with 15 extremely rare exceptions, I think reasonable people 16 would say: I think you're doing a good job on it. 17 Q Well, then, why would your people in England 18 be sending out far more detailed information if 19 reasonable people couldn't disagree but what the type of 20 information you submitted in the U. S. was sufficient? 21 A I said earlier that I do not know what the 22 sophistication of the English plants was at that time. 23 I do not know whether they were going to small cottage 24 industries or not. I just don't know. 25 Q I see. NFLL MC CALLUM & ASSOCIATES. INC. HARTOLDMONOQ21293 207 1 Now, am I correct in understanding your 2 previous answers about why you wouldn't send this and 3 wouldn't think it appropriate to send it to people like 4 Westinghouse or TVA or other major companies in the 5 United States is because they had access to the same 6 information you did? 7 A No. First of all, let us take Westinghouse. 8 Q Fine. 9 A Westinghouse had a patented product which was 10 Inerteen, which was chlorinated biphenyl. They knew all 11 about the toxicity of -- of chlorinated biphenyls. 1 - It i 12 Q So Westinghouse never looked to Monsanto fo.rj 13 any information or help with regard to the toxicity and 14 safe handling of PCBs that Monsanto supplied to 15 Westinghouse. Is that what you're telling me? 16 A What I'm telling you is I have no 17 recollection of any contact with the Westinghouse 18 people. Whether or not they had sufficient knowledge 19 that was received from the product bulletins in some of 20 their operations, that may have occurred, but they had 21 a -- a central medical department that was -- knew just 22 as much about toxicity of PCBs as the Monsanto medical 23 department did. 24 Q And how do you know that? 25 A Because we have talked to industrial NELL MC CALLUM & ASSOCIATES. INC. HARTOLDMONOQ21294 208 1 hygienists in Westinghouse. 2 Q Who did you talk to, and when? 3 A The person's name is either Speicher or 4 Speicher. I believe that's the name. 5 Q And when did you talk to that person? 6 A I don't remember. I mean off and on we would 7 see -- at meetings we would see each other, Wheeler 8 would see him. So I can't tell you exactly when I 9 talked to him and when he said: Tell me something about 10 Aroclor 1254. But I do know that it's my firm 11 understanding that he was knowledgeable about all the . i 12 toxicological information about PCBs. -J 13 Q Did you talk to this person personally? 14 A I'm sure I did at some time. I can't tell 15 you when and I can't tell you what I said. But, as I 16 say, the industrial hygienists and the medical directors 17 used to meet at combined meetings. Afterwards, they 18 split up and Wheeler saw him more than I did. 19 Q And where was Mr. Speicher or Speicher 20 located? 21 A It was Pittsburgh. 22 Q Except for the duplication of providing, 23 in your view, Westinghouse with information it did not 24 need because it already had it, would there be any other 25 problem with providing them with that document that you HARTOLDMON0021295 209 1 hold in your hand, document 18731 and following? 2 -A Repeat it, please. 3 COURT REPORTER: "Except for the duplication 4 of providing, in your view, Westinghouse with 5 information it did not need because it already had it, 6 would there be any other problem with providing them 7 with that document that you hold in your hand, document 8 18731 and following?" 9 A No, I have no other reason. 10 MR. LACEY : .. 11 Q Wouldn't you agree with me it's better to er-x ts: i 12 on the side of caution and providing more information ,J 13 than you think is necessary than run risk of not 14 providing enough? 15 A We were not -- that is not the option we had. 16 Q Could you answer the question? 17 A Well -- 18 MR. CRAWFORD: Let him answer the question. 19 A I'll have to answer the question, Mr. 20 Speicher, by saying that you were giving me -- 21 MR. CRAWFORD: Mr. Lacey. 22 A -- two different options and these are not 23 the two options. One is to provide them with 24 information like this, and the other is to provide them 25 with adequate information which we did in our own mpi i Mr. r.ai i iim a assnriATF?; iwr HARTOLDMONOQ21296 210 1 bulletins to protect their workers. 2 - MR. LACEY: Let me ask you this. 3 Q If Westinghouse was a sophisticated company 4 that knew as much about PCBs as Monsanto did, why did 5 you bother to provide them with any information at all? 6 A Well, I would imagine that the reason we 7 provided it was we had a standard practice of sending 8 our technical bulletins out with all shipments of 9 material, we had our safe handling data and 10 toxicological information in it, and we made no ,,, 11 exceptions to sophisticated companies or 1_ i 12 nonsophisticated, so we sent it out to everyone. ,j 13 Q That's exactly right. And the fact of the 14 matter is that the most sophisticated customer in the 15 United States and the least sophisticated customer in 16 the United States got exactly the same information, 17 didn't they? 18 A In the technical data sheets they did. In 19 some where there were inquiries from unsophisticated 20 companies they got detailed information and letters from 21 us. 22 Q What do you know -- 23 A From me. What? 24 Q What do you know about that? What sort of 25 letters or documents did you send to unsophisticated NFI I MC CALLUM & ASSOCIATES INC. HARTOLDMONOQ21297 211 1 companies that you didn't send to sophisticated 2 companies? 3 A I cannot give you the actual details of the 4 letter -- letters, but I know that I got inquiries 5 concerning PCBs from various companies and I wrote them 6 letters about it. 7 Q Well, that's not my question. Are you 8 telling me it was the standard practice for small 9 customers to, with the sale and the technical bulletins 10 that went to them, to send them another additional 11 supplemental document that you didn't send to the bicj _ It i- 12 customers? , 13 A No. That is not correct, no. 14 Q It's only if they wrote and inquired or 15 called and inquired of you that they got any information 16 above and beyond what was in your standard technical 17 bulletins. Isn't that correct? 18 A Yes, sir. 19 Q And again in view of the fact that the same 20 technical literature went to every Monsanto customer, 21 big or small, wouldn't it be better to err on the side 22 of giving too much information rather than too little? 23 A We did not give too little. You are again 24 giving me an option that is not correct. We gave them 25 adequate information on the toxicity and adequateI I ft /I /"* n A I I I Ift/i O. A PPAri A TCC IKJO HARTOLDMON0021298 212 1 information on the safe handling and precautions to be 2 used. And that has been proven by the absence of ill 3 effects by our customers. 4 Q Well, apparently your group in England didn't 5 think that, because they gave far more detailed 6 information to their customers, didn't they? 7 A This is far more detailed than we sent out, 8 yes, sir. I do not know, again, where this went to, 9 what type of operation it went to. I do not know the 10 background of information that the English customers ,had 11 on chlorinated -- on PCBs. 1 - i 12 Q Well, is there some reason to believe that a.; 13 small, unsophisticated English customer of Monsanto PCBs 14 needed far more information than a small, 15 unsophisticated United States customer on PCBs? 16 A I think they both needed adequate 17 information. The Monsan -- the United States customer 18 got adequate information, the English customer got 19 adequate information according to their likes. 20 Q And apparently there was some disagreement 21 between the U. S. group and the English group about what 22 was necessary to constitute adequate information, as 23 witnessed by the fact that in the U. S. customers got 24 three or four paragraphs and in the UK they got what, 25 five or six pages? HARTOLDMONOQ21299 213 1 MR. CRAWFORD: Well, David, he -- he -- he 2 says that that's sent out over there. And I don't think 3 you can draw the inference that you are drawing. I mean 4 if you want to argue with him, that's one thing. But 5 let's -- let's move on to something else. 6 MR. LACEY: 7 Q Will you answer the question, please? 8 A Let's have the question. 9 MR. LACEY: Certainly. 10 Will you read it back, please. ,,, 11 COURT REPORTER: "And apparently there wa^ It' i 12 some disagreement between the U. S. group and the ,1 13 English group about what was necessary to constitute 14 adequate information, as witnessed by the fact that in 15 the U. S. customers got three or four paragraphs and in 16 the UK they got what, five or six pages?" 17 A First of all, I see no disagreement. There 18 were different methods of providing adequate safe 19 handling and toxicological data. There was a more 20 detailed one in the United Kingdom, and I do not know 21 what the basis for that was, I do not know the type of 22 operations that they had or contemplated having over 23 there. I do know that the information we supplied in 24 the United States was adequate to protect our customers. 25 MR. LACEY: MFII MC CALLUM ft ASSOCIATES INC HARTOLDMON0021300 214 1 Q Would that same information supplied in the 2 UK have been adequate to protect Monsanto's customers in 3 the UK? 4 A If they followed it, yes. 5 Q Can you agree with me that the more detailed 6 information supplied in the UK had a higher probability 7 of alerting people to the dangers and the steps that 8 needed to be taken to avoid them than the corresponding 9 literature in the United States? 10 A No, I do not agree with you. Because I think 11 the corresponding literature in the United States says:-.. It 12 Do not breathe the fumes; avoid repeated or prolonged 13 skin contact; if it gets on your skin, wash it off; if 14 it gets on the clothes, launder them or discard them. 15 That protects people in the United States and England. 16 If the English people were used to that type 17 of information, fine. But I don't know if they are. I 18 do not recall seeing detailed information like this on 19 products in the United States. They may have some, but 20 I don't recall seeing them. 21 Q Do I understand it's your view as the medical 22 director of Monsanto who was responsible for the 23 warnings that went out in both the United States and the 24 United Kingdom that you believe both the U. S. warnings 25 and those UK warnings that you had there in front of you 1M " a r* A I I I IIV A 0. AOPOni ATtf' iKtr* HARTOLDMON0021301 215 1 are equally likely to provoke the proper response in 2 customers with regard to handling PCBs? 3 A I can only speak for the United States, 4 because I do not know what happened in England in our 5 customers. But I know that they were certainly -- 6 evoked the correct response in the United States, 7 because we didn't have any trouble. 8 Q Do I understand, then, that you have no 9 quarrel with the handling of PCBs produced by Monsanto 10 by any of your customers in the United States? 11 A I have no quarrel with the handling of PC^s- If i 12 by Monsanto's customers in the United States if they ,1 13 follow the precautions that we have given them. 14 Q That's a different question you're answering. 15 My real question to you is this: If your U. S. 16 instructions didn't cause all of your customers to 17 understand the dangers of PCBs and therefore handle them 18 appropriately, you would be concerned about finding out 19 why they didn't follow the instructions, wouldn't you? 20 A Well, I do not agree with you with your first 21 premise, when you said if -- 22 Read his first part of his statement. 23 COURT REPORTER: "That's a different question 24 you're answering. My real question to you is this: If 25 your U. S. instructions didn't cause all of your NELL MC CALLUM & ASSOCIATES. INC. HARTOLDMON0021302 216 1 customers to understand the dangers of PCBs" -- 2 THE WITNESS: You can stop there. 3 I was satisfied that if our customers could 4 read our safe handling bulletins and follow our labels 5 they were protected. We did not go into every 6 customer's plant to see if they followed such 7 recommendations. 8 MR. LACEY: 9 Q So you don't know whether or not in fact your 10 recommendations were sufficient for the customer to 11 fully understand and appreciate the dangers of PCBs a(nd.. hi 12 act accordingly, because you never checked it out. .- 13 Correct? 14 A No. That is not correct. 15 Q How did you check it out to determine? 16 A We checked it out by the absence of any 17 ill -- of any reports either in the medical literature 18 or by government agencies or by reports to our general 19 office or our salespeople. 20 In the chemical industry when any customers 21 develop any untoward signs in their men, they are very 22 active in calling it to the producer's attention. We 23 had numerous complaints or requests for information from 24 other compounds, not PCBs, and, as I said, with the 25 exception of some extremely rare cases we did not have mci i hnn n a i i MM k, AccnriATPQ IMP HARTOLDMON0021303 217- 1 any of those from the -- our customers. And the people 2 in government who reviewed the use of PCBs in industry 3 have come to the same conclusion. 4 Q So it is your understanding as the medical 5 director of Monsanto that at least up till your 6 retirement in 1974 you know of no basis for Monsanto to 7 criticize the safe handling practices of your customers 8 with regard to PCBs. Correct? 9 MR. CRAWFORD: I don't think he said that. 10 David 11 MR. LACEY: Well, that's my question. I12 MR. CRAWFORD: Well, you're trying to put 13 words in his mouth. 14 MR. LACEY: No, I'm trying to ask him a 15 question, Walter. 16 MR. CRAWFORD: Well, don't argue with him. 17 MR. LACEY: 18 Q Can you answer the question? 19 A Wait. We got a little off the -- 20 Q Well, let me ask the question again, then. 21 A Okay. 22 Q Am I correct in understanding from what 23 you've just told me that you didn't get any complaints 24 back from customers about problems with PCBs, that you 25 know of no basis to say, at least up until your n 0Ar-| I r /i *-> A I I I lf\/l . ACCOCIATCC IMP HARTOLDMON0021304 218 1 retirement, that customers were not handling PCBs 2 correctly? 3 MR. CRAWFORD: David, that's two questions in 4 one. Let's answer one at a time. Let's start with the 5 first question. 6 MR. LACEY: Well, it's one question. 7 MR. CRAWFORD: It's not one question, it's 8 two questions. 9 MR. LACEY: Maybe you want to re-ask it for 10 me. , 11 MR. CRAWFORD: Well, you can -- it's your 1 . Mi 12 question. But you can read it. Ask the first one and 13 then ask the second one. You're asking two different 14 things. 15 MR. LACEY: Let me just try to break it down 16 if Mr. Crawford has got a problem with it. 17 MR. CRAWFORD: I do. 18 MR. LACEY: Okay. 19 Q Dr. Kelly, I take it you never got any 20 complaints at the medical department about problems with 21 workers at the Westinghouse plant in Bloomington, 22 Indiana. Correct? 23 A To the best of my knowledge, we did not. 24 Q You never got any complaints about workers at 25 the TVA at the medical department. Is that correct? I I Ift A HARTOLDMON0021305 219 1 A That is correct. 2 Q You never got any complaints about workers at 3 Ford die casting plants. Is that correct? 4 A That is correct. 5 Q And you never got any complaints about any 6 workers who worked at any plants in Texas with PCBs. Is 7 that correct? 8 A To the best of my knowledge, that is correct. 9 Q Complaints of that sort at Monsanto were to 10 be directed and funneled to the medical department, were 11 they not? 12 A That is correct 1 _' U i- 13 Q Therefore, if Monsanto followed the ordinary 14 course of its business, had any such complaints been 15 received, they would have come to your attention? 16 A Yes. 17 Q You are aware of nosuch complaints? 18 A That's correct. 19 Q And therefore we have to assume you didn't 20 get any such complaints. 21 A To the best of my recollection. 22 Q Now, given that, you assume that that means 23 that those companies were handling aroclors properly. 24 Correct? 25 A That was one of the bases that I assumed they MCI I Mr r A I I IIM 0, ACSnriATFS IMP HARTOLDMON0021306 220 1 were handling it correctly. There were no reports in 2 the medical literature or in the government literature 3 of any ill effects of workers at the Westinghouse plant 4 in Bloomington or the Texas plants or at the Ford Motor 5 Company. So I assumed they were handling it correctly, 6 yes, sir. 7 Q And that was an assumption you made as the 8 medical director of Monsanto in determining how detailed 9 your literature regarding safe handling needed to be. 10 Correct? 11 A That's correct. 1. It i 12 Q For example, had you had reports of problems 13 in those plants, then you might have determined you 14 needed more detail in your literature on toxicology and 15 safe handling. Correct? 16 A No, that isn't correct. I would -- it would 17 have shown that we had to check to find out if they were 18 following the recommendations in our literature; not 19 more detail, but whether they were following it or not. 20 Q Well, wouldn't you agree with me. Dr. Kelly, 21 that one of the things that a good warning will do is be 22 sufficient to motivate a person to follow it? 23 A It's hoped that is what somebody would -- 24 would do. Whether it -- a person is better motivated by 25 six pages of detailed instructions or three paragraphs Mri f~\ /~* i**/"* /" A i | MA/t O. A O C* ATCC IMO HARTOLDMON0021307 221 1 of effective warnings and precautions is quite 2 questionable. 3 Q That's a matter about which reasonable minds 4 could differ? 5 A That's correct. 6 MR. LACEY: Okay. 7 MR. HENDERSON: How late are we going to go? 8 MR. CRAWFORD: Do you want to break? Not 9 much longer. 10 MR. LACEY: Do you want to go ahead and get 11 started on your -- 1 hi 12 MR. HENDERSON: I'd like to if you've reache.d 13 a convenient stopping -- 14 MR. LACEY: Sure, we can -- we can stop at 15 this point. 16 MR. CRAWFORD: Well, we've only got -- I 17 would rather him -- you finish up and then we'll start 18 in the morning. Because I think he's getting a little 19 tired. 20 THE WITNESS: No -- no, I'm -- I'm happy. 21 All I want to -- are we off? Is this a break? 22 MR. LACEY: No, we're on the record right 23 now. 24 THE WITNESS: I want to say at what time I 25 have to leave tomorrow evening. 4mci i i/irpM i iims, <:<:nmTP<: imp HARTOLDMON0021308 222 1 MR. LACEY: 2 Q What time do you have to leave tomorrow 3 evening? 4 A I have to get a 5:20 plane out of Hobby -- 5 Q Okay. 6 A -- tomorrow. I can come as early as you 7 want. Instead of 9:00, I can get here at 8:00, I can 8 get here at 7:30, whatever you want, but I -- 9 MR. CRAWFORD: Not seven -- not me. 10 MR. LACEY: Why don't we make it 8:00 ,< 11 tomorrow morning. And we will let Mr. Henderson begin-? Mi 12 the expert portion of the examination now and go till 13 5:00. 14 MR. CRAWFORD: Are you sure you want to go 15 this afternoon? It's -- 16 THE WITNESS: Fifteen minutes? Sure, I can 17 go. 18 MR. CRAWFORD: Okay. All right. 19 MR. HENDERSON: Thank you. 20 MR. LACEY: I have to give up my microphone 21 here. 22 MR. CRAWFORD: David -- well, I'll talk to 23 you after. 24 25 Mfl I A /i /-> /1a I l I IA O. AOenrMATCO IMP HARTOLDMON0021309 223 1 2 EXAMINATION BY 3 MR. HENDERSON: 4 Q Dr. Kelly, I'm Tom Henderson. Together with 5 Mr. Lacey and members of his firm and our firm, we're 6 representing the plaintiffs in the case that's going to 7 be tried in Beaumont starting on June 8th. We haven't 8 met before, have we? 9 A No, sir. 10 Q One of the -- youwrote a letter to Mr. Hall 11 indicating the -- the parametersof the expert testinlon^ 12 that you were going to be offering, and that was ,J 13 reviewed briefly with you earlier today. Do you recall 14 that? 15 A Yes, I do. 16 Q And that set forth in one paragraph your -- 17 your background, educational background primarily, and 18 your -- your tour of duty, so to speak, with Monsanto 19 from 1936 to 1974, did it not? 20 A Yes, sir. 21 Q And in addition to that it also set out the 22 areas that -- that you would otherwise be testifying to 23 with respect to the presence or absence of PCB-related 24 problems in -- in various Monsanto facilities that 25 manufactured PCBs over that same period of time? mpi i mp r.Ai I iim , AscnriATPS iwr HARTOLDMON0021310 224 1 A Yes, sir. 2 Q Okay. Do you intend to offer other opinions, 3 specifically with respect to causation? 4 A [No reply] 5 Q That is, when I say causation, I'm talking 6 about what we have been characterizing throughout at 7 least this litigation of the relationship, the 8 cause-and-effect relationship between the exposure -- 9 the presumed exposure in certain cases or indeed the 10 exposure in some cases to PCBs and resulting adverse ,< 11 health effects of one form or another. 12 A In these claimants? 1 -i. It- i . 13 Q Yes. 14 A If I am goingto beasked that, I will have 15 to review the medical records, all the medical records 16 of these claimants, which I have not done up to now. 17 Q Okay. 18 I notice that you have reviewed certain of 19 the medical records by virtue of those items that were 20 produced over the noon hour -- excuse me -- over the 21 noon hour that were provided -- copies of which were 22 provided to us about three hours ago or thereabouts. Is 23 that true? 24 A I havereviewed certain of the medical 25 records and I have made notations that there were an HARTOLDMONOQ21311 2 25 1 enormous amount of medical information not furnished me, 2 i.e., hospital records, some of Dr. Teitlebaum's 3 laboratory work was not in the records I saw, and I did 4 not have the opportunity of reviewing the medical 5 records of the doctors who examined these plaintiffs on 6 the part of the defendant. 7 Q Okay. r 8 What -- withoutgoing in, because from what I 9 understand it's the -- the-- you're uncertain as to 10 what you may be doing in that regard. And what I do 11 need to develop is what -- in case you may be called' If i 12 upon after you've had an opportunity to review the ,; 13 medical records and perhaps to provide some opinions in 14 that regard. What are your criteria for diagnosing a 15 medical problem induced bya chemical such as PCBs? 16 A If a person hasa medical problem induced by 17 PCBs, it appears the hallmark of the illness is first 18 chloracne. 19 Q Let me stop you at each of these points 20 and -- and ask you what you mean by different things. 21 Because I assume you have a number of other areas that 22 you may want to talk about. When you say the first 23 indicator to you is the hallmark being chloracne, do I 24 take that to mean that -- that in the presence of a 25 chloracne diagnosis that you can -- that you can come to HARTOLDMON0021312 226 1 a conclusion at least that there was sufficient exposure 2 to PCBs or a related chemical to have resulted in the 3 dermatological manifestation known as chloracne? 4 A If the diagnosis of chloracne is definite, 5 then a person has obviously been exposed to some 6 compound which is a chlorinated hydrocarbon that may 7 have -- that has given him this chloracne. Chloracne is 8 not a natural phenomenon, it is a response of the human 9 body to an outside chemical. 10 Q Okay. . 11 What is the -- what is the second 12 criterion -- 13 A Well -- 14 Q -- beyond -- beyond chloracne? 15 A I must also state -- let me elaborate a 16 little farther on the first. In case of an acute 17 exposure to PCBs, for example, exposure to high 18 concentrations of vapor over a period of days or weeks, 19 systemic conditions may result before chloracne occurs. 20 So the second target organ is the liver, and the 21 chemical hepatitis, if that is the term, may occur. 22 Q Okay. And I -- I think you just indicated 23 that that could occur based upon the level of exposure 24 and particular the level of vapor type exposure could 25 occur even before a -- the -- the dermatological r* /-ai i i inn o. Acpapi ati-o imo HARTOLDMON0021313 227 1 reaction known as chloracne. 2 A If one had a very high exposure level, yes, 3 you could get the liver trouble within a matter of a 4 week, whereas chloracne might take weeks or months to 5 occur. 6 Q Now, what are the other criteria for 7 establishing a -- a -- a cause-and-effect relationship 8 insofar as a chemical such as PCBs? 9 A One has to take an accurate history to know 10 that the man is really -- has really been exposed to 11 the -- the compound in a particular fashion, one has ` It i 12 to -- if one wants to resort to some invasive ,j 13 procedures, they can take fat biopsies or they can take 14 blood samples, which are not as invasive. And finally, 15 they have to equate this man's condition to 16 epidemiological evidence that may or may not be present. 17 Q When you say which may or may not be present, 18 would you tell me what you mean by that? 19 A Well, suppose a man has a brain tumor and he 20 says, "I believe I got this brain tumor from exposure to 21 PCBs," and people have done epidemiological studies on 22 workers who were exposed to PCBs and found no excess 23 brain tumors, then one would be safe in believing that 24 this particular brain tumor was not the result of any 25 real or fancied PCB exposure. I IK t HARTOLDMON0021314 228 1 Q Let me go over these again so I'm clear. 2 You -- you consider the criteria for causation or 3 cause-and-effect relationship in respect to the 4 chemicals such as PCBs, and specifically in this case, 5 as you know, we're dealing with PCBs, to be, No. 1, 6 chloracne. Is that -- 7 A Well -- 8 Q I just -- I just want to get this down so 9 that -- so that I understand completely what you're 10 saying. And if you want to modify anything, you know,* 11 please do it. 1 ft i 12 A Well, yes. I mentioned several things. That 13 in all medical cases first a history is taken. So I 14 didn't list all those in priorities. First a history is 15 taken. 16 Then a physical examination is taken. Now, 17 the physical examination then -- the history, of course, 18 includes exposure to PCBs and exposure to any other 19 conditions, whether it's alcoholism, virus, infections, 20 any other conditions that may or may not have some cause 21 as far as a man is -- man's illness is concerned. Then 22 the physical examination. Chloracne seems to be a 23 predominant physical findings in cases of PCB exposure, 24 with the exception of the acute liver episodes. 25 Then the next -- after the physical 9m m i nnr r>Ai l IIM . Accnri a tcc i Mr* HARTOLDMON0021315 229 1 examination, laboratory studies are carried out. These 2 laboratory studies can rule out other factors, they 3 could rule in other factors. Suppose a person has 4 diabetes. That has to enter into the equation. 5 Q Let me interrupt you there, if I might. 6 What -- what kinds of laboratory studies are you 7 referring to specifically? 8 A SMA 21s, 22s, in which various liver enzymes 9 are tested, triglycerides, the cholesterols, the sugars. 10 Then specific laboratory procedures, if one 11 wants to go as far as doing fat biopsies on individuals., Ui 12 or blood PCBs. ,j 13 And finally, the relationship of this man's 14 symptoms, physical findings to epidemiological studies 15 carried out on PCBs. 16 Q Okay. So if -- would -- would you require 17 all of these things in -- in -- in -- forgetting about 18 the -- the -- the exceptional situation of a -- of an 19 acute chemical hepatitis, let's keep that out of the 20 equation for a moment, would there be any other of these 21 four or five that you have mentioned -- five that you 22 have mentioned that one could do without from the 23 standpoint of a positive result in -- in terms of 24 ascribing cause and effect? 25 A I think if a man had a positive history that r* a i i i in/! o Afr>i-\r*iA-rrc* imr* HARTOLDMON0021316 230 1 was documented to show excessive PCB exposure and had 2 chloracne, one would consider that he had had enough PCB 3 exposure to give him chloracne. He may have other 4 medical conditions that are not the result of PCBs. He 5 may have cataracts. 6 Q Okay. 7 A There has been no documentation or 8 epidemiological studies that shows that PCBs have any 9 relationship to cataracts. 10 Q So let me understand that. If he has a 11 positive history of exposure to -- to PCBs and he ha^ aif i 12 definitive -- let me finish -- and a definitive .J 13 diagnosis of chloracne, you would conclude that the 14 chloracne is a result of the PCBs exposure? 15 A If he had a positive documented history. You 16 can have a history that is not documented. It has to be 17 documented that he had a positive documented history. 18 Q Well, how do you define documented, then? 19 A By somewhat more than a man's statement. 20 Q Well, if you -- if you knew that the 21 individual was working in a transformer repair shop 22 where some substantial amounts of Askarel and/or 23 Inerteen and/or Pydraul had been used over a 10- to 24 20-year period while -- when the fluids were being 25 drained from and -- and reloaded into the transformer HARTOLDMON0021317 231 1 after the repairs, you -- you wouldn't require that a 2 fat biopsy be taken to conclude that that person has a 3 positive documented history of exposure. 4 A Well, certainly if these are drained at 5 ambient temperatures, at room temperatures, there's no 6 volatilization of the material. If the man has not -- 7 has carried out precautions as to avoid repeated or skin 8 contacts, that -- just the fact that he was there when 9 they drained transformers does not give him a positive 10 documented history of PCB exposure. .. 11 Q Let's assume that there was some -- some 1 _ It i 12 amount over a period of time of -- of dermal contact ,j 13 with the PCBs. Would that be sufficient, in your view, 14 to rise to the level of being a positive documented 15 history? 16 A There again, Mr. Henderson, you have to be 17 more precise about what is some dermal contact. 18 Q Okay. Well, we'll -- we'll leave that until 19 perhaps tomorrow. We can clarify some -- some more of 20 this. 21 Assume that -- assume that the person has a 22 positive documented history and also has a definitive 23 diagnosis of chloracne, and he has some other -- some 24 one or more other ailments or adverse health effects 25 that have been reported on in the literature from an HARTOLDMON0021318 232 1 epidemiological standpoint, would that be sufficient, in 2 your view, in the absence of some significant 3 confounder, to conclude that the adverse health effect, 4 other than the chloracne, was related to the PCBs 5 exposure on a cause-and-effect relationship? 6 A If there was statistical evidence from 7 epidemiological studies that was repeated in various 8 epidemiological studies and this man had that particular 9 ailment, there is a possibility that he received that 10 ailment from his PCBs. But if -- may I finish? If It 11 has not been significant in epidemiological studies, *i|. 12 it has not been repeated in various epidemiological 13 studies of workers who had had exposure of some sort to 14 PCBs, that would cast doubt on whether or not that 15 particular condition was due to his PCB exposure. 16 Q Well, when you say very possibly and casting 17 doubt and definite possibilities, these are really -- 18 what you are saying, is it -- is it not. Dr. Kelly, that 19 these are impressions that are made based upon the -- 20 the whole scope of the literature as -- as your ex -- as 21 your experience would -- would provide over nearly 50 22 years in -- in the business of dealing with Monsanto 23 employees exposed to a variety of chemicals, looking to 24 the literature, epidemiological literature and perhaps 25 other scientific literature, making the examination. A A A I I I IKA O A HARTOLDMON0021319 233 1 looking at the individual, taking an adequate history 2 which would not only include the occupational history 3 but also the -- the history of possible confounders like 4 diabetes, for example, and others that you've mentioned, 5 and -- and have an overall impression of what all this 6 means, plug it into the -- to the best known computer 7 known to man, mainly the brain, and come out with an 8 opinion? Isn't that -- isn't that the way it works? 9 MR. CRAWFORD: Do you understand the 10 question? 11 THE WITNESS: Well, no, that's a pretty 12 prolonged -- long question. 13 MR. HENDERSON: 14 Q Well, I know Mr. Crawford is trying to help 15 you in this. But you understood what I was saying, did 16 you not? 17 A Well, not exactly. What -- if I may say that 18 medical diagnoses are based on opinions gleaned from 19 examination of an individual, the clinical knowledge of 20 people who have had similar exposures, the clinical 21 knowledge of individuals who have had the same condition 22 and have had no similar exposure at all, and 23 epidemiological basis. That's where one comes up with 24 a -- a diagnosis. So if that is -- that's about as good 25 an answer I can give to that long question. I don't MCI I Mr PAI I I !M Rj A<!CnrIATCC IMP HARTOLDMON0021320 234 1 know if that's -- that's the answer. 2 Q . It's based upon -- you -- you answered me in 3 terms of medical diagnosis. And what my question was 4 was providing a -- a -- a cause-and-effect opinion of a 5 relationship between the exposure to PCBs and a 6 particular adverse health effect. 7 A Well, unless you have a -- a medical 8 diagnosis of PCB intoxication or PCB harm, it doesn't 9 make any difference what history he has unless -- if he 10 doesn't have any medical condition that would be 11 associated with PCBs. 1 It 12 MR. CRAWFORD: Tom, it's five after 5:00. 13 MR. HENDERSON: Let me ask -- let me ask one 14 other question so I can be -- one line of questions 15 that's not going to take more than a few minutes so I 16 can move on with the interrogation in the morning as 17 expeditiously as possible. 18 MR. CRAWFORD: Okay. Just don't make it too 19 long 20 MR. HENDERSON: I'm not going to extend it. 21 Q You -- Monsanto has done toxicology, that is, 22 animal toxicology work, since the Swann work that was 23 done in 1932, has it not? 24 A That wasn't Monsanto's, but Swann did work. 25 Monsanto started some work after I came. Whether they MPI I Mr CAM I IM X, ASSOCIATES INC HARTOLDMON0021321 235 1 did any before 1936 I don't know. But they did some 2 work from '36 on, yes. 3 Q At least -- at least 50 years ago Monsanto 4 had begun to -- to do some animal toxicology 5 specifically in the area of PCBs? 6 A Yes, sir. 7 Q And prior to 1936 Monsanto -- whether you 8 were there or not, you have some knowledge that Monsanto 9 had engaged in some amount of animal toxicology for 10 several years prior to 1936 . 11 A No, I'm not sure of that. 1 *t i 12 Q Okay. In any event, the -- the purpose of 13 of toxicology, specifically animal toxicology, is to 14 determine the mechanisms of -- of causation in 15 respective mechanisms and how diseases can be caused. 16 Is that true? 17 A The purpose of animal toxicity is -- 18 Q Toxicology. 19 A -- toxicology is to provide a mechanism that 20 shows what ill effects occur in animals from certain 21 doses. 22 Q And that's -- 23 A That's my belief of what -- 24 Q Okay. And -- and the purpose of that, is it 25 not, is to utilize that data and the conclusions that NELL MC CALLUM & ASSOCIATES, INC, HARTOLDMON0021322 236 1 can be drawn from the animal toxicological data to -- to 2 predict what might happen in human beings? Is that 3 true? 4 A As well as -- yes. But as well as to predict 5 what are safe levels of the material for human exposure. 6 Q That's right. Because you know and I know 7 that we -- we would not want to experiment on our bodies 8 or anybody else's body. Is that true? 9 A Of course that's true. 10 Q So that the -- the principal reason for 11 animal toxicology is to determine two things: What d - It i 12 safe level might be of a particular dose as -- as a ,1 13 human may be exposed; and, secondly, to predict what the 14 -- what those exposures might do in terms of adverse 15 health effects to humans. 16 A Yes. 17 Q Is that true? 18 A True. 19 MR. HENDERSON: Thank you. That's all. 20 MR. LACEY: 8:00 in the morning. Correct? 21 MR. CRAWFORD: No, not 8:00. I can't -- 22 MR. LACEY: That's what the doctor said and I 23 think that's a suitable time for us to begin. 24 MR. CRAWFORD: Not me. That's too early. 25 MR. LACEY: If you want to have him come back MFI 1 MC CALLUM & ASSOCIATES. INC. HARTOLDMON0021323 237 1 another day. But, as you know, he has been identified 2 as an expert -- 3 MR. CRAWFORD: Well, I think -- let's do it 4 at 8:30. That will give at least a little more time. 5 THE WITNESS: I'll meet you here at 8:30. 6 MR. CRAWFORD: Okay. Or -- 7 THE WITNESS: I'll take a cab over from the 8 hotel to here. 9 VIDEO OPERATOR: We will now recess the 10 deposition. The time is 5:07 p.m. 11 [End of the day] 12 `. ft i 13 14 15 16 17 18 19 20 21 22 23 24 25 MCI I Ri'ir' /> A I I I If\/1 O, ACChriATCC IMP HARTOLDMON0021324 GBfilIGli Page JL 60 Lina Jr2r mvAmnnan ji QumL aaaaM^m*, --wn ajy ... . -- -- Explanation --t |-| * ---- --mu, U- * C^y ---- [ u - - - - ^ bygo^Lj^iiQ dj^a-iS U 'jx jo_____________________ ________^_______________________________ ___'<__________ L'*%- OTLLd NELL MC CALLUM & ASSOCIATES, INC, HARTOLDMON0021325 Page Line /&._ J. LAWYER'S NOTES / ^ V _j? _ JdtUMJLyLdd^^j^L Lf/J^d^\ _______'__________ ___ _____ . this 24th day of June, 1987. J^fore j^_aj^5ta^_yi)licI . My Conrnission expires ; . jc^m^8.psu>ac &jyCmit H .. '.* HARTOLDMON0021326 |r/eks * HARTOLDMON0021327 1 signature of witness 2 3 I, R. Emmet Kelly, M.D,, solemnly swear or 4 affirm, under the pains and penalties of perjury, that 5 the foregoing 489 pages contain a true and correct 6 transcript of the testimony given by me at the time and 7 place stated, with the corrections, if any, and the 8 reasons therefor noted on a separate sheet of paper and 9 attached hereto, and that I am signing this before a 10 Notary Public. 11 12 1i 14 R. Emmet Kelly, M.D. lb lb 17 18 Subscribed and sworn to before me, the 19 undersigned authority, by the said R. Emmet Kelly, M.D. 20 1987 . 21 2.2 JOSEPHINE S. N1BLOCK 23 PkS&ry PuWic State erf Mlsaeari Loui* County Mf COWftitsion Expires January 15, 18di 24 Notary Public in and for 25 NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21328 2704 1 BY MR. HENDERSON: 2 Q On Page 261 of your deposition, going back, 3 to the area I asked you about earlier, it says 4 "Are chlorodiphenyls the same as polychlorinated 5 biphenyls or PCBs?" 6 "ANSWER: Yes, but all chlorinated, all PCBs 7 are not chlorinated diphenyls. 8 "QUESTION: Isn't the -- what are 9 chlorodiphenyls? 10 "ANSWER: There are two phenol rings 11 attached to each other with chlorine. 12 Chlorinated naphthalene is also two phenol rings 13 attached to carbon atoms, chlorinated. So, 14 chlorinated naphthalene is a PCB; chlorinated 15 diphenyl benzene is also a PCB. So, the work 16 that Dr. Drinker did was primarily with 17 chlorinated naphthalene." 18 Were those the questions that were asked of 19 you and you answered on April 30, 1987? 20 A May I see it? 21 Q I'm sorry. Did I say 261 -- 22 23 MR. CRAWFORD Your Honor, there was an 24 errata sheet with that and we sent it in, 25 that corrected that. But I think the Doctor HARTOLDMONOQ21329 2705 1 can explain it. 2 MR. HENDERSON: I think Mr. Crawford , 3 may want to have it explained on redirect. 4 I would like to move along, Your Honor. 5 THE COURT: All right. 6 7 BY MR. HENDERSON: 8 Q The purpose of the label itself. Dr. Kelly, 9 was to inform the user -- and when I say "the 10 user," I mean the customer's worker about the 11 possible harmful effects of exposure to any toxic 12 substance, such as PCBs; isn't that true? 13 A No. What the label is is to prevent any 14 harmful exposure. That is the purpose of a 15 cautionary statement on a label. 16 Q Well, perhaps it would be better if I just 17 read the question from the deposition rather than 18 to take' the time to rephrase that one, because I 19 want to make it clear what you said in your 20 deposition. Okay. 21 22 THE COURT: Well, ask him what he said 23 in his deposition and then you can -- 24 MR. HENDERSON: I will. Your Honor, as 25 soon as I find it. HARTOLDMON0021330 27: 1 REDIRECT EXAMINATION 2 BY MR. CRAWFORD: r 3 Q Dr. Kelly, you wanted to explain a couple of 4 things. Mr. Henderson cut you off. You were 5 talking about the Greenberg article about the 6 change. Did you want to explain something about 7 that, the change of clothes? 8 A Yes. It was the Greenberg article. 9 Q Just very briefly, if you could. 10 A He was dealing with the halowax cases. 11 Q All right. That's the substance -- 12 A He was dealing with people that were cable 13 pullers. 14 Q All right. And also in your deposition you 15 changed that those -- that was a misstatement, 16 was it not? 17 A Oh, yes, chlorinated naphthalene is not a 18 PCB. 19 20 MR. CRAWFORD: Okay. Thank you very 21 much. Your Honor. 22 MR. HENDERSON: Thank you. 23 THE COURT: All right. 24 THE WITNESS: Did you want some of 25 these -- HARTOLDMONOQ21331