Document ZQ2zVGeDYZnX4GRp0gmoVJQ8

1 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT 2 ST. CLAIR COUNTY, ILLINOIS 3 FRANCES E. KEMNER, ET AL., 4 Plaintiffs, 5 vs NO. 80-L-970 6 MONSANTO COMPANY, 7 Defendant. 8 9 10 REPORT OF PROCEEDINGS 11 July 22, 1985 12 13 14 Before the HONORABLE RICHARD P. GOLDENHERSH, Circuit Judge 15 16 APPEARANCESl 17 Mr. REX CARR and MR. JEROME SEIGFREID, Attorneys at Law, on Behalf of the Plaintiffs; and 18 MR. KENNETH HEINEMAN and MR..JOSEPH NASSIF 19 on Behalf of the Defendant, Monsanto Company. 20 21 22 23 Kathleen Watson Brunsmann 24 Official Court Reporter INDEX OF WITNESSES 1 Called on behalf of the Plaintiffsi 2 DR. GEORGE ROUSH 3 Clarification Examination 4 (By Mr. Heineraan)..... 5 2 6 INDEX OF EXHIBITS 7 8 PLAINTIFF*S EX. NO. MARKED FOR IDENTIFICATION ADMITTED INTO EVIDENCE 9 10 1512 11 52 12 13 MONSANTO'S EX. NO. 14 IS 910 16 911 17 50 55 18 19 20 21 22 23 24 I BE IT REMEMBERED AND CERTIFIED, that heretofore, 2 on to-witi July 22, 1985, the matter as hereinbefore set forth came on for hearing before the Honorable Richard p 3 Goldenhersh, Circuit Judge in and for the Twentieth Judicial 4 Circuit, and the following was had of record, to-witi 5 6 7 8 (The clarification examination of Dr George Roush by Mr Heineman continued as followst) 9 10 11 (The following proceedings were had in chambers, 12 out of the presence and hearing of the juryi) 13 14 MR CARRi Judge, there's been some dispute 15 on the record as to whether or not the reference ranges that 16 we have used for porphyrins and for the creatinines are the 17 normal reference ranges that have been given by the labora 18 19 tory And there was dispute as to whether or not I had ever 20 asked for them, or what they were, what these were that had 21 been given to me. I checked the records, and on April the 22 15th, 1985 I had just been delivered the day before the pile 23 of material dealing with the Krummrich Health Study, the 24 medi cal records I had had an opportunity to briefly scan 1 the laboratory results and discovered that there were no 2 normals for the porphyrins at that time. And the Court will 3 note, on April the 15th, 1985, on page 107, I asked that 4 they give me the normal ranges used. That was on a weekend. 5 And the following Monday, I guess it was, at any rate a few 6 days later, on the 22nd of April, 1985 they did, indeed, 7 produce these exhibits, 3846, 47 and 48, which deal with 8 the porphyrins and the creatinine levels. 9 Now, unless Counsel stipulate that the sequence 10 of events, and that these were furnished to me in response 11 to my request made on April the 15th, I want to make an 12 additional record by putting Mr. Nassif on the stand to 13 confirm that this is the sequence of events, and that these 14 test ranges given me, 3846, 3847, 3848, were given to me in 15 response to that request for the normal reference ranges. 16 THE COURTS First of all, is there any dispute 17 as to that? I think that was the first point, wasn't it? 18 MR. CARRt Yes, If there is no dispute, then 19 I think it's Exhibit 1509 that can be no challenge as to the 20 authenticity of that. They may not have challenged it, but 21 I don't think they have admitted in court at least that 22 these were the Metpath Test Ranges for the porphyrins that 23 were given to me, and for the creatinines that were given 24 to me in response to my request. 1 MR* HEINEMAN: I am trying to recall in my own 2 mind, Judge, the occasion when this first came up in the 3 testimony of Dr* Roush* 1 may be incorrect, but I think my 4 recollection is that Mr* Carr asked Or* Roush whether those 5 documents were, in fact, the normal reference ranges. And 6 I think at the same time, perhaps, may have represented that 7 they were furnished by Monsanto's attorneys for something 8 to that affect* My recollection is that Dr* Roush said that 9 they were, indeed, the normal reference ranges* Didn't he? 10 MR* CARR: Yes* But you objected to their 11 authenticity* You said you didn't -- and I had on the copy 12 that had been put into evidence, I had written on it "Nitro 13 normal," or "Suskind Laboratory," because it was, in fact, 14 the same* As I learned from Carnow and Conibear, it was 15 the same reference ranges used in the Suskind Morbidity 16 Study for Nitro* And you challenged that at that time on 17 the record in front of the jury. You said, "Why these don't 18 even refer to Kruramrich," or something of the sort, "These 19 are the Nitro*" 1 represented then to you that these 20 were the normal reference ranges given to me in the 21 Krummrich* You again expressed a doubt, or I'm sure objects 22 on the record to the use of these values. If you didn't 23 object on the record, then there is no problem. 24 THE COURT: Well, okay. There was an objection 1 on the record. These were admitted, 1509 was admitted on 2 July 16th, and my notes have they were admitted over objec 3 tion. 4 MR. HEINEMAN* If we1re talking about -- I'm 5 not sure that we're talking about the same occasion. 6 THE COURT: This is when they were first used 7 on the 16th. 8 MR. HEINEMANt All right. 9 THE COURT: I have in my notes that they were 10 admitted over objection at the time. 11 MR. HEINEMANx You don't have in your notes 12 what the objection was? 13 THE COURT! I don't. 14 MR. HEINEMAN: I don't know. Was the objection 15 only that his handwriting was on them, and they said "Nitro?" 16 MR. CARR: The objection was that these were 17 not connected, these were not shown to be the normal 18 reference ranges, and you weren't going to take any represen 19 tation that they were. I represented to the Court that they 20 were produced to me, and your objection was to their authenti 21 or that they were, in fact, the normal test ranges. You're 22 not making that objection now. There's no problem. 23 All I want is on the record a statement from you that these 24 were the normal test range values given to me by you in I response to my request of April the 15th, and that these are 2 the normal test ranges that were used in the laboratory 3 reports that we have in evidence in this case, referring 4 to the Krurorarich Health Study* 5 THE COURTi My notes do indicate that you, Mr* 6 Carr, Indicated that these were produced in response to an 7 order of court. I don't have noted down what the specific 8 objection was* 9 MR. HEINEMAN: Do you know whether Dr. -- whether 10 he asked Dr* Roush about it right at that point? Because 11 I have a recollection, maybe incorrect, that Roush said, 12 "Yes, these, indeed, are the normal reference ranges for por*' 13 phyrins from Metpath." 14 MR* CARRt He has testified on the record that 15 these are the normal test ranges used at Metpath* That is 16 not my quarrel* 1 have him on the record three or four 17 times in which he agreed that these were the normal test 18 ranges* That's not the equivalent to a stipulation by you 19 that they are, or that by an agreement by you. Because you 20 made the objection on the record that you don't know the 21 authenticity of them, and you challenged them, and you 22 objected to them, and I want it clear on the record from 23 Counsel that what 1 represented was correct, that these 24 were produced by you in response to my demand or request 1 for these normal values, normal test ranges 2 THE COURTi Whatever position you took then, do 3 you have any objection to that now? Letvs put it that way 4 MR* HEINEMANi First, I want to read the 5 transcript here. 6 THE COURTi Sure, go ahead* 7 MR. HEINEMAN: Of the in-chambers conference* 8 Then I will need to ask Joe Massif if they, indeed, are the 9 same ones that were produced* 10 MR* CARRt Jesus, Ken, you can see the numbers 11 on the receipt, and the numbers -- well, never mind. You 12 do whatever you need to do. 13 MR. HEINEMANs Oh, there's a receipt here? 14 Okay. 15 THE COURT That's just before the actual 16 documents. 17 MR. HEINEMANi Well, from the receipt they 18 obivously are the same documents that were produced* 19 THE COURT! Fine. 20 MR. CARRi Well, are you stipulating and 21 agreeing that exhibit 1509 represents the normal test range 22 values as shown for those three urine specimens, whatever 23 they are, for the Kruromrich Health Study? 24 MR* HEINEMAN: What I would stipulate to is 1 that these three documents, which I don't remember exactly 2 what comprized 1509 -- THE COURT* Those three documents, 3 MR. HEINEMANi These three documents are 1509? 4 THE COURT* Yes. 5 6 MR. HEINEMANi But if these are 1509, that 7 these three documents demonstrating that Metpath's normal 8 reference ranges are for micrograms per twenty-four hour 9 sample are, indeed, the normal reference ranges that Metpath 10 used. II MR. CARR* Well, I want more than that. I 12 want that these were given to me in my response for the 13 value -- asking for the values, normal values given for the I 14 porphyrins. 15 MR. HEINEMAN* I am sure, as 1 sit here, that 16 these documents were provided to Mr. Carr in response to 17 the request that is set forth in this transcript. 18 MR. CARR: Then that's all I want. 19 THE COURT* Pine. Great. Okay. We'll start 20 in a couple of minutes. 21 MR. NASSIFs I remember a request from Mr. Carr 22 for the Metpath reference ranges, and to my recollection 23 those three documents were produced in response to that 24 request i I THE COURT; Okay# gentlemen, We'll start in a 2 couple of minutes- Thank you. 3 MR. CARR: Yes# your Honor. 4 5 (The following proceedings were had in the 6 presence and hearing of the jury:) 7 8 GEORGS ROUSH# 9 having previously been called as a witness under 10 Section 2-1102# having previously been sworn# ' 11 continued clarification examination as follows:} 12 13 * *p 1 ^ EXAMINATION % rj 1 14 BY MR. HEINEMAN: 15 THE COURTS Good morning# ladies and gentlemen. 16 I apologize for starting a little bit late. As I've told 17 you before, you've heard this many times, there are certain 18 matters that have to be taken up in chambers# outside the 19 presence of the jury. We had one of those this morning# and 20 I believe we've resolved it. So we're ready to proceed. 21 Mr. Heineman* 22 Q .(By Mr. Heineman) Yes* Dr. Roush# on Thursday# 23 when we closed court at the end of the day, we had begun 24 discussing the Zack-Suskind studyi had we not# sir? 1 A Yes# sir* 2 Q And I'd like to hand you a copy of that study 3 as it's been previously marked as Monsanto Exhibit Number 4 62# and I'd like to ask you some questions about it# sir. 5 Now# as I understand it, sir# the only way that those who 6 could have been exposed to the clean-up of the '49 accident 7 could be determined was through the chloracne recordsj is 8 that right? 9 A Yes# sir* 10 Q Now# as a matter of fact# the paper states# does 11 it not# that it's subject is the chronic health effects to 12 exposure to TCDD as reflected in the mortality experience of 13 a cohort of Monsanto Company workers who developed symptoms 14 of chloracne following a trichlorophenol process accident 15 at the Nitro# West Virginia plant in 1949? 16 A Yes# sir* 17 Q And if you'dlook atthe lastparagraph in the 18 right column on the first page of Exhibit 62# would you read 19 that first sentence# please# to the jury* 20 A "Employees whoworked in thearea of TCP 21 production or were involved in the clean-up began to develop 22 symptoms immediately following exposure to the material 23 which was discharged from the autoclave*" 24 Q Thank you* And then it goes on to discuss these 1 symptoms* correct, sir? 2 A. . Yes, sir* 3 Q , And would you tell us what it says .the symptoms 4 were* 5 A Should I read them or just tell you? 6 0 Well# please read them* 7 A "Symptoms'included eye and respiratory tract 8 irritation# headache# dizziness and nausea# and a severe 9 irritant reaction of/the.exposed skin." 10 0 Then it goes on to discuss the symptoms subsidi:n< 11 does it not# sir? would you read that next portion? 12 A "After these initial symptoms subsided# the 13 chloracne and other symptoms became evident" 14 Q . Now# what it appears to be discussed there# sir 15 is an acute exposure with acute symptoms;is that right? 16 A Yes. As a matter of fact# the immediate 17 reaction following that autoclave discharge was manifesta 18 tions of irritant and thought to be due to the caustic 19 content of the material that came out# not due to the TC -- 20 MR* CARRs your Honor# X object unless the 21 witness is testifying from his own knowledge* If he*s not# 22 he should identify the source of his knowledge* It appears 23 as if he's.stating something as a fact. 24 THE COURTS Objection is sustained* Could you 1 rephrase the question so that matter is cleared up* i 2 Q . (By Mr* Heineman) Doctor, Dr* Roush, with 3 respect to the acute nature of the symptoms that arose and 4 of the esqposure, how does that relate to the fact that the 5 study is talking about-results"after a long period of time? ,, ,, - * r ,, > '' i v 6 MR* CARR9 'Your Honor, Counsel isn't going to 7 rephrase that<question, I ask that the jury be instructed j* * 1, ` * f 8 to disregard what the doctor said* ' 9 THE COURT? objection]is sustained* The jury 10 is to disregard* 11 THE WITNESS: I 'm sorry* Would you repeat the 12 question? I'm not sure how it related -- 13 THE COURT Could you read back the question 14 please* 15 (Question read.} 16 THE WITNESS: Well, these workers did have 17 acute reaction immediately following the release, but those 18 symptoms subsided quite rapidly, and then after a period of 19 days to months they developed a skin reaction quite different 20 than the irritant reaction, and that when it came on over a 21 period of days to a month or more was called chloracne* So 22 that identified group was based on the identification of 23 the chloracne or the skin reaction 24 Q (By Mr Heineman) Now, was it possible in 1979 1 or 1977 when this study -- when you began working on this .2 study, is it possible at that time to determine all of the 3 people who were exposed in the 1949 accident? 4 '' MR. CARR3 Your Honori, first I would object. 5 Counsel hasn't established that this witness has that 6 knowledge, of his own knowledge, or' if he's referring to 7 this exhibit, whether or not. this exhibit says that it's 8 possible. It's not clear what he's referring to. is he 9 referring to the witness' own knowledge? If so, if he 10 hasn't established that the witness has such knowledge. 11 MR. HEINEMAN: Well, your Honor, I'd like to 12 establish Dr. Roush testifying on behalf of information that 13 was developed by people working under him. t 14 MR. CARR* well, I object.to that, your Honor. 15 If he's going to refer to this:study, refer to this study* 16 If he's referring to some hearsay documents, or hearsay in 17 formation, that should be here so I can cross examine and 18 determine the authenticity of it* 19 THE COURTt I'm sustaining the objection. Would 20 you rephrase the question? 21 Q (By Mr* Heineman) Doctor, do you have personal 22 knowledge with respect to the way In which, or the effort 23 that was undertaken to try to determine a cohort for this 24 study that's reflected in Defendant's Exhibit 62? ] A " `Yes, sir#'. j 2 i' , >, ,*" ` 'i. ( :' i ,, 1 . Q All right; Nov;, would you tell us please what 3 was done 'to try to determine the people who were exposed? \- t i , r 4 Was there any way to determine all of the people that were 5 exposed in that *1949 incident? , 6 MR. CARR: Your Honor# I object to that. That's 7 two questions* First of all# what was done? I think he 8 has to establish that. 9 THE COURT: You can answer both of them in 10 sequence. 11 THE WXTHESE: In an attempt to identify those 12 who had been involved In that accident# they attempted to 13 find whether there's records available on work records that 14 would identify who had been working in that accident# and 15 they were unable to do so. The other approach to deciding 16 who was exposed is to determine those who had chloracne. 17 Dr* Suskind sent me the first group of people he knew were 18 exposed# and there were about fifty of them# fifty to 19 fifty-three# as X recall. Then we went back# and to add on 20 to that population who had chloracne# we went and got a 21 copy of Mr. Volz'a files in which he listed: those .,,that were 22 on the Workmen's Compensation list. In addition to that# we 23 checked with Workmen's Comp# and verified those names that 24 obviously had chloracne* So what we have then is a list of | 1 people who' were I'dentified Jby pr..Suskind, by those who 11 r ` l< 1 T 2 came in from Ed Volz, and then the Workmen's Compensation 1 ^. . 1 3 files* And that constituted what they called the chloracne 4 group. That means that there could have been some people 5 who were there who had chloracne that was so mild that it 6 was not included, because a decision of who had chloracne 7 was made' by the doctor. They cross-checked the medical 8 records, but it still wasn't clear if a man had a blackhead 9 whether the physician thought that was chloracne or not. 10 So v/e were unable to determine those who did not have 11 chloracne and who were involved in the clean-up. We believe 12 that we picked most of them who had significant chloracne 13 by the method used. 14 Q (By Mr. Heineman) Now, when you say you had 15 access to Dr. Suskind's files, now Dr. Suskind had indeed 16 examined a number of these people back at the time of the 17 incident, and subsequently? 18 A Yes. 19 Q So he had files with respect to people who were 20 his own patients? 21 A Yes, sir. 22 Q And these were employees involved in the 23 incident? 24 A Right. rl 1 Q . Then you said something about Ed Volz's files 2 A Right 3 Q Now Ed was the Safety Director of the plant? 4 A Yes, he was. 5 Q And he kept track of those people who had 6 filed Workmen's Compensation claims? 7 A That's right; But he also had a responsibility 8 to keep that list up-to-date for the plant manager The 9 plant manager wanted a regular report of how much chloracne 10 there was. 11 0 So he kept a record of who had chloracne? 12 A Yes, sir 13 Q And then you said you went to Worker's Compensa 14 tion files? 15 A Yes. 16 Q Were those kept by Monsanto or by the State? 17 A By the State. 18 Q State of WestVirginia? 19 A Yes. 20 Q And from those three sources you compiled the 21 group of who had chloracne and who did not? 22 MR. CARR* Your Honor, X object as to who had 23 chloracne, not who were exposed and did not have chloracne. 24 MR. HEINEMANt I'm sorry, I misspoke. I MR CARR* Yes, you did* 2 Q (By Mr. Heineman) You had the list of who had 3 chloracne? 4 A Yes, sir. S Q Those were the people who were followed in this 6 study? 7 A They became what we call the cohort. The 8 population that we could study. 9 Q 'Now, I want to get to the difference, sir, IP between an acute exposure and a chronic exposure. People 11 that were the subject of this study, what sort of exposure 12 did they have? 13 A These people who developed this chloracne at 14 that time were related to the episode in which there was a IS large discharge of the 2, 3, 7 TODD. 16 Q so which would that be? would that be an acute 17 or chronic? 18 A An acute exposure. 19 Q That would be an acuteexposure? 20 A Right. 21 Q .Something that takesplace over relatively 22 short period of time? 23 A Yes, sir. 24 Q There's a statementthat X want to direct your 1 attention to* If I could direct your attention to the 2 second page of Exhibit 62, the right-hand column. There*s 3 a portion there that says "Population and Methods;" is that 4 correct? 5 A Yesi sir. 6 Q At the end of that first paragraph there's a 7 sentence that begins with the words "An analysis." Do you 8 see that? 9 A Yes, sir. 10 G Would you readthat to thejury,please. 11 A "An analysis of the chlbracnecases and 12 exposures not associated with this accident but ratheE with 13 the normal TCP/2,4,5-T production processes will be the 14 subject of a future paper*" 15 Q . Now, what is it that the authors of this 16 document are referring to in that sentence? 17 A This study was a study of those involved in the 18 acute accident. This subsequent study was to be related to 19 what health effects were associated with the normal operatic 20 and production of TCP, and the 2, 4, 5-T at the plant, over 21 a period of time. 22 Q So that would it be possible, sir, to describe 23 the second group of people to be examined in a future j ' j I- a 'L 24 paper* the subject of a future paper, would that be a 1 chronic exposure that's being dealt with there? .2 A * Well, the normal TCP/2,4,5-T production process 3 would involve a continuing, long-term exposure as opposed 4 to an episode. 5 0 All rights Now what was the second -- the 6 second one is the 2aek-Gaffey Study; is it not, sir? 7' > A Yes, sir 8 0 . Now, what is the difference between the two? 9 What are. the two separate studies accomplishing? 10 A Well, the,first study was a concern for the 11 possibility that those workers involved in this accident 12 in which there were people who were quite ill They were 13 sick Four of them were hospitalised at the University 14 of Cincinati, some hundred miles away from ftitro, West .L * 15 Virginia, for a study in depth# So these workers had 16 significant exposure* And the question was for these 17 hundred and twenty-two people identified with exposure,' that 18 heavy exposure had any' adverse affect on their mortality 19 experience* 20 Q All right* Now how does that differentiate 21 from the second one? 22 A :. / ,The' second study took those workers who had 23 been working*at the plant for a period of about twenty years 24 or during that twenty years, and had exposure to continuing, 1 over most of this time, or at least up until 1969, and the 2 question was at these lower levels of exposure, but over 3 this long period of time, did that have any affect on their 4 mortality experience. 5 Q Now, it may well be that there were some people 6 in the second study who were also exposed in the first one? 7 A Yes, sir. 8 Q And there may be some people in the first one 9 who were not involved in the second one because they weren't 10 involved in the subsequent 2,4,5,3? production; is that right? 11 A Yes, sir* 12 Q One was for chronic exposure, one was for acute 13 exposure? 14 A Yes. 15 Q ' Now, withrespect to the2ack-Gaffey study, sir, 16 does that study purport to say 17 MR. CARR: Your Honor, X object to the leading 18 form of the question. X haven't objected to now, but I do 19 object how* ,~ t*- i i u 20 THE COURT: ^`Rephrase It, please* X believe it 21 is leading 22 0 (By Mr* Helneman)' Allright. What, ifanything! 23 sir, does "that study say with respect to whether or not 24 anybody who was the subject of it -- - strike that. Let me 1 sfcart over again. What does that study purport to say, if 2 anything, sir, about whether anybody who was listed as not 3 exposed in the Garfey Study had ever been exposed to TCDD 4 in the past? 5 A It didn't address that question. The study was 6 simply a comparison of. the mortality experience of those 7 involved either in the regular operation, on a regular basis, 8 or a year at least who had their job was making the TCP, or 9 making 3,4,5-T, and they want to know whether they had -- 10 what their mortality experience was. And for comparison, 11 the comparison crew was the rest of the plant* And the rest 12 of the plant could include those who were not assigned to 13 that unit, but were a part of the whole work force. 14 G Now, sir -- now, in dealing with these two 15 studies, sir -- now, Mr* Carr went through with you and he 16 said, did he not, sir, that there were four people -- this 17 is Exhibit 1482-A, sir, I want to show you. He pi^ks out * ^ J *i 18 four people that were exposed, listed as exposed in the 19 trichlorophenol process accident in 1949; correct? 20 A lies, sir* 21 Q And'then he showed you Plaintiff's Exhibit 281-B( 22 in which he stated that those same four people were included 23 that's the wrong one. 24 Here, we are* Here we go. I had the wrong one 1 1462-B, sir* Keeping in mind 1462-A, listed the four 2 people# listed or had underlined four people who had been 3 exposed in the *49 trichlorophenol process accident; corre 4 A Yes# sir. 5 Q 1462-B, had underlined the same four people as 6 being listed in the not exposed to 2#4#5-T table from the 7 Zack-Gaffey Study* 8 A Yes# sir. 9 Q Is that right# sir? 10 A Yes# sir^ 11 Q Now# how could it be# sir, that the four people 12 who were listed as exposed in the trichlorophenol process 13 accident could be listed as not exposed to the 2#4#5-T in 14 the Zack-Gaffey Study? 15 A The definition of who was going t be in the 16 Zack-Gaffey exposed" group were those who were working with 17 TCP or 2,4#5-T during the period of 1955 to 1977. And 18 these four people' were not in that cohort as I 've just 19 described that's going to be studied. They were there i i I ' j; ' 20 because they could not be identified by virtue of looking 21 at the work records. 22 Q So that while they may have been exposed to 23 TCDD in the trichlorophenol process accident in 1949# they 24 were not exposed to the chronic# low-level group# or just 1 chronic iet's just use that word -- the chronic exposure 2 in the day-t^-day operation of the 2,4,5-T Department from 3 55 to *70? 4 A That's right. 5 MR. CARR; Your Honor, X would object unless r 6 counsel and the witness will point out something in the 7 Zack-Gaffey Study where it says this excludes anybody who 8 was working before 1955 in the TCP accident, in the TCP 9 production. 10 THE COURT; Objection sustained. 11 MR. HEINEMAN; I think, ypur Honor, X.think the 12 Zack-Gaffey Study itself defines the cohort. 13 MR. CARR;,, That's the reason I'm asking Counsel, 14 that's th reason I'm making the objection, because I'm IS suggesting to you that it,says nowhere that the people who 16 were exposed before 955 were excluded from this study. 17 The representation,that you're making to the 18 jury is wrong. 19 MR. HEINEMAMs Well, sir, I think the represen 20 tation is that those were the people who were working in 21 that department between '55 and '70. 22 THE COURT: Okay. Objection is sustained. 23 MR. CARR; Those weren't your words, Counsel. 24 THE COURT: The objection directly relates to fcha 1 proposition being put to the witness* The objection is 2 sustained. I'll allow you to.rephrase the question, if you 3 wish. 4 Q (By Mr. Heineinan) Doctor, in light of the 5 objection that Mr. Carr has made, sir, would you define the 6 cohort to the Zack-Gaffey study carefully? 7 A ' The cohort that was going to be studied for the 8 effect of working with TCP, 2,4,5-T was all of those who 9 could be identified by the work records that had worked 10 with these materials, these two materials, over the period 11 from the first time we had work records available, 1955 12 up to 1977* We could'not go beyond that. 13 0 Sir, that study, the attempt to identify that ** 14 cohort, was begun when? 15 A About.the same time, 1978, '79. \i 1 11 ' -' '1 i *. > 16 Q Sometime around 1978? So in 1978 you were 17 trying to go back and find out who worked in the 2,4,5-T -- 18 let's see -- the 2,4,5,-T, TCP production process? 1? A Right. 20 Q And as of that date the only work recordsyou ha 21 began in 1955? 22 A \That*s right. 23 Q Nov/ there were people,werethere not, who were 24 at work in 1955, in that'process, who may have been at work 1 In that process before 1955; isn't that right? 2 A - .Yes. 3 Q And had*- they been at work for a year# a year or 4 more after 1955, they would be included in the cohort? 5 A That's right. 6 Q In addition to that, sir# were there people# or 7 do you know whether there were people who were not working 8 with the company in 1955 who may have been exposed in that 9 process prior to 1955 and whom you could you identify i <. , 10 people of that kind?. 11 A No. 12 Q So there may havebeen people who had previously 13 worked in the process but as to whom you did not have work 14 records prior to 1955? 15 A That's right. 16 Q Now# what Mr. Carrsought tohave you do was 17 to take the people from 19 from the 1949 incident that 18 had cancer and add them to.the people in the zack-Gaffey 19 Study; is that right? PENSAD CO. 20 A Yes# sir 21 Q All right.r Now, can you do that? 22 A What do you mean by can you do that? 23 Q Well, underthe principles of epidemiology, can 24 you do that# sir? 25 1 A If you1re trying to combine what we thought was 2 the affects of an acute exposure# plus those from a chronic 3 exposure# and think of them at the same time# you can 4 Q All right But under what circumstances do you1 5 have to do it? What's required in order for you to be able 6 to do that# sir? 7 A Well# several things* First of all, you have 8 to make, .sure that ,your definition of those two cohorts are 9 consistent# and that's difficult to answer# because they wera 10 defined differently And there's subtle differences when 11 you start talking about a cohort* You don't define a cohort 12 after you've completed the study* Both of these studies wer2 13 done by a study group that was defined before they.--looked 14 for the experience* The health experience* In other words# 15 that hundred and twenty-two was put together and then they; 16 went back and looked to find out whether those who had left 17 were alive or dead# that was done after the cohort is 18 designed* Otherwise it becomes a bias study* The same 19 thing on the Zack-Gaffey Study# that population was defined 20 and then the mortality experience was looked at. So when 21 you start trying to put them together# yes, you;can do it. 22 But you're not sure what you've done in terms of how ^you've 23 changed the definition of the cohort# because you don't have 24 a clear definition of the cohort you're looking at* That's 26 PENCAD CO, 1 one reason* 2 Q you mean if you put them together? 3 .A Yes. 4 Q Because the two cohorts were put together with 5 different things in mind; is that right? 6 A t And defined differently. i 7 Q* * Defined differently? , 8 A Yes., r 9 Q So if you jumble them together# you don't know 10 what the definition of your cohort is? 11 A That's right. 12 Q Now# in connectionwith an epidemiological 13 study# you said that you defined the cohort first without 14 regard to what the experience is. What do you mean by that# IS sir? 16 A We define that first cohort as those who had 17 chloracne# and we were able to identify that population 18 group we're going to look at as a hundred and twenty-two 19 workers# and we took out one. The nurse was in there. 20 Since there was one female# we dropped her put just because 21 of the consistency. Hundred and twenty-one of them were 22 males* The second population group was those who had 23 worked continuously in that operation# or for at least one 24 year during that time period of time. That's how that 1 population was defined* 2 Q How# when you make the definition of the 3 population, at that time do you have any idea what the 4 actual mortality experience is for that population? j - t ** 5 A * ' Ho,sir* 6 Q ., So you define it first# and then you find out * I, - .L" '. ( 1 ' 7 where the chips fall? 8 A That's right. 9 Q And that's done in both studies? 10 A Exactly the same* 11 Q And you don't maneuver them? You don't change 12 the cohort once you- find out what the mortality experience 13 is? 14 A Ho# sir* 15 Q You've alreadydefined what thecohort is? 16 A That's right* 17 0 How, so that while it is true to say, or it ( 18 may be true to say that both groups studied could have been 19 exposed to TCDD, that would be true, you say? 20 A Yes, sir* 21 Q They, were exposed underdifferentcircumstances; 22 correct? 23 A Yes. 24 Q And the purpose of the studies was to.find out 1 the differing -- whether those differing circumstances 2 produced differing mortality,experiences? correct? r ; ".r' < i , 4 1> 1 3 A * Yes, sir. j 4 Q !/1 Now, when Mr* arr asked you to start adding 5 them together, the. first thing he did was ask you to name 6 certain people and'he'pipked .them off, I think, Exhibit 1460, 7 which was a list of everybody that was included in the Zack- 8 SusKind Study? isn*t that right? 9 A -- Yes* 10 G And then -- then, sir, he had you start doing 11 some computations? didn*t he? 12 A Yes, sir* 13 Q And what he would do is take the deaths as to 14 a certain type of cancer as compared to^the total number of 15 deaths in the Zack-Gaffey Study, and then have you add in 16 the cancer deaths from the Zack-Suskind Study? correct? 17 A Yes, sir* 18 Q And he had you add those to the numerator and he 19 had you add those same t<? the denominator? correct? 20 A No, sir* 21 Q Now, what*s the difference? Why is it, sir? 22 Why is ,It that you can't compare them by just lumping 23 in the cancer deaths from the other study, without any 24 reference to the total number of deaths in that study? I A ; That,hfirst line up there shows that there were 2 10.94 cancer deaths expected, and he divided it by the 3 population in the Gaffey Study, in which there were 58, and 4 he says 18.9 percent of .the deaths were due to cancer. But 5 then he took the -- he took 67 -- he took 58 and added 9 -- 6 that's hard to tell from that -- he added 9 cancer deaths 7 from the Zack-Suskind Study to the population of Zack-Gaffey 8 to come up with 67. In other words, his population now was < 9 67, and he got 18.9 percent, and said he would expect 12.6. 10 But you can't do that* 11 Q But, sir, he used the 18.9 percent, which is the 12 result of determining how many are expected in this 13 population -- 14 A Right. IS Q -- correct, sir? 16 A Right. 17 Q That isn't the number of expected in this 18 population, is it? . 19 A No. He's trying to calculate itthere. 20 Q Right. But what in additiondo you have to do, 21 even if this 10.94 is not the expected for this created 22 population of taking the 9 and adding them to 58, there's 23 still something further wrong with it, isn't there, sir? 24 A Yes 1 Q -Okay. Now what1s- that? 2 A He has to change that population from the 57 -- 3 he has to add the total population of the Zack-Suskind 4 Study to it, 5 Q At least that portion of the total population 6 which is not duplicated? 7 A That's right. 8 Q In the zaek-Gaffey Study? 9 A That's right. 10 Q So you've,got to find out howmany totaldeaths 11 there are in the combined -- 12 A Right. 13 Q -- group? You can't just take the cancers -- 14 that's like taking the red apples out of yellow and red 15 apples, and red apples out of yellow and red apples, and 16 let's take these reds and these reds, and put them over 17 here and say among this bunch of apples we've got a lot 18 more reds. 19 A That's right. 20 Q But that*doesn't show what the total incident 21 is, does it? 22 A That's right. 23 Q You've got to take the yellow apples from here 24 and bring them over with the yellow apples from here, don't 1 you, sir? 2 A That's right* 3 Q So you're showing the number of red apples, whic 4 may be the number of people exposed to TODD in the entire 5 population, not just in that portion of the population? 6 correct? 7 A Yes. 8 Q Now, so then .if you look at Exhibit 1464-A here, 9 sir, he says here that the deaths observed were IS and.not 10 9. 11 A ' Yes* n Q But he compares it with the deaths expected to 13 the deaths expected only from the Kack-Gaffey Study popula 4 tion; correct? 15 A No, sir* He compared it to that,recalculated 16 one on the other page right behind it* 17 All right* Back here? 18 A Yes* That,right there* That one two six. 19 Q Twelve point six? 20 A T Twelve point six, yes* 21 Q All right. So you calculated-- what's this, t) 22 new expected? 23 A Yes* 24 Q Now this is th new expected for this I population? 2 A Yes, and that's not a population 3 Q But what's the new expected for the real 4 population, which is how many people? 5 A Fifth-eight plus thirty-two, minus four, I think* 6 So it's -- it's 8 6 . What you should do is take that 86 7 times --- 18.9, if in fact the percent expected in a larger 8 population would be the same as it was in the first popula 9 tion, and that's not correct. 10 Q So that changes too, doesn't it? 11 A Right, you can't do that. That percent 12 expected in the Zack-Gaffey Study was derived from a 13 computer program whichccorrects the expected by virtue of 14 age. As a population gets older, the cancer experience 15 increases. So you never can pick up and identify the 16 expected* First of all, the age expected mortality from 17 cancer in any population is about twenty percent. So that's 18 pretty close. But that that's expected in any special 19 population is dependant upon the age of the population* So 20 when you start to add, take 18.9 percent in the Zack-Suskind 21 Study, which was considerably older than',,the Zack-Gaffey 22 because it was based on that population back in 1949, the 23 expected is going to be quite different from that. And you 24 can't do it anyway ^ y o u can't take 18,9 and multiply it 1 times the Zack-Gaffey mortality and just add the cancer to 2 it and say that's the population* The population is the 58 3 plus 32/ minus the overlap# So that's completely wrong, the 4 way that was done* 5 Q Now, why is. that, sir? Are there principles of 6 epidemiology we're talking about here? 7 A The expected in mortality experience in any 8 population is dependant upon correcting it for age. And in 9 order tor.correct it for age, you can do it manually, but it 10 would take days. So there are computer programs that have 11 been written to take a population in which you insert the ag< 12 of each one, of .'th.elpeople involved in this study, into the 13 program, and then it calculates the expected cancer experien{ 14 based on age* 15 Q All right* Well, let me direct your attention 16 again, if I may, to Defendant's Exhibit 62 If you'll look 17 at the second page of the exhibit, sir -- 18 A Are you talking about -- 19 Q Yes, the Zack-Suskind Study. 20 A I don't have it -- Zack-Suskind, all right. 21 Q All right* ; Th second page, right where you . 22 were. \ r 23 A' -All right. 24 Q Right there. Right down at the beginning of 1 this paragraph* Dr* Suskind is describing there, is he not, 2 one of these;,generally recognized computer programs? 3 MR. CARR: Dr Suskind or zack? Is the principl 4 author Suskind -- 5 Q {By Mr* Heineman) All right* Zack and Suskind 6 are discussing here one of these generally recognized 7 programs* isn't that right? 8 A Yes. 9 Q In other words, when they say $he.udata* were 10 analyzed by the modified life-table method using the updated 11 Monson program,* it doesn't tell you right here what the 12 updated Monson Program is, does it? 13 A No, sir* . 14 Q So that the people, this being written for IS other epidemiologists, I suppose, people will know what the 16 updated Monson Program is? 17 A Yes,'sir* , 18 Q ; Wouldn't they? 19 A Yes, sir. 20 Q: Why*dofthey.know that?r *'.-*t*f *\ ;* v r!* , 21 A ; Because it's commonly uhed, . 22 Q y Everybody uses it? 23 A ` Yes. ./ '' ' 24 .0 J All right* So. that when you're talking about 1 these epidemiological computer programs, these' are things 2 that are used all over the country? 3 A Yes, sir. 4 Q And these are statistical analyses employed by 5 mathematicians? correct? 6 A Yes, sir. 7 Q Now, if indeed this process was used by Mr. 8 Carr, where he added only the deaths, only the cancer deaths 9 from the Zack-Suskind Study and not the total number of 10 deaths, so that things, as X understand it, that are wrong 11 here are one, you can't just take the cancer deaths, you've 12 got to bring in the total number of deaths into your 13 denominator here? 14 A Right. 15 Q Don't you? 16 A Yes, sir. - 17 Q In addition to that, your expected changes, 18 doesn't-it? 19 A ' Yes ; He\ was trying tocalculate the expected 20 there, but it is not* -- but you can't even do that that way. 21 Q ' ` All right. S6 your expected changes? 22 A Yes-. ` * \ 23 Q In addition to that your expected changes not 24 only because of the number^ of people involved, but your 1 expected changes because of the differences in age of the 2 people involved? 3 A Yes, sir And time of death. 4 Q' And the time of death -- 5 A Right, 6 Q -- is another factor. So all of those have to 7 be plugged into the computer in order to come up with what 8 in fact is the incident of death, whether it is statistical 9 significant? 10 A Whether it's greater than the number of expect 11 all that has to be done Yes, sir 12 Q Doesn't it? So that this.-figure, where other 13 types of cancer deaths have been calculated by Mr* Carr, 14 that's not correct either, is it? 15 A No, sir. 16 Q For the reasons that we've just talked about? 17 A J" .Right. . '" 18 Q And this one for a different kind of cancer 19 death, that's not correct either, is it, for the reasons 20 we talked about? * , 21 A That's right. 22 Q And the same would be true of this one? 23 A Yes, sir. 24 Q All right. That gets into the next study. We*i: 1 worry about that later. Now# in the Zack-Suskind Study, you 2 studied a hundred and twenty-one people) correct? 3 A Yes, sir* 4 Q Now out of the total deaths, there were how 5 many, 32? 6 A Thirty-two. 7 Q And how many were expected, sir? 8 A Out of 46.4* 9 THE COURT5 I'm sorry* What was that number? 10 THE WITNESS Forty-six point four. 11 THE COURT) Thank you* 12 Q (By Mr. Heineman) Now in that study, Dr. Suskin^ 13 says on page -- well, it's the third page of the exhibit, 14 right in the "Results" section -- *^\ * r j1 15 MR. CARRi. what exhibit are you talking about? 16 MR. HEINEMAN) 62. Defendant's 62, the zack- 17 Suskind Study. 18 MR. CARR) You said Suskind again* Dr. Zack 19 said this, and Suskind signed it along with Zack* 20 Q (By Mr. Heineman) The Zack-SuskindStudy. 21 A Yes. 22 Q The results arestated there on that page right 23 below Table 1, are they not, sir? 24 A Yes, sir. 1 Q And it says, "The results of the standardized 2 mortality analysis of the 1 2 1 -member study cohort are shown 3 in Table 1 jw correct, sir? 4 A Yes, sir* S Q "The standardized mortality ratio for all deaths 6 is shown to be 0.69r with 32 observed deaths and 46*41 7 expected" 8 A Yes, sir* 9 Q Correct? So that's 41 He says this is the- 10 only statistically significant difference shown in this 11 table; correct? 12 A Yes, sir* 13 Q ^ The only, one; that was' statistically significant ' ` ' r r1. _' 'v 14 was this* And what was it? It was low, wasn't it? L1 15 A ' Yes, sir.1 ... , _ 16 Q It was statistically significant, less, fewer 17 deaths than expected; correct? 18 A Yes, sir. 19 Q All of theother findingswhere excesses were 20 found and there are lung cancer, disease of other respirator; 21 pardon me -- respiratory system and lung, there are excesses 22 found, are there not? 23 A Yes, sir* J 24 Q But they're notstatisticallysignificant? , PENCA 'DC,O .1 2 3 4 5 6 .7 '8 9 10 ir 12 13 . 14 15 16 17 18 ,, 19 20 2! ` 22 23 24 -A'^ t h a t 's, right* ' ` & The diseases'of the circulatory system are found'to;be less than expected?,, r VA Yes, sir./ , * , <1h" *' - V Q Arteriosclerotic disease, including coronary 1j ` J\ 1 J1 heart disease, is- found to be less than expected? A Yes, sir* '' The malignant noplasme, all malignant neoplasias are found to be as expected; right?J L. J` A ^ ` i` tY"e,s,;-v^sir*,'-f .r l '\V '-r 't.>V-? ;/ -L> .` -' . nicer, 9f observed,, 9>4 expected* : ` A V Right* .. . , r--;.? ' ^ / ^f-. '\ \ , ; - ;Right? .Now / thes expected figures are expected ' - -t" 1 > _,, r' ' for this-,population;.;correct?\ ,, / ` t * / 'l -'} ;1i ,1 \ '>r \ A Yes, sir. '- . Q All right* Gastrointestinal, are these cancers now? A 1; Yes, sir * l , ;Q .Gastrointestinal cancers, none found, 2*5 1# ' 1 | f ' expectedi A ' Yes, .sir **; \ ; d Correct? rLung cancers; correct? / 'A \Yes, sir* - * . , -f. ` _ ' ' Q . ^ Five found,2*85 expected. Correct? 40 T'N `3MHOAV0 1 - *i k r 1' *' A- Yes,' sir* ' i *r 2 "Q > v So ;the gastrointestinals are low by some margin# 3 ^, - j . " -.-j " ,the lung cancers are high by some margin, but neither of them 4 -. j is found to be statistically significant? 5 6 7 -. " , .A :: q ,A , ' jThat* sJ^'trC'ight* - , - ./ ,- Heart disease, 13 found#.17 expected* Correct? " Seventeen seventy-four* 8J 9 ' '"Hf 'V, ' : 'r "* q fJ** " h{ Seventeen point 1L I-- ,lSj1"e'*rve1,Vr'nfir*'t11j-y\+rt"fv+'or, ur'* ' -"*'`i'*1 r./'' -%"^-! ^'*%t'P'>/r-> * . "' ,1 *- 10 . . Q ^ All right* And that yas fund notLto be r \ ' *- .> \ * ** M , ,r V" . .. f ' v-, - statistically\ 'significant?//. - 12 A .**' n.That's^V*r1ig" hIt1. ^ t . !^* * - , i1 r 5^ ; 13 * Q The bladder cancers, 1 none .found; correct? 14 A That's right. 15 Q Was, there an expected level there for bladder 16 . cancers? :. * v ^ '* ' , rL ` 17 A , One point one six* ' . 18 ' =. ` Q *That's the 2ack-rSuskind Study, ishit it, sir? 19 ` A'- That's right* , , . > - u 20 . Q .2ackrGaffey.: Wow what's the population in this 21 - . group? ^ j * ri L ^ j *1 r 22 V A * I don't;have it* >r 23 - Q 1 That's Plaintiff's Exhibit 281.. It may be up 24 here-, 'No#, I'm sorry, it sure-isn't* Let me hand you, sir# .: : --' . - >r -. V 41 1 what's been marked as Plaintiff's Exhibit 281 and Defendant 2 Monsanto Exhibit 65. Nov; that's the Zack-Gaffey Study, is 3 it not, sir? 4 A Yes, sir.. 5 Q Now what's the population in this group, sir? 6 A fifty-eight. 7 Q L ,, Fifty-eight is the number of deaths; right? 8 A Yes, sir. 9 y Q * Out of a much larger population than that? 10 A Not defined. 11 Q All right; If I can direct your attention back 12 to the Zack-Suskind Study, there were a hundred and twenty- 13 one that had chloracne, but there were thirty-two deaths; 14 right? 15 A Yes, sir.- 16 Q All right. So the Zack-Gaffey we have total de. 17 fifty-eight. We have total cancer, how many, sir? 18 A Nine,. 19 Q And how many expected? . 20 A Ten point ninety-four. 21 Q In this population; correct? 22 A Yes. That population of that age distribution. 23 Q Gastrointestinal, how many? 24 A Zero 1 Q None, And how many expected? 2 A Two point eight zero. 3 Q Lung? 4 A Six. 5 Q^ , How many;expected? 6 A ' Three point five sevens 7 Q r " Heart disease? 8 A ' Twenty-seven. 9 Q ! How`many expected,sir? 10 A Nineteen point seven two. 11 Q And bladder? 12 A Bladder two, with point twenty-two expected, 13 Q Yes, sir. Now o the total of these 32 deaths 14 in the Zack-Suskind Study, there were four that we know of 15 that were in the Zack-Suskind Study and listed as.hanexposed 16 in Zack-Gaffey; correct? 17 A , Yes, 18 Q In addition that, sir, were there some that 19 were in the Zack-Suskind Study and listed as exposed in the 20 zack-Gaffey Study? 21 A Yes, four of them* 22 Q- So there is a total of eight people that overlap 23 between the two groups? *< 24 A That's right, eArONNCp .NJ. 07002 1 . *'2 - :3 4 5 6 * 7' r8 9 10 11 12 13 14 15 16 17 18 19 20. 21 22 23 24 ; r.' Q The two groups of deaths? '' " - i * That's right* J , , ' q;\ 'Now; with" respect'- to adding:,Zack-Suskind and * ,r* `4* / / Zack-Gaffey^"what'diS.you do with that, sir?, A .*-c* ;i,Y0u 111'f ha}v'eI'jj'to*.-ja\ dd tjhse 58 of .t*he Gaffey Study and you.add to that the 32 Zack-Suskind, minus four that - were already>'included* i/ ; -/,^ Q `Now, how,about the other four? l- ; ..A . ' That's the four we're adding*1, / ; .Q - All right* so that the total deaths when you add these two together are how inany? ' `; . A It's 58 plus 28, or 8 6 ; , j/' -Q .So it's not 67? 1 ' \ r. V '. - A ,Q . NO. '\ ' " ' - It'S 86?, , ' ; 1 / /' ._` . A' That's right* V, . . . \ -- Q . Correct?', bid, you*'-in the Epidemiology Department '` V r; . J . : make this calculation since Mr* .Carr went over this with you? A . - Yes, sir* Q - All right*/ And what did ypu'do in'order to mak<^ - the calculation? ; A - We used.a Monson Program based on- the,age distribution of that' 86 to determine what the expected cancel death for each one of those categories. 44 1 q ,,; right* Mow over here you've got the * 11 `j ' j * * 2 computer Monson Program; correct? 3 A Correct* 4 Q 1 Over here we have what computations Mr. Carr 5 went through with you.' okay? 6 A Right. 7 Q Now we start with the total cancer* list's make 8 sure we've got them in order here* Gastrointestinal, lung, 9 bladder, lymph system, other cancers, and heart disease* 10 Correct, sir? 11 A Yes, sir* 12 Q Now those are the various items that Mr. Carr 13 went over with you? 14 A Yes, sir* 15 Q Now -- now, as to total -cancers, Mr* Carr said 16 there were 18, and there should be expected how many, sir? ` 17 Twelve point sik, wasn't it? 18 A That first item you had was twelve six* 19 Q Okay* As tgastrointestinal, he saidthere 20 were two, and -- 21 MR. CARR: Your Honor, I don't really mind being 22 considered as a witness in this case, but I've not said 23 anything* I've asked questions and the witness has respond 24 ed, various witnesses have responded giving these facts, and BAYONNE, N J . 1 J. "! i'Vjj v-*, T*-'--;V*ui-- rMM:, i ` * <i iSi*v:r'w,': w^- ; ;r VM* M 1* - ' 1 a i l . t h e s e " p a r t ic u la r f a c t s / w e r e e l i c i t e d from t h is w it n e s s . -J5'5":*. - V 1 '-i.-',' 1 iv , ; "{/ ' ' W , f v;y .;r . .. 2 r. . ; a t r t h i s t im e " f r o m t h e ' e x h i b i t s i n e v i d e n c e . I o b j e c t t o * 3 c o u n s e l c h a r a c t e r i s i n g ' asrCj"I s a id # " j J 4 / M R . H E IN E M A H : I t h i n k ' t h a t ' s q u i t e a c c u r a t e . 5 M r .- G a x r r V j ' ' ; '6 .M R. CARR* / T h a n k y o u . - V 7 ^ Mr 'H E IN E M A M s W h a t y o u d i d , w a s w r i t e d o w n t h e s e 8 9 c a lc u la t io n s f o r h im . Yo u s a id yo u had d o n e them o n a ` c a lc u la to r. C o rre ct? IP . H R . C A R R s. C o u n s e l # a s y o u k n o w ,, e a c h , t h i n g o n 11 / t h e r e h a s * .t b e a g r e e d t o b y a w i t n e s s b a s e d , u p o n . t h e f a c t s 12 " g iv e n t h w i t n e s s , b a s e d u p o n t h e e x h i b i t s i n e v i d e n c e , o r 13 e l s e I V ' c a n n o t b e p u t t h e r e f o r t h e j u r y , a s y o u ' r e - a w a r e 1,4 ' " o f t h a t . . i t c a n n o t b e a d m i t t e d i n t o e v i d e n c e * ^ T h e r e f o r e , 15 e a c h f a c t t h a t , I h a v e p u t o n a n y b o a r d I . h a v e d o n e , s o w i t h 16 ' u - t h e a g r e e m e n t o f t h e w i t n e s s a t t h e p a r t i c u l a r p o i n t i n 17 , . tim e . 18 V . J THE COURT: O b je c tio n i s " su sta in e d * C o u ld you . 19 rep h rase your statem en ts. - . '20 Q (B y M r. H e in e m a n ) D o c t o r , M r . C a rr^ sh o w e d y o u 21 . a c a l c u l a t i o n f o r l u n g c a n c e r . D o y o u r e c a l l t h a t ? 22 A ^; Y e s , s i r . . ' ' / ' : 23 24 - Q And h e s a id , th e re w ere *, MR. -CARR: - Y o u r H o n o r .- - ., 46 1 Q (By Hr* Heineman) -- he said there were ten? 2 MR. CARRs Your Honor# I object. I gave the 3 calculation to the witness. The witness agreed that that 4 calculation# based upon those facts# were correct. These 5 are not calculations that are mine. 1 * 1 1 be glad to testify 6 to them# but the way that it works# Counsel# is the witness 7 either agrees or disagrees. If he disagrees# it cannot be 8 written on the exhibit. 9 MR. HEINEMANs Your Honor# if I might address 10 that a moment. My recollection of what happened was that 11 the witness said a number of times that you can't do that* 12 You can't add the two together. And Mr. Carr said he could# 13 and that were these calculations correct if you assumed 14 that they added them together. That's what the witness 15 agreed that the arithmetic was correct. 16 MR. CARRs What I gave to the witness were the 17 facts that were in the exhibits. I said based upon these 18 facts is this calculation,correct# and the witness agreed 19 based upon those facts that they were correct. 20 THE COURT* Objection is sustained. I'll ask 21 you again to rephrase it. . 22 Q (By Mr. Heineman) The calculations# sir# r 23 that you went through with Mr. Carr# reflected to lung 24 cancer deaths and 4.12 -- now wait a minute. Well# here ? w ^ t" \1 1 '.. '',(g ;*'j* ^*/-r '. ' ` ;y -, ^r.j4'-i . `-L ` ' - ' 1 we've got it right-here' Plaintiff's Exhibit 1465-A. Do ^ 2 you see that/, sir? ; ' .\ 1/ .3 -Yes,/ sir./ - ^ k 4 . -, ; J q For lung/ 10. Genitourinary, 2.. Correct? 5 ;. : *. ; A ?' . Yes, sir. *` 6 Q * Now he listed' 10 for *lung. 7 , MR. CARR: Your Honor, Counsel is'doingtthe same 8. thing again. .. 9, ' , MR. HEINEMAN: I'ra sorry. It's a freudian slip, 1 Judge. > , ' */ 1 \i -* *\- s w 1. 11 ,t Q - '.(By-Mr. Heineman) The. calculation states 10 12 rT lung cancer, deaths; is that right? - 13 . A- Yes, 'sir'.' ; > J.' ,,-. 14 - " `9 And it says here on Plaintiff's Exxhbit 1465-A 15 10 lung cancer deaths; correct? 1 16 .; ' ' A ; .Right. ' r^ / J, . ' . 17 Q And the number expected for lung^.cancer deaths 18 , . .t , was, calculated, to be 4.12; is that rights .sir? 19 A "=* I don't Lrecall* . T h a t i t . . 20 * Is this it? ' 21 A* Yes.: . . ' 22 23 '. 24 . ' \ `Q- 1 i Four point.one two*. Where the 143 percent -~ - : / Yes. :^ / '- : Q :r All right/ . So that's for the lung cancer there# / : ! r %.1.., 'V.V' \;Jrj 1f V '! , ,J - >- ji /. > V,- t i K: . _* *. Vi j'' J. , - j ; - * \' - * * * -_ t v**P,- y e L wi - h. PENGAO CO., BAYONNE. .NJ. 07001 as-' s,h' own o r M' 46 5-^A?^r, .,, : _ fV L' A.;. .Right*-, r ' *\ ^ % `, ,- Q All right* now, sir/ with, respect to'-- with respect to bladder cancer; there were two listed in 1465-Aj correct, sir? -,, 'r^A -k Y'es. \t Q The calculation of.expected -- I don't see that ^ s ,* K r* r * -* > - - 1 "' - rl*r \ * , here. X:*m trying to find the exhibit where that number was, Tudgev: , ' ' J rV ' J ^ L THE COURTv Why dpnVt we take a short break and yyou fin*d', ^iHt'? l4 "S J (- ,>MR* HEINmAN: All right, . Thank you. - THE COURT Okay. Ladies and gentlemen, we*11 ,, _ 'J m,, 'i *\ , - take a short break at this time* I will remind you, and " ' ll I . . this would go for any other breaks which we take, not to \ discuss this, matter among yourselves, with anyone outside the jury panel* or as of yet form any opinions or conclusions about the matter In trial . Court is in recess* ` (Short .recess.) Q (By Mr* Heineman) Doctor, at the break you corrected :ine^on 'something,.-didn't: you, , iy\;, rr-'r G.I. should "be'GVu.V is that right? 1 .,V*-.'..'' '1\S-,J> i \,, S'--a' ` - >-<-v.r-'<V--: i v v-` J\ - * sir?' '; You said this l. 49 L 1f i ; ^ * A' ^s# .sirr- - ,, *' , 2 v, .' Q What would that stand for? r 3. A ` 'That means gastrointestinal/, and G.U. would be 4 genitourinary, 1 \ r . \/ .5 ` Q ."Okay. . 6. 1. .i, MR. CAR. R; r And - another , ' correctio'n<,*, what is that 7 exhibit number, counsel? *, ^ 8 ' 'M R, HEXNEMAIi: No, :npt yet, . ^ 9 ' t MRV CARRs , Why :dori11 -you put an exhibit number .. JO on it so X can refer to it? ; ' w' 4 ^ ,r 4 n . 1 , MR.'HEINEMAN: Okay.' 1*11'be glad to*. U J 12 ' : 13 - /' " ` '. (Defendant Monsanto Exhibit 910 was marked 14 for identification by the court reporter.) s * N J z * o u. *4 O SE >2 z, O* < m d u Q < z Ul & 15 .17 18 19 ; 20 *21 22 23 * > 24 r * , * * \' ' , ' L * ' ,. * ^. .. Q / (By Mr. Heineman) Doctor,-I'm marking this sheet that we've been drawing on here as Defendant's'Exhibit - 910, and that's this .last sheet where we're addking Zack- , Susk ind a n d ;Zac k~Gafeytogether ;; correct, sir? \ *; . X f -` ; y . . . V ' . ' - A** - X s V h'irv" " jV rMR. CARR* .'-It''refers 'to a "Carr Study," or a /-L1 ' '*-> "i";V. V ir~. j '* ' / , .' ;> ; . j * ,11 ` >J - _I 1- - - - . "Carr column" Of'Course, that's inaccurate to be an' ' 1` *r 4>^'^ * *"r ' - / 1* ' 1> 1 . . r*1:1 exhibit, or';Dr.1 ^ush^s.,,testimony to that affect. .But I haven't testified to it. I object to the use'of the word '' '' - 1 "Cacr" on this exhibit 2 MR, HEINEMAN; Well, your Honor, the reason 3 the HCarr" is on there is that these were the calculations 4 that Mr* Carr went through with the witness. And it was 5 to identify them as that column only. 6 THE COURTS l fd prefer that you change that. 7 I'll allow you t* change it to whatever number of the 8 exhibit that you've been referring to that those calcula 9 tions. 10 -MR. HEINEMAN; Well; It's a combination of n exhibits, your Honor. 12 THE COURT; I do want you to change that* 13 MR. HEINEMAN; All right, sir. 14 THE COURT; You've been referring to 1465-A and IS MR. CARR; Just put the exhibit numbers on it 16 that you're referring to, Counsel* Then you don't have to 17 guess about what you're talking,about. 18 MR* HEINEMANi Now these documents here, your 19 Honor, from which these numbers came, some of them came, 20 were'never marked by Mr. Carr* Could we get plaintiff 21 exhibit numbers on those, then i can put the numbers of 22 these. 23 THE COURT; Pine. 24 MR. CARRs That'sCfine with me 1 MR. HEINEMAN: X think it starts here. 2 THE COURT; You can just make it a group exhibit 3 MR. HEINEMAN: Make it a group exhibit, your 4 Honor? ,. 5 THE COURT; It1s the same calculations. 6 7 (Plaintiff's Group Exhibit 1512 was marked , 8 for identification by the court reporter.) 9 10 MR. HEINEMAN: All right. So that the record 11 would be clear, your Honor, Plaintiff's Group Exhibit 1512 12 consists of the first sheet of calculations in which Mr. 13 Carr -- in which there appears calculations 67 times 18.9 14 percent equals 1 2 .6 . 15 The second sheet of calculations ending in the ` " *r 16 statement one1 hundred forty-three percent. The third sheet 17 of calculations ending in the statement 92 percent in excess 18 And the Fourth sheet"of 'calculations ending in the number 19 26 percent. 20 V ' ' THE COURT: 'Fine. 21 Q (By Mr. Heineman) Now, sir, with respect to the 22 bladder -- with respect to bladder cancer, the number which 23 appears in the Zack-Gaffey Study, which is Plaintiff's 24 .Exhibit 281, as the expected is what, sir? 1 A Point twenty-two. 2 Q ' Point twenty-two. And Plaintiff's Group Exhibit 3 1512, to your recollection, sir, does not contain a calcula 4 tion for bladder cancer, does it? 5 MR. CARR: I object to thexform of the question. 6 THE COURT: Objection sustained. 7 Q (By Mr. Heineman) Does Group Exhibit 1512 8 contain a calculation for bladder cancer? 9 A No, sir. ` 10 Q Now with respect to the lymph cancer calculation 11 Exhibit 1465-A shows a percentage of deaths higher than 12 expected* That's Plaintiff's Exhibit 1465-A of 92 percent. 13 And we can trace a calculation for that as part of Group 14 Exhibit .1512, can'we, not, sir? / 1 * * w' 1 - ^ 15 A\ Yes, sir. 16 Q " And in'that the expected was placed at 1.56; 17 correct? In the calculation in Group Exhibit 1512. 18 A ' Which is 1512? 19 Q I'm sorry? 20 A Which is 1512? 21 Q 1512 is this group exhibit of calculations, sir,* 22 A Yes. Right. 23 G, Right? 24 A Yes. 1 Q And from Exhibit 1465-A we see that there are 2 listed as 3 -- 3 A Right, 4 Q \ -- occurring* Now, sir. with respect to other 5 sites, we see from Exhibit 1465-A that there are three 6 occurring, and from Exhibit 15 -- two occurring at a percen 7 tage of death higher than expected of 26 percent, and if 8 we go back to Group Exhibit 1512 we see that in order to get 9 that 26 percent there was a 1*59 expected used* 10 A Yes* 11 G _ And with' respect to heart'disease, sir, we see 12 from Exhibit ..1465-A that there are 27 accounted for there. 13 We don9t have -- do wehhave such a*calculation among Group 14 Exhibit 1512? ^ 15 ,A tfNo, sir. ^ . ../ - v 1 ` ** t* ' -\ 16 Q But from Exhibit 281 we have the expected of 17 what, sir, 19.72? 18 A 19.72* 19 G All right, sir. Now you told us, sir, that you 20 caused a computer Monson Program to be run; is that right, 21 sir?' 22 A Yes> sir* 23 0 And how did you go about doing that? 24 A We took that -- what we were trying to find is .y-: 1 what would be the expected cancer, G.U., lung, bladder, 2 lymphatic, other, and heart for a population of a size of 3 86 with the age distribution as presented in that group. We t 4 used the Monson Program to determine the expected rates 5 for each of those. 6 Q And the Monson Program was used on this 86 and 7 the group you looked at were the two groups that were put 8 together; is that right? 9 A Yes. 10 Q So that you could get a determination of age? II A Yes. Assuming that they could be put together. 12 Q Assuming that they could be put together? 13 A Right. 14 Q All right. And whom did you discuss this with? 15 A Dr. Gaffey. 16 Q Dr. Gaffey? 17 A Right. 18 Q And you and Dr. Gaffey worked together on this 19 being performed? 20 A Yes, sir. 21 Q All right. 22 23 (Defendant Monsanto Exhibit 911 was marked 24 for identification by the court reporter.) 1 MR. CARR* Your Honor, I object to any use by 2 Gaffey unless Dr. Roush did it himself. If Dr. Gaffey did 3 it, Dr. Gaffey should be here* It's not clear thus far, 4 other than the fact that Roush discussed it with Dr. Gaffey, 5 who worked the computer, who put it in,.who did the study. 6 THE COURTt Would you clarify that please* 7 MR. HEINEMAN: I'll be glad to clear that up* 8 THE COURT* Fine. 9 Q (By Mr* Heineman) Dr. Roush, tell us how you 10 and Dr* Gaffey did this, and what each of you did# n A We -- I asked him whether we could put these 12 two studies together in his opinion, and he said no, they 13 could not be put -- 14 MR. CARR* Your Honor, I object to any testimony 15 that this witness is going to give to some other person* 16 THE COURT?'. Objection,is sustained* ,It is 17 hearsay* : " ' *:'* * g ^ : 18 0 (By Mr* Heineman) Now, if you Would, sir, tell 19 us what the two of you did^ together or separately, in 20 coming up with the figures:on the computer Monson Program* 21 A He did the computer analysis of the expected 22 mortality for each of those specific causes of death. 23 Q So ~ 24 A Related to a population of 86 with.the age 1 distribution that could only be gotten from that program* 2 Q All right* Now was that done under your 3 directioni sir? 4 A Yes, sir. 5 Were you with him out at Monsanto when he did it 6 A No, sir* 7 Q. So that it was at your instruction that he 8 performed this exercise with the Computer Monson Program? 9 A Yes, sir*. 10 Q And then he came to you with the results? 11 A Yes, sir* 12 Q 1 All right* Let me hand you what's been marked 13 as Defendant's Exhibit 911, sir* Can you identify that for 14 me* 15 A Yes, sir * 16 Q What is that? . . m \ ; 17 A This is the p-roporti'onal m*or-ta,lity r/atio study 18 of Gaffey by putting those two populations together* 19 Q I notice it's in.handwriting? is that right? 'i- r * , UT \p ( , 1 ', . 1* * 20 A L Yes, sir* 21 Q Whose handwriting is that? 22 A Dr* Gaffey's* 23 Q And that was -- that handwriting, was that given 24 to you? 1 - . A 'Yes, sir. 2 G y Was that the report of what you had asked him 3 to dno? 4 A Yes, sir* * 5 Q Sir, was there a determination with respect to 6 thi|s Computer Monson Program as to how many total cancers i 7 were to be considered? S MR. CARR* Your Honor, I object. Any use of the 9 table is .clearly Dr* Gaffey*s table, and not Dr.Roush1s 10 table, and not be used unless I cross examine Dr. Gaffey 11 as to its authenticity, and how he got it is clearly a 12 self-serving statement prepared by Monsanto. X object to 13 it. 14 MR. HEINEMAHa Your Honor, there isn't any . ,, i 1 1 ** i ^1 / .!-i " " 15 question, as I've established through this witness, this 16 .work was done by Dr. Gaffey under this witness* direction, 17 and that this report was made by Dr. Gaffey in his own 18 handwriting as tw th results of the report on the results i;,' ^ J p, ; 19 of this Computer Monson Program* I think under those 20 circumstances, all I want this witness to do is to report 21 what those numbers are. 22 MR. CARR* I object to it, that all he wants to 23 do is to have Dr. Gaffey*s table introduced into.evidence, 24 or used without Dr. Gaffey being here and subject to the 1 cross examination as the rules require. 2 THE COURT* Objection is sustained* 3 Q (By Mr. Heineman) .All right. Doctor, one o 4 the items included on Plaintiffs Exhibit 1464-A is an 5 entry for a Mr. John Workman. Do you see that, sir? , 6 A . Yes, sir. 7 Q, Whose date ofdeath was 1971. Do you see that, 8 sir? 9 A Yes, sir* 10 Q And the source ofinformation wasMarcieStrauss 11 A Yes, sir. 12 Q . Do you see that, sir? 13 A Yes, sir. 14 Q Now, this J5ohn`Work,manr is lincl1u\d( ed.-o*n-this 15 exhibit entitled, ^Cancer Deaths of Workers Exposed to TCDD 16 Omitted from Table VO 2ack-Gaffey Report?" correct? <' . ,1 _i t j . i 17 A Yes, sir. 18 Q And it is a fact, is it not,* hat*according to * 19 this exhibit, which was shown to you a couple a days ago, 20 a few days, ago, that the souce of that information was Mar 21 cie Strauss? is that right? 22 A Yes, sir. 23 Q You have -- Do you have Plaintiff*s Exhibit 1463 24 Thank you^ .Let me hand you what*s been previously marked 1 as Plaintiff's Exhibit 1463* Do you remember that documentf 2 sir? 3 A Yes, sir* 4 Q * Mr* Carr went through it with you* or went 5 through portions of it with you, did he not? 6 A Yes, sir* 7 G And he asked you specifically about a certain 8 page which is page four of four, and Attachment II, Homan 9 Numberal II* Do you remember that, sir? 10 A Where was that, sir? I don't remember it. 11 Q Page four of four, Attachment II. 12 A Yes. 13 Q All right*. Tinder'there he asked you 'about the 14 entry for a Mr. John Workman, didrhe not, sir?' 15 A Yes, sir. j- * ' l :1 r 16 Q And this is the same John Workman for which 17 Strauss is listed as the source ,6 f information? 18 A Yes, sir* 19 Q And there is a portion of this record here, 20 there's some writing on this document that's in evidence 21 which Mr* Garr did not ask you to read to the jury. Do 22 you remember that? 23 A Yes, sir* 24 Q would you read it to the jury -- 1 MR* CARR: Would you identify whose writing it 2 is, because this is a work of Strauss, unless this is i 3 Strauss' handwriting oh there, I'll object to it* 4 THE HEINEMAN; Th document is in evidence, Mr* 5 Carr. 6 MR. CARR: Then I withdraw the objection. But 7 I would ask that you identify whose writing it is, Counsel* 8 MR. h e i n e m a n i 1 don't know whether this 9 witness knows whose writing it is* 10 Q (By Mr* Heineman) Do you know whose writing 11 that is there, sir? 12 A No, sir* ^ ^ ' " i ^ 13 j * 1 *f f Q You don't know one way or the other1? 14 A NO. r r- , -, ' 15 Q It might be Marcie Strauss, it might* not be? 16 A , Yes, sir* f : f i' ' ;`' ; 17 MR* CARR: I object to that. That's pure 18 speculation. I ask the jury be Instructed to disregard it# 19 THE COURT: Objection is sustained, the jury 20 is ordered to disregard it. 21 Q (By Mr* Heineman) Now would you read.that 22 statement to the jury, please* 23 A "He shouldn't be counted as exposed because 24 information came from the medical records, not the work 1 2 3 4 5 6 7 8 9 10 11 12 J. 13 14 IS 16 17 18 19 OU 20 21 22' 23 j * 24 history* 11 Q All right* It says he shouldn't be counted as* exposed because the information came from the medical records, not the work history*correct? A Yes, sir* Q Hov/, the Sack-Gaffey Study, sir, was based upon work histories, was it not? A Yes, sir* Q And it was the people whose work histories demonstrated their exposure to the process of manufacturing 2,4,5-T and TCP that were included? A Yes, sir* , ' r,' /*. ' Q So that, .<in; *this Jdocumentk thatr''sy* in' /.evird.ence* the typewritten portion has John Workman listed? 1 A Yes,sir* , -, i` 1 'V H t' Q The handwriten portion says he should not be included? , A , Yes, sir* Q How, sir before I get to that* Let me ask you this, Dr* Roush, if you have two separate studies, and statistically one study does not reveal a certain abnormality, and statistically the other study does not stress that particular abnormality, even though both are looked for, if you put the two together, what would you expect to find? 62 , :Since you*re -adding constant ratios, a certain \ ^ * j-- -v- . , -1 ,y'''1 -' i r percentage in one .study'has cancerand a certain percentage of th, other, that hve1cancer, the percentages will come out to. be about the/same a n d relate .to the two of, them* It won't be strikingiydifferent? v > >^ Lj*. > r ' ^t. 1 v Q ./ 1 /so that if:you put the sets of figures together properly- by adding the .total populations'studied in'eabh* that you shouldn't find enormous changes from one to the '* other/1 should -you?^ J,'.Z L J \'J/ / 7 .;, ' 1/_ /&/; o. As a matter o f .fact/it would be someplace - ' : -v- , : - p i n it ^ ' ' * inhetWwehnV 1/ .' /. ; Q . It would be inbetweeri/the, finding of one and r 1 J - *'**---`t ^ ,' ,1 -- ^ J.L/t* V.(i*- *jt>m^L- ^PLA^-t*,. 'ft /i 11^' I*4* " i* y*'b*' * `the finding of the other?,/ i' ./V< -//* J` 4 A ... That's right* . - (:b h v ri 1 7 L1 0 7 it's like .taking five and four, putting them , together' to make, nine/ divide it by two and you get 'four ^ j and a half? r- T * _v . /.'/ ' / ' * /A,- Yes. . The bnly|problem'Is that "the; populations are. riot egual size, so they: have to be weighted*. '/ . :, Q r . All right/., So thatin an. epidemiological., study* the,, ' 1pop'u*l"ations;th--a'ver-* to *- /b,r,e we_ight-efdit F "T accordi.ng',r"t.' o.sJi'ze/`,^^ya 1,/ according, to age?. .' - ; V . ' : " 7 7 rv . ''. -'A- ^/Yes,;, sir.7 .^' ',*//' ,1 1 .^ ./ . ; Q Those kinds of corrections have toTbe made* . * ;; -F ^ L ' - { . ** ; i * ^ * ' ]] .. A c c o r d i n g t o d a t e o f d e a t h a s w e l l * B u t w h e n y o u d o a l l - , . -2 , o f th o s e c a lc u la t io n s a c c o r d in g t o th e M o n so n .p ro g ra m , th e n 3 w h a t com e's. o u t i s s o m e t h in g t h a t ' s a h y b r i d o f t h e tw o ? v 4 A T h a t's r ig h t . 5 Q B u t i t ' s n o t g o in g to be o u t la n d is h ly g r e a t e r 6 . , t h a n e i t h e r o n e / i s i t ? ` *r . ,v -, . 7' 1 r 8' ; .' th e A R ig h t. The o n ly th in g th a t w i l l happen th e n ht ' ' ' '* * - ' s ig n if ic a n c e o f . i t w i l l be r e la t e d now to th e new is : 9 la r g e r d e n o m in a to r, so th e s ig n if ic a n c e w i l l ch an g e b e ca u se O o f t h e l a r g e r n u m b e r i r i t h e ; d e r t o m ir i t o r i ^ T h a t | $ / t h e r e a s o n r * * r* r . <; t ** * \ - * iF ' \ v - 1 \ >v 4 - 1i ' Jjh "th d e n o m in a to r i s so im p o rta n t/ I t ' s th e re a s o n 'y o u c a n ' t 12 ' 13 , jix s t . ta k e "p art .> " Q .S o o f i t a n d a d d j i t . i ' ; ' '' ,* .i : - . ; `-J 1ri` .. ' v ' t ! , ! ; L- < , . th e la r g e r d e n o m in a to r may c r e a t e so m e th in g . .14 * ,, t h a t i s s t a t i s t i c a l l y s i g n i f i c a n ' t 1- t h a t , w a s n ' t i b e f o r e ? fi N *cOue . j so*O ^ 1 2. U 1a o o1sZ4,r r ` J 1-5 t . 16 ' 17 18 ' 19 2' 0 .21 22 23 r 24. A T h a t's r ig h t. . _ - Q ' .A nd i t m ay c r e a t e s o m e t h in g ,n o t t o ' b e s t a t i s t i c a l ly s ig n if ic a n t th a t w as b e fo re ? - J; - A \ 1Y e s , s i r * J . j. Q So th e la r g e r num bers ch an g e s t a t i s t i c a l l y , th e : fin d in g s o f'e a c h one se p a ra te ly ? ^ A ,* Q T h a t's r ig h t ; t< 'B u t h o t g r e a tly ? r * i A N o * - N o . I t d e p e n d s o n how f a r t h e y ' r e a p a r t b e c a u s e a / la r g e r o n e w i l l te n d .to m a k e th e n u m b ers com e up 64 BATNNE, K.J 1 r2 3 4 5 6 .1 ,, 8 9^ . 10 11 12 ' 13 14 ' 15 16 17 is 19 20 21 22 23 24 V 1 -t ' %; . ij 1Jt closer to. the larger-one. , , ^ . *'-J -1 * CT , All rights ..But it's hot going to be outside th range of either one? \t sr `k **A No, sir. - J" ... Q It*s going to be somewhere inbetween them? A- Right. : y> i * ` J p^ ^ * Q Now,1 sir> .do you haveJExhibit 1483: there?. 1 I'm sorry, here it"is right her. Exhibit 1483 is in evidence there, sir,* is it,-not? '{{< - , ^ A What do you mean in .evidence?- /.Y- v. not? Wellll//iitt has been admitted intor;.evidence, has iit ',-L\ ',? *> ,-V Y'.\ *i - ^ :v >-i' '*.* ' '.'i.1 y y "j.- * . 1 THE COURT; T t h p k 'it Kasr*;;< ' " Y Y .v Qr / (By Mr. Heineman) You may not know that, Dr. Roush, but I think/it has occurred,. Now I*d like to direct your',attention to page 39, I think it is, of that exxhbitv ;: THE COURT It has been admitted into evidence* MR. HEINEMAN; Thank you, Judge* .-'Would, you mark that'please* r. ,^ \> 1 y (Defendant' Monsanto Exhibit 9T2 was marked ..'for identification by the court reporter.) ' 1i`- * , r,, ,, ' j , * -i'' - . * >' Q \ (By Mr*1.Heineiaan) Sir* let me-hand you what's BAYONNE. N.J, .65 1 been marked for identification purposes as Defendant's 2 Exhibit Number 912. Is that an accurate copy of page 30 of 3 Exhibit 1483? 4 A Yes, sir. 5 MR. HEINEMAN] Your Honor, may I pass copies of 6 Exhibit 912 to the jury? 7 THE COURTi Yes, you may. 8 MR. CARR* No objection, your Honor. 9 Q (By Mr. Heineman) Now do you remember, sir, IO Mr. Carr discussing with you the subject of the relationship 11 statistically between 2,4,5,-T exposure and the extent to 12 which PAB caused bladder cancer in the Nitro population? 13 A Yes, sir. 14 Q Do you remember that, sir? 15 A Yes, sir. 16 Q Now there was no doubt, was there, sir, that 17 Monsanto was aware that exposure to PAB, which stands for -- 18 A Para-aminobiphenyl. 19 Q Para-arainobiphenyl? 20 A Right. 21 Q That had been manufactured at theNNitro Plant 22 up until like 1955? 23 A Yes, sir. 24 Q Was found to be a bladder carcinogen, and was no - * . ' t.1 * 1 ' ' 1 lo n g e r'm a n u fa c tu re d 'a fte r t h a t - d a te . , 2' 3 4 A . 7i 111 Y e s , %. s i r . / ' ' , " /' . ' - * "- V "Q And M onsanto in s t it u t e d a program o f m o n ito rin g - * ,,- i t h o s e p e o p le t h a t ' h a d b e e n 'e x p o s e d t o P A B ? l-\ 5 A ; Y es, s ir . ` 6 Q \ A n d i n d e e d jSo m e o f t h o s e p e o p l e w e r e i n c l u d e d 1, H kj i ,9 10 11 12 in th e K it r o M o rb id ity S tu d y ? - * .V "* : - i \ \ r ; / A . Y e s , s i r * `i i - v a ,/-/, #*,-*' " .* ' '` ' Q Ln ^i y \. > A nd som e o f t h e f in d in g s w it h r e s p e c t t o them ' '* 1 - /'' iC . , ,V .r 1 ; \ w e r e s e t *o u t h e r e i n E x h i b i t s 9;-r - w h h t . i s - i t 9 1 2 ? .. \ / <>'."*1 I- * / - TM - i t i . ^ ^A , ' 9 1 2 -' - ; / . 1V' ^ " VJ. '' . \i i i; iV. f A, '- *,. -i^3 i'>>1r~( l' 1- % l J .' 1 Q . - . 9 1 2 * I s t h a t 1 r i g h t v s i r ? ' : - -- ^ ^ / ., ' *. J 13 ' . A J` - Y e s , s i r * ; ' - -1 , *, - 14 , " - " N o w ,.M r* C a r r s u g g e s te d t * y o u , d id h e . n o t -- - 15/ w e l l , f i r s t o f a l l ^ w h e n y o u l o o k a t t h e p e o p l e t h a t w e r e / o n i . w a o j : io o o t `n '3 h n o *fl 16 , 17 e x p o s e d h e r e\ , t ho s Je ^ a c r o, s s th e j t o p, * t h o s e ** w o r d s . a c r o s s t h e 1 top, r e f e r ; to e x p o su re to 2 ,4 ,5 - T ; c o r r e c t ? ^. 18 , 1 -A Y e s, s ir,. ^ - 19/ G .S o t h a t . t h e c o l u m n o h t h l e f t a r e . t h o s e w h o 20 `* 21 22 \ w e re n o t ex p o sed * t o 2 , 4 , 5 - 5 a n d th e* m id d le c o lu m n is^ t h o s e who w e re , .a n d t h e r ig h t - h a n d co lum n i s j `vf *** , >, S' , a b le exp o su re to 2 ,4 ,5 - T ; c o r r e c t? th o se w ith .* ' -q u e stio n - 23 . A - Y e s , s i r * v. 24 . Q And th en th o se who' had been ex p o sed , to p a r a - : \1 i ,. ^ , j _' J~ r m '^i*. r .1 J- . *r *' 67 I aminobiphenyl are distributed among those three columns; 2 correct? 3 A Yes, sir* 4 Q And those among the persons that had exposure 5 to para-aminobiphenyl who had bladder tumors, or bladder 6 cancer, those are also distributed among those columns; i 7 correct? f 1 ' \ <5; ,"*,i / . 8 A Yes, sir* 9 Q So that -- and these re by history rather than !i . */r , . ^ , 10 examination, according to this document? .t 11 A It had to be -by history*. 12 Q I'm sorry? 13 A It had to be by histojcy and not by examination, 14 Q All right* So what is the difference between a 15 bladder tumor and a bladder cancer? 16 A A tumor is any cancer or both growths that can 17 happen anyplace in the body, and the difference between a I 18 tumor and a cancer is the tumor ist a benign tumor by this 19 definition, and because they're separated the bladder cancer ii 20 is one that's a malignancy. One is a growth and the other 21 one is a growth that's a malignancy, 22 Q . What this was was differentiating between the i 23 two? \ 24 A Yes iI- 1 .i 1 Q < Those which were benign tumors and those which 2, ,were.malignant cancers? . 3 A : Yes* sir.. 4 Q, \A11 right. -Now,. Mr. Carr, when questioning: 5 you, showed you these percent numbers. Do'you remember 6 that# sir? - fj :i ' , i *! f ,^, * -, i:"? i?:vyt 7 ./'J ' L A Yes* sir. -j <*J ,>.rV *' :Vi- ` ^,i `, .\V.'y 1 VVy \ ' ': , V^ 8 "' J. " Q .-- And " ** . rt he.sai.div>tt _hat- '.wrth* r*e\ 6. 1 i .'pe, \jrc11e*-n,7t. :',vwa,s;'L',, l-e..ss -than .9 one percent? correct? , 10 A. ' Yes/ sir. . i i'i / ,*':',. t > : i , ' ' j : i . r L- : 11 Q r . On the.bladder tumors and bladder cancers? 12 ..A Yes, sir.' 13 0 ri ' But th 3.43 percent or the. bladder tumors was 14 .many times larger than \the .61,., k think he said it was 15- seven times larger? correct? , PENGAD CO.. BAVOMNE. M.J. 07001 FORK l l.r. l< B 16 , , A ' Six.times larger, 17 Q - And that would be acrate if you looked just 8 at those percentage numbers, wouldn't it,.sir? 19 A > Yes, sir. J 20 Q\ And he relied on thos^ numbers to lead to the ' 21 conclusion that "those who were exposed had more bladder 22 tumors, those were exposed to.2,4r5-T and par-aminobiphenyl 23 had more bladder .tumors' than those who were exposed' only to 24' para-aminobiphenyr and not the 2,^,5-T; correct? - 69 rtf j vif t, I 2. 3 4 , ,5 6 -J 7 8 -' 9 10 . L 11 12' J 13 14 15 16 17 IS 19 20 21 22 23 24 A r ` Yes,Lsir,. v ^ Q But as a; matter' of fa|ctr Doctor, those percentag^>S that are being looked at there arje the percentages that those numbers bear to-the little 'n' up here; "isn't .that . right? A . Yes, sir. ./' 1{ , ^ 7J->j f * ii!:.i U- ' XV Q r Okay. New tfoat//iitftler.;'n '/number up" there ; refers to the total number of people exposedVo* the total ; numberofpeople unexposed in the /Suskind Morblty Study, doesn't it? ' . . > -, - ,A - Yes, "sir./ L , *. Q Doesn't refer to the number of people exposed to para^aminobipheriyl,-does it? A .No, sir.' * ' Q So those numbers are hot percentages of 8 , or ' 71, or 16,/they're percentages of ,163, 204 and 51?. A . Yes,, sir. ; Q/., Aren' t/they? A; / Yes, sir, Q ,,/j' So that if you want-tb look, sir,-at how many people actually got bladder tumors or -bladder cancer, of those who were .exposed to para-aminobiphenyl^ .tas compared to those that were^exposed of those which ones also had , exposure to 2,4,5-T,. you just look at the numbers that are 70 PENG AD CO.. BAYONNE, N,J, 0 7002' FORM IL 24 B l* 1 at the top of those columns, don't you? 2 A Yes, sir. 3 Q So that of those who were not exposed to 2,4,5-T 4 eight had para-aminobiphenyl exposure; right? , , * t / 5 A Yes, sir. * -* . 6 Q And of those, two had either a tumor or cancer; 7 correct? 8 A Yes, sir. 9 Q So that would be two out of eight, or 25 percent! 10 correct,sir? 11 ,A Yes, sir. 12 Q So that the rate of those who were exposed to 13 both para-aminobiphenyl and 2,4,5-T that got one of these 14 cancers or tumors was 25 percent? Sxcuse me, I did that 15 wrong, didn't I? 16 'A Yes, you.did. 17 Q It's the other way around. The rate of those 18 who were exposed only to para-aminobiphenyl and not exposed 19 to 2,4,5-T is 25 percent; correct? 20 A Yes, sir. 21 Q Well, let's look at the next column. Thosej 22 who were exposed to both is 71; correct? 23 A Yes, sir. 24 Q - And of those 9 people had either a tumor or a BAYONNE, N.J -,5 ' ,6 i 7 '8. 9 10 . 11 12 13' 14 15. 16 17 18 19 20 21 22 . 23 .. 24 ti a cancer -'of* the bladdery correct? J -A " /, Yes,, sir*.';' * / \ Q . And it's 9 out of 71^ os about twelve and a -, " half percent? . _ rp Vi i '\ *5 -/ r*. V' > ' ' I KS. -- -I . \\ f* '1 L i * * : ;*,,<? /.V -* v>: - ..A r. That's right* ;\ "i Q - Correct? - A .. Yes/ sir, t,`k^ i* 'A Q - S o that there is less bladder-cancer among the people who were also exposed to 2 ,4,5-T than-there is among- , r; * '- ` V "'.J Hj* the people who are .only exposed to para-aminobiphenyl? correjct? A .^ - Yes, siri r J. Q And, indeed,'those with questionable exposure are two out of 16, one out of 8 , about twelve and a half percent .,,again? -/ -' . 'A ' Yes,- sir.- Q J, And there as well, there's less people who have questionable exposure to 2,4,5-T and para-aminobiphenyl exposure than those/who have exposure to para-aminobiphenyl alone? \\ /1 A Yes, sir, v - ', ' .Q / Correct? , As a matter of fact, -this document - proves just the oppositeof.what Mr. Carr asked ;you^about doesn't it,' sir? f r " . .. ,, ;7 : 1- A Yes, sir., 72 - ' v; ,M . -Q " if there were any'conclusion to be raised from -this table along,, it would be ' . MR* CARR: :Yqur`\HonorV I; object/.to, (that. ^ " j ' . / \;: " ;/f 5 ;. ,J; . q` - (By J Mr; - i ^ ; t Heihemanj' vvit-would*i s""1 r * i T '! ; 'v .. .1 'j '"-i ,, > v be*"that dioxin* protects ycni. "' *X;1; /v {V J;-; ri ' u ': ' , , ^ '* *'J , '/_ '^ t^rV- iV'-, . 'r ' 'THE COURTi An objection is being" made, I believe. '.; MR. CARRs -I do; object1;to the deadihg cross examination form of the. question* I ask that the witness t\ *K* .j ' ' ' J make conclusions rather than* Counsel* ; > THE COURTS Objection; is sustained* ; - .^ '--T 1 -r ^^ \ . \ MR. HEINEMAN; .This would be "a good time,"Judge, . 1 if you want to break for. lunch. V ,,t h e COURTS; Fine* I believe we* re breaking for - the day*'... r ^ ^ t, - MR.. HEINEMAl'J: I beg your pardon? ; ;. ^ : THE COURT: ' This is ;it for the day> t X believe. r ' ,f . ,. MR. HBlNEMANs Oh, that's right. Okay. THE COURT* ..Okay. Ladies and gentlemen, we will break for the day at- this point in *time, as I told you before we were going to do.\ We'll start again tomorrow morning at 9;00. I would remindyou that you1re not to . read, listen *to or watch anything about this case," in, V ; particular,, or subject matter^inLgeneral in.any of the media We'll see you tomorrow-rooming ait nine. Thank,youfor your 73 1 attention and cooperation* Court is adjourned 2 3 (Court adjourned^ 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 STATE OF ILLINOIS 2 TWENTIETH JUDICIAL CIRCUIT 3 COUNTY OF ST. CLAIR ' 4 5 I, Kathleen Watson Brunsmann, one of the 6 Official Court Reporters, do he;re'by cver;tify that'i the 7 foregoing transcript is a true and correct copy of said 8 transcript. 9 10 DATED: July 29, 1985. 11 12 13 Kathleen Watson Brunsmann, CSR, RPR Official Court Reporter 14 15 16 17 18 19 20 21 22 23 24 I STATE OF ILLINOIS 2 TWENTIETH JUDICIAL CIRCUIT ) SS 3 .COUNTY OF ST. CLAIR ;) '-, .^ 4 If RICHARD GOLDENHERSH, Circuit'Judge, do 5 6 hereby certify that the foregoing transcript is a true and 7 correct copy of said transcript. 8 DATED; July 29, 1985. 9 10 11 12 RICHARD GOLDENHERSH, Circuit Judge 13 14 15 16 17 18 19 20 21 22 23 24