Document ZnEyXagG5RE2G3E3ZxxK3d71d

P'l ^'o Q J B)ji l)m g IU THE CIRCUIT COURT OF THE COUNTY OF ST. LOUIS STATE- OF MISSOURI MONSANTO COMPANY, Plaintiff, vs. GOULD ELECTRONICS, INC., ) ) ) ) Cause No. 649249 ) Defendant. DEPOSITION OF THOMAS MICHAEL BISTLINE On behalf of Defendant August 14, 1996 GATEWAY REPORTING ASSOCIATES, INC. 515 Olive Street, Suite 1506 St. Louis, MO 63101 (314) 621-2571 WATER PCB-SD0000043077 2 IN THE CIRCUIT COURT OF THE COUNTY OF ST. LOUIS STATE OF MISSOURI MONSANTO COMPANY, vs. Plaintiff, ) ) Cause No. 649249 GOULD ELECTRONICS, INC., Defendant. ) DEPOSITION OF THOMAS MICHAEL BISTLINE, produced, sworn and examined on behalf of the Defendant, August 14, 1996, between the hours of eight o'clock in the forenoon and five o'clock in the afternoon of that day, at the offices of Husch & Eppenberger, 100 North Broadway, St. Louis, MO, before PEGGY A. DEAN, a Certified Court Reporter and a Notary Public within and for the State of Missouri. APPEARANCES The Plaintiff was represented by Mr. Thomas M. Carney of the law firm of Husch & Eppenberger, 100 North Broadway, St. Louis, MO 63102. The Defendant was represented by Mr. James Harfst of the law firm of Brown & James, 705 Olive, St. Louis, MO 63101. WATER PCB-SD0000043078 3 1 2 IT IS HEREBY STIPULATED AND AGREED by and 3 between counsel for the plaintiff and counsel for the 4 defendant, that this deposition may be taken in 5 shorthand by PEGGY A. DEAN, a Certified Court Reporter 6 and Notary Public, and afterwards transcribed into 7 typewriting, and the deposition is to be read and signed 8 by the witness. 9 o-O-o 10 THOMAS MICHAEL BISTLINE 11 of lawful age, being produced, sworn, and examined on 12 the part of the Defendant, deposes and says; 13 DIRECT EXAMINATION 14 QUESTIONS BY MR. HARFST: 15 Q. Sir, we were introduced before the 16 deposition. My name's Jim Harfst. I represent the 17 defendant in this litigation. 18 Could you please state your name for the 19 record? 20 A. Yes. My name is Thomas Michael Bistline. 21 Q. B-i-s-t-l-i-n-e? 22 A. That's correct. 23 Q. What is your current address? 24 A. 15182 Isleview, one word, I-s-l-e-v-i-e-w 25 in Chesterfield. WATER PCB-SD0000043079 4 1 Q. That's in Missouri? 2 A, Yes. 3 Q. St. Louis County? 4 A. 63017. 5 Q. What is your birth date? 6 A. November 5, 1948. 7 Q. And are you currently employed? 8 A. Yes, I am. 9 Q. By what company? 10 A. Monsanto Company. 11 Q. 12 Company? What is your position with Monsanto 13 A. I'm Assistant General Counsel - Litigation 14 at Monsanto 15 Q. In general could you tell me what the 16 general duties of the Assistant General Counsel - 17 Litigation is at Monsanto? 18 A. Yes. In general I am responsible for 19 supervising the defense of Monsanto's obligations 20 pending around the country. I have certainly 21 administrative duties in the Law Department as a result 22 of my advanced age. 23 Q. Is there only one Assistant General Counsel 24 in litigation? 25 A. In litigation, yes, only one. WATER PCB-SD0000043080 5 1 Q. How many assistant general counsel are 2 there for Monsanto Company? 3 A. Four. 4 Q. And I assume that your immediate 5 supervisor's the General Counsel. 6 A. No. Monsanto does not have a general 7 counsel at present. 8 Q. Who is your immediate supervisor? 9 A. My immediate supervisor is Richard Kleine, 10 K-l-e-i-n-e, also an Associate General Counsel and head 11 of the St. Louis law group. 12 Q. How many associate general counsel are 13 there for Monsanto? 14 A. I believe there are three. 15 Q. And do they all work in St. Louis? 16 A. No. 17 Q. They're spread around the world? 18 A. No. Two work in St. Louis and one in 19 Chicago. 20 Q. And are associate general counsels ahead in 21 the organizational chart of assistant counsels? 22 A. Yes. 23 Q. Is there a reason that there is no General ' 24 Counsel at present? 25 A. I assume the reason is because they haven't WATER PCB-SD0000043081 6 1 found the person who is right for the job. 2 Q* 3 counsel? So there is an opening for a general 4 A. Yes. 5 Q. And as far as you know, that position will 6 be filled? 7 A. As far as I know yes. 8 Q. How long have you been Assistant General 9 Counsel at Monsanto? 10 A. About six years. 11 Q. And what was your position before that? 12 A. Before that my position was Litigation 13 Counsel. 14 Q. Also at Monsanto? 15 A. Yes, at Monsanto. 16 Q. How long were you Litigation Counsel at 17 Monsanto? 18 A. What was it -- four years. 19 Q. And what was your position before you 20 became Litigation Counsel? 21 A. Assistant Litigation Counsel. 22 Q. Also at Monsanto? 23 A. Also at Monsanto. 24 Q. 25 Counsel? How long were you Assistant Litigation WATER PCB-SD0000043082 7 1 A. Three years. 2 Q. What was your position before you were 3 Assistant Litigation Counsel? 4 A. Litigation Attorney. 5 Q. How long -- was that also at Monsanto? 6 A. Also at Monsanto. 7 Q. How long were you a litigation attorney? 8 At Monsanto? 9 A. A year approximately. 10 Q. Was that your first position of employment 11 with Monsanto? 12 A. Yes, it was. 13 Q. Where were you employed prior to going go 14 Monsanto? 15 A. Prior to Monsanto, I was an associate at 16 the New York law firm of Simpson, Thatcher and Bartlett. 17 Q. 18 Bartlett? How long were you at Simpson, Thatcher and 19 A. From my graduation from law school in 1974 20 until December of 1981, with the exception of one three- 21 month period when I was associated with a small firm in 22 New Jersey. 23 Q. Are you a member of the bar of any states? 24 A. Yes. 25 Q. What states? WATER PCB-SD0000043083 8 1 A. The New York and Missouri. 2 Q. Any other states? 3 A. No. 4 Q. What law school did you graduate from? 5 A. Columbia University School of Law in New 6 York City. 7 Q. And what college did you graduate from 8 prior to law school? 9 A. Columbia College. Also in New York. 10 Q. Was Monsanto Company a client of Smith 11 Thatcher? 12 A. Simpson Thatcher, 13 Q. Excuse me. 14 A. No, it was not. 15 Q. Do you presently have any financial 16 interest in Monsanto Company? 17 A. I'm an employee. I'm a shareholder. I 18 have a small number of shares of common stock. And the 19 company has a 401-K plan. I'm an investor in that. I 20 have certain accrued pension rights. 21 Q. I'm going to be asking you a few questions 22 today. 23 (Whereupon, an off the record discussion was held.) 24 Q. As I started to say, I'm going to be asking 25 you a few questions about a lawsuit filed here in St. WATER PCB-SD0000043084 9 Louis titled Monsanto versus Gould. Are you familiar with that case? A. Yes, I am. Q. If at any time during this deposition I ask a question and you don't understand my question or don't hear me, would you agree to let me know that? A. Certainly. Q. So if you answer a question, I'11 assume that you understood my question and have heard my question. Is that okay? A. Fine. Q. What is a PCB? A. PCB is an acronym for a classification or group of compounds known as polychlorinated biphenyls. Q. Are PCB's manufactured by Monsanto Company? A. They are not now. Q. Were they manufactured by Monsanto Company? A. Yes, they were. Q. Was Monsanto the only domestic producer of those chemicals? A. I'm not sure the only domestic. We are certainly by far the largest. Q. How many times has Monsanto been sued for alleged personal injuries or illness resulting from alleged exposure to PCB's? WATER PCB-SD0000043085 10 1 A. Not sure I know the exact number. 2 Q. According to the interrogatory answers 3 filed in this case in July of 1996 there were 452 4 separate cases. Does that sound about right? 5 A. That sounds about right. 6 Q. Do you know if there have been any 7 additional lawsuits filed under those circumstances 8 since July of 1996? 9 A. Since July of 1996? 10 Q. Yes. 11 A. No. We have not gotten any new PCB 12 lawsuits since then. 13 Q. Do you remember when the first PCB lawsuit 14 was filed against Monsanto? 15 A. I'm not sure when the first one was. I am 16 familiar with cases filed since 1971. 17 Q. Which is when you actually -- you began 18 employment in 1981 at Monsanto? 19 A. '81, yes. 20 Q. Were therePCB cases pendingagainst 21 Monsanto at the time you started at Monsanto? 22 A. Yes. 23 Q. Do you have any estimate as to how many 24 times Monsanto has been sued for PCB's prior to April of 25 '88? WATER PCB-SD0000043086 11 1 A. Before April of 1988 I really couldn't give 2 you a number offhand. 3 Q. Do you know if it would be in the hundreds? 4 A. Would be in the hundreds, but two or three 5 hundred, I couldn't tell you. 6 Q. By 1988 had Monsanto developed an internal 7 plan or procedure for reacting to the filing of a PCB 8 case? 9 A. Yes. 10 Q. Could you describe that reaction procedure 11 for me? 12 A. Well, it's similar to the reaction or 13 procedure that we follow in most cases that are filed 14 against Monsanto. 15 Typically a lawsuit is served either direct 16 on the company or its registered agent, which is the CT 17 Service. And I think we have CT as our agent for 18 service of process in most states. I'm not sure all but 19 in most. 20 If process is served on CT or directly on 21 the company, it comes to me and I make a decision as to 22 who, what lawyer at Monsanto will supervise the case. 23 And in many instances I also make a decision as to who 24 will represent the company in those cases. 25 In appropriate circumstances I send a WATER PCB-SD0000043087 12 1 letter to Monsanto's insurance carriers to advise them 2 of the filing and pending of a lawsuit and to let the 3 insurance companies know which Monsanto attorney will be 4 their contact and who outside counsel will be. 5 And at that point then the further handling 6 of the case becomes the responsibility of the in-house 7 attorney at Monsanto. 8 Q. I'm referring to April of 1988 because that 9 involves a lawsuit that was filed in Louisiana, or a 10 series of lawsuits filed in Louisiana. 11 Would service have been directed to you in 12 1988 to serve this role of deciding who at Monsanto it 13 would be assigned to? 14 A. Yes. 15 Q. So you were in your position as Assistant 16 General Counsel in 1988? 17 A. No. I think at that point I was Litigation 18 Counsel. 19 Q. But this process was still the same, that 20 all lawsuits filed against Monsanto were directed 21 through you? 22 A. That's correct. I've had that 23 responsibility since about July of '84. 24 Q. How large an in-house counsel department 25 does Monsanto maintain? WATER PCB-SD0000043088 13 1 A. At the present time, counting patent 2 lawyers but not counting tax lawyers, I think we have 3 about 40 lawyers, 45, somewhere in that vicinity. 4 Q. Are all of those lawyers based here in St. 5 Louis? 6 A. No. 7 Q. Arethey spread evenly throughout the 8 country or in a couple of different places? 9 A. They are mostly here in St. Louis. We have 10 a smaller group in Chicago. I believe we have one or 11 two lawyers in Massachusetts. Let me take that back. 12 I'm not sure whether we still have them or not. But 13 then we have also a group of lawyers in Brussels. 14 Q. In 1988 was it about the same size legal 15 department? 16 A. No. It was quite a bit bigger in '88. 17 Q. Do you have an estimate as to how much 18 bigger? 19 A. In that time period we probably had about 20 130 lawyers. 21 Q. Any reason for the cut back in the number 22 of lawyers since '88? 23 A. We within the last 18 months did a 24 reevaluation of the law department, redesign I think is 25 the word the consultants used. And as a result of that WATER PCB-SD0000043089 14 1 redesign effort the number of lawyers was reduced and 2 certain functions were outsourced. 3 Q. That's just been within 1996. Correct? 4 A. Actually it started in 1995. 5 Q. So up until 1995 did Monsanto maintain the 6 legal department of 130 approximately? 7 A. Somewhere in that vicinity, yes. 8 Q. How did you select which in-house lawyer to 9 assign a particular case to back in 1988? 10 A. It would depend on the subject matter of 11 the lawsuit. 12 Q. Were lawyers in house at Monsanto given 13 specific areas which they covered? 14 A. Yes. 15 Q. Would one lawyer or more than one in-house 16 lawyer be assigned to PCB cases? 17 A. Talking 1988? 18 Q. 1988? 19 A. There were two. 20 Q. Remember who thoseindividuals were? 21 A. I was one of them. And in 1988 I believe 22 Mr. Paul V-e-n-k-e-r Venker was also with the law 23 department and responsible for helping with PCB cases. 24 Q. In addition to assigning outcases in 1988 25 you maintained some of the cases yourself? WATER PCB-SD0000043090 15 1 A. Oh, yes. 2 Q. In 1988 approximately how many cases did 3 you maintain for yourself in addition to billing out 4 cases to other attorneys at Monsanto? 5 A. I probably had between 100 and 150 cases 6 that I was personally responsible for. 7 Q. How did you decide whether to give a case 8 to yourself or to give it to Mr. Venker at that time? 9 A. It depended in part on where the case was. 10 And also on how busy I was at the time. 11 Q. Was it based more on case load than on the 12 size of the case? 13 A. Yes. 14 Q. How did you decide after selecting an 15 in-house person for Monsanto what outside firm to 16 involve in a particular lawsuit? 17 A. Again, that would depend upon where the 18 case was filed. Many of our cases are related to 19 matters that are already pending in a particular 20 jurisdiction or nearby, and where possible we tried not 21 to have to re-invent the wheel by having counsel in that 22 region be the people we would go to for cases in that 23 region. 24 Q. Regarding PCB's, had Monsanto retained 25 counsel in several different regions of the country back WATER PCB-SD0000043091 16 1 in 1988? 2 A. Yes. 3 Q. Were there specific regions? Did you 4.. divide the country into two or three specific regions or 5 was it just whatever region a lawsuit happened to be 6 filed in? 7 A. I'm not sure I understand. 8 Q. What I'm getting at is, did Monsanto 9 maintain a western United States firm that coordinated 10 many different cities, or did you hire a firm in San 11 Francisco to handle all of the cases that were within 12 San Francisco's area? 13 A. Okay. There was no rigid division of the 14 country into specified areas, because we didn't have 15 cases in every state or every part of the country at all 16 times. 17 Specifically in terms of PCB organization, 18 we have had since the '70s national coordinating 19 counsel. And then depending upon where cases were 20 filed, we would attempt to locate the best trial lawyer 21 available in a fairly broad area of the country, 22 recognizing that sometimes the areas would be pretty 23 small if there were quite a few cases in that area, or 24 on the other hand the area might be quite large if there 25 were fewer cases. WATER PCB-SD0000043092 17 Q. Did you have one individual or firm serving as national coordinating counsel in 1988? A. Yes. Q. Who was that? A The firm is -- I can't recall whether this was their name in 1988. It's currently Smith, Helms, Mullis, M-u-l-l-i-s and Moore. And Mr. David Moore of that firm has acted as our coordinating counsel for, well, since I've been at Monsanto. Q. That firm's located in Greensboro, North Carolina. Correct? A. Correct. Q. So when a new PCB case would come in in 1988, you would determine whether to put it on your work load or to assign it to Mr. Venker, and then you would automatically assign it to Smith, Helms, Mullis and Mr. Moore as national coordinating counsel for PCB's? A. It wasn't an assignment. They assisted us with all PCB cases. They had certain functions that was their duty to perform, and in all of the cases. Q. So after you made the determination as to who to assign the case to and how, is that when you contacted Smith Helms? A. That was all going on pretty much at the same time, yes. WATER PCB-SD0000043093 18 1 Q. What responsibilities did Smith Helms have 2 regarding a new PCB case that was filed against 3 Monsanto? 4 A. I had contact with David Moore principally 5 on the hiring of outside counsel to try the case. We 6 would, Mr. Moore and I generally would discuss the kind 7 of case, where it was located, the allegations made to 8 determine what kind of firm and counsel we thought would 9 be best equipped to handle it. 10 I mean, if you have one plaintiff, it's a 11 different kind of a case than if you have 120 12 plaintiffs. And we needed to make assessment of the 13 kind of staffing we thought the case needed. 14 In general the Smith Helms firm is 15 responsible for coordinating responses to discovery, 16 they maintain the comprehensive case files. I also do 17 but they act, I guess generally I would say as the name 18 implies, coordinating effort of Monsanto's trial counsel 19 across the country in PCB cases. 20 Q. How did you select Smith Helms to become 21 the coordinating counsel in PCB litigation? 22 A. I didn't select them. 23 Q. Do you know how they were selected? 24 A. Yes. In, I think it was about 1975, maybe 25 '76, the Travelers Insurance Company was our primary WATER PCB-SD0000043094 19 1 insurer. And in that time period there were enough PCB 2 claims and cases pending that it was Travelers' opinion 3 that coordinating counsel was required to make sure that 4 the company's responses were consistent and truthful in 5 all regards in PCB cases. 6 I don't know how many cases there were 7 pending at that point. I do know at that time period 8 the Monsanto Law Department did not have significant 9 litigation expertise, so that the litigation know how 10 had to come from outside. And Mr. Moore and his firm 11 were selected to be coordinating counsel. 12 Q. Do you know specifically why Mr. Moore's 13 firm was selected over another firm somewhere else in 14 the country? 15 A. Yes. I'm told that Mr. Moore's firm 16 defended Monsanto in a couple of PCB cases that were 17 brought in the 1971-72 time period in North Carolina, 18 that as a result of defending Monsanto in those cases 19 the Smith Helms firm and Mr. Moore in particular 20 acquired a great deal of knowledge about Monsanto's 21 manufacture of PCB's, the uses of that product and the 22 medical and scientific literature that was there at that 23 time. 24 It made sense to go to them. Also, they 25 happen to be excellent lawyers. It simply made sense to WATER PCB-SD0000043095 20 1 go to them and ask them to take on this duty of 2 coordinating counsel. 3 Q. When -- I'm talking back in the 1980's, 4 1988 now -- when you assigned a case to -- strike that. 5 When you contacted Smith Helms and 6 discussed who to retain in the area to represent 7 Monsanto in a particular case and you came to that 8 determination, was it you that contacted the firm in the 9 particular location where that case was or was it 10 Mr. Moore? 11 A. As a matter of first contact it would 12 probably be me. But shortly thereafter, particularly if 13 it were a new firm -- by new I mean new to Monsanto PCB 14 litigation -- we would arrange for a meeting with our 15 counsel and myself and Mr. Moore. 16 Q. At the time you first contacted a new firm, 17 did you give them any instructions as to how to handle 18 the billing on the file? 19 A. We had a letter that we circulated to 20 outside counsel at that time. 21 Q. Would this have been a form letter that 22 went to each new firm? 23 A. Yes. It would be addressed to the specific 24 lawyer, but the contents of the letter, it was a form 25 letter in that regard. WATER PCB-SD0000043096 21 1 Q. So the billing procedures would be the same 2 across the country for Monsanto PCB cases? 3 A. Yes. 4 Q. I assume that the rates that might be 5 billed at different regions in the country would be 6 different. Is that correct? 7 A. That's correct. 8 Q. But the procedures as to how to pay that 9 and how to bill would be the same. Correct? 10 A. Approximately the same. Imean,there were 11 variations among firms. But in general we required a 12 bill to be in a certain kind of format and descriptive 13 as to the work being done and the hours charged. 14 Q. When you decided on a new firm to handle a .15 particular case and you initially contacted them, did 16 you discuss fees with them in that initial phone call? 17 A. It would have been either in that phone 18 call or in the initial meeting we had when we were 19 discussing PCB cases with new counsel. 20 Q. Did you negotiate fees with these firms? 21 A. On occasion. 22 Q. Did you have any parameters within which 23 you would allow a firm to bill? 24 A. Our standard was that we were to receive at 25 most the hourly charge which that firm charged its WATER PCB-SD0000043097 22 1 corporate clients. We wouldn't pay a premium over their 2 standard hourly rate, although we were always happy to 3 accept a reduction. 4. Q. Do you know how often in PCB cases you were 5 given reductions in standard hourly rates? 6 A. Fairly frequently. 7 Q. Did you maintain a litigation budget for 8 each individual case that came in? 9 A. No. 10 Q. Did you maintain a litigation budget for 11 PCB cases in the 1980s? 12 A. In the sense of budgeting for in-house 13 expenses, yes. Outside counsel expenses were not 14 budgeted in that sense. 15 Rather case activity was monitored by me 16 and by Mr. Moore as well -- and Mr. Venker when he was 17 there -- on almost a daily basis for our significant 18 cases. And counsel's efforts were closely scrutinized, 19 and major projects were undertaken only with approval of 20 either me or Mr. Venker at that time. And we kept " 21 control of our expenses in that fashion. 22 But a formal case budget, we really didn't 23 have anything like that. 24 Q. Have you done any formal case budgets in 25 other areas? WATER PCB-SD0000043098 23 1 A. Occasionally. It's not a standard practice 2 with our litigation department. 3 Q. Is there a reason why you don't want to do 4 that? 5 A. I think a lot of it is a matter of personal 6 style. It's always been my opinion that expenses and 7 outcomes of cases are better managed with a lot of 8 personal involvement with counsel. If you know what's 9 going on and assessing what needs to be done in a case, 10 expenses will not be excessive. 11 Q. When you hired a new firm somewhere in the 12 country, were they to report directly to you on cases or 13 were they supposed to report to Mr. Moore or both? 14 A. If it was a case that I was personally 15 handling? 16 Q. Yes. 17 A. The instruction would be to report to me 18 and either to Mr. Moore or perhaps one of the other 19 lawyers at Smith Helms who was working on the PCB 20 litigation. 21 Q. They would report to both Monsanto and to 22 the coordinating counsel? 23 A. That's correct. 24 Q. And at Monsanto itwould either be you or 25 Mr. Venker at that time? WATER PCB-SD0000043099 24 1 A. In 1988, yes. 2 Q. How long did Mr. Venker stay with Monsanto? 3 A. He was with us -- I don't think it was 4 quite three years. He departed, I believe, in 1990. 5 Q. Was Mr. Venker replaced as far as PCB cases 6 go? 7 A. Yes. We did hire another lawyer to fill 8 in. 9 Q. Who was that? 10 A. That was Mr. Michael W. Newport. 11 Q. Is Mr. Newport still with Monsanto? 12 A. No, he's not. 13 Q. When did he leave Monsanto? 14 A. He left Monsanto in April of 1995. 15 Q. Was Mr. Newport replaced as far as PCB 16 cases go? 17 A. No. 18 Q. So since you arrived at Monsanto, the only 19 three individuals in house at Monsanto who would have 20 been assigned the handling of a PCB case would be 21 yourself, Mr. Venker or Newport? 22 A. No, not correct. 23 Q. Who else would would have been responsible 24 for PCB cases at Monsanto? 25 A. I assumed responsibility for PCB cases in WATER PCB-SD0000043100 25 1 January of 1985. Prior to that, from the time I arrived 2 at Monsanto in February of 1982 until January of 1985, 3 Mr. Joseph Massif, N-a-s-s-i-f was the in-house lawyer 4 responsible for PCB cases. 5 Q. But after you took over responsibility in 6 January of 1985 for PCB cases, from then until the 7 present, only yourself, Mr. Venker and Mr. Newport would 8 have been responsible for PCB cases. Correct? 9 A. At Monsanto? 10 Q. At Monsanto. 11 A. That's correct. 12 Q. You indicated that in appropriate cases 13 when a new suit was filed against Monsanto, you would 14 send a letter to the particular insurance company 15 involved. Correct? 16 A. That's correct. 17 Q. Are there some cases that have insurance 18 company involvement and some that do not? 19 A. There were a small number of cases back in 20 the mid to late 1980s as to which we had no insurance 21 coverage, I guess is the best way to say it. PCB's were 22 excluded from the insurance coverage. 23 Q. Other than that small number of cases, the 24 majority of PCB cases do have an insurance company 25 involved. Correct? WATER PCB-SD0000043101 26 1 A. Historically that's correct, yes. 2 Q. And you would notify them by letter? 3 A. Yes. 4 Q. And after you notified the insurance 5 company, you retained control over those files. 6 Correct? 7 A. That's correct. 8 Q. The insurance company didn't come and have 9 the right to hire counsel or direct litigation? 10 A. I'm not sure whether I can speak to whether 11 they had the right or not. The fact is that they did 12 not attempt to control the litigation or attempt to 13 direct the hiring of counsel. 14 We worked very harmoniously, in fact, with 15 insurance carriers on these cases. But it was more in 16 the mold of myself or Mr. Venker or Mr. Newport and 17 counsel deciding on what needed to be done and how a 18 case needed to be handled, then reporting periodically 19 as necessary to the insurance carriers. 20 Q. In 1988 when a new lawsuit was filed, was 21 it part of your standard procedure to check and see if 22 there might be an agreement or contract which could 23 provide indemnity for Monsanto in those cases? 24 A. In the appropriate case, yes. 25 Q. How did you go about trying to find out if WATER PCB-SD0000043102 27 1 there was such an agreement or not ? 2 A. Well, in the PCB litigation in particular, 3 of course, I was aware, Mr. Moore was aware of the fact 4 that potentially an indemnity situation existed with 5 certain electrical equipment manufacturers. There were 6 cases that involved a specific time period. 7 Q. Would those cases be cases that involved a 8 document entitled Special Undertaking by Purchasers of 9 Polychlorinated Biphenyls? 10 A. I believe that's the title. That's right. 11 It's a 1972 document. 12 Q. That's the document that's at issue in this 13 lawsuit here today. Do you understand that? 14 A. Yes. 15 Q. You were aware of the existence of that 16 document in 1988? 17 A. Yes. And there are just -- let me make 18 sure I complete the answer. There are other cases in 19 which indemnity situations may exist, but those are 20 specific situations typically involving contractor 21 employees. 22 Q. In 1988, were you aware of the existence of 23 the Special Undertaking, did you automatically tender 24 the defense of cases to the manufacturers of the 25 electronic products? WATER PCB-SD0000043103 28 1 A. No. 2 Q. Why didn't you do that? 3 A. For two reasons. First of all, the 4, indemnity agreement by its terms covered only the use 5 and manufacture of PCB's that occurred after, I believe, 6 January 15, 1972, so until we had sufficient information 7 to let us make a determination that the particular 8 situation involved post 1972 sales of PCB's, the 9 indemnity would not be triggered. 10 The other reason is in fact one of 11 harmonious relations with other companies that we 12 frequently see in PCB litigation. It's our general 13 practice to work with our co-defendants in PCB cases. 14 I find that where the defendants are 15 working at cross purposes or actually fighting with each 16 other in a case, the only beneficiary is the plaintiff. 17 That does not serve Monsanto or our co-defendants in PCB 18 cases well. 19 So just as a general practice we don't make 20 a blanket assertion of the indemnity agreement. 21 Q. In cases that might involve this indemnity 22 agreement or Special Undertaking, do you immediately 23 seek to determine whether or not it involves cases of 24 PCB's sold after January 15, 1972? 25 A. That's one objective to discover, yes. WATER PCB-SD0000043104 29 1 Q. Is that a -- strike that. 2 Is the Smith Helms firm or were they in 3 1988 responsible for the discovery that went out to 4 plaintiffs in particular cases? 5 A. They shared a responsibility for that, yes, 6 with local counsel working on the case. 7 Q. And also did Smith Helms maintain 8 responsibility for discovery on co-defendants in cases? 9 A. To the extent that we conducted such 10 discovery, yes. 11 Q. And one of their initial objectives when a 12 new case was filed was to find out when the PCB's were 13 sold? 14 A. I don't think it rose to that level. If we 15 acquired information during discovery in a case that 16 involved that the indemnity might be involved, we would 17 pursue that on a case by case basis. But in general 18 that wasn't one of the driving forces that molded our 19 case conduct. 20 Q. You didn't direct your counsel to go out 21 and find in every case whether or not it involved PCB's 22 manufactured or sold after 1972? 23 A. I didn't direct them to do that. What we 24 did when we were orienting counsel at the beginning of a 25 litigation was to make them aware of the indemnity WATER PCB-SD0000043105 30 1 situation and review what we knew about the facts on a 2 particular case as to whether or not, whether or not it 3 was likely or unlikely or possible or not possible that 4 the indemnity agreement would be involved. 5 Q. Were there cases involving PCB's where you 6 learned that the indemnity agreement would be applicable 7 and you determined not to seek indemnity? 8 A. No. 9 Q. This general practice of working with the 10 co-defendants, that never rose to the level of not 11 seeking indemnity? 12 A. No. Whenever the indemnity agreement was 13 involved, we would assert our rights under that 14 agreement. 15 Q. Would you assert them as soon as you 16 determined that the indemnity agreement might be 17 involved? 18 A. By asserting them I'm not quite sure --- I 19 don't know if that's a word I used. But if by that you 20 have in mind making a demand, no, not -- it was our 21 view -- and again this would vary from state to state, 22 depending upon the law of the particular state. 23 But if we had a co-defendant in the case 24 who was a signatory to the indemnity agreement, that 25 defendant would be as aware of the indemnity agreement WATER PCB-SD0000043106 31 1 as we. And it didn't seem to me to be essential to make 2 a formal assertion of rights under the indemnity 3 agreement at any particular point in the case. 4 In general it was our view that our 5 co-defendants were aware of their obligations and for 6 the most part they have stood by them. 7 Q. There was no policy, no formal policy as to 8 whether to inform the co-defendants about the agreement 9 at any particular time or not. Correct? 10 A. That's correct. Again, it was our general 11 understanding that co-defendants were aware of the 12 agreement, aware when the agreement would be triggered. 13 And while we wouldn't rush out to serve a 14 formal notice on them, at the appropriate time we would 15 raise the matter of the indemnity agreement and discuss 16 how it would applied to a particular case. 17 Q. You indicated before that when these cases 18 were going on and the co-defendants started fighting 19 among themselves over something like that Special 20 Undertaking, no one would benefit but the plaintiff. Do 21 you remember saying something of that nature? 22 A. I remember what you are talking about. 23 What I said, this was broader than just an indemnity 24 situation. 25 In general, in multi-part litigation, it WATER PCB-SD0000043107 32 1 seems to me that that it is always in the defendants' 2 best interests to cooperate rather than fight with each 3 other. I didn't mean to restrict that only to 4 situations involving an indemnity. 5 Q. That's what, I'm meaning to do that now. 6 In these specific circumstances involving indemnity, in 7 maintaining cooperation in the lawsuit, did that cause 8 you at any time to wait until the lawsuit was over 9 before you asserted rights or informed a co-defendant 10 that you were seeking indemnity under this agreement? 11 A. I don't believe we ever waited until a 12 lawsuit was over. But again, as I said earlier, it was 13 our view that we did not need to rush out at the 14 earliest possible moment and serve a formal notice. 15 Q. Presently are any personal injury cases 16 involving about PCB's still pending? 17 A. Yes. 18 Q. Approximately how many? 19 A. I would say in the neighborhood of 100. 20 More or less. 21 Q. Are these spread generallythroughout the 22 country? 23 A. They are in several locations of the 24 country. I think there is a large area of the country 25 where we don't have cases at the moment. They're WATER PCB-SD0000043108 33 1 geographically in various parts of the country. 2 Q. They're not generally in one area or two 3 areas? 4 A. Well, we have concentrations of cases. For 5 example, the Paoli Railyard litigation in Philadelphia 6 accounting for, I think, about 30 of 100 cases. 7 Q. Is Monsanto's internal plan or procedures 8 still the same regarding reacting to the filing of new 9 PCB lawsuits? 10 A. Yes. 11 Q. In 1987 a transformer in Louisiana which 12 contained PCB's located at LSU failed, and a number of 13 people claimed they were exposed to PCB's, which brings 14 us to the litigation involved in this case. 15 When did you become aware of the occurrence 16 of that incident? 17 A. It would have been when we were first 18 served in the LSU litigation. That would have been some 19 time early in 1988, February or March, April time frame. 20 Q. You didn't become aware of the incident in 21 Louisiana until the lawsuit was filed. Correct? 22 A. I personally did not, no. 23 Q. As I understand it, there were four 24 different lawsuits with several plaintiffs filed in 25 Louisiana following that incident. Is that correct? WATER PCB-SD0000043109 34 1 A. That's correct. 2 Q. If I refer to thoselawsuits collectively 3 as the Louisiana litigation or the LSU litigation, will 4 you understand what I'm talking about? 5 A. Yes, I will. 6 Q. Were those all treated as an individual 7 cluster of cases at Monsanto? Strike that. I'm not 8 sure that I understood* what that meant. 9 For billing purposes were those four cases 10 treated together at Monsanto? 11 A. Yes. For the most part. I think possibly 12 early on we might have gotten separate bills, but 13 fairly soon after the four cases came in they were 14 treated as a single unit. 15 Q. Were you the individual at Monsanto who was 16 assigned to those cases? 17 A. I assigned myself to those cases very early 18 on. When Mr. Venker came, I think in mid '88 he 19 started, he assumed responsibility for the LSU cases. 20 Q. And did he maintain responsibility for the 21 LSU cases until he left Monsanto? 22 A. That's correct. 23 Q. I've seen the term control attorney. Is 24 that what Mr. Venker was to the LSU litigation? 25 A. Control attorney is a phrase we use in the WATER PCB-SD0000043110 35 1 letters we send to our insurance carriers. Yes, 2 Mr. Venker was the control attorney for the LSU cases. 3 Q. Regarding the LSU cases, I assume you 4 undertook the initial reaction procedure that you did, 5 that you described earlier as what you did in a normal 6 case. Correct? 7 A. That's correct. 8 Q. You contacted Mr. Moore in North Carolina? 9 A. Yes. 10 Q. And discussed with him who to hire to 11 handle those cases in Louisiana? 12 A. Among other things, yes. 13 Q. Did you determine at that time what firm 14 you should hire in Louisiana? 15 A. We discussed in general what kind of firm, 16 what kind of help we needed in Shreveport, and 17 identified a firm that we thought was a likely candidate 18 to provide that help to us. 19 Q. Was that firm Blanchard, Walker, O'Quinn 20 and Roberts? 21 A. That's correct. 22 Q. You said you discussed what youneeded in a 23 firm in Louisiana? 24 A. That's correct. 25 Q. What type of conversation did you have WATER PCB-SD0000043111 36 1 regarding the firm you needed? 2 A. In general when we get a new case in that's 3 in a new area, and Shreveport was a new venue for us to 4 have PCB litigation, Mr. Moore and I attempt to assess 5 the magnitude of the case and types of claims that are 6 being made. 7 And on that basis we try to determine 8 whether we want to hire a firm in the venue which will 9 take complete responsibility for the development and 10 trial of the case, or whether this is a situation where 11 a firm that is not too far away in the region that has 12 already developed that expertise should be brought in 13 and therefore the local lawyers serve a more 14 circumscribed local counsel role. 15 Q. How did you assess the LSU litigation in 16 those terms? 17 A. We felt that this was potentially a very 18 serious litigation. We had, as I recall, more than 120 19 individual plaintiffs, as well as the City of Shreveport 20 suing us. 21 We felt that it was a matter that would 22 require a great deal of sophistication in the handling 23 of toxic tort cases, PCB cases in particular, and that 24 it probably would be beyond the experience of a law firm 25 in Shreveport. WATER PCB-SD0000043112 37 1 Q. Because it was beyond their experience was 2 Blanchard Walker then to serve, as you described it, a 3 more circumscribed local counsel role? 4 A. That's correct. 5 Q. Who was the counsel that was going to be 6 handling the case? You said if -- strike that. 7 If you hired a firm that did not have the 8 expertise and hired that firm to serve as local counsel, 9 there would be another firm that would be responsible 10 for handling of the litigation itself. Correct? 11 A. Well, there would be a firm that had 12 already developed the scientific and technical 13 background for PCB litigation and was familiar with how 14 we wanted the cases conducted. 15 Q. For the LSU cases, what firm served that 16 role? 17 A. Well, I don't recall the name of the firm 18 right now, what it was. The lawyer that we wanted to be 19 our trial lawyer if these cases had to be tried was 20 Gaynell, G-a-y-n-e-1-1, Methvin, M-e-t-h-v-i-n. I think 21 two L's. 22 Q. I think you are correct. Methvin is an 23 attorney in Texas. Correct? 24 A. In Dallas, that's correct. I believe at 25 the time he was with the law firm of Moore and Peterson. WATER PCB-SD0000043113 38 1 Q. Mr. Methvin had handled PCB cases previous 2 to the LSU cases for Monsanto? 3 A. That's correct. 4 Q. Do you know howmany he had handled before 5 that? 6 A. I believe one. 7 Q. And had that been in Texas? 8 A. Yes, that was in -- Federal Court in 9 Dallas. 10 Q. Was the ultimate decision to hire Blanchard 11 Walker in Shreveport your decision? 12 A. Yes. 13 Q. Why did you select Blanchard Walker to 14 serve as your local counsel in Shreveport? 15 A. Well, I went to Shreveport to talk to the 16 lawyers at Blanchard Walker, in particular, as I recall, 17 Jim McMichael and one of his partners named Larry Pettit 18 (Pet'tit) or Pettit'. I can't recall how he pronounced 19 his name. 20 On the basis of our meeting with them, it 21 was apparent to me that they were good trial lawyers, 22 intelligent, and although they had virtually no 23 experience with toxic tort litigation, they were very 24 knowledgeable about trial practice in Shreveport. 25 And they appeared to be the kind of lawyers WATER PCB-SD0000043114 39 1 who would work well in a team. Those are considerations 2 that I find important in retaining counsel. 3 Q. Had Mr. Moore referred you to that 4 particular firm? 5 A. I don't think that Mr. Moore referred us to 6 that firm. My recollection is that the recommendation 7 came from INA Insurance company, which was our primary 8 insurance carrier in 1988. 9 We had not had experience with counsel in 10 Shreveport, and my recollection is that I contacted the 11 local INA person who then got back to me with a 12 recommendation of Blanchard Walker. 13 Q. , Did you look at any other firms in 14 Shreveport? 15 A. I believe I may have made a couple of 16 telephone calls to other firms. I don't have a clear 17 recollection of which ones they were. 18 Q. In any event you didn't go meet with any 19 other firm with Shreveport, did you? 20 A. No, we didn't interview another firm. 21 Q. You had had no previous experience with any 22 firm in Shreveport? 23 A. I personally had not. I don't believe the 24 company had either. 25 Q. As local counsel, what was the role that WATER PCB-SD0000043115 40 1 Blanchard Walker was intended to serve in the 2 litigation? 3 A. We looked to Blanchard Walker for several .4. things. First was, as I said earlier, a familiarity 5 with local trial practice, including the lawyers on the 6 other side, lawyers for our co-defendants, and the 7 particular judge or judges that we would be trying the 8 case before. 9 In addition to just the kind of local 10 intelligence factor, I also expected the Blanchard 11 Walker firm to have a significant role in factual 12 investigation into the case, particularly discovering 13 the level of knowledge of the Shreveport Fire Department 14 which was a significant issue in the case. 15 Also I looked at them as most likely having 16 responsibility for taking the depositions of the 17 plaintiffs, if it came to having to depose all of the 18 plaintiffs, and making contact for us with individuals 19 who might be expert in the case on a local basis. 20 Q. Was Smith Helms -- strike that. What was 21 Smith Helms' role to be in this LSU litigation? 22 A. The Smith Helms role was the same as they 23 are in all of our PCB cases. 24 They are primarily tasked with assisting in 25 discovery, particularly in responding to discovery WATER PCB-SD0000043116 41 1 served on Monsanto. 2 They serve as a, an invaluable assist to 3 me in keeping track of what's going on in the case, of 4 providing to our local regional counsel their expertise 5 or long years of experience in PCB litigation, in 6 particular in briefing in legal issues, in staying 7 abreast of the latest developments in tort law and how 8 cases of this type can best be handled and working with 9 me to make sure that a case stayed on target and that we 10 were getting what needed to be done. 11 Q. Would Smith Helms be responsible for any 12 particular pleadings in that case? 13 MR. CARNEY; Other than what he's already 14 mentioned? 15 Q. (By Mr. Harfst) Other than, you indicated 16 responding to discovery. Other than that? 17 A. In general it's our policy that no pleading 18 in any of our PCB cases gets filed unless it's been 19 reviewed and approved by the appropriate Smith Helms 20 attorney and typically by the Monsanto attorney in 21 house. 22 Q. Why do you have Smith Helms review every 23 pleading? 24 A. Two reasons. First of all to make sure 25 they're accurate. Second to make sure we're being WATER PCB-SD0000043117 42 1 consistent in the positions that we take from case to 2 case. 3 Q. As I understand your previous answer, Smith 4 Helms would actually be responsible for preparing 5 discovery responses. Is that correct? 6 A. They take the first cut at it, yes. 7 Q. They also take the first cut at a 8 responsive pleading to a new case. Is that correct? 9 A. That's correct. 10 Q. Did they take the first cut at any other 11 documents or pleadings? 12 A. As a general matter, no. Other documents 13 and pleadings in the case would normally be the 14 responsibility for your trial team to prepare. 15 Now, there are occasions when Smith Helms 16 does step in and take the lead on a particular motion or 17 brief or pleading. Those situations would probably be 18 where we had had a similar motion in another case and, 19 you know, the knowledge and brief may already have been 20 developed by Smith Helms. 21 Q. If Smith Helms wanted to do that and step 22 in and take the lead on a particular pleading, would 23 they need to get approval from you before doing that? 24 A. Yes. It would be a consensus decision. 25 Let me just say me or the Monsanto attorney who was WATER PCB-SD0000043118 43 1 managing the case. 2 Q. When you agreed with Smith Helms for them 3 to serve as national coordinating counsel for PCB 4 litigation, was it you that discussed with them how they 5 would be paid for those services? 6 A. The Smith Helms role was already defined 7 and in place when I took cases over in '85. 8 Q. I'm sorry. Are you aware of the rate or 9 rates that Monsanto agreed to pay to Smith Helms? 10 A. Yes. 11 Q. What are those? What was the payment 12 arrangement with Smith Helms at the time you worked 13 there? 14 A. Our agreement with Smith Helms is that it's 15 an hourly rate, but there is a significant discount on 16 that rate from their standard rate that they charge 17 their corporate clients. 18 Q. Is there one firm wide rate that you pay, 19 or do you pay different rates for different attorneys at 20 Smith? 21 A. We pay a different rate for different 22 attorneys, depending upon their age and skill level. 23 Q. As you sit here today, do you recall what 24 |any of those rates were in the 1980s or presently? 25 I A. In the 1980s I'm really not sure. Have to WATER PCB-SD0000043119 44 1 look back at the statements to see. 2 Currently I think Mr. Moore's rate is $185 3 an hour. 4 Q. Do you know -- know what his rate is to 5 other firms? 6 A. It's in the, I believe in the $215 to $225 7 an hour range. 8 Q. Do you recall what any of the other lawyers 9 that work on PCB files at Smith Helms charge? 10 A. I'd really need to consult a statement, but 11 I believe Mr. Girard Davidson, who was not significantly 12 involved in these cases, currently bills at 185. 13 There are several other lawyers that work 14 on various other projects. I can't remember their 15 hourly rates. 16 Q. When you retained Blanchard Walker in 17 Shreveport, did you come to arrangements as to the rates 18 that they would charge? 19 A. Yes. 20 Q. Do you remember what that was? 21 A. In terms ofthe hourly rate? 22 Q. Yes. 23 A. I don't recall specifically, but our 24 agreement with them was that it would be their standard 25 hourly rate to a corporate client. WATER PCB-SD0000043120 45 1 Q. Were they also billing different rates for 2 different attorneys working on files? 3 A. Yes. 4 Q. With either Smith Helms or Blanchard 5 Walker, did you come to an arrangement to pay an hourly 6 rate for any non-attorneys ? 7 A. Well, legal assistants, of course, are 8 billed hourly typically. Other than that, our general 9 policy is that we don't pay hourly rates for clerical 10 employees at a firm unless that individual is devoted 11 entirely to Monsanto's litigation. And in that 12 circumstance and then by special agreement we would 13 agree to pay an hourly rate for a clerical employee. 14 Q. In those special circumstances would those 15 clerical workers' job duties or the things that they did 16 for Monsanto show up on a legal bill? 17 A. They may, yes. 18 Q. Are you aware of any suchagreements to pay 19 for clerical work in the LSU litigation? 20 A. Not specific to the LSU litigation, no. 21 Q. Are you aware of any agreement with 22 Blanchard Walker in Shreveport to pay for clerical 23 workers on an hourly basis? 24 A. No. 25 j Q. Are you aware of any special arrangement WATER PCB-SD0000043121 46 1 with Smith Helms to pay for clerical workers on an 2 hourly basis? 3 A. I mean, we do have the -- I don't want to 4. call her a file clerk; she does much more than that -- 5 the person chiefly responsible for maintenance of 6 Monsanto's litigation files at Smith Helms. And my 7 understanding is that is her sole duty at Smith Helms. 8 Q. Do you know that person's name? 9 A. I believe her name is CharlotteBelvin, 10 B-e-l-v-i-n. Whether she was working with Smith Helms 11 back in 1988 I just don't recall. 12 / Q. You indicated in general that it's not 13 Monsanto's practice to immediately make a formal demand 14 on cases when you discover that the Special Undertaking 15 might be involved. Correct? 16 A. That's correct. 17 Q. In the LSU litigation did youever come to 18 a determination as to whether or not the Special 19 Undertaking would be involved with that case? 20 A. Yes, we did. 21 Q. When did you come to that determination? 22 A. I can't recall as I sit here the precise 23 date. I believe it was some time in 1990. 24 Q. Do you recall ever having made a formal 25 demand or anyone on behalf of Monsanto ever having made WATER PCB-SD0000043122 47 1 a formal demand to anyone regarding the Special 2 Undertaking in the LSU litigation? 3 A. Yes. I believe we did correspond with 4 counsel for LSU on that. 5 Q. Counsel for? 6 A. I'm sorry. For Gould. I misspoke. 7 Q. There are several companies that have been 8 involved in tracing the Special Undertaking up to Gould 9 who is a present defendant in this case. Are you aware 10 of that situation? 11 A. Yes. 12 Q. If we refer to ITE or Gould, they basically 13 stand in the same shoes in this litigation. Correct? 14 A. That's my understandingyes, 15 Q. Was the -- was it you personally who made 16 formal demand upon counsel for Gould in 1990? 17 A. No, it was not I. 18 Q. Was it -- do you know who it was? 19 A. I believe Mr. Newport. 20 Q. Do you know how he went about making that 21 formal demand? 22 A. I'm not sure whether he talked to counsel 23 for Gould initially or whether he sent a letter. 24 Q. Was the litigation still going on in the 25 LSU cases at that time? WATER PCB-SD0000043123 48 1 A. Oh, very definitely. 2 Q. Why did you determine at that time to make 3 a formal demand on Gould? 4 A. I'm not sure that the particular time had 5 as much to do with it as that it seemed appropriate to 6 advise Gould of the applicability, in our view, of the 7 indemnity agreement. 8 Q. Was there any specific set of circumstances 9 that led you to believe that it seemed appropriate to 10 notify them at that time? 11 A. Nothing specific that I can recall. 12 Q. Didn't making the formal demand at that 13 time run the risk of having the co-defendants fighting 14 with each other that we discussed earlier? 15 A. There's always that risk. It was our 16 determination at that point, however, that our relations 17 with Gould's counsel were reasonably good and we felt 18 this could be discussed on a professional basis. 19 Q. You felt though that you had no duty to 20 inform Gould of that agreement at that time? 21 A. It's my belief that Gould was aware of the 22 indemnity agreement, of its obligations. 23 Q. Were you involved in the decision to make a 24 formal demand on Gould at that time? 25 A. I recall discussing it with Mr. Newport, WATER PCB-SD0000043124 49 1 yes. 2 Q. Was it your decision to do that or 3 Mr. Newport's? 4 A. Well, I certainly supported the decision. 5 I think we probably reviewed the situation with my boss, 6 Bob Berendt, and the decision was a collective one. 7 Q. Were you Mr. Newport's superior? 8 A. Functionally I was his supervisor, yes. 9 Q. And he reported to you and you reported 10 to -- I'm sorry. I didn't -- 11 A. Bob B-e-r-e-n-d-t. Again, functionally, 12 yes, although I think in terms of organization chart we 13 both reported to Mr. Berendt. 14 Q. Do you recall whether or not you were 15 involved in drafting any formal demand letter? 16 A. I can't recall specifically, although it 17 would be our normal practice that I would review such a 18 letter before it was sent. 19 Q. Would that be the practice even if the 20 formal demand came from one of the law firms that you 21 had hired? 22 A. That's correct. 23 Q. So it would all be passed through you? 24 A. A letter of that type, yes, it would. 25 Q. The Smith Helms and Blanchard Walker firms WATER PCB-SD0000043125 50 1 were not the only firms that became involved in the 2 Louisiana litigation, were they? 3 A. That's correct. 4 Q. Do you recall what the -- well, we have 5 already discussed Moore and Peterson in Dallas that 6 became involved. 7 A. Right. 8 Q. Mr. Methvin's firm. Correct? 9 A. Correct. 10 Q. They were hired, I assume, shortly after 11 you had hired the initial two firms. Correct? 12 A. That's correct -- well, the Smith Helms 13 firm wasn't hired specifically for LSU. They had an 14 ongoing coordination role. 15 Q. Do you recall when the Moore Peterson firm 16 was hired? 17 A. It wasn't too longafterthe Blanchard 18 firm. I would say matter of weeks . 19 Q. You hired Mr. Methvin to be trial lawyer? 20 A. I looked to him to be our chief trial 21 counsel, yes. 22 Q. Was the firm of Moore and Peterson to 23 conduct any other roles other than chief trial counsel? 24 A. Well, as chief trial counsel it was their 25 role really to take the lead in the defense of Monsanto. WATER PCB-SD0000043126 51 1 They're the ones that would be formulating 2 our discovery on plaintiffs, developing a trial plan, 3 assessing need for experts and working with us on trying 4 to find those experts, assessing the plaintiffs' case, 5 their experts, just the whole range of things that needs 6 to be done in defending a very large and potentially 7 dangerous lawsuit. 8 Q. The Moore Peterson firm then was basically 9 in charge of the defense of this particular set of cases 10 in Louisiana? 11 A. That's correct. 12 Q. You mentioned that they were the ones who 13 would take the lead in formulating discovery. It was my 14 understanding that Smith Helms was involved in that. 15 A. The Smith Helms firm is involved, yes. 16 Smith Helms has the, I would say the lead in responding 17 to discovery served on Monsanto. 18 In terms of discovery that Monsanto would 19 serve on plaintiffs, it would be a collaborative effort. 20 Obviously we have a lot of material that we have used in 21 discovery demands of the type that we make in personal 22 injury cases. The Smith Helms firm has that file. They 23 would provide that information to our trial counsel. 24 But in terms of actually formulating the 25 demands to be served on plaintiffs, it would be trial j WATER PCB-SD0000043127 52 1 counsel that took the lead role in that. 2 Q. You also mentioned that it would be trial 3 counsel's role to develop a trial plan. 4 By that do you mean a formal document known 5 as a trial plan or just in general a plan of how to 6 attack this litigation? 7 A. Would be more general. I don't recall 8 whether Mr. Methvin had a written trial plan or not. We 9 discussed how the case needed to be developed frequently 10 with him. 11 And, you know, there certainly was, if not 12 written, certainly in the contemplation of all the 13 counsel working for Monsanto a plan on how we wanted to 14 develop the case and have it tried. 15 Q. Monsanto didn't require a specific written 16 document called a trial plan to be submitted to you or 17 to Mr. Newport? 18 A. That's correct. 19 MR. CARNEY: Object to the form of the 20 question. I think it's vague. 21 Q. (By Mr. Harfst) Okay. Let me just clear 22 that up. Did Monsanto specifically require a written 23 trial plan to be prepared and submitted to the company? 24 MR. CARNEY: Object. I don't know what you 25 mean by require. I mean, there were memos of trial, of WATER PCB-SD0000043128 53 1 strategies developed. I don't know if you're talking 2 about those or talking about something called a trial 3 plan by name. 4 So I'm unclear as to what you mean by trial 5 plan. There's lots of documents with strategies and 6 plans and tasks. I don't know if you are including 7 those. 8 MR. HARFST: What I'm asking about *-- 9 MR. CARNEY: I don't know what you mean by 10 require either because is it in a formal procedure where 11 you have to do this, or is it a suggestion? I think it 12 still suffers from ambiguity. 13 Q. (By Mr. Harfst) What I'm asking, 14 Mr. Bistline indicated one of the roles of the trial 15 counsel was to prepare a trial plan. And my inquiry is 16 directed to you to find out what you meant by saying 17 that the trial counsel was directed or one of their 18 roles was to prepare a trial plan. 19 If by that you mean something in general, 20 as far as the direction that you wanted the case to 21 take, that's what I want to know. And if you mean they 22 were directed to prepare any particular formal document 23 or documents and that makes up the trial plan that you 24 mentioned, that's what I want to know. 25 Do you understand my question? WATER PCB-SD0000043129 54 1 MR. CARNEY: Well, I'm not sure I do. 2 MR. HARFST: I'm just asking what he knows. 3 MR. CARNEY: I still want to make an 4 objection on the grounds I think it's a vague question. 5 I assume by asking this question you are not asking him 6 to repeat what he already said. 7 MR. HARFSTs That's correct, unless that's 8 what he needs to do to answer the question. 9 Q. (By Mr. Harfst) You have told me that it 10 was something more general than a specific document. 11 Correct? 12 A. Yes, that's correct. 13 Q. When you retained Moore and Peterson to 14 serve as trial counsel in this LSU litigation, did you 15 come to an agreement regarding legal fees to be charged 16 by Moore and Peterson? 17 A. I don't think we had a specific agreement 18 for LSU. We had an understanding, I guess I'd call it, 19 with Mr. Methvin that he would charge and we would pay 20 his standard hourly rate for corporate clients. 21 Q. Was this the same billing arrangement that 22 you had in the previous case that Mr. Methvin had 23 handled? 24 A. That's correct. 25 Q. Do you recall at the time of this LSU WATER PCB-SD0000043130 55 1 litigation what that rate was? 2 A. I don't recall the specific rate, no. 3 Q. Were there multiple rates charged by 4 multiple lawyers at Moore Peterson? 5 A. It would be the same as with other law 6 firms, that the hourly rate would reflect the age, 7 experience and skill of the particular lawyer. 8 Q. Was it Monsanto's practice to inquire into 9 the age and skill of particular attorneys who would work 10 on Monsanto's PCB files? 11 A. Yes. I wanted to know who the lawyers 12 would be that would be handling the case and that the 13 lawyer was competent and qualified to do what needed to 14 be done. 15 Q. How would that information be presented to 16 you? 17 A. In a couple of ways. Typically what we 18 would ask counsel to do at the outset of the case would 19 to be to identify the individuals who he or she wanted 20 to work on the case, that at some point early on in the 21 case I would meet the individuals that were proposed to 22 work on the Monsanto case and, you know, have a chance 23 to get to know the person and make a judgment myself 24 whether it was an appropriate thing for that lawyer to 25 work on the case. WATER PCB-SD0000043131 56 1 Q. This would include both partners and 2 associates? 3 A. In general anybody who had a significant 4 involvement in the case. Obviously if we had a legal 5 issue that needed to be briefed and the decision was 6 made to give it to a young lawyer just out of law 7 school, for that particular issue I wouldn't necessarily 8 try to meet that person before the memo was written. 9 But anyone who would have a significant 10 role, I wanted to get to know. 11 Q. After you got to know these people, is that 12 when their hourly rates would be presented? 13 A. No. I would usually know of the hourly 14 rate before I would interview or talk to the individual. 15 Q. During the course of your employment at 16 Monsanto, have you ever met with attorneys at a 17 particular firm and said those people were not 18 appropriate to work on a Monsanto file? 19 A. I think there have been instances, yes. 20 Q. Did you have any of those type of meetings, 21 meeting people who would be working on the LSU 22 litigation, or would that have been in Mr. Venker's job 23 description? 24 A. I'm not sure I'm quite following the 25 question. WATER PCB-SD0000043132 57 1 Q. When it came to determining who at the 2 firms, who became involved in the LSU litigation, would 3 work bn that litigation at that firm, did you go down to 4 meet all of those lawyers? 5 A. I did at that time, yes, because my 6 recollection is that that's before Mr. Venker started. 7 I was the only attorney at Monsanto working on PCB 8 cases. 9 Q. Before those meetings or somewhere around 10 the time of those meetings, you would be presented with 11 the hourly rates of those individuals? 12 A. I would learn of those rates, yes. 13 Q. If any of those persons' hourly rates were 14 increased at any time during the course of litigation, 15 would that have to be approved by you or Mr. Venker? 16 A. Yes, there would be no increases -- 17 MR. CARNEY: Talking about partners or an 18 associate that might be moving up in experience? 19 Q. (By Mr. Harfst) Either one. 20 A. There's a distinction. Partners' rates 21 could not be raised. We simply wouldn't pay an 22 increased rate unless there was prior approval by the 23 Monsanto control attorney. 24 On associates' rates, we wanted also to be 25 notified about that, but if the rate was simply the WATER PCB-SD0000043133 58 1 typical progression of associates' rates based upon 2 years out of law school, that was, that was a generally 3 permissible increase. 1 Q. But you still needed to be notified of 5 those increases in advance? 6 A. Yeah. I mean, it wasn't an ironclad rule 7 like partners' rates, but I wanted to know, and so did 8 Mr. Venker and Mr. Newport when an associate's rate was 9 proposed to be increased. 10 Q. You would either say yes or no that it was 11 allowable to do that increase? 12 A. My recollection is that, again with 13 specific reference to associates' rates, that that was 14 almost always -- I can't recall ever in fact declining 15 an increase for associates based on the normal 16 progression of rates at that firm . 17 Q. When you initially hired these three firms, 18 including the one that had been hired long ago to handle 19 these cases in North Carolina, including Smith Helms, 20 and you hired the firm in Dallas and the firm in 21 Shreveport, was it your belief at that time that those 22 would be all the firms that were necessary to handle the 23 LSU litigation? 24 A. Well, I didn't have a crystal ball so I 25 couldn't predict with certainty what was going to WATER PCB-SD0000043134 59 1 happen. But certainly I expected those firms to be 2 doing the bulk of the work. 3 Q. They weren't the only firms that eventually 4 did become involved in the LSU litigation. Correct? 5 A. That's correct. 6 Q. Do you know what the next firm that was 7 hired in that litigation was? 8 A. I don't know specifically. I know that 9 there -- we did have occasion to hire the Bronson, 10 Bronson McKinnon firm in California. 11 Q. Recall when you hired that firm in 12 California? 13 A. The Bronson firm was a firm that was 14 already handling cases for us, handling PCB cases for us 15 in California. 16 And I'm not sure of the date, but the 17 situation arose in which we needed to take some 18 significant discovery of some plaintiffs' expert 19 witnesses in California, and California procedure is 20 peculiar to California. 21 We determined that it would be cost 22 effective to have a California firm help us, 23 particularly in this instance because of the nature of 24 the experts and the extraordinary lengths that counsel 25 for those experts went to to frustrate our discovery WATER PCB-SD0000043135 60 1 attempt. 2 Q. The first bill that I noticed was in 3 December of 1988 from Bronson, Bronson and McKinnon. 4 Does that sound about the right time period? 5 A. December, 1988? If that's when it was, 6 that's when it was, yeah. 7 Q. You don't have any recollection of what 8 time periodthey would have been retained in the LSU 9 cases? 10 A. I would not be surprised if we had 11 consulted with the Bronson firm in December of 1988. 12 Q. In December of 1988 had Mr. Newport -- 13 excuse me -- Mr. Venker started at Monsanto? 14 A. I believe he had. I believe he started 15 some time in the late spring or early summer of 1988? 16 Q. So would it have been his decision to use 17 Bronson, Bronson and McKinnon in this LSU litigation? 18 A. I really can't tell you. It's been long 19 enough ago I can't remember the precise pattern, but 20 Mr. Venker certainly would have been involved. 21 Q. On decisions like that to retain a new 22 counsel or to use another counsel in a particular case, 23 would that be a decision that involved both you and 24 Mr. Venker, or since this file was assigned to 25 Mr. Venker would he consult with the other lawyers and WATER PCB-SD0000043136 61 1 make that determination on his own? 2 A. I think in general that would have- been 3 something that he would have discussed with me. Whether 4 he would do that before he talked to somebody else about 5 it, I can't tell you. But I know I would expect to at 6 least to be advised of what was going on. 7 Q. Were you involved at all in the decision to 8 hire Bronson, Bronson and McKinnon to work on this LSU 9 litigation? 10 A. My recollection is that I was involved in 11 the decision to ask them to do certain things for us. 12 Q. These things you asked them to do are what 13 you previously discussed, to be involved in the 14 discovery of plaintiffs' expert witnesses in California? 15 A. Right. We had asked -- as I recall we had 16 asked the Bronson firm first to find out a little bit 17 about the specific experts that were involved, because 18 these experts were out in California. 19 And then we asked the Bronson firm to help 20 us with the specific discovery, as I mentioned, in part 21 because of the extraordinary lengths that those 22 witnesses' counsel went to to frustrate our attempts. 23 Q. Was there a specific attorney at Bronson, 24 Bronson and McKinnon who was involved in this matter 25 that you can recall ? WATER PCB-SD0000043137 62 1 A. I think probably Chris Lorange eventually. 2 I*m not sure whether he was from the outset, but I know 3 eventually Chris took hold of the issue of discovery on 4 these particular witnesses. 5 Q. And when you retained the Bronson firm, was 6 part of their responsibility going to be to take 7 depositions of these experts, or were they just 8 coordinating the discovery efforts and Mr. Methvin or 9 someone from his firm would be involved in doing the 10 depositions? 11 A. We looked to the Bronson firm for the 12 technical help on getting the discovery papers and 13 motions, that sort of thing right. 14 The depositions were to be conducted by 15 Mr. Methvin or Mr. McMichael or other counsel for the 16 parties in the LSU litigation. 17 Q. At the time that Bronson, Bronson and 18 McKinnon was added to the Louisiana litigation, I assume 19 there had already been in place a billing mechanism or 20 billing understanding between that firm and Monsanto. 21 A. Yes. They had worked on PCB cases for us 22 in the past. Before 1988. 23 Q. So the billing rates and billing 24 arrangements on the previous cases would be the same as 25 the billing rates and billing arrangements used in this WATER PCB-SD0000043138 63 1 LSU litigation for the Bronson firm? 2 A. That's correct. 3 Q. When those billing rates and procedures 4 were set up with the Bronson firm, was it you who came 5 to those billing agreements with them? 6 A. No. Bronson, Bronson and McKinnon was 7 representing Monsanto in PCB cases before I took them 8 over. 9 Q. Were they also billing an hourly rate to 10 Monsanto? 11 A. Yes. 12 Q. Do you know if it was their standard rate 13 or was it discounted or premiumed? 14 A. It certainly was notpremiumed. 15 Discounted, I don't remember. It may have been a small 16 discount . 17 Q. Do you recall what any of the particular 18 rates were at the Bronson firm at the time of this 19 litigation in Louisiana? 20 A. No, I don't. 21 Q. Those four firms that we have discussed 22 already were not the only firms that were involved in 23 this litigation for Monsanto. Correct? 24 A. I think there may have been small tasks 25 done by other firms. WATER PCB-SD0000043139 64 1 Q. Looks from the documents produced in this 2 case like the next firm to become involved was called 3 Johnson and Swanson, which later on became Johnson and 4 Gibbs. 5 A. That was the law firm Mr. Methvin went to 6 when he left the Moore and Peterson firm. And I don't 7 regard that really as involving a new law firm because 8 we stayed with Mr. Methvin who was our chief trial 9 counsel. 10 Q. Mr. Methvin left one firm, went to another 11 and these files went with him? 12 A. I'm not --- that's correct. I'm just trying 13 to recall the reason why he left. I believe the Moore 14 Peterson firm may have been dissolving. 15 Q. Did Mr. Methvin's role change at all during 16 this time period where there was a switch of firms? 17 A. No. 18 Q. There was also a firm here in St. Louis, 19 Coburn, Croft and Putzell at the time -- 20 A. Putzell, yes. 21 Q. -- that became involved in thislitigation. 22 Recall that? 23 A. They didsome verycircumscribed work for 24 us. 25 Q. Do you recall what that work was that they WATER PCB-SD0000043140 65 1 were hired to do? 2 A. My recollection is that we asked one of the 3 attorneys at Coburn and Croft to provide us assistance 4 in getting material on, and I think maybe even serving a 5 subpoena on one of the prospective plaintiffs' 6 witnesses. 7 That particular witness -- I believe it was 8 Dr. Zoltowski -- is one that we had seen in litigation 9 that the Coburn Croft firm had handled for us in the 10 past, and as to which they developed significant 11 expertise . 12 Q. Is Dr. Zoltowski located here in St. Louis? 13 A. No. I think he's in Illinois. Might have 14 been at SIU Edwardsville. 15 Q. Was that the only role that Coburn and 16 Croft or Coburn, Croft and Putzell was intended to serve 17 in the LSU litigation? 18 A. There may have been other, as I say, 19 circumscribed tasks that we asked them to perform, but 20 that's the main one that I recall. 21 Q. You don't recall any otherspecific tasks 22 at this time? 23 A. Not specifically. 24 Q. Did you agree to pay the same rates that 25 Coburn Croft had charged in the past? WATER PCB-SD0000043141 66 1 A. Yes. They were currently working for us on 2 other matters. It was the same fee arrangement we had 3 in other cases. 4 Q. Do you know if that was their standard rate 5 or discount? 6 A. That was a discounted rate. 7 Q. Recall what that discounted rate was? 8 A. Back in 1988 I couldn't tell you, no, but 9 it was below their standard hourly rate. 10 Q. Husch and Eppenberger also became involved 11 in the LSU litigation. Is that correct? 12 A. I believe they had a minor role. 13 Q. I believe out of their Decatur, Illinois 14 office. Is that correct? 15 A. That's probably right. I don't recall 16 specifically. 17 Q. Do you remember what the purpose of Husch 18 Eppenberger's involvement in the litigation was? 19 A. No, I don't. Again, my recollection is it 20 was a fairly circumscribed task, but what it was I just 21 don't recall. 22 Q. Would Husch and Eppenberger have charged 23 you their standard rate or discounted rate at that time? 24 A. It was a discounted rate. 25 Q. Had Husch and Eppenberger worked for WATER PCB-SD0000043142 67 1 Monsanto prior to their involvement in the LSU 2 litigation? 3 A. Yes. They were currently handling in fact 4 several PCB cases for us. 5 Q. Do you recall any other firms being 6 involved in the defense of the LSU litigation on behalf 7 of Monsanto? 8 A. Law firms? 9 Q. Yes. 10 A. I don't recallany other law firm having a 11 substantive role in this case. There may have been --- I 12 mean, from time to time we would contact firms that 13 might have information on a particular expert or 14 particular topic and ask them if there is material they 15 can provide. 16 But the firms that you have just mentioned 17 are the only law firms that I recall having anything 18 like a substantive role in the case. 19 Q. Are they the only firms that submitted 20 legal bills to Monsanto in the case? 21 A. I don't know. 22 Q. You can't think of anyone else as you sit 23 here today? 24 A. That's correct. 25 Q. Whose job was it to evaluate the potential WATER PCB-SD0000043143 68 1 of these cases in Louisiana as far as trial potential, 2 verdict potential, that type thing? 3 A. That was a collaborative effort. 4 Q. Were you ever given an evaluation by any 5 firm of the potential verdicts in the Louisiana 6 litigation? 7 A. Not a specific dollar amount, no. 8 Q. What were you told about the potential 9 verdicts? 10 A. The general conversation was along the 11 lines of Louisiana being a very dangerous state. By 12 dangerous I mean it's not defendant friendly, 13 particularly for large companies like Monsanto. 14 In the particular circumstances of this 15 case there was a great deal of publicity of injury 16 reports because of the involvement of the fire 17 department which is, you know, a very well regarded 18 institution in Shreveport; 19 That the publicity was very adverse to our 20 interests in the case and that the plaintiffs' counsel 21 involved, while perhaps not experienced in toxic tort 22 cases, were, at least one of them was a very capable 23 trial lawyer who had obtained large verdicts in the 24 past, and that we anticipated he would make a serious 25 effort to get a large sum of money in this case as well. WATER PCB-SD0000043144 69 1 In addition to that there was the 2 involvement of a couple of experts who were then in the 3 process of publishing or attempting to have published 4 some scientific articles that purported to find health 5 effects associated with exposure to PCB's. We regarded 6 those experts as not being good scientists, junk 7 scientists. As a matter of fact one of them was 8 connected with the Church of Scientology in Los Angeles. 9 Q. Who was that doctor? 10 A. The individual was Dr. Megan Shields. As I 11 recall she may have had other -- Health Med was her 12 firm. 13 They had been involved in providing 14 "treatment," in quotes, for the LSU firemen and making 15 some public pronouncements about the impact on the 16 health of the firemen that could be expected to result 17 from their exposure at LSU. 18 All of this created what we regarded as a 19 very, very dangerous atmosphere down there, one in which 20 if the case were not handled with great care, there 21 would, it could be a serious loss. 22 Take a break? 23 Q. Certainly. 24 (Whereupon, a short break was taken.) 25 Q. Sir, I think you said before, but I just WATER PCB-SD0000043145 70 1 want to make sure. You were never given a specific 2 dollar amount as to the evaluation of the potential 3 verdicts in the LSU litigation, were you? 4. A. That's correct. 5 Q. You said that you considered it a serious 6 potential loss. What dollar amount do you mean would be 7 a serious potential loss to Monsanto? 8 A. Well, I don't want to characterize it a 9 serious loss to Monsanto. But I would say the verdict 10 potential in this case seemed to me to be at worst 11 certainly several millions of dollars. 12 Q. I just want to deal with what you meant a 13 little bit. When you said it was not a potential loss 14 to Monsanto, a serious potential loss to Monsanto, was 15 it a serious potential loss to someone else? 16 A. That isn't what I meant to say. Your 17 question was, or I heard it being, what would be a 18 serious potential loss to Monsanto. 19 My answer was declining to characterize it 20 in those terms but to give you my impression as to what 21 the dollar amount of the verdicts might be. 22 Q. And those verdicts we're talking about 23 would be verdicts rendered in the LSU litigation against 24 Monsanto? 25 A. Yes, and others in the case. WATER PCB-SD0000043146 71 1 Q. Were you ever given an evaluation by any 2 firm of the potential settlement range for the Louisiana 3' litigation? 4 A. I know we had discussions about that. I 5 can't remember any specifics though. And Mr. Newport 6 was on point at that time. I know we discussed it. I 7 just can't recall the specifics. 8 Q. But you do recall discussing, participating 9 in a settlement of those cases? 10 A. What I recall in general is discussing what 11 we believed it would take to settle the case, the cases. 12 Q. Can you recall if that figure was in the 13 millions of dollars? 14 MR. CARNEY: Which point in time are you 15 talking about? 16 Q. (By Mr. Harfst) When these discussions 17 were going on. Was there more than one discussion about 18 settlement value in these cases? 19 A. Yes. Settlement is something we would 20 visit periodically. 21 Q. Do you remember at any period of time what 22 the general range of those settlement amounts was? 23 A. It varied over time. And again, I'm sorry, 24 I just can't recall specific numbers. It may have 25 been -- we didn't get specific numbers certainly early WATER PCB-SD0000043147 72 1 on in the case, but my recollection is that it was our 2 view that the settlement or the amount it would take to 3 isettle the case early on was fairly significant. 4 Q. Fairly significant meaning in the millions 5 of dollars? 6 A. At that point early on it probably would 7 have taken more than a million dollars to settle the 8 case, certainly for all 120 of the plaintiffs that were 9 involved at that point. 10 Q. Mr. Newport, however, you said was taking 11 the lead at those times in those discussions on 12 Monsanto's behalf. Right? 13 A. Mr. Newport was in day-to-day charge of the 14 case beginning in late '90 or early '91. When he came 15 aboard he would have been the one who had discussions 16 about settlement possibilities with counsel. 17 Q. It would have been Mr. Venker prior to 18 that? 19 A. If there were such discussions at that 20 time, yeah, it would have been Mr. Venker. 21 Q. Does Monsanto have a general policy of 22 never participating in paying a settlement on a PCB 23 case? 24 A. No. 25 Q. Has Monsanto paid on settlements in PCB WATER PCB-SD0000043148 73 1 cases in the past? 2 A. Certainly we have settled PCB eases, yes. 3 Q. Had Monsanto settled PCB cases prior to the 4 LSU lawsuits being settled? 5 A. Yes. 6 Q. The LSU litigation was settled. Correct? 7 A. Yes. 8 Q. Before trial? 9 A. The case was not tried. It was settled. 10 Q. Monsanto did not participate in paying any 11 settlement money on those cases. Correct? 12 A. Correct. 13 Q. Monsanto was released from liability in 14 those cases, however? 15 A. That's my understanding. 16 Q. Do you know why that was? 17 MR. CARNEYs Let me object because that 18 might call for this witness to speculate inside the 19 minds of everybody as to why they made such an 20 agreement. 21 Q. (By Mr. Harfst) Do you know what 22 circumstances led to Monsanto being released from 23 liability in those cases, having not participated in 24 paying any settlement money? 25 A. It was my understanding that Gould settled WATER PCB-SD0000043149 75 1 Q. Are you aware of anyone on Gould's behalf 2 having represented to Monsanto that they believed the ' 3 Special Undertaking was enforceable? 4 A. I am not aware of the specific terms of the 5 conversations between Gould and Monsanto 6 representatives. 7 It's my understanding that, as I said 8 before, that Gould agreed to settle these cases on its 9 behalf and on Monsanto's behalf because of the Special 10 Undertaking. 11 Q. Why do you understand that it was because 12 of the Special Undertaking that they agreed to settle on 13 behalf of Monsanto and theirselves? 14 A. As I recall, that's how it was presented to 15 me. 16 Q. Who presented it to you like that? 17 A. I had spoken to Mr. Newport about it when 18 he advised me Gould was in fact settling the cases. I 19 don't recall whether I spoke to anyone else about that 20 or anyone else brought that information to me. 21 Q. And you said earlier that you don't 22 remember Mr. Newport telling you any of the specific 23 conversations that were had between him and 24 representatives of Gould? 25 A. He may have. But as I sit here I can't WATER PCB-SD0000043150 76 1 recall -- I just don't remember whether we did talk 2 .about specifics or not.= Just.don't recall. 3 Q. At any time during'the'pendency of the LSU i litigation, did Monsanto tender its legal bills to ITE 5/ or Gould? 6 MR. CARNEYs Object to this. I think there 7 is specific documentation on that which would speak for 8 itself. 9 A. I don't remember specifically whether that 10 occurred, whether during the pendency of the case or at 11 some other date. I wasn't a day-to-day supervisor of 12 that case at that point. 13 Q. (By Mr. Harfst) At the time that Monsanto 14 made its formal demand on Gould under the Special 15 Undertaking, did you, you being Monsanto, allow Gould or 16 its representatives to review Monsanto's bills in that 17 case? 18 MR. CARNEY: Object to the question. I 19 think it's vague as to what you mean by allow. I don't 20 know that there was any request, so it seems to me vague 21 as to what you mean by allow. So it's really 22 hypothetical as to what Monsanto would have done. 23 Q. (By Mr. Harfst) Are you aware of anyone 24 from Gould or its representatives reviewing Monsanto's 25 bills at any time during the pendency of the LSU WATER PCB-SD0000043151 77 1 litigation? 2 A.. I'm .not sure again. with respect to the 3 pendency of the litigation, but I know that we did 4 supply our bills or outside counsel fees and expenses to 5 Gould representatives for their examination. 6 Q. But you don't recall when that was? 7 A. I don't recall specifically, no. 8 Q. At the time that Monsanto made its formal 9 demand on Gould, did Monsanto inform Gould of what its 10 billing practices were? 11 A. I think the demand was a written demand and 12 it says what it says. I don't recall all of the 13 contents of that. 14 Q. At any time during the pendency of the LSU 15 litigation, was Gould given the opportunity to select 16 the firm or firms that would represent Monsanto? 17 A. I don't know what you mean by given the 18 opportunity. My recollection is that they, is that 19 Gould never requested to do that. 20 Q. Okay. Do you know what would have happened 21 had they requested to select counsel for Monsanto in the 22 LSU litigation? 23 MR. CARNEY: Objection. Calls for 24 speculation. It's hypothetical. Never took place. 25 A. That truly is hypothetical. WATER PCB-SD0000043152 78 Q. (By Mr. Harfst) Do you know what would have, happened? A. I can't'tell you, no, because it's a hypothetical question. Q. Has Monsanto ever allowed another company to hire counsel on its behalf under the terms of the Special Undertaking? MR. CARNEY: Where specific request was made? Q. (By Mr. Harfst) At any time have you ever done that? A. Yes. Q. When was that? A. We had a, an agreement with Westinghouse regarding some California litigation in which counsel for Westinghouse jointly represented Monsanto and Westinghouse. Q. When was that? A. It was roughly in the time period that, the late '80s, 1988, '89, maybe '90. Q. cases? Do you recall the name of the case or A. I don't remember the name of all the individual cases in general. It was the One Market Plaza litigation in San Francisco. WATER PCB-SD0000043153 79 Q. Was it the Bronson, Bronson and McKinnon firm that represented both Westinghouse and Monsanto in that litigation? A. No. Q. Do you remember what firm it was? A. Thelen, Marrin, Johnson and Bridges. Q. T-h-i-e-l-e-n? A. T-h-e-l-e-n, M-a-r-r-i-n, Johnson and Bridges. Q. Did Monsanto originally hire counsel in the One Market Plaza cases to represent Monsanto in California in those cases? A. Yes. Q. And after that case was pending, Monsanto asked Westinghouse to undertake the defense of that litigation? A. Yes, sir. Q. And Westinghouse agreed? A. Eventually. Q. What happened? Was it just a period of time and negotiations that happened between the time Monsanto demanded that and the time that Westinghouse agreed? A. Yeah. The discussions and negotiations took place over a period of time, after which WATER PCB-SD0000043154 80 Westinghouse agreed to honor the Special Undertaking. ... Q. Was there ever a lawsuit filed in that situation? A. Well, there were lawsuits pending, yes. That's what gave rise to the Special Undertaking obligation. Q. What I'm asking about is a lawsuit between Monsanto and Westinghouse regarding the Special Undertaking. A. No, there was no lawsuit. Q. At any other time has any other party to the Special Undertaking hired counsel to represent Monsanto on a PCB case? A. Not that I'm aware of. Not that I can recall. Q. So this was the only one incident that you can recall? A. That's the only one I can recall, yes. Q. During the pendency of the Louisiana litigation, did Monsanto have internal procedures as to how legal bills would be paid once they were received at Monsanto? A. Yes. Q. I think you indicated earlier that the bills would go to the in-house counsel who was assigned WATER PCB-SD0000043155 81 1 to the particular case. Is that correct? 2 A. That's correct. 3 Q. . What would happen after that? 4 A. Well, when the bill is received by control 5 counsel, in-house counsel, it's reviewed. Any questions 6 that appear from review of the bill then would be 7 referred back to the law firm and resolved, if there 8 were any questions. 9 At that point the bill would be approved by 10 the in-house counsel, and depending upon the amount of 11 the bill it may be reviewed by somebody else and then 12 forwarded to our Accounts Payable group for payment. 13 Q. Do you know on the LSU litigation what the 14 amount of the bill would be that would require 15 additional approval by another attorney? 16 A. It wasn't just specific LSU. There were 17 general guidelines that we had. 18 Q. What were the guidelines that applied to 19 the LSU litigation? 20 A. In particular -- well, as I said the same 21 guidelines that applied really generally across the 22 board to all litigation bills, but that a bill from a 23 law firm in excess of $20,000 would require approval by, 24 depending upon when, either Mr. Berendt or me. 25 Q. Were there some amounts that you could WATER PCB-SD0000043156 82 1 approve and higher amounts Berendt had to approve? 2 A. Again, depending upon the time period. In 3 my position at Monsanto I was bound by the $20,000 limit 4. for many years so that bills that came to me in excess 5 of 20,000, I would be required to seek Mr. Berendt's 6 approval on. 7 Q. Were there any other gradations in the 8 amounts of bills, or were there bills below $20,000 that 9 you at that time and Mr. Venker and Mr. Newport could 10 approve, and bills over 20,000 that you after your 11 promotion and Mr. Berendt could approve, or was there 12 another 40,000 line and $100,000 line? 13 A. As far as Mr. Berendt's approval authority 14 went, there was no limit on that. He was our chief 15 litigation lawyer and had authority to approve outside 16 counsel bills in any amount. 17 There were other approvals that were 18 required before the bill could be paid, other than just 19 Law Department approval. 20 The Accounts Payable group had a procedure 21 that it went through more to assess, I think, the 22 arithmetic accuracy of the bill. 23 Depending on the amount of the bill -- I'm 24 not sure what the dollar cut off was -- review was then 25 required by the General Counsel for the specific WATER PCB-SD0000043157 83 1 business group at Monsanto that at that time was 2 responsible for PCB's. 3 . Q. Okay. And do you currently in your 4 position at Monsanto have any level of approving bills 5 that you don't have? Do you understand that question? 6 A. I understand. I'm just trying to think 7 whether -- I've not -- I think right now my approval 8 level is what Berendt's was before he retired. 9 Q. Which was unlimited? 10 A. Yeah. 11 Q. Was advance authority required forany type 12 of expenses or fees on the LSU litigation? 13 MR. CARNEY: Well, it's a compound 14 question. I think you have covered it with regard to 15 fees so it's repetitive. I don't know if you want him 16 to repeat that. 17 I don't think you have asked him in regard 18 to expenses. 19 Q. (By Mr. Harfst) Let me repeat it with 20 regard to fees. Was advance authority required for any 21 of the fees billed on the LSU litigation? 22 A. Advance authority is alwaysrequiredbefore 23 a significant project is undertaken in any of these 24 cases. It's not necessarily a formal process. 25 But as I described earlier, we get involved WATER PCB-SD0000043158 84 1 very closely with counsel, and we understand what goes 2 on in the case. And we agree with counsel on the 3 advisability or not advisability of undertaking a 4 specific project. 5 And whether it's a motion or, you know, 6 another significant effort undertaken in the lawsuit, 7 that' s, something that is arrived at a decision to go 8 forward on, that would be one that the Monsanto lawyer 9 would be involved in. 10 Q. Is there any formal written procedure for 11 approving significant projects? 12 A. No. 13 Q. Was advance authority required in the LSU 14 litigation for payment of expenses? 15 A. Again, this is not specifically applicable 16 to LSU, but in general our policy is that the normal 17 day-to-day expenses are to be itemized on a bill and 18 submitted for payment along with counsel's fees. 19 Any expense of any significant amount - 20 and informally I usually tell counsel if it's more than 21 three or four thousand you better ask me about it. For 22 example, retaining a consultant to do a significant 23 amount of work on the case would require approval. 24 Q. During the process of reviewing the bill 25 j undertaken by the control counsel, does the control L WATER PCB-SD0000043159 85 1 counsel have the duty to review every bill line by line, 2 entry by entry? 3 A. That's the expectation, yes. 4 Q. And when you did that as a control counsel 5 on some cases, did you ever refuse to pay any specific 6 items in bills? 7 A. That happens, yes. Fortunately not 8 terribly often, but it does happen. 9 Q. Did you ever do that type of review on any 10 of the bills in the LSU litigation? 11 A. I did early on. 12 Q. Until Mr. Venker -- 13 A. Until he came on. 14 Q. During that time period while you were 15 performing the review of the bills on the LSU 16 litigation, do you recall having refused to pay any of 17 the items on those bills? 18 A. I don't recall ever questioning any of the 19 items, but that's been awhile ago. 20 Q. Do you know whether or not Mr. Venker or 21 Mr. Newport questioned any particular items on the bills 22 in the LSU litigation? 23 A. I know they did. 24 Q. Do you know any specific things that they 25 questioned? WATER PCB-SD0000043160 86 1 A. Not specifically. I know in general we had 2 an ongoing dialogue with counsel about the expenses 3 being undertaken in getting the depositions in 4 California. 5 There may have been other things. There 6 was some discussion about briefing in a couple 7 instances, but again it's not real -- I don't have 8 specific recollection of specific lawyers or expenses or 9 dates or anything, other than just the general 10 recollection that those discussions took place. 11 Q. Would Mr. Venker and Mr. Newport have been 12 more involved in those discussions? 13 A. Yes. 14 Q. Did Monsanto ever undertake to have legal 15 bills audited by an outside firm? 16 A. A legal fees auditing firm? 17 Q. Sure. 18 A. No. 19 Q. They have never done that since you have 20 worked for Monsanto? 21 A. Not that I can recall. 22 Q. During the time period when you were 23 reviewing the bills in the LSU litigation, did you ever 24 request any of the work product to compare with the 25 1 billing entry from any particular firm? J WATER PCB-SD0000043161 87 1 MR. CARNEY: I'm sorry. Read that or maybe 2 just restate it. 3 Q. (By Mr. Harfst) At the time period when 4 you were reviewing the bills at LSU, did you ever look 5 at a bill and then request a copy of a document from the 6 law firm to compare with the bill? 7 MR. CARNEY: Where he didn't have it 8 already? 9 Q. (By Mr. Harfst) Correct. 10 A. I had it. I mean, any significant project 11 would be one that I would, was involved in. I would 12 have looked at a brief or whatever it happened to be. 13 Q. During that same time period, do you ever 14 recall specifically looking at a bill at the same time 15 that you were looking at a document that had been 16 prepared in that litigation, in order to see whether the 17 amount of time billed for the document was justified? 18 MR. CARNEY: You are talking about 19 something at the same time as opposed to looking at it 20 several weeks earlier and then -- 21 Q. (By Mr. Harfst) Correct. 22 A. I don't recall having done that. 23 Q. Have you ever done that at any time while 24 working for Monsanto? 25 A. Certainly. WATER PCB-SD0000043162 88 1 MR. HARFSTs Mr. Bistline, that's all the 2 questions I have for you at this time. Mr. Carney, do 3 you want to explain signature to your client or should 4. I? 5 MR. CARNEYs We will probably read the 6 deposition. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 WATER PCB-SD0000043163 89 STATE OF MISSOURI COUNTY OF ST. LOUIS ) ) SS ) I, PEGGY A. DEAN, a Certified Court Reporter' and a duly commissioned Notary Public within and for the State of Missouri, do hereby certify that pursuant to agreement there came before me at the offices of Husch & Eppenberger, 100 North Broadway, St. Louis, MO, THOMAS MICHAEL BISTLINE, who was by me first duly sworn to testify to the truth and nothing but the truth of all knowledge touching and concerning the matters in controversy in this cause; that the witness was thereupon examined under oath and said examination was reduced to writing by me; that the signature of the witness was not waived by agreement of all parties; and that this deposition is a true and correct record of the testimony given by the witness. I further certify that I am neither attorney nor counsel for nor related nor employed by any of the parties to the action in which this deposition is taken; further, that I am not a relative or employee of any attorney or counsel employed by the parties hereto or financially interested in this action. IN WITNESS WHEREOF, I have hereunto set my hand and seal on August 17, 1996. My commission expires February 28, 1999. Peggy A. Dean Notary Public within for the State of MO St. Louis County and WATER PCB-SD0000043164 90 COMES NOW THE WITNESS, THOMAS MICHAEL BISTLINE, and having read the foregoing transcript of the deposition taken on the 14th day of August, 1996, acknowledges by signature hereto that it is a true and accurate transcript of the testimony given on the date hereinabove mentioned. THOMAS MICHAEL BISTLINE Subscribed and sworn to me before this day of , 1996. expires: My Commission Notary Public WATER PCB-SD0000043165 92 IN THE CIRCUIT COURT OF THE COUNTY OF ST. LOUIS STATE OF MISSOURI . MONSANTO COMPANY, Plaintiff, vs. GOULD ELECTRONICS, INC., Defendant. ) Cause No. 649249 ) ) ) CERTIFICATE OF REPORTER Deposition of Thomas Bistline, taken on August 14, 1996. Total number of pages: 92 Name and address of person having custody of the original transcript: Brown & James 705 Olive St. Louis, MO 63101 For signature: Transcript temporarily held at Gateway Reporting Associates, Inc.. TAXED IN FAVOR OF: Brown St James Total $287.80 705 Olive St. Louis, MO TAXED IN FAVOR OF: Husch St Eppenberger 100 N. Broadway St. Louis, MO Total $119.60 Upon delivery of transcripts, the above charges had not been paid. It is anticipated that all charges will be paid in the normal course of business. IN WITNESS WHEREOF, I have hereunto set my hand and seal on August 17, 1996. Notary Public My commission expires February 28, 1999. WATER PCB-SD0000043166