Document Zo5Z59DymJwK5Mzp6Dq6e4y8

1 IH TEE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS 2 ST. CLAIR COUNTY 3 4 FRANCES E. KEMNER, et al.f 5 Plaintiffs, 6 7 MONSANTO COMPANY 8 Defendant 9 ) ) ) ) ) CAUSE NO. 80-L-970 ) ) ) ) 10 REPORT OF PROCEEDINGS 11 Before the HONORABLE RICHARD P. GOLDENHERSH 12 Testimony of Mr. P h o d o n Park 13 Volume II 14 April 16, 1985 IS 16 APPEARANCES: 17 MR. REX CARR, Attorney at Law, and MR. JEROME SEIGFREID, Attorney at Lav, 18 On behalf of the Plaintiffs; 19 MR. JOHN MUSGRAVE, Attorney at Law, and MR. JOSEPH NASSIF, Attorney at Law, 20 On behalf of the Defendants; and 21 MR. JAMES CRAVEN, Attorney at Law 22 23 PATRICIA A. GANDY, CSR, RPR 24 Official Court Reporter 1 INDEX 2 WITNESSES! 3 HR. PBOCION PARK 4 Continued Clarification Examination b y ............ 75 Hr. Kuograve 5 Racrosa Examination by Mr. C a r r .................. 141 6 7 8 EXHIBITS: 9 NUMBER HARKED OFFERED ADMITTED 10 Defendant's Exhibit 883 11 Defendant's Exhibit 884 12 Defendant's Exhibit 885 13 Defendant's Exhibit 886 14 Defendant's Exhibit 887 94 113 127 133 133 15 16 17 In~Cfoambera Conference page 75 18 19 20 21 22 23 24 1 (The following proceedings vers hsld In chambers.) 2 HR. CRATER: Judge* two things* 1 have been working on the 3 Petition for Leave to Appeal In the gag order thing* and necessarily read 4 It again* end tomorrow I am staking a speech at Southern Illinois University 5 to the law school and the Journalism school* Including media representatives 6 And the subject setter of ny speech Is the First Amendment* end I think 7 there is still some of It left* end I want to talk about It and necessarily 8 that would Include this gag order. 9 THE COURT: It's a published opinion* 10 HR* CRATER: But you can't talk about tha gag order without 11 Intimating the existence of this case, and the geg order has an express, 12 proscription against the mention of this cess* . Hy training is such* whether 13 I agree or disagree with an order* X am not going to violate one* 14 THE COURT: I understand that and appreciate that. 15 HR* CRATER: And X don't want to do anything that would open me 16 up to on assertion of violation* so I'm asking for clarification or somethin 17 or an understanding that X can make a speech to a Journalism and lav school 18 group on the First Amendment end talk about this gag order with Impunity* . 19 HR* CARR: Whet you ere asking for la relief from the gag order. 20 You want tha Court to give you dispensation In your Instance from the geg 21 order is whet you are saying; Is that correct? 22 HR. CRATER: I'm saying that X recognise that this gag order says 23 that es an attornay for Monsanto I cannot mention this ease or Intimate lta 24 existence or Its trial or any particular facta or clrcumatascaa or position 1 of the parties concerning tha litigation. Now, Judge, you can't talk about 2 a gag order* That would be Immaculate, and that's my problem* 3 TBS COURT: Do you hove any ceoBsatf 4 MR* CARR: The Plaintiff's position, is that since Jim has chosen 5 to align M a s s i f with the devil, he has to oblige himself to obey the rules 6 -that apply to the devil, and the gag order would apply to him, and Jim 7 knows that if he spoke before the media in terms critical of the gag order, 8 which he would do because he doss, that it's entirely possible that the 9 press could pick that up* It's entirely possible that it could be published 10 in the Post-Dispatch and put on TV, "ex-appellate Judge criticizes", and M they may not even mention, they may not even know that you represent 12 Monsanto, and this Jury could conceivably read that newspaper publication 13 and could conceivably be influenced by it* Now, I'm not suggesting that 14 that's the reason you ore going down there to make this speech, but it 15 could occur, and Z don't see personally why there should bs any different 16 rules for you than there ie for other lawyers retained and paid for by 17 Monsanto because it could get to the. press, it could conceivably bs read 18 by the Jury, It could conceivably influence their deliberations. 19 MR* CRAVEN t It would bs the first time sines William the 20 Conqueror landed that e lawyer is precluded from talking about a published 21 opinion. Now, I think that's not an ovsrststement, and surely that's not 22 the ground rule. 23 MR. CARR: Wall, it's the first time that Z on aware of that a 24 published opinion has come out while the cose Is still being tried, end it's Che first time that Z Imsv of that-- 1 2 ME* CRAVES: Look at all of the CB8 eases* 3 MR* CASE! -- that the lawyer for one of the parties to that ease 4 is wanting to speak publicly about the case that's ongoing and being tried 5 and to teaks a speech In front of media, which would of necessity criticise this Court because that's what you believe and with necessity could Influent 6 7 the outcoms of this case* And while I am not saying that you would design It so it could be so interpreted and I personally would be opposed to 8 9 lifting the gag order and making an exception for you* 10 MR. CRAVES: Clearly the reason I'a bare la the dilemma that's 11 posed by this* 12 THE COURT: I appreciate your checking with me before rather than 13 after* 14 MR* CRAVEN: That's right Z don't went the problem afterwards ' E- 15 end X have no choice but to abide* Z have no intention to make any attack 16 other than the type of attack that X make In the Appellate Court dr that 17 we are making In the Petition for Leave and Z know that this Court la not 18 sensitive to people challenging a decision. 19 THE COURT: Of course not* 20 MR* CRAVES: So one could be* You would go bonkers if you suffered 21 that* And It's going to come up I'm talking to tha Journalism collage 22 Z'm talking to the law school-- 23 THE COURT: SO Z'm glad that you checked It out because If you 24 don't bring It up someone would ask you anyway. Z think unfortunately sines 1 you era In the position of representing Monsanto, It'a the typa of situation 2 hero I think this order that I hod entered would have to apply* ?And I don*I: 3 think-- the problem Is you're sort of wearing two hats* 4 ME* CRAVE: I'm not speaking to a-- I'm not there as an advocate. 5 IBS COURT I Z understand that, but you do represent Monsanto. 6 MR.CRAVEH: That's right. 7 THE COURT: And that's the problem, and I understand that when you' 8 speaking to these Journalism students and any actively working people of the 9 media who would be there as well as any lav students who would come by, you 10 would be speaking as a former Appellate Court justice and an attorney active 11 In this area, and Z understand that. But you are also representing Monsanto, 12 you are one of their retained attorneys. And because of that, and because 13 of this position, and realistically, the problems that Hr. Carr pointed out, 14 Z would like to grant you the relief, but Z think that it would be unwise to 15 do so* So you are under the gag order and you can, you know, yea, Z was 16 involved, I am under the gag order, Z can't answer the question. 17 ME. CRAVEH: Z can't mention the gag order. 18 THE COURT: Well, you just say I'm Involved in the case and Z 19 can't talk about It or answer any questions about It, period. Zt'a really 20 like that, and Z have found from my experience, end I'm sure you have from 21 yours since your Judicial experience Is substantially longer that audiences 22 pretty much accept, If you say I can't say certain things because of ay 23 position and Z will tall you when I can't, I have never bad any problem 24 with that, freckly. 1 Ml. CRAVENt I will abide the limitations. 1 don't like then, but 2 I will abide by them. 3 THE COURT: X understand that. 4 MR. CRAVES: Her, the. other thing it relates to, X was here last 5 week and ve gave you for In camera Inspection a piece of paper showing 6 litigation eosts. 7 THE COURT: Right. 8' MR. CRAVES: And we took the position that It was not discoverable 9 and X now learn that you have turned It over you excised-- 10 THE COURT: I excised some of it and X ordered the other part 11 turned over. 12 UR. CRAVES: Sow there le what ve think In even e stronger 13 category but In view of the expanding nature of all of this thing and In 14 the Interest of getting absolutely no questions outside counsel in connect! IS with other litigation have hired consultants. And these consultants have 16 worked with those lawyers In that litigation to give them material. 17 THE COURT: Um ham. 18 MR. CRAVES: And It was used by them In connection with other 19 litigation. 20 THE COURT: Us bins. 21 MR. CRAVES: And it was not deemed-- if the question was raised I 22 don't even know that the question was raised but It was not discoverable in 23 that litigation as a product of lawyers. Soma of that material Is In the 24 file of .some of the ln-house lawyers who worked with the outside counsel. 1 THE COURTS Sure 2 'HR* CRAVEN: We're representing to you that that's bat the fact 3 Isv don't think that's even remotely discoverable but ve don't want 4 to be In the position of having someone assert at a future time that it is 5 discoverable or that it was any bad faith* And so to obviate that ve'ra 6 talking about it no I don't know if you want us to try to dig that up 7 and make It-- 8 THE COURT: I'd like to see it In camera. 9 MR CRAVEN: But then Judge we have the further feeling on 10 this that clearly If you say produce It ve have to produce It and ve will. 11 But we also X think are entitled shoving that ve are In good faith, 12 ve are entitled to soma kind of a slow-down in the process to allow us to 13 attempt to get a supervisory order In the event there la s turn over order 14 because we think that that is d e s r l y a lawyer's work product. And X am 15 Just anticipating and laying the foundation for a "Hey, let us get a chance 16 to go up In case of that." But ve have to go through and find this stuff 17 and it's In files relating to other litigation. 18 THE COURT: Um hmra. 19 MR. CRAVEN: It's going to take one time to, veil, mostly time, 20 It's going to take time* We will also present to the Court affidavits of 21 their lawyers involved, identifying the litigation, the nature of the 22 Investigating work dona by the consultants, and the reason for our firm 23 belief is that It's not discoverable. 24 TBS COURT: Fine, good 1 MR. CRAVENz No problem* I have a feeling that you didn't say 2 yea yon would give u b -- 3 THE COURT: No, 1 didn't eay that* Veil do you have anything 4 you want to aay on that? 5 MR. CASE: No* I think you hove to eae it first* and obviously 6 no point In arguing whether or not you should give them time. The Court 7 already knows our position* This la an ongoing lawsuit* We can't just sit 8 around and wait for counsel to try to stay parts of this case. We have no 9 time for that* We are rapidly* well* rapidly* very slowly getting to the 10 point where Plaintiff is going to rest* and there would not be tlx&e enough H to go up on any supervisory orders* and I know this Court is perfectly 12 capable of knowing whet la discoverable and what Is not. 13 THE COURT: The problem with allowing the time for any appellate 14 process to work hss been In the last few Instances where It has come up Is 15 that things which should hove been produced In my opinion before In 16 response to other matters are produced at the last minute In the midst of / 17 their being relevant to what Is at Issue while the production bss gone on* 18 while the In camera inspection has gone, on* and then a request to halt 19 everything basically or halt the use of this in order to ellow an appellate 20 review by supervisory order* or however to take place* And the timing of it 21 especially in light of the feet that these material#; were responsive to 22 matters filed a long tins before In which context would have been no 23 practical problem* It has really made it a problem In the past* I have had 24 situations where I have ordered matters turned over* end I specifically 1 remember Hr Helnexnan one* asking me Co hold up for ten days so they could 2 decide hither to do thac or whatever. X ean'c commit myself on way or 3 another, la what 1 aa trying to ay, and It just depends, X don't know what 4 you are producing to toe, and X haven't seen your arguments, I haven't seen 5 your affidavits, I aa not about to prejudge an argument or do-- 1 know 1 6 can't anticipate what X aa going to say. 7 MR CRAVES: X know, of course, that Justice Goldehhersh will 8 recuse himself, and If wa try to do this on an expedited basis, this would 9 put me Into the position of going to the next closest Judge In the Supreme 10 Court trying to get a stay 11 THE COURT: Okay, I didn't catch that, 12 _ HR. CRAVES: That's what I was grinning at. I 13 THE COURT: But I will taka your arguments Into consideration* I 14 hopefully If X have learned one thing, it's not to be sensitive about appea: 15 But I have an obligation, I think, clearly to see that this lawsuit Is . 16 handled In the just and expeditious and fair manner, and I am making all of i 17 my decisions in accordance with that obligation of mine, end I will make 18 any decision on this problem that you posed with that same standard as I 19 have In the past, and I will happily take your argument Into consideration. 20 X understand the position you are In 21 MR, CRAVEN: And they are doing the search as fast as they can, 22 THE COURT: Great, thank you, 23 (The following proceedings were held in open Court.) 24 CONTINUED CLARIFICATION EXAMINATION 1` 03 1 BT UR. MUSCRAVE 2 Q Nr. Park, X think when ve broke va were about to digcuas vith 3 regard to Defendant* 880 the policy statement of the EPA regarding 4 Section 8(e) that aection dealing with the nature and sources of Information 5 which reasonably supports the conclusion of substantial risk* And I want 6 to get Into that but before I do X want to direct your attention to 7 another section the portion of the policy that also deals with this 8 subject of Information that reasonably supports the conclusion of substantia), 9 risk. Directing your attention to the first page of the Exhibit, the 10 third column paragraph that's numbered 3 there do you see that? 11 A Yea. 12 Q Does the EFA In there in connection with Its interpretation In any C 13 way refer to what they Interpret reasonably supports the conclusion to mean? 14 A Yea it does elaborate on that a little bit. 15 Q What does It say in that regard? 16 A Well I'm looking I' skipping a little bit where it refers to 17 consent received and so forth or would you like me to read that? IS Q Oeb hmo. 19 A Getting down beginning about eight lines down In Item 3 "The 20 administrator agrees that Section 8(e) addresses information that reasonably 21 supports the conclusion of substantial rlak." And it has delated the "may 22 suggest*1 provision but emphasises that "reasonably supports the conclusion 23 of substantial risk la not identical to a conclusive demonstration of substantial risk." 1 Q All right. So there Is or was a delation in their Interpretation 2 that the Information that they were talking about was merely Information 3 that nay suggest-- 4 A That was the EPA's first proposal. The EPA then changed that to 5 "reasonably supports the conclusion." 6 Q All right. How, so-this substantial risk information that has to 7 be reported under Paragraph rosin numeral 6 on Page 3,. again, that's what 8 we were starting to come to before lunch, there le a whole section deellng 9 .with the EPA's interpretation of what information, what Is the nature and 10 source of that information which reasonably supports the conclusion of 11 substantial risk, is there not, sir? 12 A Tea, there is. 13 Q And X note that there are two categories that are described, and 14 so enumerated, one and two in there, do you see those? IS A Tea. 16 Q And we ere now in the middle column of this page, are we not? 17 A Yes. 18 Q And the first category Is entitled what, sir? 19 A Designed controlled studies. 20 Q And it reads as follows, does it, "In assessing tbs quality of 21 information, the respondent la to consider whether it contains reliable 22 evidence ascribing the effect to the chemical," is that what It states? 23 A That's correct. 24 Q And then It states, "Not only should final results from ouch 1 studies be reported but Iso prellsdnery results from Incomplete studies 2 vers appropriate," is that correct? 3 A Right, that** correct* 4 Q Bov, is the language there talking about reporting studies? Is 5 that the Information that you read that to be referring to? 6 A That's correct, it's information obtained through studies. 7 Q In fact, the next sentence says, "Designed controlled studies 8 include," and then it talks about or rafere to four different types of 9 designed controlled studies? 10 A That's correct. 11 Q So that's one type of information they axe saying if you have that 12 supporta the conclusion of substantial risk you must report; Is that correct 13 A That's correct. 14 i Q How then. Item 2, Paragraph 2 under this roaan numeral 7, vould 15 you read to ua what the caption of that la, or the subcaption? 16 A The second category la titled, "Reports concerning and studies 17 of undesigned, uncontrolled circumstances." 18 Q The distinction between designed and controlled in one above, now 19 wo are talking about undesigned and uncontrolled circumstances ; is that rlgh 20 A That's correct. 21 Q And the language there, I dirset your attention to the last 22 sentence in that column. It starts, "In addition," you see that, sir? 23 A Tea. 24 Q And It states, "In addition, It is possible that effects less 1 serious then those described In part 5(a)* end thosa are the ones we talked 2 bout earlier are they not? 3 A Yes. 4 Q, Birth defects, death, cancar, things like that. It says, *taey be 5 preliminary manifestations of the more serious effects and together with 6 another triggering piece of Information constitute reportable Information,11 7 then they give an example of that, do they not, sir? 8 A Yes. 9 Q And would you read that example to us? 10 A "An example would be e group of exposed workers experiencing 11 dizziness demonstrating neurological disfunctions.11 12 Q And In this Paragraph 2 under reman numeral 7 dealing with 13 uncontrolled and undesigned studies, ere they again talking about reporting 14 i effects that are observed In uncontrolled or undesigned studies; Is that is how you read that, sir? 16 A Ves. I think the conclusion of this Section 2 of, or Subsection 2 17 of Section 6 describes what would be Included In the undesljpted uncontrolled 18 circumstances. 19 Q In fact, at the end there, they state that In the end of Subparagn 20 2 under rosan mssaral 7 there, they state, "Reports," and I am reading now 21 from the top of the third colusn on that page, the first full paragraph, 22 "Reports and studies of undesigned circumstances Include," end then they 23 state msdleal and health surveys, clinical studies, reports concern evidence 24 of affects In consumers, workers, or In the environment. I A Yes 2 4 These ere things thet you eight observe es effects, then? 3 A That's correct. 4 a And thet muid be Infoi itIon thet If you concluded It substantial!1 5 or es the language. If It was Information ditch reasonably supported the 6 conclusion that your particular product, chemical, or mixture thereof 7 presented a substantial risk, that that would be the kind of Information 8 oven though It asn't a controlled study, but yet an uncontrolled study that 9 you would have to report. 10 A Yes. 11 4 But In both Instances hero, undor roman ntneral 7* they are 12 talking about soma type of observation of health effects or studies of 13 health affects, are they not, sir? 14 A That's right. 15 4 Is there anywhere In Paragraph 6, roman numeral 6 here where they 16 refer to reporting contents of e tank car or contents of a chemical? 17 A No. 18 4 tow', even going further Into this policy. Hr. Park, roman numeral 19 7 the next major paragraph talks about Information which need not be 20 reported, does It not, sir? 21 A Yes, It does. 22 4 tow, It's got then Subparagraph A, 8, C, D, end E, and specifies 23 different types of Information, does It not? 24 A Yos i 1 Q. And In each Instance, sir, well, let's Just take one as an 2 example. Subparagraph C* ft says Information need not be reported, then 3 going to C, has been published In scientific literature and referenced by 4 the following abstract services* And then It lists a bunch of those, does 5 It not? i 6 A Yes. I 7 'i d And so there Subparagraph C, Is It talking about pubIIshed 8 Information literature regarding studies or health effects observed or 9 studied? 10 A Yes. 11 d And, for Instance, Subparagraph D. Again, It says It need not be i 12 reported If It Is corroborative, wall-establIshed, adverse effects already 13 documented In the scientific literature and referenced as described In C 14 i above, does It not, sir? i 15 A Yes. . | 16 i d And then It says, unless such Information concerns emergency 17 Incidents.of environmental contamination es described In part 5(c), that's 18 when you have an environmental split type tying? 19 A Yes. 20 d But again, It's talking about Information of adverse effects alrea 21 documented; Isn't that right? 22 A That's correct. 23 d Is there any place In Paragraph roman numeral 7 where they talk 24 t! about Information that need not be reported where again there Is any referenjc 1 to reporting requirement os to tht contents of t tanfc ear as to the oake-ij 2 of tha tank ear or what kind of chemical* are In there or something of that / 3 nature? 4 A No It doesn't appear to be* 5 Q Now Hr* Park If then In assessing a situation one has no 6 substantial risk Information has no Information In their possession which 7 reasonably supports the conclusion that a particular product presents a 8 substantial risk they then are they than required or not required to 9 make a reporting undar SactIon 8(e) as you tntarpret It? 10 A If they have no Information Indicating a substantial risk there 11 would not be an 8(e) reporting obligation* 12 Q And If they have such Information but they know that the EPA Is 13 already aware of that Information of thosa adversa affects from that 14 particular chemical as It Is composed, then do they Hava to report It? IS A No than there Is no reporting obligation. 16 G Now Is there any place In this entire policy statement slr,wher 17 there Is any reference to the Information that the EPA Is talking about the 18 statute Is talking about Is there any reference where Information Is used 19 In the context of requiring the reporting of the chemical contents of the 20 tank car as opposed to the health effects that ere believed to come from the 21 particular chemical? 22 A No reference. 23 G Now Hr. Carr had you or put up on this Plaintiff's Exhibit 1298 24 these various factors considerations that you had mentioned In your testtoo y:,/ 1 And the first one that you Indicate mis must be produced by a party 2 considering notification for a commercial purpose and I think everyone 3 understands what that means It Is a product that's actually going out 4 Into commerce; Is that correct? 5 A . Yeah I think the wording Is I tried to point out earlier when 6 It esma out Is a little bit out of sync, but Item 1 means the party 7 considering notification must be producing the chemical for a commercial 8 purpose. 9 t The party that Is looking at It to determine whether or not they 10 should notify must be producing a product that goes Into commerce? 11 A * Yeah* 12 Q, Then 2 Is must be evidence chemical presents substantial risk of 13 Injury to health and when you use the word evidence were you talking 14 about what? 15 A Really It's Information. There must be Information which 16 . . i reasonably supports the conclusion that the chemical presents a substantial ?7 risk of Injury to the health of the environment. 18 Q That Is the mixture of chemicals that you are looking at In 19 that particular Instance? 20 A Yes. 21 & And then you told him the CPA must not already been aware of It 22 and It tn this case would be that Information that you have which reasonably 23 supports the conclusion that tha chemical or tha mixture does present a sub 24 stantial risk of Injury to health or the environment? 1 A That's correct. 2 Q Now let a* got this out of tho way. Hr. Pork* If you would 3 do you hovo Plaintiff1! Exhibit 1241 up there? That would bo your Booting 4 of January 6, 1981 reportod by your mamerandum dated.January 7 1981? 5 A No I don't have that. 6 (I All right. Lot mediae If t can't find It for you. Lot mo hand 7 you Plaintiff's Exhibit 1241. And that Is tho copy of tha nlnutos that 8 Hr. Carr marked with ragard to tho 8(e) mooting you had on January 6 1981; 9 Is that correct sir? 10 A Yes. 11 $ Now when you convened to consider In this Instance 24-Dfchlorop 12 what was It that you ware looking at sir In particular? 13 A A memo datod October 10 1980. 14 0 Us horn. i IS A Which described tho results of analyses of 81 samples of chtoro~ 16 phenols for the presence of chlorinated dlbenzo*p~dloxlns. 17 0 So you ware looking at tha 2ft4-blchtorcphanol In connection with 18 a report of parts par billion of TCDD In It; Is that corroct? 19 A Yes. 20 0 And determining whether that 2,4~fttchtorophanol.to If you will 21 contaminated or with that level of Impurity In.It was something that 22 constituted e reportable Item under Section 8(e). 23 A That was what was being considered. 24 Q And In looking then at the 24-ptch1ofcphenot were you looking t1 92 f 1 at the level of tha TCDD? 2 A I think wo were really considering whether the Olchlorophenol 3 with whatever TCDD nay have been contained as Indicated by these samples 4 would present a substantial risk of Injury 5 Cl And In fact you conclude do you not In Paragraph k that the 6 extremely low levels of TCDD found In the Dfchloropheno!, particularly 7 with further dilution, diluted by customers1 operations would bo unlikely 8 to causa any health or environmental hazards? 9 A Yes. 10 Q So you were looking at tha entire chsmlcsl and looking at the 11 levels within tha chemical? 12 ( 13 A Yes. Q The levels of TCDD? 14 A Yes. 15 Q how; did you consider at this January 7 or January 6, 1981 meetIrig 16 after you considered the levels that ware there whether you had any 17 Information such as we have Just talked, about as described In the policy 18 statosent, whether you had any such Information that from which you can 19 reasonably conclude that TCDD at that level would present a`substantial 20 risk of Injury to health or the environment? 21 A Welt, I note a sentence In tha end of the fourth paragraph. 22 0, All right, sir. 23 A Stys,,>fho attendee at tha subject meeting was aware of any harm 24 which has been caused to health or the environment as a result of tha trace 1 am ount o f TCDD p r e s e n t to D lc h lo ro p h o n o l. 2 Q You o b v io u s ly hod no s tu d io s t h a t s o ld t h a t TCDD a t t h a t lo v o l 3 In that product was going to causa substantial or presented substantial 4 risk of Injury to health of the environment you had no studies? 5 A No wo did not* 6 Q but as wo pointed out Dr* Park-- excuse me now Hr* Park now 7 I'm doing ft-- the type of Information that the policy talks about undestg 8 and uncontrolled efreuestanees that would be observations of health 9 effects; Is that correct? 10 A Yes that's right. n Q And there was review mode there to see whether you had any such 12 Information free* observation of health effects; Isn't that correct? 13 A Yes* 14 & hew likewise with the May 11 and the Hay 22 meetings In 1979: < 15 on 2h-DIchtorophenot, Plaintiff's Exhibit 1275 do you have that one up 16 there sir? 17 A I don't believe t do. 18 There's 1275 This Is your nwaaorondum dated June 6 1979 and 19 refers to two meetings one on Hay 11 and one on Hay 22 and this was the 20 8(e) meeting where you considered as I recall 246-Trfehlorophenb1 In 21 the 2,h-DIchlorophenol end whether that constituted e reportable Item If 22 you will under Section 8(e)? 23 A Yes* 24 Q And the thrust of the second t should say well I don't think 1 throat Is An appropriate word, but certainly the concentration of the 1 2 discusaIon at the second meeting vas the review of a study, was It not, air? 3 A That's correct, 4 Q And you obtained Dr, Paget's opinion on that study aa to whether 5 or not It vas Information that reasonably supported the conclusion that 6 there vas a substantial, or that that Information reasonably supported the 7 conclusion that the 2,4-Dlchloropheuol vltb those levels of 2,4,6-Trlchloro- 8 phenol presented a substantial risk of Injury to the health of the 9 environment; Is that correct? 10 A The question vaa Injured, yes, as to vhether that would require 11 reporting, I 12 Q Sow, do you not have attached to Plaintiff's Exhibit 1275 your 13 notes, sir? 14 A Ho, I don't, I ' 15 <J I only have one copy of this, but ve will mark it, ,i 16 (Defendant'a Exhibit 883 vas marked for Identification.) 17 Q Hov, Mr, Park, these are your handwritten notes from the second 18 of those two meetings considering the topic of this 2,4-Dlchlorophenol, that 19 is the meeting of May 22, 1979, are they not? 20 A Tea, they are, 21 Q And you have,soma consents In there about what Dr, Paget had to 22 say about this study that you were considering as to vhether or not It was 23 Information that should be reported; len* t that correct? 24 A Tea 1 Q And hat do your notes reflect vlth the comments of Dr. Paget? 2 A That Dr. Paget's conclusion as It as a very poor study. 3 Q All right. Hhnt else does It say there sir? 4 A Veil, it says giving the study the benefit of the doubt* taking 5 it at face value* which Is questionable* Trlchlorophenol seems at worst 6 to be s^weak carcinogen at something like one percent In the diet. 7 Q ' And upon a review of that Information* before Z ask you that* let 8 me ask you this. In your notes* your typewritten notes* Plaintiff's Exhibit 9 1275* Is there any other reference to a possible* or Information with 10 regard to possible adverse health effects other than this one study? 11 A Ho* that's all this memorandum refers to. 12 Q All right. How. with regard* though* to the first meeting on 13 this topic* May 11 1979 because you had tvo* as I understand? 14 A Yeah, that's right. 15 Q You had the May 11 meeting where the subject of this study was 16 raised? 17 A Yes. 18 Q And It was then decided to refer that to Dr. Paget for his input 19 as a toxicologist* for his comments on It; is that correct? 20 A As X recall* and I almost have to refer to my notes to be sure* 21 but at the May 11 meeting-- 22 Q Well* let's get out Che May 11 meeting* sir. Let me give that to 23 you, that's Plaintiff's Exhibit 1288. All right, now* you have In front 24 of you Plaintiff's 1288 that's the May 11 meeting. This would have been 1 the first meeting; is that right? 2 A That's right* And this resulted from the, a notice in the Federal 3 Register about this, this study which had been done by the Rational Cancer 4 Institute, but It was just like a brief reference In the Federal Register, 5 the entire study had not been put into the Federal Register. So at the May 6 14 nesting It vas felt that the entire study in fairness, because hen 7 something Is condensed down or there is a brief s u m a r y of something, It 8 Is felt something might hare been omitted. So It concluded that In fairness 9 the entire study should be obtained and should be reviewed sod that tha 10 seating would be reconvened after It had been accomplished. 11 Q All right. And then Dr. Feget was asked to. look at the study In , 12 detail? 13 A That's right* The study was obtained and was reviewed by Dr. Fage^ 14 Q But pending a review of this information which had now coma to IS your attention, did you not alao at this committee meeting on May 11 16 determine any other Information that would be reportable information under 17 Section 6(e), that would be information that reasonably^supported the 18 conclusion that there was a substantial risk of injury to health or the 19 environment as a result of the levels of 2,4-Trlchlorophenol and 2,4-Dichlorj3 20 phenol? 21 A Tea. Experience with the product Itself was considered and It 22 was pointed out that although it had been in use for many years, at least 23 forty years, according to the memorandum, there ere no known health effects, 24 adverse health effects to health or the environment. 1 Q So from the observations that those present were avare of or had 2 made themselves there vara no Information from those observations as to 3 adverse health effects such as described under 8(a) policy that would 4 constitute under that policy in any way a substantial risk? 5 A That's correct* 6 Q And that is the type of Information 1 believe ve talked about 7 before that the policy seems to be talking about in Section roman numeral 8 6 under Subparagraph 2? 9 A Yes* 10 Q All right. So then you reconvened on May 22 had the report from 11 Dr* Paget as to his review of this Information and the conclusion then 12 at the end of both of these meetings or the end of the May 22 meeting was 13 that there was no information to report it was not a reportable item? 14 A That's right* 15 Q In fact sir your June 6th memo the one that reports on both of 16 theae meetings, Plaintiff's Exhibit 1275 you state at the bottom of it as 17 Mr. Carr has already covered with you ths conclusions and recommendations 18 and the first number under that reads as follows does It not f,Tha inform 19 ation evaluated does not reasonably support the conclusion that 24-Dlchloro- 20 phenol produced and marketed by Monsanto presents a substantial risk of 21 injury to health or the environment"? 22 A That's correct. 23 Q So you were evaluating that information to see If it vas reportabl s 24 information were you not sir? 1 A Yes 2 Q Now, do you have up there* Hr. Perk* Plaintiff*s Exhibit 1298* 3 that would be the December 14* 1981 8(a) meeting? 4 A Yes* I do. 5 Q All right, let me be sure I've got It. Now* that Is another one 6 of the 8(e) .meetings-.that Mr. Carr has questioned you about* and this one 7 dealt with again 2,4-Dichlorophenol* but this time you vara looking at 8 the chlorinated dlbensofurans; Is that right* sir? 9 A That's right. 10 Q Now* was there any study that the group was looking at in this II Instance to determina If It constituted substantial risk Information as 12 described In th EPA policy statement that should be reported? 13 A This was not really a study indicating health effects. 14 Q All right. Someone had requested this 8(e) meeting because of IS the presence of the dlbenzofurans? 16 A Yes. , 17 Q And the group met and didn't the group determine If It had any 18 Information from which one could reasonably or which would reasonably 19 support the conclusion that the level of dlbenzofurans In the 2*4-Dlchloro- 20 phenol presented a substantial risk of Injury to health or the environment? 21 A It was concluded that notification was not required by Section 22 8(e)* Hr. Muagrave. 23 Q Yea. 24 A This 2298* though* Is not the final minutas of that meeting. 1 Q That's correct sir. We narked earlier didn't we, the final 2 ones after the corrections? 3 A Okay. 4 Q Do you have that Defendant's 882 there, 1 believe? 5 A Yes, I do. 6 Q All right, let's look at that. Those are the final minutes after 7 you had the people with the expertise and the toxicology and what have you 8 review then; Isn't that right, sir? 9 A That's right. 10 Q And Is there a discussion at all In those minutes about conslderatL 11 of whether you had any Information that constituted substantial risk Infona12 otion as we've talked about in this policy statement? 13 A There Is no discussion of a study indicating adverse health effect! 14 Q ..But there are references to information, are there not, sir? 15 A Yes. 16 Q Aa an example. In the third paragraph, does It not say, the 17 second sentence starting there, "The limited Information available generally 18 supports the conclusion that the acute toxicity of CD? Is approximately an 19 order of magnitude less than the acute toxicity of chlorinated dlbensodloxlni \ 20 A Yes. 21 Q Also, It was noted that no 2 3, 7, 8 dlbenzofurans were found 22 In the 2,4-Dlchlorophenol? 23 A Yes. 24 Q And then does It not state levels of up to 100 ppb 2, 3, 7 8 1 tetrachlorodioxin have been believed to be safe levels by soma toxicologists 2 for 2,4*5-1? 3 A Yes. 4 Q States then further, PCBs containing CDF as impurities have been 5 extensively studied? 6 A Yes. 7 .Q A recent review of the extensive data on PCBs has led to the 8 conclusion that there are no significant human health hazards from lev 9 exposure; isn't that right? 10 A That's correct, 11 Q So you reviewed what information you did hava and concluded, let 12 me ask you, did you conclude that you had no Information which reasonably 13 supported the conclusion that the level of dlbenxofurans In your 2,4-Dichlor< 14 phenol presented a substantial risk of Injury to the health or environment? IS A That's correct We had no Information. 16 Q So you had no Information, It was a non-report matter under 8(a)? 17 A That's right. 18 Q So Mr. Park, In all of these 8(e) meetings. Mr. Carr has had you 19 refer to, has there not been consideration of either studies or information, 20 do we have Information that supports a conclusion that reasonably supports 21 the conclusion that there is some adverse health effect that constitutes a 22 substantial risk with this product and the various constituents In it? .. 23 A Yes. 24 Q And X believe, well, strike that* You have the Tetrathal or i Tatrathal 8(a) meeting up there Plaintiff's 1297? 2 A Ho, I do not have that one. 3 Q All right air* There It is. How this seating on January 23rd, i 4 1985 reported In your January 24th, 1985 memorandum on Tetrathal once 5 again la there reference in there to a consideration aa to whether or not 6 Monsanto or any of the persona I should any present at the meeting had any 7 information that reasonably supported the conclusion that the Tetrathal with 8 the levels of impurities In it the levels of dioxin Impurities In it 9 presented a substantial risk of injury to health or the environment? 10 A Tee, X think so. 11 Q And what la that sir? 12 A X would refer to, 1 guess, the fourth and fifth paragraphs. 13 Q All right. And would you tell us what is stated there that you 14 fael is responsive to my question? IS A In the fourth paragraph, it was stated. It was noted that Tetrathai. 16 had been manufactured and marketed for around twenty years with no Indication 17 of significant Injury to health or the environment* It is presently being 18 manufactured at the Delaware River plant. 19 THE CODRT: 1 didn't hear the last-- 20 A It is presently being manufactured at the Delaware River plant* 21 Q All right, sir. 22 A There have been occasions of which certain workers appear to he 23 unusually sensitive to the product and would develop a rash when exposed to .24 It Hhen this occurred, the exposure ws# promptly terminated and the rash 1 disappeared with no after effects. No other effects from exposure to 2 Tetrathal hove been noted. 3 Q So this was a consideration, sir, of whether you had information 4 that would be considered an undesigned or uncontrolled circumstance under 5 Section roman numeral 6 of the policy? 6 A Yes. 7 Q And you had no such lnfonaatlon? 8 A That's correct. 9 Q Is there anything else, then, in the memorandum that refers to JO Information you considered to determine whether or not you had Information 11 that was substantial rlalc Information, reportable? 12 A Tes, the fifth paragraph reads, "It was noted that the spectrum 13 of polychlorinated dibenzo-p-dioxins found In Tetrathal Is similar to that 14 found In pehtachlorophenol, except that It is at a much lover concentration 15 In Tetrathal, while the U.S. Environmental Protection Agency is aware of 16 the concentrations of PCDD In penta, the manufacture, distribution, and use 17 of penta Is continuing." 18 Q And so that was information that was not the type reportable, and 19 I take it was In fact used In reaching the conclusion that you did not even 20 have any serious effects here to be concerned with? 21 A That's right. I think the bottom paragraph In the first page also 22 bears a little bit to this. 23 Q All right. Would you tell us what Is In there that you feel is 24 responsive to this situation? 1 A It was further noted that while ultra trace analysis did Indicate 2 that Tetrathal contained trace amounts of higher chlorodlbenso-p-dloxlna* 3 io product analysis Indicated the presence of D1-, Trl-, or Tetrachlorodlbenk 4 -dioxin* Present available Information on the toxicity of higher chlorinate 5 iioxin Indicates that the low concentrations present in Tetrathal 6 particularly when considered with the uses to which Tetrathal Is put do 7 sot present a haxard* 8 Q All right* sir. So here again Information Is considered* Do ve 9 tiave any information* and the conclusion la ve don't have Information that 10 reasonably supports the conclusion* and that Includes this type of Informa 11 tion such as the uncontrolled studies* uncontrolled circumstances In 12 reaching our conclusion in these minutes; Isn't that right* sir? 13 A That's correct.. 14 Q Saw* In view of the policy end the provisions of the policy that 15 s've just gone through and the review of these minutes with regard to 16 considerations of Information* you testified* as I recall* when Hr* Carr 17 asked you a question* and I have this written down and I believe It's 18 correct* X thought you said* "Monsanto had no duty to report hasardous 19 Levels as such under the law"? 20 A (Witness responded by nodding head affirmatively.) 21 Q Under 6(e)* 22 A Tea* tty response was In context* Section 8(e) Is a general .23 reporting requirement only When there la Information reasonably supporting 24 tbs conclusion that a chemical presents s substantial risk of injury to the -i. 104 environment . There le no other under 8(e), there Is no set reporting requirement of levels of chemicals. Q All right. It's the Information the studies the observations of health effects that say that this is a reason or this Is e substantial risk; la that right? A Tea. Q It la a reporting of Information? A Tea. Q Not levels. Nov would though let me ssk you this Hr. Park if you had a level of a chemical In a product and Hr. Carr asked you these questions before I believe that you you had a product that you believed contained no harmful contaminants, and all of a sudden you found that because something was wrong with the process or what have you all of a sudden you had a shipment that went out or something that had some very harmful contaminants that would amount to a substantial risk under this policy that would cause these serious effects and even though this particular contaminant and the effects that It could have were known to the CPA, well let me back off a minute. Strictly under 8(e) would you have a duty to report Information that the EPA already bad with regard to those health effects? A Under those If the EPA already had the information I think there is difficulty here because the one sentence statute is written In etsch general terms, end a case could be made that no actual reporting obligation exists. However, in those circumstances, I suspect that we would, 1 If Che shipment that you described In the example you gave, If the tank car 2 had left the company, I think that we would do two things* We would probably 3 notify the customer immediately, ve would probably also make soma contact 4 with the carrier, and I think we would probably Inform the KPA* 5 Q Evan though under the Interpretation of the law as you read It 6 here, It is not a strict requirement to report the chemical content when 7 the EPA has knowledge of the effect of vhat'e In there? 8 A Tea, If I stated It correctly, the EPA would have knowledge of 9 the adverse health effects which could result from exposure to the, -what's 10 In that tank car. But If our-- at an 8(e) meeting, our technical experts, 11 toxicologists and so on, felt that there was a substantial, could be: a 12 substantial risk of Injury, I think that we could report that* 13 q Now, Is the fact that there have been no Interpretations of this 14 statute In any way enter your thinking with regard to what you just testified 15 to? 16 A Not to what I just said, but Interpreting this, I think, will be . 17 easier if and when It Is clarified. 18 q All right. But as you read the statute and as you read the 19 policy, it speaks only to reporting information that the EPA doesn't have 20 with regard to health effects, studies, or observations? 21 A That Is certainly the primary thrust of It. 22 q But if you-- but nonetheless under the circumstances posed, even 23 though it may not be something that could be, that you would Interpret 24- under the policy, of the statute to be reportable, you feel you would report 1 it? 2 A I chink under those circumstances ve would, yes* 3 Q Would you rely upon the advice with regard to whether there was 4 an adverse health effect at the particular level you were looking at In a 5 particular chemical, rely upon your toxicologist, your nodical people, what 6 have you, I naan, you would yourself? 7 A I would have to, yes, 8 Q Sow, Mr. Park, can anyone coll an 8(e) meeting or require that 9 an 8(e) seating be held at Monsanto? Bow does that work? 10 A This Is described in our little 8(e) practice or procedure that's 11 recirculated annually to sake sure everybody is aware of It, 12 Q Is that Defendant's Exhibit 881, sir? 13 A That is the one that went out for one year, if I an correct 14 about the nunber now, that's right IS ` Q to you hove that there? 16 A Yes, X do* 17 Q All right. 18 A And actually, as It states, it's circulated to everyone in the 19 company at grade level 3d or above, 20 A All right. What does that mean? 21 A I'm sorry, I can't tell you exactly what that means, not being 22 a personnel department man* But X would, I think that that would be, would 23 mean roughly that it would go to certainly all professionals that would, in 24 vy opinion, It would go to professionals, chemists, laboratory personnel. 1 toxleologticii ot cetera* Z would think almost everyone* no* secretaries* 2 clerical personnel probably would be below grade 34. I think all those with 3 technical educations would receive It* roughly* And actually anyone* 4 though to answer your question about who can request an 8(e) meeting* 1 5 think pretty much anyone can* if ho feels he has becose aware of Information 6 which conceivably could support a substantial risk situation* he could and 7 should request in 8(e) meeting* 8 Q And In fact* the fourth page of this exhibit* Defendant's 881* Is 9 captioned "Internal Procedures for Transmittal of Substantial Risk Informatlo 10 to the Director of DMEH* Monsanto Company1* and going down to the fourth II paragraph there* air* would you reed to us what 1* the stated policy there 12 with regard to Information? 13 A Yes. It aaya* "Anyone obtaining Information of the type described 14 above should Immediately submit such Information to e supervisor*" IS Q And the type of Information described above* that's a reference to 16 what* air? 17 A That would be the reference to the first paragraph. It says* "Any 18 information which reasonably supports the conclusion that a chemical substani: 19 or mixture manufactured* processed* or distributed In commerce by the company 20 present e substantial risk of Injury to health or the environment."^-/ 21 Q All right. And just turning to Page 2 of tha policy* sir* this 22 Is e supplement to the policy* Is It not? 23 A Yes, tna horn. 24 I Q And down the fifth paragraph* after there Is a statement there* 1 first of all. Is there not, with regard to what constitutes substantial visit" 2 A Tes. 3 Q So that the people that receive this will have some Idea of what 4 is to be looked for, what ve are talking about here; Isn't that right? 5 A That's correct. 6 Q And then If you would, sir, read that second paragraph starting 7 rlth "These criteria"? 8 A "These criteria need to be weighted differently for different types 9 of effects, both huaaa and environment.' If there Is any doubt as to whether 10 Infomation should be reported. It should be submitted In accordance with 11 our procedures to your designated organisation unit individual for review 12 by the committee established for this purpose." 13 Q I*m sorry, go ahead. 14 A' "It should be noted that Information need not be reported if you 15 have knowledge that the EPA already has been informed of it or It has been 16 published In the scientific literature." 17 Q So the policy of Monsanto as announced in this document la If 18 anyone has any doubt as to the Information that they have come In contact 19 with Is such Information that they should report it and let It get to the 20 committee for the committee to review? 21 A That's correct. 22 Q And Is there a statement In this policy also with regard to 23 employees * rights? 24 That's correct. 1 Q And would you Cell us what that statement la, sit? 2 A All right* And this statement Is to relieve any employee of any 3 inhibitions about his obligation to raise a question of 8(e) meetings. It 4 readsv "Monsanto's policy and its Internal substantial risk reporting 5 procedures state that employees who submit information through company 6 channels will be notified of action taken, together with the reasons for 7 such action* If the employee disagrees with the company's decision that 8 the information need not be reported, he has the right to report such 9 Information directly to the EPA." And the act provides, "that no employer 10 may discharge or otherwise discriminate against an employee because that 11 employee assisted or participated in an action to carry out the purposes 12 of the act." 13 Q So Monsanto Is Informing that no action can or no action will be 14 taken by Monsanto nor can be taken under the auspices of the lav? 15 A That's right. 16 Q If they don't agree with Monsanto's position and report It to 17 the EPA anyway; is that correct? 18 A That's correct. 19 THE COURT: Mr. Musgrave, is this a good point for a short break? 20 MR* MUSGRAVE: I think it Is, your Honor* 21 THE COURT: ladles and gentlemen, we will take a short recess at 22 this time and then resume testimony* The Court la In recess. 23 (At this time Court was in recess*) 24 BY MR. MUSGRAVE: - : ?,"r * f *.' > J1 . J v 1 Q Mr. Park I think we were talking about Monsantovs or Defendant's 2 881 and the Information put out by Monsanto to various employees when we 3 recessed. And I think we had covered everything In that but I wanted to 4 draw your attention to for a moment I'd like to come back to Defendant's 5 880 the policy statement of the EPA. We had talked about most of the sub 6 headings In there under the roman numerals. I'd like to draw your attention, 7 though to roman numeral 9 the reporting requirements. That would be the 8 fourth page of the exhibit. Do you have that sir? 9 A Yes 1 do. 10 Q And this Is the section of the policy that sets out those things 11 that a notice to the SPA when notification Is deemed to be required what 12 It should contain? 13 A That's correct. 14 Q And A refers to It should be sent by certified mall or any other 15 way permitting verification of this receipt and 8 that It should be 16 stated that It Is submitted In accordance with Section 8(e) and C the 17 name of the person, the address of manufacturer submitting this Information, 18 and then D says to identify the chemical substance or mixture; la that 19 right, sir? 20 A That's correct, um ham. 21 Q And then E, would you read E to us, sir? 22 A E says, "Summarize the adverse effects being reported, describing 23 the nature and the extent of the risk involved." 24 Q So there it's talking about reporting the health effects that you 1 feel make this a reportable item; Isn't that correct? 2 A Yes* Health effacta, or there could be environmental effects* 3 Q All right* And what does ? say* sir? 4 A 7 eays, "Contain the specific source of the information, together 5 with a summary and the source of any available supporting technical data." 6 Q So they want a suamary of the adverse affects, and then they want 7 you to say where you got the Information, how you got It? 8 A That's right* 9 Q Do these reporting requirements then corroborate your understanding 10 that the policy and the statute would clearly seem to be talking about 11 reporting Information about adverse health effects? 12 A I think It does* Adverse health effects and possibly environment*; 13 effects* 14 Q How, statutes once Interpreted are sometimes interpreted broadly, 15 are they not, sir? 16 A Yes* 17 Q And sometimes they are interpreted narrowly, are they not, sir? 18 A . That's correct. 19 Q And people have varying opinions, lawyers have varying opinions 20 as to whether a statute will or will not be Interpreted In a particular way 21 or not In a particular way? 22 A That's certainly true. i ! 23 Q And since somatime* they are Interpreted just like you think they 24 are going to be Interpreted? 1 $ 1 A That'* right, 2 Q Barely, but it does happen, doesn't It? 3 A That's correct. 4 Q Bor that reason, sir, vould that situation play any role In the 5 determination of Monsanto to report what night be a hazardous level In the 6 health effect of a chemical even though they believe SPA has got the 7 Information? 8 A 1 think If there were some doubt. If It was a little bit fuzzy, ve 9 would lean toward reporting the ihforaatlon. 10 Q Now, I want to cone back to this Tetrathal nesting that would 11 be Plaintiff's Exhibit 1296, Do you have that, air? 12 A 1296? 13 Q l*m sorry, 1297, 14 A Yes, I do, IS Q Now, that meeting vae apparently generated, elr, because of 16 Dr, Hair's memo of January 14, that's Plaintiff's Exhibit 1296, Do you have 17 that up there? 18 A It was up here* 19 Q I set It there for you because 1 knew va vould be cooing to It, 20 A I know It was up here, yeah, here It Is, yes, 21 Q You have 1269? 22 A Yes. 23 Q . And do you also have Plaintiff's 1299, Dr, Levlnska's nsmorandua 24 to Dr, Bousch which regards that report? 1 A Yes, um tuna, 2 HR* MUSGRAVE: Was Che jury given a copy of Dr. Lsvlnskas* report 3 Hr. Carr? 4 MR* CARR: Yes* 5 MR* MUSGRAVE: 1299? 6 MR. CARR: Yes* '* 7 Q So we have 1296 the comale tee minutes 1296 which is Dr* Hair's 8 report and 1299 which Is Dr* Levlnskaa to Dr* Rousch with regard to 9 Dr* Hair's report; la that correct? 10 A Yes* 11 Q Now, were there other documents available to you at that meeting 12 sir besides Dr* Hair's report and Dr. Levinakas* report? 13 A Yes, there were- As the minutes of a meeting indicate In the 14 second paragraph additional information vaa brought by I guess It was 15 Dr* McCarland I believe* 16 (Defendant's Exhibit 884 was marked for identification.) 17 Q I ra handing you now what's been marked as Defendant's 884. 18 A Yea 19 Q Can you Identify that air? 20 A Yes. This Is the Information that was brought to the meeting by 21 Dr. McCarland. 22 Q Now the first two pages of Defendant's 884 Is information apparent 23 supplied by J.W,D. Those axe the initials I see at the bottom of the page* 24 MR. CARR: J.D.W. James D, Wilson. 1 MR. MDSCRAVEi Yet, I know, sir. 2 A Yes, that's right, 3 Q You understatu! that to bo Janes Wilson? 4 A I think those are bis Initials yes. 5 Q And then the next two pages Is a cover letter and report from 6 Or. Hlleman, Fred Hllesan, vhlch I believe has the results of the Tetrathal 7 studies for dioxin content; isn't that correct? 8 A That rs correct* 9 Q And then the next page Is a letter or a memo fros a J.L. Wolfsburg 10 to Halt, Levlnskas, Papageorge, et si., regarding Tetrathal monitoring II results? 12 A Yes, 13 Q And in fact, that memorandum deals with monitoring studies of 14 the workers' exposure to Tetrathal In the work place? 15 A Yea. 16 Q Sow, Tetrathal, Is that a liquid or a flake, sir? 17 A I think It's.a flake, it's not a liquid* 18 Q And In fact, the Wolfshurger memo is referred to by Dr, Wilson 19 In his write-up, the first two pages, doesn't he refer, to that on the 20 second page there, we will come to It In more detail, but I just wanted to 21 point out that Dr, Wilson was using Information from Hr. Wolfshurger In the 22 report that he gave to the committee; la that correct? 23 A That's correct. 24 Q On the monitoring of the exposure to the workers of the Tetrathal 115 1 flake; la that right, air? 2 A that's correct. 3 Q And then the next page after that le just a note front a Hr* Ashley 4 Peter to J.D. Wilson reflecting the closing of relevant pages of two 5 articles dealing with the toxicity of certain chlorinated dlbenxodloxina? 6 A That's right. 7 Q And that Information forwarded hy Mr, Peter appears to he also 8 referenced in Hr. Wilsons* first two pages of this exhibit. Is that not 9 correct? 10 A Tea. 11 Q So paragraph. C .there talks about toxicity and then It saya as a 12 reference, "Summary prepared hy A. Peter attached." t 13 A That's correct. 14 Q And the last two pages of this document are In fact the attachment! 15 to the Peter memo, the information about toxicity and What hove you that he - X 16 passed on to Dr, Wilson Who In turn put It in his memo; Isn't that right? AC o 17 A That Is right. 18 Q So you had this other Information that ve have just gone through 19 available at this 8(e) meeting? 20 A Tea. 21 Q Now, If we can kind of talk about the various elements or various 22 things now In Dr. Hair's report. In connection with this other Information 23 = that you had, now If you would, let's look at Dr* Hair's report as Plaintiff 8 24K 1296. How, in reaching her conclusion. Is there a statement here with BAYONNE, N.J. 1 regard to the absorption that she assumed In connection with the inhalation 2 of this Tetrathal, because It Is a flake, It gets in the air, doesn't it, 3 slrf 4 A Tea 5 Q Is there a statement in there to that effect? 6 A Tea* She assured 100 percent absorption. " 7 Q One hundred percent absorption of the amount of Tetrathal In 8 the air? 9 A That's correct. 10 Q That Is hat vas breathed in? Now, In the consideration of the 11 committee, vas there Infcreation from Dr. Wilson, that in any way supplied 12 more information shout that assumption, particularly, I would refer you to 13 Subparagraph C of the Wilson Information, Defendant's 884, that's on ?age 2? 14 A Tea. 15 Q All right, sir. Is there any reference there to anything dealing 16 with that assumption of 100 percent absorption by inhalation? 17 A . Tea. It states here that respiratory protection la worn by 18 workers In the work place. 19 Q All right. 20 A And assum e 90 p e rc e n t p r o te c tio n . 21 Q And an inhalation volume of lOa^/shlft, a mean dust level of 22 2.9 mg Tatrathal/ra^, and It refers to the Wolfsburger memorandum? 23 A Tea. 24 Q And then complete absorption of all Inhaled dust? 117 1 A Yes 2 Q Do you recall, sir whether the comlttee In then referencing the 3 Volfsburger nemo with regard to studies there of Tetrathal exposure In the 4 workplace and the monitoring program and the canoents of Dr* Wilson with 5 regard to the respiratory protection whether there was any. It had any effect e on the statement of Dr. Hair about the 100 percent absorption from Inhalation 7 of Tatrathal, If you recall one way or the other? 8 A I frankly just don't recall that. 9 Q All right. Now, another point with regard to you will see In 10 Dr. Nalr's memo down at the bottem* she says that, `The potential calculated 11 dally Intake exceeds the virtually safe dose by a factor of 1000"? s'* 12 A Yes. 13 Q And that Is a virtually safe dose as apparently stated by the 14 National Research Counci1 of Canada with regard to 2 3 7 6 TCDD? 15 A That's right. 16 d Is that right? 17 A That's right. 18 Q And It says that at least according to the National Research Council 19 of Catada Is 30-90 ng/day? 20 A That's right. 21 0 Now she Is then saying that the dally Intaka that she calculated 22 exceeds that virtually safe dose by a factor of a thousand; Is that right? 23 A That's what she says here. 24 Q How* the exposure that she calculated on a basis of fg/kg/day* la 1 that reported there Immediately above that paragraph at 12,800? 2 A That1 right. 3 0 Now, If the safe dose Is 30 to 90 per day, and she says that In 4 her calculations she Is finding 12,800 per day Is 90 1000 times, or Is 5 12,800 1000 times greater than 90? 6 A Ho, It Isn't. 7 0 What would It be, sir? 8 A I think It's something sort of loss, tike 140 times or 150 times, 9 something In that range. 10 0 You would divide 90 Into 12,800? II A Yes. 12 Q And that would be something around 142 times, wouldn't It? 13 A Right, yes. 14 0 And If In fact your calculations and my calculations and your 15 understanding and my understanding of this document Is correct, then she 16 misspoke when she said It was 1000 times above the virtually safe dose, 17 right? 18 A Yes. 19 Q. In fact, If we are correct. It's only 142 times; Is that right? 20 A Yes. 21 0 Now, also, sir, she was talking about a safe dose of 2, 3, 7, 6, 22 Is that what It says? 23 A That's right. 24 0 And aftar she references this Canadian Counci 1 statement cm ~ 'jfi-'i-- ^ 1 2 3 7 8| she then states as follows, "It has bean shown that 2, 3 7 3 2 TCDD Is the most toxic dioxin and the potential risk for other," and I 3 guest that's from other. It's a typo, I guess, "other chlorinated dioxins 4 would be relatively lower, but without the appropriate data (carcinogenicity 5 data on hepta and octachlorlnatad dioxin) It Is difficult to determine how 6 much lower," right? 7 A That's right. 8 Q, How, her calculations with regard to 2S0 parts per billion being 9 assumed as the average amount apparently of contaminant, apparently we JO are not assuming any 2, 3 7 3, as Hr. Carr has suggested, and you see that 11 250 parts per billion reference at the top of this second page of her report 12 do you not? 13 A That's right. 14 Q Now, did you have any other data at this meeting that gave you 15 Information as to the difference In toxicity between 2, 3 7 3 and some of 16 these other chlorinated dioxins? Let's first of all look at Dr. Levlnskas' 17 mamorendtn after:reviewing her report. 18 A . Dr* Levlnskas took Issue with her using the Canadian number for 19 the tetra. 20 <L Well, do you have Plaintiff's Exhibit 1299 there? 21 A Yes, 1 do. 22 Q, And first of all. In the first paragraph of that, he reports that 23 he Is attaching her memo and ha sends this to Dr. Rcusch, doesn't he? 24 A Vo*. 1 (l And then In titsecond paragraph,would you rood that first 2 sentence to us? 3 A "Since TCOO was found only In waste dust at 1.5 parts per 4 billion, the calculations regarding potential PCDD exposure fras Tetrathal 5 represent an extras* situation which greatly exaggerates the risk** 6 Q. And the calculations that he Is talking about which he feels * 7 greatly exaggerates the risk, do you know whether or not that references 8 Dr* Hair's mono as attached? 9 A I assuste that It does* 10 Q, And then does he not go on end give some Information about the 11 relative toxicity of 2 3, 7 8 to there, the fourth paragraph, he talks 12 about pentaehlorodloxln and compares Its toxicity at least as to guinea pigs 13 to 2, 3, 7 8 does he not? * 14 A Yes, urn has* ^ i 15 Q. And theft he talks about another form of pentachlorodtoxin, which 16 has an oral LD 50 of 1125 whereas In the guinea pig. It's for 2, 3 7 8, 17 It's 3*1 some, over 300 times less toxic, right? 18 A Yes. 19 0 And then he talks about three hexechtoro Isaner* with LD50s of 20 the 80 to 100 range; Is that right? 21 A Yes* 22 Q And that would be 30 to, or I should say, 20 to 30 times less 23 toxic at least than the 2, 3 7 8 as to guinea pigs, correct? 24 A' Yes*' t Vi"V * b'- 1 a And then the lest sentence he talks about octe (toners that 2 would be the octodtbenxochlorodtaxin? 3 A Yes. 4 d Or do you knew? 5 A I assune that means the eight. 6 0 And he says they are report! to have LD 50 values In the gram 7 per kilogram? 8 A Ue has. 9 Q. Which Mould be many, many, many, many more times less toxic than 10 the 3*1# and I think the ug Is microgram? A: Yes. . 11 12 d So here Is Levlnskas, Is he not then supplying the committee with 13 some of this Information as to relative toxicity? 14 A That's right. 15 d In feet In the next `paragraph he talks about mixtures of hexa~ 16 chlorodloxtn being fototdxlc end producing fetal abnormalities and adama In 17 pups at dosages higher than 2 3, 7 8 TCDD; Isn't that correct? 18 A Yes. 19 d So again he Is giving more Information about the relative toxicity 20 A That's correct. 21 Q And then he states et the end there that the octachloro Isomer produced no fetal abnormalities even at considerably higher dose? A Yes. d And of course Dr. Hair In her memo was saying we need or we don't 1 have enough Information In her belief or the doesn't have Information 2 on the relative toxicity of the hepta and the oetachlurinated diamine, 3 that's what the Is saying? 4 A Ua h m , yes. 5 Q, So Or. Levinskas provided the committee with some more, did he not? 6 7 A Yet, he did. 8 Q, And the memorandum from Or. Wilson, Defendant's 88b, the Jury 9 doesn't have this, but do you see In there references to toxicity also, 10 sir, of the various ehtorfnetied dlbenxodtoxins? II A Yes. 12 Q And In fact In Subparagraph 0 of Or. Wilson's memo. It roads as 13 follows, does It n o t v " ln particular, octochlorodlbenxodloxtn In 1, 2, 3 b, 14 6, 7 8 heptachlorodlbenxodloxln are found to be preetlcelly nontoxic"? 15 A Yes. 16 Q And also 6n Page 2 of Or. Wilson's memo, does he not do seme 17 calculations with regard to the expected Intake by workers when these 18 respirators are Involved end whet have you? 19 A Yes. 20 . Q And I see up there In Subparagraphs A and 8 He talks about mean 21 total chlorodlbenzo content of the product? .22 A Yes. 23 0, how, did Or. Hair use the mean total, or does It reflect what she 24 used? 1 A Sha says she uses the word average, I believe. 2 Q All right. She used an average mount. Do you know the distinct i< 3 between Dr. WlIson's use of the mean total and her use of the average 4 amount? 5 A I believe that a mean In a case that there are as many samples 6 or there would be as many numbers above It as below It. 7 0. All right. Sut In any event, this information was ell then 8 avaltable to the consIttee, was It not? 9 A Yes, that* correct. 10 Q, And In reviewing It alt, did you form any, or let me rephrase 11 that. You've told us beforo that you are not e toxicologist or e doctor, 12 you listened, I take It, to what went on In that meeting end the conclusion 13 that was reached by the toxicologists id doctors was essentially what you 14 recorded here? 15 A That's correct. 16 Q And that was the belief In Plaintiff*s 1297 that this Information 17 did not reasonably support the conclusion that the levels of dioxins In 18 the TotratheI presented e substantial risk of Injury to health or the_ 19 environment? 20 A That was the conclusion, yes, 21 Q Or doss Dr. Hair's maso, Mr. Park, say unequivocally, without a 22 doubt, 250 parts per billion of dioxins In Tetrethel Is unsafe and presents 23 a substantial risk of Injury to the health end the environment under Section 24 1 A Wo, she dots not. 2 d Sha says sht doeon*t k n w , doesn't she? 3 A That's right. 4 d , Because she doesn't hove this other data? 5 A That's right* 6 d And apparently that was supplied to the satisfaction of the other 7 members of the committee that when that other data was available that there 8 wasn' t a problem? 9 A That's right* 10 Q, Now, do you know whether Dr. Hair was made aware of the results 11 of the 8(e) committee consideration of her report? 12 A 1 don't know for a certainty or personally, but I assume that 13 she was because that Is the practice. 14 d Do you know, I taka It you wouldn't know one way or the other 15 whether she took Issue with that and reported It to the SPA herself? 16 A I don't know. 17 d How* the Nay 11, Hay 22 study or meeting on 2k-Dt Involving the 18 2*k,6~Trlchforopbeftol, If you recall, we talked about that a little bit 19 earlier, that's Plaintiff's 1275? 20 A Yes. 21 d At one point tn that regard that Hr. Carr mentioned to you, you 22 have Plaintiff's 1238 up there. I'm sorry, not 1288 but It's 12b3. I've goi 23 It right here, let m hand you Plaintiff's Snhlblt I2b3, sir, and have that 24 out there along with Plaintiff's 1275* I2k3 Is-- you haven't found 1275? 1 A I think it1 here yes I have it, 2 Q 1275 1 the Bcaortfiduat la that an April, sir, 1 don't have a 3 copy la front:of no, hat-* 4 A 1275? 5 Q X'b aorry, Z naant 1243. 6 A 1243 la dated April 10, 1979 7 Q And thla la the senorandum hare Dr. Qllaoa la dlacoaalns levels 8 of dioxin that had boon found In 2,4-Dlchlorophenol? 9 A Beading la in chloropbenol, hut Z assume that'a right, yea. 10 Q Okay. Let m Juat gat that out* Nov, Z believe Hr* Carr, when 11 he tat aeking you about thla iseeorandua made reference to hacardoua levels 12 of dioxin In the 93 percent Dlchlorophenol. Bov, does Dr. Wllaon'e ateato 13 use the vord level In connection With the vord haxardoua when he talks 14 about contents of 93 percent DCP? 15 A I do ace a place vhara he aaya not chronically haxardoua* 16 Q Well, the first paragraph there* 17 A Oh, okay* 18 Q There la one, he aaye, "One lot of 93Z DCP stay contain haaardoue 19 chlorodlbenaodloxlna and dlbensofurans"? 20 A Tea* 21 Q The vord lavsl la not used there? 22 A Ho, it la not* 23 Q Bov, this aeaorendutt did go to Dr. Callla, did it not? 24 A Tea, he vaa one of the copyees on the tneoao. 1 Q And pretraably bo got It shortly oftor April 10, 1979? 2 A Yu. 3 Q Boforo tha seating on 2,4-Dlchlorophsnol on Juno 6* 1979, 4 Plaintiff's Exhibit 127S? 5 A Actually, the nestings wore Key 11 and Hay 22. 6 Q Right. And la fact Dr. Cal11s vas a participant la that 8(a) 7 seating in June of '79 when you considered 2,4-Dlehlorophenol with regard 8 to tha 2,4,6-Trichlorophenol content? 9 A That's right. The two meetings In May. 10 Q And if he had any concern about the level of dioxins reported In n Br. Wilson's Demorandua, certainly ha could have brought It up. avon at that 12 meeting, couldn't he? 13 A That's correct. 14 Q Mow, when you consider one of these chemicals or s mixture, sir, IS at one of these 8(e) Beatings, and you are determining whether you have any 16 Information that reasonably supports the conclusion that there Is s substant: 17 risk of health or of injury, as an exsaple, In the 2 ,4~Dichloroph*nol, when 18 you have a finding of nine and a half or ten parte per billion, Z think 19 you have told us earlier that you look at the level, at the whole chemical, 20 and the various levels of the chemical ; Is that right? 21 A Tss. 22 Q And whether there is any evidence that that level, Is there any 23 Information that that level presents this kind of risk, the policy talks 24 about; is that right? 1 A That's right, 2 Q And In so doing* sir* do yon make any assumptions 1th regard 3 to exposure of people to that level? 4 A That would ba discussed, yes, 5 Q Vail, Is exposure to this ten parts par billion at that level* 6 Is that assuBftd or la that not assumed, or Juet how do you look at exposure 7 whan you are looking at a particular level In a product to see If there 8 was Information or you have information? 9 A As X recall * chlorophenol itself is a toxic material. And so the 10 exposure to the chlorophenol la a concern* as veil as exposure to anything 11 else that may ba part of it As I recall, any toxicity that could present , 12 a substantial risk of injury would be considered by tbe toxicologist, 13 Q At the levels Involved? 14 A Yes* that's correct* IS Q Sow, Hr, Park* Hr. Carr asked you about Plaintiff's Exhibit 1300. 16 Do you have that* air? That's a memo of Dr, Wilson to the file regarding a 17 telephons conversation with Hr. C.T, Harwell and Diamond Shamrock dated 18 September 17, 1981, Do you have 1300 In front of you now* sir? 19 A Yea*. I do. 20 Q And Hr. Carr pointed out to you therein a reference* I believe 21 It's In Paragraph 2 where It says that Canada will require a 1 ppb limit 22 on all chlorodlbeneodloxlna and 2,4-D sold there after 1982? 23 A Yea* I sea that, 24 (Defendant's Exhibit 885 was marked for identification.) 1 Q Handing you now what's been marked as Defendant's 885* you 2 Identify that as a letter from Dr* Wilson to this same gentleman, it would 3 appear, Mr* C-- or Conrad Harwell? 4 A Tea. 5 Q And this is dated January 18, 1982, soma what, three or four 6 months later? 7 A That's correct* 8 Q And do you know, air, whether this requirement that Mr*-- or Dr* 9 Wilson referred to In September, the exhibit that Mr* Carr Introduced, vheth 10 that waa changed or not or whether that was a requirement that in fact had 11 been put Into operation or waa only suspected to be put in operation by the 12 Canadian government? 13 A I don't know anything about It, whether there was speculation or 14 vhat* IS Q But in any evant in the January 18, 1982 letter of Mr* Wilson to 16 Mr* Harwell, at Diamond Shamrock, In the third paragraph, does he reference 17 this Canadian government requirement? 18 A Yes, he does* 19 Q Would you read that to us, please? 20 A Xt says, "Baaed on 1980-1981 experience with 93 percent 2,4-Dlchlo: 21 phenol production, we can provisionally guarantee that the maxlmun concentre 22 of any chlorodlbenzodloxln compound will be 0*01 parts per million In 23 accordance with Canadian government requirements*M 24 Q 0*01 parts per million, Is that the same as 10 parts per billion? 't > V ^ V 1 A That's correct* 2 Q And for any chlorodlbensodloxln compound, would mean for ray laome 3 of dioxin? 4 A I would assuma so* 5 Q And there ere 75 Isomers of dioxin, or do you know that, sir? 6 A I'm sot that familiar* 7 Q Veil, If there were 75 Isomers of dioxin, then that would be a 8 H o l t of total dioxins, maximum anyway, of 750 parts per billion, wouldn't 9 It, as long as they were spread out at no more than 10 per Isomer? 10 A T h a t 's c o r r e c t* 11 Q Vow, if the Canadian government, you do understand atlaaet, sir, 12 that there are some Isomers Of dioxin that have no, that the people say have 13 vary little toxicity, you understand that? 14 A I have been told that, yes, sir* IS Q And some o f th o s e a r e ev en th e te e r a Iso m ers? 16 A I've heard that, yes. 17 Q And you know why the Canadian government would then permit, if In 18 fact tbla Is what Canada wee doing, why they would permit 10 parte per 19 billion of 1, 3, 6, 8, but no more, end assume that 1, 3, 6, 8 Is a very 20 nootoxlc dioxin, and yet-* 21 MR. CARR: Your Honor, unless this witness knows that the word 22 compound Is equivalent to isomer, bee the Court seen this exhibit? 23 THE COURTS I h av e a copy o f I t . 24 MR. CARRS Veil, Z objeee to it. It's clearly not the meaning 1 of tho document. Zt says the maximum concentration of any chlorodlbanso 2 compound, Compound b m h i all, counsel. 3 HR, MDSGEAVEi Vli, then* Hr, Carr, let's look at the letter 4 frena Diamond Shamrock. Z vent you to mark this-- ' 5 HR, CARR: Counsel, I'm referring to this one. It says compound, HR, MUSGRAVS: ffell, If you vent clarification. Diamond Shamrock-- 7: veil, mark this one, 8 MR, CARR: What Diamond Shamrock means, this Is Monsanto, ara you 9 bringing In somebody from Diamond Shamrock to testify? 10 MR, WDSGRAVE: That1a a letter from Monsanto to Shamrock. 11 THE COURT: Gentleman, could you approach the bench and bring 12 that up? 13 (The following proceedings vare held at the bench.) 14 THE COURT: Okay, go ahead. 15 MR. CARR: Tour Honor, I would object to the use of this document, 16 Zt la not-- >tha parson here Isn't here to explain the meaning of it. Zt'a 17 clearly hearsay. It Is not ay understending of it. They describe here 18 five parts per billion for the aonochlorodloxln Isomer, that Is hot en 19 isomer, that is one of tan-- 20 MR. HDSGKVE: Two, 21 HR, CARR: There ere eight monochloro. Monochloro does not 22 describe an isomer. Isomer is described by I, 2, 3, 6 8 or 3, 4, 3, 7, 23 Monochloro means G i p is vh&t it mesne. And Dlchloro Is Dlj, And the parso: 24 that's using this, using rev materials,Me s rev materials buyer. Be Is not 1 her*. I can't, cross examine him to point out hat this document means* 2 and this la strictly hearsay* and 1 would object to the use of this document 3 with this witness without the author of it here being subject to cross 4 examination* 5 HR* MDSGKAVEt Tour Honor* Hr* Carr has been permitted throughout 6 the course of this trial to Introduce documents and evidence over objection 7 end have witnesses that neither authored them nor have seen thee before 8 teetlfylng aa to what they contain. X cite to the Court the most recent 9 example of the letter received from the Department of Health* Education* and 10 Welfare received by Monsanto employee attaching an analysis that I objected J1 to with thlsCourt. It scene to me that the position of this Courtis that 12 these documents ere available for use to examine the witnesses with* and 13 Mr* Carr has put at Issue by his Introduction of another exhibit what the 14 Canadian government level wee* and we are bringing this In to further 15, clarify what Monsanto's understanding of it was* Zt was an Improper 16 element to be admitted at tha beginning. The Court has permitted It to come 17 In without substantiation as to what the requirement was* because It was 18 hearsay without the requirement* without someone to say whet it was. How 19 I'm bringing In this to further clarify It* 20 HR* CARRs This Is an entirely different situation end counsel 21 knows It. Parts of their record that I want to use appropriately to 22 impeach this witness on a particular thing* he used that becauee he* thle 23 witness pointed out it wee a document that was sent by Monsanto* Zt was 24 dealing with tha dioxin content of s 2 *4~Dtchlorophsnol product* It Is an 1 entirely situation, that exception to tha hearsay rulo la an 2 entirely different situation than vhat ha la asking for Be Is saying In 3 offset sines thara ars exceptions to tha hearsay tula, the hearsay rulo la 4 destroyed and therefore this,;Court should allow any hearsay Into evidence 5 no natter what It might be This document they are now seeking to put Into 6 evidence does cot meet any of the exceptions to the hearsay rule of which ' 7 Z am aware 8 MR* MDSGBAVEs X refer specifically to Plaintiff's Exhibit 1300 9 where counsel was psralttsd to cross examine with regard to Canada's 10 requirement, and X am entitled to clarify that* It's hearsay-In that 11 document, it's what Canada's requirement la, and It was permitted over 12 objection and X am certainly entitled to go Into It to clarify It with 13 what would he at the very least considered to clarify its admissibility. 14 HR. CAR&i X don't object to you trying to clarify it, but not 15 with a hearsay document X do not object to you using Jim Wilson's 16 document, Monsanto Exhibit $85, which describes it ss one part per million 17 of any chlorodlhensodloxln compound, and that's the Monsanto's description 18 of it You ere not trying to go beyond that* X could have objected to the 19 Monsanto exhibit, hut X didn't, the Wilson exhibit, counsel has objected to 20 similarly In the peat. But X didn't, hut X do object to a document by 21 somebody that is s materials buyer who is not here to be cross examined as 22 to whet ha mesas when be eaye monochlorodloxln isomer. There is no such 23 Isomer as a monochlorodloxln isomer* The document certainly can't speak 24 for Itself, end X certainly would want to be able to croea examine on that 1 point. 2 MR* MUSGRAVE: May we aC l e a s t mark t h i s so th e re c o rd c a n 3 reflect-- 4 THE COtJRT: X'ra going to sustain the objection to It. X think 5 you are right as far as hearsay. 6 (Defendsntfs_Exhibit 806 was marked for Identification.) 7 - ;MR. MUSGRAVE: Tour Honor, nay the record reflect that the exhibit 8 we have just been talking about has been marked as Defendant's Exhibit 886? 9 THE COURT: Thank.you. 10 (The following proceedings were held In open Court.) 11 BY MR, MDSGRAVE: 12 Q Mr. Park, do you have Plaintiff's Exhibit 1295 there, the 13 memorandum that you wrote to Dr. Paget in June of 1979? 14 A X don't believe so, 15 Q _ Well, the clerk has gotten it for us. Lettae hand that to you* 16 MR, CARR: What's the exhibit number, counsel? 17 MR. M&SGRAVE: Plaintiff's 1295. 18 Q And sir, now, this memorandum of yours dated June 11, 1979 19 references a memo from G.B.P. That's Dr, Paget, Is it? 20 A That's correct. 21 Q Dated June 11, '79? 22 A Tes. 23 (Defendant's Exhibit 887 was marked for identification.) 2 4 Q Mr* Park, let me hand you what's now been marked as Defendant's 1 887. Is that tha memorandum of June 11, '79 of Dr* Paget that your 2 memorandum of the eame date. Plaintiff's Exhibit 1295, references? 3 A Tee. 4 Q What is the subject matter of Dr. Paget's June 11 memorandum 5 that you are responding to on June 11? 6 - A Attached to Dr. Paget's June 11th, 1979 memorandum vac what I 7 would take to be his draft of a proposed position statement, I guess, 8 relating to dioxin, and he circulated to the nuaber of people, Including me, 9 and asked for our consent on It. 10 Q Okay. And Is that proposed position paper attached to, yeah, 11 there It is attached. 12 A It is, urn bma. 13 Q And do you recall just generally the eontente of what be was 14 suggesting, or would you care to take a minute to read that so that you 15 can become familiar with it with reference to what your response was? 16 A Let me take one minute. 17 TOE COURT: Xf this is a good.point, why don't we take a real 18 short break? . 19 HR. MUSCRAVE: It will be fine, your Honor. 20 THB COURT: We will take a short break at this time, very short, 21 and the'admonishments that X have given you earlier will apply during this 22 break also. The Court Is In recess. 23 (At this time Court was In recess.) 24 BT HR. HDSGRAVBl 1 Q. New, Hr. Park you have had an opportunity to review Defendant* 2 Exhibit 837, which Is the June 11 1979 nemo of Dr. Paget which you 3 responded to on June 117 4 A Yes. 5 Q How, what was the general thrust. If you will, of the nature of 6 Dr. Paget'* memo of June 11 that you responded to? 7 A It contained a number of proposal* concerning possible Internal 8 effort* relating to dloecln. 9 Q. And specifically, with regard to detection levels, was there 10 anything stated In there? II A Detection levels? 12 Q Yes. 13 A He does, he does speak of, oh, yes, sorry, detection levels, there 14 Is a paragraph In here. It says analytical position1*. 15 Q. ^ All right, sir. 16 A It speaks a bit, quite a b l t , about soma people claim to be 17 finding specific tetrechlorodlbenzodloKln Isomers at levels of parts per 18 trillion, and that this may well be Incorrect and goes on to say that 19 Monsanto: should continue to refine Its analytical techniques, all present 20 agreed that It' was sound policy that Monsanto should, I can't read It very 21 well here, should Improve Its something, skill1 In this area. 22 Q So Dr. Paget Is essentially stating that the position should be oth 23 of continuing to refine and In?rove detection limits and analytical skills? 24 A Ami as I read It, to go way dawn to such that concentrations of 1 could be found at and b a l m the part par trillion lovel 2 Q And that mono was than circulated to paopte for cement? 3 A That's correct. 4 Q. And you ware one of those that got It? 5 A That's correct. 6 Q And Plaintiff's Exhibit 129? were the comments that you made? 7 A That's right. 8 Q, And therein, and of course this Is a document that Hr. Carr 9 examined you about, but only with reference to the last part of It; Isn't 10 that correct, the one sentence at the bottom of the page there? 11 A Yes. 12 Q. Well, let's look at the entire document If we can. Hr. Park. 13 First of all. In responding to Or. Paget's position with regard to getting 14 the levels of detection down low In the area where you were talking about, IS hat was your response to that as set out In this exhibit. Plaintiff's 16 17 A In here, 1 responded and In so many words said that 1 felt that 18 Monsanto should refine Its analytical techniques so as to be able to 19 detect dioxin down to a level considered by our medical people to be non- 20 bazardous, but once we could detect It at a level where we felt ft 21 presented no hazard, then I advised against further refining of the analytics 22 23 Cl All right. As a matter of fact, you say In the Introductory 24 paragn on this as follows, do you not, MAs mentioned at the meeting, I 1 am concerned that Monsanto not over react as a result of the news media 2 Infatuation with dioxin. It Is contaminant In soma products and In son 3 Instances Is highly toxic, but this does not mean that an all-out effort 4 should ba msda to detect extremely low levels of dioxin In a product aftar 5 It has bean determined that any dioxin present Is less than the highest 6 nonhaxardous level,'1 Is that correct? 7 A Yes. 8 Q, How, you don't know what that Is In any particular Instance you 9 rely upon the expertise of others, do you not, though? 10 A That ft right. II Q Then you go on and.state iroedlately after that, "developing 12 unnecessary but IhfIamnatory Information might ba contrary to the best 13 Interests of Monsanto and the public.*1 What did you mean when you said that 14 developing Information which 1 take It you meant would be getting Infomatto IS about dioxin present below the highest nonhaierdous level that that might 16 be contrary to the best Interests of Monsanto and the public, now, this 17 Is your opinion? v 18 A This Is Just ay opinion. 19 Q And you ware asked to state It, and you did? 20 A Yes. 21 And what did you mean by that, sir? What was your personal opinioi 22 on that? 23 A Uhat I had In mind was my understanding would bo, for example, 24 that a given concentration of dioxin might be determined, let's say. If the 1 Mslytlcil techniques were refined sufficiently to be made one port per 2' quadrillion In siaea product* whatever* assuming that that would be a level* 3 might well be e level far below what our own medical people would say 4 would present any problem* at that level there Is simply no problem that 5' can be presented here? 6 A I felt at that time* end I think It still may be the case to e 7 little degree* that a great* that some of the news media didn't understand 8 about the toxicity of dioxin* that finding any* a molecule of dioxin* would 9 be* could be Inflammatory, that iom reporters would not understand* mayba 10 some people In good faith would not understand* end therefore It could 11 create anxieties end concern where It was not necessary. 12 Q Including the public* In your opinion? 13 A Heedless anxiety* yes* right* 14 Q. And that's why you Indicate or state here that the Inflaentetory 15 Information might be contrary to the best Interests of Monsanto and the 16 public? 17 A And the ptAlfe* that's right. 18 Q And that's just your personal opinion? 19 A That's just my personal opinion. 20 Q, Then you go on, sir. In the memorandum* and Iwant to direct your 21 attention to the lest paragraph there on Page l* the last sentence of *22 which Mr. Carr astcsd you about. 23 A Iks ban, - * 24s d And In the first two sentences In that paragraph, the first sentei `i/r- I you Indicate, do you not. sir, that you foal ft Is Important for Monsanto 2 to bo capable of nonltorlng products and work places for dioxin and any 3 other substance which sight be consider! hazardous down to levels of which 4 It Is felt no hazard exists? 5 A Yes* I specifically state that. 6 Q. And then you say, "I do not feel It Is necessary to develop 7 monitoring and analytical capabilities to detect the levels of contaminants 8 at levels below the highest nonhazardous level11? 9 A Yes, um horn. 10 Q. And this Is the sentence that Ismedlately follows that Hr. Carr 11 exantned you about? 12 A Yes. 13 It Q, Where you said Immediately thereafter, Ml an afraid that dlsclosui 14 to government agencies or the public that a contaminant has been detected 15 In a product at parts per trillion or ports per quadrillion levels (far bale 16 the nonhazardous level) will merely add fuel to the media fires which aIread 17 burn furiously." How, was that espousing or stating that you had an opinion 18 of a policy of nondisclosure? 19 A On, absolutely not. 20 0 Doesn't this Imply that you would be disclosing these things? 21 A Yes. 22 0. But your concern was, and a personal opinion, that If you were 23 detecting at levels for below what the technical people said could concelvafcl 24 be any risk,-that because of the difficulty In maybe educating people In you 1 opinion, that all It would do Is possibly be not In the public Interest and, 2 as you say* would add fuel to the stadia fires If the candle doesn't under 3 stand? 4 A That's right. 5 Q, There was no Intent of a personal policy of nondisclosure In this 6 statement at ell was there,*sir? ' 7 A In fact, I assumed that the Information that would be obtained 8 at these extremely low levels would be disclosed, 9 d Would be disclosed? 10 A That's right. 11 d Mr. Park, Hr. Carr also asked you about Plaintiff's 1233A, which 12 was a blow-up of a memo from Dr. Wilson to Doctor-- well, I take ft back, ft 13 was Just a cenorandun of Dr. Wilson with regard to a report of a consent 14 made by Dr. Paget. You remember hlar asking you about this? 15 A I. can't remember the specific question, though* 16 Q DHEH, Dr. Paget states that one part per billion 2,3,7*8 tetra- 17 ehlorodlbenzodloxtn Is probably acceptable medically In Santophen I. 18 A Yes. 19 d Mow, who would know In your opinion better what Dr. Paget meant 20 by that In the context In which It was said? Would you know? Were you 21 present when that conversation took place? 22 A Ho, uh huh. 23 Q Dr. Paget or Dr. Wilson certainly know better what'wes sold, what 24 was Intended. 141 1 A Far better* 2 Q Arid pertleularly Dr* Paget would know whet he had In mind better 3 then anyone? 4 A Yes he would. 5 MR. KUSGRAVE: Just one moment, your Honor. No other questions * et this time, your Honor. 7 THE COURT: Hr* Carr? 8 RECROSS EXAMINATION 9 BY HR* CARR 10 0 Hr* Perk If 1 understand you correctly whet you meant In the 11 memo that you wrote with regard to Dr* Paget's position peper was that If 12 one part par b l H I o n of 2378 TCDD In Sentophen Is an acceptable level 13 end ft Is not hazardous that you believe Monsanto should not get the 14 ability to go down end detect less than one pert per billion In the 15 Sentophen; Is that correct sir? 16 A 1 was really thinking of one pert per trillion. 17 Q Excuse me* Could you answer that question please sir as 1 18 posed ft to you? 19 O 20 A No that's not correct Mr. Cerr* Then you believe that Monsanto then should have the capacity 21 to go and detect the presence of dioxin In Its product down below what's 22 considered a nonhezardous level; Is that correct, sir? 23 A I'm sorry, as 1 state In my d w b o -- 24 G Excuse so, could you answer that question, please, sir, because * - ,f? * * . BAYONNE. N.J 142 1 you told us what you meant by that memo without referring to It when ma2 Mr. Musgrave was asking you, and I not now asking you diet you said In 3 that mono, I'm asking you what you meant whan you said this a moment ago. 4 Are you saying that If one part par billion of 2*378 TCDD Is a non- 5 hazardous lovai, that Monsanto road not gat the ability* analytical ability 6 to go and detect levels below one part per billion In Santophen? 7 A That Is correct. 8 THE COURT: I* sorry* I didn't hear your answer. 9I A That It correct. 10 THE COURT: Thank you. 11 0 And what you're saying* than* and the reason that you say Monsanto 12 should not have the capacity to go below to detect things In Santophan 13 below one pert per billion Is that the public would learn that there are 14 lower levels In the product through the media ona way or another. It Is 15 not In the best Interests of the pt&llc* I think Is the way you phrased It* 16 did you not, sir? Isn't that the way your phrased It? 17 A Best Interests of Monsanto or the public. 18 Qt Monsanto or th public* you equated the two* Monsanto's Interests 19 and the public Interests coincide In your Judcpteni; Is that correct? 20 A Yes. 21 Q, Now. What you ere Saying Is th pt&Ilc then should not bo told 22 ; 23 *.2i4 > the facts about Monsanto's products* because In your Judgment this knowfedg) 1 ' - I, ` would hurt the public for thorn to know the facts* Isn't that what you ara really saying* Jtr. Park? FORM a 249 1 A No, that's not It, Hr. Carr. I'm saying X don't think va need 2 to go to the effort to further define analytical techniques to detect 3 the dioxin dova below e nonhaxardous level. 4 Q The only-- vhat you say Is, I aa afraid that disclosure to govern 5 mental agencies and not Just the public, "that disclosure to governmental 6 agencies or the public that a contaminant has been detected vili merely 7 add fuel to media fires which already b u m furiously," and vhat you are 8 saying there-- 9 i MR. MtJSGRAVE; Hr. Carr, you are reading, that's at those levels, 10 Mr. Carr, that's an Important part of that sentence.' 11 Q Vli,-it 'says at parta per trillion or parts per quadrillion 12 levala far below the nonhazardous level will merely add fuel to tha media 13 fires which already b u m furiously, that la what you are eaylng, air? 14 A Yea. IS Q That you don't think that you should disclose that Monsanto, first 16 of all, shouldn't learn anything about Ita product below vhat Monsanto 17 considers to be medically acceptable levala because If It does learn, It's 18 going to have to disclose It to the governments! agencies end to the public? 19 A And it's s use of resources that could be used better somewhere 20 else, perhaps. 21 Q Veil, now, Mr. Park, that may be, but vhat you ere saying here, 22 dearly, is vhat you are saying Is if you find these things out you are 23 going to have to tell the government, a governmental agency, eren't you, sir? 24 A Could veil, yes. 1 Q And what you are saying Is that Monsanto doesn't trust the 2 governmental agendas vlth this knowledge, aren't you air? 3 A So, no. 4 Q Than why not disclose It to the governmental agencies air? 5 A X am not saying anything about not disclosing X am talking 6 about analytical techniques only 7 Q You ere not talking about disclosing vhat you learn In your 8 analytical technique to the government, did X read that correctly "I am 9 afraid that disclosure to governmental agencies or the public will merely 10 add fuel to the media f i r e s D i d n ' t you say that? 11 A Yes X am assuming vhat .wa find would be disclosed*. 12 Q And vhat you are eaylng la that you do not trust the governmental 13 agencies to act responsibly on this information that Monsanto might detect 14 and tell It as to these parts per quadrillion or parts per trillion aren't IS you elr? 16 A Mo, X am not saying that* 17 Q Then vhat other reason could you have for not disclosing? I 18 can understand Monsanto's not trusting the public although X certainly 19 don't agree with Monsanto's not trusting the public having the right to know 20, Z can understand why Monsanto could perhaps take that position publicly-- 21 MR* MUSGRAVE: Just a moment Mr* Carr* X object to counsel's 22 statement* It la not a question your Honor It Is a speech and It's 23 Improper and X request that the Court strike It and Instruct the Jury to 24 disregard it vlth regard to bis understanding of vhat Monsanto not trusting 1 tha public, that's totally laproper* 2 TH2 COURT* Overruled* 3 Q Mr* Park, do you believe that the public has the right to know 4 whether or not Santophan has In it dioxin at any level? bo you believe the 5 public has the right to know that at whatever level it sight be that they 6 are going to put this in the nursery, in a baby's crib? They recoosend on 7 It that you use It in the nursery end wash the baby's toys vlth it* Don't 8 you think that the public has tha right to know whatever the level night 9 be In the product? One pert per quantrillion billion trillion, ee low as 10 you can poeelbly detect it, don't you think they have tha right to know II that, MT. Park? 12 A Z don't aee tha purpose that would be served by-- 13 Q I'm not asking you about purposa. I'm asking you whether or not 14 yon bslleva the public has tha right to know what they are using with their 15 children In the nursery* 16 A To the extent that information la available* 17 Q Than they do have the right to know, don't they, air? 18 A To the extent that information about It Is available. 19 Q And what you are saying is since they have the right to know, 20 Monsanto should not l a a m about quadrillion or parts per trillion centanlnatl 21 because if yon learn about it, you ere going to have to tell about it. Hoy, 22 that's what you are saying, isn't it. Hr. Park? 23 A Once one goes down below-- 24 Q Isn't that whet you ere saying, Hr* Park? 1 A Zt ay recommendation-- 2 Q Isn't that vhat you ait saying, Mr* Park? 3 A Z don't think it's quite that no, Mr* Carr* 4 Q Than would you explain what you ava saying, Mr* Park, If you are 5 not saying, "Say, let's not find out vbat our product has in it, because 6 if we find out, we're going to have to disclose it to the governmental 7 agencies and to the public and we don't want to do that* Zt Is not in the 8 best Interests of Monsanto to disclose that"? Mould you explain vhat you 9 do ttean by that, Mr. Park? 10 A My suggestion which was not adopted was that once wa can detect 11 dioxin at a levol? which Is considered, not Just by Monsanto but by anyone, 12 to be nonhaserdous, then nothing Is served by further refining analytical 13 techniques to go below that* How, that was really all Z was recossaendlng* 14 Q Bow, X ask you what you w ant by this stateaent, Mr* Park. I IS asked you vhat you meant when you said, "I cs afraid that disclosure," when 16 you said, MI do not feel it la necessary to develop monitoring and,analytics 17 capabilities to detect the presence of contaminants at levels below the 18 highest nonhaserdous level* Z on afraid that disclosure to governmental 19 agencies or the public that a contaminant has been detected in a product 20 at parts per trillion or parts per quadrillion, levels far below the 21 nonhaserdous level will merely sdd fuel to the media fires which already 22 burn furiously*" Z'a asking you to explain to us whet you naan by that 23 statement, Mr* Park* 24 A X think thsre have been, this is personal opinion, I think there 1 hVi bies a number of instances of madia misunderstanding about dlmrin 2 toxicity* and I think this has worked to the disadvantage of a number of 3 people who have been given undue anxieties* unnecessary anxieties about 4 their own health as a result of possible or potential exposure to extremely 5 low levels* not just of dioxin* but to anything 6 Q Sow* Mr* Perk have you seen any campaign by Monsanto or anyone 7 else to explain to the public that parts per quadrillion is not going to 8 hurt you? Have you seen anything Ilka that go on? 9 A So. 10 Q Have you seen any irresponsible press anywhere where they ere II saying that something other than that the KPA has said? Have you seen any 12 demagogue stand up and say* "Hey* these things that you are talking about*-" 13 A Yaa* I think this haa taken place at different pieces around the 14 country* what 1 am describing here. IS Q That somebody haa said 111 effects that they don't believe is a 16 fact and that scientists have said things that they don't believe are a 17 fact* have you seen that? 18 A I am talking about the news madia. 19 Q That happens to be the St. Louis Post-Dispatch and the Belleville 20 Hews Democrat and the TV stations. Have you seen these media hare locally 21 taka irresponsible positions with regard to dioxin contamination? 22 A I think at Love Canal there were soma instances of this which 23 were pointed out. 24 Q Could you direct your attention to the question that Z asked you? 1 Hava you eta Instances hero the Foat-Dispatch or the Clobe Democrat or 2 the H e m Democrat or the TV stations have tafceu irresponsible poaltlona 3 with regard to what they are telling the public about dioxin contamination 4 la Hlaaonrl and elsewhere? 5 A Z believe, I can't recall It with great clarity, but I believe 6 the Poet-Dispatch at one tine put In an article that ve felt was, in fact, 7 a lengthy article-- 8 Q Hell, no, that article vaa actually a reprint of what NIOSH 9 said, wasn't It, sir? 10 A Z don't remember that. II Q Don't you roaeaher what It vaa, sir, and that Monsanto took a 12 position contraryvlse on that? This vaa something that a governaental 13 agency said that they found In St Louis In a truck yard* Don't you 14 recall that, Mr* Perk? 15 A I'a thinking of something different from that. Hr* Carr* 16 Q Hall, what are you thinking of other than that, air? 17 A I can't, Ilka Z say, recall with great clarity, but aa Z recall, 18 there vaa like a Sunday supplement Insertion in the Poet-Dispatch. 19 Q Oh, that dealt with dioxin, there vaa a long section that dealt 20 with dioxin and you believe that the Posfc-Dlepatch distorted facta In that 21 Sunday supplement? 22 A Z can't recall exactly right nov* 23 Q Bov, Mr* Carr, aa a matter of fact, you know that the Poet- 24 Dispatch has reported responsibly, you know that there has been no demagogs* 1 on this, and what Ton are saying chan la chat you, and you vanced Monsanto 2 to adopt your position, and It's wy thesis that they have done so, and I 3 think the evidence shows it* Ton said In effect, "Don't let the public 4 know-- " S ME* MUSCBAVE: Object, your honor* 6 Q That's vhat you said. 7 ME. MUSGHAVE: Counsel's characterization of his belief and 8 vhat the evidence shows, that's argument, that's a speech, it Is Improper, 9 I request that the Court Instruct the jury to disregard It and strike It 10 from the record. 11 THE COURT: Overruled. VOold you answer the question, please, 12 and then we are going to have to break for the day. 13 A Mo, that Isn't what I said. 14 TBS COURT: Ladles and gentlemen, we are going to end the testis IS for today. We will rasime again tomorrow morning at 9:30. The regular 16 admonishments that I give you on any overnight breaks will apply during 17 this one also. The Court is In adjournment until 9:30. 18 (Court adjourned for the day.) 19 20 21 22 23 24