Document daa43aryzOD8RMqaM77mMY35R

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA NEVADA POWER COMPANY, A NEVADA CORPORATION, PLAINTIFF, VS. MONSANTO COMPANY, A FOREIGN CORPORATION; GENERAL ELECTRIC COMPANY, A FOREIGN CORPORATION; WESTINGHOUSE ELECTRIC CORPORATION, A FOREIGN CORPORATION; AND DOES I XXV, INCLUSIVE, ' DEPENDENTS. CV-S-89-555-LDG-LRL DEPOSITION OF ROBERT EMMET KELLY, M.D. VOLUME IV TAKEN ON FEBRUARY 18, 1994 MARTIN & ASSOCIATES CERTIFIED COURT REPORTERS 2200 MARKET STREET, SUITE 412 GALVESTON, TEXAS 77550 (409) 762-2222 * FAX (409) 762-8040 WATER PCB-00051637 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 493 INDEX THE WITNESS; ROBERT EMMET KELLY, M. VOLUME IV EXAMINATION; By Mr. Kim (Continued) PAGE 496 KELLY EXHIBITS: Exhibit No. 47 ........................................................................... Monsanto Memorandum Dated January 26, 1967, to G. R. Buchanan from D. Wood 497 Exhibit No. 48 ........................................................................... Memorandum Dated February 13, 1967, to R. Emmet Kelly, M.D., from Gene Wi lde 500 Exhibit No. 49 ........................................................................... Monsanto Memorandum Dated June 12, 1956, to Dr. R. Emmet Kelly from Elmer P. Wheeler 589 Exhibit No. 50 ........................................................................... Monsanto Memorandum Dated June 12, 1956, to Dr. R. Emmet Kelly from Elmer P. Wheeler 589 Martin & Associates ( 409 ) 762-2222 WATER PCB-00051638 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 494 APPEARANCES: FOR THE PLAINTIFFS: Mr. John H. Kim Fisher, Gallagher & Lewis, L.L.P. First Interstate Bank Plaza 1000 Louisiana, 70th Floor Houston, Texas 77002 FOR THE DEFENDANT MONSANTO COMPANY: Mr. Scott R. Bauer Mr. Bruce A. Featherstone Kirkland & Ellis 1999 Broadway Denver, Colorado 80202 FOR THE DEFENDANT WESTINGHOUSE ELECTRIC CORPORATION: Mr. Konrad L. Cailteux Weil, Gotshal & Manges 767 Fifth Avenue New York, NY 10153 FOR THE DEFENDANT GENERAL ELECTRIC COMPANY: Mr. Evan J. Roth Williams & Connolly 725 Twelfth Street, N.W. Washington, D.C. 20005 THE VIDEOGRAPHER: Mr. Lou Getz Legal Media Systems, Inc. 550 Westcott, Suite 400 Houston, Texas 77007 ALSO PRESENT: Ms . Lynette Weldon Martin & Associates ( 409 ) 762-2222 WATER PCB-00051639 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 495 The oral videotaped deposition of ROBERT EMMET KELLY, M.D., was continued on February 18, 1994, beginning at 9:18 a.m., in the offices of Husch & Eppenberger, 100 N. Broadway, Suite 1300, St. Louis, Missouri, before Irma L. Reyes, a Certified Court Reporter and Notary Public in and for the State of Texas, pursuant to Notice and Agreement, the Federal Rules of Civil Procedure, and the following stipulation and waiver of counsel: IT WAS STIPULATED AND/OR AGREED that the deposition is to be signed by the witness before any Notary Public or officer authorized to administer oaths. IT WAS STIPULATED AND/OR AGREED that the court reporter could swear the witness with the same force and effect as if she were a Notary Public in and for the State of Missouri. THE VIDEOGRAPHER: Today is the 18th of February, 1994. It's 18 minutes Martin & Associates ( 409 ) 762-2222 WATER PCB-00051640 496 1 after 9:00 a.m. This is the beginning of 2 Tape No. 8, and we're on the record. 3 4 ROBERT EMMET KELLY, M.D., 5 was called as a witness and, having been 6 previously duly sworn, testified as follows: 7 8 EXAMINATION (Continued) 9 BY MR. KIM: 10 Q. Good morning. Doctor. 11 A . Good morning, Mr. Kim. 12 Q. 13 When we left off yesterday, we were talking about the persistence or nonbiodegradability 14 issues concerning polychlorinated biphenyls. 15 Do you recall that? 16 A . Yes, I do. 17 Q. 18 In 1966 when the Jensen and Widmark study first came out, there was some concern on 19 your behalf as to whether the chemical 20 compound identified as being persistent was, 2 1 indeed, an Aroclor or PCB product; is that 22 true ? 23 A , That's correct. 24 Q In any event, let me show -- that was -- that 25 notion was subsequently dispelled, was it Martin & Associates ( 409) 762-2222 WATER PCB-00051641 497 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. no t ? Yes, it was. And we found out later that it definitely was PCB chlorinated compounds? Yes, sir. (An instrument was marked Kelly Exhibit No. 47 for identification.) (By Mr. Kim) In -- let me show you what has bedn marked as your Deposition Exhibit 19 -- excuse me -- 47, which is a letter dated to Mr. Buchanan in St. Louis on January 26th, 1967. And it seems that you received a copy of this letter. Do you recall - Yes, I did. Do you recall reading this letter? Yes, I did. I'm sure if I got it, I read it. Would you - After looking at it, I believe I recall reading it, yes, sir. The second paragraph on the first page - Yes, sir. Mr. Wood indicates that: "To eliminate any Martin & Associates (409) 762-2222 WATER PCB-00051642 498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. earlier confusion that there may have been, I would [sic] like to emphasise that there is no doubt that the chemical which is the subject of the investigation and the news release, is chlorinated diphenyl i.e. Aroclor." Yes, sir. Did you recognize that to be an association with the Jensen and Widmark study? Yes, sir. This reference? On the second page, sir, underneath the heading "Effect in Sweden," the last sentence: "Jensen, however, stated that he had been approached personally by several workers associated with chlorinated diphenyls for non-electrical uses and these workers were quite worried as to the possible effects [sic] on their health." Yes, sir. Did Monsanto share those same concerns because of the persistence and nonbiodegradability of its Aroclor products? As who? Share the concern? Did Monsanto share this same concern expressed in this statement that we just read Martin & Associates ( 409 ) 762-2222 WATER PCB-00051643 499 1 because of the persistence and 2 nonbiodegradable -- nonbiodegradability of 3 its Aroclor product? 4 A. Well, we were concerned. But we were also 5 concerned as to who Mr. Jensen was talk - 6 talking to because there -- we were a very -- 7 a relatively small proportion of the 8 chlorinated biphenyls in the European 9 market. So I don't know whether he was 10 talking to people who were exposed to French 11 chlorinated diphenyl, Italian chlorinated 12 diphenyl, German chlorinated diphenyl, 13 Russian chlorinated diphenyl. 14 Q. Did Monsanto manifest this concern by 15 ordering any comparative analytical tests 16 between the foreign Aroclor products and the 17 U.S. produced Aroclor products? 18 A. I don't know whether they did or not. 19 Q. 20 Would that have been a responsibility that would have come under your direction as the 2 1 medical director of Monsanto during this time 22 period? 23 A . No, sir. 24 Q. Do you know who a Gene Wilde is? 25 A . He was a sales correspondent in St. Louis for Martin & Associates (409) 762-2222 WATER PCB-00051644 500 1 2 Q. 3 A. 4 Q. 5 A. 6 7 8 9 Q. 10 11 12 Q. 13 14 15 16 17 Q. 18 19 20 A . 2 1 Q. 22 23 24 25 some overseas operations. Was he employed by Monsanto? Yes . Was he considered management in 1967? Well, there are all degrees of management . I don't think he was considered very high up in management, but that didn't mean he was a clerk. He was someplace in between. Let me show you what we'll mark as your Deposition Exhibit No. 47. MS. WELDON: No. 48. (By Mr. Kim) Excuse me. 48. (An instrument was marked Kelly Exhibit No. 48 for identification.) (By Mr. Kim) -- and ask if you recall receiving this letter from Mr. Wilde in February of 1967. Yes, sir, I do. By 1967 did Monsanto take the environmental issues raised by the Jensen and Widmark study seriously? MR. BAUER: Before he answers that question, can I see what you're showing him? Martin & Associates (409) 762-2222 WATER PCB-00051645 501 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. MR. KIM: This question has nothing to do with the document. MR. BAUER: Okay. Well, then, I'm sorry. Restate it while I look at the document. MR. KIM: You bet. Repeat it. (By Mr. Kim) Did Monsanto take the environmental concerns and persistence issues raised by the Jensen and Widmark study seriously in 1967? Yes, we did. MR. KIM: My next question is about this document, so I better wait. (By Mr. Kim) On Page 2 of this letter -- and take some time to review the letter if you need to. Yes, sir. I've read it. Do you agree with the substance of Mr. Wilde's letter? MR. BAUER: Object to the form. Yes, I do. The substance. (By Mr. Kim) If you will turn with me to the second page, the first textual paragraph where it starts: "Two questions that kept Martin & Associates ( 409 ) 762-2222 WATER PCB-00051646 5 02 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. coming back to our minds during the meeting were that in all of the propaganda published, there has been nothing about the levels that have been found particularly in the air and no one has defined anything about what level would be considered harmful." Do you have any understanding what Mr. Wilde meant by the use of the term "propaganda"? No, I do not. Did it indicate to you -- or did Mr. Wilde ever indicate to you that he just did not believe the studies and the results from the Jensen and Widmark work? I have no way of knowing what Mr. Wilde believed or thought. Did you agree with the conclusion that Mr. Wilde reached in the very next paragraph where he states: "All of these actions need immediate attention with the exception, of course, of the gathering of toxicological and pharmacological information"? The Actions 1, 2, 3, 4, 5 up above? Yes. Yes, I think so. Martin & Associates (409) 762-2222 WATER PCB-00051647 503 1 Q. 2 3 4 5 6 A. 7 8 Q. 9 10 11 A. 12 13 Q. 14 15 16 A. 17 Q. 18 19 20 2 1 A. 22 23 24 25 Tell me, on a toxicological stand -- a toxicological standpoint, what tests and analysis was underway at Monsanto in February of 1967 concerning those issues dealing with persistence. You said "toxicological" and what other? And analytical? Pharmacological. But my question is limited right now to just toxicological studies or analysis. I don't see the relationship between toxicological testing and persistence. There is ----- whether PCBs persist in the environment causes you no concerns from a toxicological standpoint? No. That is not what I said. Well, my question to you is: What toxicological based analysis or testing was being done in February of 1967 concerning the issue of PCB persistence in the environment? Nothing was being done from the standpoint of toxicological investigation in 1967. We were making plans to carry it out. We believed that once we found some levels that might be present -- remember, at this time there was Martin & Associates ( 409 ) 762-2222 WATER PCB-00051648 5 04 1 2 3 Q. 4 A. 5 6 7 8 9 10 11 12 13 14 15 16 A. 17 Q. 18 19 A. 20 Q. 21 22 23 24 25 no toxicological problem as far as humans are concerned. There was no -- How about - Also in February of 1967, there was no report of any harm done to birds and fish. We recognized the fact that there was no long-term toxicity studies on our PCBs. In No. 3 -- the numbered third paragraph -- or bit of action up above said. Give some thought to how we would approach this problem on a toxicological and pharmacological basis." Well, we certainly gave it a great deal of thought; and we got the ball rolling in 1968. MR. KIM: Object to nonresponsive. Beg pardon? (By Mr. Kim) Just a legal objection I have to make sometimes, Doctor. Okay. Don't worry about it. In 1968 how did this great thought with respect to the toxicological and pharmacological issues manifest itself at Monsanto Chemical Company? MR. BAUER: Object to the form. Martin & Associates (409) 762-2222 WATER PCB-00051649 5 05 1 A. 2 3 Q. 4 5 6 A. 7 8 9 10 Q. 11 12 A. 13 Q. 14 A . 15 Q. 16 17 18 A. 19 20 21 22 23 24 25 I'd like to hear the -- in the great thought? (By Mr. Kim) You indicated, did you not, that great thought was going on with respect to these persistence issues? Did I say "great"? I said "thought." Well, considerable thought was -- how did it manifest itself? Well, we decided we're going to get some chronic toxicity tests. And those chronic toxicity tests were commissioned out to Industrial Bio-Test? That's correct. Also known as IBT? Yes, sir. Did you feel that Monsanto should be in the forefront of this research since it was the sole producer of PCBs in the United States? Well, the problem was in Europe at that particular time in 1967. And we certainly were far from a sole producer in 1967 or anytime in Europe. Our concern was, "Is this liable to be occurring in the United States?" We didn't know what the parameters of this exposure were or how this material Martin & Associates (409) 762-2222 WATER PCB-00051650 506 1 2 Q. 3 4 5 6 A. 7 8 9 A. 10 11 12 13 Q. 14 15 16 17 18 19 20 A. 21 22 23 Q. 24 25 was getting into the environment in Europe. Because Monsanto -- did Monsanto draw an analogy between that experience in Europe and the potential experiences that may occur as a result of its U.S. PCB product? Yes . MR. BAUER: Objection. Lacks foundation. Well, they recognized that there was a problem in Europe. And we were interested, quite interested, in knowing whether we had a problem in the United States. (By Mr. Kim) Did Monsanto take the position that it would lead the investigative efforts in the United States? Or did Monsanto sit back and rely upon other scientists to make similar findings in the United States? MR. BAUER: Objection. Assumes that it's one or the other. That is pretty vague. I wish you could be more specific about where we lead and where we were alleged to sit back. (By Mr. Kim) Sure. What I wondered is: If Monsanto recognized the problem that occurred in Europe, did Monsanto immediately institute Martin & Associates ( 409 ) 762-2222 WATER PCB-00051651 507 1 2 3 4 A. 5 Q. 6 A. 7 8 9 10 Q. 11 A . 12 Q- 13 14 15 16 A . 17 Q. 18 A . 19 20 21 22 23 24 Q. 25 studies and analysis with respect to its U.S. products to try and repeat the results found in Europe by Jensen and Widmark? You have studies and analysis. Let's - Start with studies. Let's break it down. Studies: We prepared to do toxicological work when we found out that the material might be an ingredient of the human diet. And those are the IBT tests? That's correct. How about any analysis outside of those studies ? MR. BAUER: Well, you didn't let him finish, though, I don't think. Now we go to the analytical part? (By Mr. Kim) Yes. That -- Monsanto did carry out some analytical work on the persistence of PCB in certain laboratory experiments. They did not go out and examine salmon in the United States or something like that, to the best of my knowledge. Would the analytical department -- analytical chemistry department have done that Martin & Associates (409) 762-2222 WATER PCB-00051652 508 1 analytical work? 2 A. Would they have done what? 3 Q. The analytical work that you just talked 4 about? 5 A. Either analytical or research department. I 6 don't know which one. 7 Q. Did you ever see the results of that work? 8 A. I don't recall whether I did or not. 9 Q. Do you know whether Monsanto keeps the 10 records of that work? 11 A. I don't know. 12 MR. KIM: Mr. Bauer, could y'all 13 check into that? 14 MR. FEATHERSTONE: Well, they've 15 been produced. 16 MR. KIM: They have? 17 MR. FEATHERSTONE: Yeah. You 18 examined -- your predecessor examined Scott 19 Tucker and Dr. Muir and others on those very 20 points. 2 1 MR. KIM: Very well. 22 MR. FEATHERSTONE: I had to sit 23 through the depositions. 24 Q. (By Mr. Kim) Doctor, did Monsanto Chemical 25 Company, St. Louis, subsequently receive a Martin & Associates (409) 762-2222 WATER PCB-00051653 509 1 request for further funding of environmental 2 studies concerning PCB products in Europe, to 3 your knowledge? 4 A. Requests from whom? 5 Q. David Wood. 6 A. I don't know. 7 Q. I think we agreed that Monsanto -- well, 8 excuse me. Strike that. 9 In 1967, after a review of the 10 Jensen and Widmark study, did you and the 11 medical department consider the environmental 12 issues to be serious from the standpoint of 13 health hazards? 14 A. To -- to whom? To anybody? Any animal, any 15 species, any birds; or humans? 16 Q. Humans. 17 A. No, I did not. 18 Q. Did you feel it necessary to warn potential 19 users of Aroclor products that leaking or an 20 escape of the Aroclor products might lead to 2 1 environmental contamination? 22 MR. BAUER: Object - 23 A. Did I? 24 MR. BAUER: Objection. Vague and 25 indefinite as to time. Are we talking Martin & Associates (409) 762-2222 WATER PCB-00051654 5 10 1 about - 2 MR. KIM: Nineteen - 3 MR. BAUER: -- two months? 4 MR. KIM: -- Sixty-seven. 5 MR. BAUER: So right after Jensen 6 and Widmark? 7 A. Did I? No, I did not. Whether or not that 8 was done by the marketing people or not, I 9 don't know. I def -- I know definitely in 10 1970 we did. Sometime in Nine -- either '70 11 or right before 1970. 12 Q. (By Mr. Kim) Is that the first time that 13 Monsanto warned, in either '69 or '70, about 14 the possibility of environmental 15 contamination, to your knowledge? 16 A. I don't know whether that is correct or not. 17 Q. In 1967, if Monsanto wanted to put the 18 possibility of environmental contamination on 19 a warning or label that would accompany its 20 product, would that have still fallen under 2 1 your review in the medical department? 22 A. No, I don't think so. Because I was not an 23 expert in the environmental contamination, if 24 any. 25 Q. Subsequent to Jensen and Widmark and Martin & Associates (409) 762-2222 WATER PCB-00051655 5 11 1 Risebrough were several other reports of PCB 2 compounds found in wildlife from various 3 parts of the world; is that correct? A 4 report came out of Great Britain? 5 A. Yes. 6 Q. A report came out from Risebrough about the 7 California coast - 8 A. Yes . 9 Q. -- or Baha coast? 10 A. Yes. 11 Q. And we knew about it in Sweden? 12 A. Yes, sir. 13 Q. In 1968 did you have an opportunity to review 14 studies conducted by Dr. Renata Kimbrough? 15 A. Yes. 16 Q. Can we agree that Dr. Kimbrough's initial 17 study and conclusions indicated that she had 18 found PCBs to be carcinogenic in female rats? 19 MR. BAUER: What was the date? 20 A. Dr. Kimbrough found -- I don't know the 2 1 date -- that according to her pathologist, 22 twelve six -- Aroclor 1260 was called 23 carcinogenic in rats by her pathologist. 24 That was not accepted by independent 25 pathologists. That finding was not Martin & Associates (409) 762-2222 WATER PCB-00051656 5 12 1 2 Q. 3 4 A. 5 6 7 Q. 8 9 A. 10 Q. 11 A . 12 Q. 13 14 A . 15 Q. 16 17 18 19 20 A . 21 22 Q. 23 24 25 accepted. It was also -- (By Mr. Kim) Excuse me. Which independent pathologists ? Parvis Pour of the Eply Institute at the University of Nebraska. Dr. Richard Gordon, I think, of Northwestern University. At this time you had already employed IBT to do your chronicity testing; is that right? Which time are we now? Sometime in 1968. Yes . And you had great respect for the work of IBT scientists, did you not? Yes, I did. Do you have a recollection of whether you sent scientists and pathologists from IBT to review those initial slides of Dr. Kimbrough? MR. BAUER: Objection. Indefinite as to time. You confused me in the question. Would you repeat it? (By Mr. Kim) Dr. Kimbrough, in her preparation of her first study in which she indicated that she thought PCBs were carcinogenic -- Martin & Associates ( 409 ) 762-2222 WATER PCB-00051657 5 13 1 A. Yes. 2 Q. -- had tissue slides of the livers of these 3 rats, did she not? 4 A. Correct. 5 Q. Do you recall if at your direction or at 6 someone from Monsanto's direction you sent 7 the pathologist from IBT to make an 8 independent reading of those slides? 9 A. I do know -- I do not know whether a 10 pathologist from IBT went to review the 11 slides. I do know that I had a meeting with 12 Dr. Kimbrough in St. Louis in which 13 representatives of IBT were there. And it 14 was decided that Dr. Kimbrough's pathologist 15 would review the IBT slides and Kimbrough 16 would send some slides to either Monsanto or 17 IBT for invest -- for analysis by an 18 independent pathologist. Yes. 19 Q. Do you recall if that review ever took place? 20 A. Yes, it did. 2 1 Q. Do you recall if the IBT pathologist ever 22 reviewed the Kimbrough slides? 23 A. I don't know if the IBT pathologist did. I 24 know that Parvis Pour did. 25 Q. Did you ever inquire as to whether the IBT Martin & Associates (409) 762-2222 WATER PCB-00051658 5 14 1 pathologist reviewed those slides? 2 A. I don't know when they got them. I don't 3 know if they got them before 1974 or not. 4 MR. FEATHERSTONE: If I can put 5 this chronology, Levinskas testified about 6 this. The review happened after Dr. Kelly 7 retired. So - 8 MR. KIM: Just asking. 9 MR. FEATHERSTONE: That's fine. 10 That's fine. But you keep flipping from '68 11 till after '74 on all this. 12 MR. KIM: I understand. 13 MR. BAUER: This is - 14 MR. FEATHERSTONE: That's all I'm 15 saying. 16 MR. BAUER: This is much later in 17 time than '68. 18 MR. FEATHERSTONE: That's all 19 right. That's all right. As long as - 20 MR. KIM: We're going to talk about 2 1 this in -- more specifically later. 22 Q. (By Mr. Kim) Do you know who Paul Wright is? 23 A. Who what? 24 Q. Excuse me. Do you know who Paul Wright was? 25 A. Yes. Martin & Associates (409) 762-2222 WATER PCB-00051659 5 15 1 Q. Did you hire Paul Wright? 2 A. I engaged him from -- for the medical 3 department, yes. He had worked for Monsanto 4 before. He went up to IBT for two years as a 5 toxicologist, and he came back to the medical 6 department. 7 Q. You hired him as a toxicologist? 8 A. Yes, I did. 9 Q. Did you respect his work? 10 A. Very much. 11 Q. Held him in high regard? 12 A . Still do. 13 Q. Do you know a gentleman by the name of Paul 14 Smith? 15 A. No, I do not. I know thename. 16 Q. Did you know him as someone who worked at 17 Industrial Bio-Test? 18 A. Yes. I did not know whether he was a 19 toxicologist or an animal handler. I don't 20 know. I never met him, though, to the best 21 of my knowledge. 22 Q. You have no criticisms, then, of him as a 23 scientist? 24 MR. BAUER: Objection. 25 A. I didn't even know he was a scientist. Martin & Associates (409) 762-2222 WATER PCB-00051660 5 16 1 Q. 2 A. 3 4 5 6 Q. 7 A. 8 Q. 9 A. 10 Q. 11 A. 12 Q. 13 A. 14 15 Q. 16 A. 17 Q. 18 19 20 A. 21 22 Q. 23 24 25 A. (By Mr. Kim) Who was George Levinskas? George Levinskas is a Ph.D. who was in charge of our toxicological department starting around 1972, I believe. Or Seventy -- Seventy -- one or two years before I left. Did you hire him? Yes. Held him to be in high esteem? Yes. He was -- well, everyone did. Ethical? Very ethical. Who was George Roush? He was my successor. He was a physician who became medical director after I left. Did you hire him? Yes, I did. And you had occasion to work with him for approximately one year while you were in that transitionary period? Well, in two years while he was -- both he and I were full-time at Monsanto. During your tenure at Monsanto, you had occasion to order tests from Dr. Drinker in 1938; is that correct? That's correct. Martin & Associates (409) 762-2222 WATER PCB-00051661 5 17 1 Q- You provided the product; is that correct? 2 A. Yes . 3 Q. Or ordered the product from the manufacturing 4 department ? 5 A. Right. 6 Q. You have no idea of the purity or grade of 7 that product that was sent to Dr. Drinker? 8 MR. BAUER: Objection. 9 Mischaracterizes his testimony. 10 A. I know that the material was production run 11 at our Anniston plant. 12 Q. (By Mr. Kim) You never saw the material that 13 was actually sent? 14 A. I did not go down and take a quart of it out 15 of a barrel or a tank car that was leaving 16 the plant, no. 17 Q. Monsanto paid Dr. Drinker for the report? 18 MR. BAUER: Objection. 19 A. They paid - 20 MR. BAUER: Object to the form. 2 1 Argumentative. 22 A. They paid him for his work. 23 Q. (By Mr. Kim) And Monsanto received a 24 favorable report? 25 A. Well, I don't know. They received a report. Martin & Associates (409) 762-2222 WATER PCB-00051662 5 18 1 There was a factual report. I don't know 2 which -- favorable to whom? To Monsanto? 3 Q. Well, it didn't indicate that there were any 4 health concerns - 5 A. Well -- 6 Q. -- did it? 7 A. No, it certainly didn't. 8 Q. And certainly it's a report that you relied 9 upon in not warning individuals of possible 10 systemic problems, is it not? 11 MR. BAUER: Object to the form. 12 A. That isn't correct. Because I warned 13 individuals in our -- in many bits of 14 correspondence that you have in your exhibits 15 about systemic effects. In our bulletins we 16 mentioned -- we warned about systemic 17 effects. In the reports from Treon that we 18 sent out to people, we warned about -- there 19 was material in there about systemic 2 0 effects. In the reports of the American 2 1 Industrial Hygiene Group on PCBs, on 22 Aroclors, that we sent out in hundreds -- or 23 I shouldn't say hundreds. A great number of 24 them. 25 Q. (By Mr. Kim) Doctor, in 1938 -- Martin & Associates (409) 762-2222 WATER PCB-00051663 5 19 1 MR. BAUER: Are you finished with 2 your answer. Dr. Kelly. 3 THE WITNESS: No, I haven't. 4 A. But we sent out to customers - 5 MR. KIM: Well, I'll object to 6 nonresponsive. 7 MR. BAUER: Did you get his 8 answer? 9 THE COURT REPORTER: No. What was 10 that last part? 11 THE WITNESS: Well, the answer 12 was - - 13 MR. BAUER: Can he answer, 14 Mr. Kim? 15 THE WITNESS: -- I disputed - 16 MR. KIM: Certainly, Scottie. 17 THE WITNESS: I disputed Mr. Kim's 18 term that we never warned workers -- 19 customers about systemic effects. 20 Q. (By Mr. Kim) In 1938 did you warn workers 2 1 about the problems concerning lassitude? 22 A. No, sir. 23 Q. Loss of libido? 24 A. No, sir. 25 Q. Loss of appetite? Martin & Associates (409) 762-2222 WATER PCB-00051664 520 1 A. 2 Q. 3 A. 4 Q. 5 A. 6 Q. 7 A. 8 Q. 9 10 11 12 A. 13 Q. 14 A. 15 16 17 Q. 18 A. 19 20 21 22 Q. 23 A. 24 25 No, sir. Joint pains ? No, sir. Memory loss? No, sir. Also, they didn't have it. Well, they wouldn't know if they did. Huh? Beg pardon? That was a joke. Doctor. After the Drinker studies, what was the next series of studies that you ordered on behalf of Monsanto? Toxicological studies, you're talking about? Any studies. Well, any studies, we examined the workers every year from then until I left the company. And - I considered that a study, a clinical study. It's just as important and in this particular instance was more important from the occupational point of view. Did Monsanto ever publish that study? No, sir, we did not. Unfortunately, we don't have the time of the academics - academicians or the Government people who Martin & Associates (409) 762-2222 WATER PCB-00051665 52 1 1 seem to have plenty of time to do that. But 2 we didn't. And really, it would be an 3 extremely rare journal -- there is no journal 4 of negative information. And the editor does 5 not look favorably on a report saying, "We've 6 been manufacturing X-compound for 30 years, 7 and we haven't any problem with our 8 workers . " 9 Q. After the occupational study, what was the 10 next series of studies of any type that you 11 ordered on behalf of Monsanto? 12 MR. BAUER: Object to the form. He 13 said the occupational clinical studies took 14 place throughout the time as medical 15 directorship. So how could there be one 16 after that? 17 Q. (By Mr. Kim) Doctor, are you having a 18 problem understanding me? Or is it just your 19 attorney? 20 A. No. Sometimes you confuse me with your 2 1 questions. 22 Q. Did that question confuse you? 23 A. Let's say it over. 24 Q. Aside from that occupational study that you 25 just described, what was the next series of Martin & Associates ( 409 ) 762-2222 WATER PCB-00051666 522 1 2 3 4 A. 5 6 7 8 9 Q. 10 11 A. 12 Q. 13 A. 14 Q. 15 A. 16 Q. 17 18 A. 19 Q. 20 21 22 A. 23 Q. 24 25 tests -- the next set of tests that you ordered on behalf of Monsanto? MR. BAUER: Object to the form. We ordered samples of our PCBs for acute studies at varying times during the course of the manufacture. We ordered a series of chronic inhalation studies in 1954 at Kettering Laboratory. (By Mr. Kim) That was the work done by Dr. Treon? That is correct. Monsanto underwrote or paid for that work? Yes, we -Did -- excuse me. Yes, we paid for it. Monsanto furnished the Aroclor products to be tested? Yes, we did. You again called down to the manufacturing department and said, "Send them these samples"? That's correct. You never yourself personally checked to make sure to verify what grade was actually sent to them; is that correct? Martin & Associates (409) 762-2222 WATER PCB-00051667 523 1 A. No, sir, I did not. 2 Q. And again, Dr. Treon gave a favorable report 3 from Monsanto's standpoint? 4 MR. BAUER: Object to the form. 5 Argumentative. 6 A. I don't think his report was -- really had 7 anything to do with Monsanto, outside of the 8 fact that we supported it. He arrived at a 9 series of facts based on his experiments. If 10 we viewed it as favorable to us, fine. 11 But - - 12 Q. (By Mr. Kim) His research certainly didn't 13 give Monsanto or you any indication of the 14 need to stop producing PCB products? 15 A. No, it did not. 16 Q. After the Kettering tests, what was the next 17 set of tests that you ordered on behalf of 18 Monsanto? 19 A. We did some -- the next step -- series, to 20 the best of my recollection, was repeated 2 1 skin testing at IBT. But I don't know when 22 that was done. But the major testing at IBT 23 was started -- was authorized sometime in 24 early Seventy -- '68, I believe. 25 Q. What about the test that Younger Laboratories Martin & Associates (409) 762-2222 WATER PCB-00051668 524 1 and Scientific Associates -- what time frame 2 was that? Was that - 3 A. Oh, that was all through my career at 4 Monsanto. I can't tell you dates. But you 5 talked about a series of tests. And I 6 thought you -- these were all individual 7 tests on individual compounds. 8 Q. Well, let's start with Younger Laboratories. 9 They did some acute testing on - 10 A. That's correct. 11 Q. -- behalf of Monsanto. You chose Younger 12 Laboratories? 13 A. Yes, I did. 14 Q. You hired them? 15 A. Yes, I did. 16 Q. Monsanto underwrote or paid for the studies? 17 A. We paid for the studies. 18 Q. Monsanto provided the products? 19 A. Yes, sir, we did. 20 Q. And the conclusions that were reached by 2 1 Younger Laboratories did nothing in the way 22 of changing Monsanto's view of production and 23 sale of PCB products? 24 A. No, sir, it did not. 25 Q. Scientific Associates. You hired them? Martin & Associates (409) 762-2222 WATER PCB-00051669 525 1 A. 2 Q. 3 A. 4 Q. 5 A. 6 Q. 7 A. 8 Q. 9 10 11 12 A. 13 Q. 14 15 16 17 A. 18 Q. 19 20 21 22 A. 23 24 25 Yes. You chose the laboratory? Yes, I did. Monsanto paid for the studies? Yes, they did. Monsanto provided the materials? Yes, they did. You never personally checked to see if the material -- what grade the materials were that went from the manufacturing department to the laboratory? No, sir, I did not. Again, the reports from Scientific Associates did nothing that would indicate Monsanto would need to take PCB products off the market ? No, sir, it did not. Outside of those laboratories, are there any other laboratories that you hired while at Monsanto, with the exception of Industrial Bio-Test? Well, we've talked about Drinker; and we've talked about Treon. We've talked about Scientific Associates. We've talked about Younger. Are there any other besides those Martin & Associates ( 409 ) 762-2222 WATER PCB-00051670 526 1 2 Q. 3 A. 4 Q. 5 6 7 A. 8 Q. 9 A. 10 Q. 11 A . 12 Q. 13 A . 14 Q. 15 16 17 A. 18 19 20 21 22 23 Q. 24 25 four and IBT? That you ordered. I can't think of any. And this encompasses a time period from 1936 , when you started at Monsanto , to 1974, when you retired? Yes, sir. You chose IBT? Yes, sir, I did. You paid for those studies? Yes . You provided the materials? Yes, we did. You didn't personally check to see what grade of PCB was being sent to it, the IBT Laboratories? Personally check? I didn't analyze the material. I called and said, "Send some of your production grade." And I certainly had complete confidence that the manufacturing superintendent at Monsanto would send what I asked for. Again, IBT's results caused you, as the medical director of Monsanto, no concern about the continued sale of PCBproducts? Martin & Associates (409) 762-2222 WATER PCB-00051671 527 1 2 A. 3 4 5 6 Q. 7 8 9 10 11 12 13 14 15 16 A. 17 18 19 20 21 22 23 24 25 MR. BAUER: Object to the form. Well, our concern was always that they would follow the instructions that we had in our bulletins and on our labels to avoid any ill effect to the workers. (By Mr. Kim) I understand. Doctor. My question was: Did the reports and conclusions from Industrial Bio-Test cause you concern, as the medical director of Monsanto, about the continued commercial sales of PCB products? MR. BAUER: Object to the form. Indefinite as to what use you're talking about. MR. KIM: Any use. Well, I think the skin absorption causes concern to be -- to be more -- we were concerned about the possibility of skin absorption. We found out that the material was toxic on absorption through the skin. We knew that, but this confirmed our impression. But I don't -- I don't know how you define your word "concern." If you mean by -- did it worry us about the use? Is that what you mean by "concern"? Martin & Associates (409) 762-2222 WATER PCB-00051672 52 8 1 Q. (By Mr. Kim) Did the result make you think 2 that Monsanto needed to take PCB products off 3 the market? 4 A. No, they certainly did not. 5 Q. You respected the work done by IBT? 6 A. No question about it. 7 Q. Trusted its truth? 8 A. Absolutely. 9 Q. Did you tell me earlier that you hired Paul 10 Wright ? 11 A. He was originally hired as a -- he is a 12 Ph.D. He was originally hired by the 13 agricultural department as a research 14 chemist. 15 Q. Did he ever work under your direction? 16 A. I haven't finished. 17 Q . Oh, I'm sorry. 18 A. He -- that -- his particular -- I don't know 19 whether his particular job was abolished or a 20 section was abolished, but he had heard that 2 1 IBT might be engaging people of his 22 background in toxicology. He went up to IBT 23 for about two years, and then I engaged him 24 for Monsanto's medical department. 25 Q. Prior to his leaving to go to IBT, he did not Martin & Associates (409) 762-2222 WATER PCB-00051673 529 1 2 A. 3 Q. 4 A. 5 6 7 8 Q. 9 A. 10 Q. 11 12 A . 13 Q. 14 15 16 A . 17 18 19 Q. 20 21 A. 22 23 24 25 work under your direction? No, he did not. Did you know him before he left to go to IBT? I may have met him. I think Elmer Wheeler knew him better than I, but I don't remember him -- much about him before he came to work -- until I saw him after he was at IBT. Elmer Wheeler knew him while he was at IBT? Beg pardon? Did Mr. Wheeler know him while Mr. Wright was at IBT? I don't know if he -- I don't know. Do you know whether Mr. Wright was involved in any of the PCB tests being conducted at IBT on behalf of Monsanto? I don't know. Is his name on the reports? That's easily found out. If his name is on the reports, he was involved. Did you know that Mr. Wright was criminally indicted for scientific fraud in 1982? I do not know why he was indicted. I do not know the charges. This occurred eight years after I had left the company. All I knew is what I read in the paper, and that was very -- and I don't know any of the details. Martin & Associates ( 409 ) 762-2222 WATER PCB-00051674 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 530 Your testimony today, as you sit and testified before this jury under oath, is that you did not know anything with respect to his indictment until some eight years afterwards, after your retirement? Whenever he was indicted. I don't know when he was indicted. I don't know when he was indicted. It certainly wasn't eight years. I thought he was indicted before 1982. If I said "eight years," that was incorrect. I thought it was -- I left in '74. I was there as a consultant for a year, '75. There was no indictment then. I don't know when the indictment took place, but it wasn't eight years. Did you know that Mr. Wright's indictment pertained to falsification of data in connection with studies performed at IBT? MR. BAUER: Objection - I don't know - MR. BAUER: Object to the form. Assumes facts not in evidence. I do not know anything about the details of the indictment. (By Mr. Kim) When did you first learn about Martin & Associates ( 409 ) 762-2222 WATER PCB-00051675 53 1 1 2 A. 3 4 5 Q. 6 7 8 A. 9 10 Q. 11 12 13 A. 14 15 Q. 16 17 18 19 A. 20 21 22 23 Q. 24 25 A. the details of the indictment, if ever? If ever? I certainly did learn when I read it in The Post Dispatch, which is a St. Louis newspaper. Did you ever call Paul Wright and ask him to testify on behalf of Monsanto in cases concerning PCBs? I called Paul once and asked him if he would -- if he would testify. Yes, I did. He refused to answer questions concerning studies on PCBs commissioned by Monsanto and performed by IBT; is that correct? I don't know. He refused to answer any questions on advice of his lawyer. Indeed, any questions that he was asked concerning these issues of PCB testing, he chose to invoke his Fifth and Fourteenth Amendment constitutional rights? I don't know if he was ever asked. I saw no record of a trial in which he was ever asked or any testimony that he was supposed to give that he answered that way. You indicated earlier that you did not know Phillip Smith? No. I didn't know him at all. Martin & Associates (409) 762-2222 WATER PCB-00051676 532 1 Q. 2 3 4 A. 5 Q. 6 A. 7 8 9 Q. 10 11 12 13 14 A . 15 16 Q. 17 18 19 A . 20 21 Q 22 23 24 25 Did not have any occasion to run across or chat with him while you made your once or twice a year visits to the IBT Laboratories? He was a nonperson, as far as I knew. Of no moment? Well, he wasn't in the scientific group that I talked to up there. So I don't know what his position was up there. Did you know that Paul Wright was in charge of the PCB tests while at Industrial Bio-Test? MR. BAUER: Objection. Asked and answered? No, I did not know that. I don't know whether he was or not. (By Mr. Kim) Did you know that Mr. Smith worked with Mr. Wright in connection with Monsanto's Aroclor studies? I don't know anything about Mr. Smith's working at IBT. Have you heard that Mr. Smith has criticized those studies performed by IBT and commissioned by Monsanto because there was a problem with the survivability of rodents on Monsanto's Aroclor studies? Martin & Associates (409) 762-2222 WATER PCB-00051677 5 33 1 MR. BAUER: Object to the form. 2 A. I do not know that. 3 Q. (By Mr. Kim) Did you ever review a document 4 from Mr. Wright to a Marino Keplinger, who is 5 the manager of the laboratory which concerned 6 the PCB test? 7 A. I may have. I don't know. I don't recall 8 it. If you've got the memorandum. I'll be 9 happy to see it and see if it refreshes my 10 memory. 11 Q. I just wanted to know if you recall that 12 document. 13 Do you recall Mr. Smith and 14 Mr. Wright indicating that, quote: "The 15 tumor incidence in females with Aroclor 1254 16 is bothersome" ? 17 18 Q. 19 MR . BAUER: Obj ection. (By Mr. Kim) Eighty - - MR. BAUER: You're quoting from a 20 document that' s not - - 2 1 MR . KIM: Excuse me. I'll finish 22 my question -- 23 MR . BAUER: That's all right. 24 MR . KIM: - - then you can object. 25 MR . BAUER: All right. Martin & Associates (409) 762-2222 WATER PCB-00051678 5 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. MR. KIM: Unless you want a running objection, which I offered you yesterday, as to every question that I ask. Mr. Kelly is 84 years old. We have limited time in which to question him. If you want to continue to object to every question, you can do so, Scott. But you can have a running objection. Just let me finish my questions. MR. BAUER: I thought you were finished with your question. I'm afraid you'll have to start your question over . (By Mr. Kim) I'm afraid I will, too. Doctor. Do you have a recollection if Mr. Wright or Mr. Smith ever told you that, quote: "The tumor incidence in females with Aroclor 1254 is bothersome. 82 percent at 10 parts per million and 100 percent at 100 parts per million"? MR. BAUER: Object to the form. Mr. Wright? First of all, I have never talked to Mr. Smith in my life. I may have said "hello" to him, but I don't recall even that. I don't know him. I wouldn't know him Martin & Associates (409) 762-2222 WATER PCB-00051679 5 35 1 if he walked in here. I don't recall 2 Mister -- Dr. Wright saying that particular 3 statement that you just spoke of. 4 Q. (By Mr. Kim) Why do you term that 5 ridiculous? 6 A. Why do I what? 7 MR. BAUER: Objection. He never 8 said "ridiculous." 9 A. I didn't say "ridiculous." 10 MR. FEATHERSTONE: He said 11 "particular." 12 A. "Particular." 13 Q. (By Mr. Kim) Oh, "particular." Excuse me. 14 Doctor. 15 A. Why did I say "particular"? 16 Q. No. I can understand that. I'm from West 17 Texas, but I'm not that slow. 18 Did anyone ever tell you or were 19 you ever made aware that Mr. Smith alleged 20 that the raw data with regard to the IBT PCB 2 1 studies were falsified? 22 MR. BAUER: Object to the form of 23 the question. 24 A. Did anyone ever tell me that Mr. Smith said 25 that the raw data were falsified? Martin & Associates (409) 762-2222 WATER PCB-00051680 536 1 Q. (By Mr. Kim) ( Nods head.) 2 A . No , they did not . I do not -- whether that 3 was in the material I read in The Post 4 Dispatch or not, I don't know. And as I 5 recall, Mr. Smith made -- we had other 6 studies done at IBT that the Government 7 questioned, that were repeated at 8 Biodynamics, which is another entirely 9 different laboratory - 10 11 (Whereupon Mr. Roth leaves the 12 proceedings . ) 13 14 A. -- and after I left. And they confirmed the 15 data that IBT had. So I still don't believe 16 what Mr. Smith said. 17 Q. (By Mr. Kim) Did Monsanto ever ask for the 18 raw data behind the studies? 19 MR. BAUER: Objection. Lacks 20 2 1 Q. foundation. (By Mr. Kim) To any study? 22 MR. BAUER: Objection. Lacks 23 foundation. 24 A. I believe Doctor -- I did not ask. I believe 25 Dr. Levinskas looked over some of the raw Martin & Associates (409) 762-2222 WATER PCB-00051681 537 1 2 3 Q. 4 5 6 7 8 A. 9 Q. 10 11 12 13 A . 14 Q. 15 16 17 18 19 20 21 22 A 23 24 25 data on some of the studies. I don't know which ones. (By Mr. Kim) Do you know whether Paul Smith -- excuse me -- Phillip Smith has testified that he has signed two IBT PCB reports that contained false data? MR. BAUER: Object to the form. No, sir, I do not know that. (By Mr. Kim) Do you know whether Mr. Smith has testified or alleged that Paul Wright forged his name to one other Aroclor study for Monsanto? No, sir. Did you know that the histopathology logistic sheet which was a part of the Monsanto Aroclor studies showed that approximately 70 percent or more of the animals which died during the course of the study were reported as too badly decomposed? MR. BAUER: Objection. Assumes facts not in evidence. No. But that happens all the time in the toxicological work. If a rabbit dies -- if a rat dies at 11:00 o'clock at night and you get to see him at 9:00 o'clock in the Martin & Associates (409) 762-2222 WATER PCB-00051682 538 1 morning, there's a lot of decomposition going 2 on . 3 Q. (By Mr. Kim) Do you know Dr. Otis Francher 4 is? 5 A . Yes . 6 Q. Who was he? 7 A . He was a member of the IBT staff. He was 8 either a Ph.D. or an M.D. or both . I don't 9 know which one. But he was in the management 10 group at IBT. 11 Q. Do you have any criticisms of him from a 12 scientific or medical standpoint? 13 A . No, sir. I don't know -- 14 Q. Do you have any -- 15 A . -- a great deal about his work. But he 16 came -- I thought he came from some 17 pharmaceutical organization into IBT . 18 Q. Do you have any criticisms of his work that 19 he performed on the PCB studies? 20 A . No, sir, I do not. 2 1 Q. Have you heard that Mr. Francher has noted 22 that he was ashamed to publish the work done 23 on the Monsanto PCB studies? 24 MR. BAUER: Object -- 25 A . I never heard -- Martin & Associates (409) 762-2222 WATER PCB-00051683 5 39 1 2 A. 3 Q. 4 5 6 7 8 A. 9 Q. 10 11 12 13 14 15 16 17 18 19 A 20 21 22 23 24 25 Q MR. BAUER: Object to the form. I never heard that. (By Mr. Kim) Did you know whether Mr. Smith confirmed Mr. Francher's statement that the work done on the Monsanto Aroclor rodent studies were shameful? MR. BAUER: Object to the form. Did -- please repeat it. I'm sorry. (By Mr. Kim) You had indicated earlier that you did not know that Mr. Francher had noted that the Monsanto -- and don't answer right away because I think Mr. Bauer wants to object here -- that the work done on the Monsanto Aroclor rodent studies. Mister -- with respect to that, Mr. Francher had noted that he was ashamed to publish the work done on those studies. You had not heard of that; is that true? I have not heard of that. MR. BAUER: Object to the form. MR. KIM: You want a running form obj ection? MR. BAUER: I do not. MR. KIM: Okay. (By Mr. Kim) My question now is: Did - Martin & Associates (409) 762-2222 WATER PCB-00051684 54 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. A. have you heard -- and you may not have, and just tell me you haven't. Well, if you ask me, I will answer as truthfully as I can. I don't doubt that at all, Doctor. -- that Mr. Smith, Phillip Smith, has also confirmed that the work done on the Monsanto Aroclor rodent studies was shameful? MR. BAUER: Object to the form. Yes. I don't like the word "confirmed." He may have stated it, but I haven't heard that, either. (By Mr. Kim) Did you know that the documents concerning Monsanto's Aroclor studies performed at IBT were submitted to Monsanto's lawyers before they were published? No, sir. I never heard that. Do you know whether the reports from Younger Laboratories were submitted to the Monsanto lawyers prior to publication? No, sir. I think they came addressed to me. How about at Scientific Associates? They came addressed to me. And also, the IBT reports we got came in the United States Martin & Associates (409) 762-2222 WATER PCB-00051685 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 54 1 postage from Chicago. They didn't come from our lawyers' department -- our lawyers' offices in Monsanto. So I do not have any idea that they were ever submitted to the lawyers. It's the first I ever heard of something like that. Would you find that unusual, if a scientific laboratory performing a test on behalf of Monsanto would submit the report to the Monsanto legal department before issuing a finalreport? MR. BAUER: Object to the form. It calls for speculation. Would I find that unusual? Yes, it would - oh, I'm sorry. MR. BAUER: Let me finish my objection. Dr. Kelly. Calls for speculation and an incomplete hypothetical. Well, I don't know that it ever happened. So I'd have to say it would be unusual. (By Mr. Kim) Would it -- as the medical director of Monsanto, if you had learned of that situation in 1972, would that have caused you some concern as to the veracity of Martin & Associates ( 409 ) 762-2222 WATER PCB-00051686 542 1 2 3 4 A. 5 6 7 Q. 8 9 10 11 12 13 14 15 A. 16 17 18 19 20 21 22 23 24 25 the test results that you ultimately received? MR. BAUER: Same objections. Well, I don't believe that would be my reaction. My reaction would be to go to IBT and say, "Send them directly to me." (By Mr. Kim) Are you aware that Mr. Smith has testified that during the course of the Monsanto Aroclor products -- excuse me - studies performed at IBT, the conditions in the rooms where the animals made the subject of the study were housed were generally poor and that many of the animals ran loose? MR. BAUER: Object to the form. I never knew that, and I never saw an animal running loose the times that I've been there. And I've gone through the laboratories, and I've gone through their - almost on surprise visits. I'd call up and say, "I'm coming up tomorrow," or something like that. I would -- Wheeler never mentioned it. Levinskas never mentioned it. Hunt never mentioned it. None of them mentioned any of those things that Mr. Smith alleged. Martin & Associates (409) 762-2222 WATER PCB-00051687 543 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. Hunt was up there every month. Dr. Hunt was up there every month. He never mentioned it. He always said that things looked shipshape to him. Levinskas went up there later in the -- in my time at Monsanto. Wheeler went up there oftener than I did. And as I said, I went up there every half -- half -- every six months or every year. Certainly at least once a year. (By Mr. Kim) Your opinion was that based upon the nonreports from Levinskas and other individuals that worked for you, and your visits, that IBT was following good laboratory practices? Yes. Remember, Levinskas and Hunt came from laboratories. Hunt came from Johnson & Johnson Laboratories. Levinskas came from Letterly Laboratories. Both pharmaceutical laboratories. Paul Wright left IBT and went to work at Monsanto? is that correct? That's correct. After he went back to Monsanto, he continued to interact with IBT with respect to the Monsanto Aroclor studies; is that correct? Martin & Associates (409) 762-2222 WATER PCB-00051688 5 44 1 MR. BAUER: Object to the form. 2 A. I'm not sure the studies were going on when 3 he came back. They finished -- we got our 4 final report, gosh, I think 1972 or something 5 like that. 6 Q. (By Mr. Kim) Are you - 7 A. But I'm not -- 8 Q. I'm sorry. Doctor. 9 A. And I'm not sure when Paul came back to work 10 at the medical department. 11 Q. Are you aware that Phillip Smith, who worked 12 for Dr. Wright during the time he was there 13 at IBT, has testified under oath that Paul 14 Wright returned to Monsanto and after that, 15 he would return to IBT and personally dictate 16 changes to reports pertaining to studies on 17 Monsanto Aroclor products? 18 MR. BAUER: Object to the form. 19 A. I never heard that before; and I wouldn't 20 believe Mr. Smith on that particular 21 statement, whether it was under oath or not 22 under oath. 23 Q. (By Mr. Kim) Would you believe Mr. Smith if 24 he stated under oath that a majority of the 25 data performed to body weight of the test Martin & Associates (409) 762-2222 WATER PCB-00051689 545 1 animals used in the Monsanto Aroclor studies 2 was falsified by Mr. Wright? 3 MR. BAUER: Object to the form. 4 A. No. I don't -- I wouldn't believe it. 5 Q. (By Mr. Kim) Do you think it would be 6 possible to validate - 7 MR. KIM: Scott, do you need a 8 break ? 9 MR. BAUER: Soon. It's been an 10 hour . 11 MR. KIM: Well, let's take one 12 right now. 13 THE VIDEOGRAPHER: We're going off 14 the record. It's 12 minutes after 10:00 15 o'clock. 16 17 (A recess was taken.) 18 19 THE VIDEOGRAPHER: It's 26 minutes 20 after 10:00 o'clock, and we're back on the 2 1 record. 22 Q. (By Mr. Kim) Doctor, we were, before we took 23 this break, talking about the IBT studies. 24 Do you have an opinion, as the 25 medical director who ordered the studies to Martin & Associates (409) 762-2222 WATER PCB-00051690 546 1 2 3 4 5 6 7 A. 8 9 10 Q. 11 12 13 14 15 16 17 18 19 A. 20 21 22 23 24 25 be done at IBT, as to whether it would have been possible to validate the IBT Aroclor studies done on behalf of Monsanto without making investigation or drawing any conclusions as to the housing of the animals made the subject of the test? That's a long question. I think before I answer that "yes" or "no," would you have the -- would you repeat it for me? You bet. MR. KIM: Could you repeat that? Because I don't know what I asked. (The pending question was read by the court reporter.) MR. BAUER: Objection. Vague as to the use of the term "validate." Well, I believe the housing of the animals is a important part of a toxicological examination. And I do not know -- I really don't quite understand the question. You - if I put it in my own words, correct me if I'm getting the wrong impression. You mean to say that someone could Martin & Associates ( 409 ) 762-2222 WATER PCB-00051691 547 1 say these results are accurate or inaccurate 2 without respect to how the animals were 3 housed? Is that what you're saying? 4 Q. (By Mr. Kim) No, Doctor. And the question 5 is long. I'm just asking; Is the housing of 6 the test animals an important consideration 7 with respect to good laboratory practices? 8 A. Yes . 9 Q. And it has -- it is indicative of the 10 reliability of the outcome, is it not? 11 A. Yes . 12 Q. The same thing with the feeding of the test 13 animaIs? 14 A. Yes . 15 Q. The dosage administered to the test animals? 16 A. Yes . 17 Q. And recorded? 18 A. Yes . 19 Q. The watering of the animals? 20 A. Yes . 21 Q. And their survivability? 22 A . Yes . 23 Q. Did you know who Joseph Calandra was? 24 A. Yes . 25 Q. Who was he? Martin & Associates (409) 762-2222 WATER PCB-00051692 548 1 A . He was a Ph.D., M.D. who was in charge -- who 2 founded Industrial Bio-Test Laboratories. He 3 was a professor at Northwestern University, 4 and he was a wel1-respected toxicologist. 5 Q. Did you know -- do you know whether he has 6 testified with respect to the IBT Aroclor 7 studies in connection with any PCB 8 litigation? 9 A . Not that I know of. 10 Q. Do you recall whether Mr. Francher ever 11 stated that "the survival was so poor beyond 12 18 months that it is difficult to reach any 13 conclusion regarding effect of the Aroclors 14 on longevity. Unless survival can be 15 improved, I'm concerned that all of your rat 16 carcinogenic studies will be judged to be 17 inadequate"? 18 MR. BAUER: Object to the form. 19 A . The answer is "no." 20 Q. 21 (By Mr. Kim) Would you dispute such a statement if you heard it today with respect 22 to the IBT Aroclor studies? 23 A . Well, now we got to read it again if I'm 24 going to dispute it or not. 25 Q. Okay. "Survival was so poor beyond 18 months Martin & Associates (409) 762-2222 WATER PCB-00051693 54 9 1 2 3 4 5 6 7 A. 8 9 10 11 12 Q. 13 14 15 A. 16 Q. 17 A. 18 Q. 19 20 A. 2 1 Q. 22 23 24 25 that it is difficult to reach any conclusion regarding effect of the Aroclors on longevity. Unless survival can be improved, I'm concerned that all of your rat carcinogenic studies will be judged to be inadequate." Well, I'd have to know the details of the survival or the percentages of survivals. I can't accept or condemn that particular - condemn that statement without knowing the details of what he's talking about. In any event, when you received the test results from IBT, you judged those results to be adequate - Yes, I did. -- from a laboratory practicestandpoint? Yes, I did. Did you inquire into thesurvivability issues of the animals? No, sir. Are you aware that Mr. Francher in 1972 stated, with respect to the IBT Aroclor studies, that: Much of the data is either fudged or collectively with a carelessness or incompetence. I'm ashamed to publish the Martin & Associates (409) 762-2222 WATER PCB-00051694 550 1 work done on these studies? 2 MR. BAUER: Object - 3 A. No, sir, I never - 4 THE WITNESS: Sorry. 5 MR. BAUER: Object to the form. 6 A. I never heard that. 7 Q. (By Mr. Kim) You're not aware of such 8 statements ? 9 A. I'm not aware of that. 10 Q. If you had heard these statements that we've 11 talked about, while you were still the 12 medical director at Monsanto, would that have 13 caused you some concern as to the veracity of 14 the studies being conducted by IBT on the 15 Aroclor products? 16 MR. BAUER: Object to the form. 17 A. It would certainly concern me if I heard 18 those statements and if the individual were 19 able to back it up with facts. 20 Q. (By Mr. Kim) You and I can agree that if 2 1 those statements were true, that might have 22 some impact on the reliability and veracity 23 of the test conclusion? 24 MR. BAUER: Object to the form. 25 A , In general, I'd have to say "yes." I'd have Martin & Associates (409) 762-2222 WATER PCB-00051695 551 1 2 3 4 Q. 5 6 A. 7 Q. 8 9 10 11 12 13 14 15 16 Q. 17 18 A. 19 20 21 22 23 24 25 to know more about the details on which that particular statement was made if that particular statement were true. (By Mr. Kim) Elmer Wheeler worked under your direction in 1972, did he not? Yes, he did. Do you recall Mr. Wheeler telling Mr. Francher, who worked at IBT, that he "hoped to get copies of all the studies in the hands of Bill Papageorge, Scott Tucker, and the lawyers next week. I do not anticipate a lot of changes from them and hope that the attorneys agree that we can go ahead with the publication"? MR. BAUER: Object to the form. (By Mr. Kim) Are you aware that Mr. Wheeler made that statement? No, I am not aware. MR. BAUER: Dr. Kelly - THE WITNESS: Oh, I'm sorry. MR. BAUER: Wait -- wait - THE WITNESS: Okay. MR. BAUER: -- until after - THE WITNESS: I'm sorry. MR. BAUER: -- I've had an Martin & Associates (409) 762-2222 WATER PCB-00051696 552 1 2 3 A. 4 Q. 5 6 7 8 9 A. 10 11 12 13 14 Q. 15 A. 16 17 18 Q. 19 20 A. 21 22 Q. 23 24 25 opportunity to object. Object to the form. Belatedly. No, I am not aware. (By Mr. Kim) Would that have caused you concern in 1972, if one of your subordinates was taking testing to the lawyers at Monsanto prior to final publication? MR. BAUER: Object to the form. Now, remember, what are we talking about publication? Are we talking about publication in a journal, or are we talking about a publication in a report? I don't believe that -(By Mr. Kim) Doctor, I'm - -- what your inference is would not be my inference. "Before publication" would mean publication in a journal. Doctor, I'm talking about final report issued to Monsanto Chemical Company. I don't know if that statement refers to that, "final report issued to Monsanto." And I'm asking you: If it did refer to the fact that' Monsanto lawyers would look at the results prior to final dissemination in report form to Monsanto, would that cause you Martin & Associates (409) 762-2222 WATER PCB-00051697 55 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. A. Q. A. Q. A. Q. concern as the medical director in 1972? MR. BAUER: Object to the form. It may, or it may not. It all would depend on what they were talking about. (By Mr. Kim) Would it cause you some concern if the lawyers went through the test materials and results prior to publication in a scientific journal? MR . BAUER: Object to the form. Yes, it would, (By Mr. Kim) Why? Because I -- MR . BAUER: The same objection. Because I do not believe a scientist will have somebody edit his report for a scientific journal. (By Mr. Kim) A scientist should report his reports as he actually observes them? That' s correct. It should not be sanitized by lawyers? MR . BAUER: Object to the form. No. And I'm not assuming that it ever was. (By Mr. Kim) I understand. My question was: Do you agree with me that a scientist should not let a lawyer sanitize his factual Martin & Associates (409) 762-2222 WATER PCB-00051698 observations? MR. BAUER: Object to the form. Yes . MR. BAUER: Object to the form, and asked and answered. Yes . (By Mr. Kim) I believe you told me earlier that you had hired George Levinskas? Yes . Let me back up. The environmental assessment and toxicology department at Monsanto, was that separate and apart from the medical department ? I'm not sure I know exactly what the -- what the environmental assessment department was. I don't know. It was certainly separate from the medical department if there was such a formal committee or department. Do you recall reading the Aroclor 1254 test results from IBT? MR. BAUER: Objection. Vague. Which ones? Do I -- MR. KIM: All of them. Martin & Associates (409) 762-2222 WATER PCB-00051699 555 1 A. Did you finish? 2 Q. (By Mr. Kim) Yes. 3 A. Do I recall reading the test reports on 4 Aroclor 1254? Yes. 5 Q. The report concludes that the product is 6 noncarcinogenic? 7 A . Yes, sir. 8 Q. Do you have any indication as to whether the 9 original draft of the report indicated that 10 the result which showed that Aroclor 1254 was 11 slightly tumorigenic? 12 MR. BAUER: Objection. Vague. 13 You're not -- well, it's vague as to what 14 time this report is -- which report we're 15 talking about, the original reports from IBT 16 or the later, the 1975 evaluation, which was 17 after Dri Kelly's retirement. 18 A. Again, repeat the question, please. 19 Q. (By Mr. Kim) I can't even remember it now. 20 MR. KIM: And you can have your 2 1 obj ections. 22 Could you read that? 23 24 (The pending question was read 25 by the court reporter.) Martin & Associates (409) 762-2222 WATER PCB-00051700 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 556 I do not have any recollection of that having occurred during my tenure at Monsanto. I did see some correspondence of that in the course of some of these depositions, at a later date after 1974. (By Mr. Kim) Have you ever seen a document dated 1975, I believe August of 1975, from Dr. Calandra to the environmental assessment and toxicology department of Monsanto, in which he indicated that IBT would amend the statement in the Aroclor 1250 report to read "noncarcinogenic" instead of "slightly tumorigenic"? MR. BAUER: Object to the form. I may have. I don't know if we're talking about the same one. If you show it to me. I'll be happy to tell you whether I saw it in 1975 or later. (By Mr. Kim) The testing that was ordered by Monsanto to try and reproduce the results that Dr. Kimbrough had found, was that ordered during your tenure at Monsanto? Well, that really is not -- if I understand your question correct, Monsanto did not run tests to reproduce Kimbrough's statements on Martin & Associates (409) 762-2222 WATER PCB-00051701 557 1 1260 . 2 Q. We can agree that both Dr. Kimbrough and 3 Industrial Bio-Test tested Aroclor 1260? 4 A. That's correct. 5 Q. We can agree that in Dr. Kimbrough's initial 6 report, that she noted chloracne and liver 7 problems ? 8 A. I don't think she -- she noted chloracne. I 9 don't believe chloracne is a prominent thing 10 in animal testing. 11 Q. 12 A . She noted liver hazards? Yes . 13 Q. 14 A . Cancer? No. What ? 15 Q. Cancer? 16 A . What about cancer? 17 Q. Did she note that it may be carcinogenic in 18 her first report? 19 A. I don't know what first report. If you show 20 me the report. She wrote several reports, 21 and I don't know when you say "first." I 22 know she reported one report in which she 23 stated that she considered the histological 24 findings carcinogenic. 25 Q. Is that the first report or work done by Martin & Associates (409) 762-2222 WATER PCB-00051702 558 1 Dr. Kimbrough that you reviewed at Monsanto? 2 A. I don't know -- as I said, I don't know which 3 report I'm referring to or you're referring 4 to . 5 Q. The one which you just described. Doctor, 6 where you said that her histopathological 7 work indicated that there may be a 8 carcinogenic agent, is that the first report 9 or work of Kimbrough's that you reviewed - 10 A. I'm not sure. 11 Q. -- while you were at Monsanto? 12 A. I'm not sure. There may have been another 13 one. I'm not sure. 14 Q. Are you aware of whether Levinskas 15 participated in efforts to reconcile the 16 findings of the IBT 1260 test with 17 Kimbrough's 1260 test? 18 A. I don't know what you mean by "reconcile." 19 The test results of one laboratory with the 20 test result of another laboratory, what do 21 you mean by that? 22 Q. Let's start over. Doctor. 23 I think we can agree that 24 Dr. Kimbrough tested Aroclor 1260? 25 A. Right. Martin & Associates (409) 762-2222 WATER PCB-00051703 559 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. And in one of her studies, she found that there were liver hazards and that the Aroclor product was a possible carcinogen? Yes, sir. IBT also tested Aroclor 1260? Yes, sir. And the result of the IBT study was that it was not carcinogenic? Correct. And my question to you is, based upon those divergent views, if you were aware if Dr. Levinskas participated in efforts on behalf of Monsanto to try and reconcile the two diverse views of the Kimbrough study and the IBT study? Yes . He did? Yes . Do you know Dr. Donna van Gordon? There was a Dr. Gordon who I believe was a pathologist at IBT. How about - I'm not sure of the first name. How about Dr. Rictor, Ward Rictor? I don't tie anybody to that name. Martin & Associates (409) 762-2222 WATER PCB-00051704 560 1 Q. 2 3 4 5 A. 6 Q. 7 8 A. 9 10 Q. 11 12 13 14 15 16 17 A. 18 Q. 19 20 21 22 23 24 25 Do you know if whether Dr. Gordon accompanied Dr. Levinskas to meet Dr. Kimbrough in Washington, D.C., to review the Kimbrough slides? I don't know. Do you know whether Levinskas looked at those slides? I don't know. Levinskas is not a pathologist. Do you know -- or did Levinskas make you aware that Gordon and Rictor from IBT concluded from their review of the Kimbrough slides that it showed more advanced liver damage than revealed in the IBT study and they agreed with Kimbrough that the slides revealed carcinomas? No, I do not know that. If you had known such information in 1972 while still at Monsanto, would that have affected your review process of what went on a label or warning - MR. BAUER: Are you finished with your question? MR. KIM: No. MR. BAUER: Okay. Martin & Associates (409) 762-2222 WATER PCB-00051705 561 1 MR. KIM: That was a comma, not a 2 period. 3 Q. (By Mr. Kim) -- with what went on any label 4 or warning attached to the Monsanto product 5 that ultimately went to its customers? 6 MR. BAUER: Object to the form. 7 A. Would it -- would it have affected my 8 thinking as far as a warning is concerned? 9 Q. (By Mr. Kim) (Nods head.) 10 A. In 1972, as other -- during other years, the 11 material was not intended to be taken 12 internally. So the -- here we are talking 13 about a compound that is taken internally for 14 the lifetime of rats. 15 Q. The question, I guess, Doctor, is not 16 whether - 17 A. I'm getting around to it. 18 Q. Oh, okay. 19 A. 20 So I did not believe that that particular study had any relevance to our customers. 2 1 Q. Because you did not think that your customers 22 would be exposed to that type of exposure to 23 your PCB products? 24 A. That's correct. 25 Q. And the type of exposure that we're talking Martin & Associates (409) 762-2222 WATER PCB-00051706 562 1 about is ingestion? 2 A. Yes. 3 Q. Although Monsanto did not intend for its 4 customers to ingest PCBs, did Monsanto have 5 occasion to think that its PCB product might 6 accidentally be ingested? 7 A. Well, I suppose accidents can happen anytime 8 to a person. But -- 9 Q. Monsanto certainly didn't anticipate a 10 perfect environment in which accidents never 11 occurred? 12 A. No. 13 Q. And one foreseeable result of an accident is 14 the accidental ingestion of PCB products by 15 humans ? 16 A. Well, it's possible. 17 Q. In 1968 we had accidental ingestion of 18 polychlorinated products in -- and I'm not 19 sure if I'm pronouncing this right, but is it 20 Yusho? 2 1 A. Yusho . 22 Q. Is that correct. Doctor? 23 A. That's correct. 24 Q. And the symptoms reported in Yusho, which is 25 in Japan, were chloracne; is that correct? Martin & Associates (409) 762-2222 WATER PCB-00051707 563 1 A. Yes . 2 Q. Chronic fatigue? 3 A. Yes . 4 Q. Joint pains? 5 A. Yes . 6 Q. Loss of appetite? 7 A. Yes . 8 Q. Hair loss? 9 A. I'm not sure. I can't give you all the 10 details, but they did have symptoms. 11 Q. Were you made aware of those symptoms during 12 the time period that you were medical 13 director at Monsanto Chemical Company? 14 A . Yes . 15 Q. Those symptoms, I think we agreed earlier in 16 your deposition, are all indicative of a type 17 of systemic poisoning; is that correct? 18 A . That's correct. 19 Q. A similar result -- and this is after, to be 20 fair, in 1978 or nine, I believe -- was 2 1 reported in Yu-Cheng -- 22 A . Yu-Cheng. 23 Q. -- which is the former island of Formosa, now 24 known as Taiwan? 25 A . That's correct. Martin & Associates (409) 762-2222 WATER PCB-00051708 564 1 Q. And again, the same symptomatology was 2 reported? 3 MR. BAUER: Object - 4 A . Yes, sir. 5 MR. BAUER: Object to the form. 6 A . Yes, sir. 7 Q. (By Mr. Kim) As I understand Monsanto's 8 position with respect to these two incidents, 9 Monsanto blamed -- and correct me if I'm 10 wrong -- the systemic effects observed more 11 on the presence of furans than of 12 polychlorinated biphenyls? 13 MR. BAUER: Objection. Lacks 14 foundation and argumentative. 15 A. Who blamed who? Did you - 16 Q. 17 (By Mr. Kim) Well, let me rephrase that. After Nineteen Sixty -- when did 18 you first learn of the Yusho incident? 19 A . Whenever it first appeared in the -- when we 20 got a translation of the Japanese newspapers. 2 1 Q. That would have been in approximately what 22 year ? 23 A . Gosh, I'm confused on the dates, but -- I'm 24 not sure of the date. 25 Q. Would it have been during your employ? Martin & Associates (409) 762-2222 WATER PCB-00051709 565 1 A. Yes. It was -- certainly was before 1974. 2 Q. Did you order any analytical testing to be 3 done to compare the polychlorinated products 4 in Japan as opposed to the Monsanto PCB 5 products ? 6 A. I did not. The Japanese product which was 7 the cause of Yusho was manufactured by - 8 there were other steps in the manufacture of 9 it. It was found out later that there were 10 contaminants in there to the degree that was 11 not present in the Monsanto PCBs. 12 Q. So analytical testing was done to compare the 13 Monsanto PCB product and the Japanese PCB 14 product ? 15 A . At some time by some people. I don't -- but 16 I did not order the testing. That was your 17 guestion. 18 Q. Do you have a recollection of when that 19 analytical comparison was made? 20 A . I don't know. 2 1 Q. Was it during your employ at Monsanto 22 Chemical Company? 23 A . I do not believe we had the expertise to find 24 out these contaminants in our PCB, and I'm 25 not so sure anybody had it until sometime Martin & Associates ( 409 ) 762-2222 WATER PCB-00051710 566 1 after I left the company. 2 Q. What contaminants are we talking about? 3 A. Dibenzofurans, chlorinated quadrapheny1s. 4 Q. Had furans ever been identified in any 5 Monsanto Chemical products prior to the Yusho 6 incident? 7 A. There was a lack of them by Vos in 1970 when 8 he examined the Monsanto Aroclor, and he did 9 not find them. Monsanto did some testing of 10 their own during the years following 1970, 11 but I have no reports of finding -- of 12 Monsanto finding the furans before I left the 13 company. 14 Q. And I guess I'm asking about -- can we agree 15 that furans would be a contaminant? 16 A. Yes. 17 Q. And I'm not limiting my question to just PCB 18 products. But to any chemical products that 19 Monsanto produced during the time period that 20 you were medical director, was furans ever 2 1 identified as a contaminant of that product? 22 MR. BAUER: Objection. Vague. 23 You're talking about chlorinated -- we've 24 been using furans in this deposition in the 25 sense of chlorinated dibenzofurans. Is Martin & Associates (409) 762-2222 WATER PCB-00051711 567 1 that -- is that what you mean? 2 MR. KIM: Sure. 3 MR. BAUER: Okay. 4 A. I do not recall seeing any reports showing 5 that dibenzofurans, chlorinated 6 dibenzofurans, were present in the Monsanto 7 product. 8 Q. 9 (By Mr. Kim) How about chlorinated diphenylene oxide, which, I believe, 10 yesterday we agreed was a type of furan? 11 A . Chlorinated diphenylene oxide, I believe we 12 agreed, was chlorinated diphenyl -- 13 chlorinated benzofurans. 14 MR. BAUER: And I think he said it 15 was just another name for it, not a 16 particular one. 17 THE WITNESS: What? 18 Q. 19 (By Mr. Kim) the many - It's a furan, though, one of 20 A. Yes . 2 1 Q. 22 -- different types of furans? Back to Dr. Levinskas -- am I 23 saying his name correctly? 24 A . Levinskas, yes . 25 Q. -- Levinskas, are you aware that he has Martin & Associates (409) 762-2222 WATER PCB-00051712 568 1 conceded and admitted that he reviewed and 2 editorialized the papers prepared by IBT 3 employees regarding the Aroclor studies 4 conducted for Monsanto? 5 MR. BAUER: Object to the form. 6 A. Well, I don't believe that there's a 7 statement that he has editorialized and - 8 what was the other? 9 Q. (By Mr. Kim) Reviewed. 10 A. Well, reviewed. He certainly has reviewed 11 this -- the reports. Editorialized, I don't 12 believe he did. He did suggest that a change 13 in -- in one of the -- in the wording of one 14 of the conclusions. 15 Q. IBT helped Monsanto present the Monsanto 16 corporate position on PCBs to various 17 governmental entities, did it not? 18 A. Yes. 19 Q. You would agree with me, then, that Levinskas 20 requested an IBT report of a PCB study be 2 1 amended to say that it, quote, "does not 22 appear to be carcinogenic," end quote, 23 instead of, quote, "slightly tumorigenic," 24 end quote? 25 A. Yes . Martin & Associates (409) 762-2222 WATER PCB-00051713 569 1 Q. Does it disturb you that an employee of 2 Monsanto would be requesting editorial 3 changes in a study ostensibly being conducted 4 by an independent facility? 5 A. What we are only talking -- we're not talking 6 about any factual changes. We are talking 7 about this -- this was a study to determine 8 whether or not the material was 9 carcinogenic. It was not found to be 10 carcinogenic; and so he said, "If it isn't 11 carcinogenic, say it isn't carcinogenic." 12 Q. You find no factual distinction between 13 "noncarcinogenic" and "slightly 14 tumorigenic"? 15 MR. BAUER: Object to the form. 16 A. No factual -- say that again. I don't want 17 to answer a wrong interpretation. 18 Q. (By Mr. Kim) You indicated that it didn't 19 change the factual context of the report, and 20 I was wondering -- merely inquiring. Doctor, 2 1 if you find a factual distinction between the 22 term "slightly tumorigenic" and 23 "noncarcinogenic." 24 A. Well, there's a difference in wording. But 25 the facts in the report, the listing of the Martin & Associates ( 409 ) 762-2222 WATER PCB-00051714 570 1 2 3 Q. 4 5 6 7 8 9 A. 10- Q. 11 12 13 14 A . 15 16 17 18 19 Q. 20 A . 21 Q. 22 23 24 25 A, tumors that were present were not changed. They were still reported the same way. I understand. Doctor. My question is, then, that you feel there is no factual difference between the phrase "slightly tumorigenic" and "noncarcinogenic" for the purposes of a scientific report done on behalf of Monsanto by Industrial Bio-Test? No, I don't consider any difference. Was the report which incorporated the changes requested by Levinskas ever backdated, to your knowledge? MR. BAUER: Objection - No, sir. THE WITNESS: I'm sorry. MR. KIM: Go ahead and object. MR. BAUER: Objection. Lacks foundation. (By Mr. Kim) And your answer was? No, I do not know. Are you aware that no one was charged with the responsibility of assisting Dr. Levinskas in his review of the IBT Aroclor studies after you left Monsanto? After I -- please repeat this. Martin & Associates (409) 762-2222 WATER PCB-00051715 571 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. A. Q. A. I'll just reask it. After you left Monsanto, are you aware if anyone was charged with the responsibility of assisting Dr. Levinskas in reviewing the IBT Aroclor studies? I do not know. Okay. Do you know whether Dr. Levinskas, in conducting his review and validation of the IBT Aroclor studies, ever went to the IBT facilities during that review and evaluative time period? I don't know whether he did or not. Do you know whether he visited their offices? I do not know. Do you know whether he consulted with Dr. Paul Wright? I don't know. Whether he determined -- made a determination of whether the rodents were properly housed during the course of the study? With relationship to what time frame? What are you talking about? The IBT Aroclor tests performed by IBT. Well, you didn't say, though, when he was checking the validation of it. This means Martin & Associates (409) 762-2222 WATER PCB-00051716 572 1 2 Q. 3 A. 4 5 6 7 Q. 8 9 10 A . 11 Q. 12 13 A . 14 Q. 15 16 17 A . 18 Q. 19 20 21 A. 22 Q23 A . 24 Q 25 after the -- after the tests were over? Yes, sir. And where would he find the rats? They were all gone at that time. The test was gone. So I don't see how he could check the housing of the rats to validate the story. Do you know whether he made inquiry - inquiry as to how the rats were housed during the course of the study? I don't know. How about as to the water supply for the rodents during the course of the study? I don't know. How about the manner in which the rodents, the rats, were handled during the course of the study? I don't know. How about the raw data concerning the body weight of the rodents during the course of the study? My impression was that he saw the raw data. Do you know? I do not know. Do you know whether he made inquiry into such? Martin & Associates ( 409 ) 762-2222 WATER PCB-00051717 573 1 A. Beg pardon? 2 Q. Do you know whether he inquired into such? 3 A. I thought that when I talked to 4 Dr. Levinskas, he had told me that he had 5 seen the raw data; but -- 6 Q. Can we agree - 7 A. -- that's my impression. 8 Q. I'm sorry. Doctor. 9 A. That's my impression. 10 Q. Can we agree that each of these 11 considerations that I've asked you about 12 would be important in conducting a review and 13 validation analysis of a study? 14 MR. BAUER: Object to the form. 15 Vague as to the term "validation." 16 A. It all depends if you thought that these 17 conditions were going to be present in what 18 was believed by Dr. Levinskas, and certainly 19 believed by me, to be a first-rate 20 laboratory. So I don't know whether he 2 1 talked about whether they were leaving rats 22 running around the room or not because he 23 didn't expect that to occur. 24 Q. (By Mr. Kim) After Dr. Roush - 25 A. Roush. Martin & Associates (409) 762-2222 WATER PCB-00051718 574 1 Q. 2 A. 3 Q. 4 5 6 7 A. 8 9 10 11 12 13 14 Q. 15 16 17 18 19 20 A. 2 1 Q. 22 23 24 25 Roush? Yes. -- succeeded you at Monsanto Chemical Company, you had an opportunity of a one- or two-year period to still work together; is that correct? One year I was there as a consultant, but my activities were mostly developed -- directed to plant medical care -- conditions. I did not discuss toxicological matters with Dr. Roach -- Roush. He never asked me, and I -- he was the medical director, and I didn't volunteer things to him. Did he share with you that an investigation had been initiated by the Government concerning the operations of Industrial Bio-Test Laboratories and the conduct of their -- and their conduct in performing laboratory experiments? No, he did not. Were you ever made aware that Dr. Paul Wright was placed on a leave of absence during the time period of -- in which he was indicted and convicted? MR. BAUER: Object to the form. Martin & Associates (409) 762-2222 WATER PCB-00051719 575 1 A. Yes, I was. I knew he was on a leave of 2 absence. 3 Q. (By Mr. Kim) You are aware that Dr. Wright 4 was eventually convicted? 5 A. Yes. 6 Q. Spent time in jail? 7 A. Yes. 8 Q. I'm curious. Doctor, if you know who paid for 9 Dr. Wright's criminal defense fees? 10 A. I do not know. 11 Q. No one made you aware that Monsanto paid over 12 $1.3 million for Dr. Wright's defense? 13 A. No, sir. 14 Q. Indeed, when -- were you made aware that when 15 Dr. Wright returned to Monsanto from IBT, 16 that he was given a merit award for 17 forestalling EPA promulgation of unrealistic 18 regulations concerning PCBs? 19 A. No, sir. 20 Q. Do you agree with the EPA response concerning 2 1 PCBs? 22 A. What is their response? 23 Q. In the form of TASKA. Do you agree with 24 TASKA? 25 A. I'll have -- I'd have to review TASKA. Martin & Associates (409) 762-2222 WATER PCB-00051720 576 1 Q . Do you -- 2 A. I don't -- I don't agree with EPA in a lot of 3 things, but I'm not -- I do not know about 4 the -- what their response to PCB was. 5 Q. Do you agree that -- do you agree with the 6 regulations that only allowed the use of PCBs 7 to be in closed electrical systems? 8 A. Say this over. 9 Q. Did you agree with the EPA regulations, or 10 the Government regulations, which limited the 11 use of PCBs to dielectric fluids used in 12 closed electrical systems? 13 MR. BAUER: Object - 14 A. Which limit - 15 MR. BAUER: Object to the form. 16 A. Which limited the use to that? 17 Q. (By Mr. Kim) Yes. 18 A. Yes, I agreed with it. In fact, we had 19 stopped that use before the EPA regulation 20 came out. 2 1 Q. Well, you stopped in 1977; is that correct? 22 A. No. We're talking about in -- except in 23 electrical uses. 24 Q. Is it true that the only chronic toxicity 25 studies done for Monsanto with regard to PCBs Martin & Associates (409) 762-2222 WATER PCB-00051721 577 1 were done by IBT? 2 MR. BAUER: Objection. 3 Mischaracterizes his prior testimony. 4 A . The only chronic studies done by Monsanto - 5 Q. (By Mr. Kim) -- with regard to PCBs were 6 done by IBT? 7 MR. BAUER: Same objection. 8 A . With the exception of the chronic inhalation 9 studies by Treon, which was done in '54, 10 which was considered a chronic study at that 11 time . 12 Q. (By Mr. Kim) And that was the four-month 13 study? 14 A . Five-month study. 15 Q. Five-month. Would you dispute Dr. Roush if 16 he indicated that in his opinion, the only 17 chronic studies done on behalf of Monsanto 18 were done by IBT? 19 A. Yes, I dispute them. I just said it -- that 20 I considered the Treon work a chronic study. 2 1 Q. Do you know whether Dr. Roush visited 22 Government agencies to discuss PCB research? 23 A . No, sir, I do not. 24 Q You never accompanied him on such trips if 25 they occurred? Martin & Associates ( 409 ) 762-2222 WATER PCB-00051722 578 1 A. I never did. 2 Q. Do you know whether IBT personnel may have 3 gone on such trips? 4 A. I do not know. 5 Q. Are you aware of the information they would 6 have provided to the Government agencies? 7 A. No, sir, I do not. I'm not aware. 8 Q. Do you know whether Monsanto ever revealed to 9 any Government agency that Dr. Gordon and 10 Dr. Rictor, pathologists at IBT, had reviewed 11 the Kimbrough slides and agreed with her 12 findings of cancer? 13 A. No, sir, I do not know that. 14 Q. Do you know whether anyone at Monsanto ever 15 told the Government agencies about the ITOW, 16 I-T-O-W, study indicating carcinogenicity of 17 PCBs ? 18 A. No, sir, I do not. 19 Q. During the time of your employ at Monsanto, 20 did Monsanto ever conduct a single 2 1 epidemiological study of workers at any of 22 its plants? 23 A. No, sir, they did not. 24 Q. Do you think a fair representation about the 25 health hazards associated to a particular Martin & Associates (409) 762-2222 WATER PCB-00051723 579 1 chemical in an occupational setting can be 2 made without having done an epidemiological 3 study? 4 A. Yes, sir, I think it can. 5 Q. Would you disagree with Dr. Roush if he 6 stated the contrary position? 7 A. Yes, I disagree with him. 8 Q. On what basis? 9 A. Because we did not do an epidemiological 10 study on our PCB workers and we knew that our 11 PCB workers were not harmed by their exposure 12 to PCB in our plants. You didn't need an 13 epidemiological study to find out that people 14 don't have diseases that they don't have. 15 Q. Are you aware of the study conducted by 16 Dr. Gregory Steel in Indiana? 17 A. Yes. 18 Q. He shows a correlation, at least in his 19 study, to Westinghouse workers exposed to 20 PCBs in an occupational setting in brain 2 1 cancer; is that correct? 22 A . Yes, sir. 23 MR. CAILTEUX: Object to the form. 24 THE WITNESS: Beg pardon? 25 Q. (By Mr. Kim) You can answer. Martin & Associates (409) 762-2222 WATER PCB-00051724 580 1 MR. CAILTEUX: I just objected to 2 the form. 3 A. I don't know whether the term "correlation" 4 was used. There was an association. 5 Q. (By Mr. Kim) Do you dispute that 6 association? 7 MR. BAUER: Object to the form. 8 A. I don't know enough about it. 9 Q. (By Mr. Kim) Do you think that it is 10 significant to note whether a product causes 11 tumors ? 12 A. It may, and it may not. 13 Q. Well, we can agree that there are different 14 health considerations associated with tumors 15 as opposed to the health considerations 16 concerning cancer? 17 MR. BAUER: Objection. Vague. 18 A. Again, we can agree what? 19 Q. (By Mr. Kim) A tumor does not necessarily 20 mean cancer? 2 1 A. That's correct. 22 Q. A tumor is different from cancer? 23 A. Yes. All cancers are tumors, but all tumors 24 are not cancers. 25 Q. Therefore, the health analysis with respect Martin & Associates (409) 762-2222 WATER PCB-00051725 581 1 to a product would be different upon a 2 finding of whether it causes a tumor or 3 whether it causes cancer? 4 A. The "health analysis"? I do not know what 5 you're -- what you mean by that term. 6 Q. The possible health effects of a product 7 would differ, from a medical review, 8 depending on whether and if that product 9 10 A. caused a tumor or a cancer? In what? In - 11 Q- In - 12 A. In humans or in animals? 13 Q. Either. 14 MR. BAUER: Object to the form. 15 Q. (By Mr. Kim) Let's start with humans. 16 A. Yes. But I don't recall any studies of PCBs 17 causing tumors -- causing cancers in humans. 18 Q. I understand that, Doctor. And I'm just 19 asking if it makes a difference. 20 A. Yes, there's a difference. 21 Q. Is there that same difference in animal 22 studies, as well? 23 A. Yes . 24 Q. Okay. Did Monsanto under your direction ever 25 do any primate studies? Martin & Associates (409) 762-2222 WATER PCB-00051726 5 82 1 A. 2 Q. 3 A. 4 Q. 5 6 7 A. 8 9 10 11 12 Q. 13 14 15 16 A. 17 18 19 . 20 21 22 23 24 25 Any what? Primate studies? Under my direction, no. Were you ever made aware of Monsanto primate studies conducted under the direction of Dr. Roush? I never saw a report. I have some vague recollection of hearing a conversation about some primate studies that occurred after I was there, but I don't know any of the detaiIs . Do you recall if anyone told you that the Monsanto primate studies indicated that primates were more susceptible to PCB effects at lower doses than rats? No. I am not aware of that. MR. KIM: Take a break? MR. FEATHERSTONE: Okay. THE VIDEOGRAPHER: We're going off the record. It's 12 minutes after 11:00 o'clock. This is the end of Tape No. 8. (A recess was taken.) THE VIDEOGRAPHER: It's 33 minutes Martin & Associates (409) 762-2222 WATER PCB-00051727 583 1 after 11:00 o'clock. This is the beginning 2 of Tape No. 9, and we're back on the record. 3 (By Mr. Kim) Doctor, I believe that we 4 discussed earlier that chlorinated diphenyl 5 oxide was a furan? 6 A . Yes, sir. 7 Q. And I think you told me earlier that during 8 the time that you were medical director of 9 Monsanto, no chemical product had been found 10 to be contaminated with any furans? 11 A . To the best of my knowledge, yes, sir. 12 Q. 13 A . I want to go back - Of Monsanto's. 14 Q. Yes, sir. In the litigation that you 15 testified on behalf of Monsanto concerning 16 the Brio waste site in Texas, do you recall 17 that ? 18 A . Yes, I do. 19 Q. And I believe you told me that you felt that 20 the PCBs in that instance could not have 2 1 caused any of the alleged harms by the 22 plaintiffs in that case. 23 MR. BAUER: Object to the form. 24 A . I don't know if that was my testimony or 25 not. Martin & Associates ( 409 ) 762-2222 WATER PCB-00051728 5 84 1 Q. (By Mr. Kim) In any event - 2 A. But I did not think so. But, in fact, I 3 didn't see any of the medical records of the 4 people at Brio. 5 Q. You have also indicated to me that you felt 6 at some time prior to the Jensen study that 7 Monsanto and you knew that PCBs persist and 8 were nonbiodegradable? 9 A. That's correct. 10 Q. Did Monsanto, under your direction during any 11 time while you were at Monsanto, conduct any 12 soil migration studies with respect to PCBs? 13 A. Not under my direction. I do not know if 14 Monsanto did under other people's direction. 15 Q. How about water migration studies? 16 A. Not I. I did not do -- I don't know what you 17 mean by "water migration." 18 Q. Aquatic migration. 19 A. It's in a stream, and it rolls down the 20 stream? Is that what you're -- 2 1 Q. Sure. 22 A. I do not know that. 23 Q. In any event, you didn't order such? 24 A. I did not order any. 25 Q. And you don't know whether any other Martin & Associates (409) 762-2222 WATER PCB-00051729 585 1 2 A. 3 Q. 4 5 6 7 8 A. 9 Q. 10 A . 11 12 13 14 15 16 Q. 17 18 A . 19 Q. 20 21 22 23 A 24 25 department did? I do not know whether they did it or not. Your opinion the entire time that you were medical director at.Monsanto was that PCBs caused no concern, no health concerns? MR. BAUER: Objection. Mischaracterizes his testimony. No, I didn't say that. (By Mr. Kim) No human health concerns. No. They would cause health concerns if - that's why we put warning statements on the material. That's why in all our literature to customers, my answers to doctors, to companies, I told them what they were -- what health concerns were liable to occur. It was not, I believe, as you told Mr. Bauer, an unreasonably dangerous product? No. For an -- that's correct. Are you aware that in 1972, that Monsanto required General Electric and Westinghouse to sign indemnity agreements for the continued sale of PCBs ? At some time I became aware that there was something of that order. I don't know anything about the reason for it or the Martin & Associates ( 409 ) 762-2222 WATER PCB-00051730 586 1 2 Q. 3 4 5 6 A. 7 Q. 8 9 10 Q. 11 A. 12 13 14 15 16 Q 17 18 19 20 A 21 22 23 24 25 details of the indemnification. As the medical director who reviewed warnings and labels attendant to the PCB products of Monsanto, did you feel that it was enough to warn General Electric and Westinghouse? Warn them what? Warn about anything. Was that as far as your warning needed to go? MR. BAUER: Objection. Vague. (By Mr. Kim) Down the retail chain? Yes. We told our customer what our warnings were. We also knew that our major customer -- you mentioned General Electric and Westinghouse -- knew as much about the product as we did. In other words, in this case Nevada Power purchased - transformers and capacitors from Westinghouse and General Electric. Are you aware of that? I'm aware that they -- I was aware that they purchased something. I don't know whether it was capacitors or not. I had heard that it was transformers; but of my own knowledge, I don't know what Nevada Power bought from either of the two companies. Martin & Associates (409) 762-2222 WATER PCB-00051731 587 1 Q. You did not consider Nevada Power or any 2 other utility company in that arrangement to 3 be your -- Monsanto's customer? 4 A. No, sir. They were not our customer. 5 Q. And you did not intend for your label or 6 warning to reach someone such as Nevada 7 Power ? 8 MR. BAUER: Object to the form. 9 A. I didn't know where this warning was going to 10 be, how far out it would reach. But we did 11 not know to whom -- whom General Electric or 12 Westinghouse were selling the materials. 13 Q. 14 (By Mr. Kim) Monsanto relied upon companies such as Westinghouse and General Electric to 15 pass proper warnings on to their customers? 16 A. Well, that's -- I can speak for myself. I'm 17 not sure I could speak for the Monsanto 18 Company. 19 Q. Fair enough. Was the Nitro facility in West 20 Virginia a part of the Monsanto Company? 2 1 A . Yes, it was. 22 Q. And I believe there it manufactured a 23 herbicide? 24 A. Yes. 25 Q. If you recall. Martin & Associates (409) 762-2222 WATER PCB-00051732 588 1 A. 2 Q- 3 A. 4 Q. 5 6 A. 7 Q. 8 9 10 A . 11 Q. 12 13 A . 14 Q. 15 A . 16 Q. 17 A . 18 Q. 19 20 A . 21 22 23 24 25 Yes, sir. Do you recall what type of herbicide it was? It was a weed killer, 2,4 -- 2,4,5-T. Did Monsanto utilize PCBs as extenders in its herbicides ? No, sir. Did it utilize trichlorobenzene or tetrachlorobenzene in the production of this 2,4,5-T herbicide? Yes . Did Monsanto experience cases of chloracne at any of its herbicide facilities? Yes . At the Nitro facility? Yes . 1949? Yes, sir. . Was a determination made as to the cause o f that outbreak of chloracne? There was an explosion at -- in that particular operation that caused very severe chloracne. There was -- there was no definite cause because we could not analyze the residual material left from the explosion. It was an amorphous bunch of gunk Martin & Associates ( 409 ) 762-2222 WATER PCB-00051733 589 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that they could not analytically determine what was in there. We also had some chloracne during our production of 2,4,5-T; and we assumed -- we did not find the -- assumed it was either the product itself or a contaminant in the product. (Instruments were marked Kelly Exhibit Nos. 49 through 50 for identification.) Q. A. (By Mr. Kim) Do you know whether a determination was made as to the identification of furans as a possible contaminant to the 2,4,5-T herbicide? The furans were not found, to the best of my knowledge. (Discussion off the record.) Q. (By Mr. Kim) Doctor, let me show you two documents which we have marked as Deposition Exhibits 49 and 50 to your deposition. I will represent to you that Document No. 50 is Martin & Associates ( 409 ) 762-2222 WATER PCB-00051734 590 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a retype of the original for clarity purposes and ask that you just take a few minutes to review those. MR. BAUER: Can I see it first, please? MR. KIM: Yeah. I think I've got a copy for you somewhere. Thought I did. MR. BAUER: Now, the retyping was done by your office, Mr. Kim? Or someone on behalf of the plaintiff as opposed to -- you know - MR. KIM: Yes. MR. BAUER: -- some publication or a produced document or - MR. KIM: Yeah. It was done by someone on behalf of the plaintiff. MR. BAUER: Okay. A. I can read this all right. MR. BAUER: Do you have another one? You didn't find another one, John? MR. KIM: Except for mine with all my questions on it. MR. BAUER: All right. Don't worry about it. A. Yes, sir, I've read it. Martin & Associates (409) 762-2222 . WATER PCB-00051735 59 1 1 Q. (By Mr. Kim) Do you recall receiving this 2 letter in June of 1956? 3 A. Yes , Ido. 4 Q. This is a letter on Monsanto letterhead 5 directed to you at the medical department, is 6 it not? 7 A. Yes . 8 Q. From Elmer Wheeler? 9 A. Yes. 10 Q. In 1956 was Elmer Wheeler working under your 11 supervision? 12 A. Yes, he was. 13 Q. Where is Badische? 14 A. Someplace in Germany. 15 Q. Is that Badische plant owned by Monsanto? 16 A. No, it is not. 17 Q. When were you first made aware of the 18 Badische incident? 19 A. Sometime in Nineteen -- I'm not certain. 20 Certainly I was aware in 1956. But sometime 2 1 between Nineteen Forty -- '53, '56, I was 22 made aware of it. 23 Q. Mr. Wheeler makes a comparison to the 24 Badische incident and an incident at Nitro; 25 is that correct? Martin & Associates (409) 762-2222 WATER PCB-00051736 592 1 A. That's correct. 2 Q. The Monsanto incident at the Nitro plant 3 occurred sometime in 1949? 4 A. That's correct. 5 Q. Are you aware of the study conducted by 6 Dr. Oettel, O-e-t-t-e-1, ten days after the 7 incident? 8 A. No, sir -- well, I'm aware from what he said 9 here. I don't know any of the details of 10 the -- his study. 11 Q. His study -- in fact, let's just read on 12 the -- the start of the third paragraph. 13 MR. BAUER: Which exhibit, John? 14 MR. KIM: Either one. 15 THE WITNESS: 50. 16 MR. KIM: 50. It's just a retype 17 of - - 18 Q. (By Mr. Kim) -- the start of the third 19 paragraph. Doctor? 20 A. You want me to read it? 21 Q. You can or I can. 22 A. Well -- 23 Q. I will. 24 A. Good. 25 Q. "About ten days following the incident, and Martin & Associates (409) 762-2222 WATER PCB-00051737 593 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. after initial clean-up. Dr. Oettel was asked to expose animals to the workroom atmosphere. Rabbits (in open wire cages) were placed in the operating area for 24-48 hours. There were no obvious symptoms which developed in the animals until one week after exposure - when they died. Autopsy showed liver necrosis." Is that correct? Yes, sir. At the very end he notes: "Subsequently, animals placed in the cages which had previously been in the department died o f liver necrosis." Yes, sir. Were you made aware of that in 1956? In this letter, yes. Did that cause you any concern about the Monsanto product at Nitro? Well, it was certainly of interest to me . Was it of interest that Dr. Oettel identified that chlorinated diphenyl oxide might be one of the causes of the chloracne? MR. BAUER: Objection. Mischaracterization of the document. Martin & Associates ( 409 ) 762-2222 WATER PCB-00051738 594 1 A. He stated in this last paragraph that: 2 "Liver necrosis will develop in rabbits at 3 the following doses of the indicated 4 materials." And the only -- he mentioned 5 1 milligram of chlorinated diphenyl oxide. 6 Q. That was after a system -- systemic -- excuse 7 me -- systematic investigation which isolated 8 impurities in the manufacturing process; is 9 that correct? 10 A . Yes , sir. 11 Q. And at the top of the next page of this 12 document. Dr. Oettel -- or Oettel -- believed 13 that "the most potent chloracnogen is a 14 compound similar to chlorinated diphenyl 15 oxide"; is that correct? 16 A . Yes, sir. 17 Q. And he draws the chemical drawing of that 18 compound ? 19 A. Yes, he does . 20 Q. Is that drawing -- and you may not know since 2 1 you're not a chemist -- actually chlorinated 22 diphenyl oxide? Or is it chlorinated 23 diphenylene oxide, if you know? 24 A. 25 It's chlorinated diphenylene oxide, to the best of my chemical knowledge. Martin & Associates (409) 762-2222 WATER PCB-00051739 595 1 Q. And we agreed earlier that that was a furan? 2 A. Yes. 3 Q. Do you know Don Irish at Dow? 4 A. Yes. Yes, I do. 5 Q. Had you talked with Don Irish about this? 6 A. No, I did not. 7 Q. The letter further -- Mr. Wheeler further 8 relays to you that Dr. Oettingen -- excuse 9 me -- Oettel "has corresponded with Don Irish 10 at Dow who either reached the same conclusion 11 independently or, in mentioning the potential 12 of chlorinateddipheny1 oxide, influenced 13 Oettel's reasoning. Oettel believes, 14 further, that this impurity can show up in 15 the production of any chlorinated phenol 16 allegedly to chlornapthalenes, 17 pentachlorphenol, chlorinated biphenyl, 18 etc."; is that correct? 19 A. That's what he says. 20 Q. Upon receipt of this letter, did it cause you 2 1 any concern that any chlorinated biphenyls 22 being produced by Monsanto might be 23 contaminated with chlorinated diphenylene 24 oxide? 25 A. Well, this is a supposition of a Dr. Oettel. Martin & Associates (409) 762-2222 WATER PCB-00051740 596 1 And we were trying -- it caused us some 2 concern to think whether he was right or not. 3 Q. I understand that. Doctor. 4 A. And here's a supposition that it can show up 5 anyplace. So we didn't pay a great deal of 6 credence in his supposition. 7 Q. You would agree with me that Mr. Wheeler 8 indicates that Don Irish at Dow agreed with 9 the supposition of Dr. Oettel? 10 MR. BAUER: Object to the form. 11 A. Well, I don't know if I read that same thing 12 into it. 13 Q. (By Mr. Kim) Well, it says, "Don Irish at 14 Dow who either reached the same conclusion 15 independently or, in mentioning the potential 16 of chlorinateddipheny1 oxide, influenced 17 Oettel's reasoning." 18 At least Don Irish has the same 19 20 A. conclusion as Dr. Oettel, does he not? No. Because Oettel is talking about when he 2 1 says "the most potent carcinogen [sic] is a 22 compound somewhat similar to chlorinated 23 diphenyl oxide." 24 Q. Do you know - 25 A. And then he writes -- and he writes the Martin & Associates (409) 762-2222 WATER PCB-00051741 597 1 2 3 4 5 6 7 Q. 8 9 10 11 A. 12 Q. 13 14 15 16 17 18 19 20 A. 21 22 23 24 25 formula for diphenylene oxide. So I don't know whether Dow -- Irish at Dow is talking about the compound somewhat similar to chlorinated diphenylene oxide or chlorinated diphenylene oxide or what he calls diphenyl oxide. How about Dr. Hansen, who's mentioned in the bottom of the next paragraph, at Bayer? Did you talk with Dr. Hansen about his experience? No, I never talked with Dr. Hansen. Did it cause you any concern in 1956 that Dr. Oettel through the Badische experience, Don Irish through Dow's experience, Dr. Hansen through Bayer's experience, all questioned whether the chloracnogen compound could be that of chlorinated diphenylene oxide, which could show up in the production of chlorinated phenols? But that isn't what he said. He said, "...the most potent carcinogen [sic] is a compound somewhat similar to chlorinated diphenylene [sic] oxide." He did not say that he was talking about chlorinated diphenylene oxide. He said a compound Martin & Associates (409) 762-2222 WATER PCB-00051742 598 1 similar to it. 2 Q. This was of no concern to you as the medical 3 director? 4 A. Oh, it was of concern, yes. But I repeat the 5 statement here in the supposition that I 6 didn't cause -- was of interest, but it 7 didn't cause me any worry. 8 Q. As medical director of Monsanto Chemical 9 Company, did you order any tests, analytical 10 tests, to be done with respect to the PCB 11 compounds to see if they were contaminated 12 with chlorinated diphenylene oxide? 13 A. In 1956 we were unable to find -- our 14 analytical people told me we were unable to 15 find chlorinated diphenylene oxide in PCBs . 16 From the analytical point of view. Not that 17 we -- not that we had negative results, but 18 our -- our analytical expertise did not go 19 down that low. 20 Q. So as I understand it, the tests were not 2 1 done, the technology just didn't exist at 22 that time? 23 A. That's correct. 24 Q. Did you order from other laboratories that 25 such testing be done? Martin & Associates ( 409 ) 762-2222 WATER PCB-00051743 599 1 A. No. I was assured that if we didn't know how 2 to do it, nobody in the United States knew 3 how to do. Now, remember, we're -- you've 4 got to tell me what we're talking about. Are 5 we talking about the compound that's similar 6 to this or this one? You know, Oettel 7 mentions that "...the most potent" 8 carcinogen -- "chloracnogen is a compound 9 somewhat similar to chlorinated diphenyl 10 oxide," which he misses -- misdraws as 11 chlorinated diphenylene oxide. Diphenyl -- 12 Q. Did any -- oh, I'm sorry. 13 A. So I don't know which one of these he's 14 talking about. Or is he talking about this 15 Compound X which is the most potent 16 chloracnogen, which he has not described. 17 Q. Did anyone call Dr. Oettel to investigate 18 whether the same thorough systemic [sic] 19 investigation which isolated impurities in 20 the trichlorophenol process could be 2 1 reproduced with respect to polychlorinated 2 2 biphenyls? 23 A. I don't know if anybody did. 24 Q. We can agree that Dr. Oettel, at least, 25 indicated that he found 15 to 20 milligrams Martin & Associates (409) 762-2222 WATER PCB-00051744 600 1 of pentachlor naphthalene? Bottom of 2 Page 1. 3 A. First page or second page? 4 Q. Bottom of Page 1. 5 MR. BAUER: I'm sorry, John 6 You're saying that he found those substances 7 in the product? Is that what you're saying? 8 MR. KIM: Uh-huh. 9 MR. BAUER: Well, object to the 10 form. 11 A. What paragraph? We're on Page 2 now. we ' re 12 talking about? 13 Q- (By Mr. Kim) No. Page 1 at the very 14 bottom. 15 A . Oh, Page 1? 16 Q. Yes, sir. 17 MR. BAUER: Yeah, let's -- 18 A . Well -- 19 MR, BAUER: -- let's -- 20 A . -- I do not read -- 21 MR. BAUER: -- hear the question 22 back . 23 A . -- that he found all those things in the - - 24 25 A . MR. KIM: Let me reask him -- in the trichlorophenol process. Martin & Associates (409) 762-2222 WATER PCB-00051745 601 2 3 4 5 A. 6 Q. 7 8 9 10 A. 11 Q12 A. 13 14 15 16 17 18 19 20 21 22 23 24 25 (By Mr. Kim) Can we at least agree that he isolated impurities through what he called a thorough systemic -- systematic investigation of the trichlorophenol process? We agree that he says that, yes. Okay. Did anyone at Monsanto call Dr. Oettel to ask about the technology and methodology that he used in identifying the isolated impurities ? I do not know. Did you? I did not. MR. KIM: Good place to break. THE VIDEOGRAPHER: We're going off the record. It's 55 minutes after 11:00 o'clock. This is the end of Tape No. 9. (Whereupon the deposition of Robert Emmet Kelly, M.D., was recessed at 11:55 a.m. and is to be continued at some future time pursuant to agreement of counsel.) Martin & Associates (409) 762-2222 WATER PCB-00051746 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 02 THE STATE OF i'sSQLi &/: COUNTY OF 5t~ L-O Lj /rJS________________: I, ROBERT EMMET KELLY, M.D., hereby certify that I have read the foregoing transcript of my testimony given in the foregoing numbered and styled case and that same is true and correct to the best of my knowledge and belief. I further certify that any and all corrections have been made on a separate page and initialed by me. This the 3-t't-ilA. day of _. aji clAj , 1994. ROBERT EMMET KELLY, M.D. SUBSCRIBED AND SWORN TO BEFORE ME, this the -j-tp 6^, day of ctA o_^,K ; , 19 9 4. Jl'- S^UX^o^ Notary^Public in and for the State of nn < -S S o ti /$- i My Commission Expires Job No. 94-514 JOSSES S.N1BL0CK NOTARY PUBLIC STATE OF MISSOURI STJ0UI3 COSNTY w commission exp. ja?4. ss.icts Martin & Associates (409) 762-2222 WATER PCB-00051747 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 603 THE STATE OF TEXAS : . I, Irma L. Reyes, Certified Shorthand Reporter in and for the State of Texas, hereby certify that this deposition transcript is a true record of the testimony given by the witness named herein, after said witness was duly sworn or affirmed by me. I further certify that I am neither attorney nor counsel for, related to, nor employed by any of the parties to the action in which this testimony was taken. Further, I am not a relative or employee of any attorney of record in this cause, nor do I have a financial interest in the action. Further certification requirements, if any, pursuant to the Rules will be certified to in the Supplemental Certificate after they have occurred. the y Subscribed and sworn to on this, day of March, 19 9 4. Irma L. Reyes, CSR Certificate No. 4071 Expires December 31, 1994 My Notary Commission expires September 21, 1996 Martin & Associates ( 409 ) 762-2222 WATER PCB-00051748