Document gaXyvdqnpa1zqLen4q3J95kxJ

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA NEVADA POWER COMPANY, Nevada corporation, Plaintif f, a VS . MONSANTO COMPANY, a foreign corporation; GENERAL ELECTRIC COMPANY, a foreign corporation; WESTINGHOUSE ELECTRIC CORPORATION; a foreign corporation; and DOES I XXV, inclusive. Defendants. CV-S-89-555-LDG-LRL READING COPY DEPOSITION OF ROBERT EMMET KELLY, VOLUME III TAKEN ON FEBRUARY 17, 1994 M.D. MARTIN & ASSOCIATES CERTIFIED COURT REPORTERS 2200 MARKET STREET, SUITE 412 GALVESTON, TEXAS 77550 (409) 762-2222 * FAX (409) 762-8040 WATER PCB-SD0000031324 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 3 45 INDEX THE WITNESS: ROBERT EMMET KELLY, M.D VOLUME III EXAMINATION: By Mr. Kim (Continued) PAGE 349 KELLY EXHIBITS; Exhibit No. 38 ............................................................................ "Report of Dr. Frederick B. Flinn of Patch Tests Made on Material Received from Swann Research, Inc.,' Dated May 25, 1954 350 Exhibit No. 39 ............................................................................ "Medical Research Project No. MR-46, The Toxicity and Potential Dangers of Inerteen," Submitted by W. F. von Oettingen, M.D., Ph.D. 375 Exhibit No. 4 0 ............................................................................ "The Toxicology of Inerteen and Related Substances Including a Method of Analysis for Halogenated Hydrocarbons in the Air," by A. J. Fleming, M.D. 378 Exhibit No. 41 ............................................................................ "The Effect of Inerteen and Several Related Substances Upon the White Rat," W. T. Read, Jr., M.D. 37 8 Exhibit No. 42 ............................................................................ Letter Dated February 14, 1950, to Dr. Louis W. Spolyar from R. Emmet Kelly, M.D. 433 Exhibit No. 43 ........................................................................... State of Indiana, State Board of Health, Letter Dated February 28, 1950, to Dr. R. Emmet Kelly from L. W. Spolyar, M.D. 438 Martin & Associates (409) 762-2222 WATER PCB-SD0000031325 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 Index (Continued) 346 KELLY EXHIBITS; PAGE Exhibit No . 4 4 ........................................................................ Memorandum Dated December 12, 1966, to Mr. D. Wood from R. Emmet Kelly, M.D. 465 Exhibit No. 4 5 ............................................................................ Memorandum Dated December 1, 1966, to G. R. Buchanan from D. Wood 468 Exhibit No. 4 6 ............................................................................ Monsanto Memorandum Dated January 12, 1967, to P. G. Benignus, et a1, from D. V. N. Hardy 480 Martin & Associates (409) 762-2222 WATER PCB-SD0000031326 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 347 APPEARANCES: FOR THE PLAINTIFF: 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, Gothsal & Manges 767 Fifth Avenue New York, New York 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-SD0000031327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 348 The oral videotaped deposition of ROBERT EMMET KELLY, M.D., was continued on February 17, 1994, beginning at 9:11 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 FURTHER 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 17th of February, 1994. It's 11 minutes Martin & Associates ( 409) 762-2222 WATER PCB-SD0000031328 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 349 after 9:00 o'clock. We're on the record. MR. KIM: Before we start. Dr. Kelly, do you mind if we sing happy birthday to Lynette Weldon? THE WITNESS: Not in the least. MR. KIM: It is her birthday today. THE WITNESS : Go right ahead. MR. KIM: On "3." (Attendees sing "Happy Birthday" to Ms. Weldon.) MR. KIM: Can you pull our No. 2? MS. WELDON: Uh-huh. ROBERT EMMET KELLY, M.D., was called as a witness and, having been previously duly sworn, testified as follows: EXAMINATION (Continued) BY MR. KIM: Dr. Kelly, when we left off yesterday, we were talking about medical literature that you had seen or reviewed in the 1930's. Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031329 350 1 A. Yes, sir. 2 Q. Did you have occasion at the time that you 3 started work at Monsanto Chemical Company to 4 review any work that had been done on behalf 5 of Swann Research prior to the Monsanto 6 purchase ? 7 A. The work at Flinn -- Dr. Flinn of Columbia, 8 he did some patch testing, as I understand 9 it . 10 Q. Let me show you what we will mark as your 11 Deposition Exhibit No. - 12 MS. WELDON: I believe 38. 13 MR. KIM: 38? 14 MS. WELDON: Yeah. 38. 15 MR. KIM: Do you mind if I cover up 16 this exhibit number? 17 MR. BAUER: No. 18 19 (An instrument was marked Kelly 20 Exhibit No. 38 for identification.) 21 22 Q. (By Mr. Kim) -- and ask if you recognize 23 this, sir. 24 A. Yes, I do . 25 Q. This is the work that Dr. Flinn did with Martin & Associates (409) 762-2222 WATER PCB-SD0000031330 351 1 respect to some patch tests on material 2 received from Swann? 3 A . Yes , sir. 4 Q. The material that was received from Swann 5 were Aroclor products. Is that your 6 understanding? 7 A. I don't know how they -- if they labeled them 8 "Aroclor" or not. They were PCB products. 9 Q. Okay. Doctor, if we can look at the very 10 bottom of the first page, it seems to 11 indicate Aroclor 1262? 12 A . Yes, it does . 13 Q. Aroclor 1268? 14 A . Yes . 15 Q. Would -- and at the top of the next page, 16 Aroclor Special and Aroclor 1248? 17 A . Yes, sir. He called them Aroclors. So -- 18 Q. Were those chlorinated diphenyls, or PCBs? 19 A. Yes, they were. 20 Q. 21 If you will turn with me to the top of the second page where it says "Aroclor 1248," the 22 second -- 23 A . Yes, sir. 24 Q. -- category? 25 A . Yes, sir. Martin & Associates (409) 762-2222 WATER PCB-SD0000031331 352 1 Q2 3 4 5 A. 6 Q. 7 8 9 10 A. 11 Q. 12 13 14 A. 15 16 17 18 19 20 21 22 23 24 25 And as I understand the explanation you gave in your testimony to Mr. Bauer, the "48" means that on average, the product had 48 percent chlorination? That's correct. Underneath that Dr. Flinn noted that all tests gave a positive reaction. The intradermal test was also positive. The reaction was mild? Yes, sir. Do you know what type of reaction he was describing in that instance? MR. BAUER: Object to the form. Well, let's see what it says. He was doing a patch test. And I don't know what -- how he interpreted as "patch." The patch test is you put something on the skin, cover it with an impervious dressing, and look at it in 24 hours or 48 hours. You do not test systemic reactions. You are testing the local action in the skin. So I don't know what I -- what he called a positive reaction, but the usual individual would call a redness a positive reaction. Sometimes swelling would be Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031332 353 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. present, but it would not be a mild reaction. (By Mr. Kim) Would a reaction with that Aroclor product at the 48 percent chlorination level have caused -- did it cause you a concern, as the medical director of Monsanto, when you reviewed this test? No, sir. It was a mild reaction. We knew that if you got Aroclor on your skin, you'd get reddening. If you kept on doing it, you'd get chapping of the skin. We're talking about local reactions. All he did was test the local reaction on the skin. At the time that you reviewed this test, did your department, the medical department, or Monsanto Chemical Company seek to do other testing that would determine whether absorption through the skin of Aroclor products would lead to any systemic poisoning? At what time? In the -- at the time that you reviewed Dr. Flinn's report. No. He was not testing for absorption of the skin, through the skin. He was just testing Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031333 354 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. the local reaction of the skin. Did - So it had no relationship to absorption. Did Monsanto Chemical Company or the medical department under your direction do any further testing to test the concerns -- strike that. -- the observations made by Dr. Flinn in this test? Well, there's no relevancy of a skin patch test to any toxicological relationship. On the last page, under the category of "Comments," Dr. Flinn in his first sentence notes that: "One is impressed with the fact that each of the Aroclors giving a positive reaction were of a fluid nature." Yes, sir. Is that correct? And again, it's -- as I understood your testimony, that it caused you and Monsanto no toxicological concerns because redness from a patch test would not be indicative of such? That's correct. Did you place any significance upon the work Martin & Associates (409) 762-2222 WATER PCB-SD0000031334 355 1 2 3 A. 4 Q. 5 6 7 A. 8 9 10 11 12 13 14 15 16 17 18 Q 19 20 A 21 22 23 24 25 of Dr. Flinn since they were patch tests, from a toxicological and health standpoint? No, I did not. Does that mean that any patch test performed you would not place much toxicological or health significance to? I won't go that far because I don't know conceivably what might happen if you -- at some particular patch test. In other words, if you -- remember, a patch test is only to see how the skin will react. Whether it will react as a local irritant, such as paint remover or turpentine, or whether it be a sensitization reaction, like a poison ivy oil. So that's what you're looking for. You're not looking for -- that's a nonevent as far as systemic toxicity is concerned. How about just acute toxicity? Is there a significance to the patch test in that? There may be acute toxicity as far as the skin is concerned. If you put an acid compound on a patch test, you will get a local reaction which could be called toxic to the skin at that time. But it has nothing to do with an acute poisoning unless you are Martin & Associates (409) 762-2222 WATER PCB-SD0000031335 356 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. hypersensitive to it, unless there's an allergic component that exists in the compound. Doctor, my curiosity in this emanates from the fact that it just seems to me -- and correct me if I'm wrong -- that if through a patch test the skin reacts to it, whether it turns red or you get a rash, that would, at least from a medical and scientific standpoint, be some indication of a human reaction to the product being tested. Well, it's a human reaction on the skin, yes, certainly. That's what you're testing it for. So you find out that it reacts in the skin. But there's no relationship to whether this is going to react -- be absorbed. It has nothing to do with the general toxicological investigation of the product. Would a local reaction by virtue of a patch test cause a prudent scientist or medical director to inquire further into the toxicological properties of the product tested? Not per se. Not because of the redness, no. You might inquire further for different Martin & Associates (409) 762-2222 WATER PCB-SD0000031336 357 1 reasons; but you are testing a patch test, I 2 have to repeat, to see what it does to the 3 skin. And that's all you're interested in. 4 That's all you're doing it for. 5 Q. Did Monsanto Chemical Company or you, as the 6 medical director, ever order or request any 7 patch tests to be done with its products, 8 with its PCB products? 9 A. Yes, we did. At the Barnard Skin and Cancer 10 Hospital -- I don't know the time frame -- we 11 tested -- when we started using the material 12 as a plasticizer, selling it as a 13 plasticizer, we tested the vinyl film that 14 had this material in it. We also tested the 15 material neat; that is, just by itself. But 16 I -- it's been quite awhile since I've seen 17 that report. We did not get positive 18 reactions in the vinyl film; and to the best 19 of my recollection, at the dilution we used, 20 we did not get any positive reactions with 2 1 the 1240. I don't know which one it was with 22 the -- with the PCBs. 23 Q. What was the purpose of ordering those patch 24 tests ? 25 A. Well, we were making a vinyl film. This was Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031337 358 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. going to be on -- could be on auto seat covers. You're putting somebody in shorts sitting on the sheets, and you wanted to find out whether or not it would be an irritant or a sensitizer. The product that you used as a plasticizer, aside from the patch test, were other tests done ? For different reasons, yes. But not -- not for its use as the plasticizer. We wanted to see whether it had the property of being an irritant or a skin sensitizer. Were other toxicological tests done? Yes. We've done toxicological tests, not at the same time, but all along during the manufacture of our PCBs. In particular. Doctor, I'm asking about the plasticizers that you indicated earlier that you had ordered patch tests for. Well, we had done them before. We did have toxicological information on it. You would agree with me that from a manufacturing standpoint and a sales standpoint, it is important that the product you place on the market had been tested to Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031338 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 359 the extent possible for its toxicological properties, as well as its reactions through patch tests, whatever -- the acute reactions? MR. BAUER: Object to the form. Vague as to what you mean by - Well, that is a little - THE WITNESS: Oh, sorry. MR. BAUER: Vague as to what you mean by "to the extent possible." You can answer. Doctor. No. I think you test a product, define - before you market it, define its toxicological properties. You do enough so that you're able to evaluate how it could be used safely in the markets for which it's intended. (By Mr. Kim) Doctor, we can agree that - that all industrial chemicals at some point are toxic? Yes . We can also agree that to the extent that you cannot eliminate the toxicity of such chemicals, that we should try at the very least to warn the users about the toxic properties ? Martin & Associates (409) 762-2222 WATER PCB-SD0000031339 360 1 2 3 A, 4 5 6Q 7 8 9 10 A 11 Q 12 13 14 A 15 16 17 18 19 20 21 22 23 24 25 MR. BAUER: Objection. Asked and answered. We warn the users how to protect themselves from any possible effects of the product we sell . (By Mr. Kim) Is that your personal philosophy, or are you speaking as to what Monsanto's policy was when you were medical director? It's both. You place no importance on telling the user, by virtue of a label or warning, what the effect of misuse would be? We do. Yes, we do. We have every letter I have ever written to -- there's bundles of these in the exhibits. I have explained what the possibilities were and what is liable to happen. There are letters here that show that I talked and I wrote about the fact that in acute episodes you can get a chemical hepatitis. I've written about chloracne could occur. I've written about liver problems could occur from excessive overexposure. We have sent out to customers bulletins, safety data sheets, and brochures Martin & Associates (409) 762-2222 WATER PCB-SD0000031340 36 1 1 2 3 4 5 6 Q. 7 A. 8 9 10 Q. 11 12 A. 13 14 15 16 17 18 Q. 19 20 21 22 23 24 25 or reports from the American Industrial Hygiene Association that describe all the details of the PCBs. So I don't agree with you that we didn't warn them. Did you ever - To talk -- that we did not mention the possibilities -- where the possibilities of ill effect might be. Did you ever warn, through a label or warning label, of the liver being the target organ? No, I did not. If you're at a filling station, they say, "Do not smoke while you're putting gasoline in your car." They don't say, "Do not smoke because you're liable to be blown into the next block." You tell them how to avoid any trouble. You've never seen -- and I'm not going to quarrel with you. But would you agree with me that at the filling station, the label that says, "Flammable," or, "Highly flammable. Do not smoke while filling your car," would be another effective than one that just says, "Do not smoke while filling your car"? Martin & Associates (409) 762-2222 WATER PCB-SD0000031341 362 1 MR. BAUER: Object to the form of 2 the question. It calls for speculation and 3 is obviously outside Dr. Kelly's area. 4 MR. KIM: Absolutely not, 5 Mr. Bauer. Dr. Kelly in your direct 6 testified to the fact that he reviewed every 7 label and warning and correspondence with 8 respect to warnings about PCB products that 9 went out of Monsanto. To that extent, he is 10 entirely capable of testifying about this 11 unless he wants to recant that line of 12 questioning. 13 Q. (By Mr. Kim) You can answer now. 14 A. Will you give me the question so I know what 15 I am answering? 16 Q. Sure. You have given us a hypothetical in 17 dealing with a -- filling your gas tank and 18 where you said the warning which was totally 19 effective was, "Don't smoke while filling 20 your car"; is that correct? 2 1 A. Yes . 22 Q. And my question to you is: As the medical 23 director, a person who reviewed and was in 24 charge of writing labels, correspondence, and 25 warnings while at Monsanto from 1936 to 1974, Martin & Associates ( 409 ) 7 62-2222 WATER PCB-SD0000031342 363 1 do you feel that there is a difference 2 between a warning such as you described and 3 one that might say, "Highly flammable. Do 4 not smoke while filling your car"? 5 A. Well, I think that's -- no. I think "highly 6 flammable" is talking about a product -- a 7 property of the gasoline. But maybe gasoline 8 is a poor example, maybe. But that's 9 something that the gasoline people would have 10 to make a decision on. But -- 11 Q. Yes, sir. 12 A. -- take iron pills. They don't say, "Iron 13 pills call" -- "Iron pills, if they are used 14 to an excessive extent, will cause this 15 particular illness." They'll say it will be 16 harmful and may be harmful. 17 Q. How about sugar? Sugar substitutes? 18 MR. BAUER: Object to the form. 19 A. Beg pardon? 20 MR. KIM: You can have a running 2 1 objection to every question. 22 Q. (By Mr. Kim) How about sugar substitutes? 23 Does Monsanto market and sell a product call 24 Sweet'n Low? 25 A . Yes. Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031343 3 64 1 Q. Did you do, during the time period you were 2 medical director at Monsanto, any 3 toxicological testing with respect to that 4 product ? 5 A. Sir, the Searle Company had been 6 manufacturing the sweetener. That was a 7 freestanding company. It was a freestanding 8 division. They had their own medical 9 department. Monsanto as the parent company 10 did not have anything to do with Searle. 11 Q. Monsanto - 12 A. From the medical -- from my medical 13 department point of view. 14 Q. You've never reviewed any of that work, then? 15 A. No, I have not. 16 Q. Do you feel that it's prudent for a 17 manufacturer to warn about the possible 18 effects of ingestion or misuse of such 19 products, any product? 20 A. The possible -- say that over. I want to be 2 1 exactly sure what you're saying. 22 Q. Sure. You have talked, with respect to PCBs , 23 that you felt it was prudent to only warn or 24 direct people as to how to avoid exposure? 25 A. That's correct. Martin & Associates (409) 762-2222 WATER PCB-SD0000031344 365 1 Q. You did not feel -- and you felt if you did 2 that, it was not necessary to put the effects 3 of such exposure on that warning or label? 4 A. That's correct. 5 Q. Is that a philosophy that Monsanto follows? 6 A . On -- 7 Q . On labeling. 8 A. Are you talking about the Monsanto Company, 9 or are you talking about some of their 10 subsidiaries ? 11 Q. Monsanto Company. 12 A. You brought in Searle. I want to be sure -- 13 Q. Absolutely. 14 A. -- that you know that I -- that Searle was a 15 company that manufactured Equal before 16 Monsanto took it over. Their toxicological 17 work had extended over four or five years 18 before Monsanto took it over. The medical 19 department had nothing to do with Searle's 20 labels or toxicological work. Medical 2 1 department of Monsanto. 22 Q. Monsanto sells the product now, though? 23 A. Yes, they do. 24 MR. BAUER: Object to the form. 25 Lacks foundation as to him knowing what Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031345 366 1 2 3 A. 4 5 Q. 6 7 8 9 10 A. 11 12 A. 13 Q. 14 15 16 A . 17 Q. 18 A . 19 Q. 20 21 22 23 24 25 Monsanto sells today. MR. KIM: He just answered it. Well, Searle, a division of Monsanto, sells it, yes. (By Mr. Kim) Would you agree with me, as the corporate parent of Searle, that Monsanto would have an interest in the type of warnings and directives that Searle's products would have? Yes. MR. BAUER: Object to the form. Yes, they do. (By Mr. Kim) Okay. As the corporate parent and based upon your experience as the medical director between Nineteen Thirty --- six. Excuse me. Nineteen -1946 . -- 1946 to 1974, do you have an opinion as to whether subsidiaries of Monsanto, such as Searle, should warn as to the effects of misuse of a product? MR. BAUER: Object to the form. Assumes that there were subsidiaries during that time period. Martin & Associates (409) 762-2222 WATER PCB-SD0000031346 367 1 A. Should warn as to any possible ill effects? 2 Q. (By Mr. Kim) Yes. 3 A. Well, now, warning as to ill effects, I think 4 I'll need a definition of that. If you want 5 to be specific about which ill effects are 6 liable to happen, I don't believe that is 7 important. I think it's important to say, 8 "You will get problems. You'll get medical 9 problems that could be harmful to your health 10 if you do" -- "if you use this product in a 11 manner which it is not intended," yes. 12 Q. You don't think it's important for that label 13 or warning to say, "You may develop liver 14 problems. You may develop stomach problems. 15 You may develop cancer. You may develop 16 brain cancer"? 17 MR. BAUER: Object - 18 A. On your label? 19 MR. BAUER: Object -- 20 Q. 21 (By Mr. Kim) Yeah. MR. BAUER: Object to the form. 22 It's completely hypothetical and calls for 23 speculation. 24 A. No. I think that information is published by 25 Monsanto, by a company, in other forms of the Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031347 368 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. Q. A. Q. label. The label is not intended to have a bibliography of case reports on it. I think you defeat the purpose. A label is put on to pro -- to tell the individual that comes in contact with that product how he can avoid any ill effects. I do not see the necessity for saying, "You are liable to get diabetes. You're liable to get this. You're liable to get that." (By Mr. Kim) Should it indicate on the label in its warnings what the laboratory studies with animals have shown possible effects to be? MR. BAUER: Object to the form. No, I don't think that should be on the label. (By Mr. Kim) Is that not prudent action? MR. BAUER: Object to the form. Indefinite as to time. (By Mr. Kim) At any time. I don't think it's necessary. I don't exactly know what you mean by "prudent" on i t. Is it more wise or less wise to put such information in a warning? Martin & Associates (409) 762-2222 WATER PCB-SD0000031348 369 1 A. It's not needed. I don't think the "wise" 2 enters into it. The labels that we put on 3 our products -- if we're talking about PCBs 4 now -- were perfectly adequate because the 5 workers who used it, our customers' workers 6 and their work -- customers -- their 7 customers' customers, a second generation, 8 were not harmed by the material. There 9 were -- and I can quote the Government 10 epidemiologist Dr. Kimbrough, who stated with 11 the exception of chloracne -- I don't know if 12 she mentioned -- whether she used the term 13 "rare" or -- well, chloracne. Let's say 14 "chloracne." There were no other ill - 15 reports, definite reports, of illness to 16 workers from PCBs. 17 So the labels, in my opinion, were 18 adequate. Perfectly adequate. 19 Q. Doctor -- and I understand that in previous 20 testimony you have complimented the work of 2 1 the Government scientists. 22 A. Sometimes. And sometimes I've dis -- I was 23 uncomplimentary. 24 Q. Is it -- did you rely upon the work of 25 Dr. Kimbrough while you were the medical Martin & Associates (409) 762-2222 WATER PCB-SD0000031349 370 1 2 A. 3 4 5 Q. 6 7 A. 8 Q. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 director of Monsanto Chemical Company? No. I disagreed with her in her -- on her pathologist's interpretation of her rabbit slide -- of her rat slides. And we're going -- did you ever personally review those slides? No. I'm not a pathologist. And we'll talk about those later. But I want to get back to warnings and the labeling that you, as the medical director, were responsible for at least drafting or looking at prior to their dissemination to customers and ask, with respect to the corporate philosophy while you were the medical director from 1946 to 1974, if there was a philosophy that indicated that it was not necessary to put down laboratory findings of the toxic effects that had been observed on that label. MR. BAUER: Object to the form. Specifically on a warning label. MR. ROTH: Can you repeat that question, please? MR. BAUER: Yeah. Yeah. THE WITNESS: Yes. I'd like it, Martin & Associates (409) 762-2222 WATER PCB-SD0000031350 37 1 1 too . 2 MR. KIM: I'll just restate it. 3 Q. (By Mr. Kim) During the time period of 1946 4 to 1974, when you were the medical director 5 and in charge of warnings at Monsanto 6 Chemical Company, do you have an opinion as 7 to what Monsanto's corporate philosophy was 8 with respect to identifying those toxic 9 results from animal tests? 10 MR. BAUER: Objection. Vague. 11 Q. (By Mr. Kim) On PCBs. 12 A. Of identifying them? 13 Q. (Nods head.) 14 A. Explain that to me. 15 Q. Okay. Let's say that -- whether we dispute 16 some of the earlier studies or not, Doctor, 17 I'm curious because some of the studies seem 18 to indicate that the liver was the target 19 organ. Can we agree to that? 20 A. Yes, certainly. 2 1 Q. And some of the studies indicated that 22 chloracne could develop? 23 A. Yes. 24 Q. Some of the animal studies indicated that 25 there could be possible systemic effects Martin & Associates (409) 762-2222 WATER PCB-SD0000031351 372 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. through lassitude, loss of appetite, loss of libido. Can we agree with that? Some of the studies? Some of the case reports on it? Yes. I believe that was studies. Case reports. My question to you. Doctor, is if you felt that it was necessary or if Monsanto, while you were the medical director and in charge of warnings, had a philosophy of whether that -- of whether making workers aware of that information was necessary on the warnings or labels that accompanied the product. MR. BAUER: Objection. Vague as to what you mean by "warnings or labels." Well, there is a difference. There are really two questions. On the labels -- we were talking about labels? (By Mr. Kim) I'm talking about things that would be on the drums or the product itself that the everyday worker would see. If the worker saw on a label -- my philosophy was if the worker saw on a label information that would prevent him from getting any ill Martin & Associates (409) 762-2222 WATER PCB-SD0000031352 373 1 effects from the use of the product, that was 2 certainly adequate and sufficient. If I put 3 on the label, "You are liable to get 4 diabetes. You are liable to get brain 5 tumors. You are liable to get weakness. You 6 are liable to feel tired after you use it," I 7 . don't believe the worker would sooner or 8 later pay any attention to that type of 9 information. It was not necessary on a 10 label. 11 Q. You think it would have been ineffective in 12 the end? 13 A. It certainly wasn't necessary, and I -- I 14 think it would be counterproductive, yes. 15 Q. Was that your opinion or Monsanto's company 16 position while you were the medical director 17 between 1946 and 1974? 18 A. Well, I can't speak for the company; but 19 that's what they put on the labels. 20 Q. Was there anyone else besides you who had 21 input and final say-so in the information 22 contained in the warnings and labels that 23 accompanied the product that the everyday 24 worker would see while you were the medical 25 director between 1946 and 1974? Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031353 374 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Yes. We had legal people in the company who might very well object to that. I presume if the lawyer said, "We don't believe you have enough on here," we would have -- may have -- if we could convince him that it would be - that was unwise, we'd -- the company may have done something different. But they didn't, and the labels had enough information. I come back to the point: They've fulfilled their purpose, which was to keep workers from getting any harmful effects, regardless of the fact that these harmless effects were not mentioned on the label. Q. If you know, has that philosophy or reasoning with respect to labels and warnings that are placed on the product changed since the time you have left Monsanto? A . I don't know if it has. Q. Let me show you what is a Sweet'n Low package that I believe is marketed by one of the Monsanto subsidiaries; is that correct? A . No, I don't think it is. Q. Is it a Monsanto product? . A . I don't believe -- I'm sorry to say I don't have reading glasses here. But would you Martin & Associates (409) 762-2222 WATER PCB-SD0000031354 375 1 read what's in it? This is not a -- I have 2 never heard that Sweet'n Low was a Monsanto 3 product. 4 Q. Okay. Let me show you what we'll mark as 5 your Deposition Exhibit No. 39 -- 6 7 (An instrument was marked Kelly 8 Exhibit No. 39 for identification.) 9 10 MR. BAUER: Do you have an extra 11 one ? 12 MS. WELDON: No. 13 Q. (By Mr. Kim) -- which I believe you reviewed 14 yesterday. 15 A. I didn't review it. I saw it. 16 Q. You saw it yesterday. I believe you also 17 testified that you have reviewed that 18 document in other litigation? 19 A. Yes. 20 Q. Did you know Dr. von Oettingen? 2 1 A. Yes, I did. 22 Q. I believe you've previously testified that he 23 was a premier scientist? 24 A. Yes. 25 Q. You had no criticisms of him as a scientist Martin & Associates (409) 762-2222 WATER PCB-SD0000031355 376 1 during this time period? 2 A. That's correct. 3 Q. During the time that you were the -- do you 4 recall when the first time you would have had 5 occasion to review this document that we have 6 marked as your Deposition Exhibit No. 39? 7 MR. BAUER: Objection. Asked and 8 answered. 9 A. It certainly was after 1974; but my 10 supposition was I just saw it about six or 11 eight years ago, which would be sometime in 12 the Eighties . 13 Q. (By Mr. Kim) Do you have a recollection of 14 what your thoughts were when you first 15 reviewed this? And if you want, we can take 16 some time so that you can read and review 17 this . 18 A. Yeah. Oh, you mean what my thoughts -- 19 Q, Did you dispute his findings, or did - 20 A. Beg pardon? 2 1 Q. Did you dispute the findings that he found? 22 A. That's a different question. 23 Q. Pick either one. 24 A. Let me go through it. 25 MR. BAUER: Object to the form. Martin & Associates (409) 762-2222 WATER PCB-SD0000031356 377 1 A. Maybe I thought was, where'd this come from? 2 Q. (By Mr. Kim) What were you thoughts? Let's 3 start with: What were your thoughts when you 4 reviewed this? 5 A. That was my thought. 6 MR. BAUER: His thoughts in the 7 1980's when he read this article in the 8 context of other litigation? 9 MR. KIM: Well, I think my question 10 was, "What were your thoughts when you 11 reviewed it?" If that's unclear - 12 MR. FEATHERSTONE: John offered 13 Dr. Kelly the opportunity to look through the 14 document. I presume go off the record and do 15 that ? 16 MR. KIM: Sure. 17 MR. FEATHERSTONE: So let's decide 18 whether that's necessary. 19 THE WITNESS: Whether what's 20 necessary? I've got to review this -- 2 1 Q. (By Mr. Kim) Doctor, would you like to take 22 some time to review this? 23 A. Yes, I -- if I'm going to be asked questions 24 on it. 25 Q. You bet. Let's go off the record for just a Martin & Associates (409) 762-2222 WATER PCB-SD0000031357 378 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 few minutes. THE VIDEOGRAPHER: We're going off the record. It's 43 minutes after 9:00 o'clock. (A recess was taken.) (Instruments were marked Kelly Exhibit Nos. 40 through 41 for identification.) THE VIDEOGRAPHER: It's two minutes after 10:00 o'clock. We're back on the record. MR. KIM: Mr. Bauer? MR. BAUER: I'll wait till you get to one. MR. KIM: Okay. Q. (By Mr. Kim) Doctor, you've had an opportunity now to review what has been marked as your Deposition Exhibit 39; is that correct ? A. Yes, sir. Q. And I believe that is a report about the toxic and potential danger -- toxicity and Martin & Associates (409) 762-2222 WATER PCB-SD0000031358 379 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. potential dangers of Inerteen? Yes, sir. What is your understanding of what Inerteen is ? Inerteen is a dielectric compound used by Westinghouse Electric. There may be other people who use it. It is a product that was made for Inerteen -- for Westinghouse to their specifications. Do you have any scientific or medical criticisms of Dr. von Oettingen's work, as you see before you in Exhibit 39? MR. BAUER: Objection. I object to that question on the grounds that it's eliciting an expert opinion; and Dr. Kelly, as a fact witness in this case, has not been designated as an expert. And Mr. Kim, if you want to give me a standing objection to that, on that base -- just that basis to this line of questioning, then I won't have to repeat that. MR. KIM: Done. Do I answer it? (By Mr. Kim) Yes, you can answer now. What was it? What was the question now? I' m Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031359 3 80 1 getting sidetracked on these -- 2 Q. I don't recall. 3 A. -- ad libs. 4 Q. Oh. Did you have any scientific or medical 5 criticisms of Dr. von Oettingen's work, as we 6 see in your Deposition Exhibit No. 39? 7 A. No. I've had the opportunity to look this 8 over for ten minutes, and I've come to no 9 conclusion as to an opinion on it. 10 Q. You have reviewed this document in 11 preparation of testimony in other litigation, 12 have you not? 13 A. I don't know if I reviewed it beforehand or 14 they handed it to me at the time of the 15 deposition, like today I was handed one - 16 this. 17 Q. As we sit here today for this jury, you have 18 no opinion with respect to the conclusions 19 that Dr. von Oettingen reached? 20 A. Well, I respect him as a scientist. 2 1 Q. If you will turn to the second page, where at 2 2 the bottom of it talks about the "Effect of 23 Oral Administration." 24 A. Yes, sir. 25 Q. Is that correct? Martin & Associates (409) 762-2222 WATER PCB-SD0000031360 381 1 2 3 A. 4 Q. 5 6 7 8 A. 9 Q. 10 11 A. 12 Q. 13 A. 14 Q. 15 16 A. 17 Q. 18 19 20 2 1 A. 22 23 24 25 If you will then turn to the next page . Yes, sir. The second paragraph, it says he noted that with respect to the lungs, there was edema and hemorrhaging; is that correct? The first sentence. Yes, sir. Okay. And those that died spontaneously showed congestion of the lungs? Yes, sir. What is "edema"? Swelling. Fluid in the tissues. And what is the layman's description of "hemorrhage"? You bleed. Okay. Those would be significant medical or scientific findings, would they not be? MR. BAUER: Object to the form. MR. CAILTEUX: Join. In -- Mr. Kim, in -- if you are giving an - running a toxicological experiment on animals and they die as these did, rather rapidly, these are findings you get in all deaths. These are preagonal conditions. Martin & Associates (409) 762-2222 WATER PCB-SD0000031361 3 82 1 Q. (By Mr. Kim) These findings would not have 2 caused you any concern as the medical 3 director of Monsanto if they had been noted 4 during a Monsanto test? 5 MR. BAUER: Object to the form. 6 A. No. Because if they died, they die of 7 something. This is what they die from. They 8 die from swelling of the organs of the body. 9 Q. (By Mr. Kim) Did Monsanto -- I believe 10 you've told me, and I've forgotten -- ever 11 order or request any testing to be done that 12 would determine the mechanism of chemical 13 reactions in the human body? 14 A. No, sir, we did not. 15 Q. How about animal tests? 16 A. At the time of the Bio-Test experiment - 17 toxicological work, there was some 18 radioactive work carried out as far as the 19 distribution of material in the tissues . And 20 to the best of my knowledge, there was some 2 1 work done on the biochemical alterations of 22 the product in the body. But those were not 23 in the reports that I saw, and I do not know 24 if they were submitted after I left. 25 Q. Would congestion of the lungs combined with Martin & Associates (409) 762-2222 WATER PCB-SD0000031362 383 1 edema and hemorrhaging have caused you 2 concern, as the medical director of Monsanto, 3 with respect to the mechanism of the chemical 4 reaction in a human or an animal? 5 A. No. It is -- this is a nonspecific situation 6 condition. Occurs with -- whenever you give 7 an animal enough product to kill him, kill 8 the animal, this occurs. 9 Q. 10 In the next sentence Dr. von Oettingen notices, with respect to the liver, that the 11 color changed or had modeled to a gray or 12 yellow; is that correct? 13 A. He said -- yes. In three they were pale. 14 Q. "Diffuse pallor with moderate yellowness"? 15 A. Yes. 16 Q. In the next sentence he indicates that five 17 of the six animals studied microscopically, 18 the liver was -- had extensive hyaline 19 necrosis ? 20 A . Yes, sir. 2 1 Q. What is "necrosis"? 22 A. Death of tissue. 2 3 Q. Would that cause you some concern, as a 24 scientist or medical director at Monsanto, if 25 that was the result of one of your tests? Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031363 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 384 MR. BAUER: Object to the form. Well, it was of interest. But here the man gave a material to kill the animal. It also showed that the liver was quite markedly involved in this particular experiment. And we knew -- of course, I never saw this while I was at Monsanto. But we knew that the liver was a target organ. And if you could give enough of the material, you can damage the liver. (By Mr. Kim) Would it have caused you some concern as to the chemical mechanism that produced these results in the human body while you were at Monsanto between 1946 and 1974 ? MR. BAUER: Object to the form. Calls for speculation. Did you say in the human body? Would you repeat that again? I don't know -- exactly know how you've brought in the human body into this experiment. MR. KIM: Can you read that back? Because I don't know what I said. (The pending question was read Martin & Associates (409) 762-2222 WATER PCB-SD0000031364 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 3 85 by the court reporter.) These were rats, remember. They had nothing to do with -- I had no concern. There's nothing -- they did not extend to the human body. There was no experiment or no one showed any effects like this in the human body as a result of this experimentation. We did know that the liver was the target organ in the animals. And that was not news to us. We knew that. (By Mr. Kim) Would results in animal studies have caused you to inquire as to what the human response would be to the same chemical? MR. BAUER: Object to the form. Calls for speculation and incomplete hypothetical. Well, it is -- it may be a very simple jump from animals to humans. It may be a pretty large jump from toxicological work on animals to humans. We did know that there were a few isolated cases in a heat transfer mechanism that caused a chemical hepatitis. So we knew that if you got too much of the stuff from breathing, you would get ill effects; and we Martin & Associates (409) 762-2222 WATER PCB-SD0000031365 386 1 knew that that was probably the liver. So 2 that's why we warned against breathing the 3 material or having it absorbed from the skin. 4 Q. (By Mr. Kim) During the time that you were 5 the medical director at Monsanto between 1946 6 and 1974, did you ever order or request any 7 epidemiological studies be done on behalf of 8 Monsanto concerning polychlorinated 9 biphenyls ? 10 A. No, sir. You asked me that two days ago. 11 The answer is the same. 12 Q. Doctor, I'm sorry I'm being so laborious. 13 A. That's all right. 14 Q. But two days ago, I believe, the questions 15 were being directed by Mr. Bauer. 16 A. Well, you asked me, though. One day ago, 17 then . 18 Q. If you'll turn to Page 3 of the Dr. von 19 Oettingen story -- excuse me -- study. At 20 the very top, the first complete sentence, he 2 1 notices that: "Microscopically the stomach 22 of two animals presented typical hemorrhagic 23 erosions of the mucosa" -- or micosa. What 24 does that mean? 25 A. It means that the lining of the stomach Martin & Associates (409) 762-2222 WATER PCB-SD0000031366 387 1 2 3 Q. 4 5 6 A. 7 8 9 10 11 12 13 14 15 16 Q. 17 A . 18 19 Q. 20 A . 2 1 Q. 22 23 24 25 showed bleeding and erosions, which are small ulcers. Would the combination of the observations in the lungs, liver, and stomach give rise to considerations of systemic poisoning? No. These are all local. The lungs, remember I said, were due to the death -- the conditions that existed, the death that caused the swell -- the congestion in the lungs. Certainly the situation in the stomach was local. If you take paper remover and swallow it in your stomach and it stays in your stomach, you will get typical hemorrhagic erosions. That's a local action. It's not systemic. How about the liver and the stomach? The liver was not local, no. The liver is systemic. But you said "liver and stomach"? Yes . Stomach is still local. Okay. If you will turn to -- at the top it will be Page 5. There you go. Doctor, I believe you told me that it was your understanding that Inerteen and -- what's the GE trade name? -- Pyranol Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031367 388 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. were composed of approximately 70 percent PCBs and 30 percent trichlorobenzene. MR. BAUER: Object to the form. I think you said one of them was. But - I'm not sure. Yes. I know that both Inerteen and Pyranol contained Monsanto's PCBs and somebody's trichlorobenzene. I do not know the exact ratio of the two components. (By Mr. Kim) Certainly during the time period that Inerteen and Pyranol was marketed by Westinghouse and General Electric, respectively, Monsanto knew that its PCB product was being combined with trichlorobenzene. Is that a fair - It's a supposition; but I would imagine that it probably did, yes. Did you know that while you were the medical director of Monsanto? Yes, I did. At some time. I don't know when . Did you -- excuse me. Did the medical department under your direction between the years 1946 and 1974 ever request or order any testing to be done with respect to the Martin & Associates (409) 762-2222 WATER PCB-SD0000031368 389 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. relationship between polychlorinated biphenyls and trichlorobenzene? MR. BAUER; Objection. Vague as to what you mean by "the relationship." I don't know what you mean by it, either. But - (By Mr. Kim) How about the chemical relationship between the two chemicals that were being used concomitantly in the dielectric fluids? I don't know about Monsanto. I did -- that would not be in the medical department's purview. Did Monsanto's medical department under your direction in the same time frame ever order or request any testing be done with respect to the toxicological properties of trichlorobenzene? Not trichlorobenzene per se. We ordered some work done both on Inerteen which contained trichlorobenzene and Pyranol which contained trichlorobenzene. Did Monsanto Chemical Company during the time that you were the medical director ever explore scientifically through testing the Martin & Associates (409) 762-2222 WATER PCB-SD0000031369 390 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. synergistic possibilities of combining trichlorobenzene and polychlorinated biphenyls, that you're aware of? Well, I think, as I said, if you test the material toxicologically, if you test it, it's got the same two component synergy testing. If there's any synergism in there, you're testing it. . Did Monsanto Chemical Company under your direction between 1946 and 1974 ever test or order testing done with respect to how trichlorobenzene would metabolize within the human body? No, sir, they did not. There was information about the toxicological effects of trichlorobenzene, and I don't know if there was information about the metabolism of it. What information were you aware of during the time period that you were medical director of Monsanto with respect to the toxicological properties of trichlorobenzene? Well, I knew the oral toxicity of the material; and I knew that the material could be absorbed through the skin. It could be absorbed by breathing the vapors. Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031370 39 1 1 Q. Did it have a half-life? 2 A. I don't know. 3 Q. Do you know what -- 4 A. I'm -- 5 Q. Excuse me. 6 A. Do I know what? 7 Q. Do you know what the half-life is of 8 polychlorinated biphenyls? 9 MR. BAUER: Objection. 10 A. Half-life where? In an animal? In a body? 11 In a bucket? 12 Q. (By Mr. Kim) In a human. 13 A. No, I do not. 14 Q. On Page 5, at the bottom, of Dr. von 15 Oettingen's report, he talked about path -- 16 the very last paragraph - 17 A . Yes, sir. 18 Q. -- where he talks about pathological 19 examination: "...animals were treated with 20 trichlorobenzene and which died spontaneously 2 1 showed 4 passive congestion of the lungs and 22 the liver; the stomachs were distended with 23 food; in four some blood was present in the 24 gastric contents and in one instance there 25 was a hemorrhagic erosion of the mucosa." Is Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031371 392 1 2 A. 3 Q4 5 6 A. 7 Q. 8 9 10 11 A . 12 Q. 13 A . 14 15 16 Q. 17 18 A . 19 Q. 20 A . 21 22 23 24 25 Q. that correct? You're reading it correctly, yes, sir. In the next sentence, at the top of Page 6, he indicates that: "In two of the rats the liver showed irregular mottling." Yes, sir. Again, can we agree that the concern of the liver would be one indication that might cause one to suspect systemic poisoning with respect to trichlorobenzene? From this experiment? Yes, sir. No. If this was an acute -- I have to go back to see how long it took these animals to die after he gave them the material. I believe spontaneously. I think it was acute. Doctor. Beg pardon? I believe it was acute. Well, yes. I was thinking of how acute. From this it's hard to say whether or not - well, if they showed necrosis of the liver cells, that is very probably a systemic effect. And in the very next sentence, indeed, Martin & Associates (409) 762-2222 WATER PCB-SD0000031372 393 1 2 3 4 5 6 A. 7 Q. 8 9 A. 10 Q. 11 12 13 14 A. 15 Q 16 17 18 A 19 20 21 22 23 24 25 Dr. von Oettingen indicated that: "Liver sections of all animals showed necrosis of the liver cells around the central veins and those in the outer parts showed vascular [sic] degeneration." Yes . That would indicate the possibility, at least, of systemic poisoning? That's correct. At the bottom of Page 6, in the last paragraph, it says: "It appears, therefore, that Inerteen is considerably less toxic than trichlorobenzene." That's what it says, yes, sir. Do you agree with that statement, based upon the knowledge that you have accumulated from 1936 to present? He's talking now about experiments in animals. It certainly is somewhat more toxic -- Inerteen is -- trichlorobenzene is somewhat more toxic than Inerteen. Inerteen has an LD^0 of 3 cc's per kilo, whereas the trichlorobenzene was two point one or something like that. Whether it's more toxic in actual use is not determined by this Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031373 394 1 particular - 2 Q. Did Monsanto -- 3 A. -- compound - 4 Q- Oh, I'm sorry. 5 A. -- report. 6 Q. Did Monsanto Chemical Company under your 7 direction as medical director between the 8 years of 1946 and 1974 order any LD^ tests 9 or toxic -- LD5rn0 tests to determine the LD_o_u 10 of polychlorinated biphenyls when used in 11 combination with trichlorobenzene? 12 A. Yes . 13 Q. Who did those studies? 14 A. Younger Laboratories. 15 Q. And those are the Younger studies that you 16 discussed with Mr. Bauer - 17 A. Yes, sir. 18 Q. -- on Tuesday? 19 On Page 7 Dr. von Oettingen next 20 talks about, in the middle, the "Effect of 2 1 Application to the Skin"; is that correct? 22 A. Yes, sir. 23 Q. And at the very bottom of that page, it 24 says: "Upon pathological examination the 25 liver of all animals was found to be dark Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031374 395 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. gray brown in color with mottling on the surface. In those rats" -- at the top of Page 8 -- "which died spontaneously there was fatty degeneration of the liver cells with necrosis of those around the central veins"; isthatcorrect? Yes, sir. Would that be indication to you of the possibility of systemic poisoning? Yes, sir. The very last paragraph, underlined, states: "It appears, therefore" -- of that section. I'm sorry. Oh, okay. On Page 8, just before the "Effect of Inhalation." Uh-huh. Yes. "It appears, therefore, that the contact of Inerteen with the skin does not only cause local reaction such as dryness, thickening, and scaling of the skin, but also systemic effects as indicated by the injurious effect on the liver." Yes, sir. Did Monsanto have this knowledge -- when did Martin & Associates (409) 762-2222 WATER PCB-SD0000031375 Monsanto acquire this knowledge? MR. BAUER: Object to - (By Mr. Kim) If you know. MR. BAUER: Object to the form as to what you mean by "this knowledge." Well, that's what I mean. This knowledge from this experiment or whether -- first time we knew that it could be absorbed through the skin? (By Mr. Kim) Fair enough. When did it first learn that absorption through the skin may lead to systemic effects, as indicated by injuries on the liver in animal studies? Well, we didn't know that it -- absorption through the skin in humans had caused any liver damage in humans. I was convinced in my own mind that there was a possibility that the material can be absorbed through the skin and if absorbed through the skin, can cause liver damage. But I did not see any of -- I did not have any definitive information about that. And you are talking about -- -- humans. -- to humans? Martin & Associates (409) 762-2222 WATER PCB-SD0000031376 39 7 1 A. Uh-huh. 2 Q. There was a question in your mind as to 3 whether the liver would be affected through 4 absorption in the skin -- through the skin? 5 A. I was fairly sure it would. That's why we 6 warned against it, against continuous or 7 repeated skin application. 8 Q. But your warning never told them what would 9 happen, did it? 10 MR. BAUER: Objection. Asked and 11 answered. 12 A. No. It did not give the specifics. 13 Q. (By Mr. Kim) The very next section on 14 Page 8, Doctor, is "Effects of Inhalation of 15 Vapors." 16 A. Yes, sir. 17 Q. And again, we're talking about Inerteen; is 18 that correct ? 19 A . Well, let's see what he says. Yes. From 20 Inerteen, right. 2 1 Q. And I don't have anything highlighted on my 22 copy . So let's go to Page 10. 23 A . We're going to 10? 24 Q. Yes , sir. 25 A . Yes , sir. Martin & Associates (409) 762-2222 WATER PCB-SD0000031377 398 1 Q. Actually, I lied again. Let's go to 2 Page 12 - 3 A. We're really moving. 4 Q. Uh-huh. 5 -- where at the end, under the 6 title of "Resume," middle of that 7 paragraph - 8 A. Yes, sir. 9 Q. -- he notes -- Dr. von Oettingen notes that: 10 "Fatal doses will cause passive congestion 11 of all viscera" -- "viscera" -- 12 A. Well, wait. I'm a little confused on the 13 pages because -- 14 Q. Oh, I'm sorry. 15 MR. FEATHERSTONE: What was the 16 page, John? 17 A. Because. 18 MR. KIM: It may be 13 or 12. 19 MR. FEATHERSTONE: Well, can you 20 read the number at the bottom? Our page 21 numbers are cut off. 22 MR. KIM: Yeah. GBRN003105. 23 A. Yeah. Okay. 24 Q. (By Mr. Kim) There we go. The middle of the 25 paragraph, under the heading "Resume" - Martin & Associates (409) 762-2222 WATER PCB-SD0000031378 39 9 1 A . Yes, sir. 2 Q. -- towards the bottom. Dr. von Oettingen 3 notes: "Fatal doses will cause passive 4 congestion of all viscera, extensive 5 degeneration of the liver, and ulceration of 6 the gastric mucosa." 7 A. Yes, sir. 8 Q. And at the top of the next page - 9 A. Yes, sir. 10 Q. -- he notes that: "Continued application of 11 Inerteen to the skin of rats and humans 12 causes dryness of the skin, thickening and 13 scaling; and the observation made in rats 14 indicate that sufficient quantities may be 15 absorbed through the skin to produce 16 injurious effects on the liver." 17 A. Yes. 18 Q. Does that knowledge, if it had been acquired 19 during the time period that you were medical 20 director of Monsanto, cause you any concern 2 1 from a medical or toxicological standpoint? 22 A. Well, I think - 23 MR. BAUER: Objection. Calls for 24 speculation. 25 A. I think it reinforced what my opinion was. Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031379 400 1 The material could be absorbed through the 2 skin. It could cause systemic illness. 3 Q. (By Mr. Kim) Dr. von Oettingen made some 4 recommendations with respect to the use of 5 Inerteen, did he not? Or do you recall from 6 your cursory review of the document? 7 A. Beg pardon? 8 Q. Do you recall? 9 A. Well, I could read it. 10 Q. Well, let's read it together, the second to 11 the last page, at the very bottom, last 12 paragraph, where Dr. von Oettingen notes: 13 "In view of the hepatotoxic action of this 14 compound, individuals suffering from injuries 15 of the liver, syphilis, and hearing 16 diseases" -- at the top of the next page - 17 "should be excluded from operations in which 18 Inerteen is handled." Did I read that 19 correctly? 20 A. Yes. That's what he says. 2 1 Q. Based upon the knowledge that you have 22 accumulated up until today, do you dispute 23 that finding by Dr. von Oettingen, or 24 recommendation? 25 A. Well, Dr. von Oettingen is writing about all Martin & Associates (409) 762-2222 WATER PCB-SD0000031380 401 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. sorts of exposures. What Monsanto's situation was and the -- and the material we furnished our customers when we manufactured Inerteen for Westinghouse was that we told them how to prevent illnesses. And even if a person did have syphilis, if he didn't get any -- a lot of exposure, it were not going to bother him. Do you know if Monsanto in its hiring practice -- and you may not know -- screened its employees that would be exposed to polychlorinated biphenyls for preexisting liver, syphilis, or hearing diseases? In the early days, we screened -- we ran Wassermann tests on all preemployment individuals. Later that became an invasion of privacy, and I believe we had to discontinue it. When it was discontinued -- approximately when was that, if you have a recollection - recollection? Oh, gosh. I think it was a time when syphilis fell off a great deal. There was not much around. Now, of course, it's up again. Martin & Associates (409) 762-2222 WATER PCB-SD0000031381 402 1 Q. Did you tell prospective applicants that they 2 would be working around polychlorinated 3 biphenyls and that if they had a preexisting 4 liver, syphilis, or hearing disease, it may 5 not be beneficial to work in that 6 environment ? 7 A. No, we did not. 8 Q. Doctor - 9 A. I saw no reason for that because they weren't 10 going to get harmed by working in our 11 environment. 12 Q. You also had an opportunity to review two 13 other documents that we have marked as your 14 Deposition Exhibits No. 40 and 41; is that 15 correct? 16 A. Yes, sir. 17 Q. Did you have an opportunity to review those 18 documents while you were employed at 19 Monsanto? 20 A. No, sir, I did not. 2 1 Q. Have you ever reviewed those documents prior 22 to today? 23 A. I've seen them. I don't really -- didn't go 24 over them with a fine-toothed comb. But 25 I've -- I read the resumes and the summary. Martin & Associates (409) 762-2222 WATER PCB-SD0000031382 403 1 Q. Do you know either Dr. Fleming or Dr. Read? 2 A. I know Fleming. He was assistant at Haskell, 3 and he eventually became medical director of 4 DuPont. 5 MR. CAILTEUX: John, can we have 6 Exhibits 40 and 41 identified for the record 7 since we don't have copies? 8 MR. KIM: Sure. 40 is, I believe, 9 an article titled, "The Toxicology of 10 Inerteen and Related Substances Including a 11 Method of Analysis for Halogenated 12 Hydrocarbons in the Air," by A. J. Fleming, 13 ' M.D. 14 41 is "The Effect of Inerteen and 15 Several Related Substances Upon the White 16 Rat." Oh, excuse me. By Dr. W. T. Read, 17 R-e-a-d, Jr. 18 Q. (By Mr. Kim) Dr. Kelly, I think we can both 19 agree -- or we may not be able to agree - 20 that both these doctors indicated effects 2 1 upon the liver; is that correct? 22 A. Well, let's be sure. 23 Q. With respect to the Fleming study, turn to 24 the page that is Bates stamped No. 300024. 25 A . I have it. Martin & Associates (409) 762-2222 WATER_PCB-SD0000031383 404 2 3 4 5 6 7 8 A. 9 10 Q. 11 12 13 A. 14 Q. 15 16 17 A 18 19 20 Q 21 22 23 2 4. 25 At the very top, first full sentence. Dr. Fleming indicates that: "Weakness and stupor generally supervened within a few hours until the animals could no longer rise for food and water." That is an indication of fatigue or weakness, is it not? No. It's -- the animal is being anesthetized, it looks like. With -- excuse me. On the previous page he talks about the procedure. It was the oral administration of Inerteen. Yes, sir. Is it your testimony that your interpretation of this is that the rats were being anesthetized with Inerteen? There were -- well, it was the action of an anesthetic. They became stuporous, and they couldn't eat or couldn't get up. Okay. The next sentence indicated that: "Liguids were taken, however, if administrated and for a few minutes following administration the animals perked up a bit. The improvement was only temporary and the outcome, when they had thus far progressed, Martin & Associates (409) 762-2222 WATER PCB-SD0000031384 4 05 1 2 A. 3 Q. 4 5 6 A. 7 8 9 10 11 12 13 14 Q. 15 A . 16 Q. 17 A . 18 19 20 21 22 23 24 Q 25 was invariably fatal." Yes, sir. And that's through the repeated doses of Inerteen, as you understand based upon your review of this document? Well, they were to -- they were really given the doses -- "Two died after the second treatment." So that wasn't a lot of repeated -- "5 were killed for autopsy...24 hours after the last treatment." And another set of them, one died after one treatment, three after two, and four after the third. So that's pretty acute doses. Not that repetitive, then? Beg pardon? The doses were not that repetitive? Well, they were repetitive. They had four of them, obviously. But that's in a -- it doesn't say how long it took him to give those doses, whether he gave it once a -- I can't see here how fast they gave the doses. But that's -- that's a pretty acute study anyway, no matter how you cut it. The effect of repeated doses, would that have given rise to questions when you were the Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031385 4 06 1 medical director of Monsanto as to the 2 chronic effects of chronic exposure to 3 polychlorinated biphenyls? 4 A. No, sir, not in this - - 5 Q. The next - 6 A . - - case. 7 Q. -- study, which is -- or report, which has 8 been labeled as your Deposition Exhibit 9 No. 41, on the Page No. 4 -- 10 A. Yes, sir. I have it. 11 Q. -- it indicates that: "The pathology 12 resulting from oral ingestion of Inerteen 13 (was) fairly consistent and obvious. 14 "Large doses which (were) lethal in 15 one or two days cause a terminal passive 16 congestion of the viscera, extensive 17 degeneration of the liver with necrosis about 18 the central veins and locally ulcerations of 19 the gastric mucosa." 20 A. Yes, sir. You've read that correctly. 2 1 Q. Would that be an indication to you of 22 possible systemic poisoning, based upon your 23 experiences that you have developed over the 24 years ? 25 A. What you -- I didn't hear the middle of your Martin & Associates (409) 762-2222 WATER PCB-SD0000031386 407 1 question. 2 Q. Based upon the experience and knowledge that 3 you have gained over the years, would this be 4 an indication to you of possible systemic 5 poisoning? 6 MR. BAUER: Object to the form. 7 Calls for speculation. 8 A. No. This was really an acute dose and - 9 that killed the animals from this dose. So 10 certainly if you kill an animal, it's 11 systemic. So in that sense it shows that you 12 could kill an animal if you give enough 13 Inerteen to it. 14 Q. 15 (By Mr. Kim) Doctor, I believe you testified earlier that you had requested some patch 16 testing to be done by the Barnard Free 17 Scanning Cancer Hospital . 18 A . Yes, sir. 19 Q . 20 A . Is that correct? Yes , sir. 2 1 Q. Do you have a recollection of approximately 22 when that was? Late 1940's? 23 A . I can't -- I just would be guessing. 24 Q. Did Monsanto pay for that study? 25 A . Yes, they did. Martin & Associates (409) 762-2222 WATER PCB-SD0000031387 408 1 Q. Did Monsanto provide the Aroclors that were 2 to be tested? 3 A. Yes. 4 Q. Did Monsanto provide the Aroclors to be 5 tested in the Younger studies? 6 A. Yes. 7 Q. The Scientific Laboratory studies? 8 A. Scientific Associates, yes. 9 Q. 10 A. 11 Q. 12 The Industrial Bio-Test studies? Yes. Monsanto also provided the chlorinated diphenyls in the Drinker studies, the second 13 Drinker study? 14 A. Yes. 15 Q. Do you know if Monsanto in its manufacture of 16 PCBs produced or prepared PCBs of higher 17 purity than the commercial grade supplied in 18 the bulk -- in bulk to its industrial 19 customers ? 20 A. Say that over. 2 1 Q. Did Monsanto prepare different grades in 22 terms of purification of PCBs? 23 A. There may have been research samples of - 24 that they tried to do some purification, yes. 25 Q. Were microscope immersion oils especially Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031388 4 09 2 A. 3 Q. 4 5 6 7 A. 8 Q. 9 10 A . 11 Q. 12 13 A . 14 Q. 15 16 17 18 19 20 21 22 A 23 24 25 purified? Were what? Microscope -- microscopic immersion oils that comprised a part of the polychlorinated biphenyls specially prepared? MR. BAUER: Objection. Microscopic immersion oil? (By Mr. Kim) If you don't understand or you don't know, just tell me. I don't know. Who selected the samples for research purposes ? I don't know that. The research people did. Who would be responsible for sending the samples from Monsanto to the various testing facilities ? MR. BAUER: You're talking about toxicological testing? MR. KIM: Yes. The tests we've discussed: Drinker, Younger, Scientific, Barnard Free Scan, Industrial Bio-Test. I would call the Anniston plant and say, "Send me" -- "send this particular laboratory X-amount of your product." I would not call the research department. Martin & Associates (409) 762-2222 WATER PCB-SD0000031389 4 10 1 Q. (By Mr. Kim) They would spend -- send you a 2 small sample that you could send on to the 3 testing facilities? 4 A. They would either send it directly to Drinker 5 or they would send me a quart of the stuff 6 and I'd send it on. I don't know how it 7 went. 8 Q. Was there any control procedure which would 9 identify whether it was a commercial grade 10 PCB or a PCB that had been somewhat purified 11 for research purposes? 12 A. Well, I know it was run-of-the-mill 13 production grade because that's what I told 14 them to send. I didn't talk to the research 15 people to send it. I talked to the 16 production people to send it. 17 Q. Did you ever verify that it was sent, the - 18 A. Well, they got it. 19 Q. -- the commercial grade? 20 A. Beg pardon? 2 1 Q. 22 Did you ever yourself verify what grade of PCB was actually sent to the testing 23 f aci1ity? 24 A. No, sir, I did not. And I -- 25 Q. Do you know if anyone ever did? Martin & Associates (409) 762-2222 WATER PCB-SD0000031390 4 11 1 A. 2 Q. 3 A. 4 Q. 5 A. 6 Q. 7 8 9 10 11 A . 12 13 14 15 16 17 Q. 18 19 20 A . 21 22 23 Q 24 25 Beg pardon? Do you know if anyone at Monsanto did? I'm sure the man that sent it knew it. Was there - Verified it. Excuse me. Doctor. Was there ever a record kept at Monsanto Chemical Company of the particular grade of polychlorinated biphenyl sent to the research laboratories? MR. BAUER: Objection. Compound. Now, we're back on the research. We're not back on the -- what are we talking about? Whose research laboratories? The toxicological researchers -- research laboratories or Monsanto research laboratories ? (By Mr. Kim) Well, as I understand, Monsanto didn't have any research laboratories until sometime after 1974. Yes. But we're talking all along here about research. We've got other kinds of research besides toxicological research. Fair enough. I'm talking in particular about the samples sent to the various contractors that you hired to do the studies for you, Martin & Associates (409) 762-2222 WATER PCB-SD0000031391 4 12 1 such as the Younger Brothers, the Scientific 2 Laboratories, Industrial Bio-Test, Drinker, 3 Barnard Free Scan and Cancer Hospital. Would 4 there have been a record kept as to the grade 5 or purity of the PCB fluid sent to these 6 facilities? 7 MR. BAUER: Object to the form. 8 A. The person who sent the material from our 9 manufacturing installation would have a 10 record of what particular lot number it was . 11 What was done as far as the specifications on 12 that particular lot number, I don't know. 13 But we certainly had specifications on all 14 15 our production runs, and we picked this out of the middle of a production run. So we had 16 the specification. Where that record was 17 kept, I don't know. 18 Q. (By Mr. Kim) Do you know - 19 A. 20 Q. I didn't have it. -- if a record was kept? 2 1 A. What? 22 Q. Do you know if a record was kept or if they 23 would just pull it and send it? 24 A. Well, if they're pulling it out of a 25 particular run, they had a record on the Martin & Associates (409) 762-2222 WATER PCB-SD0000031392 4 13 1 run. They obviously had a record on what 2 they pulled out of it. 3 Q. Do you know who would have sent the samples 4 to Industrial Bio-Test? 5 A. Somebody at the Anniston plant. I don't know 6 the name. 7 Q. How about - 8 A. The manufacturer's superintendent would be 9 the one. 10 Q. Do you have a recollection of who that was? 11 A. No, I don't. 12 Q. Okay. Do you have a recollection of who 13 would have sent the samples to Dr. Kimbrough? 14 MR. BAUER: Object to the form. 15 A. I don't know if that came out of St. Louis or 16 direct to -- from the plant. I don't -- I 17 don't know the answer to that. 18 Q. (By Mr. Kim) We've talked about various 19 people; but Monsanto-did send some PCB fluids 20 to Dr. Kimbrough, as well? 2 1 A. Oh, yes. 22 Q. Who would have known about the existence of 23 the purified PCBs? 24 MR. BAUER: Object to the -- object 25 to the form. All he said was there might Martin & Associates (409) 762-2222 WATER PCB-SD0000031393 4 14 1 have been some efforts in the research 2 department. 3 Q. (By Mr. Kim) Well, let's back up, then. 4 Were there some forms of purified 5 PCBs for research purposes while you were the 6 medical director of Monsanto? 7 A. There may have been. I did not see them. 8 Q. Do you know if they had been done who would 9 have prepared them? 10 MR. BAUER: Object to the form. 11 Q. (By Mr. Kim) What department? 12 A. Presumably the research department of the 13 organic division of the Monsanto Company. 14 Q. Was Aroclor 1016 ever purified? 15 A. I don't know. And I don't know what you mean 16 by "purified." 17 Q. You don't understand the mechanism that 18 Monsanto might have employed if it purified 19 its PCBs for research purposes? 20 MR. BAUER: Objection. Vague as to 2 1 what you mean by "purified." 22 A. You are jumping back and forth between a 23 research product and 1016. 1016 was a sales 24 item late in the -- in the Seventies. 25 Q. (By Mr. Kim) Was Aroclor 1016 ever altered Martin & Associates (409) 762-2222 WATER PCB-SD0000031394 4 15 1 in terms - 2 A. Ever which? 3 Q. Altered in terms of its commercial grade? 4 A. Altered by whom and altered in what way? 5 Q. 6 A. By Monsanto chemically. In its commercial -- well, I think they were 7 always striving to improve it. 8 Q. 9 What department would be responsible for that effort? 10 A . Still the manufacturing department of organic 11 division. 12 Q. 13 You told me yesterday that it was your opinion that you learned about the existence 14 of polychlorinated dibenzofurans for the 15 first time in the late Sixties or early 16 Seventies. 17 A . Certainly, yes. 18 Q. 19 Do you know if Monsanto as a company had any prior knowledge of the existence of furans as 20 a contaminant in its PCB products? 21 A. Prior to when? 22 Q. 23 A . To 1968. To my knowledge - 24 Q. 25 A . Late Sixties, Seventies. -- I never knew that they did. Martin & Associates (409) 762-2222 WATER PCB-SD0000031395 4 16 1 Q. We can agree that furans are more toxic than 2 PCBs ? 3 A. Yes. No question about it. 4 Q. I think we used salt as an example 5 yesterday. If we put salt at one end of the 6 spectrum and furans at the other end of the 7 spectrum, PCBs would fall somewhere in 8 between ? 9 MR. BAUER: Object to the form. 10 Vague as to whether you mean acute basis, 11 chronic basis, what you're talking about. 12 A. Well, certainly salt is a household 13 condiment. Furans and PCBs are not. 14 Q. (By Mr. Kim) Well, you can - 15 A. But they are -- I would say that PCBs are 16 closer to furans than they are to salt. I 17 don't know how much closer. 18 Q. Sure. Let's continue to use these three 19 examples . 20 If you boil salt in the preparation 2 1 of foods, the vapors from that are not toxic 22 in an acute - 23 A. That's correct. 24 Q. Do you have the same opinion if PCBs are 25 brought to a boiling temperature? Martin & Associates (409) 762-2222 WATER PCB-SD0000031396 4 17 1 A. No . 2 MR. BAUER: Object to the form. 3 What's the dose? 4 A . If PCBs are brought to a boiling temperature 5 and you inhale the vapors, that can -- could 6 be harmful because the vapors can be toxic -- 7 Q. 8 A. (By Mr. Kim) A table --- at elevated temperatures. 9 Q 10 If you -- if you bring a tablespoon of PCBs to boiling temperature, the vapors could be 11 harmful? 12 A . No, they couldn't. That's not enough to -- a 13 tablespoonful? No, I don't think so. 14 Q. 15 A . How about a tablespoon of furans? Yes, I think so. 16 Q. 17 If someone told you that PCBs and table salt were equivalent in terms of toxicity in human 18 health effects, would you dispute that 19 statement ? 20 MR. BAUER: Object -- object - 21 A. I'd laugh at them. 22 MR. BAUER: Object to the form. 23 Are we talking about acute toxicity, LD^; or 24 are we talking about chronic toxicity? 25 Q. (By Mr. Kim) You can answer. Martin & Associates (409) 762-2222 WATER PCB-SD0000031397 4 18 1 A. What was the question again? 2 Q. If someone represented to you that PCBs and 3 table salt posed the same toxicity and health 4 concerns, how would you respond? 5 MR. BAUER: Same objections. 6 A. I would say that PCBs -- I would have more 7 concern over a person being exposed to PCBs 8 than exposed to salt. I would also say that 9 if they were exposed to a sufficient amount 10 of salt, the salt could be harmful. 11 Q. (By Mr. Kim) If -- would you make such a 12 statement based upon the knowledge that you 13 have acquired over the years concerning PCBs? 14 A. What's the statement? 15 Q. That PCBs and table salt are of equal toxic 16 values. 17 A. No, I would not. And I don't think anybody 18 from Monsanto ever did, either. 19 Q. If someone from Monsanto did, it would be a 20 gross misrepresentation, wouldn't it? 21 MR. BAUER: Object. Objection. 22 It's argumentative. And you're talking about 23 an acute basis or chronic basis? You're not 24 providing him with -- well, strike that. 25 Q. (By Mr. Kim) You can answer my question. Martin & Associates (409) 762-2222 WATER PCB-SD0000031398 4 19 1 A. If someone made a statement saying that PCBs 2 and salt were equivalent in toxicity, the 3 statement made by somebody from Monsanto? 4 Q. That would be a misrepresentation? 5 A. It wouldn't be a misrepresentation. It would 6 be an error on his part -- his or her part. 7 Q. It would be false? 8 A. Beg pardon? 9 Q. They would be wrong? 10 A. Yes. Wrong in the sense it would not be 11 scientifically correct or medically correct. 12 Q. And if they had the same type of knowledge 13 that you had had as the medical director of 14 Monsanto Chemical Company from 1946 to 1974 15 and made that statement, it would be a lie? 16 MR. BAUER: Object to the form. 17 It's argumentative. And the statement is now 18 is -- is - 19 A. I can't answer that. 20 MR. BAUER: -- concerns? 2 1 A. If somebody knew as much as I did -- why 22 don't you say if I made that statement, it 23 would be a -- it would be wrong, it would be 24 lying. I wouldn't do it in the first place. 25 Q. (By Mr. Kim) But if you did, it would be a Martin & Associates (409) 762-2222 WATER PCB-SD0000031399 420 1 2 3 A. 4 5 6 7 8 9 10 Q. 11 12 A . 13 14 15 16 Q. 17 18 A . 19 20 2 1 Q. 22 23 24 Q. 25 A . lie? MR. BAUER: Object to the form. It certainly -- I don't like the term "a lie" because I don't know in what circumstances somebody may make that statement. If somebody would say, "Does PCBs have toxicity? Does salt have toxicity," even with all my knowledge from being a medical director from 1937 to 1974 - (By Mr. Kim) How about -- I'm sorry, Doctor. -- I would say they both have toxicities. But we do not equate the toxicity of salt. I would never equate the toxicity of salt with the toxicity of PCBs. You certainly never would have done so in a press release? I don't know what I would have done in a press release, but I would -- I don't believe I would, no. I know I wouldn't. Because it would be a misrepresentation? MR. BAUER: Objection. Argumentative. (By Mr. Kim) Based upon your knowledge. I don't -- Martin & Associates (409) 762-2222 WATER PCB-SD0000031400 42 1 1 MR. KIM: Put the camera on Scott 2 for a while, too. 3 A. I don't know exactly what you mean by "a 4 misrepresentation." Does that mean that you 5 think I'm trying to deceive somebody? Maybe 6 I had temporary insanity at that time, why I 7 would have done it. I don't know what the 8 reason would -- might be, but I cannot 9 conceive of a reason of me doing it. And I 10 also cannot see myself misrepresenting 11 anything. 12 Q. If a corporate - 13 A. So I -- 14 Q. I'm sorry. 15 A. So I find it hard to answer your question. 16 Q. I understand. Assume with me that Monsanto 17 makes this representation that PCBs are no 18 more harmful than a tablespoon of table 19 salt. 20 MR. BAUER: No more harmful on any 2 1 basis? 22 MR. KIM: Okay. 23 MR. BAUER: Is that -- 24 Q. (By Mr. Kim) Do you understand what I'm 25 saying. Doctor? Martin & Associates (409) 762-2222 WATER PCB-SD0000031401 422 1 A. 2 3 Q. 4 5 A. 6 Q. 7 A. 8 Q. 9 A. 10 Q. 11 A. 12 Q. 13 14 15 A. 16 Q. 17 A. 18 Q. 19 20 21 22 A. 23 24 25 Well, there are a lot of parameters that you have not explained. Any basis. Acute through vaporization through heating - Through injection -- -- and through chronic exposure. Through injection into your vein? Sure. Injection into your vein. Concentrated salt solution? Table salt. Yeah. If they did what, now? Are you -- let's start with injections. If you inject salt and you inject PCBs, which is more toxic? PCBs. Okay. In equal amounts. In equal amounts. Is there any situation that you have just described in which you would say table salt in equal amounts is more toxic than PCBs? No, sir. (Discussion off the record.) Martin & Associates (409) 762-2222 WATER PCB-SD0000031402 423 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. THE VIDEOGRAPHER: We're going off the record. It's 55 minutes after 10:00. This is the end of Tape No. 6. (A recess was taken.) THE VIDEOGRAPHER: It's 11 minutes after 11:00 o'clock. This is the beginning of Tape No. 7. We're back on the record. (By Mr. Kim) Doctor, when we last left, we were talking about comparisons between PCBs and table salt. Yes, sir. If I were to say to you that PCBs are considered only mildly toxic on an acute basis when ingested by humans, about on the same order as common table salt, how would - what would your reaction to that statement be ? MR. BAUER: Object to the form. It all depends on the -- on the rest of your statement. It all depends on if you have any qualificating -- qualifications in that. (By Mr. Kim) What if I qualified it by saying that in my opinion, PCBs are not human Martin & Associates (409) 762-2222 WATER PCB-SD0000031403 424 1 2 3 4 A. 5 6 7 8 9 10 11 12 13 14 Q. 15 16 A. 17 18 19 20 Q. 21 A. 22 23 24 25 cancer causing agents and they are not deadly toxins and then I made that statement? MR. BAUER: Object to the form. That's still -- I'll have to break that down. Certainly, they are not human carcinogens. They have not been proven to be human carcinogens. I don't know -- I don't know what whoever -- if you were making that statement, what you were -- how you were qualifying "deadly." If you were saying to use in the gas chambers, it certainly isn't deadly in that sense. I think you'd have to qualify the "deadly." (By Mr. Kim) How about if we qualify the exposure to that mode of ingestion in humans? From an acute point of view? Or are we comparing this now from an acute point of view what is the LD_. of salt and what is the 5U LD50 of PCBs? Is that what we're comparing? Well , let's start there . Yes . Yes . The LDD_ _ U of salt is approximately four point zero. The LD50 of PCBs is approximately three point one to three point five. So from that particular point of view, it is somewhat more toxic than salt. The Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031404 425 1 2 3 Q. 4 5 6 7 8 9 A. 10 11 12 13 14 15 16 17 18 Q. 19 20 21 22 23 24 25 lower the number, obviously, the more toxic it is. What if I made that representation, that PCBs are considered only mildly toxic on an acute basis when ingested by humans, about on the same order as common table salt, without any qualifications? MR. BAUER: Object to the form. You are saying in the first place, PCBs when ingested by humans on an acute basis shows the same - MR. BAUER: Well, let him re - THE WITNESS: Oh. MR. BAUER: Let him restate the question. THE WITNESS: Well, I was trying to . (By Mr. Kim) My statement is -- that I'm asking you about is if the statement is made without any qualifications that PCBs are considered only mildly toxic on an acute basis when ingested by humans, about on the same order as common table salt, do you believe that that is a full and accurate description without any other qualifiers? Martin & Associates (409) 762-2222 WATER PCB-SD0000031405 426 1 MR. BAUER: Object to the form. 2 Specifically vague as to what you mean by "on 3 the same order." 4 A. The last part of your sentence was, is that a 5 full -- without any qualifications, what was 6 the add -- I mean, I get confused when I get 7 in the byplay. 8 Would you repeat it? 9 MR. KIM: Yeah, would you? I'd 10 like to -- then you can have your objection. 11 MR. BAUER: Same objections. 12 13 (The pending question was read 14 by the court reporter.) 15 16 A. 17 Well, it depends on what is in the rest of the statement, if that is a statement, if 18 that's all there is. That's it? You're not 19 picking this out of a report or anything 20 else? 2 1 Q. (By Mr. Kim) If that's all there is. 22 A. Do I believe -- 23 Q. -- that that is a fair and accurate 24 representation? 25 A. It's a fair and accurate representation of Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031406 427 1 the acute lethal dose. That's about all I 2 can say about it. 3 Q. As the medical director of Monsanto between 4 1946 and 1974, would you have made such a 5 representation nakedly to the public? 6 MR. BAUER: Objection. Calls for 7 speculation. 8 A. If I were asked to make such a represent -- 9 statement, I would certainly have included 10 some more information. 11 Q. (By Mr. Kim) For instance, you can ingest 12 table salt over a longer period of time than 13 you could PCBs? 14 A . Over -- yes. But we're not talking about the 15 statement. We're talking about acute 16 episodes right now. 17 Q. 18 Right. Absolutely. But those -- that would be one thing that you would consider? 19 A . Yes . 20 Q. Would be the length of exposure? 21 A. Yes . 22 Q. 23 A . The rate of exposure? If I were making a statement about the 24 general toxicity of PCBs. But for some 25 reason, I was supposed to make a statement Martin & Associates (409) 762-2222 WATER PCB-SD0000031407 428 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. about the acute toxicity of the material. That's -- that was the statement you asked me if I would make. And I said I would have to make not qualifications, but there would be other material that I would have added to that statement. Doctor, with respect to your responsibilities as the medical director of Monsanto, did you review press releases that may have been sent out by Monsanto containing the toxicological effects of PCBs during your time period? MR. BAUER: Objection. Assumes that -- well, assumes facts not in evidence. Frankly, I don't remember many press releases being sent out while I was at Monsanto regarding toxicological information. (By Mr. Kim) How about - If you mean by a press release to - Like newspapers. -- like. Associated Press? Yeah. How about notes to editors of newspapers ? MR. BAUER: Is that a question? By the company or by individuals of the company? I mean, somebody - Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031408 429 1 Q. 2 3 A. 4 5 6 A. 7 Q. 8 A. 9 10 11 12 Q. 13 14 15 A. 16 Q. 17 18 19 20 21 22 23 24 25 (By Mr. Kim) Let's start with the company first. I'm sure we're not - MR. BAUER: Objection. Vague. I don't know what the question is. Did I review them? (By Mr. Kim) (Nods head.) No, I didn't review them; but I would -- I would -- it would be my impression that the company would check with me if they were talking about toxicological information. And if an individual in your department sent such a letter to an editor, you would have reviewed that, as well? Yes. Or someone in your department would? MR. BAUER: Object to the form. Calls for speculation. MR. KIM: Here you go, Scott. THE WITNESS: Well, do I answer it? MR. KIM: You don't need to throw this at me. THE WITNESS: Do I answer the speculation? MR. BAUER: John, I move to strike Martin & Associates (409) 762-2222 WATER PCB-SD0000031409 4 30 1 the characterization - 2 MR. KIM: There's no -- there's no 3 speculative objection here now. 4 Q. (By Mr. Kim) My question. Dr. Kelly, is 5 simply if during the time period that you 6 were medical director, if an individual in 7 your department were to write a letter to 8 news editors concerning the health hazards 9 and toxicological properties of PCBs, would 10 that have come under your review? 11 MR. BAUER: Object to the form. 12 Calls for speculation. 13 A. It mighty and it might not. 14 Q. (By Mr. Kim) In what instances would it not? 15 A. They could have written it, and I'd be in 16 Europe. 17 Q. It would still come under your direction, 18 though, whether you were in Europe, whether 19 you were in Timbuktu. As the director of the 20 medical department, it would have been your 2 1 responsibility ultimately? 22 MR. BAUER: Object to the form. 23 Calls for speculation. 24 A. Unless I were -- unless we had talked over 25 what the gist of the letter was going to be. Martin & Associates (409) 762-2222 WATER PCB-SD0000031410 431 1 Q. 2 3 4 5 6 7 A. 8 9 10 11 12 13 14 Q. 15 16 17 A 18 Q 19 20 21 22 A 23 24 A 25 (By Mr. Kim) We talked about earlier in comparing the table salt to PCBs and furans . My question now to you would be if you can quantify in terms of magnitude, based upon your education and experience, how much more toxic furans are than PCBs. I think the commonly accepted ratio is that furans are probably 500 to 1,000 times more toxic than PCBs. Some furans and some PCBs. I mean, there are probably 125 different furans or 100 different furans. There's some -- there's a wide divergence of the toxicity.of some of them. I believe yesterday we talked about one furan which was named chlorinated diphenylene oxide ? Yes . Do you have an opinion as on an order of magnitude how much more toxic chlorinated diphenylene oxide is than polychlorinated biphenyls ? Well, it depends on - MR. BAUER: Go ahead. Dr. Kelly. It depends on where the chlorines are. It would vary depending on the structural Martin & Associates (409) 762-2222 WATER PCB-SD0000031411 4 32 1 2 Q. 3 4 5 A. 6 Q. 7 8 9 10 11 A. 12 Q. 13 14 15 16 17 A 18 19 20 21 22 23 24 25 formulation of the chlorines. (By Mr. Kim) Can we agree, at least for general purposes, that it would be more toxic than PCBs ? Generally I would say "yes." Can we agree that if -- if a manufacturer knew of the presence of furans as a contaminant in its PCB product, it should also warn about the presence of furans on the labels and product literature? No . So if Monsanto knew that its PCB dielectric fluids may be contaminated with trace amounts of furans in 1956, it is your testimony that it would not be necessary to warn about the presence of such on the warnings and labels? Not if you knew the toxicity of the entire product. We knew the entire toxicity of the product. Our safe handling data and cautionary statements reflected the toxicity of the PCBs with whatever furans were in there, if there were any at all in there. In 1956 we had no knowledge that there were any. We couldn't look for them. We couldn't look that low. Martin & Associates (409) 762-2222 WATER PCB-SD0000031412 433 1 Q. Could you measure these furans to 1 part per 2 million? 3 A . No, sir. 4 Q. When did Mr. Elmer Wheeler come to Monsanto, 5 if you recall? 6 A. I think '47. Around that. '47, '48. 7 Q. Did you hire him? 8 A. Yes . 9 Q. And he worked under your direction -- 10 A . Yes . 11 Q. 12 A . -- in the medical department? Yes, he did. 13 Q. Doctor, do you recall a Dr. Louis Spolyar? 14 A . Spolyar? 15 Q. 16 A . Spolyar. Yes . 17 Q. Of industrial -- at Indiana? 18 A . Yes . 19 MR. KIM: These are different. 20 MS. WELDON: 17 is what you want . 2 1 Sorry. 22 Q. 23 (By Mr. Kim) Let me show you what we'll mark as your Deposition Exhibit No. 42. 24 25 (An instrument was marked Kelly Martin & Associates (409) 762-2222 WATER PCB-SD0000031413 434 1 Exhibit No. 42 for identification.) 2 3 MR. BAUER: May I see it first, 4 please ? 5 MR. KIM: Sure. 6 A. Yes, sir. 7 Q. (By Mr. Kim) That is at least your name and 8 title at the bottom of the page? 9 A. Yes, this is my letter. 10 Q. You wrote it? 11 A. Yes. I recognize by the secretary's 12 initials, Rose Guio. She was my secretary at 13 that time. 14 Q. Is this a copy? 15 A. Beg pardon? 16 Q. Is this a copy of that letter, a file copy? 17 A. I don't know whether -- where it came from. 18 I mean, this appears to be the letter I 19 wrote. 20 Q. My question is: Would it have had Monsanto 2 1 letterhead when you sent it? 22 A. Oh, yes, when it went out. 23 Q. Yes. 24 A. Certainly it would be on Monsanto stationery. 25 Q. And I'm just curious as to the absence of any Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031414 4 35 1 designation of Monsanto Chemical Company in 2 the letterhead. Was there a practice where 3 the copies would not have such designation? 4 MR. BAUER: In the carbon copy 5 days, we're talking? 6 A. Yes. Carbon copy days, when we had carbon 7 copies. 8 Q. (By Mr. Kim) But there is no doubt in your 9 mind that this went out on Monsanto - 10 A. Oh, no question about it. 11 Q. -- letterhead? 12 A. I said it. It went out on Monsanto 13 stationery. 14 Q. Do you have a recollection of why you 15 responded -- or sent this letter to 16 Dr. Spolyar in February of 1950? 17 A. Yes. 18 Q. And what is that? 19 A. Somebody must have asked me to send him 20 information. 2 1 Q. You did not voluntarily just send him this 22 letter? It was in response to a request? 23 A. I don't believe I voluntarily, out of the 24 blue, sent him this letter, no. 25 Q. At that point in time, as noted by the last Martin & Associates (409) 762-2222 WATER PCB-SD0000031415 4 36 1 sentence of the second paragraph, you 2 suspected the possibility existed that 3 Aroclor fumes might cause liver damage; is 4 that correct? 5 A. Not cause liver damage? 6 Q. Might have caused liver damage. 7 A. Oh, "might have." Yes, certainly. 8 Q. In what concentrations? 9 A. I don't think that was documented at that 10 time when we didn't know what concentration 11 it was, but at elevated temperatures. 12 Q. Over how long a period of time? 13 A. Depends on how elevated the concentration 14 was . 15 Q. You would believe that -- you would agree 16 with me that those are two considerations 17 that are important in determining the 18 toxicity of exposure to PCBs? 19 A. Or the hazard of it. 20 Q. Or the hazard of it. 2 1 A. Right. 22 Q. Did you in subsequent letters follow up with 23 Dr. Spolyar as you gained new information 24 about length of exposure and rate of 25 exposure? Martin & Associates (409) 762-2222 WATER PCB-SD0000031416 4 37 2 3 4 5 6 7 8 9 10 11 12 Q. 13 14 15 16 A. 17 18 19 20 Q 21 A 22 23 24 Q 25 A He wrote it up in a journal, and I was never able to -- I saw the reprint. It was, like, in the Indiana State Medical Association Journal; and I saw it. But he did not have documented -- documentation as to how elevated the concentration was. But I don't have -- I don't ever know what happened to that memorandum, and I was -- I mean, that reprint. And I was never able to find it in the Index Medicus. But it was -- I thought it was a few days, but that's a supposition. Okay. In this case, did you have any question as to whether the Brazil plant in Indiana, which is what he's referencing to, was actually using Aroclor products? No, I don't think so. I thought it was; but it was as a heat exchange, not as a -- we've been talking about transformer fluids all along. Sure . This is no relationship. It's Pyranol rather than Iner -- it's Thermanol, rather, than Inerteen or Pyranol. But it's still a PCB. That was used at elevated temperatures? Yes . Martin & Associates (409) 762-2222 WATER PCB-SD0000031417 438 1 Q. Dr. Spolyar responded to you, did he not? 2 A. Yes. I don't have the -- I don't know if I 3 remember the correspondence. I may have seen 4 it . 5 Q. Let me show it to you. 6 A. I'm sure I've seen it, but -- but I don't 7 recall -- 8 Q. Can you identify - 9 A. -- when I've seen it last. 10 Q. Can you identify what we'll mark as your 11 Deposition Exhibit No. 43? 12 13 (An instrument was marked Kelly 14 Exhibit No. 43 for identification.) 15 16 Q. (By Mr. Kim) Do you recall receiving that 17 letter? 18 A. Yes, I do. 19 Q. Can you identify it? 20 A. It's a letter from Dr. Louis Spolyar, 2 1 director of department of industrial hygiene 22 of the State of Indiana, sent to me at 23 Monsanto Company on February the 28th, 1950. 24 Q. In 1950 Dr. Spolyar indicated to you that 25 with respect to the Aroclor used at the Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031418 4 39 1 Brazil plant, "The chief complaints were 2 irritation of the upper respiratory tract 3 plus possible liver damage," did he not? 4 A. Yes. 5 Q. Did Monsanto reformulate its warnings and 6 labels to address such issues? 7 A. If they had followed the warnings that we 8 had -- cautionary statements we had on the 9 label, they would not have been having it. 10 Or in our bulletins we certainly warned about 11 leaks and hydraulic fluids, fluid 12 applications. Here they had most pipes were 13 leaking. We did not put on, "Don't use in 14 pipes that are leaking," if that's what you 15 mean . 16 Q. Monsanto did not indicate that, "If you fail 17 to follow our instructions, you may have 18 irritation of the upper respiratory tract 19 plus possible liver damage"? 20 MR. BAUER: Objection. Vague. Are 2 1 you talking about -- well, in what format are 22 you talking about? 23 MR. KIM: We've been talking 24 about - 25 A. On the labels we did not have that. We had Martin & Associates (409) 762-2222 WATER PCB-SD0000031419 440 1 information on our sales bulletins and our 2 development bulletins about the possibilities 3 of problems that result from excessive 4 exposure. 5 Q. (By Mr. Kim) Doctor, we talked about a 6 series of tests that you ordered for Monsanto 7 while you were the medical director, 8 including those from Dr. Drinker? 9 A. Yes . 10 Q. 11 A . And that was an acute test ? No . Drinker ran four months or something. 12 Q13 It was not a chronic or lifetime test, was it? 14 A. It was according to the lights of 1936. It 15 was a chronic test. 16 Q. Was it a lifetime test? 17 A. No, it was not. They were not doing -- this 18 is probably as long a test on industrial 19 chemicals as was done by anybody in 1936. 20 Q. The next series of tests that you ordered 2 1 were by whom? 22 A. Series? We -- 23 Q. The next test you ordered. 24 A. Well, we did some acute work at Scientific 25 Associates. We did chronic inhalation work Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031420 44 1 1 at the Kettering Laboratory by Dr. Treon. 2 Q. When you say "chronic ... by Dr. Treon," what 3 is your definition of what a "chronic test" 4 is during the time period that Dr. Treon did 5 his testing? 6 A. I would say that five months would be 7 considered chronic. 8 Q. That is not - 9 A. That's what he did. 10 Q. That is not a lifetime test? 11 A. No, it isn't. 12 Q. How about the Younger Laboratories? 13 A. They were all acute. 14 Q. What other tests did you order? Industrial 15 Bio-Test? 16 A. Yes. 17 Q. And the first set that you ordered from them 18 were acute tests? 19 MR. BAUER: Object to the form. 20 A. The first set -- I don't know the time 21 frame. The first sets were either 20-day 22 dermal application or three-generation rat 23 studies. But the whole package included 24 two-year testing in dogs and rats. 25 Q. (By Mr. Kim) Two-year testing in dogs and Martin & Associates (409) 762-2222 WATER PCB-SD0000031421 4 42 1 rats during the time period that Industrial 2 Bio-Test did those tests would be considered 3 lifetime tests? 4 MR. BAUER: Object to the - 5 A. Well, no, not for dogs. 6 Q. (By Mr. Kim) How about for rats? 7 A. Pretty close to it. 8 Q. Were any monkey tests done? 9 A. Not before 1974. 10 Q. Did Monsanto ever, during the time period 11 that you were medical director, do any 12 primate testing on its own? 13 A. No . 14 Q. Afterwards? If you know. 15 A . I have not seen the reports, but anecdotally 16 I had heard that they had done some. I don't 17 know the details. 18 Q. Do you know if Monsanto ever published those 19 reports ? 20 A . I don't know. I haven't seen any reports. 21 Q. How did you -- what was the anecdotal method 22 in which you heard of them? 2 3 A. Gosh, I don't remember. 24 Q. Did Monsanto ever publish any occupational 25 studies with respect to PCB exposure of Martin & Associates (409) 762-2222 WATER PCB-SD0000031422 443 1 its -- to its workers? 2 A. You mean negative -- our negative 3 information? 4 Q. Sure. 5 A. No . 6 Q. Or positive information. 7 A. We didn't have positive information. 8 Q. Did a lady named Judith Zack work for 9 Monsanto Company during the time period that 10 you were medical director? 11 A. Yes. No. She did not. She came after I was 12 there. 13 Q. I believe Ms. Zack and -- was it Dr. Zack? 14 Was she a doctor? 15 A. Mr. -- Mrs. -- Miss -- Ms. You got it 16 right. 17 Q. Ms. Zack and Musch? 18 A. His name was on the report that I saw, but I 19 don't know where -- whether he worked for 20 Monsanto. I don't know anything about him, 2 1 Musch. 22 Q. You didn't hire either one of them? 23 A . No . 24 Q. 25 They had not begun the work they ultimately did for Monsanto during the time period that Martin & Associates (409) 762-2222 WATER PCB-SD0000031423 444 1 you were medical director? 2 A . They did not. 3 MR. BAUER: Objection. Objection. 4 Assumes facts not in evidence. 5 A. Beg pardon? 6 Q. (By Mr. Kim) Are you - 7 A. Zack did not work for Monsanto up till - 8 during the time I was medical director. I 9 don't know anything about Musch, whether he 10 ever did work for Monsanto; but he never did 11 work up till I retired from Monsanto. 12 Q. You would agree that Zack and Musch did a 13 study for Monsanto that was not published - 14 well, are you aware of a study they performed 15 on Monsanto workers? 16 A. Yes. I've seen reports of it. 17 Q. Have you reviewed it in preparation for 18 testimony in other litigation? 19 A . Yes. 20 Q. Have you reviewed it for preparation of your 2 1 testimony in this particular case? 22 A. No, I haven't. But I can review it pretty 23 fast if you want to show it to me. 24 Q. I'm going to give it to you - 25 A. Fine. Martin & Associates (409) 762-2222 WATER PCB-SD0000031424 445 1 Q. 2 3 4 A. 5 Q. 6 7 8 9 Q. 10 11 12 A. 13 Q. 14 15 16 17 A. 18 Q . 19 A. 20 21 22 23 24 25 -- to review this evening so we can talk about it a little bit tomorrow, if that's okay - It's okay with me. -- with your counsel. MR. BAUER: Well, you can certainly give it to him. How much he's -- homework he's going to do over the night is -- (By Mr. Kim) Well, if you want. I don't - I don't care if you do it or not. I mean, whatever you want to do. Doctor. Give it to me, and I'll see it. Okay. How often were meetings held involving you at Monsanto concerning the label and warnings that would be placed upon the drums or products containing PCBs? How often? (Nods head. ) Gosh, I don't remember. They weren't every week. I'll say that. But whenever new information came up or whether they were changing the type of label they were doing, whether they were going to put -- use something on a tank, in a tank car, I cannot give you how many times it was. Martin & Associates (409) 762-2222 WATER PCB-SD0000031425 446 1 Q. 2 A. 3 4 5 Q. 6 7 A. 8 9 Q. 10 11 12 A . 13 Q. 14 A . 15 16 17 18 19 20 Q 21 22 A 23 24 25 Can you tell me who Jack Garrett was? Yes. He was an industrial hygienist that was engaged by the medical department sometime, I think, around the Fifties. In the Fifties. Would he participate in those meetings concerning warnings and labels? No, sir, not that I recall specifically. I don't think he did. Did the acute testing done by Younger Laboratories indicate possible exposure to the liver? Did the acute testing -- -- implicate the liver? Well, there obviously -- there were findings in the liver. Whether these findings were due to the process that caused death -- the congestion, et cetera, in the liver -- I do not believe he did microscopic studies of the liver. And Monsanto ordered no further testing, as I understand, as to the mechanism of death? Well, the mechanism of death was that they put a sufficient amount on the skin or sufficient amount in their stomach to kill them. Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031426 447 1 Q. I understand that. 2 A. That's what we wanted to find out. 3 Q. I understand that. Doctor. What I -- what I 4 was talking about was the chemical reaction 5 or mechanism that takes place in the body 6 that ultimately causes the death. 7 A. 8 Q. 9 No, we did not . The same general results from Scientific Associates? 10 A. 11 Q. Yes. Were Scientific Associates and the Younger 12 Laboratories related in any manner? 13 A. The people were related at first. Younger 14 worked for Scientific Associates and then 15 they split up and he started his own 16 laboratory. 17 Q. And you chose to use these two laboratories, 18 did you not? 19 A. 20 Q. Yes. Did you help in the designing of the protocol 2 1 of the studies performed by either of these 22 two labs? 23 A. Well, we told them what we wanted. The 24 protocols were pretty standard for acute 25 testing. We said we wanted to get an LD^g. Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031427 448 1 Q. Did you ever tell them what result you 2 wanted? 3 A. Tell them what result? "Give me your 4 findings," yes. But we didn't tell them to 5 fake the results. Is that what you mean? 6 Q. (Nods head.) 7 A. No, we did not. 8 Q. Did anyone under your direction? 9 A. No, sir, they did not. 10 Q. Did -- why did you choose Younger Associates 11 and -- or Scientific Associates and Younger 12 Laboratories? 13 A. They were in St. Louis. It was easy to get 14 specimens down to them. They were adequate 15 enough for acute testing, and that's what we 16 used them for. 17 Q. What type of analysis did you use in choosing 18 these two laboratories? 19 MR. BAUER: Object to the form. 20 A. (A) Can they do a good job? (B) Are they 21 convenient? (C) -- 22 Q. (By Mr. Kim) Cost? 23 A. Cost is always a factor in anything. 24 Q. Did you choose -- what's the name of it? -- 25 Industrial Bio-Test? Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031428 449 1 A. 2 Q. 3 4 5 6 7 8 9 10 A. 11 12 13 14 15 16 17 18 Q. 19 20 21 22 23 24 25 Yes, I did. Did you help in the designing of the protocol with respect to those tests? MR. BAUER: Objection. Compound. Which year are we talking about? Which tests? Or are you talking about all the tests? MR. KIM: All the tests . MR. BAUER: Objection. Compound. I reviewed the protocol. These -- Industrial Bio-Test had at least three people that were toxicologists, and I relied on their expertise. I was not a toxicologist. But I knew what they were going to do, I told them the types of information we needed, and they provided a protocol to give us that information. (By Mr. Kim) Up until the time period that you ordered the Industrial Bio-Test studies, the chronic or lifetime studies by Industrial Bio-Test, was there any communications or considerations within the medical department while you were employed by Monsanto Chemical Company as to what the possible health and toxic effects of PCBs would be upon chronic Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031429 450 1 2 3 A. 4 5 Q. 6 A. 7 Q. 8 A. 9 10 11 12 13 14 15 16 17 18 19 20 21 Q. 22 23 24 A. 25 exposure? MR. BAUER: Object to the form. Was there any communication inside the Monsanto Company? (By Mr. Kim) Yes. Is that what you said? Yes, sir. The only chronic exposure we considered before we ordered the test was the information -- the material could possibly be in the food supply, in the food chain. And that was around the late Sixties, '67, '68. We did have communication as to whether or not there could be chronic exposure to small leaks, et cetera, in heat transfer and in hydraulic fluid applications. That's when we ran the Treon chronic inhalation experiments. They were not lifetime; but they were five months, 150 days, which was certainly chronic for an inhalation exposure. When did Monsanto Chemical Company ever determine how PCBs were excreted or passed through the human body? I can't answer that, when they did. I knew they did it -- Martin & Associates (409) 762-2222 WATER PCB-SD0000031430 451 1 Q. Did they do it - 2 A. -- at the time of the Bio-Test experiments. 3 Q. Which Bio-Test experiment -- or what 4 information existed that told you how PCBs 5 passed through the human body? 6 A. Well, the radioactivity tests were carried 7 out; and I don't know that I received a 8 report on that or whether that report, if it 9 ever came in, came in after -- after my 10 departure from the company. 11 Q. Do you have a recollection if that report 12 that you read indicated how long it took for 13 the PCBs to pass through the human body? 14 A. I didn't say I read a report. 15 Q. Reviewed a report? 16 A. I didn't -- I didn't see the report. I said 17 I do not know when that report came, if it 18 came at all. I do know we -- they had 19 deep-freezes full of specimens that they were 20 waiting to analyze from the radioactivity 2 1 point of view. 22 Now, what was your question? 23 Q. Okay. My question. Dr. Kelly, is: When did 24 Monsanto Chemical Company determine the 25 mechanism by which PCBs were excreted from Martin & Associates (409) 762-2222 WATER PCB-SD0000031431 452 1 the human body? 2 A. I don't know if they ever did. 3 Q. When did Monsanto Chemical Company determine 4 if PCBs were excreted from the human body at 5 all? 6 A. Well, I think they found out that studies 7 carried out by other people, it showed in the 8 9 10 11 12 13 literature that there was a falling off of the PCB levels of blood after the cessation of occupational exposure and that there was not a Same amount of accumulation in the fat -- in the fat. So those -- Monsanto did not carry out any of their own that I 14 recollect. 15 Q. Do you have a recollection of which studies 16 you referred to that Monsanto would have 17 known about that would have indicated -- 18 A. I can't hear you. Would you repeat it? 19 20 21 22 Q. Sure. Excuse me. Do you have a recollection of which studies those were that you just referred to that would indicate a diminution in the blood 23 levels? 24 A. After -- 25 MR. BAUER: Object - Martin & Associates (409) 762-2222 WATER_PCB-SD0000031432 453 1 A. -- removal from - 2 MR. BAUER; Object -- object to the 3 form. 4 Go ahead and answer. 5 A. After removal -- after the person was removed 6 from occupation? 7 Q. (By Mr. Kim) Sure. 8 A. Yes. I think there were studies in some of 9 the transformer or capacitor workers. I 10 don't know the names of the people, but 11 they're in the literature. 12 Q. Do you have a recollection if any of those 13 studies included an analysis of those workers 14 who continued to be exposed to PCBs? 15 A. I don't recall. 16 Q. Do you have any knowledge while you were 17 employed by Monsanto Chemical Company of what 18 the quality control procedure was regarding 19 the manufacturing of PCBs? 20 A. Regarding the details of the quality control, 2 1 no, I do not. 22 Q. Do you know if there were batches that were 23 sometimes rejected? 24 A. I do not know. I know there were 25 specifications for the material, but I do not Martin & Associates (409) 762-2222 WATER PCB-SD0000031433 454 1 know if any of the batches did not meet the 2 specifications. 3 Q. Do you know if there was any variances 4 allowed with respect to the specifications 5 that would have still enabled the product to 6 go out commercially? 7 A. I do not know that. 8 Q. Do you know if any preservatives were added 9 to PCBs destined to be used in electrical 10 equipment? 11 MR. BAUER: Objection. Vague. 12 A. Preservatives? 13 Q. (By Mr. Kim) Any preservatives. Any 14 chemical preservatives. 15 MR. BAUER: Objection. Vague. 16 A. I don't know what you mean by 17 "preservative." To keep it from spoiling or 18 to-- 19 Q. (By Mr. Kim) To enhance them. 20 A. A scavenger? A scavenger to -- 2 1 Q. Sure. 22 A. A preservative? 23 Q. We talked about scavengers earlier as -- I'm 24 sorry -- as a part of the PCB dielectric 25 fluid. Do you have an idea of what chemicals Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031434 4 55 1 2 A. 3 4 5 6 Q. 7 8 9 10 A. 11 Q. 12 13 14 15 A. 16 Q. 17 18 19 20 2 1 A. 22 23 24 25 or what compounds were used as scavengers? No, I don't. They were used -- they were put in -- if they were put in by Monsanto, they were put in on specifications from the major customers, GE or Westinghouse. I think I'm confused now. Doctor. I thought yesterday -- and I may be wrong -- you told me that with respect to Inerteen and - what's GE's? Pyranol. -- Pyranol -- with respect to Inerteen and Pyranol, that they were a combination of 70 percent PCBs and 30 percent trichlorobenzene. Yes, sir. And was that mixture done at the Monsanto plant, or was it done at the Westinghouse and GE plants? MR. BAUER: Objection. Lacks foundation and indefinite as to time. For some time -- I do not know how long, and I do not know the time frame -- it was done at Monsanto. Other times it was done someplace else outside of Monsanto. I don't know where it was. Martin & Associates (409) 762-2222 WATER PCB-SD0000031435 456 1 Q. 2 3 4 5 A. 6 Q. 7 A. 8 Q. 9 10 11 A . 12 Q. 13 14 15 16 17 18 A . 19 Q. 20 A . 2 1 Q. 22 23 24 25 (By Mr. Kim) Monsanto certainly knew that its PCB product was going to be used in combination with trichlorobenzene, did it not ? If it was used in a transformer, yes. That was foreseeable to Monsanto? Yes. They knew it. Did Monsanto, during the time period that it mixed the PCBs and trichlorobenzenes, utilize scavengers, as well? I don't know. Did Monsanto know -- when did Monsanto learn that Westinghouse or General Electric may have added scavenger chemicals to the mixture? MR. BAUER: Objection. Lacks foundation. I don't know. (By Mr. Kim) Do you know if they did? I don't know anything about it. We can agree that at some point in time in the 1970's, Monsanto learned that the dielectric fluids containing -- called Inerteen and Pyranol consisted of PCBs manufactured by Monsanto; is that correct? Martin & Associates (409) 762-2222 WATER PCB-SD0000031436 457 1 A. 2 Q. 3 4 A. 5 Q. 6 7 A. 8 9 10 11 12 13 Q. 14 15 16 A. 17 Q. 18 19 20 21 22 23 24 25 Yes. It also consisted of trichlorobenzene mixed with the PCBs? Yes. And also contained some scavenger chemicals, as we11? Yes. I don't know what ones it was. I don't know what Monsanto knew about it. I can't speak for the -- for Monsanto in that point of view. I don't know -- but I knew they knew that other things were in there, obviously. Not obviously, but they did. Monsanto foresaw that companies such as Westinghouse and General Electric might utilize scavengers when they mixed -- Yes. -- the compounds together? Also during this time period in the 1970's, Monsanto learned that the dielectric fluids might contain trace amounts of polychlorinated dibenzofurans. MR. BAUER: Can I hear the question back, please? (Discussion off the record.) Martin & Associates (409) 762-2222 WATER PCB-SD0000031437 458 1 (The pending question was read 2 by the court reporter.) 3 4 MR. BAUER: Object to the form. 5 A. Well, I think you'll have to be more precise 6 about the years because in 1970 the 7 information that Monsanto had was by Dr. Vos, 8 who checked for dibenzofurans in Monsanto PCB 9 and in Monsanto -- and in French PCB and 10 German PCB and maybe Italian PCB. In other 11 words, two -- two European PCBs. And they 12 found PCB -- they found furans in the 13 European PCBs but not in the Monsanto PCBs. 14 So - 15 Q. (By Mr. Kim) I'm sorry. Doctor. 16 A . So whether or not Monsanto at some later date 17 arrived at the conclusion that there were 18 PCB -- or were furans in our PCBs, I can't 19 20 Q. 21 A. 22 Q. 23 A . 24 Q. 25 tell the date when they did. Vos was in 1969; is that correct, Doctor? '70. I thought it was '70. Okay. Or '69. In any event, did you review -- MR. FEATHERSTONE: February Martin & Associates (409) 762-2222 WATER PCB-SD0000031438 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 459 of '70 is, I think, the publication date. MR. BAUER: There is more than one publication. So it - MR. FEATHERSTONE: All right. MR. BAUER: But they're in the literature. (By Mr. Kim) Doctor, in any event, you reviewed Dr. Vos' work while you were still employed at Monsanto Chemical Company? Yes . As a result of Dr. Vos' work, did you order or institute any further testing to be done to the Monsanto PCB product to see if there were, indeed, trace amounts of polychlorinated dibenzofurans into the PCB product ? I don't think I had to because I believe the analytical people ran it themselves. I was not worried about the traces, whether it was one trace or two traces, because we had tested the Monsanto product, we had tested the PCBs at intervals during the course of the manufacturing. And if there were any dibenzofurans in there, they contributed to the toxicity. So we really tested the whole Martin & Associates (409) 762-2222 WATER PCB-SD0000031439 460 1 ball of wax. 2 Q. I understand your answer. Doctor. But my 3 question was: After your review of the Vos 4 literature, did you specifically order any 5 further testing to be done to determine 6 whether the Monsanto PCB product contained 7 trace amounts of polychlorinated 8 dibenzofurans? 9 A. No, I did not. 10 Q. Did you request the analytical chemistry 11 department of Monsanto to look into this 12 issue? 13 A. No. But I knew they were. 14 Q. Have you ever seen any of the reports or 15 conclusions from the analytical chemistry 16 department with respect to this issue? 17 A. I saw no reports during my term at Monsanto 18 that showed that PCBs were present -- that 19 dibenzofurans were present in the PCBs. I 20 was told by analytical people at the time of 2 1 the '70 and '71 that, "We can't find the 22 stuff." Eventually -- I know also 23 anecdotally that after 1974 they did find 24 some trace amounts of the material. 25 Q. Had Monsanto -- strike that. Martin & Associates (409) 762-2222 WATER PCB-SD0000031440 461 1 During your tenure as the medical 2 director of Monsanto, you were responsible 3 for the toxicological review of other 4 chemicals outside of PCBs, were you not? 5 A. Yes. 6 Q. And in your tenure at Monsanto Chemical as 7 the medical director, had you run across 8 other occasions where a Monsanto product may 9 have been contaminated with a furan? 10 A. 11 12 May have been? MR. BAUER: Yeah. Object to the form, what "may have been" means. 13 Q. (By Mr. Kim) Was contaminated with a furan 14 in the absolutist of senses. 15 A. No, I don't believe I did. 16 Q. Did you ever do any review work at the Nitro 17 plant or -- 18 A. Yes. 19 Q. -- in West Virginia? 20 A. Yes. 2 1 Q. Can we agree that -- well, okay. 22 MR. KIM: What time is it? 23 MS. WELDON: It's 12:00. 24 25 MR. KIM: Let's take a break. THE VIDEOGRAPHER: We're going off Martin & Associates (409) 762-2222 WATER PCB-SD0000031441 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 4 62 the record. It's 12:00 o'clock. (A recess was taken.) THE VIDEOGRAPHER: It's 15 minutes after 12:00 o'clock, and we're back on the record. MR. KIM: Does anyone have any birthday cake? (By Mr. Kim) Doctor, I want to turn your attention now to when you first became aware of the possible environmental concerns of PCBs. Do you have a recollection of when that first was? Yes. That was either the end of 1966 or the beginning of 1967. MR. KIM: '79. (By Mr. Kim) What is your recollection of how you learned about the possibility of environmental contamination in '79? There were two Swedish individuals. I do not know their background, but they did analytical work in -- off the coast of Sweden or Norway or someplace in Scandinavia and found that PCBs were present in the -- in the Martin & Associates (409) 762-2222 WATER PCB-SD0000031442 463 1 environment in -- off the coast. They found 2 also that -- I don't know what time this was, 3 but they found that it was present in the 4 feathers of some birds. 5 Q. Did you believe that the product that they 6 had identified at that time was Aroclor? 7 A. I was not sure. 8 Q. You questioned it? 9 A. Yes. 10 Q. In what manner was the chlorinated phenol 11 being used, if you have a recollection, that 12 Jensen and Widmark found? 13 A. Chlorinated phenol? 14 Q. (Nods head.) 15 A. I don't know if he was -- 16 MR. BAUER: You mean o-l or - 17 A. I don't know if he's talking about phenol. 18 Q. (By Mr. Kim) It is my understanding -- and 19 correct me if I'm wrong -- that the first 20 work, the Swedish study that you talked 21 about, was done by two gentlemen named Jensen 22 and Widmark? 23 A. Right. 24 Q. They reported in the literature that they had 25 found traces of chlorinated diphenyls or Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031443 4 64 1 polychlorinated biphenyls in the fish and 2 wildlife; is that correct? 3 A. Yes. I don't know about fish. I know 4 certainly in the wildlife. 5 Q. Did you have an idea of how that PCB exposure 6 could have occurred? 7 MR. BAUER: Object to the form. 8 A. You mean how it got in there? 9 Q. (By Mr. Kim) Sure. 10 A. No, I don't know. I did not have an idea at 11 that time. I wasn't even sure that it was 12 PCB because I thought he was also working - 13 looking for DDT. 14 Q. And we talked yesterday about the persistence 15 of both DDT and PCB? 16 A. Yes. 17 Q. Doctor, do you know what "trichlorophenol" 18 is? 19 A. Trichlorophenol? 20 Q. Phenol. n-o-1. 21 A. Yes . 22 Q. What is it? 23 A. It's a benzene radical with an OH making it a 24 phenol and with three chlorine atoms. 25 Q. Is that any way related to a chlorinated Martin & Associates (409) 762-2222 WATER PCB-SD0000031444 465 1 2 3 4 A. 5 6 Q. 7 A. 8 Q. 9 A. 10 11 12 Q. 13 14 15 16 17 18 19 20 21 22 23 24 25 diphenyl? MR. BAUER: Objection. Vague as to what you mean "in any way related." Well, it's got chlorine. But that doesn't make it a close relation. (By Mr. Kim) Is it a PCB? No. Because it's not a biphenyl. Is it a chlorinated polyphenyl? No. It's a mono phenol. Chlorinated -- trichlorophenol is one phenol rad -- m o .1 e c u 1 g . Would a pentachlorophenol be a polychlorinated phenol? MR. BAUER: Now, wait a minute. Let's -- can you spell these? Because there's phenol, p-h-e-n-o-1, and phenyl, p-h-e-n-y-1. And I can't even tell when you're using -- the difference when you're talking. MR. KIM: I understand. Let me make this easy and hand Dr. Kelly what we'll mark as Deposition Exhibit No. 44. (An instrument was marked Kelly Exhibit No. 44 for identification.) Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031445 466 1 2 3 Q 4 5 A. 6 Q. 7 8 9 10 11 A . 12 Q. 13 14 A . 15 Q. 16 17 A . 18 Q. 19 20 A . 21 22 23 Q. 24 25 MR. KIM: -- which I believe is a letter that Dr. Kelly wrote. Counsel. (By Mr. Kim) Doctor, do you have a recollection of writing that letter? Wait till I read it, please. You betcha. MR. BAUER: What's the number. Dr. Kelly? Exhibit number. MS. WELDON: 44. THE WITNESS: 44. Yes, I have a recollection. (By Mr. Kim) It is dated December 12th, 1966 ? That's correct. And it seems to have your name for signature at the bottom? Yes . Who is Mr. D. Wood, to whom this is addressed? He was somebody in our Brussels office. I don't know if he was in research or marketing. Do you have -- do you know why you were writing him concerning -- what were you writing him about in this letter? Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031446 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 467 Whether about Aroclor -- a period -- well, I was writing him about the -- there must have been a seminar talking about polychlorinated biphenyls being discussed -- phenols being discussed in Stockholm on November the 27th. And I said we can't accept Aroclors as a synonym for polychlorinated phenols because it isn't. In essence, you were disputing whether the chemical that Jensen and Widmark had identified was, indeed, a polychlorinated biphenyl? No. Because I don't -- didn't mention Jensen and Widmark in this at all. I don't know who discussed what at the Wenner-Gren Centre in Stockholm on November the 17th. But if I was told -- or I must have seen someplace that they were discussing polychlorinated phenols. And I said, "Aroclor is not a phenol." Let me - MR. BAUER: That's with an o-l. Is that right. Dr. Kelly? MR. KIM: I think the letter that he wrote have the spellings. Martin & Associates (409) 762-2222 WATER PCB-SD0000031447 468 1 Q. (By Mr. Kim) Are there any spellings that 2 you want to change - 3 A. Are there any what? 4 Q. Are there any spellings of the chemical 5 compounds that you want to change in that 6 letter? 7 MR. BAUER: Well, let me just ask 8 the court reporter, when he says "phenol" and 9 "phenyl," are you being able to make sure -- 10 are you picking up the distinction? And 11 obviously the tape will. 12 A. No, I don't see any changes. 13 Q. 14 15 16 (By Mr. Kim) Okay. You mentioned that you didn't know -- or you were unclear as to the response or why you wrote that response. Let me show you what we'll mark as Deposition 17 Exhibit No. 45 - 18 19 (An instrument was marked Kelly 20 Exhibit No. 45 for identification.) 21 22 Q. (By Mr. Kim) -- which, I believe, is a 23 letter that was directed to Mr. Buchanan, 24 George Buchanan, of Monsanto from Mr. Wood; 25 is that correct? Martin & Associates (409) 762-2222 WATER PCB-SD0000031448 469 1 A. 2 Q. 3 A. 4 5 Q. 6 A. 7 Q. 8 9 10 11 A. 12 13 14 15 16 Q. 17 18 19 20 A. 21 22 23 24 25 Wait till I -- please. You betcha. Yes, it is a letter from Wood to Buchanan with a -- I was copied in on it. Do you recall reading it? I do now, after looking it over. And what concerns or considerations were raised by Mr. Wood in his correspondence to Mr. Buchanan on December 1st of 1966? MR. BAUER: Object to the form. The concerns were, it appeared to be in this last paragraph, the method of disposal of the material, are there any safe methods being developed for the disposal of the waste Aroc1or. (By Mr. Kim) How about the -- well, did you have any questions as a result of this letter as to the proper identification of the chemicals in the Jensen and Widmark work? Well, no, I didn't, with the exception of the postscript where he talked about the amount of Aroclor being used compared to larger amounts of pentachlorophenol and pentachlorophenate. And he stated: "Is it likely that the chlorinated phenols" - Martin & Associates (409) 762-2222 , WATER PCB-SD0000031449 470 1 that's o-l.-- "above show similar 2 chromatographic traces to the chlorinated 3 bi-phenols?" Again, I don't -- if that isn't 4 an Aroclor letter, he's -- there's a typo 5 there. It should be chlorinated biphenyls. 6 So, yes, there was concern that what are they 7 talking about. 8 Q. And that was part of the concern that you 9 addressed in your response that we looked at 10 earlier as Deposition Exhibit No. 44? 11 A. Yes . 12 Q. Okay. Doctor, turning back to Deposition 13 Exhibit No. 45, there seems to be an 14 attachment to that letter, as well. 15 A . Yes. 16 Q. Do you have a recollection - 17 A. Yes, there is an attachment. 18 Q. Do you have a recollection of reviewing that 19 attachment in December of 1966? 20 A. I don't recall this -- I have no recollection 21 this being attached. I don't connect the 22 two. I'm not sure whether I ever saw this 23 before. 24 Q. You have no recollection of ever seeing this? 25 A. I may have, but I have no definite Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031450 471 1 recollection. 2 Q. In 1966, through any source, were you made 3 aware of the fact that Jensen and Widmark 4 indicated that they had found polychlorinated 5 biphenyls in salmon and in pike in Sweden? 6 A. I remember the feathers of eagles and I 7 remember something about finding it in fish, 8 but I -- salmon is new to me. I never 9 connected salmon with that in this report -- 10 Q. Do you have a -- I'm sorry, Doctor. 11 A. -- whether this situation existed in Europe. 12 Q. Did anyone tell you or do you have a 13 recollection of learning in 1966 or '67 that 14 Jensen and Widmark thought that PCBs were 15 closely related to and equally poisonous as 16 DDT? 17 MR. BAUER: Object to the form. 18 A. I don't think Jensen ever said that, did he? 19 I didn't hear any -- I don't recall any 20 statement where Jensen equated toxicity of 21 PCB and DDT. This attachment is certainly 22 not from Jensen. It's from somebody at -- 23 Henry Strand, whoever he is. 24 Q. (By Mr. Kim) Do you recall learning from any 25 source of information during 1966 whether it Martin & Associates (409) 762-2222 WATER PCB-SD0000031451 472 1 was alleged that PCBs were broken down 2 considerably slower than DDT and gave rise to 3 damage of the liver and skin? 4A No, sir, I do not recall that. 5Q 6 If you had learned of such information - that being that polychlorinated biphenyls are 7 closely related to and equally poisonous as 8 DDT and that they are broken down 9 considerably slower than DDT, which may give 10 rise to damage of liver and skin -- would 11 that have caused you concern as the medical 12 director of Monsanto in 1966? 13 MR. BAUER: Object to the form. 14 A . If I had learned that this was positive? 15 Q. 16 A . (By Mr. Kim) Yes. If I knew this was positive in 1966, it would 17 have given me concern, yes. 18 Q. 19 If you learned of such information but were not sure as to whether it was positive or 20 not, would you have ordered or asked for 2 1 further testing to do a comparative analysis 22 between DDT and PCBs? 23 MR. BAUER: Object to the form. 24 A . I don't know which analysis -- which way? 25 Q. (By Mr. Kim) A chemical analysis. Martin & Associates (409) 762-2222 WATER PCB-SD0000031452 473 1 2 3 A. 4 5 6 Q. 7 8 A. 9 10 11 Q. 12 13 A. 14 . 15 Q. 16 17 A. 18 19 20 21 22 23 24 25 Analytical chemistry analysis, to begin with. I didn't have to order it. I knew that our people started looking for it at the -- when they found out about this. Started looking for what when they found out about what? To see what the relationship between PCBs and DDT was as far as Widmark and Jensen's work was concerned. When you say "our people," to whom are you referring? The Monsanto people in the -- both in the United Kingdom and in the United States. Did you ever review any of the results of that work? Well, I heard about it from talking to people. We had people right in St. Louis. They didn't Send me reports. But I talked to Bob Keller and Scott Tucker, and I knew they were working on this. And they said, "We haven't been able to find it." So they went over to -- eventually went over to Widmark and Jensen to find out -- to be sure for themselves what -- "How's he doing this, and Martin & Associates (409) 762-2222 WATER PCB-SD0000031453 474 1 is he really finding PCBs?" As I understand 2 it, Widmark was looking for PCBs first -- for 3 DDT first. And he found a confounding peak 4 in his chromatograph that he eventually 5 called PCBs. 6 Q. I understand, Doctor. But my question was: 7 Did Monsanto personnel do any comparative 8 analysis between PCBs and DDT? 9 MR. BAUER: Objection. Asked and 10 answered. 11 Q. (By Mr. Kim) To yourknowledge. 12 A. I do not know if they did or not. That would 13 be in the analytical department's -- 14 Q. So you have never reviewed - 15 A. -- purview. 16 Q. -- any such reports from the analytical 17 department ? 18 A. No, sir, I have not. 19 Q. Are you aware if any such reports exist? 20 A. No, I don't know whether they exist or don't 2 1 exist. 22 Q. Your letter, Deposition Exhibit No. Forty -- 23 A. My letter to Wood? 24 Q . Yes, sir. 25 A. 44? Yes, sir. Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031454 475 1 Q. 2 3 4 5 6 7 8 A. 9 Q. 10 A. 11 Q. 12 A. 13 14 15 16 17 18 19 20 21 22 23 24 25 The last sentence of the third paragraph: "Our only problem is whether or not we want to bring" up -- excuse me -- "we want to bring these facts up and have our herbicide program receive another black eye." Did I read that correctly? Second to the last sentence. Excuse me. Yes, you're reading it. But -- What other - -- that's -- Go ahead, Doctor. That's what it says. But you're picking this out of a paragraph without any reference to what I said up above. I said: "There are many chlorinated polyphenyls that can be formed during the manufacture of 2,4,5-T" - I don't know how accurate I was on that, but -- "and probably pentachloropheno1, as well." I don't know what I meant by saying: "Our only problem is whether or not we want to bring these facts up and have our herbicide program receive another black eye. This, I will have to leave to your judgment." I don't know if we were selling herbicides over in Europe or not. Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031455 476 1 Q. What other black eyes had the herbicide 2 program had? 3 A. There were -- there was chloracne occurring 4 in some instances of 2,4,5-T manufacture and 5 2,4,5-T use . 6 Q. Where was that manufactured? At the Nitro 7 plant? 8 A. Nitro. 9 Q. Were polychlorinated biphenyls used as 10 extenders in those herbicides? 11 A. No, sir. They were not used not by us. I 12 don't know if they ever were. In fact, I 13 don't think so because I think whatever minor 14 use of extenders was in household 15 applications for roaches and things like 16 that, not out in field crops. 17 Q. What other black eyes had Monsanto 18 experienced in its herbicide program? 19 A. I don't know of any other than that. 20 Probably "black eye" was not a very smart 21 statement to make. Because I don't recall 22 much publicity about it. 23 Q. In any event, you conclude in your last 24 sentence of the letter that, quote: "I admit 25 I am out of my depth here, but I think Martin & Associates (409) 762-2222 WATER PCB-SD0000031456 4 77 1 2 3 A. 4 Q. 5 6 7 8 Q. 9 10 A. 11 Q. 12 13 A. 14 Q. 15 A. 16 17 Q. 18 19 A. 20 Q. 21 A. 22 Q. 23 24 25 another compound is indicated rather than Aroclor," end quote. Is that correct? That's right. Just as with Dr. Drinker's initial reports, you questioned the initial identity of the products found by Jensen and Widmark. MR. BAUER; Object to the - (By Mr. Kim) Is that correct? MR. BAUER: Object to the form. Just as I don't think there was - (By Mr. Kim) Well, let me break this down for you. Yeah . In the - You're making a comparison that I just don't agree with. I'm going to ask you a couple simple questions, then. Fine . With respect to the Drinker study - Yes . -- when it was initially reviewed by you, you disputed whether, indeed, the chemical identified as chlorinated diphenyl was actually such? Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031457 478 1 A. That's correct. I did that. 2 Q. When the Jensen and Wood report was submitted 3 to you for your review in this case, again 4 you questioned whether the chemical or 5 product identified was, indeed, an Aroclor or 6 a polychlorinated biphenyl, did you not? 7 A. Yes, I did. 8 Q. In any event, we ultimately learned that 9 Jensen and Widmark were correct and it was 10 PCBs that they had identified? 11 A. 12 Eventually also learned that I was right on Drinker, too. You forgot that one. 13 Q. Absolutely. And eventually we also learned 14 that Monsanto sent him some Aroclor products, 15 paid for him to do a study, paid for him to 16 report it to Monsanto, and gave you a 17 favorable report, did he not? 18 A. That has no relationship. The report -- we 19 20 21 22 did not pay him to give us a favorable report. We paid him -- we engaged him to run the toxicity on a Monsanto pentachlorinated -- polychloro -- 23 Q. Take your time. 24 A. -- polychlorinated biphenyl. And we did not 25 pay him for a favorable report. Martin & Associates (409) 762-2222 WATER PCB-SD0000031458 479 1 Q. Does Monsanto have in its possession the 2 underlying raw data that was generated by 3 Dr. Drinker in preparing his special report 4 to Monsanto? 5 A. We do not. And you do not get the raw data 6 from a recognized scientist or recognized 7 laboratory. You -- 8 Q. How do we know if the data is accurate or 9 no t ? 10 MR. BAUER: Object to the form. 11 A. How do we know? You have to go by 12 reputation. You have to go by what you know 13 about the individual. You have to also know 14 whether it agrees with your clinical 15 observations of your workers. That's how we 16 know. 17 Q. (By Mr. Kim) It really doesn't matter as 18 long as you get the result you desire, does 19 it. Doctor? 20 MR. BAUER: Object to the form. 2 1 A. It isn't a question -- I wasn't - 22 MR. BAUER: Object to the -- let me 23 finish. Dr. Kelly. 24 THE WITNESS: Okay. 25 MR. BAUER: Object to the form. Martin & Associates (409) 762-2222 WATER PCB-SD0000031459 4 80 1 2 3 A. 4 5 6 7 Q. 8 9 10 11 A . 12 Q. 13 A . 14 15 16 17 Q 18 19 20 21 22 23 Q 24 25 Argumentative. Now you can go ahead. All I wanted to do was get the facts. I didn't care whether it was favorable or not. I wanted to get the facts. If the facts turned out to be favorable, that's fine. (By Mr. Kim) Was the possibility of environmental contamination one basis that you ordered the chronicity studies to be done by Industrial Bio-Test - No . -- Laboratories? It was one basis, but it was -- the main basis was that the possibility of the PCBs getting into the food chain, was the main reason. Let me show you what we'll mark as your Deposition Exhibit No. 46. (An instrument was marked Kelly Exhibit No. 46 for identification.) (By Mr. Kim) You can put those up. We're through with them. -- which, I believe, is a letter Martin & Associates (409) 762-2222 WATER PCB-SD0000031460 481 1 from a Mr. Hardy to a number of people, one 2 of which was you; is that correct? 3 A. That is correct. 4 Q. Do you recall receiving this letter sometime 5 in January of 1967? 6 A. Yes , I do. 7 Q. Did you read it then? 8 A. Yes, I did. 9 Q. In the middle of the paragraph, he notes that 10 he -- that a Mr. Richardson of Shell 11 Chemicals had spoken with the Swedish press. 12 And in any event, the conclusion in the 13 sentence states, quote: "He had already 14 found that the chlorine-containing residue 15 contained substances more stable than DDT. 16 and just as Soren Jensen reports he has 17 obtained spectrographic evidence that these 18 are very similar if not identical with 19 Aroclors," end quote. 20 A. Yes, sir. 2 1 Q. Did that cause you concern about the 22 persistence of PCBs in the environment? 23 A. Well, we knew that they were persisting in 24 the environment. We knew -- we had thought 25 that the material was nonbiodegradable and if Martin & Associates (409) 762-2222 WATER PCB-SD0000031461 4 82 1 it were discarded into a landfill, it would 2 stay there. If it was accidentally leaked 3 into a body of water, in a stream, it would 4 lie down on the bottom like a lump of coal or 5 a piece of gravel. We knew it was there. 6 Q. Okay. When did Monsanto first know it was 7 nonbiodegradable and persistent? 8 MR. BAUER: Object to the form. 9 A. I -- you've got two different questions 10 there. 11 Q. (By Mr. Kim) When did Monsanto first know 12 that it was nonbiodegradable? 13 A. I can't answer that. I don't know when. 14 Q. Well, was it before this letter? 15 A. I believe it was. I believe I believed it. 16 I don't know the reasons for my belief, but I 17 can't tell you the time frame exactly. 18 Q. Can you give me a ballpark? Was it five 19 years earlier, ten years earlier? 20 A. It wasn't ten years earlier. It was somewhat 21 earlier. I can't tell you any closer than 22 that. 23 Q. When did Monsanto Chemical Company first 24 learn that PCBs were environmentally 25 persistent? Martin & Associates (409) 762-2222 WATER PCB-SD0000031462 483 1 A. 2 Q. 3 4 A. 5 Q. 6 7 8 9 10 11 Q. 12 13 A. 14 15 16 17 18 19 20 21 A 22 23 24 25 That, I do not know. Was it prior to the Jensen and Widmark work in 1966? I do not know. The reason I'm asking these questions. Dr. Kelly, is you just told me that, "We already knew" -- meaning Monsanto -- "that it was persistent." MR. BAUER: Objection. That mischaracterizes his testimony. (By Mr. Kim) If it does, you can correct me. Doctor. I forgot. What did you say? MR. KIM: Can you read that back to him? (The pending question was read by the court reporter.) MR. BAUER: The same objection. Yes. The impression I had was that people - the people at Monsanto, as well as myself, believed that the material was persistent, was nonbiodegradable. That belief -- I cannot tell you how long that belief existed, Martin & Associates (409) 762-2222 WATER PCB-SD0000031463 4 84 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. but sometime in the Sixties we found out we were wrong in that supposition. We had a compound that was not soluble in water; and we thought that if it went into a stream or into a body of water, it would not be absorbed by the water. So that was our -- the basis for our belief. (By Mr. Kim) And we're talking about polychlorinated diphenyls? That's correct. So when you initially had this knowledge, you thought - When I initially had what? When you initially -- or Monsanto initially had this knowledge of stability, persistence, nonbiodegradability, at that point in time - initially, at least -- Monsanto did not think it was an environmental problem? That is correct. And as such, no such warnings were given? That's correct. MR. BAUER: Object to the form. (By Mr. Kim) No warnings were given with respect to the possible environmental contamination until sometime after the Jensen Martin & Associates (409) 762-2222 WATER PCB-SD0000031464 4 85 1 2 A. 3 Q. 4 A. 5 Q. 6 7 8 9 10 A. 11 12 13 Q. 14 15 16 17 18 A. 19 20 2 1 A. 22 Q. 23 24 25 and Widmark work? That is correct. Until sometime after the Riseborough work? Yes, sir. Was Mr. Papageorge employed as the head of the environmental section at the time that Monsanto had knowledge that PCBs may persist or be nonbiodegradable? MR. BAUER: Object to the form. Yes. MR. BAUER: Assumes facts not in evidence. (By Mr. Kim) Was Mr. Papageorge responsible for any analytical work with respect to environmental concerns, or would that still have fallen under your direction prior to 1966? I-- MR. BAUER: Objection. Vague and indefinite as to time. Environmental concerns? (By Mr. Kim) Doctor, we've agreed, although you can give me no time frame, that Monsanto Chemical Company knew prior to 1966 that PCBs were nonbiodegradable, stable, and had a Martin & Associates ( 409 ) 762-2222 WATER PCB-SD0000031465 4 86 1 possibility of persisting in the 2 environment. 3 MR. BAUER: Objection. That - 4 A. Yes. 5 MR. BAUER: -- mischaracterizes -- 6 A, Knew we believed that, yes. 7 Q. (By Mr. Kim) Okay. And my question is: If 8 further testing was to be done with respect 9 to that supposition, would that have been the 10 responsibility of you and the medical 11 department or of Mr. Papageorge? 12 A. Mr. Papageorge. 13 Q. Did Mr. Papageorge, to your knowledge, ever 14 direct that any environmental analytical 15 tests be run with respect to the persistence 16 of PCBs in the environment prior to the 17 Jensen and Widmark work? 18 A. Mr. Papageorge was not in that position prior 19 to the Jensen and Widmark work. He came to 20 work in 1970. 2 1 Q. Who was in that position that would have been 22 responsible? 23 A. There was - 24 MR. BAUER: Objection. Assumes 25 facts not in evidence. Martin & Associates (409) 762-2222 WATER PCB-SD0000031466 4 87 2 3 4 Q. 5 6 7 8 A. 9 Q. 10 11 A. 12 13 14 15 16 17 18 19 20 Q 21 22 23 A 24 25 There was nobody in charge of the environmental work as one individual, as far as I know. (By Mr. Kim) Under whose direction would that department have fallen under? MR. BAUER: Objection. What department? There wasn't any department. (By Mr. Kim) There was no environmental department prior to 1966? There was no definite environmental department prior to 1966. There were people in the marketing department and in the development department that might have had some input into the environment, but it was not -- the problem was not considered to be -- it was not considered to be a problem until it showed up in that it was appearing in wildlife and in some fish. And my question. Dr. Kelly, is: How did Monsanto know that that persistence and stability was not a problem environmentally? I think they knew from the type of the product, from the physical characteristics and the solubility of the product, that the Martin & Associates (409) 762-2222 WATER PCB-SD0000031467 488 1 2 3 Q. 4 A. 5 6 7 8 9 Q. 10 A . 11 12 Q. 13 14 15 A . 16 17 Q. 18 19 A . 20 Q. 21 22 23 24 25 A material was not soluble in water, it was not going to be a problem. Who ran those tests? Somebody did because certainly at Monsanto -- somebody at Monsanto ran the solubility tests because they were in our bulletin. They showed what the solubility in water was, and there were a bunch of zeros before a "1." Have you seen those tests? . I've seen the bulletins. I haven't seen the tests. During that time period, who would have been responsible for running or ordering those solubility tests? The manufacturing department of -- that manufactured PCB. Do you have a recollection, in 1965, who is the director of the manufacturing department? No, I do not. From a medical standpoint it caused you no concern that Monsanto did not know how PCBs were excreted through the human body and disposed of; is that correct? MR. BAUER: Object to the form. That it caused me no concern that PC -- that Martin & Associates (409) 762-2222 WATER PCB-SD0000031468 489 1 we didn't know how PCBs were excreted or 2 absorbed through the body? 3 Q. (By Mr. Kim) Yes, sir. 4 A. Well, no, because we did not expect 5 individuals to get PCBs. PCB was an 6 industrial chemical that was not supposed to 7 enter into the human body. If you followed 8 the cautionary information we gave, it didn't 9 get in there. So we didn't worry about the 10 excretion. 11 Q. 12 But you knew that workers and people could accidentally be exposed to PCBs? 13 A . Yes . 14 Q. 15 Okay. MR. KIM: Do you want to stop now? 16 MR. FEATHERSTONE: (Nods head.) 17 Q. 18 (By Mr. Kim) Why don't we stop for the day. Doctor. 19 A . Whatever you say. 20 Q. 21 Okay. THE VIDEOGRAPHER: We're going off 22 the record. It's 48 minutes after 12:00 23 o'clock. This is the end of Tape No . 7 . 24 25 Martin & Associates (409) 762-2222 WATER PCB-SD0000031469 1 2 3 4 5 6 7 8 9 10 11 12 13 14 3.5 16 17 18 19 20 21 22 23 24 25 490 (Whereupon the deposition of Robert Emmet Kelly, M.D., was recessed at 12:48 p.m. and is to be continued at 9:00 a.m. on February 18, 1994.) THE STATE OF /Y) { / ( COUNTY OF ST7L'o'o'/1S~ 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 D O emot/i <lAj , 1994. day of ^ ia 0 ROBERT EMMET KELLY, M.D. SUBSCRIBED AND SWORN TO BEFORE ME, this the -3d:' day of ................, 1994. Notary Public in and for the State of />? / .5'L cO U Ac1 ( My Commission Expires Job No. 94-513 -------- 3STO131-------' NOTARY PUBLIC STATE Of MISSOURI ST.LCt-O.COJMTY ' MY COMMISSI EXP. JAM. t5.1SS3 Martin & Associates (409) 762-2222 WATER PCB-SD0000031470 49 1 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 rf, . Subscribed and sworn to on this, trl day of March, 1994. 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-SD0000031471 LIST OF CHANGES OR CORRECTIONS To the Deposition, of ,_____________^ If there are any .changes or corrections, please list them below giving the page number, line number, and reason for the change. The reasons for making changes are: (1) (2) (3) To To To clarify the record: conform to the facts: correct transcription errors: 3page No. 43 ^^Line No. Reason for Change ------------------------------------------- Changed Page No. Changed C-ctJlQ 3u ius* 3 3 Line No. . . .____ <PO (YeiAJL-4_s^ 9- Reason for Change /w_ To - h<x&r n &uL, . t& Page No. $ ^1 Line No . ^ Reason for Change ' Changed /fo =---------------------------V------------f--------- ---------------------------------------- Page No, Line No. *Pq /Oi* / \ Reason for Change Changed To Page No. Line No. Reason for .Change Changed To Page No. Line No. Reason for Change Changed To Page No,;' Line No. Reason for Change . Changed To Page No. Line No. Reason for Change Changed To ... Page No. Line No. Reason for Change . Changed_____________________________________To Witness WATER_PCB-SD0000031472