Document gaYBrBKGQ7EbJZq2M00Xab0gG

1 IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS 2 ST. CLAIR COUNTY 3 FRANCES E. KEMNER, et al., > .) 4 Plaintiffs, ). ) 5 vs. > > 6 MONSANTO COMPANY, > > 7 Defendant. > NO. 8O-L-970 8 Before the HON. RICHARD P. GOLDENHERSH 9 10 11 12 REPORT OF PROCEEDINGS 13 July 24. 1985 14 15 16 APPEARANCES: 17 MR. REX CARR & MR. JERRY SEIGFRIED, Attorneys at Law On Behalf of the Plaintiffs. 18 MR. KENNETH R. HEINEMAN & MR. JOSEPH NASSIF, 19 Attorneys at Law On Behalf of the Defendant, 20 21 22 23 MARSHA SCHNIPPER Official Court Reporter 24 1 IN DEX 2 PAGE 3 DR. EDWARD ROUSH 4 Clarifioation (by Mr. Heineman) 2 5 6 7 8 9 EXHIBITS 10 Defendant fs Exhibit 921 11 Defendant *3 Exhibit 921A 12 De fendant1s Exhibit 921B 13 INTRODUCED 3 ADMITTED 3 4 14 15 16 17 18 19 20 21 22 23 24 [ \ \ I BE IT REMEMBERED A N D .CERTIFIED that heretofore, on 2 to-wits Wednesday,. July 24, 1985, being one of the regular f ' .: V 3. Judicial days of this Court /.the matlter as hereinbefore set for; 4 came on for hearing before the HON. RICHARD P. GOLDENHERSH, t 5 Circuit Judge, Twentieth Judicial Circuit, State of Illinois, i' 6 and the following was had of recordj to~wt: 7 Tf 8 THE COURT: Mr. Heineraan,.,! 9 DR. GEORGE ROUSH. 10 resuming the witness stand, having been previously sworn, 11 testified .further aS;.*follows: 12 CLARIFICATION (Continued) 13 BY MR. HEINEMANl ,' 14 Q Dr. Roush, you have ,,there/before you, sir, Plaintiffs' i IS Exhibit 1472. Do you see that, sir? 16 A Yes, sir, I *i i 17 Q And that is a computer printout, is it.not, sir? 18 A Yes, sir. i 19 Q And you and Mr. Carr went, over that at some length 20 in discussing the Susskind morbidity study, did you not, sir? j 21 A Yes, sir, ,.j 22 Q How, on the day that, he was questioning you about 23 this, Dr, Roush, Mr. Carr also provided us with a full copy, i 24 i sir, of the computer printout from which that portion was i 1 extracted t 2 MR. HEINEMAN: May I marl^this please. 3 (At this time Defendant *a Exhibit No. 921 was 4 marked for identification.) ( \ . V ; - ` t 5 Q Let me hand you, sir, what's been marked asT/ i 6 Defendant's Exhibit 921, and I would like to ask you if 7 Exhibit 1*172, two pages that comprise 1*172, appear in Exhibit, 8 Defendant's Exhibit 921. j 9 A Yes, sir. 10 Q All right. - i .| 11 MR. HEINEMAN: Your^Honor* I know that it's -- it's 12 not the defendant's case yet, but I would, if Mr. Carr has 13 no objection, I tvould like to offer Defendant's Exhibit 921 14 into evidence at this time even though it's not our case yet. 15 THE COURT: Mr. Carrv, do yo u have any objection r 16 to that? 17 MR. CARR: I'd have Uo see, it first, your Honor. 18 THE COURT; Sure. Vjfould y o u show it to Mr. Carr i 19 please. 20 MR. HEINEMAN: Sure.,, j *1 21 MR. CARR: I have not objection. 22 THE COURT: Pine. Then by agreement Defendant's 921 23 is admitted. j 24 MR. HEINEMAN: Thank you,.rj Now, your Honor, since 1 it:fa in evidence, would it;be\ali right'with the Court if I t' >- k \ /-'r ' . \ ' 2 pass copies to the jury? 3 THE COURT: ' Sur:; \ J- ` / 4 MR. CARR: X didn't ,check it all carefully, counsel. 5 I assume y o u 're representing that it is a copy of that which 6 I gave you? 7 'MR. HEINEMAN :' Certainly.. 8 MR. CARR: Fine* , . 9 (Exhibit passed to the Jury.) 10 (Defendant's Exhibit^ 921A and 921B marked for 11 identification.) *' 12 Q Dr. Roush, lt^rae hand you what's been marked as 13 Defendant's Exhibit 921A, and would you tell me if that is 14 a duplicate of the seventh page of Exhibit 921? 15 A Yes, sir. 16 Q And I'd like to hand, you next what's been marked 17 D e f e n d a n t ' E x h i b i t 921B-- 18 MR. CARR: Do you have copies for us, Counsel? 19 MR. HEINEMAN : Certainly 20 Q -- and I'd like to %sk yqu, sir, if that is a 21 duplicate of the ninth page of Exhibit 921? 22 A Yes, sir. ^ 23 MR. HEINEMAN: Your .Honor,, with the Court's permission 24 I'd like to pass copies of Exhibits 92IA and B to the Jury as 1 well 2 THE COURT: Fine. 3Jhey'i;e part of an admitted 3 Exhibit. Go right ahead. , 4 (Copies of exhibits^passed to the Jury.) 5 Q Now# Dr. Roush# do you remember when Mr. Carr was 6 questioning you with respect to Plaintiffs1 Exhibit 1472, 7 he pointed out, sir, did he not, a couple of Instances in which 8 the printout on 1472 would say yes to skin cancer history 9 and no to cancer history; do you remember that, sir? 10 A Yes, sir. II Q And you see that, for example, in 1472 in the very 12 first entry for Mr. Crites, do you not? 13 A Yes, sir. 14 Q And on the first line there there's a -- of the 15 printout, what is the reference, what does it say for skin 16 cancer history? How does it refer to it? 17 A For Crites it abbreviates^ skin cancer history equals 18 yes. 19 Q , Nov/, what is the abbreviation, sir? 20 A It's S-X -- I'm accepting this as X know -- it's 21 S-K stands for skin and C-A stands for cancer, and H-I-S-T 22 is for history. 23 Q All right. And then, equals yes, correct? 24 A Yes. 1 Q And the next one is ,,cancer history* and how is 2 that abbreviated? 3 A C-A-N-C, probably meaning cancer, and H-I-S-T for 4 history * 5 Q' All right Now, you and,Mr Carr discussed whether 6 that represented some sort of mistake by Dr Susskind. Do you 7 remember that? 8 A Yes, sir 9 Q And that there was some sort of obvious inconsistency 10 there, how could one have yes for skin cancer history, and yet 11 no -- 12 MR, CARR: I object, your Honor. Counsel is now 13 testifying. 14 THE COURT: Objection sustained. I t 's ordered 15 stricken. Please refrain from leading questions. 16 Q Do you recall your examination by Mr. Carr, do you 17 sir? 18 A Yes, sir. 19 Q Now, let me direct your attention to Exhibit, 20 Defendant's Exhibit 921A, You see that, sir? 21 A Yes, sir. 22 Q You see item -- you see the left hand column there 23 they have a,number for each line? 24 A Yes, sir 1 Q Look at Line No.l;f you .see that? 2 A Yes, sir. T 3 Q And it says value, no, yes. You see that, sir? 4 A Yes, sir. 5 Q Zero equals no; doesA it say that? 6 A Yes, sir. ,, 7 Q One equals yes? 8 A Yes, sir.. ^,, 9 Q A period equals miss? 10 A Yes, sir. w 11 Q Eight. Now, do you Jcnow,r sir, whether these are 12 instructions to the computer, this is programming for the 13 computer? 14 A Yes, sir. IS Q . Now, let me direct your attention to the -- well, 16 it would be to Exhibit 921B, Defendant's Exhibit 921B. 17 A Yes, sir. t 18 Q Look at the top line, on that,.number 107, do you 19 see that? 20 A Yes, sir. 21 Q Line 107. It stays, does it not, sir, if syrapt -- 22 would that mean symptom? 23 A X presume so. ij 24 Q If sympt equals S00245 then S-K-C-A-H-I-S-T equals on 1 A Yes, sir. 2 Q -- does it not? , 3 A Yes, sir. 4 Q We just saw S-K-H -- S-K-C-A-H-I-S-T standing 5 for? 6 A Skin oancer history.,. 7 Q All right. One we just saw on the previous exhibit 8 stands for? . 9 A Yes . 10 Q Yes, All right. Sq . if there*s a symptom with a 11 number, then skin cancer history is yes? 12 A Yes, sir. ,, > 13 Q Right? Now look at Line 112 on Exhibit 921B* 14 A Yes, sir, IS Q It says if symptom equals S00030 or symptom equals 16 S00280 or symptom equals S00059 then CANCHIST equals 1? 17 A Yes, sir. 18 Q Correct? Now, we*ve^ seen CANCHIST before on 19 Exhibit 1472, have we not, sir? 20 A Yes, sir. 21 Q For cancer history? v We know that one equals yes 22 from the previous exhibit you just looked at, correct? 23 A Yes, sir. . ,* * ` i 24 Q So that is the' computer being told here, sir-- 1 MR. CARR: Objection, your Honor. 2 THE COURT: Objection, sustained. 3 Q What is the computer, being told here, sir'* in this 4 Line 112, sir? 5 A In Line 112 I don't Jcnov; what those symptoms are, 6 we?d have to find out, but someplace it tells you what S00030 7 and the rest of those symptoms are, it identifies them with a 8 specific symptom, and if they have any one of those three 9 'symptoms, then the cancer history is yes. 10 Q All right. Nov;, for, the .skin cancer history to be 11 yes what does 107 say the symptom has to be? 12 A Well, there's only qne symptom that is equal, that 13 says if you have this, then you've got skin cancer history, 14 and that's S-double Gr245. IS Q All right. Is S-doqble 0-2^5 listed among the 16 symptoms that give a yes for cancer history? 17 A No, sir. ^, t 18 Q So is -- according to the computer programming, sir, 19 is skin cancer history.even included among the things that 20 would give rise to; a,positive answer on cancer history? 21 A No, sir. ; 22 Q So by the very' programming of the computer you 23 could have a yes for skin, cancer history and a no for 24 cancer history, correct? 1 A Yes, sir 2 Q Novi, sir, when Mr. Carr was going through Exhibit 3 1472 with you, did you tell him that you didn*t Know where 4 those two entries came from, skin cancer history and cancer 5 history? 6 A Yes, sir. 7 Q Why did you tell him that.? 8 A I had talked to Vicky Hertzberg after we had 9 received this, and asked her about this, and she didn't 10 recognize those two identifiers. 11 Q Now, Vicky Hertzberg -- yesterday, sir, you 12 mentioned the fact that in 1982 there was a change in what 13 Dr. Susskind was doing to develop the data from his morbidity 14 study, correct? 15 A Yes, sir. 16 Q What was it that Vicky Hertzberg did in 1982? 17 A She took over the.computer program for the morbidity ' ,i ' 18 study of Susskind. * . 19 Q Is she a computer operator, 3ir? 20 A I fm not sure what her^background is, but she's 21 a biostatistician or a.computer, one of the two, computer 22 expert. 23 Q And to your knowledge, sir, did she develop the 24 computerization plan for the data that was submitted, gathered 1 by Dr. Susskind in the Nitro morbidity study? 2 A Yes# air. >u 3 Q And she never saw ortshe.didn't know or was not 4 familiar with those two -- 5 MR* CARR:. Object to. the pleading form of the 6 question, if it please the Court* 7 THE COURT! Objection sustained* 8 Q Did she know what those two entries were, skin 9 cancer history and cancer history? 10 A No, sir. r. 11 Q Is it possible, sir,, that, thetapeproduced.by Dr. 12 Susskind would be re-programmed by someone else? 13 MR. CARR; Your Honor I ,,object to that. That 14 calls for speculation on the part of the witness. 15 THE COURT; Objection sustained. 16 Q Well, you don'tlknow!, sir-- ' 1 -r ' i 17 MR. CARR: Object, to that, leading form of the 18 question. ' 19 THE COURT: Objection sustained. 20 ' Q Do you know, sir, one way or therother? 21 A No, sir. 22 Q Do you know \iho.t happened to Dr. Susskind's tape? 23 A It was -- I'm not sure whether it's called subpoenaed 24 but -- ] MR. CARR: Object unless .he first states the source 2 of his knowledge. 3 MR, HEINEMAN: fourTHonor, X think Mr, Carr showed 4 him an exhibit, 5 THE COURT: Not as- far as* what the actual tape is 6 ' concerned, 7 MR. CARR: It might Jbe hearsay, .Counsel, in which 8 case X might want to' object. 9 THE COURT: I think,you l^ave to show the source of ` 10 the knowledge. Objection is sustained, so lay your foundation 11 before you get into the substance of your question please. 12 MR. HEINEMAN: X fm looking for the exhibit number, 13 your Honor. : 14 THE COURT: ;Sure, Go ahe,,ad. / , , 15 MR. HEINEMAN: I thought .there was an exhibit, a ,,- f t" 16 plaintiffs' exhibit showing that Dr,,Susskind sent the tape 17 to somebody,.and I want,to find that. * VL ? i 18 . MR. CARR: There was a plaintiffs' exhibit, 1469 19 is the exhibit, 20 MR* HEINEMAN; Yeah* 146ft. Thank you. 21 Q Let me show you, sir;, what's been marked as 22 Plaintiffs' Exhibit 1469. 23 A Yes,m sir. - 24 Q That was shown you by Mr* Carr, was it, sir? 1 A' Yes, sir. 2 Q And is that document, in evidence, your Honor? 3 MR. CARR: It is. It*a been offered and admitted , r? 4 over your objection. 5 MR. HEINEMAN: All right.. 6 THE COURT: Okay. , 7 Q Mow, what does this ,,document say, sir -- well, first 8 of all, who is the author of it? 9 A Dr. Raymond Suss kind,. 10 Q And who was it, who Vs the recipient? 11 A Mr. Charles Dove of ;the Bowles, McDavid, Qraft, . 12 and Love-- * . 1r 1 ,- 13 Q Law firm? 14 A Lawrfirm. , 15 Q Located where? 16 A Charleston, West Virginia. 17 Q And what is the connection, if any, between Mr. 18 Love and Monsanto Company? 19 A Mr. Love was the attorney who ran the defense of 20 Monsanto in the Nitro lawsuit. 21 / -> Q All right. Now, what doe.s this document say, sir, 22 with respect to Dr. Susskind's tape? 23 A It says that "I am submitting to you at the Court*s 24 request for transmission two tapes of^the computer files on 14 '1 r' 2; * r4l8 participants whose;records have been programmed for compute analysis'V; - .. . r"-/ .3 > 4v 5. / Q. Where d o e s 'it; say tjaaty^lr? ' A , * L;-' Q'' in the'second paragraph *,L ' ', It says -- **>' ' ^ * ^T ^ * , '_= */*. :V ; - / - . ,,`/ V ' , .t j - F; . 6 TO. CARR:' Object to the .leading form,of the \ '7 ' question. He said exactlyJwhat-it said already , your Honor, '8 ;v ;THE COURTS Obj ect Iq p sustained * '*'\ v . .9 10 11 12 13 14 / r ,J .Q ^ " K ',A . *. /, Q , Do you know, sir, t % whom it was to be transmitted? * -. J,*? * - m ; Bir.:r .i >\ . A-.,' ;.*'>, :.f ^ 'v ^-/V j; 'J ' /; ' , *. rl.i '' * 'i *. . . A t 'any -rat e, was it tat the Court's request? .. \ .21; *> Yes, sir,, / r-r * - rx1-*, ,, , :' IM 4 * L, *J.!..> r . - . N . i J'vV - ,',,*** . `i\ - - * v' ' 1r t * + nJ r /. *i+ 1 ^ Q ;,,, r-Apd did Mr, Carr -during' your questioning tell y o u '' '- " ( _ * ',J . " \r ' J /t" * . .s* *" * 5 \* .iV* J $ ' 1 i' jx' f ' /p t -V,`- p - f ` ' 1f V ;r.that ;this; is h o w ;he received t h e :tape? ^ 15 ; A i ,,Yos# sir. '" ^ 'v . ; 16 Q ''But-Mr*. Carr was no % the ,,plaintiffs' attorney in 17* / the Hitrp lawsuit, was he, sir? '" ; , `. 18' A. ' No^ sir, ^ ; V`;J . \ ^ ^ 19 ' , ,, Qz k Now,;\Mr. Carrr;-^ ; . t, 'r;V-v \ 20 .MR; CARR: Counsel, l^are. you `suggesting, is .there 1 21 an inference there that:my possession of these tapes ls"improp<er? 22 ; -MR.'.HEINEtlAHV No, sJ^r, `H,, ' i[ -J.\ / 23 \MR. CARR: Because:the record and the Jury should ' '.-24: .know that this material was produced to ps by you, the same FGNGAO C ,O 1 material was produced to us by you by order of this Court 2 and not the Court in West Virginia. 3 HR. HEINBMAN: Yes, jsir, that is exactly right. 4 This Court -- this Court ordered them to be produced, and 5 the very same materials. 6 MR. CARR: That's e^actly^ right. 7 THE COURT: That's qprrect. 8 Q Now, Doctor, with"respect to this Exhibit 1*169, 9 did Mr. Carr ask you, sir, why there was a difference between 10 the total number of people^who responded to Dr. Susskind and 11 the number actually studied? 12 A Yes. ' , ; \ J' 13 Q Do you recall that? ? 14 A Yes. IS Q Does this letter fro:m D r v Susskind offer an 16 explanation for that? 17 A Y e s , . j 18 Q Arid what does it say,, sii^? 19 A It says "not included in .the tapes are data on 18 20 subjects, five black males, one male of hispanic descent, 21 one male of American Indian descent, ten white females, and 22 one white male who had accidentally been exposed as a child. 23 Q Go ahead, sir. 24 A They were not included in the computer program data i :! ' 1 analysis beoause the numbers of each of these categories were 2 too small for epidemiologic comparisons All the examination 3 data, however5 on each of these 18 subjects are Included in 4 the 436 hard copy records 5 Q All right. Now# does that address the difference 6 between -- if they?re included .in the 436, sir, hard copy 7 records-- "' 1 r 8 A Yes, sir. ,, .v` 9 Q All right.' Does that address the difference between 10 the 450 and the 436? r 7 * 11 A No, sir. 12 Q No,sir? All right. ,, Now,, Dr. Roush, Mr. Carr 13 asked you about people in the Nitro studies who had been -- 14 who had either retired or terminated their employment prior 15 to 1955* do you remember that? 16 A Yes, sir. ,, 17 Q And he suggested to ^you, did he not, when he 18 questioned you that these people had been exposed to 2,4,5-T 19 and TCP production for some maybe 20 or 30 years? 20 A Yes, sir. ,, 21 Q And that these people may have been the sickest of 2 2 , all because of those 20 or 30 years that would correspond to 23 a latency period for cancer? . 24 A Yes, sir. I Q When did production ,of 2,4,5-T begin at Nitro, 2 West Virginia? 3 A Shortly before the accident. It was within a year 4 or two.after start-up that they had-the accident. 5 Q And .was that the same time when TCP production 6 began? 7 A Yes, sir. -j `- 8 Q Was the accident in .19*J9 in an autoclave in a pilot 9 plant? 10 A No, sir. 11 Q Now, would it be possible, sir -- 12 MR. CARR: Object, ypur Honor, it calls for 13 speculation. 14 THE COURT: Objection is sustained. 15 MR. HEINEMAN: I think it calls for arithmetic, 16 your Honor, 17 THE COURT: Could yqu rephrase the question please. 18 Q If the production began in 19*18-- 19 A Yes, sir. 20 Q -- and someone was germinated employment-- 21 MR, CARR: Objection, There's no evidence that 22 production began in 19*i8 . 23 THE COURT:. Objection sustained. 24 MR. HEINEMAN:. It was a year or two before^the 1 autoclave Incident. 2 MR. CARRs, He didn't say ja year or two. He said r- 3 two years. * ^ ` \ , A " 4 MR. HEINEMAN: No, ir,, he said a year or two. - v '1 ,, 1 5 THE COURT:- My notes/indi.cate he said one or two 6 years. You may proceed, on that basis. There is no evidence 7 of 19^8 , per se. ** 8 Q All right.' If it began, sir, one or two years 9 before the autoclave eruption in 19^9 , would it be possible 10 for someone to have been exposed to it for 20 or 30 years-- 11 A No, sir. t 12 Q -- before a termination of employment in 19 -- - 13 before '55? 14 A No, sir. 15 Q Now, when Dr. Susskind, before he undertook the 16 Nitro morbidity study, by that I mean, before he actually 17 went down and began the examinations, did he have any kind of 18 a meeting at Nitro? 19 A Before he began his .examinations he appeared before 20 the work force and described for them what he was planning to 21 do and It was like old home week with him knowing some of the 22 people that, he had examined in the early 5 0 fls, so what he was 23' doing is to describe what he was going to do and why he was 24 going to do it. ] Q To whom, to the entire work .force? 2 A Yes, they were all. Invited. ,,h J V1 ** f 3 Q The attendees, were tjhe1people that were going to 4 participate in the examinations? 5 A I think so, but I'm^not sure that they were the 6 same. 7 Q Not sure they all came? 8 A Right, right, 9 Q Were some of the people there, some of the same 10 people that he had examined back in 19^9 and 1950? 11 A Yes, sir, 12 Q Did they recognise one another? 13 A' They sure (Ud. 14 Q Now, after the study was completed, sir, did Dr. 15 Susskind have a meeting at Nitro?- 16 A ` Yes, sir, 17 Q And approximately when did that occur? 18 A Within a year or twot after the study was completed. 19 Q All right. And whom did he meet with on that 20 occasion? 21 A The work force again, and what he did this time-- 22 Q At Nitro? 23 A Yes, sir. 24 Q All right 1 A And this time he "gave them a series of slide 2 presentations of the tables that he used in that, bound report* 3 Q .So he went and did he report the results? 4 A Yes* ,, 5 Q Did he tell them the; conclusions he had come to? 6 A Ye3 , sir. 7 Q And did he tell theiq why? 8 A Based on the tables .that he had shown them* 9 Q Did Dr. Moses have a meeting of that kind, do you 10 know? n A I d o n 't know. 12 Q Don't know whether she did or not? 13 A Mo, sir. ',, 14 Q Her study, did her study involve the Nitro work 15 force? 16 A Yes, sir. 17 Q Dr. Roush, if I can^direct your attention to Exhibit 18 1472, Plaintiffs' Exhibit 1472, the first entry there is for 19 whom again, sir? 20 A It's for number 8 , and it's listed there as Crites. 21 Q Okay. Mr. Crites' name is written in there? 22 A Eight. 23 Q And in connection with the 921A and B, sir, is Mr. 24 Crites listed there as having symptom 245? 1 A Yes ; .; 2 Q And skin cancer history, ,,therefore, is listed as yes? 3 A Yes,:sir. 4 Q -Does Mr. Crites have symptom 30, symptom 280 or 5 symptom 59? 6 A What was the-- 7 Q I 'm sorry, 30, 280, 5:9* 8 A Wo, sir. 9 Q So then theL cancer history would be no? 10 A rYes. 11 Q wow,,'.sir, when Mr. Carr went over with you the 12 records which are contained there in Plaintiffs' Exhibit 1468-- 13 A Yes, sir. 14 Q These are the records that we talked about yesterday 15 of the Witro, of some of the Nitro workers? ' 16 A Yes, sir. 17 Q In the Nitro morbidity study? 18 A Yes, sir. . .J 19 Q Plaintiffs' Exhibit ^1468, had you ever seen those 20 before he showed them to you? 21 A No, sir. 22 Q And you went through them that day with Mr. Carr, 23 did you not? 24 A Yes, sir 1 Q And he pointed out to you or did he point out to you 2 specific places that you should look? 3 A Yes, sir. - . 4 Q -- in the records? 5 A Yes, sir. 6 Q And to report partic.lar information out of the 7 records? 8 A Yes, sir. 9 Q Now, since that timetf, six?, have you had an opportunit IO to review all those records and read them? li A Yes, sir. 12 Q All right. I'd like to discuss with you now that 13 you've had an opportunity to do that, these 27 or 28 cancers. 14 A Yes, sir. T 15 Q All right. Now, first of all, we have Mr. Willard 16 Crites, do we not, sir? 17 A Yes, sir. 18 Q He's the first one o/v the list? 19 A Yes, sir. 20 Q And Mr. Crites' I.D.fi No. 8 there, you got it there? 21 A Yes, sir. 22 Q Okay. Now, let's discuss. Mr. Crites' skin cancer. 23 Would you tell us what the record shows with respect to Mr. 24 Willard Crites? 1 A On Page 15 it states,, "have you ever been told by a 2 doctor you have any kind of cancer", and he said "yes." 3 And then if yes, what kind of canoer, and he specified that 4 he had skin cancer. 5 Q Umhii So he told the interviewer yes? 6 A Yes, sir. 7 Q And what doeB the physician or the dermatologist 8 report indicate, 3ir? 9 A On the history the dermatologist says that he had 10 a rash over 90 percent of his body that had been treated with 11 penicillin and x-ray, and he had a skin cancer taken off of 12 his neck one year ago. 13 Q All right. And did the physician use the term 14 skin cancer? 15 A Yes, air. 16 Q All right. Now, what docs that mean, insofar as 17 y o u 're concerned in reviewing those records as to whether or 18 not Willard Crites indeed has a skin cancer? 19 A There's another part,, physical examination by-- 20 Q All right, sir, 21 A In addition to recording vthis as his own history 22 and telling when it took place and where it was, more specific, 23 it also says that he had,an area of basal cell epitheliomas, 24 which means he -had other skin cancers on hi3 -- it doesn't say 1 that I can read where it is, but he had others apparently 2 in -- associated with this other lesion he had on his neck 3 Q How, sir, what is the relationship between the 4 physical examination that the dermatologist or the physician 5 can perform and the report -- and a report from the person 6 himself with respect to skin cancer? 7 A The patient or the worker in this case had gone 8 to a doctor, vie don't understand how he went there, but he 9 went to a doctor, and the doctor had taken a lump, a raised 10 area off of his back, and he was told that he had a skin cancer, 11 both by the medical records as well as by the physician asking 12 the question* Nov/, the interesting thing and the important 13 thing is not only did he have that lesion, that skin cancer, 14 but he had areas of other ones that would substantiate it IS In other words, the fact that he had these makes it .fit 16 together very well* 17 Q Well, let's assume, sir, for example, that he -- 18 he or another one of the people contained in those records 19 would report to the interviewer that he had skin cancer or 20 someone had told him he had skin cancer-- 21 A Yes, sir. ' - . ( 22 ,r M ' -t .. Q Would there be any way 'fpr the physician to make a 23 determination in the examination in this study, in the physical * 1\ * f j, 1 . , ,< j 24 examination in this study, as to whether or not that was accurai 1 A When the man has a lump or bump or mass taken off 2 of his skin, quite often those are not analysed histologically 3 The only thing that the dermatologist has to do is to make 4 sure he gets it off, and he may burn it off, he may freeze it 5 off, or he may cut off, and any one is equally satisfactory, 6 and the reason they d o n 't get histology on these is that is 7 costs more money, and it really doesn't make any difference 8 whether you do it or not anyway, so the data regarding skin 9 cancers by history is not good, because It may well just be 10 a preoancerous lesion or it may not be a cancer at all, but 11 i t 's best to take it off# 12 Q When you say examine, histologically, what do you 13 mean? 14 A If you want to find ,,out whether he had a cancer, 15 y o u 've got to take that lesion and put it in alcohol and 16 fix it and send it to-the hospital or someplace where the 17 pathology group-;will cut it up after fixing it, and mounting 18 it on a slide, stain it, and read it and then say, y3 , he did 19 or did not have cancer ^ v " 20 Q Examine under a microscope?' 21 A T h a t 's right#1 ' 4< - ^ 22 Q -- to see. Wow, why, is it, sir, that the mere 23 recitation by the person, of -- 'to the'interviewer that he 24 did or did not have a skin cancer is not as good as the physics 1 examination portion to check that out? 2 A Well, he could have ,had a mass taken off. It may 3 or may not have been a cancer, because it was never examined 4 histologically, it ha d n 't been gone through that pathological 5 study. The physician, because people are exposed to sun 6 radiation, develop a characteristic raising up of the skin, 7 we call it keratosis, which Is scaling and raising up of 8 the skin, that those are called precancerous lesions, and 9 sometimes they take them off without them being cancer. So 10 if h e 's got one-as described here, he also had others that 11 were there as'well. 12 Q Novx, so i3.it -- -is.it possible to determine in the 13 physical examination portion by the dermatologist whether or 14 not a person's memory or characterisation of whether or not he IS had a skin cancer is accurate? 16 A It can be evaluated jj(and confirmed or questioned or 17 denied. 18 Q In the course of a physical examination? 19 A T h a t 's . r i g h t , `*A 1 * 20 Q And how can they do ^that? 21 A Because of the' precancerous lesions that are usually 22 always associated with these lesions. 23 Q So they can actually look at the skin? 24 A Right. . 1 Q -- and tell if there's been anything'like that? 2 A Eight. This i3 a classical one where they found 3 basal cell epitheliomas present. 4 Q So with Willard Crimes there was yes* there was yes 5 in what he told the interviewer* and the doctor confirmed yes? 6 A Yes* sir. 7 Q So where does that lead you with respect to whether 8 or not Willard Crites in fact has a skin cancer or did have? 9 A He did have a skin cancer. We're still left with 10 the question whether it was, whether he was exposed or not. 11 Q All right. Now, what does the record tell you 12 with respect to his exposure? 13 A That he had working ,,with .2,4,5-T as an operator foi* 14 just over a year. 15 Q All .right. JSo does ,that .indicate to you whether or i J * `J+ * ,,, J 16 not he was exposed? ' ** J 17 A Yes, sir, he was exposed. ; 18 Q Okay. Now, let's take Edward Miller. What does 19 r* k * 1 iL the record tell you with respect,to whether or not he has 20 a bladder cancer or had one? 21 A The worker himself sjtated that yes, he had a cancer, 22 and it was.-- he called'it a bladder cancer, 23 Q Okay. Interview was, yes ,for a bladder cancer? 24 A Yes, sir. 1 Q All right. V7hat about the doctor? 2 A On his history he st.ated .that he had had surgery 3 for cancer of the bladder in 1976, and at best I can read it, 4 and there's a problem with these because they're not clear, 5 I think it says, and he was started on chemotherapy. 6 Q Okay; So what does ^-- the doctor states that he 7 had a bladder cancer removed, right? He uses the term cancer? 8 A Yes, sir; ,,,, 9 Q All right; And -- .. 10 A In the final -- then these are summarized usually 11 at the endi There was an abnormal findings and physical 12 examinations are recorded, and it's so poorly written, i t 's 13 so faint I oan't read what was there, but there's a lot that 14 had been written here that I can't evaluate; 15 Q In other, words, because ojE* the copying? 16 A Yes;, ' ^ . 17 Q Okay. Now, ,what doets the record tell you about 18 his exposure? *1 i- >' 19 A He was a maintenance worker and had been working 20 all through the plant * 21 Q Does that indicate t,hat he w,as exposed? 22 A I d on't know* Could have been; 23 Q Question exposure? , 24 A Yes, sir. I'd call it questionable, but it may well 1 have been 2 Q Possible? 3 A Yes, sir; 4 Q Now, what about -- 5 MR. CARR: He worked in Building *11 in 19*19. That's 6 where they were leaking 2,4,5-T. How can there possibly be 7 a question about that? You surely know the number of the build: 8 THE WITNESS!: Yes* -sir* ^you're right. 9 MR, CARR: Yes, 10 THE WITNESS: You're, right. 11 Q So question -- so nq. question? 12 A That ?s right,no question, 13 Q All right. Now, what about John Hein, sir? What dot 14 the record indie at e^with respect, to John Hein having bowel IS cancer? ",, 16 A He had a cancer, and he said that it was a bowel 17 cancer, the worker did. 18 Q To whom? 19 A To the questioner, the interviewer. 20 Q The interviewer. Interview was yes for bowel, is 21 that right? 22 A Yes, sir. 23 Q What did the doctor .have to say? 24 A The doctor in his history said that he had a colon 1 tumor In 197^* 2 Q So the doctor <said tumor?. '3 A Y e s ... 4 Q What does that indicate to you with respect to 5 .whether or not Mr- Hein had a bowel cancer? 6 A At that -- based on (his history he w a s n 't sure whethei 7 he had a cancer or not. 8 Q Did the doctor say that the tumor was removed? 9 A Yes, he had two midline scars, one for gallbladder 10 and apparently the other one for .the colon tumor* hv / \ 't %1 " r 11 Q For a tumor? 12 A Yes* _ `, . 13 Q Now, is it frequent vpr dp people have benign tumors 14 removed? > 15 A Yes, sir 16 Q All right- And the .doctor characterized it as a 17 tumor and not a cancer? 18 A Yes, sir. 19 Q All Sight* What does that tell you with respect 20 to whether or not John Hein has In fact a bowel cancer that 21 should be Included? 22 A I have to leave it a,s a question. It may have been 23 a cancer, but the definition wa s n 't clear enough for him to 24 decide PC NGAE> CO. BAYONNE, N.J. 07002 FORM 1L "Os .. ' .1- r `^ J- 1 ./ 'Q P o r -whom to decide? ; > a 2 'L' ^ . A Por th physician whjo had done this. .As a m a t t e r 3 /of fact, then on the summary sheet, they again list.the ti ' 1 '. 3* , 4 findings ori the man on history, and it says again that he had 1" \ _ !jy ^f F. ' t 5 cecum t u m o r ,in 19 -- X c a n 't read it -- hut he. did have, he 6 was operated on. for a tumor. .Whether it w as.a cancer or not 7 he c o u l d n 't, say. `J ". \ ,,8 Q ' All r i g h t s N o w , , !what about'Edward Me -- oh, I 'm f ,, ,. *1 'f J,'iF < ,- - ,' / / - - v / v r c :< . . 9- sorry, what *about exposure, sir?* 10 11 . 12 A . Q He was:-exposed. -- . :r < 4 ; / / *j; fc--' ; k \ v s. 'V/as `exposed. What about .Edward MeDade, sir? A. \ The 'workman' told the, interviewer that he had a 13 . cancer,'and he had a skin c a n c e r . / 14 ; 15 Q What did the doctor ,say?/ '* * r1 A In the past -several, jrears h a s required removal of - several skin tumors. 3Oho., 17' ;Q The doctor in this .occasion said skiri,tumor? 3- / UzJ |0- , d V2OJ_ 18. 19 . 20 * 21, / A -Q Yes. / , - t: - ,, i. " .Whereas up here;the jloctor said skin cncer?. ' A Yes, sir.' And on physical findings he. described ; that he had actinic changes on his face, neck/ and arms, and 22 he had multiple, rough scaly hyperkeratotiC'patches oh the. 23 ' face, neck,r and ears. -'That's i t . ' 24 .V >' `, ' , - ' '*, Q Okay. What does that, indicate, sir? > , 3.1 1 A Then vie have to go back and see if they have 2 anything more on their summary. On the summary on this man 3 they di d n 't list any evidence that he had a cancer, and on 4 his diagnoses they still didn't list cancer, but they described 5 the effect.of sunlight on his skin, 6 Q All right. And-was he exposed or not exposed? 7 A Yes, sir.' ' :^ ' J 8 Q All right. H o w ,about Harry Reynolds? 9 THE COURT: B e f o r e '^e get. into Mr. Reynolds is 10 this a good point for a short break? 11 MR. HEINEMAN: That^will be fine, Judge. 12 THE COURT: Okay* Radies and gentlemen, w q '11 13 take a short break at this time. I would remind you, and 14 this goes for any other breaks we take during the day, that IS y o u 're not to discuss this matter among yourselves or with 16 anyone outside the jury panel or as of yet form any opinions 17 or conclusions about the matters on trial. Court's in a 18 short recess. 19 (At this time a short reqess was taken.) 20 D R a GEORGE ROUSH,. 21 resuming the witness stand, having been previously sworn, 22 testified further as follows: 23 CLARIFiqATIOJi (Continued) 24 BY MR. HEINEMAN: 1 ' Q Dr,, weaver Just starting, on Harry Reynolds, 2 A iir Yesr sir. fV - , .. %* ' - 1' y-i r v <, 3 Q --- just before the hreak^/What was said in the 4 interview with respect.to^Harry/Reynolds? - 5 A He .described-that h e had ,:a bladder cancer; 6 Q .All right, sir.'/And what did the doctor have to ' - *t1 1",- i ( ,/, *\, !c\' /*.L1 `V l 'tj/f f . ' - "I 7 say? L.T -r -- >. - 1 - 1 , 8 A* . History j,was 'much more^compiete. It said he had -9 15 to 20' years repeated cystopic examinations, and he had a , 10 transurethral resection ,12 .years ago* and he was hospitalized 11 Where a cystecotomy was'done for..a bladder cancer. 12 - fi1in addition _ to thatT**. there's t a note,tha.t he had , 13 been exposed to a paramedial biphenol that's known to be a 14 carcinogen,for>the bladder* `' 15 Q So the doctor's report does demonstrate a bladder 16 cancer?- /, . 17 A,, 'Yes, sir. And then vin the summary'the doctor again 1' - ' r ^ is writes, down bladder cancer, PAB exposure and subsequent , L ? 19 partial cystectomy. ' . ; 1 ; ' - *, 20 Q 'All right. Nov/, what does .the record -- pardon me,. 21 let-me strike'that again. 'What ^does 'the record demonstrate ' 22 ;with respect to.his exposure, 3ir? 23 A The report from Cincinnati was that he was not 24 exposed, and in iny going through the record I couldn't see that 1 >he was' exposed either; /' : 2 - Q All right,. sir>,, What, about Edward Vo la, sir?-' , . 'r, ` > ' ;`H ' y * '' .V\, , 3 . A Mr* Volz described ..that'he: had a papilloma,' grade" 4 /one, which.-he called^ in the history,fhe. says, have you ever - L ; V'- Jy |\ : '' ' ` " i ,V % > ,v- .5 been told you have^any type of caricerj he said,1 yes, as 6 specified, and specified- ,wast bladder* . , . >-'t- 'I 4 .'i*j '% ' * r> i 7 Q I 'm not sur<^ I 'm understanding, sir. /.In the 8 i n t erview`there's a yes for bladder? . ( ,9 v ' a - . Yes, t ^ . '' ' .' < . , l> 10 Q And in the interview what does it say" about skin 11 cancer? .^ . ' r; 12 A - On history it says by the physician a benign bladder 13 tumor was removed, in 19.51* And then on the summary `sheet 14 they summarize, and he has 11 different problems -by history, 15 and one of them was benign bladder tumor in 1951* * 1 - . 16 Q -f So .the answer to,-cancer as to the bladder by the 17 doctor would be no? ' - - - ,1 J, 18 A Would be benign* - Behlgh means he di d n 't, have a 19 .cancer. - '- 20 - Q Okay. Whatvabout on the skin cancer -.sir, for the 21 interview and the doctor? r ^ ^ j j-, \ 22 A On the interview skin cancer is not listed, and on - 23 physical examination hejdid.have a basal cell cancer on the 24 right/side on the back'of his chest, posterior thorax we call I it, and there vra's .no* abnormalities on the skin associated with :2 it, although-he>did-have the same ^actinic relations or the L' 1' - ' ' '' .r 1 J*ri XJi" * -- 4 ' * it.M w , I< J/ ' .'i.'-ft.`J ` .r* > it. -i * L 4 ' 3 sun effect on the skin, which Would'be' a basic problem w e 're 4 talking about, problemshe/had;'" -*.v i; <- ' ^ :rf \JrK, '` f ~r * c^ i ` i. 5 -- ` . .Q So the'-doctor by -- - vis that -- .. J 6, Mitl. CARR: -Object to. the pleading form of the 7 question. ' *, : / , *r 8 THE COURT: .Objection sustained. ,9 /' / Q , I 'm not sure I understand, Doctor, with respecttto 10 '( X1 / t h e doctor's- statement on the basal cell cancer. -, is that 11 -by history or by.-- v/' * 12 - . A Yes, sir. ,' j 13 V Q- L -S examinatiToV -n*V?1 -`f A '*M 1, ^ ,, f ( 14 A. By history, and he could-not confirm it on the 1 5 physical examination and the summary, but he did list o n his* 16 diagnosis is that benign tumor of the bladder a n d 1the basal 17 cell carpinoma o f -the back. 18 V Q .-And that would.be the skin? 19 A Right, he just confirms, it and summarizes it. 20 Q All'right, Movr, vhow/about Harry Honaker, sir?* 21 Oh, I forgot to ask you about. Mr. Volz, was he* exposed, sir? 22 Did the record indicate .exposure? , ,j 1 r r 1* \. 23 A Yes, sir. On history Mr. Honaker told the interview^ 24 that yes, he had a cancer, and he listed leukemia and he listei ,' - -, 1 * .A. ',. * J' -i` - **V v,,, ^r **1 ilr-f. ',l ' 1 1 .'* r ` - ** ^r* V* _r r, ''1 ->. .. t. * .( - **, p 't i j - ' r , - ,, .- " j 1 * 1 ' , , * : / v - ; i '' . '. . - ` ( 'v ; '* '. *r ' . 1 as well prostate.; ' 2 l\ ,' q Okay -.What -did,the ,,physician -say? > + ' Jf* < ^J*Tv% : -f*j,>i-^'-. ^ V 1 3 j A He described by history a cancer of the prostate* 4 On examination the prostate, was still enlarged, so then he '5 conf; ' irmed it' that he had .aiv pr ,ostate, cancer? and his 1b l o o d 6 count was markedly elevated so it was quite consistent with 7 fact that he had leukemia r '' 1 1 8 All right. How about exposure, sir? 9 , " : f* H-me was exposed. i \ " . 10 ' Q H o w about John Selby,? ' 1 s* m- ' j - 11 'A M r v Selby b n his history-- `, " j -* r * ... ? T 12 \ ^ Q Excuse me, was t h a t ;the interview o r 1-- . 13 ' '' A 1.4 \'Q Ye3. , On the interview? ^V '/ - j. . 15 . A ' Right. Stated that he had a skin cancer. * - J"" - ` J "^ * - - f,K. 1 r \ i,,tJ H fJ ^1 16 \ Q . All,right. ' Doctor,-.what did the doctor have to say? 17 * A He writes down on history, skin cancer* question 18 .mark, and it was behind-his left ear that was removed by 19 -surgery in 1963- -i ' , r, ,, * r * *1 20 Q So the doctor'puts a question mark beside skin 21 cancer? 22 . A Right. ' J'r : ' ; ` . ; > / - -_ ?j1' -, _ _.V 23 - q And was -- w h a t 'does^the record reflect with respect 24 to exposure, sir, or i s 'there more bn the medical record with f J * , 1 1 ir i 1 respect to the skin cancer sir?' 2, A rI.-really. cari/V-read the. summary on this form, 3 because1i t 's so faint, .so he may have said something, there - 4 ' that would have helped me, but-in his summary he did not 5 list skin cancer. L %' u- 6: Q In the summary, he .diyd `not? ' ,- ' JJ i ^ " r-h'> ^ , ' "- 7 A flight. He didn't l i j 3 t i t a s one of the diagnoses. 8 Q All right. -/ * . ,t - . '9 r , i.A So it's a question qf skin cancer. ' . ' - 10 Q And we have, it with question mark, .do we not, 11 - sir? - '-? ; . 12 ^ A - Bight.' -,, 13 Q What about the^expqqure, what does the. record , 14 indicate with respect to that, sir? 1 15 A That's Mr, Selby. He was exposed. - 16 0 All right, sir.? How about Lowell West? ? ? 17 A . On history it lists him as having had, a .cancer, 18 and it goes-further to. state it is of the skin,'and he had had 19 .it twice. There's some notation below that description that 20 ' I c a n 't read, so there's^ other information that's not availabl 21 to" me. , . 22 Q ' ,, As you read ;that-- 23 A Th a t 's right.,// 24 Q this copy.? '. ,, * J i , f `; r ; t f, " v . ' i ` / - ; i , ' '' ' - , A " Th a t 's right. - . r : ; .Q ,r- that you have there?. :^ `! A There was more available to Susskind .than there is to me. ` _Q` What do you mean, there's more available?. A ' He could read that note there that X c a n 't read. Q - X see. What does the physician say about Mr. West? ' A ' He describe? ,'him as having chloracne and nothing .else.' ^ ' 1\ r .* - Q So the physician does, not mention a .skin cancer? r' - ' .* ' v i* ^ r 1 A , ,Wo-, sir. Arid Selby'was exposed. / '. Q ' The mention of'chloracne, sir, was that in the . physical e'x-a*mination*?. "xt ^ > ^j ' '. e .i J. *'^ > A :Wait a minute. 'That was-West we were talking about, w a s n 't it7 ` Q ' Xes. - - ' .... * ' . A .He was exposed as well. - v ' f J . ' J' r -Q .The chloracne, /sir, rwas that mentioned in the physical,'examination'or in the history that tlie,pdoctor-took? A . This was the doctor'^. Q /I understand i t 's the,dpctor, but I 'm saying the doctor did a history and a physical, correct? ' J- ., i ( ri' f' A Yes, 'yes. That was by .history, , /' Q - History *. \n. '. j;. of * i ch -- l ojr- -t ; i ac ri n e ? <r\. i i^ \ ,' ts '. ,* j '.' . . J ..'-vv't; :v < , '. 1i.1i. i \\-4: '..% i . r- > 'Jv rr - 1 A --Yes/and' he didn't -- he did hot observe; it. 2 Q All, right. 'jUo observation .in the physical of ,. 3 chloracne? ^ j . . - ` 4 A ;r Eight. ; r, 5 .Q And nothing, mentioned ,at all by the doctor about 6 !skin cancer?' ^ ;1 * 7 A Right. v' v ; ` f, -' 8' Q' Now, what about Keitjti Hill, sir? _ 9 A. ,0n history'-Mr. Hill .stated that he-Ldid1 hot have canc 10 ` ;and there' is `a. notation /of two related' to that v 'and I can't H tell'what/that .means. . :t '` 12 Q .Now,..on the interview -- pardon me -.- bn the,- 13 interview he denied aancer, is that what you said? 14 .A ..Yes, ` IS - Q And there's a notation of what, I didn't catch that? 16 A - With the no, there's,, a two beside it, and only thing 17 ' I can think, is he said no-to two. kinds of cancer, but I'm 18 not sure of~that. That's ;, 19 Q All right.' JWhat did the doctor have to say, sir? -1 ` ' 4 f 20 A ' The doctor said he had a mole on his-back-that he ** ^- `' 21 , was told was malignantv-;' _.'r 22 Q .-'All right.' Anything, else? h ,,L , ^\ ' <T 23 A ' The history ;byV:the physician recorded that he had '. .r r. / .. j/i'i,j* j\ -y .:/'/ .v.. . /;/J( , - 24 a benign bladder neck tumor that was surgically treated with J 1 no recurrence 2 Q So the doctor said what about the mole, was that 3 by history? 4 A Benign yes. 5 Q There was a-- 6 A Benign bladder tumor* 7 Q What about the mole, sir? 8 A By history that was malignant. 9 Q All right. But with respect to the bladder neck 10 tumor, it was benign? 11 A Right 12 Q Clarence Matheny, sir. Oh, I 'm sorry, there is one 13 thing I forgot to ask you. Was Keith Hill exposed according 14 to the record that you have, sir? 15 A Yes, he was exposed*. 16 Q Clarence Matheny, what about the interview? 17 A When he was asked if he had a cancer, it was ye3, 18 and it's listed as bowel cancer. 19 Q What did the doctor have to say? 20 A He had cancer -- on history he had a cancer of colon 21 after his surgery for some kind of an umbilical something. 22 Q You can*t read--23 A Wo, I can't read It, but on the summary It says 24 by history had a colon cancer and his summary says ulcer-like 1 pain and that's when he had pain and they went and examined 2 why he had pain, and he had a colon cancer that was diagnosed 3 and this operation was done in 1970, hut this all comes from 4 the physical, his physician's examination. 5 Q And how about exposure, sir, what do the records 6 indicate with respect to exposure? 7 A Exposed. 8 Q And Roy Woodall? 9 A He had -- history is that he does have a cancer, 10 and that It was a skin cancer. 11 Q And what did the physician have to say? 12 A He said he had three basal cell cancers on his face 13 and chest* That was by history. And he had the scars on his 14 face that apparently resulted from them being taken off. 15 Q And the physician specifically used the term 16 skin cancer? 17 A Yes ,, 18 Q All right. What does the -- 19 A And i n .the summary agairi they repeat th i s but this 20 is a summary, of all the physical findings. He said he had a 21 history of basal cell carcinoma*C 22 Q In addition to that,, he had actinic damage to the * . . 'i 23 skin that would be consistent with that diagnosis. 24 Q Basal cell carcinoma? 1 A Yes, sir. 2 Q And how about exposure, sir? 3 A He was exposed. 4 Q The records indicate he was exposed? 5 A Yes, sir. 6 Q How about June Martin, sir? 7 A On history it lists that he had a cancer, and it 8 was a cancer of the bladder. 9 Q Th a t 's in the interview, sir? 10 A Yes, sir. 11 Q All right. 12 A And the physician in his history said he had a 13 cancer of the bladder removed in 1976 with no recurrence. 14 Q And the physician used the term cancer? 15 A Yes, sir. 16 Q And what about the summary, sir? 17 A The summary Just confirms that. 18 Q All right. And what do the records indicate with 19 respect to exposure, sir? 20 A This is Matheny? 21 Q Ho, June Martin,sir; 22 A Exposed. 23 Q How, Prank West. 24 A By history to the interviewer he had a cancer, and 1 it was a skin cancer, and the physician in his history lists 2 him as having a skin cancer on his right hand and forehead 3 years ago* 4 Q And the physician used the term cancer? 5 A Yes, and he also had the same problem of solar 6 elastosis with telangiectasias on the face and forearm* 7 Q What's a telang -- Twhat was that again? 8 A Dilatation of the blood vessels* 9 Q Okay* What's the term again? 10 A Telangiectasias* ,r 11 Q Okay* And what do the records indicate with 12 respect to exposure, sir? 13 A Exposed* 14 Q On Frank W e s t IS A Exposed*,. > ^ 16 Q Exposed* The next> .sir, is James McOinn. 17 A Mr. McOinn .said he 3*4 have a cancer, .and he had , r * J - * j r " * l * ' ' " 'i 18 skin cancer, and he states also that he had It three times* 19 Q All right* And the .doctor? 20 A The doctor said by history that he has skin cancer 21 treated, and he also had solar effects or sun effects* He 22 had both:a change .in the elastic tissue of the skin as well 23 as keratosis* That's a premalignant condition* And on the 24 final summary the doctor lists him as having a basal cell I carcinoma of the right temple that was biopsied, he saw It 2 there 3 Q So that's not by history, that's examined? 4 A That's right. 5 Q Did Dr; Susskind in his report have a table for 6 present existing cancers, sir, or was there some mention 7 made of that? 8 A X don't think so. There is a later chart. That 9 could be. But he did have a skin cancer. 10 Q So there are -- yes, here we are. If you look at 11 Plaintiffs' Exhibit 1*167, sir, which is the Susskind-Hertaberg 12 report, is there a table there listing physical findings of 13 that kind? *' .'' ~ . 14 A Yes, sir. IS Q All right . 16 A And what it lists is significant clinical findings, 17 and he found in this case basal cell epithelioma. And McGinn 18 was exposed, 19 Q All right. How with respect to Thomas Waldorf, sir; 20 A To the interviewer the workman said he had a cancer, 21 and the cancer was skin, and he goes further to say he had it 22 on his nose. 23 Q All tight. What did the physician have to say, 24 Dr. Roush? 1 A I can't read the history and on the physical 2 examination it doesn't look like he says he has a cancer, 3 Q There is no mention ,of it in what you can read? 4 A No, I c a n 't read it., And on the findings, I can't -- 5 I can't read it. And he was exposed* 6 Q Exposed? Now, with respect to Charles Dunn, sir, 7 A By history he had a through the interviewer he 8 had a skin cancer, and on the history by the physician he 9 states that he had a previous skin cancer and he had solar 10 elastosls of his face, and there's no summary by the physician 11 regarding that lesion./ - 12 Q All right. What do ..the'records indicate with 13 respect to exposure, sir? .. r 14 A Exposed. McClanahan? IS Q Yes, William^oClanahan,, sir. 16 A Mr. McClanahan stated that he has never had a cancer. 17 Q What did the physician -- 18 A The physician states in his history that a skin 19 cancer had been taken off of his forehead. And on his 20 examination he stated that he had the same skin changes, the 21 actinic keratosis, but he also had what he thought were skin 22 cancers, so t h a t 's another one that diagnosis would go in the 23 other part. 24 Q What do you mean by .that, sir? 1 A Well, that goes in the other diagnosis. 2 Q Oh, I 'm sorry. It was a finding? 3 A Right. 4 Q Okay. So it went in the other table that you 5 referred to before? 6 A Yes, sir. Yes, sir.. 7 Q James Lewis, sir. 8 A And what -- th way he lists -- 9 Q . I 'm sorry. 10 A -- in his -- on the diagnosis he lists solar effects 9 11 actlnio keratosis and epithelioma that he had listed there. < , *J 12 T h e y 're both, h e 's saying are solareffects. T h a t 's McClana 13 Q I 'm sorry. I forgot to,ask you whether McClanahan 14 was exposed. 15 A Yes. 16 Q I 'm sorry, did you say yes? 17 A Yes. 18 Q Oh, okay. 19 A Next is Lewis? 20 Q Yes, sir. 21 A The workman told the interviewer that he had a 22 mole removed' from his shoulder the previous December that was 23 malignant. The physician in his history stated he had a 24 malignant mole removed in December of '73 with excision of mus I and nodes and they were found, the nodes were found -- were 2 not involved with the cancer. And again he had the solar 3 elastosis. And in the diagnosis he lists malignant melanoma 4 excised. In addition, though, he includes two basal cell 5 cancers on his back, which goes on the other form. 6 Q In other words, that's something that he actually 7 found at the time? 8 A Right. 9 ,Q All right. What about any bowel cancer with Mr. 10 Lewis 7 11 A I'm sorry. He had not listed anything on history 12 about bowel. 13 MR. CARR: Are you looking at the same one I'm 14 looking at, Doctor? 15 THE WITNESS: 325? 16 MR. CARR: 375. 17 THE WITNESS: Mine is marked over, so I couldn't 18 read it. That's 375 instead of 325. I'm sorry. 19 Q Yes, there's another Lewis, isn't there or is there? 20 A This is 375, and that'sJ -- that's right here. 21 Q All right. 375 James Lewis. 22 A Yes, sir. 23 Q Now, let's -24 A James Lewis. On -- rHe reported to the interviewer 1 that ha had a cancer, and it was a bowel cancer, 2 Q So this doctor -- the information that we put down 3 for Jamas Lewis before you were reading from a different form? 4 A Yes. 5 Q So it's not James Lewis's? 6 *A Right, I was reading from 325. 7 Q From 325? 8 A 324. / . : 9 Q Okay. Let's start over again with Jame3 Lewis. ' , * * 1n 1 10 A All right. n ' Q Are the names -- are the names on these records, 12 sir? 13 A Once in a while, sometimes. 14 Q Okay. 15 A James Lewis by history had listed that he.had a 16 bowel cancer, and by the physician's history he described a 17 skin cancer of his left cheek treated with x-ray, and he also 18 he elastosis with a two millimeter papule on his nose. 19 Q Now, what did Mr. Lewis say in the interview about 20 skin cancer? 21 A Nothing. 22 Q The doctor, sir, mentioned skin cancer? 23 A Yes, sir. 24 Q What did the doctor say about bowel cancer? 1 A He had a colon resection in 19 -- and I eanrt read 2 what It Is, the second digit Is not clear -- and he on exam 3 ination he had a colostomy, which means that he had a rasectic 4 and with some repair ana a prosthesis put in 5 Q Is there any mention of cancer by the physician? 6 A In 19 so and so for .cancer, that was a colon cancer, 7 and 1 was unable to read the summary. 8 Q All right. What does the record indicate with respe 9 to exposure? 10 A Not exposed. 11 Q Not exposed? No, I have trouble again between 325 12 and 375. 375 is exposed. 13 Q All right, sir. How about Roy Rogers? 14 A By history he denied that he had a cancer, and the 15 physician recorded in history recurrent skin cancer, surgery 16 performed twice on his nose, nine times on his baok, one time 17 on his right hand, and three times on the back of his left 18 ear, and once in his right front of his arm right at the brea 19 Q You mean at the inside of the elbow? 20 A Yes, yes. But he has recurrent skin cancer and 21 multiple, and on examination he Just had the hyperkeratosis, 22 but no other lesions. 23 Q All right. What does the record indicate with 24 respect to exposure? 50 1 A Not exposed. - . ! ,/ 2- Q ^Now, Curtis Postletrrrlothink'that1s thwaite, i s n ft. , i/i rv'-i " ^'*V '' *r O'i t'* '' .- 1'S W 3 . lt? . *'; " :* *' " - * ' 4 A Postlewaitey ,1 think. . ... . ; / , j-t __ *j( ir** ^ *\ i4 4 9* 5 ^ Q How ddv-you spell"'it?" > 6 A' 1\Just have the'.-spelling that was on the exhibit. 7 Q - ,'P-o-S-Th-E-T-H-W-I-T-E. And in his interview, sir? 8 L A The workman told the interviewer that he had a canoe: 9 v on,his forehead, that means of his skin. - 10 - Q .vUmhm. And what did the physician report? 1 ^ 11 A J Physician made no record of it. He described solar 12 J el&atosis, on his face, neck, and forearms, and that'fs it. 13' Q No mention by the physician? 1 if. " 14 'A. No, sir. . r *, - 1 15 , .Q -- o f a skin cancer? , -r 16 A No, sir. And in the summary he made no mention 17 of there being a cancer problem.' *v 18 ' Q And what about; what1does the record indicate . 19 with respect to exposure, sir? ' 20 A Exposed. ,/ ; 21 Q . Homer Scarberryy sir* ,/ r* ,,, 1t -r ' 22 A Mr; Scarberry'describes having a tumor of his lung 23 and of his bowel. 24 Q -'He used the terra'-- ./ * J i *' _ ' ;, 1 A He had a c a n c e r 1 2 Q Was the term tumor or cancer used? 3 A No, he had a cancer > y history. 4 Q Cancer of which, sir;?. 5 A Of the lung and of the bowel. 6 Q All right, sir. What was reported by the physician? 7 A That he had a thoracotomy in 1972, and a tumor 8 was removed, and the same year he had a tumor of the colon 9 that was removed. 10 Q The physician referred to them as tumors? 11 A Yes. 12 Q And what -- what does the record indicate with 13 respect to exposure, sir? 14 A Exposed. IS Q And the last one on plaintiffs1 Exhibit 1473C is 16 Chester Gorrell. 17 A Mr. Gorrell told the interviewer that he had a skin 18 cancer, and on -- but the history by the physician he again 19 state d he had a skin cancer, and he again had actinic 20 reaction of the slcin. 21 Q What does the record reflect with respect to 22 exposure, sir? 23 A Not exposed. 24 Q Now, sir, if you look at Plaintiffs' Exhibit 1^3 -- 1 I'm sorry* 1*1730, there are-asterisks besides the names listed K,r 1 i 2 there, are there not, air?. < , t= <t> i * I t , ' - i 4 3 A Yes, sir. 4 Q Arid a single asterisk means that each of those 5 persons was ommltted from Table 1, correct? 6 A Yes, sir. 7 . Q That's whatthisIndicates? 8 A Yes, sir. 9 Q And a doubleasterisk means that they were ommltted 10 from Table 1 and placed in the unexposed group, correct? 11 A Yes, sir. 12 Q Now, here is Table 1, i3 it not, Plaintiffs' 13 Exhibit 1*171? 14 A Yes, sir, 15 Q Does it identify by name any of thepeople who are 16 Included in It? 17 A Ho, sir. 18 Q Do you know any way In which to determine from 19 the records that you have, before you how one can know whether 20 or not these Individuals were ommltted from Table 1? 21 A Ho, sir. 22 Q Now, based uponthe.examination ofthe records 23 that you have done, air, and looking at Table 1 with respect 24 to those who are exposed, not exposed, and the occurrence 1 within those groups of/kin cancer and cancer of all sites, 2 sir* would? you -- I'd l i k t o ask you with respect to each 3 one of these people v/hether you, based upon your review, 4 would include them in Table 1. 5 ' A . Yes sir. 6 . Q . All right, sir?, Mov, with respect to Willard1 7 Grites. t. 8 A Ha had a skin cancer, and he was exposed,' and 1 , 9 would put. him in Table 1 as --- not Table 1, but Table 1 10 exposed. We*re talking about the first column. II . Q j ''N o w '*-- ;.* yes, sir. What is it that Table 1 shovis' 12 in these numbers? 13 A. Well, there are t w o ,,categories. , This- refers to 14 those who were exposed to"either TCP or to 2,4,5-T.J That IS .would mean that they,had been exposed to something that may 16 have an effect on their cancer experience* 17 -Q All eight. ,What do the numbers represent? Do 18 they represent 'people or do they represent cancers or what 19 do they represent? r1 20 ' A The exposed obviously means people. You can't 21 have cancers exposed. Th a t 's listing of how many people have 22 either chloracne, acne vulgaris skin/`cancer, hypertension, 23 \or cancer. , ;l 24 Q All right. Now, th e y 're listed as percentages ` 1# r " , i"1;. 'O 1 of the numbers up here, are they not? 2 A Right o 3 Q I*m sorry? 4 A Yes, sir, 5 Q So that the -- actually what is listed here is 6 people by number, by percentages? 7 A Yes', sir, 8 Q Now, would you include Willard Crites in a compilation 9 of Table 1? 10 A Yes, but I would write yes, skinwith it, 11 Q Now, I note that Table 1 has skin cancer in one 12 category and cancer of all sites in another category, is that 13 correct? 14 A Yes, sir, and it says down there excluding skin 15 or except skin, 16 Q Except skin? 17 A Right, 18 Q All right, 19 A That means everything elsebesidesskin,cancer, 20 Q So that why is that ,,differentiated in that way? 21 A The fact that they*re both cancers, and there are 22 measurable deviations from health that could be so recorded 23 and so skin is usually thought of different because skin is 24 so affected by radiation that outside of arsenic there are 1 very few such things there is little that is known to affect 2 and produce skin cancer. Whether the benz-pyrene we talked 3 about yesterday or polyaromatic hydrocarbons produce it in 4 those being exposed isn't real clear, but apparently there's 5 some of that as well. 6 Q So skin cancer is examined separately? 7 A Yes, sir. 8 Q From the other cancers? 9 A Yes, sir. 10 Q Now, what about Edward Miller, sir? What would 11 you do with Edward Miller? 12 A Well, yes, he had a bladder cancer, and he was 13 exposed. 14 Q So would youiinclude him? IS A Yes,, sir. 16 Q In which-- 17 A In the cancer ofother sites'or other, put it 18 bladder. 19 Q All right. What about John Hein, sir? 20 A It was confirmed that he had a bowel tumor, but 21 it was not confirmed that'it was malignant. It may be 22 malignant, but with the data they had they couldn't confirm 23 that, and so he was exposed-and so .he -- whether he really 24 had a cancer or not you would have to have the tissue to make 1 a determination 2 Q All right. The interview says yes for bowel cancer, 3 the doctor says a tumor? 4 A Right. , 5 Q Of the colon? 6 A Right. 7 Q Based upon that information, sir, would you Include 8 him in Table 1 or not? `9 A Yes, because he was exposed. 10 Q All right. 11 A But I wouldn't know whether I would want to call it 12 cancer or not at thisstage. There's a judgment that X would 13 have to have more information before I could decide whether 14 I would put him under cancer or not. IS Q All right. 16 A There are many people that are operated on for masses 17 seen in the bowel by barium enema or by proctoscopic exarainatio; 18 or colonoscopic examination that you can't tell and you take 19 it out and look at it under a microscope whether they've got 20 a cancer or not. So you'really can't tell from what's there# 21 Q Whether there's a cancer? 22 A That's rights That's the reason'the physician 23 listed it as tumor. .^ . 24 Q All right, sir. Now, what about Edward McDade? I A HeDade had a skin tumor, and he was exposed 2 Q Would it be included, in the skin cancer designation? 3 A I'd have to'have more information to make a decision. 4 I'd have to talk to the physician and see how strongly he felt 5 about it or whether there was other associated things in the 6 skin that would confirm it for me* You can do it by associatio 7 Q Now, why is it that you're saying that, because-- 8 why is it that you need more information? 9 A Because the physician in listening to this and 10 knowing somebody had a skin tumor removed, he is not sure that 11 the diagnosis of skin had been made and you can't tell by 12 looking. The information isn't available to tell you about 13 skin tumors, so all he says is he's listing he found a skin 14 tumor. 15 Q So you would need more information? 16 A Yes, sir. 17 Q So based upon what you see -in' the reoords would you 18 at this time list either:John Hein or Edward Dade in the-- 19 either the skin cancer or the cancer of all sites categories? 20 A I couldn't put them in those categories with the 21 information available.. 22 Q All right. What about Harry Reynolds, sir? 23 A Harry Reynolds, h e rhad a bladder cancer, both by 24 history and by physical by the doctor, so he had a bladder 1 but he was not exposed 2 Q So if he were put In Table 1, it would be In the 3 not exposed category? 4 A Yes. 5 Q Now, what about Edward Volz, sir? 6 A Edward Volz had a basal cell cancer, that's clear, 7 so he did have a basal cell cancer* , ' - "i 8 Q All right* 9 A But the bladder lesion was benign meaning that 10 was not a cancer. 11 Q So what would you do with respect to Edward Volz 12 and Table 1? * 13 A I would not list him as having a cancer of other ~ 14 of all sites. He would not be in that category. 15 Q Would he be in the skin cancer category? 16 A Yes. ' \ ` 17 Q All right. What about Harry Honaker, sir? 18 A He had a ,prostate, cancer and he had leukemia, 19 and he was exposed, so he would be listed in Table 1 under \ ' ' ' *+ 20 the exposed down at the bottom. 21 The only problem is jwe can't list both of those down 22 there because that would be two people, so we only can put one. 23 The only way you can handle that when you've got two tumors^ 24 and we're talking about people, is there can be an asterisk 1 after there someplace and down at the bottom say man so and so 2 also had leukemia or If he's listed as prostate, and' he also 3 had prostate, one or the other, but you can't have two diagnoses 4 in percent of people exposed who had cancer- That's one man S with two lesions .* 6 Q So y o u 'd -list him yes, but $you'd list him once? 7 A That's right. $ Q Now, what about John Selby, sir? 9 A Selby there is a question of skin cancer, and he 10 was exposed-' I can't go any further than that. He may have 11 a skin cancer, and what you need to do is you either get the 12 tissue if It was possible or you get a fresh specimen and 13 decide what he's got, but he was exposed, and he may have a 14 skin cancer. 15 Q So would you say something like probably yes or 16 what would you say about, listihg him lsased upon the information 17 you have before you there? IB A I couldn't list h i m ,under skin cancer with the 19 information I've got available. 20 Q Okay- 21 THE COURT: Before you go on to the next person, it'B 22 noon. Is this a good point to break for lunch? 23 MR. HEINEMAN: Your .Honor, before vie do could counsel 24 approach the bench for a minute? 1 THE COURT: Sure. 2 (A short conference was had at the bench off the 3 record.) 4 THE COURT: Okay. Ladies and gentlemen, w e 'll break 5 for lunch at this time. W e 'll resume again at one o 'clock. 6 The admonishments that I gave you earlier will apply during 7 .this break also. Court's adjourned for lunch, 8 (At this time Court adjourned for the day.) 9 10 il n 13 14 15 16 17 18 19 20 21 22 23 24 1 STATE OF ILLINOIS ) ) ss. 2 COUNTY OF ST. CLAIR ) 3 4 I, MARSHA SCHNIPFER, one of the Official Court 5 Reporters In and for the Twentieth Judicial Circuit of the 6 State of Illinois, and the Official Court Reporter who reported 7 the proceedings had in Frances Kemner, et al. vs. Monsanto 8 Company, No. 80-L-970 :on the 24th day .of July, 1985* do hereby 9 certify that the above and; foregoing is a true and correct IO transcript of the proceedings had;at said hearing, which r * ' ^ * *1 11 proceedings were reported by me in shorthand and by me 12 correctly transcribed. 13 Dated this 26th day of July, 1985. 14 15 , fr y * ^ J l rJi . Official Court .Reporter ' 16 17 18 19 20 21 22 23 24 1 STATE OF ILLINOIS ) ) SS. 2 COUNTY OF ST. CLAIR ) 3 4 I 5 RICHARD P,, GOLDENHERSH, Circuit Judge In and for 5 the Twentieth Judicial Circuit of the State of Illinois* and 6 the sole presiding Judge in the aforesaid cause on the 2*lth .7 day of July* 1985*: do hereby certify; that I have examined the ' Ai, 8 aforesaid transcript of the proceedings and further certify 9 that the same Is a true and-correct transcript of said 10 proceedings had in said icaujse.1 , 11 Dated this ___ _ day of July* 1985. 12 13 CIRCUIT JUDGE 14 15 16 17 18 19 20 21 22 23 24