Document gbNjERr1OLo7vZxwrbZJRMarN

1 1 IN THE CIRCUIT CDURT OF THE TWENTIETH JUDICIAL CIRCUIT E ST. CLAIR COUNTY, ILLINOIS 3 4 FRANCES E. KENNER, ET A L ., ) 5 Plaintiffs, ) B v. ) 7 MONSANTO COMPANY, ) B Defendant. ) 9 10 11 REPORT OF PROCEEDINGS IE December IB, 19B5 13 > 14 Before the HONORABLE RICHARD P. GOLDENHERSH, CIRCUIT JUDGE 15 IB APPEARANCES: 17 MR. REX CARR and MR. JEROME SEIGFREID, Attorneys at IB Law, on Behalf of the Plaintiffs; and 19 MR. KENNETH HEINEMAN and MR. JOSEPH NASSIF, Attorneys E0 at Lau, on behalf of the Defendant, Monsanto Company. El SE Kathleen Watson Brunsmann, RPR, CSR E3 Official Court Reporter E4 1 INDEX OF WITNESSES 2 RENATE D. KIMBROUGH 3 DIRECT EXAMINATION By Mr. Heineman..... 3 4 CROSS EXAMINATION By Mr. C a r r ...........SB 5, 6 7 INDEX OF EXHIBITS a 9 Defendant's 10 1320 Marked far identification 4 11 1329 12 1330 13 1331 4 7 9 14 1332 14 15 1333 20 15 1334 33 17 1335 35 IB 1335 42 19 20 21 22 23 24 if""T V ' ' ' - l * *' 5 BE IT REMEMBER7E.Dj- AND CERTIFIED, that heretofore, s on to--wit, Wednesday, December 18, 19B5 the matter as 3 hereinbefore set forth came on for hearing before the ^v V f.. 1 4 Honorable Richard F. Gol'danherah, Circuit Judge in and Far 5 the Tuientieth Judicial Circuit, and the fallowing uias had of 6 record, to-uiit: 7 a CThe following Offer of Proof was had out s of the presence of the jury:3 10 11 THE COURT: Okay, gentlemen. 15 MR. HEINEMAN: Your Honor, at this time for 13 Defendant's Offer of Proof, wa would like to call to the 14 stand Dr. Renate D. Kimbrough. Dr. Kimbrough, would you 15 come forward and be sworn? 15 17 RENATE D. KIMBROUGH, IB 19 having been called as a witness on behalf of the 50 Defendant Monsanto, having bean sworn, testified El as follows: 55 53 54 3 1 2 3 4 5 E 7 a a 10 11 12 13 14 15 16 17 IB 13 20 HI 22 23 24 DIRECT EXAMINATION BY MR. HEINEMAN: Would you state your name For the record, please. A I'm Renate Kimbrough. My First name is spelled R-e-n-a-t-e, last name K-i-m-b-r-o-u-g-h. Dr. Kimbrough, the microphone you s b o there before you does not amplify your voice in any way \ A Okay. It's just there to record, so don't worry about it. A Okay* Would you give us your date of bith, please* A January 14, 1933. And your place of birth. A Hannover, Germany. Where do you reside at this time? A 165 Avery, A-v^e-r-y, Drive, in Atlanta, Georgia. And by whom are you employed? A By the Centers For Disease Control. Q In what capacity, ma'am? A I'm a mBdical toxicologist, and I work in the. Center For Environmental Health as a medical oFFicer, primarily in the arBa oF toxicology and environmental health and occupational health. 4 1 2 -3 4 5 E 7 8 9 10 11 12 13 14 15 16 17 18 IS 20 21 S3 23 24 0 Would yen-* describe For the Court, please, your educational background. A I graduated From medical school in Sermany and then immigrated to the United States and served an internship in pathology at Northwestern University at Evanston Hospital. Then moved to Nbui York, worked at Memorial Hospital For Cancer and Allied Diseases For a year. Then moved to Atlanta and worked as a resident in pathology at St. Joseph's Infirmary. Subsequently obtained a job at the Centers For Disease Control in a toxicology laboratory in 1962, and have uorkBd For the Federal government in the area of toxicology and environmental health ever sincB then. All right. MR. HEINEMAN: I wonder if you would mark these please. Defendant Monsanto's Exhibits 1328 and 1328 were marked for identification by the court reporter. Q CBy Mr. Heineman) Dr. Kimbrough, let me hand you what's been marked as Defendant's Exhibit 1328 and ask you to examine that and identify it For me, please. A This is my Curriculum UitaB, which gives my 5 1 5 3 4 5 6 7 B B 10 11 1E 13 14 15 15 17 IB 19 50 21 55 23 54 educational background, my certifications and the publications and whatever activities. Does it list the various professional boards of which you're a member, and societies? A Yes. All right. And let me next hand you, if I may, please, Defendant's Exhibit 1359, and ask you to examine that and identify it for the record, please. ft This is my job description as to what I am performing now at the Centers For Environmental Health. Q And what is the nature of this document? By wham is it prepared? A It was prepared by the Center for Environmental Health tD describe what my activities and responsibilities should be in the Job that I 'm presently holding. Q And is this a document prepared according to the usual business practices of the Centers for Disease Control? A Yb s . Q And do thBy do this for other officials as ub 11 as yoursalf? A Yb s . Everybody that works for thB federal government has a job description. Q All right. This one happens to apply to your position? v . 6 HO' 1 A Yea. s All right. And is this^kapt and prepared and 3 maintained in the regular coursB -of business by the Centers H For Disease Control? 5 A Yes. There's a copy in the Personnel Office and 5 also a copy in the Director's Office, and then I get a copy. 7 All right. Thank you. * B MR. HEINEMAN: Your Honotif capias of these * * ' il' 9 documents have been provided to Counsel for the Plaintiffs. A fk 10 It mould obviously -- with this witness* brief time on the . 11 stand today, it would save a great deal of time if we didn't 15 have to go through this whole thing, and I would, with the 13 Court's permission, I'd like to submit them to the Court as 14 part of our Offer of Proof in orders to save time. 15 THE COURT: Any objection.to that? 16 MR. CARR: I have no objection to anything Counsel 17 wants to do in an Offer of Proof, your Honor. IB THE CDURT: Fine. ^ S S V - ',20 MR. CARR: He may do what ha wants. THE CDURT: Why don't you Just submit them and ^1 w e 'll save some time. MR. HEINEMAN: Fine. I'd like to submit them to -'"S3 r__. 54 - i.^ha Court with our Offer of Proof. THE COURT: Right. - 7 1 a 3 4 5 E 7 B a 10 ii la 13 14 15 16 17 1B 13 50 51 55 23 24 Q CBy Mr. HeinemarO Dr. k&mbrDugh, in your official 'i&v capacity or in any capacity, personal or otherwise, do you have any connection whatsoever with Monsanto Company? A N o . I mean except that I have done research work on soma of their compounds. I sea. UJas that at thair request? A Oh, no. That was at the government's request. *- 0 All right. Now in terms of your appearance hare today, arB you being paid or retained in any way by Monsanto Company to be here? A No. The Federal government is paying For my expenses. All right. Now -- Defendant Monsanto's Exhibit 1330 was marked for identification by the court reporter. Q CBy Mr. Hainsman) Let ma hand you what's been marked as Defendant's Exhibit Number 1330, and ask you to examine that and identify it For me please. A This is a memo, which I wrote on January 30, 1377 at-the Centers For Disease Control to record a telephone conversation which I had with a Dr. Ted Appel, a physician, who wanted to havB information and discuss with ms a problem B 1 2 3 4 5 6 7 B 3 10 11 15 13 1H 15 16 17 IS 19 SO SI BS S3 B*i that ha had with a patient because there had been a spill of CP crude in Sturgeon, Missouri. All right. Doctor -- MR. CARR: Just one minute, Counsel, unless we've lBft something at the office, I don't believe we've been given this before, your Honor. MR. NASSIF: CD0503, Rax. MR. CARR: Did you Just give it to us this morning? MR. HEINEMAN: No, C00509. MR. CARR: Bo ahead, Counsel, w e 'll straighten it out later, I can't find it now. CBy Mr. KeinBmanD Dr. Kimbrough, is this telephone call that you received from Dr. Appal tha first that you knew of tha Sturgeon incident? A Yes. Q And what was the subject of the call? What was Dr. Appel's concern? A Ha had a child that he thought had been exposed to the vapors from the DCP crude, the phenol vapors. And he -- this child had had a respiratory arrest and was ill. He wanted to know whether tha exposure to the phenols could have caused the problem in the child. And he also had collected some urine and a blood specimen and he wanted 9 1 assistands from ths Cantors For Disease Control In thB 8 analysis of these specimens For phenols* He toes sent to us 3 through the Missouri Health Department* 4 All right. 5 B Defendant Monsanto*s Exhibit 1331 was marked 7 For identification by th court reporter. B 9 Q CBy Mr. Heinsman) LBt me hand you what's been 10 marked as Defendant's Exhibit 1331, which is a two page 11 document of handwritten notes and ask you if you can examine 12 that and identify it For me, please. 13 A These are -- 14 MR, CARR: Counsel, it would assist us a great 15 deal, IF you, because the things, you've given us are not in 16 chronological order or any other order, For us to know what 17 she's referring to. We've got to go through and Find this 18 unless you give us one. 19 MR. HEIMEMAN: All right. I thought whet we gave 20 you was in the order. 21 MR. CARR: It doesn't mean it's in the order now. 22 We've gone through what you gave us, Counsel. We found this S3 one now that you've just givsn the witness. 24 MR. HEINEMAN: All right. 10 1 a 3 4 5 B 7 B 3 lO 11 12 13 14 15 16 17 IB IB 20 SI 22 23 24 (By Mr. Helneman) Now, Dr. Kimbrough, mould you Identify the document, please. A These are notes 1 took, they're In my handwriting, end they pertain to this same telephone conversation. And then subsequently from these notes 1 dictated the memo. Which is Exhibit 1330? to Yes. And what was the sex of this child? A I believe it was a boy, but I'm not sure whether I'm saying it in the memo. 0 If you look st Defendant's Exhibit 1330 in the third line there -- * A Oh, yeah,six month old male child. Q Oh. A Okay Now, what was it that your agency undertook to do in connection with this call, and why? A Because of the concern of the physician and because the Missouri State Health Department had asked;us to assist, we did accept the blood specimens and they ware subsequently analyzed in our laboratory. All right. A And we also then collected additional information on the episode tD see whether there wars other problems. 11 1 whether there was anything else tha Centers f1or Disease H Control ought to do. And because of our interest, we then 3 had a lot of conversations with the EPA and different people 4 that were involved. 5 Now, do tha notes that ara reflected in 6 Defendant *s 1331, are those the notes that you received over 7 the telephone? 8 Yb s . This was information I received over the S telephone. 10 Q And on the first paga of Exhibit 1331 da you 11 recall from whom you received the information as to the ia contents of the tank car? 13 A Not exactly. From somebody that was -- from the 14 EPA or somebody that was involved with the spill. 15 a Now if I can direct your attention again to 16 Exhibit 1330, does it contain a statement as to tha air 17 levels? 10 A Yea. 19 Q Ulhat is that, ma*am? ao A The levels have been below one part per million. ai And that's air levels of what? j 22 A Gf the phenols and the orthochlorophenol. 23 Now, in the first paragraph of your memo there's a 24 statement near the end of the first paragraph about 12 1 e 3 4 S 6 7 B 9 10 11 IS 13 14 15 15 17 IB 19 20 SI 22 23 24 occupational exposure. Do you 3QB that? A Yes. Q And mould you tell us how you reached that conclusion? What information mere you relying on? A I was primarily relying on the measurements that 'i had been made, and then 1 had additional discussions with, the people that Were working at the site. Q Now what measurements were you familiar with that i had been made? , A These were air level measurements that I'm partly I I referring to in my memo. f By wham were they made? A The Environmental Protection Agenoy in Kansas City. Q i f All right. How did you reach the conclusion that i the air levels have been within the levels recommended for occupational exposure? A In the normal course of business, whan I get ( telephone calls from people about levala of chemicals In air or in water, I then refer to textbooks and standards that are available to me and look up what the levels are since you can't always remember all these numbers. And then I usually give people information as to whether I feel that that is dangerous or it isn't. That's part of my work. I 13 1 did that, and I reviewed that with those people according to a this memo. 3 All right. Now on the last page of the 4 memorandum, which is Defendant's Exhibit 1330, in the last 5 --- the last sentence, it reads, MA lOcc sample of this 6 material will be mailed to us by the Kansas City EPA," 7 correct? B A Yes. 9 Q Who-was it that agreed to do that? 10 A According to my handwritten notes, I apparently 11 talked to a Hr. Gilmer and somebody by the name of HcClurg. ih 1 don't remember who that was. But one of those people 13 agreed to arrange it. I later talked to somebody by the 14 name of Kloepfer also. 15 Kloepfer? 16 A Kloepfer. 17 Q How da you spell that? IB A K-l -- I think it's K-l-o-e-p-f-e-r. 19. What was your understanding of his -- the agency SO he was with? SI A Ha is with the EPA in Kansas City, and he's a ss chemist. S3 Q All right. Did there come a time whan a sample of E4 the material was sent to you? 14 1 a 3 4 5 6 7 B 9 10 11 15 13 14 15 16 17 IS 19 50 51 55 53 54 6 Yes. DaFandent Monsanto's Exhibit 1335 was marked for idontification by the court reporter. CBy Mr. HeinamanO Let me band you what's been marked as Defendant's Exhibit 1335 and ask you tD examine that and identify it for me, please. 1 A This is a memo to the record, which was written at the Centers For Disease Control bu Dr. John Liddls, dated February 15, 1979. Q ftnd I see written in tha upper right-hand corner a series of initials. ft Yes. ftnd one of those is R.K. ft Yes. ftnd is that you? A Yes. Ulhat is the significance of the fact that there's initials written with a line underneath? ft These are different people that were working in the laboratory, and he dictated the memo and then ha routad it to the different peopla, and I was the last one on the Hat. q And did you receive a copy of this memorandum? 1 2 3 4 5 6 7 a 9 10 n IS 13 14 15 IB 17 18 19 BO 21 22 S3 24 15 * A ThB fact that I initlalad it means that I readit. Q All right. Is this a document prepared in the ordinary course of business off your agency? A Yes. And Dr. Llddle is employed by whom? A He is employed by the Centers for DiseaseControl. And ishe the chief of the Toxicology Branch? A Yes. Q And is -- A He's no longer. Ha's not now, but he was then. Q He was at that time? A Yes. Q Is this a document that came out of your file? A Ule had a file on this case and this docment was in that file. This is our case number, 9-7. Q All right. Now, what is this memorandum about? A He also received a telephone call from Dr. Ted Appel, and he inquired as to the status of the analysis in serum and urine samples obtained from a six month old male child that he is presently treating. And we told him that the analyses were under way. And then Dr. Appel was told that some of the phenols contained highly toxic dioxins, and so he and the . family were very concerned about it, and ws said that we had no plans to analyze for dioxins because the present analytical techniques are inadequate to detect dioxins at the levels that they mould theoretically be in the biological samples. Hera we're talking about blood and urine. W e 're not talking about adiposB tissue. The amount of sample that tue had uibuld be insufficient. Q Norn with respect to the analytical techniques for detecting dioxins in levels in blood and urine, uiere there available techniques somewhere else in the country for doing that sort of thing? fit At the time there weren't any methods that wa -- anywhere that we knew about that would be reliable for blood and for urinsm, simply because dioxins are soluble in fat so they primarily concentrate in fatty tissue, and the amount that you would have in blood would be much, much less. Q At that time ware you familiar with Drs. Tiernon and Taylor at Wright State University? A Yas. Q All right. To your knowledge did they have the capability at that time of analyzing blood and urine accuratey for thB presence of tetra dioxins? A Not on -- we didn't think on a specimen of 10 milliliters 17 1 2 3 4 S s 7 B a 10 n 15 13 14 IS 16 17 18 IS 50 51 55 53 54 What's significant about the specimen of 10 milliliters? A Well, ones you get a much larger specimen, then, of course, you could try and concentrata the dioxin and then you uould be able to increase your limit of detection. D a h right. But on a specimen of 10 milliliters, ujhat was your understanding as to whether or not those tuio scientists could detect it in blood and urine? A As far as I knew, they were not able to do that reliably. Q Now when you said the methods were inadequate to detect dioxins they uiculd theoretically be In thB biological samples, what did you mean by that? A I meant parts per trillion levels, low parts per trillion concentrations. Q Now in the next paragraph of this memorandum by Or. Liddle, do you see in the latter half of the third paragraph a reference to Monsanto? A It's the last line? Well, actually it starts -- It has to do with the conversation with Bob Kleopfsr. A Yes. The EPA has not detected any tetrachlorcdioxin in any sample related tc this study and that they were undertaking additional analysis to try and IS 1 s 3 4 5 5 7 B B 10 11 15 13 14 15 16 17 IB 19 50 ai 55 53 54 identify the reason for the difference between Monsanto's and thslr analysis. Q All right. Now in the first paragraph immediately above that, what was the information that your agency had with respect to what Monsanto had determined? A Monsanto Company had announced that their laboratories had detected and identified tetrachloradioxin-- -ME. CARR: Your Honor, I would object, unless Counsel makes it clear that she's reading -- that's not information that she had but that Dr. Kleopfer from the EPA gave her. THE COURT: Objection is sustained. Could you clarify that, plBase. Q CBy Mr. HeinBmanJ Yes. That paragraph reflects a conversation between Dr. LiddlB and Dr. Kleopfer of the EFAj correct? A Ybs . Q And it's Dr. Kleopfer that's reporting this information? A Yes. Q All right. And what is the information that Dr. Liddle understood to bB the case? A That Monsanto had detected tetrachlorodioxin at a level of 37 parts per billion, in the production of OCP 19 1 crude that mas Involved in the Incident, And Monsanto also 2 stated that the tatrachlorodioxin detected in the phenol 3 material Bluded at the same time as an authenticated 2,3,7,0 4 tatrachlorodioxin standard. 5 Q Is the chemist at Monsanto involved in that work 6 identified? 7 A Yes. His name was Jim Mieure. B All right. 9 A That's M-i-e-u-r-e. That's not right. It's M-l- 10 u-r. 11 Q Actually this one is spelled M-i-e-u-r-e. 12 A Okay. Sorry. 13 Q Now in the last paragraph on that first page, did 14 Mr. Kleopfer explain the efforts EPA had gone to to analyze 15 for dioxins? 16 A Yes. 17 Q And uihat urns that? IB A They analyzed fDr dioxins in a soil sample that 19 contained 7 percent by weight of the QCP crude phenol 20 mixture. 21 And what did Mr. Kleopfer report that they were 22 able tD find? 23 A The lower limit of detection was .1 part per 24 billion for the 2,3,7,B tetrachlorodibenzo-diDxin, and he 20 1 a 3 4 5 E 7 e a 10 n 12 13 14 15 15 17 IB 19 20 21 22 23 24 uiaa not able to detect any tetracholrodioxin in any sample related to this study. And that they were undertaking additional analyses to try and identify the reason for tha difference batuean Monsanto *s and their analysis. Defendant Monsanto Exhibit 1333 uaa marked For identification by the court reporter. Q CBy Mr. Heineman? Dr. Kimbrough, let me hand you what*s next bean marked as Defendants Exhibit 1333, and ask you to examine that and identify it for me, please ' A This is a memo to the record which was written by Dr. Larry Needham, who was and still is in the toxicology branch of tha Centers fDr Disease Control, and the subject was again the OCP spill. i All right. Now, did you receive a copy of this document as well? A Again this was circulated and my initials are there, and I marked that I 've read it. All right. And was this prepared in tha regular course of business of your agency? A Yes. And is circulated to you as part of that regular procedure? 21 1 A Yb s . 5 Q Is it maintained as a part of the regular course 3 of business of thB agency? 4 A Yes, in this case file, 9-7. 5 Now, I 'd like tD direct your attention to the 6 first paragraph. Ulhat is it that bias being reported by Dr. 7 Needham to the rest of you to whom this was bBing Q circulated? 9 A That we had received a serum, one milliliter, and 10 five milliliters o f .urine sample from an infant who had 11 possibly been exposed by the air and as a result of an 12 overturned rail tank car tD a mixture of phenols, 70 percent 13 of which was orthochlorophenol. 14 Noui, is this the same -- is this the same infant 15 that was being reported about in the previous memorandum? 16 A To my knowledge we only received one samplB from 17 an infant. IB Q All right. In Defendant's Exhibit 1332, dated in 19 February, Dr. Liddle reported that the analyses were under 20 way, did he not? 21 A Yes. 22 But in March Dr. Needham reports the set of 23 samples; correct? 24 A No. He reported that he received the sample on 55 1 5 3 4 5 6 7 B 9 10 11 15 13 14 15 16 17 IB IS 50 51 55 53 54 February the End. Q All right. A The dates on these memos are really the date -- what we do is us dictate the Information, it goes on tape, and we're vary short in support personnel, so the dates really reflect the data when the secretary typed it, which is not the way things should be done, but unfortunately we just heve a problem with that. 0 All right. So insofar as you know is it the same sample that's being talked about? A Yes. . By what method was this sample analyzed in your agency? A Ua did two things really. UJs tried high pressure liquid chromatography. Then wa also derivatizsd it and used gas chromatography. Q All right. Now, were you able to detect anything in these samples in tarms of the chemicals that were expected to be there? A No. Except we spiked samples. U)e just added material For controlling material, bBcausB there we were able to detect something. But not in the samples from the patient. Q All right. But the particular serum samples 23 1 a 3 4 S 6 7 B 9 10 11 12 13 14 15 IB 17 IB . 19 20 21 22 23 24 referred to at ,the baginning of thB mamorandum, bias any rthochlaraphanol detected in those? A No. In the lost paragraph an the First page, ware some additional serum samples received? A :Yes. UJhat mas that about? Where did those samples come From? A These were From adults, from other people that thought they mars exposed. They uiare From five patients. Q And uihat were you able to Find with respect to those? A When we First analyzed them uie had some problems identifying -- interpreting our results. Than on reanalysis we were not able to identify any of these phenols. Now at the end of the second page there's a handwritten paragraph. Do you see that? A Yes. And whose handwriting isthat? A That's mine. In Fact, your nameappears below the handwriting; correct? A Ybs . 24 1 To whom wars you directing this remark and why did s you ask ths question? 3 A Because Larry Needham mads a statement in his memo 4 that I -- I Just didn't think he had any information that he 5 could base that statement on. 6 Did you direct this to Dr. NeBdham? 7 A Yea. I also wanted it to go -- be on record. B Q All right. Why did you Feel that he didn't have B any basis For the statement that the orthochlorophenol 10 contained dioxins and furans? 11 A Because normally in a law chlorinated phenol IB mixture you wouldn't expect to find furans. If you're 13 primarily dealing with the 2,4,6-Triqhlorophenol you really 14 shouldn't have any 5,3,7,0 tetraohlorodibanzD-dioxins. I ! i i 15 was just raising that issue. IB Q Why do you say -- why do you suggest that you 17 would be dealing with 5,4,6-Trichlorophenal? IB A Because that was ths information that we ware 1S given, that this product, and that was what I thought this 20 product represented, is that it was primarily the 5,4,6- i 51 Trichlorophenol. 22 Q Now, as 1 understand it, you werB given 53 information that the trichlorophenol would be 2,4,6. 24 -- --- A--- Vas.-- T. waa giv*?n that information, but that was '- !! i 1 !' 25 1 2 3 4 5 5 7 B 9 10 11 12 13 14 15 IB 17 16 19 20 21 22 23 24 also what I know about this particular product, and that's in the literature. A11 right. And where did you derive your information about uihat you knBuj about this particular product and what uias in the literature? A Part oF it I got From the Environmental Protection Agency during the telephone conversations that I had with them, and then there are handbooks such as Zack/GaFfBy and so on that give you that type oF information. You can also look it up in thB Merck IndBx. Now, did the Centers For Disease Control reach a conclusion with respect to this six month old infant? A U)e Felt that whatever the infant had was unrelated to thB incidence at Sturgeon. Q And why was that? A Because, First of all, the child didn't seem to have any exposure and the illness that was described didn't really Fit, and you can havB illness in the general . papulation. You have that all the time. Did the analysis that was performed on the samples sent to you have anything to do with your conclusion with respect to this six month old male child? A Yes, it had something to do with it. But it's not -- the illness that was described in the child really didn't 26 1 a 3 4 5 6 7 8 3 10 11 15 13 14 15 15 17 IB 13 50 21 25 23 24 1 Fit and we only did tha analysis because we uiara asked bo do it by the Missouri State Health Department, because there bias a lot oF agitation on the part of the physician. Wa performed it as a service, not because we felt that this was probably a phenol poisoning. Now, did there come a time when you had conversations with Harry Gilmer of the EPA? A Yes. And what do you recall about your calls or your conversations uiith Harry Gilmer? A He u*as concerned about the 2,3,7,6 tstrachlorodibsnzo-dioxin. He wanted to know whether I Felt the fact that this had been found by Monsanto in the OCP crude had any toxicological significance as far as tha spill in Sturgeon was concerned, and I told him that it didn't, and that he didn't need to be concerned about it, that what he ought to be concerned about was the phenol spili and he ought to clean that up. Q Now, according to the memorandums that we've Just bBBn through, Monsanto wasn't able to idsntify the isomers specifically as 2,3,7,B, were they? A Thera was a lot of debate about it, although they thought that it might be there. If what they thought was the 2,3,7,B -- 27 1 MR. CARR: Your Honor, I object unless the witness 2 is repeating conversations she had with people at Monsanto. 3 It appears that she is, but I don't believe that she is. 4 THE COURT: Could you clarify It's not really 5 clear what the source of all this is. 6 Q CBy Mr. HBineman^ Yes. Doctor, would you 7 identify the source of the information that you're talking B about right now. S A The discussions I had were with th EPA and the on 10 site coordinator at the spill. 11 Q That would be HarryGilmer? 12 A Yes. 13 And Bob Kleopfer? 14 A Yes. 15 Q All right. 16 A And then there was a Dr Siver from the EPA in 17 Washington. He was a medical adviser. IB Q And your conversations were based -- your 19 conversations were with those three individuals; is that 20 right? 21 A Yes. 22 Q Did you have, anyconversations directly with 23 anybody from Monsanto? 24 A Not that I can recall. 2S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 IB 19 20 21 22 23 24 All right. Now, I'm sorry, you uiBres talking about thara was a debate about whether it was 2,3,7,8. A Yes. Q Would you elaborate on that For the record? A I Felt because of the fact that wa were dealing with the 2,4,6 that it most likely wasn't the 2,3,7,0tatrachlorodibenzo-diDxin. But even, if ffonsanto had identified as the 2,3,7,8-tetrachlorodibenzo-diaxin, the concentration that you found it, it wouldn't be of toxicological significance, and, therefore, I didn't think that thr EPA or the -- during the clean up that thBy needed to worry about the dioxion. They should Just concentrate on the phenol. Now, I'd like to show you an exhibit which is Defendant's Exhibit 1193-A, which is the second page of -- this is obviously a blow-up of a second page of Exhibit 1193. Why don't I give you thB entire exhibit. First let me hand you what's been marked as Defendant's Exhibit 1133, and I would like to ask you whether 1193-A is accurate -- is an accurate blow-up of the second page of that exhibit? A Yes. Okay. Now, directing your attention to the second and third paragraphs, I'd like to ask you whether the third paragraph on that page accurately sets forth the advice that 53 1 you gave to ths EPA? 5 A Yea. 3 All right. Now why was it, Dr. Kimbrough, that 4 you felt that 37 parts per billion -- well, First of all, 5 let me ask you this: by the most toxic Form of dioxin, uihat 6 was your understanding that Mr. Bilmar uias referring to? 7 A Uihat -- B Q ThB most toxic Form ofdioxin. 9 A Hs was talking about the 2,3,7,010 tatrachlorodibenzo-dioxin. 11 All right. Why did you Feel that 37 parts per IS billion of 5,3,7,B TCDD would not increase the sndangerment 13 to the town's people of Sturgeon? 14 A First of all, once the stuff was spilled, you have 15 dilution of some percentage, which would reduce the amount IE in the material that the workers mere coming in contact 17 with. I was realy only concerned about the workers. I 18 wasn't concerned about the people in the town of Sturgeon at 19 all because they would really have no intimate contact with BO this material. 51 Then secondly, ths material in part would be bound 55 on soil, which would make it less available to the worker. 53 And thirdly, the worker would only be exposed to 54 it for a short period of time during the clean up. We have 30 1 never had any problems with people that spray 2,4,5 or have H In the past spayed 2,4,5-T, that had at least these 3 concenratlons and often higher concentrations in the 4 commercial pilot. That was the reasoning I went to. 5 Yog say the people that have sprayed 2,4,5-T bed 6 at least these high concentrations of the product. 7 Concentrations of what? B A Of the 2,3,7,8-tstrachlorodibenzo-dioxin. S What is the form of tetra dioxin that's found in 10 2,4,5-T? 11 A It's the 2,3,7,0-tetrachlorodibenzo-dioxin. The le same material w e 're talking about -- w e 're presumably 13 talking about here. 14 Q When you say you haven't had any trouble with 15 thoss people, what information, source of material, what is 16 it that you're referring, to upon which you.base that 17 statement? IB A The laboratory, when I started out working at the 13 Centers for Disease Control, was primarily interested in the 20 toxicity of pesticides, which includes herbicides. We were 51 in thB past looking at applicators and health effects in 25 people in the general papulation from pesticides. So we 53 have never ---- we used to collect reports of incidents. We 54 never.had any reports that applicators, for instance, that 31 1 5 3 4 5 6 7 B S 10 11 15 13 14 15 IS 17 IB 19 50 51 52 53 54 their health mas affected. What were the levels that you were aware of of 2,3,7,8-1000 that would be found In the 2,4,5-T under those conditions? A In the 5,4,5-T that was used in the '60's and late '50's, the levels varied on -- the highest concentration that has aver been found has been SO parts per million, but on the average it ran around two parts per million. And then in thB '7 0 's, as our analytical capabilities improved, and manufacturing procedures changed, the levels dropped and it was at ,1 part par million, or sometimes 50 parts per billion. Q Now is it the policy of the Centers for Disease Control, and particularly your particular area of that agency, to respond to requests of the type that Harry Gilmer was making? A Yes. Da you at times go out to the scene and do a personal review of the situation? A Yas. Either I or other people from the Centers for Disease Control will. Do you do that on an emergency basis at times? A Yes. If we think it's necessary, if there's a problem. 32 1 s 3 4 5 6 7 a 3 10 11 12 13 14 15 16 17 IB 13 SO 51 22 23 24 Now, haul would you describe your reaction to fir. Gilmer's request, in relation to the other types of responses that you've made. A Ha actually, because of the concern about the dioxin, at Dne point uantsd me to come to Missouri. But I didn 't feel that that uias necessary. Ha uias concerned about some of the workers having a skin rash. But 1 didn't feel that there was any reason for me to go there. I did give him the name of another physician in case he felt he had additional problems. That was Dr. Taylor from the Cleveland Clinic. Q Dr. Taylor from the Cleveland Clinic? A Yes. Q Was he adermatologist? A Yea. Q Did you feel that the skin rashes he was reporting could in any way be due to dioxin exposure? A No. The concern was that these people might have chloracne, and I didn't -- I didn't think that what hs was describing was chloracne at all. But Dr. Taylor had a lot of experience in that, and so if he didn't believe me I told him hs could call Jim Taylor and talk to him also. Q Did you have an opinion at that time as to whether or not at the .levels that were being described For the 33 1 2 3 4 5 6 7 B 3 10 11 12 13 14 15 IB 17 18 13 20 21 22 23 24. presence of TCDD and the product; that was spilled there that it would be likely or even possible that these rashes could be chloracna? A I Felt that they couldn't be chloracne, that this didn't make any sense. Q UJhy was that? A Because the concentrations were too low and because it was in sail, and because it was bound to soil in part. q Mom did there come a time, Dr. Kimbrough, when you had a convarsation with- a Dr* David Logan of O.S.H.A.1? A Yea. Q All right. Was that in relation to theSturgeon matter? A Yes. Defendant Monsanto's Exhibit 1334 uias marked for identification by the court reporter. Q CBy Mr. Heineman) Let me hand you what's been marked as Defendant's Exhibit Number 1334, and ask you to examine that and identify it for me, please. A This is alatter tha Dr. DavidLogan wrote to me and the date on the letter is December IS, 1373, and he 34 1 2 '3 *4 5 6 7 B a io 11 12 13 14 15 16 17 IB 19 20 21 22 23 24 states in M s latter that, "As uis discussed in our phono conversation today, I'm sending you information concerning the orthochlorophenDl spill in Sturgeon, Missouri." Ho also included some review data from a Dr. John Moore. "The information I have received From Joseph SaiFter at the EFA is that the blood dioxin levels were confirmed and each samplB contained 50 percent H^^.B-tetrachlorodibenzodioxin. I would bo grateful if you would review the enclosed material and indicate if you feel that any further monitoring or evaluation is warranted." Q What was it that Dr. Logan was concerned about, specifically? A . Ho was concerned about workers that had been involved in the clean up and they supposedly had 2,3,7,8tstrachlorodibenzo-dioxin in their blood, and he wanted to know whether Q.S.H.A. needed to do something. All right. A Q.S.H.A. is the Occupational Safety and Health Administration Now, in this case we heard reference to an organization called NIOSH. What is NIDSH and what are they associated with? A NIOSH is the National Institute of Occupational Safety and Health, and it*s one institute of the Centers for 35 X Disease Control. Just tha way I Bin in another institute* s which is the Center for Environemental Health. There ia a 3 lot of collaboration between these two centers. 4 D You mean between your center and the NIQSH? 5 A Yes. B What ia the relationship between NIDSH and 7 Q.S.H.A.7 B A NIDSH performs within the Centers far Disease a Control research and gives medical assistance to O.S.H.A. 10 0.3.H.A., which is tha Occupational Safety and Health n Administration* is in tha Department of Labor, and they 15 enforce tha air levels and exposure standards and safety 13 measures in the work place. 14 15 Defendant Monsanto's Exhibit 1335 was marked IE for identification by the court reporter. 17 IB Q CBy Mr. HsinemanD Let me hand you what's been ia marked as Defendant's Exhibit 1335 and ask you to examine 50 that and identify it for me, please. 51 A This is a letter which I wrote to Dr. Logan at tha 55 Occupational Safety and Health Administration. It's dated 53 January 4, 1SB0. 54 Q Now was this -- is this document -- this document 36 1 uas prepared by you in the ordinary course of your a activities as research medical officer for the Centers for 3 Disease Control? h A Yes. 5 - And gou have maintained a copy of this in the E Files of your agency? 7 A Yes. B And does this accurately set forth the subject 3 matter that you were discussing with David Logan at that 10 time? 11 A Yes. He wanted advice on the blood levels that i s had supposedly been measured or determined in the workers of 13 the 5,3,7,B-tetrachlorodlbenzo-dioxin. 1H Q All right. And what was your position with IS respect to those blood levels? IB A I was not convinced that the workers actually had 17 measurable levels of 5 ,3,7,B-tetrachlorodibenzo-dioxin in IB their blood following their exposure to the OCP crude. IS Q Why was that? 50 A (Jell, because first of all I was still dubious 51 about this isomer actually being present, since we're 55 primarily dealing with the 5,H,6"TrichlorophenDl And then 53 the other problem that I had was the fact that it is EH extremely difficult to identify B^^S-tatrachlorodibonzo- 37 X dioxin at vary low concentrations, and you would have to 5 either have hugs amounts of blood, or you simply at the 3 state of the art wouldn't be able to detect it in the blood. i 5 & 7 B S 10 11 15 13 1* 15 IS 17 IB 19 50 51 55 53 BH And uia are still -- we have a good method for adipose tissue, but w e 're still working on the method for blood, and we still have not ironed out all of the problems. You mean as of today? A Yes. And that's the chemistry branch of the CDC? A Yes. Now -- A Unless it uias confirmed -- I'm sorry. I 'm sorry. Go ahead. A Unless they were confirmed by another laboratory, 1 just would not really accept that result. Now did ucu suggest to Dr. Logan some things that should be done? A Yes. All right. What was it that you thought he should do? A There ought to be further analysis of the identity of the trichlorophenols in the DCF crude, and an attempt should be made to collect all of the available information on studies done in connsction with this spill From different 38 1 agencies which were involved and thasa results should be e reviewed. 3 It should be determined what analyses were 4 conducted to establish the BO percent of the blood -- that 5 60 percent of the blood dioxin was the 2,3,7,86 tatrachlorodibanzo-dioxin, according to the information that 7 he had received from the Environmental Protection Agency. 8 The methodology and all of that should be looked into to S assure that this was really true, because we have had -- we 10 often get results at the CDC that we look into it, it turns 11 out not to ba true. 12 Now, you mentioned at the bottom of the page, of 13 that first pegs, about wanting to determine whether the 14 workers could be exposed to TCOD in other circumstances* 15 A Yes. IS Q Did you not? 17 A Yes. IB Q Why would that be important? 18 A Well, first of all, we all have low body burdens 20 of these types of chemical in our body. As we improve our 21 methods of detection we can -- Bnd we can detect lower 22 levels, we find it in people. Secondly, they are clean up 23 workers that are exposed to all sorts of things* They may 24 have had exposure somewhere else* Nobody did a pre-entry 39 1 2 3 4 5 B 7 B S 10 11 ia 13 14 15 IB 17 18 19 HO HI 55 53 24 examination on them, which is what you would hava to do to determine whether somebody gets body burdens, or whether somebody*a health is afFooted From a particular exposure. Q UJhat is your opinion, Dr. Kimbrough, as to the source oF the body burden that we all hove? A There are a number oF sources. These types of compounds can be produced through combustion and From incinerators. You gat this particular isomer and many other isomars, also mors highly chlorinated dioxins. It is presently not known whether these more highly chlorinated dioxins are transformed in the environment in lower chlorinated compounds. Than quite a number oF commercial products contain very low concentrations of these materials. 2,4,S-T was usBd a lot and it contained the 2,3,7,8-tetrachlorodibenzodioxin. Hexachlorophsns was made From 2,4,5Trichlorophenol. It also contained trace amounts. That's the gBrmacide that used to be Physohsx. Other processes of combustion such as cigarette smoke. From car exhaust you can get these types of compounds. Always in very low concentrations, But all of it, of course, adds to the burden in the environment. It gets in sediments of rivers and also there are wastes, chemical waste products From chsm&cel companies. 40 1 a 3 4 's 6 7 B a 10 11 IS 13 14 15 15 17 IB 19 50 51 55 53 54 Than From thora It can ba taken up by Flab, and people aatlng the Fish could get burden exposed to these compounds. Now, if I can direct your attention to the second page of Exhibit 1335, your letter to Dr* Logan, the second paragraph on that page discusses other serum samples, does it not? A Yes. Q Uhat Is it that you were reporting to him there? Were these samples that we had looked at In the other exhibits? A Yes. And in the last paragraph that you related to Dr. Logan, what is it that you were talking about there? A About the Fact that there was supposedly 30 parts per billion of e tetrachlorodibanzo-dioxin in the DCP crude end that if this analytical result is correct, the ratio between the DCP crude and the detected dioxin would be three times tan to the minus seven parts oF OCP to one part dioxin, Whan you have such a large ratio, I mould have suspected that the bleed of the workers would have contained some orthoclorophenol because there was just so much more orthochlorophenol than this little bit of dioxin. So that is another reason why these results in the blood really didn't make any sense.____________ 41 1 a 3 4 5 6 7 B 3 10 11 12 13 14 15 16 17 IB 15 20 21 22 23 24 Now, I'm not sura I heard you correctly. Did you use the term three times ten to the minus seven? Would that relate tc thB dioxin or the QCP? A Well, it's three times ten ,to the seven, as far as thB DCF is concerned. In other uiords, there is -- there are nly 30 parts per billion of dioxin in the orthochlorophanol 5o tharB is a tremendous ratio between the amount of phenols arid the little bit of dioxin. Q All right. So under those circumstances you would expect to find QCP -- A Ves, Q -- in the blood if there had been exposure? A Yes. All right. Now, if, Dr. Kimbrough, if all of the 37 or 40 parts per billion, or 30 or 40, or whatever you call it, 30 or 45, or whatever it is, parts per billions had bBsn 2,3,7,B, was it not your opinion thBt that would not be of concern? A Yas. Then why would you be talking to Dr.Logan about needing to figure out whether it was 2,3,7,0 or not? Did it make any difference? A It's always from a scientific point of view, you always want to be accurate. So it was partly to confirm 42 1 that I was right. a Okay. 3 THE COURT: Before you get into your next subject, 4 can lue take a short break? 5 MR. HEINEMAN: Sure. B THE COURT: W e 'll take a short recess. 7 B CShort recess.5 9 10 Q CBy Mr. HeinemarO Dr. Kimbrough, did there coma a 11 time uihen you ran some rabbit ear tests? 12 A Yes. 13 Q And what material did you in order todo that? 14 A I used thB DCP crude, asample from the lot that 15 was spilled in Sturgeon. IB Now was this an environmental soil sample or thB 17 material itself? 18 A No, it was the material itsBlf. 19 20 Defendant Monsanto's Exhibit 1336 was marked 21 for identification by the court reporter. 22 23 Q CBy Mr. Heineman) Lst me hand you what's been 24 markBd as Defendant's Exhibit 1336 and ask you tD examine 43 . 1 5 3 4 5 B 7 B S 10 11 12 13 14 15 IE 17 IB IS 20 21 22 23 24 that and identify it For rr>s please. A This is a report of the rabbit ear test that we did. It's entitled "UolumB UI Dermatoxicity of orthochlorophenol to the rabbit ear." Ch Now, what is the -- what is a rabbit ear test and what's it for and why is it used? A It was developed because years ago we weren't able to analyze For the E.a.T^B-tetrachloradibenzo-diaxin, and we also didn't know really what it was. We Just knew that some of these products, like 2,4,5-T, and particuarly the 2,4,5trichlorDphBnDl in workers that were producing thBse materials occasionally produced the skin lesions called chloracne. And one way to find out whether a particular product would do that was to paint it on the rabbit ear, and then the rabbit ear would respond sort of in the same way people responded, and would get these skin lBSions on its ear. And it's a simple biological screening test for that reaction. What is the -- excuse me, What is the purpose of testing For chloracne either in a rabbit or in looking For it in a human being? A It's a response that can be elicited by 2,3,7,8tetrachlorodibBnzo-dioxin, and compounds that are similar. 1 44 1 In the change you'd get this, a change in the hair 2 Follicles. They dilate, enlarge, and you get little bumps. 3 And is chloracne thought by you to be a reliable 4 indicator of exposure to 2,3,7,8-TCDD? 5 A Yes. It's not the only chemical that causes that, 6 but it is one chemical that will cause that reaction. 7 q Now, would you describe the circumstances of this a test? Did you perform this yourself? 3 A It uias done by a technician undBr my direction. 10 Q All right. Would you tell us what you did on the 11 test, and what the results were. 12 A We took two rabbits. Since this was Just a 13 screening test, we only used two animals.. Ule took a small 14 amount of the material and applied it to the inside of the 15 rabbit ear daily for five days, and then we observed the 16 rabbits to see whether the rabbit would get this chloracne 17 typB reaction. In rabbits you call it hyperkeratosis. IB That's h-y-p-e-r-k-B-r-a-t-o-s-i-s. And the amount that us 15 put on uias a tenth of a milliliter pBr day For five days. 20 5a a total of five/tenths oF a milliliter, 21 Now, was this the -- was this the raw DCP 22 solution, or did you dilute it in soma way? 23 A No, ws didn't dilute it. 24 liihat did you find with respect to the effect of 45 1 B 3 4 5 6 7 B S 10 11 IS 13 14 15 16 17 IB 13 BO El EH B3 S4 the test. A There was skin irritation From tha raw DCP, but there was no chloracne. Now when you say akin irritation, what was the nature oF the skin irritation? A The ears looked sort oF reddish and :there was some increase in the epithelium. There was some microscopic changes. Ule took the ears, and we -- we killed the rabbits and we took the ears and processed them and looked at them under the microscope. Now, iF I look at the last two pages oF this exhibit, I see some -- an autopsy report, two autopsy reports there. Are those in your handwriting? A The lower -- the Final comments, that's my handwriting. Q All right. A The other was dons by the technician.. Does the report oF scarring appear thBre? A Yes. Ulhat sort oFscarring was that? A Wb II, that is the reaction ~ it was a healing of the skin irritation From the QCP crude. Now, to me the tarm skin irritation can mean a wide variety of things, a little reddening, a little 46 1 chapping, but It normally doesn't leave a scar, does it? 2 6 No. But there was more damage than that. There 3 mas -- it wasn't really ulceration, hut It was a severs 4 Irritation. Ulhat we did is we, after w b had applied the 5 material, uib kept the animals for a period of time since it 6 takes:sometime far the chloracne to develop. 7 Q Is the chloracne in the rabbit Bar readily B identifiable? 9 A Yes. 10 Q How about in human beings? 11 A Yes, 12 Q Ulhatconclusion did you reach as a result of 13 finding nD hyperkeratosis in these tuio rabbits? 14 A That there uas no B^^.B-tetrachlorodibenzo^ 15 dioxin in ths OCP crude at concentrations above .5 parts par 16 million, because thB sensitivity of the tBsts -17 MR. CARR: At, uihat level, Doctor, are you talking IB about? 19 THE WITNESS: 0.5 parts per million. The 20 sensitivity of thB test would not dBtect very low 21 concentrations. 22 Q CBy Mr. Heinaman3 And what did you do with this 23 information once you developed it?24 A I mentioned it in my discussions to these 47 1 a ,3 4 5 6 7 a 9 10 11 is 13 14 15 IE 17 IB 19 50 51 55 53 54 different people that kept calling me about the episode and fBit that it uiae another indication that there uias no acute threat to the people. Now, the 0.5 parts pBr million mould be 500 parts per billion, mould it not? A Yes. Q And that's the detection limit of thB test? A Yes. Q Now, uias it your belief that a level -- H R . CARR: Your Honor, I know this is voir dire sort of thing, but h e 's still leading, nevertheless. I must object to it. THE COURT: I don't think there should be any leading questions in this also. Please rephase it. CBy Mr. Heinsman} What was your belief with respect to that Ib v s I in thB DCP being a hazard to someone exposed to it? A I didn't feel that it would be a hazard, because of thB dilution that you would get once it got into this soil and because in the past commercial products contained the concBntraions that were higher. Higher than? A Than the .5 parts per million. Q Now, Or. Kimbrough, I 'd like you to assume that 40 1 s 3 4 5 6 7 B 9 10 11 IS 13 14 15 16 17 IB 13 50 51 as S3 54 there was an isomer specific test performed on the material, on a reserve sample of the material in the tank car, in which it was detected 45 parts per billion of 5,3,7,0-1001); and assuming that level of contamination of the product itself, and that that material was spilled at Sturgeon, da you have an opinion as to whether or not that level of dioxin in that material would be of any biological consequence to anybody at Sturgeon? 0 It wouldn't be to any ofthe people. I'm sorry? A It would not be to the people of Sturgeon. Would it be of any consequence in your opinion to the workers that would be involved in the clean up? A No. With respect to thetown'speople of Sturgeon, why do you believe that it would not be of any biological consequencs? A First of all, if they got exposed to it at all, they would have very little contact with it.. I mean they don't live an the railroad track, or in the immediate area around it. Besides that, you had the dilution that I was talking about, and we at the Centers for Disease Control have established that b v b h for long term exposure, anything below one part per billion would not create a risk to the 49 1 s 3 4 5 6 7 8 S 10 11 15 13 14 15 IB 17 18 13 50 21 22 23 24 people living in such a contaminated area. This is for life-time exposure. Noli, you suggested that the people would not be living in the immediate area. What do you mean by immediate? I would suggest to you that there were homes nearby the railroad track. I mean within a couple hundred fBet perhaps of the railroad right-of-way. Do you believe that people living in the homes that close to the railroad right--of--way would ba in any hazard at all in connection with this concentration that I 've just given you? A Not with these concentrations, and besides that most of the material was carted away. Now, what are the factors in your view that lead to your conclusion Df a lack of biological effect? A One factor is the dilution that you get. The information that I received was that in' most of the soil samples the concentration was diluted by about 10 percent. So if the highest level of TCDD were 45, that would get you down to 4.5 parts per billion, which is very close to the one point par billion level that we establishd for residential areas. You would not have anybody gardening on the railroad track, or right immediately adjacent to it. So there would not be intimate contact with whatever soil was 50 1 s 3 4 5 B 7 B 9 XO 11 12 13 14 15 16 17 IB 19 20 21 22 23 24 left. The material -- most of the material mas removed. And so by the time you go through all of that, there really isn't anything lBft. Now, what is -- do you have an opinion with respect to photodegradation of 2,3,7,8-TCDD and whether that occurred? A It occurs when the material is expoussd to U.U. light. It disappears very rapidly. There's a paper by Crosby, I think, where he said within 24 hours. Some people say within 36 hours. UJe use it, or havB used it as a process of decontaminating laboratory service on surfaces, where if you spilled something and then you uss U.U. light you can decontaminate you lab. But if the sunlight, or U.U. light can't get to thB material, then, of course, it doesn't break down. Q Now, would you differentiate -- HR. CARR: I couldn't hear the last part of the witness' answer, your Honor. THE COURT: Could you repeat the last part of your answer, please. THE WITNESS: I said that if the sunlight does not gat to the TCEJD, then, of course, it can't bB broken down. In other words, it's on surfaces -- MR. CARR: I 'm just interested in what you said. 51 Ydu don't need to explain it to me. THE WITNESS: Okay. MR. CARR: IF that is uihat you said. 4 THE WITNESS: Yes. 5 CBy Mr. HeinemanD Now iF you use it in the 5 laboratory, that is ultraviolet light, to decontaminate a 7 laboratory, do you have any soil or anything that the B material would be adhering to? Would that affect the 9 ability of it to photodBcompose? 10 A No. Wb don't havB soil usually. I don't know. 11 MR. CARR: I couldn't hear that, understand the 15 last oF that answer either. What was thB last 13 THE WITNESS: I do not know -- 14 NR, CARR: You don't know? 15 THE WITNESS: -- whether the fact that it is 16 absorbed to soil affects that. j 17 CBy Nr. Heineman) Are you familiar with the IB Crosby -- 19 NR. CARR: Your Honor, this is leading again. 50 THE COURT: Objection is sustained. It is 51 leading. Gentlemen, could I see you at the bench For a 55 minute, plBase. 53 54 CTha Following proceedings were had at the bench.1 55 1 s 3 4 5 6 7 a a 10 11 15 13 14 15 16 17 IB 19 50 51 55 53 54 THE COURT: Okay. W e 'll break for lunch at this time. Wb '11 start again at 1:00. CLunch recess.5 CBy hr. HBineman) Dr. Kimbrough, Just before we broke at the lunch break I was asking you about photodegradation. Do you recall that? A Yes. You had mentioned that you used ultraviolet light In the laboratory. A Yes. You had mentioned that you used ultraviolet light in the laboratory to decontaminate surfaces; correct? A Yes. Q And then I asked you about whether TCDD being attached to soil, adhering to soil mould have any effect. A Yes. And did I understand you correctly to say you don *t knou? A Yes. I don't knom what the rate, whether the fact that it was with the soil would influence it in any way. Do you have an opinion whether TCDD adhered to 53 1 1 5 3 4 5 5 7 a 3 10 11 12 13 14 15 15 17 IB IS 20 21 22 23 24 soil would photadecompose at all? HR. CARR:. Your Honor, even in this context, I think the. witness has to ba shown some expertise in this area. ~ THE COURT: Can you lay a foundation for that. CBy Mr. Hainaman^ Dr. Kimbrough, have you in your capacity, have you studied the subject of photodecomppsitian of TCDD? A Yes. I've used it, and in connection with safety in .laboratory decontamination. And have you dans any work or reviewed any literature with respect to photodecomposition of TCOD in soil? A There have bBsn some recent papers that have discussed that. Q What papers are those? A There was some documents that D r . Schroy sent me and thBn there was some work that the Air ForpB did. Earlier, some of which is more in documents rathBr than -- I'm sorry, I didn't hear the last part. A It's in these Air Force documents that they put out. All right. What Air Force Study in particular are you referring to? 54 1 A This is at the Eglund Air Force Base. In those 2 documents there's reference made to the photodegradation. 3 Q All right. Now, based upon your review of that 4 literature that you've mentioned -- 5 MR. CARR: Your Honor, I submit this is not 6 sufficient qualification for an opinion. 7 THE CDURT: The objection is well taken. 8 Sustained. 9 MR. HEINEMAN: Do you have Exhibit 15557 10 CBy Mr. Hsinsman) Dr. Kimbrough, let me hand you 11 what's bBen previously marked as Plaintiff's Exhibit 1555, 15 and I wonder if you would examine that and identify it for 13 the record, please. 14 A It's a paper which I wrote on the ''Health 15 Implications dF 5,3,7,0-tetrachlorodibBnzpdioxin CTCDD) 16 Contamination of Residential Soil." 17 Q And what -- you say you wrote it? IB A Yes. 19 And when did you write it? 50 A It was started in 19B1 and then went through a 51 number dF revisions, and was finally publishd in 19B4. 55 Q Was thedocument peerreviewed? 53 A Yes. 54 Q And did you incorpoate comments of consultants? 55 1 b 3 4 5 6 7 B 9 10 11 IB 13 14 15 16 17 18 19 20 21 22 23 24 A Yes. Nam, why did you da this document? Why did yau write this document? A In Missouri aFter uie had uncovered the contamination of TCDD in the riding arenas in 1974, there uierB, subsequently to that, rumors that there was more contamination and so on, so eventually the Environmental Protection Agency reopened the investigation and did Further analysis of various -- oF soil in various areas in Missouri. They Found additional contamination with the 2,3,7,0tetrachlorodibenzo-dioxin. nee they learned this, they thBn asked the Center For DlsBasB Control, and they spBciFically invited me to come to Kansas City to discuss this with them. One oF the issues was thB Ib v b I dF contamination oF soil -- with TCDD in the soil, and at what concentration they should be concerned and what we thought oF that From a health point of view. And having made some calculations, I suggested that a level oF concern should be in residential areas above one part per billion. Anything below one part per billion uib would not have to be concerned about at all, AbovB that it would then depend on the situation in the particular area, whether we would have to taka remedial action. 56 1 The question tuas also asked of us far the reason e of analysis, in other words, the chemist wanted to know how 3 far down do they have to measure. As you go down in your 4 measurements the analyses become more and more complicated, 5 and so they wanted to have a cut-off. In ordBr to 6 competently detect one part per billion we made that cut off 7 to a high net parts per trillion. a Subsequently to that we felt that we should ' 9 document this advicB, and we also asked consultants to 10 consider this further. And that then eventually resulted in 11 the publication of this paper. 12 Doctor, what is a tolerance level? 13 A It's a level that is set for a chemical in a 14 product, usually by thB Food and Drug Administration, for 15 instance, or by the Environmental Protection Agency. IE Is this one part per billion set forth in 17 Plaintiff's Exhibit 1255? Is that a tolerance level? IB A No. You see, the Centers for Disease Control is 19 not a regulatory agency. It's a health advisory. 20 Do you consider the one part per billion in soil 21 to be thB equivalent of a tolerance lavel? 22 A No. Because it is specific for areas rather than 23 something that should be applied throughout the United 24 States. It Just depends -- you could have levels that could 57 1 2 3 4 '5 6 7 B 9 10 11 12 13 14 15 16 17 IB 19 20 21 22 23 24 be higher in certain areas. This was specifically for residential areas where you have small children. We only felt that bBloiu that Ib v b I there shouldn't be any concern because you then get -- from a"health point of view you don't have any problems. In addition to that you get into background levels in the environment. UJhat do you mean you get into background levels? A There is, because of the use of 2,4,5-T, for instance, because of the incineration problems, there is background contamination in general in our environment. Host of the levels that uib have found havB been in the low parts per trillion range. Q When you said you found them, you mean as background? A Well, if you have a point source, for instance in a -- you have a chemical dump whsrB you found TCDD, and you go out from that dump to try and determine how far the contamination goes, you eventually .and then if you have control areas, eventually get to a point where you will pick up TCDD, but it's no longer related to the dump area. It's in that way when we made those types of studies that we found that there is TCCC. Not everywhere, not in every sample. But you find it. Now, how is the background Ib v b I related to the 50 1 s 3 4 5 6 7 S s 10 11 15 13 14 15 16 17 IB 19 50 51 55 53 54 ns part per billion? A It's much below that. It's in parts per trillion levels. Now uias it your intention when you authored this paper that one part per billion be a action level? A Action level, of course, means different things to different peoplB. But what my intention was, was to say, well, here we now have a level that's one part per billion, or maybe that's above that. LBt's look at the area, and see what's going on. How uniform is the contamination, and do we have to do something. Do we have to remove soil? Do we havs to keep people from having access to certain areas? In those typBS of public health service measures, you would then have to consider and review the situation. Q Would an industrial or commercial site be something that you might review? A Yb s . But then we would review it, yes. But then you could leavB higher levels there. We've done that in certain areas. What is your opinion with respect to a railroad right-of-way? A It would fall more into the commercial areas. And would you consider one part per billion in soil to be a level of concern in a railroad right-of-way? 53 1 5 3 4 5 6 7 B S 10 11 IE 13 14 15 16 17 IB 19 20 El EE S3 54 ft Not necessarily. What mould be the considerations that mould enter intD your conclusion? ft It mould depend on mhet the activities mere in that area and luhat type of exposure people might have, those sorts of things. All right. What specifically mould you have in mind in terms of making an assessment? ft In residential areas, the major exposure mould occur in toddlers, and the concern there mas the ingestion f soil, that mhen children play outside they mould Bat sail and then they mould get a certain dosB from the sail. You mould not have to be concerned about that mith gromn-ups. Most of the exposure there mould be through the skin. The absorption of the material from soil into the skin is much less than mhen you ingest it. So the dose drops precipitously. Nam if that is one of your criteia, horn mould you thBn relate to a railroad right-of-may in tBrms of the one part per billion? ft The one part per billion mould certainly be safe and you mould be able to leave higher Ib v b Is . Well, for example, did you previously come up with a figure a moment ago of 4.5 parts per billion mhen you took 60 1 45 and took 10 percent d F it or something like that? 2 A Ybs . 3 Q All right. Now would a 4.5 part per billion level 4 in.soil be a concern to you as the author of Plaintiff's 5 Exhibit 1S55? " 6 A No. Da made some calculations For the state of 7 New Jersey, where there were commercial areas where the B Ib v b Is warB five to seven parts per billion, and we advised 3 the state of New Jersey that since it was a commercial area 10 they would not have to take any remedial action. 11 Q When you say -- well, let me ask you this: would IS FiVB' to seven parts per billion be as high as you would be 13 willing to go, in terms oF a level of,concern in a commercial 14. area? 15 A No. But those were the levels that were there. 16 Q All right. Would you consider levels in soil oF 17 one part per billion or less to be safe? IB A Yes. IS And why -- on what basis would you reach that E0 conclusion? SI A The amount of exposure, the amount of up-take you SS would gat in a situation like that, over a liFetimB would S3 not increase your risk oF developing adverse health effects B4 From that type of exposure. 61 1 2 3 4 5 6 7 B 9 10 11 IS 13 14 15 IE 17 IB 19 SO 21 E5 23 24 Would that be true In a residential area? A That's For a rssidential area. That's uihat our paper was based o n . Q And in terms oF a commercial or industrial area tuould you raise that levsl -- that, quote, safe, unquote, level higher than one part per billion? A You could. It would depend on the situation. It would depend on who was there and what people were doing that. With respect to the background levels, I think the parts pBr trillion that you mentioned, has the Center -for Disease Control observed any harm to human beings From those background levels of TCDD? A No. What indicators do you look at in reaching that conclusion? , A You can't really, examine psople individually that livB in -- just live anywhere. But by making surveillance type observations in the general health of the papulation you can determine whether there are changes in their well being. And havB you made such determinations? A The Centers For Disease Control and also the National Center for Health Statistics doss, and to some 62 1 extent the National Cancar Institute do these types of 2 surveys, mortality studies. U)b have a birth defect program. 3 L)b havB a number of these typBs of programs where we do the 4 surveys. 5 MR. CARR: If I might get the record corrected, T 5 submit that I 'm not examining thB witness now, but Counsel 7 asked if you had done such work, the witness responded with a work that pBrhaps others at CDC did, or that NIOSH did, and s the record could interpret it to mean that she has done 10 that, and it might as well be corrected now, rather than 11 later. le THE COURT: I was unclear on that also. Could you 13 clarify that or follow it up rather, I suppose. 14 CBy Hr. Heineman} Dr. Kimbrough, what work were 15 you referring to in the testimony you Just gavB? 16 A I was really referring to the work that's done in 17 general by thB Public Health Service, and, of course, I am IB invloved in parts of that and I read about it. IS All right. BO A But I'm not the only one that's doing that. 21 How are you involved in parts of that? 55 A Wall, whBn us da studies in different areas, I -- 23 in other words epidemeology studies to determine whether B4 people in certain areas have been affected by something, you i 63 1 2 3 4 5 6 7 8 9 10 11 ia 13 14 15 IB 17 IB 19 20 21 22 23 24 also need to havs control groups. And in order to do your studies, you need to know what the base lines are of wall being, or qf poor health in the general population. So you're very much concerned with background disease in the general population, otherwise you' couldn't do studies at all. It's in that connection that I concern myself uiith that. Now, I'd like you to assume that there has bean a chemical analysis done of some soil from the railroad rightoF-way in which 65 parts per trillion of TCDD have been found. All right. Would you consider that to bB of any biological significance or any hazard or risk of any kind to any resident of Sturgeon? A No. In terms of the background level or levels which you talked about before, uhBrB would 65 parts per trillion stand in terms of what you observe in the other studies and tests that u d u 'v b done? A It depends again if you are in a rural rea where a lot of 2,4,5-T has been used in the past, you sometimes may find such levels. You may find them on right-of-ways whBre they havB used a lot of 2,4,5--T for control of vegetation. MR. CARR: I didn't hear that, Find it in what B4 1 E 34 5 E 7 B S 10 11 IB 13 14 15 IB 17 18 15 20 51 55 53 24 areas? THE WITNESS: The right-oF-ways -- MR. CARR:: The right-oF-ways, All right. Thank you. THE WITNESS: -- For high tension powBr lines and thosB sorts d F things. They've used a lot oF 2,4,5-T. CBy Mr. Haineman) Would the same in your opinion apply to a railroad right-of-way? A It's possible. I would -- if I made such a Finding I would go out and get additional samples From other areas of that railroad track to see whether that's a background level. Now, to your knowledge has EFA made a list of dioxin sites in Missouri? A Yes. Have you or your study there in 1255, to your knowledge, participated in any way in that -- in thQ accumulation of that .list? A I'm sorry, I didn't understand. Did we do thB analysis or -- D I'm sorry. No. What I 'm asking is in the compilation of that list by EPA, have you or has CDC participated in that compilation? A We did not compilB thB list. Ws only reviewed 65 1 5 3 4 5 E 7 a a 10 n 15 13 14 15 IB 17 IS 13 50 51 55 53 24 soma of thB information that they accumulated in the analysis. And the other -- other thing we did early on, mas because EPA usss a lot of contractors for their laboratory uiork, we were concerned about the proficiency of the laboratories. Ids sent our chemists out to assure that the analyses uiould be correct that mere done on the soil. Did the EPA use, to your knowledge, the risk assessment that *s comprised in your paper there, Exhibit 1255, in making that compilation? A Yes. And did youparticipate with them in doing so? A They would measure soil levels, they would get the results of the soils that they had analyzed, and then they would send us that information and we would review it. In that respect we were involved with making these lists. All right. Now is Sturgeon, Missouri on the EPA list of Missouri dioxin sitBS? A No. Do you know why it is not? A Because the levels are too low.There's no TCDD. The levels are too low. Now, with respect to your paper, this Plaintiff's Exhibit 1555, I 'd like to direct your attention to the second page of the exhibit which is actualy numbered 4 B . 6S 1 s 3 4 5 E 7 B 3 10 11 12 13 14 15 IB 17 IB 19 20 51 22 23 24 What sort of estimations have you mads of risk with respect to TCDD7 Wall, strike that. That's too -- do you bolisvs thB risk estimates that you'vs mads are actual risks? A No. They are a very conservative prediction which is most likely overly conservative. But if you work for the Public Health Service, you want to error on the side of safety in order to protect the people. Noui with respect to TC00, do you have an opinion as to whether or not TCDD is a carcinoQan. And I'd like you to direct your answer both to animals on the one hand, and human beings on the other, if you would, plBase. A It has been shown to cause tumors in rats and also in mice. It is considered to be what .is called a promoter, in that it makes it easier for tumors to develop out of cells. It hasn't been shown -- we haven't been able to substantiate that it causes cancer in humans. But because it is a promoter in animals, in order to protect paoplB we have treated it as a carcinogen. When you say you have treated it as a carcinogen, in what context ars you -- A In this risk assessment. In other words, because of thB findings that we made in animals, there might be a possibility that it might have similar effects in humans, although we've never been able to demonstrate that. Because 67 1 f that we made a risk assessment, basBd on the animal 5 cancer studies. IF that Finding uias not there, then it is 3 common to simply use a safety Factor For other toxic 4 effects. 5 In your opinion, would the doss response principle B apply to TCDD in terms of carcinogenicity? 7 A The dose response curve always applies;. In other 9 words, IF you -- you have even -- you can show that the 3 animal studies that we have show that. IF you get less of a 10 dosB, you get less animals with cancer. And as you reduce 11 your dose, eventually it -- you're just not able to show 12 that anymore. 13 What do you call that point where you're just not 14 able to show that anymore? 15 A It's a threshold that people talk about. 16 Is ;the term N.O.E.L. applicable? 17 A ThB No Observed EFFect Level, which is another IB term For it, that tBrm changes all the time because of IS different concepts. 20 D In your opinion is there a No Observed EFFect 21 level or threshold level For promotion? 22 A I think so. 23 And what do you base that on? 24 A There are animal experiments where different doses 6B 1 have bean given where at lout doses you don't gat any tumors 2 You can than argue that if you had used mors animals, maybe s 3 in a Few of those animals you might still find tumors. 4 You can extend that far awhile. But eventually 5 again you will end up not getting an increase of tumors over B background tumors in animal9. 7 The other thing is that there are many, many . B promoters that people gat exposed to that occur naturally. 9 In food anti in air and -- I mean we all should be really 10 wiped out if all these low level promoters would cause an 11 effect, The other thing is that once you get it in these 12 very low concentrations, sometimes because you're exposed to 13 so many different things, they actually may cancel each 14 other cut. There's a lot that really still needs to be 15 worked on to sort that out. IE Da you have an opinion as to whether or not one 17 molecule of dioxin could cause cancer? IB A Not in practice. 19 I 'm sorry, I didn't understand you. 20 A Not in practice. I mean there are pecplB that 21 cdidb from molecular biology, chemically thsse series. But I 22 don't think that's the c s s b . 23 ,,Q And why not? 24 A First of all, the molecule would have to get to S3 1 tha target c b II, and mould have to affact the call. Than -- 5 and that goBS through -- it First of all has to gat into the 3 body, than it has to go from tha stomach, lat's say, to tha 4 liver, or to tha lung. It may not aver really be absorbed. 5 It may Just be excreted. ,, 6 Than a promoter does not act tha may an initiator 7 does in that it just hits the DNA, and that's it, and B there's a change in tha cell, and than eventually the cell S will develop into a cancer. It has to be there for long 10 periods of tima. 11 Uls also know that although the 5,3,7,B15 tBtrachlorodibanro-dioxin is persistant, it will eventually 13 be BXcretBd. So the body would gat rid of it. U)@ know From 14 people that stop smoking cigarettes, and tha compounds that 15 cause lung cancer in people are promoters, and that once 16 they stop smoking cigarettes, after a period of about 10 or 17 15 years thair lung cancer rata drops, so that thsy are back IB to background. IS That tBlls you that in order to get cancer From a 50 promoter, the promoter has to continuously be there. But 51 since the body also excretes TCOD, unless you are 55 continuously exposed to this material, you won't develop a 53 cancBr, So all aF that doesn't Fit with this one molecule 54 idea. 70 1 a 3 4 5 6 7 8 3 10 .11 15 13 14 15 16 17 IB IB 50 51 55 33 54 Dr. Kimbrough, if there is a background level in the human population of TCDD in adipose tissue, does that indicate that there is a constant exposure to TCDD? A Yes, it ia. But the levels are -- the levels are so low that it wouldn't have a sufficient impact to make any difference in people's health. Would it havB a sufficient impact to act as a promoter? A I don't think so. You see, I was talking about -- and again cigarette smoking is a good example that just has \ ' been istudied morB, his are also exposed to these same types | of cHsmicals at much lower concentrations through air in j general. But still the people that quit smoking have a much lower incidence of lung cancer. The other thing is that once exposure is reduced, and even if you are exposed, there's also repair, which we seem to forget. Repair of what? A_ The body tries to repair itsBlf- For instance, if you have damage to DNA,'then the body tries to get rid of that, excreta it. Humans are much better able to do so than rodents. Q Dr. Kimbrough, with respect to the roots of BXposurB that are discussed in your paper, Plaintiff's Exhibit 1555, is in your opinion exposure to TCDD in air of. 71 ( 1 any significance ? 2 A No. 3 In making your risk assessment, have you taken 4 into account inhalation of vaporized TCDD7 5 A No. It doesn't really vaporize. E Noui why do you believe it's insignificant, and why 7 do you believe it doesn't really vaporize? B A It has a very lorn vapor pressure. I talked to -- 9 as 1 said, ids had a group of consultants. I talked to a 10 number of chemists. We discussed all of this. I called c 11 people on the telephone. I cams to the conclusion that 12 after making calculations, what the amount could possibly be 13 that could be in air, or what you might get an dust From 14 soil in vegBtatBd areas, that it really had no contribution 15 to thB exposure that people were getting through skin and 16 ingestion of soil. 17 The only area uihers that might create a problem IB and mould have to be considered mould be in enclosed riding 19 arenas, because mhen the horses ride around, if you don't 20 control for dust you do havB development of dust. I asked 21 the Environmenal Protection Agency actually to measure that. 22 And I still don't have the results. 23 0 Norn, Dr. Kimbrough, I 'd like to direct your 24 attention, if I may, to the Missouri Dioxin Health Study. 72 1 Are you familiar with that study? 2 A Yas. 3 Q And did you have any participation In it? 4 A I was initially involved in the design of the 5 study and in discussing with the people that wBre actually E executing the study on hotu tD organize it and the flow of 7 specimens and that sort of thing. And then I reviewed a a draft of thB rBport. 9 Who were thB people that you were meeting with or 10 talking with in connection with the design of the study? 11 A QnB was Richard Hoffman, who w a s -- well, hB still 12 is an EIS officer who was assigned to the state of Missouri, 13 Henry Falk who works at CDC in Atlanta. Ha's.an 14 epidemeologist. And then Dr. AyBr and Dr. ttfebb from St. t 15 Louis, I guess, Missouri. And Dr. Darnell from the Missouri 16 State Health Department. 17 Q Is that H. Denny Donnell IB A Yes. 19 Now when you say you worked on the original 20 design, what do yo mean by the design? 21 A Well, we talked about how to estimate exposure, 25 for instance, of the people. And the typss of tests we 53 should do that would be most useful in detecting early 24 health effects, because w e 're talking about relatively low 73 1 exposure, and what would give us ths most mileage. And then 5 the other sorts of conversations, such as how to transport 3 ths specimens and how to make sure they would be all right, 4 and who should do the analysis. 5 Q In dasigning the study were you looking for health B effects? 7 ft Wa designed the study to, if there were any health B effects, that wb would have tha sensitive measures. We 3 didn't rBally necessarily expect any health effects. We 10 were hoping that -- and we still hope that thB population 11 really hasn't been exposed to enough TCDD that there will be 15 health BffBCts. 13 Q Were you trying to hide or disregard health 14 effects in any way? 15 ft No. We were -- what we were trying to do was to IB see whether there was anything at all, and that's part of 17 ths reason why I was involved, in trying to make the tests IB as sensitive as possible. We werB also concerned that the IS group of people we were looking at was not particularly 50 large. 51 MR. CARR: I'm sorry, I didn't get that last ward. 25 LargB? 23 THE WITNESS: Yes. The number of people. 24 MR. CARR: That's all right. I just wanted tha 74 1 5 3 4 5 6 7 0 3 10 11 12 13 14 15 15 17 IB IS 20 21 22 23 24 last word. CBy Mr. Heineman) Now the study defines a high risk group and a loui risk group, does it not? A Yea. MR. CARR: Your Honor, it was leading. I wish the witness would describe what it shows and not Mr. Heinsman. THE COURT: Yes. Could you rephrase. CBy M r . HeinamanD In your design of thB study, Or. Kimbrough, how did you set up the group that you looked at? A Ule took a group of people that were exposed in Times Beach that had had relatively high exposure tD that area, and that we called the high risk group. Then we established a control group, which wa called the low risk group. Figuring that that group really hadn't had any exposure. You can never get away from background. what do you mean from background? A Wall, the general population we do have vary low background levels. But it's a control group. How did your low risk group -- while in designing the study, how did you account for the background level in detemining a low risk group? A Well, they were simply representing the general population. 75 1 By the general papulation, thB general population 2 of what, where? 3 A OF that area in Missouri. 4 Q Did yaur low risk group come From any areas of 5 contamination? 6 A No. 7 With respect to the high risk, group, what a determinations oF exposure did you make there? 9 A UJe simply had the soil analyses From the areas 10 that these people were living in and we administered a 11 questionnaire to try and determine how much contact they 12 actually had with that area. UlB're now trying to Follow 13 that up by measuring and actually measuring adipose tissue 14 levels. But that's a very slow process and not everybody 15 wants to donate fat. IB In order to find the effects to the people.in the 17 Missouri Dioxin Health Study, in your opinion, could you IB combine two groups in order to find the total number of 19 people that had a particular condition ycu were looking For? 20 A N o , 21 22 f 23 Why not? A Bb c s u s b ana is a control group. Well, now did you find -- 24 MR. CARR: Objection, your Honor. Well, never 76 1 5 3 4 6 6 7 B 9 10 11 IS 13 14 15 16 17 16 19 50 51 55 53 54 mind. CBy Mr. Heineman) Did you find soma of these conditions in the control group? A You always find abnormalities, some abnormalities, if you do papulation studies, in the controls, as well as the exposed. The reason you have a control and an exposed group is to see whether whatever you*re looking for and what you think a chemical causes is mors frequent, because a lot of things are very non-spacific. In your opinion -- well, do you have an opinion as to what the Times Beach Study or thB Missouri Dioxin Health Study actually found? A Ue really didn't find anything important, anything of any importance. There was some changes, but they really didn't indicate any disease. UJs're doing additional studies in other people to get more information. Q I'd like to ask you your opinion as to whether or not chloracne is a marker for biologically affective dioxin exposure? A Ybs . Do I understand -- what is your opinion? A Well, usually when people have had exposure to dioxin where they have any sort of illness, one of the things that they also have is chloracne. 77 1 Now chloracne can be caused by contact of the skin s with the chemical, with the 2,3,7,8-tBtrachlorodibBnzo3 dioxin, It*s possible that you can have chloracne without 4 having any other effects because of this local effect. 5 Dn the other hand, At can be part of a systemic 5 disease in that people will have chloracne, they will then 7 also have other things. B Now, if a -- if a population has been exposed to 9 dioxin and had a sufficient dose to cause systemic effects, 10 would you expect to find chloracne in that population? 11 A Yes. 12 To what BXtBnt? 13 A In -- probably in mastpeople. There is some 14 argument there, and I don't think anybody has an answer, 15 that you might have some peaplB that would not develop 16 chloracne, that would also have bean exposed. But the 17 majority of people would show chloracne. IB If you had a group with no chloracne in a 19 population allegedly exposed to dioxin, would you Bxpect to 20 find any health problems attributable to dioxin? 21 A I would not expect tofind any acutehealth 22 effects. 23 How about long term health effects? 24 A Of course, the problem is that in these situations 70 1 2 3 4 5 5 7 B a 10 11 12 13 14 15 16 17 IB 16 20 21 22 23 24 you usually remove people From exposure. Once you have done so, than you wouldn't expect to see anything else later on, or at least my experience has been that you don't so far* IF you had continuous exposure, then it mould depend on the doss. hJe've talked about the background levels in the general population that don't seem to causa any- effects. If you had much higher levels -- I don't have an answer for that. The only answer I have is that in people that have had high exposure, we haven't really been able to come up with counterfeits either. Q Would you expect, if there were 4.1 parts per billion of 2,3,7,8-TCDD in thB soil, would you expect long term exposure to soil with that level of dioxin in it to cause any health BFFects? A No. Q Why is that? A Because the dose is too low. I mean the amount is too low. The amount people would get would be negligible. Dr. Kimbrough, I 'm going to hand you some exhibits which have been previously marked in evidsnce. Ths First is Plaintiff's Exhibit 1627 and Defendant's Exhibit 1266. Now if you look in the beginning of 1627, particularly at page U I . Do you see that? 79 1 8 Yes . 5 What is that list of people? 3 A It's a review panel of -- it's entitled 4 Pnlychlorinatad-dibenzo-para-dioxin, pear review panel 5 members, which met July 27, 2B and 29, 13B3 in Cincinnati, 6 Ohio. 7 811 right. Now are you on that list? B 8 Yea. 9 811 right. Now would you tell me did you attend a 10 meeting in July of 13B3 in Cincinnati, Ohio? 11 8 Yes. 12 Q 811 right. What occurred at that meeting? 13 8 tile were given actually three drafts of preliminary 14 documents that the EP8 had developed to try and sat what 15 they told us at the time they were primarily concerned about 16 was a level of TCDD in water. 8nd they had written these 17 documents to support that level. 18 There was also something about soil, but they felt 19 it was -- I was told that they weren't that concerned about 20 that, they were primarily concerned about the level in 21 water. They had something on air. 22 They said that the back up information for these 53 three documents was the same and we should Just concern 24 ourselves with that. There were a number of these different BO 1 5 3 4 5 6 7 B S 10 11 15 13 14 15 16 17 IB IS 50 51 55 53 54 people liatBd, and we had rather heated debates at thia masting. All right. Ndui at tha conclusion of that meeting -- well, first of all, is Plaintiff's Exhibit 1BS7 and Defendant's Exhibit 1566, are those,the documents that you reviewed at that Cincinnati, Ohio mBBting? A 1 had the feeling they weren't quite this thick. But I would have to -- they certainly didn't have this heading. They were Just pieces that I got, that they sent IIIQi Did they have a title of some sort? A In the titlB there was something about soil in ana of them, and about water in tha other. It had TCDD in it. I don't think it was called a health assesssment document. But I would have to go back to my -- MR. CARR: I didn't get that. They ware called a health assessment document? THE WITNESS: I don't think they wara. MR. CARR: Okay. THE WITNESS: But I would have to go back to my records to determine that. CBy Mr. Heinsman^ Doctor, were the two documents that you have before you, Plaintiff's 1557 and Defendant's 15G6 ever sent to you for your reviBu or comment? B1 1 A No. The only thing I saw uiBra these drafts before s the meeting. 3 Q Did the EPA ever get back to you after that 4 meeting for comment with respBct to what had gonB on at that 5 meeting? 6 A N o . I was rather critical. 7 Critical Df what? S A Well, thB first thing was that they were setting a 9 water Ib v b I that you couldn't measure. I felt that that was 10 rathBr ridiculous. There were a number of other things that 11 I didn't agree with. 12 Now with respect to Plaintiff's Exhibit 1BG5, if 13 you look at the beginning of that on page UI, do you see the 14 same kind of list? 15 A Ybs . IB Are you listed as a peer review panel member 17 thBrB? IB A Ybs . 19 Q Did you ever see this docment, Plaintiff's Exhibit 20 1555, before it was published? 21 A N o . 22 Was it ever submitted to you or any draft of it 23 ever submitted to you for comment? 24 A No. The only thing I was involved with was the 82 1 meeting in 1SB3. 2 Dr. Kimbrough, I'dlike todirect yourattention, 3 if I may, to pages 11-BB and 11-B3 in Exhibit Number 1665. 4 In addition, pages 11-90 and 11-91. I would like to ask you 5 if you agree with tha assessment made on thosB pages with E rsspsct to the Fingerhut review of soft tissue sarcoma. 7 A No. B Q UJhy not? 9 A Because of -- MarilynFingerhut works at NIOSH, 10 the National Institute of Occupational Safety and Health, 11 and she did a very careful examination of this problem, and 12 partly on my urging, which I had done earlier, she also had 13 the tumors reviewed by pathologists that are competent in 14 thB morphology of soft tissuB sarcomas. 15 She found that, number one, tha diagnosis of thB 16 soft tissue sarcomas are not always correct made by general 17 pathologists simply because they're rare tumors, and general IB pathologists havB little experience with it. And she also 19 very carefully looked at and reviewed the exposures that the 20 workers had had. And I havB great confidence in her, and I 21 think she's a very competent person. I don't -- thesB 22 people don't have any -- it had no direct relation to that 23 study. 24 Q So do you agree with everything that's in this B3 1 s 3 4 5 6 7 B 9 10 11 IS 13 14 15 15 17 IB 19 90 21 22 23 24 book? A No. I mean I don't really know what's In the book. But I certainly don't agree with this. Q Nout Dr. Kimbrough, I'd like to ask you your opinions with respect to porphyria and whether porphyria is caused in human beings by exposure to 2,3,7,9-TCDD. Da you have an opinion on that subject? A That's some debate. It's really not clear. The only time it has been described has been in two plants, one is the Diomond Shamrock Plant, and the other one is the plant in Czechoslovakia. I can never pronounce it. Spolana, or something like that. That Dr. Jirasek reported. In both of those plants you have other exposures, and what's puzzling is that in BBrmany in the plants where you had really severe outbreaks, particularly at B.A.S.F., they didn't find any porphyria. And so -- at Nitra ws didn't find any porphyria. So it's possible that TCDD par se doesn't really causa porphyria cutania tarda in people. Now, what other chemicals were they exposed to at 5polana and Diamond Shamrock that might have caused thB porphyria? A Both places apparently had hexachlorobenzene, and so thB workers were also exposed to that. Hexachlorobenzene caused a severe poisoning outbreak in Turkey, where all the B4 1 2 3 4 5 E 7 Q 3 10 11 12 13 14 15 IE 17 IB 19 20 21 22 23 24 people bad porphyria cutania tarda. Now can -- wall, diFFerentiatB For me, if you would, please, between porphyria cutania tarda, porphyria, and abnormal porphyrin levels. A The disease is something that starts in the livar. It is an enzyme, this uroporphyrinogan decarboxylase. IF that's inhibited, thBn you gat mors oF these types oF porphyrins. OncB they -- and they are excreted in urine usually. Once they reach a relatively high level, people will then became aFFected in that they -- the skin color changes to some extent. They become more sensitive to sunlight. They gBt blistering. Usually in combination with that you get increased hair growth. The people, For instance, in Turkey very much resamblBd the pictures of warewolves. You can get increased pigmentation in taBth. That's the porphyria cutania tarda. That's sort oF the end stage oF this. The early changes that have been noted are really not -a dissasB. You simply have increased excretion of soma oF these porphyrins. Dr. Dos has developed a classification where he calls vary early changes which are not really an increase in porphyrins, in urine, it's simply a change in the ratio, Type A, and then once you gBt a slight increase it's Type B BS 1 2 3 4 5 6 7 B 9 10 11 12 13 14 15 IE 17 18 13 20 21 22 23 24 and Type C, and l*ils Type D la the disease actually. Ule have dene quite a number of testa on urine and screened populations. The Type A seems to be a normal variant in the general population that is unrelated to any sort of exposure. Wb 'vb seen many people uiith that. There are people in the population that normally have a dafact of this enzyme, this uroporphyrinogen decarboxylase, inhere that either is depressed or it's really not in the liver. They mould be much more sensitive to certain types of exposures. It's nothing that specific either for TCDD or for hexachlorobenzene. People that drink a lot of alcohol might shout changes in their porphyrin metabolism. So mould women that are on birth control, pills. People that take barbiturates or other types of medications. So in-order to sort all this out you mould have to take a very careful history on these people. Q Is there any -- - nom mhen you're talking about thBSB porphyrins, and these porphyrin abnormalities, are you talking about only those that are induced in some may, or are you including genetic porphyrias? A Well, there are different types of porphyrias. I am only talking about thosB porphyrias that are as a result of an effect on this particular enzyme in the liver. There 66 1 are other typBs oF porphyrias that rsally originate mors in the bone marrow. 3 You can -- there are people that have congenital 4 defects that thBy can havB a -- I mean there are a number of 5 diFFBrent types -- I don't want to give a lecture -- that 6 are unrelated to this type of porphyria. Lead, For 7 instance, causes increase oF excretion oF cbproporphyrin. B What does? a A Lead. But that's a diFFerent type oF porphyria, 10 that doesn't really start in the liver. n Q Now do the genetic porphyrias start -- are they -- IE do thBy aFFect the livBr? 13 A No, not all oF them. Just one type. 14 What's that? 15 A That's the porphyria cutania tarda. There is a 15 sub population that has a daFect oF this enzyma, and Just 17 any little exposure can kick it oFF, where normal people IB wouldn *t bB aFFBCted at all. 19 And is that the only genetic type oF porphyria 20 that aFFects the liver? El A The livBr is alwaysinvolved in this process, but HE this is uihBra the liver is the primary organ, so tD speak. 23 Now with respect to that, to what we have been 4 referring to as a C.L). ratio, Dr copro/uro ratio, an B7 1 inversion of that ratio, do you consider that to be 2 significant? 3 A If it's just thB very early inversion, the Type A, 4 I don't. But if you also havB an increase of the 5 uroporphyrins, and an increase of the heptacarboxyporphyrin, 5 in other words, the dose is Type B , that seems to be an 7 Barly indicator. But whether that will ever really develop B into a disease is something uie really don't have enough 9 informaion on yet. 10 Now can abnormal porphyrin levels occur in a 11 totally general unBXposed population? 15 A Yes. UnexposBd to TCDD? 13 Ybs . 14 A Ybs . 15 U)hat do you base that on? 15 A Well, alcohol, for instance, causes it. Drugs, 17 women that take birth control pills, barbiturates. 18 Okay. IS MR. HE INEMAN: Could I have Just a moment, your 20 Honor. 21 THE COURT: sure. SB CBy Mr. HeinBmanD Dr. Kimbrbgh, with respect to S3 this hexachlorobenzene that you Just mentioned that you 24 publishd on that subject. BB 1 A Yas. 2 When did you do that? 3 ft I guess the first time -- this has always bean 4 very puzzling. Ue discuss this with colleagues and stuff 5 likB that. The first time I mentioned it, I guess, was in 6 the paper in thB '70's. 7 MR. HEINEI1AN: I have no further questions at this B time, your Honor. 9 THE COURT: Okay. Gentlemen, could I see you at 10 thB bench for a minute. 11 12 CThe following proceedings were had at thB bench 13 off thB record.5 14 15 CROSS EXAMINATION 16 17 BY MR. CARR: IB Dr. Kimbrough, we haven't met, but my name is Rex 13 Carr. I'm one of the attorneys that represent the 20 Plaintiffs in this case. Mr. Seigfreid, my colleague, is 21 thB othBr attorney that represents thB plaintiffs. 22 When you were testifying about the laboratory 23 results and their use, what percentage of people would you 24 expect to have an abnormal result an any given laboratory B9 1 5 3 4 5 G 7 a a 10 il 15 13 14 15 1G 17 IB 19 50 21 52 53 54 test? A You could have quite a number. It mould depend on what is called abnormal. Well, by mhat's called abnormal by doctors in your profession and by laboratories that you use. On the laboratory tests that are given, what percentage of abnormalities mould you expect to find in a given so-called normal population? A The laboratory tests that are run. in different laboratories sham soms variations. They may be slightly above or slightly belom what the normal range of a laboratory is. Ufa usually, if you Just have slight Blevations, don't consider that abnormal. Ulhat me might do is if me stll have serum, me run the test. On the other hand, if you had rarely elevated liver function tests, I mean severely elevated that mould be consistent with these, then you mould see very fern of those. Doctor, my question is, psrhaps you misunderstood it, lBt me put it to you again, in a normal laboratory test, in the results that you mould expect from a normal healthy population, mhat percent cf those people mould have -- mould you expect to have an abnormal lab teat result? A Quite -- statistically, quite a number could have a small, a slightly changed laboratory test. SO 1 s a 4 5 E 7 B 3 10 11 IS 13 14 15 IB 17 18 13 SO SI SS S3 \ 34 My question Bgain, Dr. Kimbrough, is in the laboratories, that are used and thB reference ranges that ara used by laboratories, what percentage of people that would go into those laboratories in a normally healthy group of people would you Bxpect to havB a lab test result that the laboratory would call abnormal? A If you ran SO tests on a person you might find one slightly abnormal test. 0 All right. A So if you had, you would find one -- you could have one abnormal test in each one of these people that you were testing. You can't answer that question really. Ulhat you're saying, you would expBct in a normal population one abnormal test result out of SO? A Depending on the test, yes, or maybe one out of ten. Q M a 'am? A Maybe one out of ten. It Just depends on the test. Q Well, what I would like for you to give us, Dr. Kimbrough, is it one out of 20 abnormal tBst results that you ordinarily expect to find? A At least. Well, the reason I ask that is because others have 91 1 2 3 4 5 5 7 8 9 10 11 12 13 14 15 15 17 IQ 19 20 21 25 23 24 said in tha reference ranges used by laboratories, you expect a variant or a five percent abnormal result in any given normal population. I'm asking you do you agree with that. I take it you do if you say one out of 20. A I guess my snsuer really was that depending on horn much of a change you have, it could be more. Q Well, Dr. Kimbrough, the laboratories use a reference range, do they not? What they consider normal results. A Yes, Q And anything below that reference range or anything above that reference range, anything outside that reference range is called abnormal, is it not by the laboratory? A Well, not by -- not necessarily. You don't see the results coma through from the laboratories, they have a reference range, and then they have a column hsadad abnormal results, and in that column that's headed abnormal results they put those results that are outside the reference ranges used by that laboratory. Don't you see that, ma'am? A No. I don't seem to be able to get my point across. Wall, I don't think you understand my question. 95 X s 3 4 5 E 7 B 9 10 11 15 13 14 15 IE 17 IB IB 50 El 55 53 54 Ydu have sssn laboratory reports, have you not? A Yes. D r . Kimbrough? A Yes. Yb s . And in those laboratory reports, the laboratories use what's called a reference range-of normal values, don't they, m a 'am? A Yes. And do you not see that they report as abnormal any labresults that Fall outside that normal reference range? A They only put that as abnormal. They givB their normal range, and thBy say and this is thB result. And thBn they leave it up to the physician to interpret that result. Dr. Kimbrogh, you haven't s b b h results, lab results where they put it in thB abnormal column? A Yb s . But then it's up to thB physician -- I'm not talking about -- A -- to interpret the result. I 'm not quarreling with how the doctors use it. I*m talking now about the report that you get from the laboratory. Do you not see the results reported in an abnormal column, if thBy arB abnormal? A It depends on the laboratory. 93 1 s 3 4 5 E 7 B 3 10 11 15 13 14 15 15 17 IB 19. 50 51 55 S3 54 Well, do you have Plaintiff's, I think it's probably 555. I think that might be our lab results. It*s a big thick -- maybB I 've got it. Have you evBr usBd or seen reports put out by, oh, Smith Kline, for instance? A No. I may have. Dr. Kimbrough, I show you uihat's been earlier marked Plaintiff's Exhibit 555. This is a report by the Smith Kline Laboratory. You see orB column, they have what's called reference values. A Yes. Q And another column theyhaveabnormal results. A Yes. Q And another column they have the result. A Yes. Q And do you see in the abnormal result column they have things listed there. A Yes. Q Now my question to you, Dr, Kimbrough, is is your answer that five pBrcBnt of the population in any given laboratory test, five percent of the laboratories results -- 75 pBrcBnt of thB people would have an abnormal lab result? A It depends on the types -- Is that uihat you'rB saying, Dr.Kimbrough? A . It depends on the types of tests -- J 94 Excuse ms. Is that uihat you're saying thBn? A You could have that, yas. It Just all depends. Doctor, I'm asking you, there are all kinds oF 4 weird things that can happen. But in the reference ranges 5 that are used by a laboratory, don't they set up what they E expect a normal person to Fall within these limits? 7 A Yes. B Yes. And that's what -- if they had 75 percent of 3 the people that came in and Fsll outside those ranges, they 10 would change their normals, wouldn't they, Doctor? 11 A No, not necessarily. You sea, it depends on the IS population you're looking at. 13 Well, iF you'rB looking at a healthy population to 14 get your normals. IF 75 percent of your healthy people, 15 unexposed, undiseased, and not sick, normal healthy people 16 cams in and 75 percent of those had values in their lab 17 tests outside the normal ranges used by that laboratory, IB wouldn't they change thBir normals? 19 A Not iF thB ranges Fell out just a littlB bit on BO either side. IF it's just a Few units. B1 Doctor, wouldn't thBy just change their results to BE go up that little bit? 23 A Sometimes thBy might. It depends on the test. B4 Q UJell, in point oF fact, isn't it a Fact that the j 95---- 1 s a 4 5 6 7 B 9 10 11 IS 13 14 15 IE 17 IB 19 0 SI S S3 54 laboratories use normal values determined by statistics, nation-wide statistics in many instances, and in other instances From their Dum local control group of healthy people, that that's what determines reference ranges, normal reference ranges For laboratories? A Yes. And in that nature, and with regard to that, Dr. Kimbrough, what percent of people is considered normal to fall out of those reference ranges? A If you have Just really very slight changes outside of the reference range, that's really not considered to be significant. Doctor, I didn't ask you that, did I? Would you listen to tha quasion that I asked you. I'm not asking you now to assess tha significance or the importance of a particular lab tBst or result. I know that's what you're herB to do. But I'm not asking you to do that at this point in timB, Dr. Kimbrough. Would you answer the question that I gave you, please, ma'am. A Could you repeat the question. MR. CARR: Would you read the question to her again, please. CQuestion read.) 96 1 THE WITNESS: I don't know whether the 3 laboratories havB ---- not all laboratories have nation~wide 4 statistics. IF they dof you can have a Fall out anywhere 5 between 20 and 50 percent. E CBy Nr. Carrl": Doctor, assume, IF you would, that 7 there has bean testimony in this case by a number oF doctors a that the normals used by laboratories or in some instances 9 based upon a long history oF gathering statistics, in some 10 types of cases immune studies, For instance, they run 11 control groups, take into consideration what you know to be IE the way in which laboratories Fashion their normals. Will 13 you do that, ma'am? HavB you practiced medicine, Dr. 14 Kimbrough? IS A I used to work in a clinical laboratory. IS HavB you practiced medicine, Dr. Kimbrough? 17 A SincB I had my training I worked in the Public 18 Health Service, and so I didn't practice medicine. 19 - You have never practiced medicine? 20 A As a -- no, not aFter my residency. El Q Have you ever treated or cared For a sick person? 22 A I did as an intern. 23 In getting your training? 24 A Yes. wr 1 2 3 4 5 B 7 B 9 10 11 12 13 14 15 16 17 IB 19 20 21 22 23 24 Now, Doctor, in your training there, your laboratory reported to you results In various lab tests, didn't they? A Yes. And they used a reference range, didn't they, m a 'am? A Yes. Noui, in those reference ranges what do you expect to be the percentage of psoplB that would be abnormal in a / normal given population, normal healthy population? A Depending on the test, somewhere between 20 and 50 percent. Doctor, what you're saying, if Z understand you correctly, that 20 percent of the people would havB abnormal hematocrits if they went in and had them checked? A Depending on thB population you might -- On the normal population, the normal healthy population, would 20 percent d F the people have abnormal hemoglobins, or hematocrits? A You could have more than 20. 0 Under what circumstance? A If you havB -- you havB a lot of people that have slight anemias, you could have a slightly lower hematocrit. They have what? SB 1 2 3 4 5 6 7 B 3 10 11 12 13 14 15 15 17 IB 19 20 21 22 23 24 ft An anemia. Doctor, that mould be an indication of a disBasa. That's not a healthy person. You apparently misunderstood my question. IF you have an anBmia, you're not a normal healthy person, are uou, m a 'am? A No. All right. Noui a normal healthy person, mould you expect 20 percent of thB papulation to have an abnormal hematocrit? A It depends on mhat you call abnormal. A person mho is healthy, mho does not have anemia. A It could vary. It could beslightlylorner. Slightly lornerthan mhat? A Than mhat the laboratory has established as a reference. Doctor, that's mhat I'm asking you. UJhat percentage of people, normal healthy people mithout anBmia mould you expect to have a hematocrit result outside the normal laboratory rsfsrsncs range? A SomemhBre between 20 and 30 percent. Wall, than you still mould expect 20 percent oF the people to malk into the laboratory to have an abnormal hBmatocrit? A It's not really abnormal. It's slightly -- J \ 39 1 Doctor -- e A ---- away From thB reference standard. 3 You understand uihat I *m asking you, normal is 4 within the reference ranges of the laboratory, outside the 5 reference rangB of the laboratory is abnormal. Do you 6 understand that? Noui what I 'm asking you,-: ma'am, is what 7 percentage of people would you expBCt to have a lab result B in hematocrit falling outside the laboratory reference range B called normal? 10 MR. HEINEMAN: Excusb me, your Honor. Mr. Carr, 11 are you asking her tD assume that? IS MR. CARR: I'm not asking her to assume anything. 13 I 'm asking her a specific question. 14 THE WITNESS: I guess I can't really answer your 15 question, IE CBy Mr. Carr) Why not, ma'am? 17 'A Because we can't talk about it in a way that it's IB meaningful to me. IB Doctor, the normal -- the reference ranges used by BO a laboratory, you understand what that is, don't you, ma'am? SI A Yes. SB Hematocrits, for instance, this particular S3 laboratory has it in their units, 45 ta 55 in percentages. S4 A Same people have 40 to 50. There are slight 100 1 B 3 4 5 E 7 B 3 10 11 IB 13 14 15 IE 17 IB IS , BO B1 BS 53 B4 changes in the numbers. G 40 to 50 somB people have that. A Yes. Q Now what I'm. asking you, you do understand what I'm asking you, how many people in a healthy group of people, not disease, no anemia, nothing wrong with them, they're healthy people, how many people do you axpect to have a hematocrit result that would fall outside tha laboratory reference range? A And the reason I've given you ranges of percentages is that if you consider everything, if you'ra very dogmatic, and you say he is 40 and if it's 39 or 3B, that's abnormal, thBt's outside, thBn you would get a whole lot mare people than when you would give a little leeway. For instance, where instead of it bBing 40, it was 35 or 34. All of these laboratories tests are Just not that precise. To argue about -- Q Doctor, they are precise within their reference rangB. ThBy are very precise. They may not know -- isn't that right? Thera isn't any inprecision when you have a rBfBrencB value of 4B to 53 percent, is there? Is therB any inprecision in that? A It's a biological test. Q Yes. 101 1 A And it doesn't mean anything, s Doctor, I'm -- 3 A It doesn't mean anything. 4 Doctor, I 'm not asking you whether it means 5 anything. I 'm not asking you the significance of it. I 'm 6 not asking if it means they've got anemia, or -- 7 MR. CARR: Your Honor, I've already imposed on the 8 witness' time. S THE COURT: I 've lost track of it myself. Okay. 10 Doctor, thank you very much. UJe understand you have to go 11 at this time. Thank you. 12 Gentleman, w e 'll takB a short break and then we'll 13 go back to our other matters in chambers. 14 15 CShort recess.D 16 17 CThe following proceedings were had in chambers.5 IB 15 MR. CARR: Before we get started on this, I 'd like eo to find out from Counsel uihBn and for how long Dr. Kimbrough 21 is going to be available to come back. 22 MR. HEINEMAN: Sha's available to come back in, I 23 believe, the second week of January, or the end of the first 24 week of January. 10S 1 MR. CARR : She can stay until we complete thB -- S MR. NASSIF : She said she would come back at 3 least for another full day. Ufa didn't ask her for any mare 4 time. 5 M R . CARR: And what I would like, I move far E Defendants to produce all communications they have had with 7 that agency or anybody connected with that agency, or with B th federal government relating to her appearance herB and 3 the circumstances, all memos and anything else that was sent 10 to her or to anybody else by the defendants to procure her 11 presence or somebody else from the CDC. 1E THE COURT: Any objection to those? 13 MR. NASSIF: Sure, your Honor. I mean I don't, 14 first of all, I don't know what all that entails. I'd have 15 to see what documents are included in that, in tBrms of 16 contacts. I 'm sure a lot of them include contacts by 17 Counsel, perhaps with Counsel for the CDC. IB THE COURT: You haven't ssan them yet? ia MR. NASSIF: I haven't saen them. I wasn't the so one responsible for making thB direct contacts. I didn't si write those documents. That's why I don't know -- Bruce and ES JaynB Rudolph, I think. sa THE COURT: She's been around. Why don't you give E4 me your response tomorrow morning. 103 1 HR. NASSIF: Can I give you tomorrow at noontime? a THE COURT: Tomorrouj at noon is Fine, sure. 3 HR. NASSIF: Would that be early enough? 4 THE COURT: Sure. That's no problem. Yes, you 5 look it over and decide uihat position you uiant to take.. S MR. NASSIF: Can I have a clarification on this, 7 your Honor? You said any contacts with the federal a government, EPA, anybody, but only in regards to her 9 testifying? 10 M R . CARR: Yes. 11 MR. NASSIF: Only in regards to her testifying. i s M R . CARR: Or somebody from the CDC. 13 M R . NASSIF: Or somebody -- somebody from CDC 14 testifying in this casB. 15 MR. CARR: Yb s . IE THE COURT: HBr or someone in hBr stad, basically. 17 MR. NASSIF: Testifying in this case. IB MR. CARR: Obviously if it's a related case in 19 dioxin, I'd want that as Well. E0 MR. NASSIF: No, no. SI MR. CARR: IF you gat her original agreement to EE testify in the Agent Orange case, I want -- I want whatever S3 contacts Monsanto has had with thB CDC or any othBr agency 24 of the federal government with reference to appearance of 104 1 tha Department of Health or CDC personnel to testify at this 2 trial or any other trial. 3 MR. NASSIF: Well, your Honor, I will object to 4 that. I don't see how it's relevant if other law firms in 5 other law suits havB made contacts with the CDC that I don't 5 happen to know about, in either the Agent Orange case, the 7 Nitro case, or some other dioxin case, or other non--dioxin 8 case. He hasn't even limited to dioxin. 3 MR. CARR: I'll limit it to dioxin cases. 10 MR. NASSIF; You will limit it to dioxin? 11 MR. CARR: Oh, yes 12 MR. NASSIF: Okay. Still, your Honor, w b 'tb 13 talking about what happBnBd in thB Agent Orange situation, 14 in the Nitro situation. I had no personal knowledge of 15 that. Mr. HeinBman's firm did not handle that. I don't 15 know what relevance it is to this lawsuit, there is in terms 17 of this lawsuit. 18 There were contacts mads about Dr. Kimbrough 19 testifying. We've provided in the course d F one of our 20 motions a response back from thB CDC to that which you have 21 received, Mr. Carr has received a copy of it. We would be 22 glad -- you know, I don't mind suggesting or not objecting 23 to us providing any documents that preceded this response 24 from the CDC in terms of her testimony. 105 X But in terms of thB Agent Orangs case, and in s terms oF the Nitro case there is abslutely no relevance. 3 Different law firms, different parties in terms of the 4 plaintiffs, and so us would object to that. I can tell you 5 that right now, your Honor. 6 MR. CARR: The parties only want -- only one half 7 of the parties are different. ThB defendant in those cases B are exactly the same. 9 The reason it comes up, because the letter that 10 Ryder gave, I don 't know uihat he said, but thB letter he 11 gavB to us attached to his affidavit indicates that they 19 uent higher than Just thB CDC, how much higher they went, 13 and they expressed -- and the Health Department now says 14 this is a matter of governmental interest. IB This case is now out of the private sector and in IE the public sector. And I don't know how thBy havB come to 17 that conclusion, that it is now of a public and governmental IB intBrBst. It may be that thBy camB to that conclusion 19 because they were involved in thB Agent Orange case and 20 therB's being claims mads against the government, the 21 government should compensate the veterans in the Agent 25 Orange case, and it is now of governmental concern. It may 23 be the same kind of thing took placB in the Nitro case. 24 So just because thesB Counsel havB not -- have had 106 1 particular contact dcBsn't mBan that the Federal government 2 has not been influenced by Monsanto in one way or the other, 3 in one or more of these cases, so as to end up resulting in 4 this lady's appearance. 5 I don't know iF the Court saw it or -- obviously E it wouldn't be on the record, but she is not a willing 7 witness in the sense of being cross examined. She is a immediately not responding to thB questions. She is looking 9 to Counsel, Monsanto's Counsel apparently For guidance. I 10 don't know if the Court noted it or not. 11 THE COURT: I noticed that. 12 MR. CARR: Everytime I askBd a question that might 13 have some significance, she looked over to Heineman for 14 guidance as tc how she should answer that question. That 15 doesn't, strike me as an impartial witness of the federal IE government hBre to call the strikes and balls. That's the 17 reason that I 'm now motivated to ask for this discovery. IB MR. NASSIF: Wall, your Honor, once again, first 19 of all I would -- I object to Mr. Carr's comment about the 20 Fact that she was looking over to Monsanto's Counsel For 21 guidance. I'm sure if shB was looking around the room, it 22 was more a result of what Mr. Carr was attempting to gBt hBr 23 to answer and had nothing to do with looking to us for 24 guidance. 107 1 THE COURT: She was looking directly at the two of 5 you or one oF you. I noticed that a number of times. 3 MR. NASSIF: Your Honor, maybe the anly other 4 option was to look at hr. Carr. Since he was not pleasantly 5 happy with her responses, I can see why she was not looking 6, at him. 7 THE COURT: Well, if h e 's the person attacking B her, ahB might logically bB looking at him. 9 MR. NASSIF: The Fact that she would not answer 10 questions having to do with what is considered to be 11 laboratory normals, I'm not even sure she knows what 15 relevance this has to this case at all. It was not any 13 information that she had been asked about on direct 14 examination.. For all I know she just .did not beliBve he 15 understood what labs did. That confusion, more than IE anything b Is b , could havB resulted in her looking around the 17 room. IB THE COURT: I think that's a highly improbable 13 scenario. As a general proposition, I think those 50 communications would bB relevant. 51 HR. NASSIF: What communications, your Honor? 55 THE COURT: The ones he's asking for. As a 53 general proposition. 54 MR. NASSIF: As far as all contacts in all cases? ioa 1 THE COURT: As far as thB contacts on thB dioxin 2 cases. Again as has bean my policy before, if you have 3 problems with thB particular documents, privilege or 4 whatever, you submit them to me in camera and I'll go 5 through thBm. I don't think -- apparently there's no B problem as far as the contacts with CDC and/or someone \ 7 higher up, or a parent organization or whatever, as this B particular appearance is concerned. But as far as the a others, I think thBy would be relevant, and I think they 10 should be produced. If you have any problems with any of li them, individually, you can submit them to me in camera. 12 MR. NASSIF: Are you saying, your Honor, that 13 you're not going to give me an opportunity to respond at 14 tomorrow noon? 15 THE CDURT: I thought you were responding. IB MR. NASSIF: I responded to the other cases issue. 17 THE CDURT: Yes, that's what I responded to. 18 MR. NASSIF: Well, your Honor, I still would only 19 say, your Honor, that in terms of whatever responses wb 20 have, we may have a further objection, and you've indicated 21 that we are to handle that objection in terms of any 22 privileged information. I don't know if there ars other 23 objections other than privilege that I would want to raise 24 to those responses, not knowing what they werB, or what was 109 said. But I still -- I understand you to be ordering us to produce documents having to do with other cases other -- other dioxin cases, where there might havB been contacts 4 with the Center For Disease Control pertaining to people 5 testifying. E THE COURT: Her or other people testifying. " 7 MR. NASS IF: Her Dr other peoplB testifying,' 8 HR. CARR: Your Honor, my request wasn't limited 3 to the CDC, My request was directed at any government 10 person, elected or appointed or employed, that they may have 11 conactBd toward thB Bnd of getting a CDC employee to testify IS in this case. 13 THE COURT: I believe that was your request. That 14 is right. I misspokB as to thB scope. Now you are going to 15 look at the documents as far as this case is concerned and IE respond tomorrow afternoon; right? 17 MR. NASSIF: I 'm going to attempt to do that. IB THE COURT: I'm not ruling on that. IB MR. NASSIF: I'm anticipating there are very few SO documents, and that I can dD it by noon. SI THE COURT: I'm not ruling on that part yet. SS MR. NASSIF: Okay. 23 THE COURT: But as to the other, I fBlt we just 24 finished colloquy to its relevance. I think it would be 110 i 1 relevant. Any other particular matters, you know, I'd also B like by then some indications as to houi quickly you can get 3 those documents. 4 MR. NASSIF: I was Just going to say, if I have to 5 go to other c q s b s and well, it utouldn *t even bB limited 6 to other cases. It would be if anybody within Monsanto 7 involved in Agent Orange or Nitro made a contact or any 6 dioxin cases. 3 THE COURT: Or any outside lawfirms. 10 HR. NASSIF: Or any of thB outside lawfirms. That 11 is certainly a much broader search than limiting it to the IB activities that wb did. 13 THE COURT: Right. I understand that. That's why 14 I 'd like tomorrow also. I'm not asking you today how 15 quickly you can have those. 15 MR. NASSIF: I need to contact some people and see 17 what thsy tell me. IB THE CDURT: Right. 19 MR'. CARR: Your Honor, it's not specific on the 20 record, and it's not on the record at all, but I assume that SI I better put it on the record, we've been given some 22 documents by Monsanto that were from the office of the CDC. 23 I have assumed that that's all the documents that they've 24 received from the CDC. But Just to make sure, I'd like to J 111 1 have assurance from Counsel or some statement From Counsel H that there is nothing that they have From CDC that they havB 3 not produced or production oF it. 4 MR. NASSIF: To the best oF my knowledge, there is 5 nothing that uie havs received From the CDC that we have not 6 produced. 7 THE COURT: Okay. B MR. CARR: Okay. 3 THE COURT: Uery good. I guess idb may as well go 10 through these in order. 11 MR. CARR: UJb may have a little problem there IE because I don't know whether I want through them in order. 13 THE COURT: How about Bolajack First? 14 MR. CARR: Yes, Bolejack. 15 THE COURT: Okay. Mr. Carr, First, any IE objections? 17 MR. HARUEY: BeFore uie start, uie accidentally leFt IB oFF the name oF onB oF the depositions we'd like to read, 19 and that was Mr. Ken Gross. I spokB to Mr. SaigFreid and E0 M r . Carr -- El THE COURT: Ken Gross? EE MR. HARUEY: Ken Gross, G-r-o-s-s. E3 THE COURT: I haven't even pulled it and read it. E4 IF wb gBt thBre, w b '11 clean him up tomorrow. I 'll have to 112 1 gat my ClBrk to pull It. Any objections? Prefacing all of 2 this as Just a standing proposition, uia won't raad back and 3 forth colloquy of counsel, you know, going off the record or 4 anything like that, lika we have bean bafora. All of that 5 is just sort of automaticaly excluded, unless otherwise 6 indicated^. Objections whether sustained or not will be 7 exluded. B NR. CARR: On page 7, your Honor, we withdraw 3 those objections on there. 10 THE COURT: Okay. So -- 11 NR. HARUEY: This is David Bolajack? 12 THE COURT: So- 6 and 7 -- 13 NR. CARR: You would need 6 through 13 out. No, 14 make it 4 through 13 out, because he asked a new question. 15 THE CDURT: Right. IE NR. CARR: 16 through 20 also. No, ha gave an 17 answer. IB hB answered. 16 through 17 is out. IB NR. NASSIF: What page are you on? 19 THE COURT: Page 7. 20 NR. CARR: 7. 21 THE COURT: 22 would be out. 22 NR. CARR: 19 is in, 22 would be out. 23 THE COURT: Okay. That's all on that page. 24 NR. CARR: The next page would be on paga 10, your 110 1 a 3 4 5 6 7 a s 10 n IE 13 14 15 15 17 IB IS EO El EE E3 54 relevant. Any other particular matters, you knoui, I'd also like by then some indications as to how quickly you can get those documents. MR. NAS5IF: I was Just going to say, if I have to go to other cases.and *-- well, it wouldn't bvbti be limited to other cases. It would be if anybody within Monsanto involved in Agent Orange or Nitro made a contact or any dioxin cases. THE COURT: Or any outside lawfirms. MR. NASSIF: Dr any of the outside lawfirms. That is certainly a much broader search than limiting it to the activities that we did, THE COURT: Right. I understand that. That's why I'd likB tomorrow also. I'm not asking you today haw quickly you can have those. MR. NASSIF: I need to contact some pBopla and see what they tell me. THE COURT: Right. MR. CARR: Your Honor, it's not specific on the record, and'it's not on the record at all, but I assume that I better put it on the record, we've been given some documents by Monsanto that werB from thB office of the CDC. I have assumed that that's all the documents that they've received from tha CDC. But Just tD make sure, I 'd like to 111 X have assurance from Counsel or some statement From Counsel s that there s nothing that they have From CDC that they havB a not produced or production oF it. 4 MR. NASSIF: To the best oF my knowledge, there is 5 nothing that uib have received From thB CDC that uie have not E produced. 7 THE COURT: Okay. 8 MR. CARR: Okay. 9 THE COURT: Uery good. I guess we may as well go 10 through these in order. 11 MR. CARR: Ule may have a little problem there IS because I don't know whether I went through them in order. 13 THE COURT: Hdw about Bolajack first? 14 MR. CARR: Yb s , Bolajack. 15 THE COURT: Okay. Mr. Carr, First, any IB objections? 17 MR. HARUEY: BeFore we start, us accidentally iBft IB oFF the name of one oF the depositions w e 'd like to read, 19 and that was fir. Ken Brass. I spoke to Mr. Seigfreid and 50 Mr. Carr -- El THE COURT: Ken Gross? EE MR. HARUEY: KBn Gross, G-r-o-s-s. S3 THE COURT: I haven't even pulled it and read it. E4 IF we get there, w b '11 clean him up tomorrow. I'll have to 112 1 get my Clerk to pull it. Any objections? Prefacing all of 2 this as just a standing proposition, uie won't read back and 3 forth colloquy of counself you know, going off the record or 4 anything like that, like we have been before. All of that 5 is Just sort of automaticaly excluded, unless otherwise 6 indicated. Objections whether sustained or not will be 7 Bxludad. e MR. CARR: On pagB 7, your Honor, wa withdraw 3 those objections on there. 10 THE COURT: Okay. So -- 11 MR. HARUEY: This is David Bolejack? 12 THE COURT: So B and 7 -- 13 MR, CARR: You would need S through 13 out. No, 14 make it 4 through 13 out,, because he asked a new question. 15 THE COURT: Right. 15 MR. CARR: IB through 20 also. No, he gave an 17 answer. IB he answered. 16 through 17 is out. IB MR. NASSIF: Ulhat page are you an? 13 THE COURT: Page 7. 20 N R . CARR: 7. 21 THE COURT: 22 would be out. 22 NR. CARR: 19 is in, 22 would be out. 23 THE COURT: Okay. That's all on that page. 24 NR. CARR: The next page would be on page 10, your 113 1 Honor. Lina 10 and a half where they say his initiative was 2 below average. That's kind of a character assassination 3 called for in the question, and then they uBnt into it a 4 little more, what do you mean by that, a little self 5 motivation, he was slow about everything he did. I'd like 6 for 10 and a half through 25 on that page to be stricken. 7 And on the next page, it deals with the same 8 subject, page 11, line 1 aver through page 13 line 9. All 3 of that has to do with his -- how he works and his 10 motivaion, and what kind of fellow he was. 11 THE COURT: Who is handling this? 12 HR. HARUEY: Your Honor, if I could respond to 13 that, first of all I'd state for the record wb haven't 14 received a list of abjections prior to coming in here. 15 THE CDURT: UIb had agrsed that because of the timB 15 squeeze on this there wasn't time tq prepare it. 17 MR. HARUEY: All right. IB TH COURT: We talked about possibly doing it and 18 decided there wasn't -- as a practical matter ~~ as a 20 practical matter thBrB was not enough time to do so. 21 MR. HARUEY: Dkay. With respect to Mr. Carr's 22 objections, going to page 10, line 10 and a half through 23 page 13 line 8, thesB questions are specifically directed at 24 eliciting information from a psrson who had -- in other 114 1 wordsp there was a foundation laid as to her knowledge of Ed 2 Uaught, and his physical condition prior to this spill. One 3 of Ed Uaught's complaints, and Dr. Carnow's trial testimony 4 deBlt with the alleged problem of fatiguB that Mr. Uaught 5 claims hB has experienced since thB time of the spill. 6 The testimony hBrB goes to Ed Uaught's initiative, 7 his productivity, and other factors such as his weight, B energy levels. On page 12 the question is could you 3 describe Ed Uaught *s energy levels. Did he show Fatigue. 10 The answer was that he was slow. And in general I taka it 11 Mr. Carr's objection, beginning on page 10, line 10 and a 12 half, that it was a non-responsive answer; is that correct? 13 Am I mischaracterizing that? 14 MR. CARR: Let ma withdraw my objection. This is 15 about fatigue and Bnergy Is v b I on page 12. It's all right 16 with me if you read that. The reason I objected to it was 17 bBcausB he said no, I don't bsliBve it was fatigue, I 10 believe it was Just slow. ' That really isn't material. But 19 your question that I don't believB he was fatigued might be 20 relevant. 21 THE COURT: I'm lost. 22 MR. CARR: I'm lost too, Judge. I've Jumped over 23 to page 12 where he mentioned they asked a question about 24 fatigue. I don't remember Carnow going into fatigue. But 115 1 if hB did -- did hB go into fatigue? 2 MR. HARUEY: Yes, on the February 27th, on paga 3 1B7 through 170 d F the trial transcript ha did. 4 THE COURT: So basically you're saying on page 12, 5 lines 10 through 15 you aren't objecting to? 6 MR. CARR: That's correct, your Honor. 7 MR. HARUEY: It would bB lina 9. B MR. CARR: No, 10. 3 MR. HARUEY: I'm sorry, I was on the wrong page. 10 But you're still objecting to the rest of it? 11 MR. CARR: Yes. 12 MR. HARUEY: Dob additional comment on the rest of 13 it. 14 THE COURT: Sure. 15 MR. HARUEY: The initiative would certainly be IE something that his employer, Mr. Bolejack, the supervisor, 17 would be in a position to observe with respect to his work. IB MR. CARR: We agree, that's so. iBut this has 13 nothing`to do with his injuries. 20 THE COURT: I think it should go out. I would 21 sustain thB objection. So linB 10 and a half down to the 22 bottom of page 10, all of 11, lines 1 through 9 an page 12, 23 lines IB through 25 on page 12, lines 1 through B I guess -- 24 well, no, 1 through 3. 116 1 MR. HARUEY: Wouldn't the testimony on page 12, 2 beginning at line 16 be relative to the Follow-up question 3 on thB Fatigue aspect? 4 THE COURT: I didn't hear thB last part. _ 5 HR. HARUEY: Wouldn't that be relative as a 'B Follow-up question on the Fatigue aspects? It talks about 7 his operating the machine, and his activity level there B THE COURT: Which question? ThB onB at thB bottom 3 oF the page? 10 MR. HARUEY: Page 12, line 16 through page 13 line 11 6 where thB questions are Following up on thB Fatigue issue. 12 I mean these are observations d F Fact From which -- well, he 13 might not have characterized it. 14 HR. CARR: I 'll withdraw the objection to that, 15 Judge. That's all right. 16 THE COURT: Okay. Then it's not objected to. 17 ThBn the striking will Just go through line 3 oF page 12, ie and thB others are okay. All right. Any other objections 13 on that deposition? 20 MR. CARR: No, Judge. 21 THE COURT: Okay. Da you have any objections? 22 MR. HARUEY: Do you intend to read the crass 23 examination? 24 THE COURT: I 'm sorry, what did you say? 117 1 MR. HARUEY: The question is da Plaintiffs intend s to read the cross examination? 3 THE COURT: You're reading it. Are you going to 4 read it or not? 5 MR. HARUEY: I thought thB custom mas if the cross E examination -- 7 THE COURT: I see uihat you're saying. B MR. CARR: UJe'll read the cross examination hBre. 9 MR. NASSIF: Is there anything in cross wa want to 10 object to? 11 MR. HARUEY: That uas uihat I was getting at. 15 THE COURT: Fine. 13 MR. HARUEY: ttfe would object to the question -- 14 wbII that part of thB answer on pagB 14 line 1 and a half, 15 beginning with the second sentence there as being nanIE responsive to thB question that was requested. 17 THE COURT: Let me read the question again. IB MR. HARUEY: Beginning thBrB down to line E of 19 page 14. 50 MR. CARR: The objection, Counsel, of nan21 responsiveness is one that thB questioner may maks, not the 52 other fellow. 53 THE COURT: That's right. 54 MR. HARUEY: Wall, I stand' corrected. If that's r 11B 1 the case. 2 MR. CARR: I wish it weren't. I wish it weren't 3 thB case. 4 THE COURT: I wish it weren't either. 5 MR. CARR: I wish anybody could make that 6 objection. I used to, but somebody educated me years ago, 7 unfortunately. B THE COURT': Any other objections? 9 MR. HARUEY: No. 10 THE COURT: Fine. That one is. cleared up. Do you 11 havB Jim Cristal's done? 12 HR. CARR: I do. 13 THE COURT: Great. Any objections on that? 14 MR. CARR: Page 16 is my first note. 15 THE COURT: Okay. 16 MR. CARR: Line B. Line 6 actually. Page 6, line 17 6 through pagB 17, linB B. IB THE COURT: Anybody want to say anything about it? 19 MR,. CARR: What wb said earlier on other similar 20 situations, Judge. 21 THE COURT: Anything you want to say about it? 22 MR. NASSIF: Wb just would say our objections we 23 had last time. 24 THE COURT: We've gone through this a dozen times 119 1 bsFore . Let's incorporate it. 2 MR. NASSIF; Okay, your Honor. 3 THE COURT: Incorporate prior objections. It*3 4 stricken. Arguments proper and so arB incorporated. So all ' 5 of that is stricken. E M R . HARUEY: Do uib need to state the paint that's 7 being made as Far as thB objection? B MR. CARR: I'm sorry, I couldn't hear you. 9 MR. HARUEY: Do us need to state the point that's 10 being made as Far as the objection, as Far as what ujb are 11 incorporating? 12 THE COURT: That has been repeatsd a dozen times, 13 I really don't think uib have to. 14 MR. NASSIF: I think that's right. 15 MR. CARR: Nb x L objection would be pagB IS, linB 9 IE through page 20, line 20. 17 THE COURT: I think that would bB thB same type d F IB thing. IS MR. NASSIF: It's the same as the other one. 20 MR. HARUEY: UIb would again incorporate our 21 objections. 22 THE COURT: I'm incorporating plaintiFFs* and 23 deFendant's and I 'll strike it. 24 MR. CARR: Page 21, line 1 through page 22, line 120 1 13. 2 MR. NASSIF: 22, line 13? 3 THE COURT: Right. 4 MR. CARR: Yb s . Actually I guess it's line 12. 5 THE COURT: LinB 12 is Fine. Okay. I think w b 'vb 6 been through this before too. 1*11 incorporate what 7 Bvsryone said on it before. I 'm striking it. U s '11 B incorporate on that, I guess. Any other objections? 9 PR. CARR: On page 22 we will not read any of that 10 business, Judge, from 22 to the end of the deposition. 11 THE CDURT: So you'rB not going to read thB cross? 12 HR. CARR: No. 13 THE COURT: Do you havB any objections? 14 MR. HARUEY: Ue would read the cross. 15 THE COURT: Fine. IB MR. HARUEY: And I'm trying to see what was taken 17 out. IB THE COURT: There's an objection in the cross on 19 24. 20 MR. CARR: That's not our objection, is it? 21 THE CDURT: No, that's their's. 22 MR. HARUEY: There aren't any answers after that. 23 MR. CARR: His answer is most of them. 24 MR. HARUEY: Right. Yes, we would withdraw that 151 1 objection. H THE COURT: Okay. So on page 54, 55 -- 3 MR. HARUEY: IF I could have just a second here 4 THE COURT: -- to the end of the deposition. 5 MR. HARUEY: Right. E THE COURT : Anything else? 7 MR. HARUEY: N o . B MR. NASSIF: No. -- a THE COURT : Great. Do you have Edith Daniels io dona? il MR. CARR: Yes, I do. Edith McCoy Daniels. 15 THE COURT: Are you going to read thBSB 13 authenticating depositions or not? The ones authenticating 14 the records? 15 M R . HARUEY: I don *t know that I *d bB in a 16 position to address that. 17 MR. MASSIF: Are they on thB list? IB THE COURT: I think shB pulled any depositions 19 that had the nams. Cristal also had on that authenticated 50 some records. Yo u 'tb not going to read those? 51 MR. MASSIF: No. 55 MR. HARUEY: Not at this tima. 53 MR. CARR: They*re already in evidence. 54 MR. NASSIF: They're already in evidence. I think 122 1 PlaintiFFs stipulated to that. a THE COURT: She pulled anything with the name on a it, which is excellent. Edith McCoy Daniels is next. 4 MR. CARR: Page 7 From line 3 to the end of the 5 deposition -- S MR. NASSIF: Tima out. 7 MR. CARR: Page 7, line 3 to the Bnd oF the B deposition. It is all too remote in time and nothing 3 remotely connected to the spill or any physical or any other 10 condition that could be associated with that spill, nothing 11 relevant or material is in there. ia How long was Cecil in jail? ShB got mad at Edith 13 or something, put Edith in Eddie's car. He torB thB inside 14 dF that car up. Big dog woke me up touching my hair. He 15 was a big dog, Hb could lay his mouth about on thB table. 16 I don't know what kind it was. 17 Uell, anyway, none oF this has any rBlBvancy or 18 materiality. 19 MR. HARUEY: My response to that, Judge, is that I E0 believe it does havB quite a bit oF relevancy and 21 materiality. Ona oF the things that Dr. Carnow testiFied to 25 on January 23, in pages 5B through 72 oF his testimoy was 23 that Miss Jennings is suFfBring From increased irritability 24 and short temperednsss as a result d F thB spill. Not only 1S3 1 that, not only did ha testify to that, it is contained in a his report, which has been admitted into evidence before the 3 Jury. 4 Now here in.this deposition, and in another one 5 that will be presented as well, we have a person who is in 6 close contact with hiss Jennings for many, many years prior 7 to the spill, even knew her as a family member during the 0 time her husband was alive. Many of the factors that hr. 0 Carr is objecting to are direct personal observations on her 10 pat, or accounted to her by a person who is is no longer 11 living and is unavailable, and unavailable as a witness, IE and, therefore, would fall under that exception of the 13 hearsay rule. 14 They are observations that could lBad a person of 15 ordinary intelligence to conclude from these experiences and 15 these contacts, and the general context of hiss Jennings 17 prB-spill history that she indeed had this problem of short 10 tsmperednsss and irritability long before the spill, and it 10 was part of her personal makB-up, unfortunately. SO h R . CARR: Judge, Just going to the first three SI pages, everything discussed there is talking to Eddie. SS There is no -- - if you want to go point by point. On page 7 S3 and 0 it discusses how often she saw hBr brother Cecil. How S4 long would you see him from the year '70, '74. Well, pretty 124 1 often in those years. I would get real worried and he would 2 come up and talk to us. I think he wouldn't talk to other 3 people. 4 So, in other words, Cecil went to them and talked 5 to them at their farm about once a week. All he ever did, E he was real worried and he Just wanted to talk. Did Cecil 7 ever talk to you about his relationship with Dorothy B Jennings, and about Dorothy. Yeah. Ulhat did he tell you 9 about Dorothy? 10 And thBn it goes on how they didn't get along, 11 thBy wBre always fighting over money. I don't think Dorothy 12 took him for treatments much. I think one of the neighbors 13 took him for treatments. Ulhat was he sick with? CancBr. 14 I'm up to page 11 right now, Judge, and there's 15 nothing at all that could svBn bB remotBly connected with 16 this case. On page 12 she was very fussy with EddiB all the 17 time. Never got along with Eddie. Cb c I paid mre 1B attention to Eddie than her boy. Got nothing to db with 19 anything. 20 PagB 13 Robert got a check from his father, I 21 don't know how much. You said Dorothy and Cecil couldn't 22 gBt along. Ulhat did you mean when you said that? Well, I 23 think they nBVBr did gBt along from the start, when Dad was 24 sick and so forth. All garbage. 125 1 Dad mas rBal sick, Cecil would come In hare to 2 help and they got into a fuss at night. She had Cecil 3 thrown in jail that night. Gcd. When Dad died -- how long H was Cecil in jail? 5 15 is about the dog bBing put in the car and 6 tearing up the car. And thBn she says I would say -- what 7 could you tell ms about har disposition. 1 would say -- a this is on page IB -- I would say she was irritable. Ulhat a do you mean? She was never happy with anybody or anything. 10 Ulhat about hBr -- anything else about her li disposition you can tell us? No. I Just know she was never 12 very happy. 13 Well, so what? A lot oF peoplB aren't very happy. l*i MR. HARUEY: A lot of pBople are trying to cash in 15 on it. 15 MR. CARR: Wall, if you look at her testimony, you 17 won't find her making one single complaint. IQ MR. HARUEY: But she did to Dr. Carnow, and Dr. IS Carnoui.presented that testimony to the Jury. SO HR. CARR: Not about happiness. 51 MR. HARUEY: Irritability, short tBmperednBSS. 25 Those ara all part of the mood changes, tha general types of 23 things. 2*i MR. CARR: On page 17 i t shows she hated him. She 1S6 1 may have had a foundation to hate him. Certainly nothing 5 that can be relevant to this case. It had to have bean 3 apparently still long before '74, I guess. I don't know. 4 She's not even specific as to when that occurred. 5 MR. HARUEY: Responding point by point, the 6 testimony presented on those pages, while some of it may be 7 a littlB bit general in nature, is nevertheless based upon 8 or directed at hiss Jennings' overall demeanor. a Those questions, for example, she says -- she 10 characterizes her as being irritable, directly contradicting n Dr. Carnow's testimony. Describes her in a fashion that as IS a whole this testimony shows that a person who knew hiss 13 Jennings before the spill perceived her to be an irritable, 14 short tempered, vitriolic person. 15 Those are unfortunate things to say about a 18 person. Whatever her motivation might have been, if there 17 uias soniB personal problems between thBse two people is IB something that could have been brought out an crass IS examination, or something that should go to the weight of SO the testimony, certainly not its admissibility. SI hR. CARR: JudgB, everything I see that they've E5 asked about irritability was connected to the marriage to S3 Cecil, during the period -- on the bottom of page 15, during 4 the period Cecil was married to Dorothy Jennings. How was 127 1 her disposition, mas shB irritable, bias sha calm. Could you a tell me about her disposition. The objection is made there, 3 lack of Foundation in the Form oF the question. That's a 4 good objection right there to that question. 5 MR. HARUEY: Where are you? 6 MR. CARR: Bottom oF page 15, top of page IB. The 7 only thing that bias put in there is the improper question 8 and the Form of the question. 3 THE COURT: Do you have anything morB to say? 10 HR. CARR: No, Judge. 11 THE COURT: Do you have anything more to say? 12 MR. HARUEY: Just generally that the testimony 13 here, even as it goes to her relationship, it is not Just 14 limited to hBr relationship with Cecil, but goes to her 15 relationship with other people as well. And her IB relationship with Cecil being the moat readily apparent 17 Factor in observing fliss Jennings behavior and IB characterizing her moods, her demeanor as irritable, and as 13 short tempered, at a time before the spill shows that she 20 had a pre-existing condition in this case. It's directly 21 relevant on those points, and not to mention hBr pre 22 occupation with money. 23 H R . CARR: What*s that got to do with anything? 24 HR. HARUEY: Motive. 1SB 1 THE COURT: Da you have anythirty to say? E MR. CARR: No, Judge. a THE COURT: I'm sustaining the objection to it. 4 That mas my impression when I initially read this. I am 5 striking all that that he's objecting to. E MR. NASSIF: Judge, are you striking the part that 7 has to do as titell on page 26 with how often Dorothy Jennings B would have upset spells, which I think goes to the issue of 9 short tsmpsredness? About evBrytime we came up I don't 10 know how often that was -- if that doesn't go to short 11 tempBrBdness, and the question is not objected to a t that IS point. 13. THE COURT: No, at that point it wasn't objected 14 to. 15 MR. CARR: It's all remote in time. It was all 16 before ---- time isn't even fixed. It would be sometime 17 before Cecil died. That could have been 50 years before. IB MR. NASSIF: No. IF you look at the deposition, 19 you can focus on the time. Of course, you've struck all SO that. SI MR. CARR: If you look on paga 25, Bvery week is SS when I told you sha didn't get along with Cecil, with my S3 folks. Your folks, is your dad still alive? Dad died in H4 Mayof *63. Mom died in '66. 1 129 1 HR. NASSIF: Right. 2 MR. CARR: Now that's S3 years. No, 13 years 3 before the spill ocurred. 4 MR. NASS IF: 15 years before, the spill she bias 5 blowing her top. It doesn't seem to idb to be remote in E time. She's a 50 year old woman. 7 HR. CARR: About the time they were married. Does 8 that tell you something? And I might point out in the 8 winter of '79, that would be admittedly before the spill, 10 they visited her and she was nice, peaceful and happy. In 11 the winter of *79. 12 HR. NASSIF: We'll read that part too. 13 HR. CARR: I know, but thB point is, because that 14 takes away from the irritable problem. It's clear she got 15 happy whBn Cecil died and it was a bad marriage and she said 16 on page 27 the main thing Dorothy and Cecil didn't get 17 along. IB HR. NASSIF: As I remember Dorothy Jennings, your 19 Honor -- SO HR. CARR: She's a very nicB little lady. SI HR. NASSIF: She's had several strange 25 relationshipsi or strained relationships with her husband. S3 I think it just goes to temperament. 54 THE COURT: If I remember correctly * I limited a \ 130 1 lot oF the interrogation of her and soma other witnesses 2 about what I considered non-relevant elements of the 3 marrital relations or lack of them, I think that whoever 4 characterizes this as garbage, I don't remember which oF you 5 did, was awFully accurate. I'm striking it. Okay. E Uho is next? Iris Dennison is next iF you've got 7 her done. B MR. CARR: Have you done these too, Judge? 3 THE COURT: I'v b done all of them. 10 MR. CARR: Great. 11 THE COURT: I may not have done the last two. I 12 think I've donB everything but that. 13 MR. CARR: Let's see, Dennison. 14 THE COURT: As a matter oF Fact, iF you'll wait 15 just a minute -- I'll get it tomorrow. 16 MR. CARR: The First objection I have on 17 Dennison's deposition is page 12, linB HI and a halF. Now IQ Ed Uaught had already dropped out oF school. 13 THE COURT: Down through where? 20 MR. CARR: Just that part, HI and a half to 23, 21 Just that sentence. My next ons would be on page 25. 22 MR. NASSIF: Why are you objecting to that? 23 MR. CARR: It has no relevance to anything, Ed 24 Uaught had already dropped out g F school and Qomihgue2 had i 131 1 dropped out of school. Dominguez had not actually dropped H out of school, he transferred. ' 3 MR. HARUEY: John Dominguez? 4 HR. CARR: Yes. Sunnydale. 5 MR. HARUEY: This is Sunnydala. 6 HR. CARR: Wherever he transferred to. He went to 7 c o IIb b b , I know that. That's the oldest Dominguez boy. It B ia not important whether he has or not. It has no relevance S to this case that Ed Uaught and Dominguez had dropped out of 10 school. 11 THE COURT: What's your position? IS MR. HARUEY: Well, with respect to Dominguez the 13 testimony wasn.\t really directed at him. But as far as Ed 14 Uaught, it goes to whether or not she was still having 15 contacts with him in 1S7S at the time of the spill. IB MR. CARR; She obviously could not have had any 17 contact with Uaught, that's what she was saying. IB THE COURT: I agree with the objection. I'm IB striking it. Where is your next abjection? 20 HR. HARUEY: That's through line 53? HI THE COURT: Yes. 55 HR. CARR: ThB next one is on page j25, your Honor, 53 line IS over to page 30. Over to page 30. I don't see 24 where any of that -- ova to pagB.30, linB 1. Host of this ^ ' \i 132 1 is Hagen's cross examination, I believe, isn't it, or is it a all? 3 HR. HARUEY: Yes. 4 THE COURT: I think it is. You're not going to 5 read that? * 6 MR. CARR: That's correct, your Honor. 7 THE COURT: Do you have any objections to B anything, or are you going to read that? She Just started 3 cross examining the page before 10 MR. HARUEY: The only thing I would want to read / 11 on thB cross examination I take it Mr. Carr is not going 12 to read any of the cross examination. 13 MR. CARR: Yes, we're reading the cross 14 examination. 15 THE COURT: From page 25, line 19 to the end of 15 the deposition he's not. Up to that point he is. She 17 started the page before. f 15 MR. HARUEY: Okay. U)e would then offer, I guess, 13 page 25, line 13 through page 25, line 7. It goes to 20 baokgrond, length of timB at Sunnydale. There's no 21 objection to it. He's just not going to read it. 25 THE COURT: Do you havB any abjection to that? 23 M R . CARR: I don't care, Judge. It doesn't have 24 to do with anything, but if they want to read it. A 133 1 THE COURT: Okay. UIb '11 leave it in. Any other 2 objactions? 3 HR. HARUEY: No, we won't offer anything passed 4 line 7 on page 25. 5 THE COURT: Okay. All right. I did read the last E two depositions Embres, do you have Embree? 7 MR. CARR: Yes. Page 15, line 16 to line 21. B THE COURT: Ws 'vb been through that before too, S comment on other people's -- 10 M R . NASSIF: Right. 11 THE COURT: I 'll incorpoate what each of you have 12 arguBd on that. I'm striking it. 13 MR. HARUEY: Could I add to that objection, or to 14 Dur response? 15 HR. CARR: Sure, you can add to my objection IB anytime you want. 17 HR. HARUEY: Not to your objection, but to our IB response to your objection. I would direct the Court's 19 attention to the case of Darrouah v. White Hotor Companu. 20 THE CDURT: Do you havB a copy of it? 21 HR. HARUEY: 74 Ill.App.3d 550, 30 II Dec. 22 THE CDURT: 560. 23 HR. HARUEY: I 've got those, where the defendant 24 entered into evidence thB absence of injuries in a similar A 134 1 situationj and it was held to be admissible. It's our E position that logically a proof of, as the Court said, proof 3 of -- let's see -- the non-existence of proof of an injury 4 during a period of similar exposure would be relevant. 5 MR. CARR: Ue never said it wasn't, Counsel. 6 MR. NASSIF: It only applies to people testifying 7 about somebody else. B MR. HARUEY: And a person who is in a position to 9 observe someone who is in a similarly situated condition 10 would have the knowledge that would be pertinent to 11 expressing their opinion as to the health of the simlarly IB situated individual, whether or not it be a plaintiff in the 13 case. 14 THE COURT: I think that's been argued before. I 15 don't remember if this case has been cited. I will look at IE it this evening. If I 've changed my mind, I will let you 17 know and we can argue it futher. But at this point in time IB I think the point itself has been argued before. 19 MR. HARUEY: Okay. BO THE COURT: It would, therefore, be incorporated. 21 But I will look at the casa tonight. If there*s any change B2 I 'll let you know in the morning. 23 Any othBr objections? 24 MR. CARR: On page 16, line 6 and 7, referring to 135 1 Matthew > 2 THE COURT: Same type of thing. If I have any 3 changB', I'll let you know in ths morning. 4 MR. CARR: On this one uie don't intend to read the 5 cross. That's all. We Just don't intend to read the cross, 5 and the redirect mould be their thing to read if they want 7 to read it. B THE COURT: Okay. Do you have any objections to 5 anything, or are you going to read it? 10 MR. HARUEY: U)e would read the cross up to page 11 IB, linB 3, but not the redirect or anything passed that. 12 MR. CARR: Well, if they're going to read part of 13 it, -Judge, we will read the rest of it thBn. 14 THE COURT: Okay. 15 MR. HARUEY: In that case, w e 'll read the IE redirect. 17 THE COURT: Now looking at the whole deposition, ia does anyone have any objections to anything else? Fine. 15 I think the next is Kelli Evans. 20 MR. CARR: Page 13, line 25 ovBr to page 14, line 21 15. 22 THE COURT: Okay. I think w e 've been through 23 these before too. I 'll incorpoate what everyone said and 24 I'm striking it. Any other objections? \A 136 1 MR. CARR: PagB 15, line IS to lino 16 on that 5 sama page. 3 THE COURT: Same ruling. W e 've been through this 4 before a number of times. 5 MR. NASSIF: How far on line 16? 6 THE COURT: Through line 16. 7 MR. CARR: Just four lines there. Page 16, line 3 0 through linB 14. 0 THE COURT: Same thing, I'll incorporate the 10 arguments and strikB it. 11 MR. CARR: Page 17, linB 3 to line 15. 15 .MR. NASSIF: Can you hold on Just a second? Are 13 you leaving in the question on page 16,"Does she seem to 14 givB a positive or enthusiastic attitudB?" Lins 6, page 16, 15 the answer is yes. 16 MR. CARR: Yes. 17 MR. NASSIF: She can report on that, but you're IB objecting to peoplB that indicate that they're Fussy or 10 short tempered or something else? 50 THE COURT: They werB different grounds, Counsel. 51 MR. NASSIF: Okay. 55 THE COURT: That same ruling as before. I'll 53 incorporate the arguments on it. 54 MR. CARR: IB, lines 6, 9 and 10. \ 137 1 THE COURT: Same ruling, incorporate it. 5 MR. CARR: 19, lines 17 over to page 50, line 15. 3 THE COURT: U s 'vs been through this a number of 4 times, same ruling. I'll incorporate all arguments. 5 HR. CARR: Page 51, line_51 to page 55, line 7. E THE COURT: W e 've been through this, same ruling 7 and I 'll incorporate all arguments. B MR. CARR: Page 55, line .10 through page 19, line S' 4. 10 MR. HARUEY: Wait a minute. Page 55, line 19 11 through -- . 15 THE COURT: Line IB. 13 MR. HARUEY: IB through -- 14 MR. CARR: Page 53. 15 THE COURT: Lina 4. 16 MR. CARR: I 've got linB 10. 17 THE COURT: Yb s . IB MR. HARUEY: I would respond, I don't bBlieve 19 we've addressed the issue on page 55, line IB through line 50 53. This is a physical education teacher whose background 51 or training in physical education, and, in Fact, her duties 55 and responsibilities as a physical education instructor 53 require her to observe the physical activities of thosB 54 students who are charged under her care and supervision. \ 13B 1 Jessica WhitB is ona oF thosB students mho is E charged under her care and supervision. She has an 3 opportunity to observe, and, in Fact, is trained and has a 4 duty to report on those things, so it can be determined 5 -whBthBr or not thB student should receive a proper gradB, or 6 is conducting herselF at the sbrib level oF activity and 7 skill as the other studsnts who arB at hBr age Ib v b I . Dne 8 oF the problems -- I'm sorry, Robin. S HR. CARR; It says here Jb s s b , is what I've got. 10 MR. HARUEY: The analogy is to Jb s s s . She's a 11 littlB more passive than Jb s s c b , 12 MR. CARR: All right. I see it. 13 THE COURT: Okay. UJere you donB? 14 MR. HARUEY: Yes. 15 THE COURT: Do you havB anything to add? IB MR. CARR: Dne response to that, Judge, is that I 17 don 't know that uib ever suggested that she doesn *t have -- IB that she is earth bound, or that she has no hand/eys 13 coordination. This is suggesting an illness that uie don't SO claim that she's had. 21 MR. NASSIF: Finger and hand discomFort. SE MR. HARUEY: She has Finger and hand discomFort. S3 Sd 1 believe that would aFFect hBr hand-todays coordination, 24 or could very well aFFect it, in playing games such as \M 133 1 vollByball, or tha other gams3 she describes In here 2 Peripheral neuropathy I believe is one of the things that's 3 commonly raised, however, it may be characterized. 1 think 4 some abnormalities utere reported by Dr. Carnow with respect 5 to Robin. 6 HR. CARR: That she had no hand-to-eye 7 coordination, ujb never claimed that. B MR. HARUEY: You may not have claimed hand-to-eye 3 coordination. 10 HR. CARR: That's what you're asking, though. 11 HR. HARVEY: The claim that was made with her 12 would be finger and hand pain over something that would -- 13 this would ba thB objective observation that would tend to 14 rebut thB complaint. She couldn't very well testify that 15 Rabin Bowen didn't have finger and hand discomfort or pain 16 other than -- you'd certainly object to that, on the basis 17 that she wouldn't know it. UIb would say that thB lack of IB any complaint would indicate that she didn't have it. But 13 she could testify tD -thB objective observation of no 20 impairment. 21 HR. CARR: She's already testified that she's able 22 to participate in physical activities. She does fine. A 23 little more passive. Hy objection to this question is that 24 you arB suggesting that shB should have that problem, by 140 1 2 3 4 5 B 7 B 9 10 11 12 13 14 15 IB 17 IB 19 20 21 22 23 24 asking does she have no hand-to-eye coordination. T h a t 's improper to suggest that, unless you know that ujs have claimed that she has no -- that shB has claimed that she has no hand-to-eye coordination, or, in Fact, bBing earth bound. T h a t 's what I 'm quarreling with in this question. THE COURT: I 'm sustaining the objection to it on the grounds that were argued. I thought we had gone through this before, but on the grounds that have been argued this afternoon. I am sustaining it. nR. CARR: Page 23, line 15 and a half. M R . HARUEY: Excuse me Just a second. MR. CARR: 15 and a half through -- THE COURT: Where I have noticed that type of thing. MR. CARR: Yes. But not with Robin. THE COURT: H e 's starting at 15 and a half. I have noticed that type of thing. H R . CARR: Down to line 22. The same reason I 've given before. THE COURT: We've been through that a hundred times. I 'll sustain the objection. MR. HARUEY: If I could make an Offer of Proof an that one, your Honor. Robin -- or an offer of relevancy. In any event, Robin Bowen in her testimony -- actualy it was 141 1 hBr mother's testimony in hBr behalf, testified that she had 2 persistent colds and fevers, and I believe a chronic cough, 3 a problem with a persistent cough. That's Dn pages 170 4 through 72 of the trial transcript of October 4, 13B4. If 5 -you had a persistent cough, there's certainly nobody batter 6 qualified or somebody in a better position to observe this* 7 MR. CARR: I agree that what you say is correct. I a don't have the transcript with me. Based upon your 3 recommendation that her mother testified that way at a ig relevant point in time while she was in school with this XI teacher, I have to check the transcript. I assume Robin X2 Bowen had a persistent cough. X3 THE COURT: Why don't you check that point. I'll X4 reserve ruling on it. Tell me tomorrow morning. Okay. 15 MR. CARR: On the same pagB, linB 25, running over XE to page 25, line 11. Basically all of page 24 and half of 17 25. xa THE COURT: I think w e 've gone over this type of 13 thing. 20 MR. HARUEY: I guess I again would offer, she 2X complains of a rash or unusual skin condition, and thB 22 teacher -- she makes that complaint to Or. Carnow as well, 23 stated on January 10th of this year, on pagB 154 that she 24 had a very active rash for someone who was so young, 142 1 inferring that it was related to thB spill, and Hz. Evans 2 here testifies that if it was something that would stand out 3 she was sure she would notice it. 4 HR. CARR: You're asking white patches or 5 discoloration. B HR. HARUEY: Rash would bB discoloration. 7 MR. CARR: Would not. I don't consider a rash -- B if I meant a rash, I 'd say rash. I don't say discoloraion. 9 Discoloration would bB liks a bruise. 10 THE COURT: I'm sustaining the objection. 11 Anything else? 12 MR. HARUEY: On pagB 23, Just for clarification, 13 you've reserved ruling on lines 11 through 217 14 MR. CARR: No. I 'm not objecting to 11 through 15 IS and a quarter. IB THE COURT: Where it starts I have noticed, down 17 through line 22, I'm reserving ruling on it while the IB transcript is checked. Okay, Any other objections? 19 MR. CARR: Yes, your Honor. Did you rule out all 20 of 24? 21 THE COURT: Right. BH HR. CARR: Page 27 than, line B, to line 20. 23 THE COURT: Through line 20? 24 H R . CARR: Yb s . Page 27. 143 1 THE COURT: That doesn't make any sansB at all. 2 That goes out. Any other abjections? I 3 MR. CARR: Page 29, line IQ to page 30, line 13. 4 THE COURT: X think this is the type of thing 5 we've gone through before too. 6 MR. HARUEY: If I could state something far the 7 record, 8 THE COURT: Sure. 3 MR. HARUEY: OnB of the problems that's reported 10 in Dr. Carnow's report, and his testimomy is also directed 11 at this on February 21, is that DabbiB Rush was fatiguBd. I ` `\ 12 believe it was in the afternoon when her fatigue was most iI 13 prevalent, according to hBr or her mother. And that was, as [ 14 you can tell from the way the question was phrased, that's 15 why it was phrased that way. It was in specific rebuttla to j 16 a specific complaint that we anticipated would be placed 17 before this jury through Dr. Carnow's report. 13 MR. CARR: If you're representing that, Counsel, I i 13 certainly will withdraw my objection to it* 20 THE COURT: That's that first question and answer 21 then? 22 MR. CARR: Yes, on page 29. | i 23 THE COURT: Okay. Objection is withdrawn.! 24 MR. HARUEY: With the colds, Dr. Carnow testified 144 1 5 3 4 5 5 7 B 3 10 11 12 13 14 15 IB 17 18 IS 20 21 22 23 24 tha Debbie had colds once or twice a month. On pagB 58 of his February 21 testimony. The question and answer on page 30, line 1 through 4, "Have you ever seen her exhibit the symptoms of somBonB with a cold or runny nose?" She said, "1 can't remember. Nothing real noticeable, or I'm sura I would really remember that." MR. NA5SIF: It starts on page 23, line 23 at tha bottom. MR. HARUEY: Right, the rebuttlB to that begins on line 23. Again her exposure to this person is on a.three times a week basis, doing activities where a cold would be likely to manifest itself. MR. CARR: What's the testimony about 0Bbbis Rush, that she had colds all tha time? MR. NASSIF: Colds once or twice a month, and occasional sore throats with colds. MR. CARR: I 'll withdraw the abjection to 1 through 4 on page 30. She's never complained to anybody, we haven't suggested that she needs to complain to anybody. MR. HARUEY: I don't think it would hardly be unusual, if somebody has a cold or congested to complain to hBr F.E. teacher, especially given the nature of tha activities. THE COURT: Not necessarily. I've ruled on that 145 1 before. I don't think that's necessarily true. The 2 objection is sustained on that. 3 MR. HARUEY: On lines 53 through 55 on page S3? 4 THE COURT: Right. 5 MR. HARUEY: It's withdrawn on lines 10 through 6 21. 7 8 8 THE COURT: 1 through 4 on page 30. MR. HARUEY: The objection is still made -- MR. CARR: B through 13 is now the remaining part 10 the Judge has stricken. 11 THE COURT: I thought it was 5. 12 MR. CARR:- I 'm sorry, 5. I'm sorry, Judge. 13 THE COURT: Any other objections? 14 MR. CARR: Page 31 * line 14. 15 MR. HARUEY: Again on the record, on the IB headaches, she complained of having headaches all the time. 17 Barbara Rush did, when she testified on Debbie's behalf. On IB pagB 104 throgh 108 of thB November 13 transcript. Dr. 19 Carnaui also testified that there was a symptom that Debbie 50 was having problems with on February 51, page 55. 51 MR. CARR: It doesn't mean shB should came 55 complaining to people of headaches. 53 MR. HARUEY: There's also visible manifestations 54; of a headache that a little girl would be likely to make. 146 1 MR. CARR: Ulna says so? 2 MR. NASSIF: My six year aid daughter, among 3 others. 4 MR. HAROEY: My three year old daughter. 5 THE COURT: Well, my 12 yBar old walked around 6 with a broken arm for two days. 7 MR. NASSIF: It wasn't a headache. Judge, on page B 30, line B, have you ever seen her standing off to the side 9 rubbing her forehead, making a face like she was in pain, 10 nca again, if a person has a headache, it's pretty tough to 11 go through physical education class. She says no, this is 12 all I 've noticed, the hand to the side when she runs. 13 THE COURT: W e 've been through this a lot. I 14 don't think that thB position here makes this argument. I 15 would incorporate the arguments that you made before, both 16 sides, and make the same ruling. I don't think it should be 17 read. 10. MR. CARR: On page 31, Judge, line 14 to line 18. .13 MR. HARUEY: On the same grounds of relevancy? SO THE COURT: The same grounds of relevancy. 51 MR. NASSIF: Your Honor, therB's testimony by her 25 mother that she has frequent stomach aches, as I recollect. S3 Have you ever seen her holding thB front of her stomach, 24 doubled over? 147 a MR. CARR: Is that what you do when you havB a 2 stomach acha, you hold the front of your stomach and double 3 over? It's news to me. It's a suggestive question. 4 MR. NASSIF: For a little kid. 5 MR. CARR: There's no evidence that she Bver did 6 hold thB front of her stomach, or we ever claimed that she 7 held the front d F her stomach, or doubled over forward. 8 MR. HARUEY: All these things, the headaches, or 9 the stomach pains, or whatever, they're objective 10 manifestations that one might associate with that type of 11 injury, or that illness if it in fact existed. At the every 12 least, it would allow a reasonable person to guage the 13 severity with which this person is supposedly afflicted with 14 these things. Did she have a stomach ache, well, not enough 15 for hBr to da anything that one might do when they really 15 have that problem. 17 THE COURT: Okay. I disagree. My ruling is on 18 the basis we've gone through this before. There is no 18 relevancy. This is such a nebulous, non-objective, multiple 50 interpretation typB of matter. It has virtually no 21 probative value. It is not relevant. And there's no reason 58 to 1st it be in hers in an evidence deposition. The 83 objection is sustained. 24 MR. CARR: On that same page, Judge, line 23, ove 14B 1 to page 32, line 5. 2 THE COURT: I'll incorporate -- 3 MR. HARUEY: For the record she did testify -- hBr 4 mother testified and Dr. Carnoiu both testified as to her 5 having frequent ear infections. The mother on 11-13-B4, 6 page 112. Nausea and queasinass ware testified to by Dr. 7 Carnoui on February 21, page 57, and the ear infections on B page 56 on the same day. Claimed that they occurred 3 monthly. 10 MR. CARR: Whether she did or did not has got 11 nothing to do uiith hBr complaints. Not obligated to 12 complain to anybody. 13 THE COURT: Objection is sustained. Any other 14 objections'? 15 MR. CARR; On page 33, line 25 over to page 35, 16 line 16. 17 MR. HARUEY: With respect to the -- iue'11 stand on IB our other objections. But with respect --" iue'11 stand on 19 our objections. 20 THE COURT: Same ruling. It's out. 21 MR. CARR: Page 36, line 9. I withdraw that line 22 B, and make it line 12. Over to pagB 37, line 17. 23 24 we? THE COURT: We've been through all this, haven't I 149 1 M R . HARUEY; Wall, this Is Julia Kemner we're a talking about hara. 3 MR. NASSIF: Lde've covered all that stuff, Ed. 4 THE COURT: I think we have. 5 MR. HARUEY: The observation on the rash, that is 6 a question that goes to the observation. In the trial Joyce 7 Kamnar testified that she had eczema. That was the main B point, it would be relevant to that* a THE COURT: I'm sustaining the objection. Let's 10 take a short break and then w b '11 go back to this. n i s CShort recess.3 13 14 THE COURT: I have read this Oarroubh v. White 15 Motor Comoanu. and I disagree with your interpretation of 16 it. I am going to sustain the position that I took before. 17 The Appellate Court very strictly construed the question, IB and I don't think it's really on point with this, when theyr 13 said, The question of whether, in defense of a charge of SO strict liability defective product based on defective 21 design, a manufacturer may show evidence of nonoccurrence of 22 injury from similar products, stating that that question had S3 not been directly decided in Illinois. 24 They cite immediately after that Liberty Mutual on 150 1 the proposition that I think is mors in keeping with this E case. They state generally that it's a question of 3 discretion for the Court, and in thB exercise of my 4 discretion, in view of the various factors of exposure, 5 amounts, individual variabilities as to reactions, and a lot 6 of other factors which have been gone into hundreds of times 7 in this case, and in the exercise of my discretion, I don't B think that it's relevant. So X am taking the same position 9 that I did before as far as the other person involved. I've 10 taken that consistently on other grounds also. I would 11 incorporate those othBr grounds as the basis for my ruling IE also. 13 I think the last one we had done was up to line 17 14 on page 37. IS MR. CARR: PagB 37, line 23 to page 3B, line 7. 16 THE COURT: Uie've gone through this in a lot of 17 these depositions. IB MR. NASSIF: But, Judge, the thing about sitting 19 out, having to do with did she miss your class a lot. I E0 don't remember that as being something that we said was El excludeable. It's a phys. ed. teacher. EE THE COURT: I disagree. I think it has been E3 covered. E4 MR. HARUEY: I t e x p la in s what' s on l i n e 18 through 151 1 22 where the question is have you over received a note from 2 hBr parents asking hBr to sit or stand outdoors. The 3 response uias there was one occasion. Then that is clarified 4 in line 23 to 25 to show that this wasn't a regular 5 occurrence. It was a one time event. 6 MR. CARR: I got one note one time. That's as 7 specific aa you can get. She may have missBd a class. She B had gone once to the doctor, she may have missed a class for 3 that. That doesn't make you anything except a great 10 attempter. 11 MRi HARUEY: The question on 23, if the one stays 12 in, the other should too, to explain that. Well, there's 13 one time where she had a cold and another time she went to a 14 doctor, leaves one -- 15 MR. CARR: The question suggests that she should 16 be a regular sitter-outer, and we haven't argued that at 17 all. IB M R . HARUEY: I haven't*suggested that she's more 19 susceptible to colds. 20 MR, CARR: All kinds of people have colds and go 21 to school. You're suggesting here that she should be a 22 regular sitter-outer. 23 MR. HARUEY: The point is that there was one time 24 when she had a cold and her mother did ask her to sit out. 152 1 MR. CARR: Right. 5 MR. HARUEY: There uias a time mhen she went to a 3 doctor. The fact that she had a cold and she had to sit out 4 once indicates by not being a regular sitter-outer, 5 indicates that if she did have this cold on one occasion 6 inhere she did sit out, the rest of the time she didn't mould 7 go to the variation of that. B THE COURT: I 'm adopting the ruling that. I made 3 before. I 'll take them DVBr the objections, arguments that 10 mere made before. 11 MR. CARR: The next one mould be on page 45, line 12 11 to line 15. 13 MR. HARUEY: Our response to that, your Honor, is 14 that if that is going to come out, which me don't think it 15 should, then- also the material on line 7 through 10 should IB be removed, because it's the same sort of thing. If it's 17 not relevant on the one hand, it's not relevant on the IS other. If w e 're going to leave the material, line 7 through IS 10 on page 45 in, me certainly ought to leave 11 through 15 20 in tD explain it and put it in context with respect to the 21 plaintiffs in this case. UJa've taken out all material about 22 notes. 23 MR. CARR: Ckay. The two of the girls were not -- 24 you may be right. The notes from the two girls mere not 153 1 connected with any of the ones being asked about* 2 HR. HARUEY: Yes, they were. I take that back. 3 MR. CARR: Well, then -- *4 MR. NASSIF: No, no, no notBS From any parents of 5 any of the children you've Just spoken about. S' MR. HARUEY: You're right. 7 MR. NASSIF: It doesn't have anything to do with B the kids that she testified about that are plaintiffs in 9 this case. 10 THE CDURT: W e 'll take it all out then, 7 through 11 15. 12 MR. CARR: No, they're two different things. One 13 is to be excused from F.E., from physical activity, and P.E. 1H class, short periods of time. The next question, line 11 is 15 from doctors regarding any of those children suggesting that 16 they shouldn't go outside. That's in a different point. 17 MR. HARUEY: Well, your Honor, the point that's IB raised is that the activity and P.E. of going outside one 19 way or the other, it's still a note from the parent. IF 20 it's irrelevant on the one hand, it ought to be irrelevant 21 on the other. 22 MR. CARR: I don't Follow you. 23 MR. NASSIF: Your Honor, I don't think those -- 2*1 MR. CARR: She had a doctor's note about a kidney 154 1 problem. They referred to that* I think earlier on* 2 MR. NASSIF: Lbb Kemner, or eomebody else, 3 mentioned another note. That's a question about the two 4 notes refer to -- 5 THE COURT: Okay. Rush is on page 44. Where is 6 thB othBr ona? 7 riR. CARR: On 37. a THE COURT: Okay. I stand corrected. I'll strike 9 11 through 15. I 'll leave the other part in. It does 10 relate to that. Any other objections? 11 MR. CARR: No, your Honor, that's all I have. 12 THE COURT: Do you have any objections? 13 MR. CARR: We don't intend to read any of thB 14 cross examination 15 MR. HARUEY: Wb do, your Honor. 16 THE COURT: All right. Fine. Do you have any 17 objections to any oF it? IB MR. HARUEY: We don't intend to read any of the 13 cross by Mr. Waaler. 20 THE COURT: I think I struck it all out. No, I 'm 21 sorry, I didn't. That one question. 22 MR. CARR: Well, we won't read 7 through 10 if 23 you're not going to read it anyway. 24 MR. HARUEY: Okay. 155 1 THE COURT: So it's all out again. s MR. HARUEY: Dr. Wooler's is all out. 3 THE COURT: Do you have any objections to anything 4 that's left in? 5 MR. HARUEY: We would rBad -- 6 THE COURT: I 'm assuming you^re reading everything 7 else. Da ya have any objections to anything? B MR. HARUEY: The reason I state that is Hr. Wpoler 9 took her up on cross again* I mould rBad his cross on page 10 49. 11 THE CQURT: Okay. Fine. Do you have any 12 objections tc anything that you intend to read? 13 HR. HARUEY: No, your Honor. 14 THE COURT: Fine. Great. Next would be Hable. 15 Grey. 16 MR. CARR: We move to strike everything From line 17 B through thB Bnd of thB deposition. IB riR. HARUEY: What page? 19 MR, CARR: Page 5. Except the parts on pagB 9, 0 line 16 to page 10, line 2. El THE COURT: Well, I think in vbuj of my prior SS rulings, I ought to strike it all. I'm going to incorporate 23 all of the objections, and I think that part, on the basis E4 of my prior rulings I think it 9hould be stricken also. 156 1 MR. HARUEY: Which part? 2 THE COURT: All of it will be stricken, including 3 tha part that ha wants lBft in. 4 MR. CARR: It's Fine with ms to strike it. 5 THE COURT: In view of my prior rulings. 6 MR. HARUEY: Nobody is objecting to it, your 7 Honor. B THE COURT: Ha wanted it left in. 3 HR. CARR: All I'm saying is it's not 10 bj ectionable. 11 THE COURT: I thought you were objecting to it. 15 MR. HARUEY: No, ub want to read the whole thing. 13 MR. CARR: I think it's propBr, because they said 14 this person says she was terribly Fatigued all thB time and 15 had lets cF back problems. IB THE COURT: Well, iF no one is objecting tD it, 17 I'll leave it in then. IB MR. CARR: I won't object to it, because I think 19 it *s proper. 50 THE COURT: Are you objecting tc it? 21 MR. HARUEY: No, WB're oFfBring it. 55 THE COURT: Fine. All right. I got conFused 53 then. 54 MR. HARUEY: We would make the same record th a t u b 157 1 made with respect to Edith Daniels' deposition on the 2 irritability and the short temperedness, except the woman 3 went into it in considerable more detail, even greater than 4 Edith Daniels did, as to the specifics and the 5 characterization of Miss Jennings vitriolic nature, or short 6 tempered, irritable disposition, and all these things arB 7 items that have appeared in court before the Jury. They're B relevant for that reason, S THE COURT: Same ruling as before, again, Whoever 10 characterized it as garbage wasn't far off. 11 H R . NASSIF: fire you striking everything, your 12 Honor? 13 THE COURT: No, no one is objecting to that onB 14 part. 15 HR. NASSIF: I mean everything other than -- IE THE COURT: Everything other than that, 17 HR. NASSIF: Your Honor, what about the part about IB her seeing a psychiatrist? ia THE COURT: Pardon? What page? 20 HR, NASSIF: PagB 10, your Honor. Begins Dn page 9 21 10, carries to tha bottom of page 10. 22 THE COURT: Bottom of pagB 10? 23 MR. CARR: What's that got to do with anything? 24 THE COURT: It doesn't have anything to do with 158 1 it. a MR. CARRi Just because most psychiatrists have 3 mental problems. If you want to be a psychiatrist that's 4 evidence of a mental problem. You may bs right. 5 MR. NASSIF: I didn't say that. 6 M R . CARR: No, but you may bB right. * 7 MR. NASSIF: I'm just saying some strange things 8 are sometimes indicative -- 9 MR. CARR: This is really great, she was one of 10 the meanest people I have ever known, and I've worked for 11 the public for 40 years, and with lots of people, but I've 12 never seen one that was a mean as she is. 13 HR. NASSIF: Wait a minutB. Ulhat about her 14 smoking? 15 MR. HARUEY: Page 13. 15 MR. CARR: Is there an issue on smoking? 17 MR. NASSIF: Excessive smoking can cause 18 headaches. 19 MR. CARR: Is there an issue? Did wb ever deny -- 20 MR. NASSIF: Yb s , you did. 21 MR. HARUEY: She doesn't say -- 22 MR. NASSIF: No, no. During her testimony, as I 23 recall, she said she smoked and there was an issue regarding 24 the degree, that she smoked, and I can't give you a 159 1 reference right now. 2 MR. CARR: This is remote in time anyway. At one 3 time she smokBd a lot. That could have bean anywhere in 4 the past 40 years. 5 THE COURT: She did admit at one time she did smoke 5 an awful lot, I don*rt think that's an issue. I think tha 7 question was what she had cut back to. * B HR. NASSIF: There was a question of whether or 5 not -- yes. Haw long that had persisted. I thought she 10 indicated -- shB sort of downplayed it, your Honor, as I 11 recollect. 12 THE COURT: Thera was some fight as to how much 13 she was still smoking, 14 MR. NASSIF: Right. 15 THE COURT: I don't think there was any issue as 16 to her having at one point in time smoked an awful lot. I 17 don't think that was an issue at all. IB NR. HARUEY: With respect to both witnesses IS remarks as to hBr apparent passion for going after money, 20 which would be relevant to any secondary gain that there 21 might be in bringing this lawsuit. 22 NR. CARR: That's not an issue that you can put 23 evidence in an, Counsel. You cannot get at somebody's 24 character tha way. That's character assassination. The ----- ----;---- ------ ------------------------- ----------- 160 1 nsxt ans -- 5 THE COURT: Regina Jasper. 3 MR. CARR: Page 6, line 16 to 25. On the subject 4 7, B, 3, 10 and 11 -- 6, 7, B, 9, 10, and 11, all that 5 business about them buying a house B THE COURT: Until where on 11? 7 MR. CARR: All of 11, page 12, line 1 and 2. B Okay. Over to page 12, line 2 is thB best way to put it. B THE COURT: Okay, So 6, linB IB throgh 12, U n B 10 2? 11 MR. CARR: On page 6 aver to page 12, line 1 and 12 2. 13 MR. NASSIF : Are you objecting to that as 14 irrelevant? 15 MR. CARR: Indeed we are. IB MR. HARUEY: Our position, I think, would be Bill 17 Kemner has put his property damage, and the relative IB property damage in Sturgeon, or the unwillingness oF a 13 contractor or anybody else to build in Sturgeon because of . 20 the effect oF the spill diluting thB property values and 21 making it a less attractive place to live. 22 Here's a person who moved into Sturgeon in April 23 oF *79 immediately aFter the spill, while the clean-up was 24 still going on, and bought a place just a block oFF the 161 1 railroad tracks on East Davis Street, having shopped around , e 'and Fully auiara of the spill, and went in and sold her house 3 latBr in 1903 For a substantial proFit. Sha bought it in 4 79 For 913,500 and sold it in *03 For 926,500, showing an 5 increase in property value, in the market value oF hBr home 6 In the very town where Bill Kemner is claiming his property 7 is worth less. B MR. NAS5IF: A portion of his property. 9 MR. CARR: I don't think it's probative oF 10 anything, the Fact that somebody bought a housB or sold a 11 house does not rBFlBct on thB markat valuB of Bill KBmner's 12 pasture land. We haven't even put it in as a value Far 13 subdividing, although that's one aspect of it. 14 MR. NA5SIF: Sure, you did, Rex. You put in 15 evidence that the Fact that some contractor wanted to 16 develop it or something. 17 MR. CARR: Did not put an any evidence as to the IB value oF that. We are not claiming value on the subdivided 19 property. 20 HR. NASSIF: But you are saying that a subdivider 21 -- wall, okay. You didn't put that on as your evidence of 22 thB property, however, you did bring that as a lost 23 opportunity. It was put into evidence. 24 _________ THE COURT: I believe that's correct. I 162 1 MR. NASSIF: Here is an example of a situation s where an opportunity was vary good, despite being a block 3 From the railroad tracks. 4 THE COURT: I don't think it's probative. I think 5 uib'vb gone through this before, but regardless of whBthBr we 6 have, or not, there are so many touch stones you have to 7 handle as far as comparables. There is nothing here that 0 makes this probative. In no uiay does it comply with 3 anything. 10 MR. HARUEY: Through page where? 11 THE COURT: PagB 12, line 2. 12 MR. HARUEY: I don't think you wanted to go that 13 far, do you, Mr. Carr? Starting on paga 8, line 5, that's 14 where the decision to buy a house and the property value 15 testimony ends. Beginning on.page B u s get into the IE testimoy where you haven't objected to and we left out, 17 where she lived, where she wBnt in Sturgeon. IB MR. CARR: Usll, if you're using that for the 19 purpose of subsequent questions about health, that's 20 perfectly all right. 21 MR, HARUEY: That's exactly what it's used for. 22 THE COURT: There is some stuff in here about 23 values on page 10, values of financing. 24 MR. HARUEY: Ue skip back into that. 163 1 THE COURTi All right. Okay. LBt's go to page 8 : ii H through line B, and then we can read From line 3. 3 I1R. CARR: On page B what line did you say? j 4 THE COURT: Start on line 3. That's where they 5 marked thB map so that she can show where she lives. On 6 the last line of that, start getting into property values 7 again. LinB 25 would have to go out on page 3. On page 10, B all oF page 10, all o page 11, and the First two lines of S page IS will all go Dut. 10 MR. CARR: To recap now, Judge. 11 THE COURT: Everything will go out except on page IS B, line 3 through page 3, line 54. That's the only part 13 that doesn't deal with property value. 14 MR. CARR: Okay. IS THE COURT: Any other objections? 16 MR. CARR: Page 16, line 5 to 55. 17 MR, HARUEY: Our response would be -- This is a 18 child who wouldn't be in a position to testiFy For herselF, 13 just as the plaintiFFs have testiFied. The plaintiffs* SO parents have testified to the health of their children, this 51 woman ought to be allowed to testify to the health oF her EH child, as something she would readily observe. ThB child is S3 unable to testiFy as to her own health, that's why the 24 plaintiffs testiFied to the health of their children. _________________________ I 164 1 MR. CARR: This is not a doctor hare that you're s asking the question iF they developed any health problem. 3 MR. HARUEY: Neither were ths mothers d F the 4 plaintiFFs. 5 MR. CARR: Did you ask her what problems she's B had. What problems -- something that could be that she 7 could diagnose. But none of our people diagnosed anything. B HR. HARUEY: Ub II, but they would state -- the 9 question you would pose would be almost identical. What 10 health problems have any of you had or has your daughter 11 had, Mrs. Plaintiff, since the time aF the spill, and they IE would go on and expound to the problems. 13 MR. NA5SIF: You also had thB mother compare their 14 health beFore and aftsr the spill. 15 tlR. HARUEY: That's exactly what we did here. 18 MR. CARR: Correct me if I 'm wrong, but hasn't the 17 Court stricken these questions like this in the past? 19 THE COURT: I have on all the other depositions. 19 MR. CARR: All right. We'll stand by that, Judge. SO I Forget all the reasons we had now. El MR. NASSIF: Your Honor, I don't know if all -- EE what the reasons were when you struck these beFore, but I S3 don't recall right now if thBy were worded differently From S4 these questions or not. 165 1 THE COURT: I think they were pretty much the same. 2 Fell into a pretty consistent pattern. 3 MR. CARR: Your Honor, the Plaintiffs have 4 obviously been able to testify about their children to 5 questions identical to what these questions are. A mother 6 mould knoui if her child has experienced health problems 7 simply from the fact that she would be the one taking the B child to thB doctor. These Plaintiffs have talked 5 repeatedly, testifid repeatedly about taking their chllren 10 to doctors and what the doctors told them. 11 MR. HARUEY: Even in instances when, like with 12 Timothy Bowen, when Carol Bowen testified about his health, 13 muscle aches and alleged pains, soma of these children 14 testifid for themselves, but the mother would always be the 15 on to expound upon it. 16 THE COURT: Any further argument? 17 MR. CARR: No, Judge. IS THE COURT: It's out. Any other objections? IS HR. CARR: Page 17, lines 1 to 17. I really don't 20 mind -- well, it's got no relevance. It could havB. tile'll 21 Just object to 1 to 4, your Honor. 22 THE COURT: It will be the same on that. Any 23 other objections? 24 MR. CARR: Page 19, lines 4 to 25. And all of 16B 1 page 20 and 21, down to 22 -- to lino 22. 2 MR. HARUEY: Down through lino 21 on page 207 3 THE COURT: Yes. 22. 4 MR. CARR: 22. 5 MR. HARUEY: I'm sorry. 6 THE COURT: I know it's confusing. 7 MR. NASSIF: Entire page 20 is struck, or is B objected to, all the way down to line 21 on page 217 3 THE COURT: Right. 10 MR. HARUEY: Our position is the samB, your Honor. 11 THE COURT: Okay. I'll strike it. 12 MR. CARR: Us won't read any cross. 13 THE COURT: I 'm starting on 22. 14 MR. HARUEY: Ue don't want to read any cross 15 either, your Honor. Us won't read any of Mr. Axlerod 16 either. 17 THE COURT: Uhat about Wooler? He starts on 23, IB 1ina 4. 19 MR. NASSIF: No. 20 MR. HARUEY: No. 51 THE COURT: Now do you have any objection on the 22. parts that are going to be read? 23 MR. HARUEY: No. 54 THE COURT: Okay, fine. 167 1 MR. CARR: I don't think there's any parts going 2 to be read. 3 MR. NASSIF: No, no. 4 THE COURT: Anything else that's left? 5 MR. HARUEY: You ntBan ths deposition as a whole? B THE COURT: Yes. Right. 7 HR. HARUEY: Yes, the deposition will and, I 8 guess-- S THE COURT: Kenneth Rail. 10 MR. CARR: Dkay. Page 10, line 25, ovBr to one 11 half of the line on 1 on page 11. I Just want to strike out 12 that part I wouldn't recommend him to anybody, and let the 13 answer stay, quote, he was there, but that's all. 14 THE COURT: Do you mind if I mark on your*a? 15 MR. NASSIF: No, gD ahead, Judge. 16 MR. CARR: The question is how do you know he was 17 an average worker. Well, he was there, but that's all. 18 MR. HARUEY: What's the grounds For your 19 objaction? 20 MR. CARR: It's character assassination, uncalled 21 For whether he would or would not recommend him to anybody. 22 MR. HARUEY: The question is whether or not he's a 23 good worker, that's his assessment of his work ability. 24 MR. CARR: His answer was he was just an average 168 1 worker. 2 MR. HARUEY: How do you know that, I wouldn't 3 recommend him to anybody. That's characterization of hia 4 answer, H a 's entitled to express it in those terms, whether 5 r not an employer would recommend an employee to somebody 6 else is certainly the manner in which they'd assess his work 7 ability. Q THE COURT: I think I 'll deny the objection. I S think that's proper. You still have a service letter over 10 there, so that sven makes it more relevant. 11 MR. NASSIF: Good point, your Honor. 12 MR. CARR: 12, lines 22 to 25, and then all of -- 13 all down to pagB IB, line 21, actually the only thing 14 apparently my notes indicate that we're not objecting to is 15 line 22 on page 12, over to page 22, lines 1 to 20 on page 15 IB. 17 THE CDURT: I'm lost. Could you go through that 15 one more time. 19 HR. HARUEY: You don't want that in there about 20 him stealing? 21 HR. CARR: That's correct. The only thing that we 22 don't object to. 23 THE COURT: In thB rest of the deposition? 24 H R . CARR: Yes . 169 X THE COURT: la on pass IB, lines 1 to 207 811 2 right, that sounds good to ms. 3 FIR. NASSIF: Your Honor, Just so you can Focus on 4 it,, mould you focus on lins 16, page 13, inhere he talks 5 about his employment being terminated, asks him why. That 6 goes to his credibility. It goes to his bslieveability. 7 THE COURT: Page 16, line 13. B MR. NASSIF: Page 13, line 16, your Honor. 9 Beginning there with why he terminated his employment. 10 MR. CARR: That's a conviction without a trial, 11 Joseph. 12 MR, NASSIF: He's giving a reason For why he 13 terminated his employment. 14 MR. CARR: Well, it might be relevant if we 15 claimed that he quit because ha was sick or tired or 16 couldn't do the work. Perhaps that, the only relevant thing 17 -- there's nothing relevant about it at all. 18 THE COURT: Ule had a couple of instances oF 19 oFFBnses or potential offenses. Didn't we go over this one 20 too with this guy in Court? 21 MR. HARUEY: I don't know. We had a bunch of them 22 with the Uaughts. 23 MR. NASSIF: I think there was -- I think he was 24 asked. 170 1 MR. CARR: There uias a guy that was convicted of 2 something. 3 MR. HARUEY: Ed Uaught was convicted of something. 4 THE COURT: A couple of things, like one of them 5 spent a night in jail for something. I think I barred 6 everything that didn't result in a conviction. If I 7 remember correctlu. I think one of them spent a night in B jail or something, I think this one was in on it too on S testimony, or attempted testimony. 10 MR. HARUEY: W e 're not claiming that this is 11 impeachment by way of a felony or anything like that, but IS impeachment as to his tendency to have a character trait 13 towards truthfulness or honesty, and there's a prior bad act 14 hBre. 15 MR. CARR: You think that's proper to do that? Do 16 you rsally think that's proper to do that? That's the way 17 you're going to impeach somebody's credibility is to bring IB in the fact that an employer fired him for stealing? Not 13 likely. Not likely. That isn't one of the approved methods 20 of attacking one's credibility. SI MR. NAS5IF: Well, not all of it discusses his 25 stealing. S3 THE COURT: I hate to tell you, but your Xerox 24 machine is dead, the last few pages I can't read. 171 1 MR. CARR: Mine works. s THE COURT: From about 19 on I can't read a thing. 3 MR. CARR: 19 is discussing being Fired. Then 4 about the families came in. The Uaught Family comes in. 5 Then the complaint about health problems. Did he ever B complain to you of headaches or stomach aches? Didn't 7 require any -- Ronald and Robert Uaught was threatening to 6 sue you because of emotional distress. Any other member of 9 the Family threaten to sue you For Firing Ronald and Robert? 10 No. 11 MR. NASSIF: Your Honorj you can cut the stealing, 12 thB stealing parts can come right now, and the Fact that ha 13 was terminated. You didn't have to say how did that come 14 about. Then go on to the nBxt page. 15 MR. CARR: I don't think putting in that part 16 about he was terminated -- 17 THE COURT: What are you agreeing to? IB MR. CARR: That he uias terminated. 19 MR. NASSIF: Line IB through 16 on page 13. E0 MR. CARR: There's no problem with that. 21 THE COURT: 16 through IB is okay. 22 MR. NASSIF: Then you go over -- then you go over 23 to page 14 and it says, on line 13, your Honor, were you the 24 person that actually Fired him? Yeah. Okay. What happened 17S 1 after you fired him? That was it. And then there's nothing a in there about stealing. 3 THE COURT: Any problem with that? 4 HR.. CARR: You've got the fact in that he was 5 eventually terminated. I don't think you need to put in, I "5 see no relevance that you were the person that actually 7 fired him. B MR. NASSIF: U e 'ra not repeating it, because he 9 never said that he was the one that did it. 10 HR. CARR: Ulhat's that got to do with anything? 11 MR. NASSIF: Because they all show up to talk to IS him. I want to leave that part in there as well. 13 MR. CARR: No. That's the only reason you want to 14 leave that in there. 15 MR. NASSIF: They threaten to sub the guy. 16 MR. CARR: What issue in this case is that 17 probative on? Well, five minutes have passed, and you IB haven't thought about anything. 19 MR. NASSIF: I know something about time, five SO minutes have not passed. Because I think before I stick my SI foot in my mouth, I don't intend to be criticized as opposed SS to some other people who don't think before they put their S3 foot in thBir mouth. Your Honor, I think it goes to this guy S4 has claimed he has.had headaches and nausea, and I think the 173 1 Fact that ha has these employment problems can be and the 2 Fact that he flat so irritated about being Fired that he got 3 his uiholB Family together to go out there is potentially -- H MR. CARR: Lee the record shout that h a 's saying 5 this with one big grin on his Face. 6 MR. NASSIS: -- is relevant on the issue oF the 7 causes oF his nausea, his vomiting, and his headaches. 1 0 mean he obviously got very upset about this thing, so upset 3 that ha threatened to sue his Former employer. 10 MR. CARR: He didn't, his family did. 11 MR. NASS IF: It utas because he uas so upset he 12 couldn't even gat the uiords out oF his mouth. 13 14 (Discussion held off the record.D IS 16 MR. NAS5IF: It goes to the issue, your Honor, of 17 the nausea, the headaches, the other things that Dr. Carnoui IS testified in terms of fatigue, depression. 13 THE CDURT: I don't think it really does. I'm 20 going to sustain thB objection, and also noting again as I 21 did before, suing an employer in Missouri is different than 22 suing an employer in Illinois, under that service letter 23 statute. I don't think that service latter statute -- I 24 don't think there's anything probative in it. As to the 174 1 other things about observations or potential observations, s ujb'vs gone through that a million times* 3 DR. HARUEY: If I may, Just to add to the 4 probative -- 5 THE COURT: Just one thing. Ulhat are uis reading? 6 I know ujb're reading on page 13, line 15 through 1B~> There 7 utas something else that you didn't object to. 8 MR. CARR: Lines 1 to 50 on page 10 is my notBs. 9 THE COURT: Okay. All right. I had lost it. 10 flR. HARUEY: On the issue that you Just rulBd on, 11 on the probative nature of it. 12 THE COURT: And relevancy. 13 MR. HARUEY: Robert Uaught's trial testimony, and 14 Dr. Carnow's trial testimoy both indicated that Robert 15 Uaught's headaches and abdominal pain did arise after the 15 termination of this employment. Some of the Uaughts, I 17 believe it's Robert -- some of them have tremors -- IB THE COURT: They've all got tremors. 19 MR. HARUEY: I guess they've alleged they have it, 50 that shouts that this is the sort of thing that tuould have HI some bearing on that* 52 THE COURT: I don't think so. All the 53 circumstances of that firing, if it had any marginal 24 probative value like that, the nature of it so oututeigh, 175 X there's just nQ way I'm going to gat it in. Thera arB a few 2 parts of this that have not bean objected to. Do you have 3 any objections to any parts of that? 4 MR. HARUEY: I'm not sure if you've ruled on this 5 part or not, your Honor. There's several different subjects 6 that were dealt with hare and one of tham -- 7 THE COURT: I said the other subjscts we had gone 8 though before. 9 HR. HARUEY: Page IS, at the bottom where ha 10 identifies -- 11 ~ THE COURT: Ulhat page? 12 MR. HARUEY: Page IB at the bottom, through page 13 17. This ties right in with the follow-up questions that 14 Mr. Carr did not object to on page 18, lines 1 through 20, I 15 believe. This is where Ronald Uaught came in, filled out an IE employment application, questionnaire. It's an exhibit and 17 the responses that were taken on there are admissions 18 against interest in this lawsuit. All the responses were 19 there was nothing wrong with him. 20 MR. CARR: I don't have any objection to that. 21 Did I object to that? 22 THE COURT: Yes, I think you did. 23 MR. CARR: Let mB look at that. 24 MR. HARUEY: It goes all the way over to page IB, 175 1 liriB 1 through 20. 2 M R . CARR: I don't think there's anything wrong 3 with that. I don't know why wa objected to it. 4 MR. HARUEY: Okay. W e 'll read that part too. 5 THE COURT: Okay. Do you guys have any objection 6 to anything that's left? 7 MR. NASSIF: Are we all the way? B THE COURT: U e 'rB through PlaintiFFs' objections. 9 MR. HARUEY: Did you object all the way to the end 10 of the deposition? 11 MR. NASSIF: I thought hB did, your Honor. 12 THE COURT: I thought hB did too. 13 MR. CARR: I did. You're ahead of me. I'm trying 14 to catch up. On page 17 -- 15 THE COURT: We're putting back in page 15, line 15 22, all of page 17, 18 lines 1 through 9, and 14 through 20. 17 MR. CARR: How about that business that Robert 18 Uaught, about hB knows him. That should go in too, 19 shouldn't it? 20 MR. HARUEY: Yb s . 21 MR. NASSIF: Yes. 22 THE COURT: Yes. That probably ought to go in 23 too. 24 MR. CARR: Down to line 11 then goes out then. 177 1 THE COURT: Yb s , from 11 on. 3 MR. NASSIF: Okay, your Honor. Everything else 3 h e 's Objected to, your Honor, are things that w e 've already 4 argued. Ule would Just ask you to incorporate our arguments. 5 THE COURT: So incorporated. Do you havB any 6 other objections on anything that's left? 7 H R . HARUEY: No. S THE COURT: Great. 9 10 CCourt adjourned.} 11 IE 13 14 15 16 17 IS 19 30 31 S3 S3 34 178 1 STATE OF ILLINOIS ) E TWENTIETH JUDICIAL CIRCUIT 3 3 COUNTY OF ST. CLAIR ) 4 5 I, KATHLEEN WATSON BRUNShANN, one of thB OFFicial 5 Court Reporters, do hereby certiFy that the Foregoing 7 transcript is a true and correct copy oF said transcript. B S DATED: January 3, 1S8B. 10 11 15 KATHLEEN WATSON BRUNSNANN, RPR, CSR 13 OfFicial Court Reporter 14 15 IB 17 IB IB 50 51 55 23 54 to k DlS ' M I C CIRCUIT i COUNTY OF ST. CLAIR > 4 5 I, RICHARD P. GOLDENHERSH, CIRCUIT JUDGE, do B hereby certify that the Foregoing transcript is a true and 7 correct copy of said transcript. B \ 9 DATED: January 3, 19B6. 10 11 12 13 14 15 16 17 IB 19 20 21 22 23 24