Document jB4Ka4aVjdp0kmn6NvqgkKBpN

11/ u r\up in u d J . Id. 1C X O IO E IP M L LEEITZ J >LOJKIr` AtfTHONY tR U N IN O * J A M I I C. LERI Tl CHRISTOPHER C MCORAUdH KATHLEEN M THOMPSON EDWARO M ROTH or coun iil L e HITZ. Pl.lTNKRRT & D R O N I N G . PC. A T T O R N E Y * AT LAW O N I CITY C EN TRE SUITE 200 T LOUIS, MISSOURI 63101 1*14) *3 1 - 2 0 0 0 PAX: 1914) 3 3 1 - 9 4 0 0 J 0 LtEITI nsftk!*? *ALVOIICINIIOINlltINO COMMENTS: -3f / hKun LtKI l^i K L U H K t K I j H N 1/ BKUNINId . IB. 1W * la :jb *. \ S Privileged attorney/Clieat Coaaru&ioatlon Draft-Kerch 10, 19$4 ^ IH THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION WILLIAM R. GAFFEY, Plaintiff, vs, PETER G. MONTAGUE and ENVIRONMENTAL RESEARCH FOUNDATION, Defendants. ) ) ) ) ) ) ) ) ) ) ) NO. 91-1938-C-7CAS AFFIDAVIT OF PETER G. MONTAGUE IM SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT PETER G. MONTAGUE, first being duly sworn upon his oath, deposes and says: 1. I am the publisher of "Rachel's Hazardous Waste News" and the executive director of the Environmental Research Foundation ('`ERF"). Both FRF and I are defendants in this lawsuit. 2. I make this affidavit in support of the Motion for Summary Judgment filed on my and ERF`s behalf and, by this affidavit, wish to inform the Court of the facts and circumstances which surrounded and led to ray writing and publishing an article in the March 7, 1990 issue of "Rachel's Hazardous Waste News" (NO. 171) entitled "Dioxin and Cancer: Fraudulent Studies*1 (hereafter "Fraudulent Studies") . A copy of the article is attached as Exhibit "A" . 3. Unless otherwise indicated, all matters stated in this affidavit are mado on ray personal knowledge. HKUn LERITZ, PLUNKERT AND BRUN INS 0 3 . 10.1954 lfcC^Z N. 3 Privileged Attorney/Cl lent CowuiiictUoa Dreft--M*roJi 10, liV4 4 ERF is a not "-for-profit corporation funded primarily by philanthropies such as the Rockefeller Family Fund/ the Geraldine R. Dodge Foundation, the Pew Charitable Trusts, and the Public Welfare Foundation. ERF provides information and advice to private citizens and organizations, as we ,, /eminent public health and environmental protection agencies, on many environmental topics. FRF'a newsletter ''Rachel's Hazardous Waste News" has as its mission statement: "Providing news and resources to the Movement for Environmental Justice." The newsletter had a circulation of approximately 1,500 at the time the Fraudulent Studies article was published. In addition to being a founder and the Executive Director of ERF since 1983, 1 was for a decade on the technical and professional staff of Princeton University's School of Engineering and Applied Science, including as Project Administrator for the chemical Engineering Department's hazardous waste research program. I have served as an advisor to the President's council on Environmental Quality, the President's Office of Science and Technology policy, and the Congressional Office of Technology Assessment, have testified before Congressional committees on Superfund legislation and radioactive waste burial and have served as consultant to the cities of Baltimore, Maryland, and Charlottesville, Virginia on issues of hazardous waste disposal. 2 r r c u n L t m i i . f L U N U t K I > HNU t J K U N I N a 0 3 .1 0 .1 9 5 4 1 8 :2 7 P. 4 friyil*) Attorny/Clint (omwtioAtion Dr*ft--M*roh 10, 1994 6. For twenty years prior to publication of the AFraudulent Studies article, I hla<adTbeon ae n active journalist in the area of environmental affaire. A substantially complete bibliography of articles I had authored or co-authored ^ attached ae Exhibit n B n * 1 was the sole author of the Fraudulent Studies article (except to the extent that I quoted other material) and the editorial decision to publish it in "Rachel1b H azardous waste News" was mine alone. What follows are the events which led to the article's preparation and publication. 7, Dioxin aryl public health wnpp- just of many environmental issues which I had a personal and journalistic interest. For years prior to publication, I understood that there was an unresolved paradox concerning the chemical dioxin. 0ntthe ,one hapd, it was undisputed that animal x?tW cA Astudies demonstrat:ed7chomtc ftl dioxin? amom potent toxins; cancer was found in laboratory animals expossd to vjtrvy//^ exceedingly low levels of dioxin measured in parts per g a llon? On the other hand, human data on exposure to dioxin was characterized by government and industry as "inconclusive." ,* ~T 0)C*t" /) 8 ,f Citizen efforts to fight the construction of *vt.Usr\lap ' ---fnSTnerators also was (and remains) a subject of personal and journalistic interest for me. In my experience, incinorators were typically proposed to be built in areas populated by working poor people. Those potentially affected have understandable concerns about how an incinerator will affect their health and 3 r-Kun U t K I I Z . KL UMK E R 7 , HMD BRUN I NS 03.10.1994 18:28 P. 5 P3rlTllgd Attornsy/Clieat CMmunieation 9tnt--Kftinsh 10, 1994 proparty values. One of the functions of ERF is to serve as an information clearinghouse for lay people and citizen activists on technical matters relating to toxic substances and public health. 9. Among the identified hazards of incinerators is the chemical dioxin. Prior to the publication of the Fraudulent studies piece, I was generally aware that developers of incinerator projects used industry studies which found no adverse human-health consequences from dioxin exposure as part of their public-relations campaigns to diffuse opposition. 10. My recollection is that the message from the developers to affected people was: "You are not scientists. Leave it to the scientists." Because of the potential human- health stakes involved and industry control of scientific informationi the subject of dioxin and health was a matter that I increasingly followed. ll. some weeks prior to the publication of the Fraudulent studies Chemist at st. Lawrence university in New York, a copy of a paper prepared by a German epidemiologist named Friedemann Rohleder entitled "Dioxins and Cancer Mortality - - Reanalysis of the b a s f Cohort.'1 ("Rohleder paper"). A copy is attached as Exhibit MC". 12. X spoke with Professor Connett - - whom X knew to be a dioxin researcher who attended scientific conferences on the subject - - about the significance of the Rohleder Paper. Based ,on my conversation with Professor Connett and my review of the 4 r t c u n L t K l U > K L U N K t K I . MND B R U N I N G 0 3 . 1 0 . 1994 18 !29 P. 6 Privilagad Hitorniif/Clivnt CoaounloKtion Draft-March 10, 1994 Rohleder Paper and a related article published In the British technical journal New Scientist entitled "New Analysis links icer" (copy attached as Exhibit ,,DM ), I understood industry-sponsored epidemiological studies on human- health consequences of dioxin contained grossly flawed data. 13. Rohleder reviewed the data, which was based on a study of workers put at risk of dioxin exposure as a result of an industrial accident. He found that some workers who had experienced high-level exposure to dioxin were erroneously placed in the study's "low level" or "non-expoBed" group and that the affected plant's supervisory staff, whom Rohleder concluded had not been exposed, were placed in the "exposed" group. The effect of the first error was to inflate falsely the "low" or "non" exposed group with people who had been exposed and experienced dioxin-linked adverse health conditions. The effect of the second error was to dilute falsely the "exposed" group's truly exposed people, who had experienced adverse health effects, with non-exposed people, who had not. 14. The consequence of both errors, to my understanding, was that the flawed German studies Bhowed little difference in the incidence of dioxin-linked cancers between the exposed and non-expoBed groups. This information was then used to deny compensation to workers exposed to dioxin. When Rohleder corrected the errors by placing exposed people in the "exposed" group and unexposed people in the "unexpoeed" group he found 5 1- r c u i `l L t K l U . f ' L U H K L K I r HMD B K U N I N S 93.10.1954 18:29 P. 7 Privilege* Attorusy/Client coasnmioation Pr-fc'--March 10, 1994 statistically significant increases in cancers of the respiratory organs and digestive tract among the exposed group when compared with the unexposed group. 15. Several weeks after I received and analyzed the Rohleder information and approximately one week before publication of the Fraudulent studies Article, I received at ERF's offices a copy of a memorandum dSEensltfin authored by a chemist at the Environmental Protection Agency ("EPA1*) named Cate Jenkins. ("Jenkins Memorandum"). 16. At the time I received the Memorandum, I was working full time for Princeton University in the Department of Computing and information Technology? I volunteered my services as ERF's director and as Editor and Publisher of Rachel's Hazardous Waste News. During my lunch hour (either on February 28th, or March 1st or March 2nd of 1990), as was my custom, I went to ERF's offices (which were only a short walk from the Princeton campus) to open the mail. There I found the Jenkins Memorandum. 17. The Jenkins Memorandum - - entitled "Newly Revealed Fraud by Monsanto in an Epidemiological Study Used by EPA to Assess Human Health Effects from Dioxins" - - was directed to Raymond Loehr in his capacity as Chairperson of the Executive Committee of the EPA's Scientific Advisory Board. Attached to the Jenkins Memorandum was a portion of a legal brief filed in Illinois state court by attorneys for the claimants in a dioxin- 6 riwri U L I U l i i ruunPbCKIr Hff1/ BKlfMiNt} 3 . I S . 1994 18=33 P. Ptlvllmgsd Attomay/Client comfiunicatlcra Zte&ft-- H&rch 10, 1994 related case entitled Kemner v. Monsanto Company. (Kenner Brief). A copy of the Jenkins Memorandum and attached Kemner Brief are appended to this Affidavit as Exhibit HBn . 18. The Memorandum, which relied in large part on the Kemner Brief, concluded that Monsanto epidemiological studies mischaracterized worker exposure to dioxin at Monsanto's Nltro, West Virginia plant. The Nitro, west Virginia plant had experienced an explosion in 1949, which explosion and subsequent clean-up had exposed workers to dioxin laden substances. The Monsanto investigators, Jenkins reported, had erroneously understated adverse human-health effects of dioxin exposure and this misinformation, in turn, had been relied on by the SPA in concluding that "existing epidemiologic studies were conflicting and did not provide definitive data on human health effects of dioxins.'1 Jenkins concluded that the Monsanto research "has now been shown to be a fraud." 19. The Kemner Brief appended to the Jenkins Memorandum described what Monsanto knew about dioxin in their products and when they knew it and explained in considerable detail how the epidemiological studies performed by Monsanto investigators named Back, Guffey and Suskind grossly and misleadingly understated the incidence of cancer and other disease resulting from human exposure to dioxin. 7 h K u n L b K I I . H L U M K E K T r HND B R N I N G 03.10.1994 18:31 P. 9 Privileged Rbtomey/CLient Csraunication DrnftMrah 10, 19$d 20* As concerns the work of the Monsanto investigators Zack and Gaffey, the Brief explained: Zack and Gaffey, two Monsanto employees, published a mortality study purporting to compare the cancer death rate amongst the Hitro workers who were exposed to Dioxin in the 1949 explosion with the cancer death rate of unexposed workers* Hie published study concluded that the death rate of the exposed workers was exactly the same as the death rate of the unexposed workers* However, Zack and Gaffey deliberately and knowingly omitted 5 deaths from the exposed group and took 4 workers who had been exposed and put these workers in the unexposed group, serving, of course, to decrease the death rate in the exposed group and Increase the death rate in the unexposed group. The exposed group, in fact, had is cancer deaths instead of the reported 9 deaths (Pi* Ex. 1464), with the result that the death rate In the exposed group was 65% higher than expected (emphasis in original). 21 The Jenkins Memorandum, Kemner Brief and Rohleder Paper, in my journalistic judgment, were powerful evidence that helped to resolve what I had long understood to be the unexplained paradox between animal studies (which found dioxin to ^ ckm -h /yy be mesa dangerous toxin and carcinogen) and the human epidemiological studies performed by Industry (labeled as "inconclusive"). 22. The conclusions reported by Jenkins and in the Keroner Brief that epidemiological evidence had been manipulated by Monsanto investigators rang true to me both logically and intuitively; it seemed intuitively true that a substance that is toxic to animal and plant life to an extent that almost defies description would be toxic to human life as well; It seemec logically true tha only through statistical m a n i pulation could 8 a f-KUn L E K I T Z , P L U H K E R T , HMD B R U N I N 3 03.10.1994 18:31 P.10 Privllsgad Attorney/Cltant ComuniOAtlon Draft-- March 10, 1994 an industry with a vested Interest keep dioxin's toxic effect on humans an "open question.'1 But, for me, more than logic and intuition supported the reliability of what I had received and read. 23. The Jenkins Memorandum with the attached Kemner Brief was first sent to me by a physicist named William San jour. I had been personally acquainted with Mr. Banjour for approximately five years and knew that he had been associated with the E.P.A. for approximately 20 years, virtually since the E.P.A.vs Inception. Over the years before he sent me the Jenkins Memorandum, 1 had spoken with Hr. Sanjour as many as fifty times on a wide variety of topics and invariably found him to be professional, thoughtful, realistic, and reliable. 24. Some years prior to sending me the Jenkins Memorandum, Mr. Sanjour had blown the whistle on official misconduct at E.P.A. 1 had dealt with many whistleblowers before and, based on my experience as a journalist, typically found them to be men and women of integrity and personal courage. I believed Hr. sanjour had these qualities. 25. Mr. Sanjour's reliability as a source was further corroborated by the fact that, notwithstanding his "whistleblowing" activity, Mr. Sanjour "survived" and remained employed at the E.P.A. l considered, it likely that he was under close scrutiny at the E.P.A. and, therefore, generally would be inclined to proceed carefully in his activities. In sum, based S r n u r i L t K l I ^ i r L U N K t K I i HNU t f K U N I H t i 03.10.1994 18!32 P Privileged attorney/Cllent Cmn&uniaatlon Draft--March 10/ 1994 on sty long-term personal dealings with Mr. Sanjour, my understanding of his history at E.P.A., and my Knowledge of "whistleblowers11 generally/ 1 considered Mr. Sanjour a highly reliable source who would relay to me only the most substantial ,\ legitimate information. 26. I also considered the Jenkins Memorandum, on its faoe, to be reliable. Sent to me by Sanjour, a long-standing E.P.A. scientist, the Memorandum itself appeared on E.P.A. letterhead, was authored and signed by a fully credentialed scientist, was directed to senior officials at e .p .a . and appeared well organized and contained what were, to me, reasoned prose. While I do not recall having had any regular dealings with Ms. Jenkins, I do recall knowing that, like Mr. Sanjour, she was a whistle-blower who had survived at E.P.A. The reliability^ I ascribed to whistleblowers generally, applied to Ms. Jenkins as veil. 27. I also found the Kemner Brief, on which the Jenkins Memorandum relied, to be credible. First, it was logically and lucidly written and was replete with evidence citations In support of its conclusions. Second, although I little experience with the judicial process, it was my understanding that lawyers - - even when acting as advocates have a professional and ethical obligation to be truthful in their representations to the Court. Moreover, to my mind, a lawyer's credibility with the judge deciding his or her case 10 t-KUn L L R U Z . P L U H K E R T , PNC B R U N I N G 03.10.1994 18:33 P.12 Privileged Attorney/Client OoNnmication Draft-- -March 10, 1$>4 created a practical incentive to the claimants' lawyers in Kemner (a case which evidently involved millions of dollars in damages) to be scrupulous in describing the facte of a case. 28. I considered and was satisfied semantically with the Jenkins Memorandum's and the Kemner Brief's use of the term "fraud" in describing the Monsanto investigators' work. The facts, as outlined in both, and placed in the context of the controversy over human health effects of dioxin exposure, justified its use. "Fraud", to me, referred to - misstatement (or even "fudging") of facts on bo subject with the expectation or knowledge that and, hence, be misled by those misstated facts 29. Based on what I had read in the Kemner Brief and Jenkins Memorandum about what had precipitated the Monsanto epidemiological investigation (the "monkey's on Monsanto's back to show Dioxin is acceptable" ) , about how obvious and egregious wore the miecharacterination of "exposed" and "unexposed" workers, about what were, to the sponsoring company, the stakes igation, among other things), and about known set public health regulations, I Memorandum's and the Kemner Brief's inference of "fraiid" to be fair, factual and, from a journalistic point of view, compellingly reportable. * -- 11 r rvuri u t r i i t i r L u n K c m , unis D K U N in a WO. J t), IB iO j Privileged Attomej/Client Go*mmi.catlcm Draft-- March ID 1994 30 The Jenkins Memorandum and the Kemner Brief were not without minor discrepancies. But, as described below, none of the three discrepancies I found were related to the Jenkins Memorandum1s and Kemner Brief's central thesis that^Monsanto investigators1 work purposefully misstated the health consequences of dioxin exposure- Moreover, furthertfCpre- publication investigation by me permitted me to readily reconcile the discrepancies X found. 31 one of Rachel's Hazardous Waste Mews's editorial policies was (and is) to provide its readership with extensive citations to source material both to facilitate the readership's own investigation into topics discussed and to enable the readership to render its own judgments on the editorial position taken In Rachel's Hazardous Waste News. 32. Prior to the publication of the Fraudulent Studies article, 1 conducted an on-line computer search through the "Dialog" service of the names of all of the relevant Monsanto investigators identified in the Jenkins Memorandum and Kenner Brief (i.e. zack, Gaffey, and Suskind) against the on-line catalogue of the National Library of Medicine so that I could provide the readers with citations to relevant source material. The citations X obtained revealed that there had been three related papers by the Monsanto investigators arising out of worker exposure to dioxin at Monsanto's Nitro, West Virginia plant; A 1980 report by Zack and Suskind ("zack-Suskind11) 12 r n u i l L t K I I . * r L U I H R t K i i HNL? U K U N I HQ 8 3 . L B . 1994 13:34 P. 14 Privilaged Attorney/Cliaot conunlcition Draft-^Marob 10, 1994 published in the Journal of Occupational Medicine, a 1963 report by Zack and Gaffey ("Zack-Gaffey") published in a compendium called "Environmental Research,11 and a 1984 report by Suskind published in the Journal of the American Medical Association (suskind"). 33 I compared the citations, the Jenkins Memorandum, and the Kemner Brief with one another, and found three discrepancies. The discrepancies consisted of Jenkins, when describing the Kemner Brief, reversing the ahronology of the Zack-Suskind and Zack-Gaffey papers and misidentifying the journal in which the Zack-Suskind paper was published as the Journal of the American Medical Association rather than the Journal of occupational Safety. Also, it appeared that Jenkins attributed the Zack-Gaffey report to Zack alone, although her u if y ' descriptionj^he work conformed with the Kemner Brief1s criticism of Zack-Gaffey* 34. On March 6, 1990, to confirm that I had correctly reconciled the discrepancies, 1 traveled with citations in hand to the Rutgers University Medical Library and reviewed and photocopied the relevant articles, including Zack-Gaffey, (Zack, iT.A. & W.R. Gaffey, "A Mortality study of Workers Employed at the Monsanto company Plant in Nitro, west Virginia,11 Environmental Science Research, Vol. 26 (1983), pgs, 575-591). A copy of Zack- Gaffey is attached to the Affidavit as Exhibit 13 ****END*** riwi-l L.C.K1 I.f rtUMtS-CK u r n / U K u m n i a 0 j . 1 .ISSi 1B: K. 13 PrirUoitd ftttomy/CU)kt CoaanaioailoB Dft-- Mftrcfc 10, 1994 35. My review of the source material against the Kemner Brief and Jenkins Memorandum, permitted me to reconcile and confirm to my satisfaction that, as the soon-to-be published Rachel's would report, the Jenkins Memorandum and the Kemnar Brief each criticized as fraudulent the Zack-Gaffey Study* 36. I included in the Fraudulent Studies article footnotes; (a) Ms. Jenkins name, title, and address, (b) the name, title and address of the E.P.A. 's Science Advisory Board Director to whom the Memorandum was directed, (c) the name. address and phone number Kemner brief, (d) a disclosure of Mr, Sanjour as the person who had sent me a copy of the Jenkins Memorandum as well as the name of Margo Blackwell who had independently sent me a copy, (e) a full citation to the Zack-Gaffey Study as well as citations to related Monsanto-based research, the Rohleder Paper and the related article published in Scientist, (f) a disclosure of Professor Connett as the person who had sent me the Rohleder Paper, and (g) an offer to send to any interested person a copy of the Jenkins Memorandum with attached Kemner Brief and/or Rohleder Paper for copying and handling costs. 37. On March 7, 1990, I reviewed and proofread the Fraudulent Studies piece after it had been printed but before it was published, and found only two items which invited editorial attention: (a) while Mr* Gaffey's name is correctly stated in the footnote citation to the Zack-Gaffey report, his initials are 14 r r . u n L t R l i i . r L U N f . t K I . HMU b K U M l M l a .10.1994 18:35 P . 16 PrivilegmJ Attorn*y/CHent CoBownicatian T>rmft--March 10, ll$4 transposed as *'R.W.M rather than "W.R." in the text and (b) I had not included a citation of the Zack-Suskind Study. I w a b dissatisfied with the typographical error and believed that, ideally, the Rachel's readership would be beet served with Zack- Suskind citation but I determined to proceed with publication as written that day. 36* Nothing in the Fraudulent Studies article itself or in any of the materials I reviewed before its publication caused me to believe or even suspect - - nor to this day do I believe - - that the criticisms of the Zack-Gaffey study and attribution of fraud made by the Jenkins Memorandum and Kemner Brief and reported in Rachel1 Hazardous Waste News were even remotely incorrect. The Jenkins Memorandum and Kemner Brief provided reliable, independent evidence of purposeful manipulation and mischaracterization of data by industry investigators in relation to a critically important public health issue. 39. After publication of the Fraudulent Studies article, I received a letter f r o m T ^ T Gaffey dated April 23, 1990 in which he claimed that the Fraudulent Studies article contained defamatory falsehoods about him. He threatened that M [i]n order to avoid litigation which could be both embarrassing and expensive, J suggest that you retract the allegation and also the 0k false statements about what Zack and I did.*1 A copy of jjp . Gaffey*s letter is attached as Exhibit ,,Gn . 15 C K u n LtKI U . KLUNKfcKT, Rh'D B R U N I N G 03.10.1994 18:36 P.17 ^ Privileged Attorosy/Client OoiMBUftieatiOtt Draft-- Mrch 10, 1994 40* I responded to Gaffey by a letter dated April 29, 1990, which, in light of *3r7 Gaffey's claims, posed additional questions about his study and requested clarification of points he had wade in his April 23, 1990 letter. A copy of my letter dated April 29, 1990 is attached as Exhibit "H". 41. jjjT. Gaffey responded by letter dated May li, 3990 with a defense of the Zack-Gaffey paper and copies of excerpts from transcripts of trial testimony in the Kemner case. As I reviewed .digested this material and sought further information on A the subject, N o C Gaffey had a lawyer write to me twice about printing an unspecified retraction of the Fraudulent Studies article. litesr Gaffey's May 11, 1990 letter (without the enclosures) and the two letters to me from his lawyer are attached as Exhibit "I". fW 42. I considered", Gaffeys grievance to be an extremely serious matter. If ai. Gaffey was, as he claimed, erroneously imputed with scientific fraud, I had an obligation to him, to Rachel's readership and to myself to ensure that the error was corrected. I thoroughly analyzed the material Gaffey sent to me as well as material I had collected independently. But, far from debunking what Jenkins and the Kemner Brief had claimed and I had reported, my review confirmed for me the accuracy of what the Jenkins Memorandum and the Kemner Brief had concluded: that the Zack-Gaffey.knowingly and I A*I deliberately sought to mislead readers. 16 FROM LERITZ, PLUNKERT ? BND BRUNING 03.10.1994 18:37 P.18 Privileged Attorney/Client Coamuaicfttion Drift--March 10, 1994 43. I vrroto tolj. Gaffey's lawyer and took great palnB to explain to her what my rvaluation thus far had yielded. A complete copy is attached as Exhibit MJM and L excerpted below: Regarding [the Kemner Brief*s] first point, 1 believe Zaok/Goffey did omit five deaths from the exposed group but I am not yet sure in my own mind whether this omission was justified or not. I am continuing to gather material about this matter and will reach a conclusion when more information becomes available to me. Regarding [the Kemnor Brief*s] second point, I believe [it] is correct in stating that 4 individuals who were labeled "not exposed to 2,4,5-T" by Zack/Gaffey had, in fact, been heavily exposed to 2,4,5-T during the 1949 accident at the Nitro plant. I believe Zack/Gaffey knew those individuals had been heavily exposed because they used the term "TCDD exposure" to describe the condition of those four individuals (and others who lived through the accident) ** Zack/Gaffey did not mention anywhere in their published article that they were including four workers with "presumed TCDD exposure" (pg. 590) in Table 11, whioh is a table labeled "not exposed to 2,4,5-T" (pg. 589). I therefore conclude that Zack/Gaffey deliberately and knowingly took four workers who had been heavily exposed put these workers in the "unexposed" group, serving to decrease the death rate in the exposed group and inci the death rate in the unexposed group, which is precisely what Mr. Carr accused them of doing in the sentj>rice I quoted in #171. I believe that Zack/Gaffey had ever^opportunity to tell their readers that they had done this, and to include whatever justification they might have offered for doing this, but instead they chose to remain silent, on the matter and thus they chose to allow their readers to form the impression that Zack/Gaffey had no reason to believe that anyone in Table 11 had suffered substantial exposure to 2,4,5-T. This causes we to believe firmly that Zack/Gaffey tried to make their readers believe that something was true when it was actually untrue and they knew it was untrue; in short, I believe they wl llfully tTiifeCbto deceive and mislead their readers, constituting a fraud. -triU 17 Liu i n ruuriKCR ii urn/ D r u m nij b.i . 1a . I'* l : -W P. IS P r iv ila ^ a d A tto rn e y / C lim t C o am u aio atlo a Q<r, Draft-- March 10, 199 44. I attempted to explain toSjfT^Gaf fey, through his lawyer, why 1 was duty-bound to ignore his threats of litigation and personal "embarrassment*1 1 This is clearly an unwarranted attempt to restrict my first amendment rights, and to frighten mo away from pursuing my T obligation as a journalist to print allegations of _____-- -- " scientific fraud. I am not easily frightened. Ibeiieve that exposure of fraud in science is an impgrtarriCBervice that journalists muBt provide their re^drfs7 since the public health consequences of sci^ntirfTc fraud can be very great indeed (and, in this particular case, appear extraordinarily so, since<J7s. Environmental Protection Agency says it has relied upon the Zack/Gaffey study to establish standards for human exposure to dioxin). . . . As for embarrassing roe, Mr. Gaffey will be disappointed on that count as well; far from being embarrassed, T am proud of the small part I have played in bringing this matter to light. My readers, and ray journalistic and scientific colleagues across the country, will follow the proceedings with abiding interest if Mr. Gaffey initiates a lawsuit, and I will take pains to keep them all apprised. After all, it Js Mr. Gaffey who haB invented a new meaning ("not exposed") for a common English word ("exposed"); I am not embarrassed to label this invention a fraud. Peter G. Montague Signed and sworn to before me, a notary public, this ___ day of __________ , 1994. My commission expires: Notary Public 18 ''END***