Document jgDQvpweb2Qe4nxqj9owRxgQ

1 1 IN THE CIRCUIT CCURT OF THE TWENTIETH JUDICIAL CIRCUIT 5 ST. CLAIR COUNTY, ILLINOIS 3 4 FRANCES E. KENNER, ET AL., } 5 Plaintiffs, 3 6 vs. } Case N a . S0-L-970 7 MONSANTD COMPANY, ) 8 Defendant. ") 9 10 11 REPORT OF PROCEEDINGS IS March SI, 1906 13 l1* Before the HONORABLE RICHARD P. GOLDENHERSH, CIRCUIT JUDGE 15 15 APPEARANCES: 17 NR. REX CARR and NR. JEROME SEIGFREID, Attorneys at IB Law, on Behalf d F the Plaintiffs; and 13 MR. KENNETH HEINEMAN, NR. JOSEPH NASSIF, and MR. SO JANES C. CRAUEN, Attorneys at Law, on Behalf of SI the Defendant, Monsanto Company. SB S3 Kathleen Watson Brunsmann J 54 Official Court Reporter L \ 1 NBEX OF W IINE5SS5 2 3 DR. RAYMOND SUSKIND 4 Further Cross Examination By Mr. Carr 5 B 7 imEX-AL-mifiiia B 9 EiainkiEfa HarKsd Admitted 10 17B3 45 11 174B-A 134 12 13 14 15 IB 17 IB 19 20 21 22 23 24 45 135 2 1 BE IT REMEMBERED AND CERTIFIED, that heretofore on a to-wit, Friday, March 21, 1906 the matter as hereinbefore 3 set forth came on for hearing before the Honorable Richard 4 F. Goldenhersh, Circuit JudgB, in and far the Twentieth 5 Judicial Circuit, and the following was had of record, to6 Wit; 7 B DR. RAYMQND SUSKIND, 9 having previously been sworn upon his oath, 10 testified further as fallows: 11 12 FURTHER CROSS EXAMINATION 13 BY MR. CARR: 14 Tammy, would you give the witness Exhibit 1779. 15 Dr. Suskind, the clerk has given you Plaintiffs' 1779 again, 16 which if you recall is the group exhibit of Dr. Nestmann's 17 reports, and I think we had finished Mr, Haney, and the next IB one in that group is Mr. Hollis Martin. Would you turn to 19 that page, please. It's B34045O on the bottom, right-hand 20 corner. 21 A Yes, I have it before me. 22 Mr. Martin has chief complaints oF pain in the 23 back of the legs and the feet, and that his nerves are'-- I 24 can't make that out -- shakey? Yes, it's repeated down in 3 1 the First paragraph there. Is that correct, sir? a A Yes, it looks like shakey, sir. 3 And his trouble started some three, Four years 4 ago. The pain, hB says, may be so severe that it will make 5 him Fall down, does it not, sir? You see that right in the B bottom of the First paragraph? 7 A Yes, sir, I see that, sir. 8 Doctor, that kind of pain that would be severe 9 enough to cause somebody to Fall down would be quite severe, 10 would it not? Have a pain in your leg -- 11 A It could be, sir, yes. IE Well, it would be, would it not? Pain in your 13 legs s d bad that you couldn't stand up. 14 A I assume that that's correct, sir. 15 Q And, Doctor, he also reported that, I assume, when 16 that occurs it takes about an hour For the pain in his legs 17 to disappear. IB A This is what the report reads of his complaints, 19 sir, yes. E0 H e 's been having that problem as of that time For 21 three or Four years, according to his statement, sir. EE A Well, that's in the First sentence. "His trouble E3 started three or Four years ago." The pain started in thB E4 back aF his leg, yes. r 4 1 Doctor, this complaint of pain now that these msn 2 have had here in 1955 and, of course, the same complaint of 3 pain, at least many of thB ones that we WBnt through here, 4 and that you saw in '79, these are all consistent symptoms, 5 aren't they, sir? 6 A Some of them da have pain, sir, yes, sir. 7 Q My question is, sir, these are all consistent a symptoms, aren't they, sir? 9 A They sound likB they're the same symptoms. 10 My question is, sir, they are all consistent 11 symptoms, aren't they, sir? s IS A I don't know what you mean by consistent, sir. 13 Doctor, why didn't you say that before you gave me 14 all these various unresponsive answers. Consistent means 15 jive with one another, or the same, or not contradictory, go 16 along the same way. You know what consistent means. 17 A Nd , I'm not altogether sure in this case that they IB are consistent, sir. 19 Now, you do know what consistent means then, sir, SO don't you, sir? 21 A UJell, if you define it for me, I know what it 22 means, sir. 23 Doctor, you know what it means. You're older than 24 I am, I'm sure you've used it many more times than I. 5 1 Yo u 'tb well read, an educated man. Everyone knows what E consistent means. You're starting out this morning the same 3 way. Doctor, are these paine in your judgment, the symptoms 4 that they've had from '43 to '50, to *55, and up through 5 '73, are they the same kind of complaint? 6 A They are pain, sir, so that would make them the 7 same -- B My question, sir, are they the same kind of 3 complaint, sir? 10 3 It would appear that they are described similarly, 11 yes. IE Q Is that a yes to my question, Doctor? / 13 3 But I 'm not sure about the consistency. 14 Doctor, is that a yes to my question? You keep 15 adding these things, then you say yes. UJhen we read this IB record to you a week From now, or a month from now, you'll 17 say that I was Just answering yes to that part'that I said, 18 not yes to your question. So you understand why I insist 13 upon an answer to my question. Doctor, are these the samB SO kind of complaints, sir? El A I don't know, sir. EE You don't know, sir? S3 A No, I do not know. E4 Have they each complained of pains in their legs? 6 1 A They have complained of pains in the legs, yes, 2 sir. 3 Have thsy each complained of those pains in the 4 lBgs, sir? 5 A Yes, sir. 6 Therefore, are they the same complaints -- kind oF 7 complaints, sir, iF each have made thB same complaint, 8 they're the same kind oF complaint, aren't they, sir? 9 A They are the same kinds of complaints, sir, but 10 I'm not sure that they are the same kinds of pain, sir. 11 Doctor, I didn't ask you that, did I? 12 A I thought you mere, sir. That would mean 13 consistent. Then they would be consistent. 14 I said these symptoms are consistent, are they 15 not, sir, and you have -- 15 A I said I didn'tknow, sir. 17 Doctor, iF they arB the same complaints, they are 18 consistent iF they're the same, aren't they, sir? 13 A IF they are the same kinds ofpain. 20 IF they are the samecomplaints, the complaints HI are consistent, aren't thBy, sir? 2E A The complaints may be the same, but the pain may H3 not be consistent, sir. 24 Q Doctor, I 'm asking you, if you'll listen to my 7 1 question, the complaints arB consistent, aren't they, sir? 2 A I do not know, sir. 3 Doctor, are thBy making the samB complaints? 4 A They are making the same kinds of complaints, yes. 5 And if they're making the same kinds of 6 complaints, they are consistent, aren't thBy, sir? 7 A I do not know, sir. B Doctor, doesn't -- isn't a complaint that's the 3 same as another complaint consistent with it? 10 A No, sir. 11 It isn't? 12 A N o . 13 How do you define consistent, Doctor? 14 A If thBy are the same kind -- 15 How do you dBfine consistent,Doctor? 16 A My definition in this instance of consistent -- 17 Not in this instance. In the world in general how IB da you define the ward consistent? 13 MR. HEINEMAN: Objection, interrupted the answer, 20 your Honor. 21 THE COURT: Objection is overruled. 22 THE WITNESS: They are alikB in quality and 23 quantity. 24 Q CBy Mr. Carr) And, Doctor, these -- alike means 20 1 A Yes, sir, I believe he is, sir. a Doctor, his reflexes, hB has the hyperactive kneB 3 and ankle jBrk, but the normally active biceps and triceps 4 jBrks on the deep tendon reflex tBSt; isn't that correct, 5 sir? 6 A That's correct, sir. 7 His abdominals and cremasteric, whatever that is B -- uihat is a cremasteric reflex, Doctor? 5 A It's the reflex when you strokB the jaw arBB. 10 Q And that's one plus, and his abdominals are one 11 plus. 12 A Right. 13 Doctor, he too has been given a diagnosis by Dr | 14 Nestmann that he has a moderately severB psychoneurosis; 15 isn't that correct, sir? IB A That's one of the diagnoses, sir, yes. 17 And again Hr. Wright's -- Dr, Nestmann1s diagnosis IB with respect to Hr. Wright was omitted from the report that 19 was submitted to the Workmen's Compensation Commission, uias 20 it not, sir? 21 A No, sir. 22 Does thecompensationreport contain the diagnosis 23 moderately severB psychoneurosis? 24 A In this particularreport -- 51 1 Excuse me, Doctor, uiould you answer the question? s A Thera is no diagnosis, sir, 3 Would you answer my question, sir? 4 A No, in this particular report there is no 5 diagnosis, sir, 6 Would you read the question that 1 asked the 7 witness? 8 S CQuestion read.3 10 11 THE WITNESS: This report does not, sir. 15 Q CBy Hr. Carr} Is your answer with respect to the 13 report that was submitted to th Workmen's Compensation 14 Commission, Dr. Suskind? 15 A This report, sir. 15 Doctor, your usb of the word "this," because one 17 can't see what you're pointing to, this report, you're 15 pointing to the report that was submitted to the Workmen's 19 Compensation Commission, are you not, sir? 50 A I am only referring to thB report that you have 51 given me which you have said werB the reports submitted to 55 the Workmen's Compensation. But I don't know that they'rB 53 the only reports that were submitted. 54 Doctor, did you understand that the Judge is thB 22 1 judge of whether or not this is submitted to the Workmen*s a Compensation Commission, and that he has ruled and held that 3 it is a report that was submitted to the Workmen's 4 Compsnsaion Commission? 5 A It is, sir. 6 Da you understand that you may not overrule the 7 JudgB, Dr. Suskind, that you are obligated -- B MR. HEINEMAN: Your Honor, I object to this. Your a Honor, I object tD this. 10 THE COURT: Gentlemen, wait a second. Let's li approach the bench. IB 13 (The Fallowing proceedings were had at the bench 14 out of the hearing of the Jury:5 15 16 MR. HEINEMAN: Again, your Honor -- 17 THE COURT: First of all, you better makB speaking 10 objections up here. Those are the ones that are to be made 19 up here. EO MR. HEINEMAN: All right. Your Honor, again this El procedure is patently unfair to the Defendants. You let Mr. ES Carr sit there and make thesB speeches in Front of the Jury, E3 which are patently wrong, and everybody knows that they're E4 wrong, and then you make me come up here and don't let me S3 1 respond so that the Jury can hear my response. 1 object to s that. I think it's patently unfair, and I want to make that 3 clear For the record again now, 4 Secondly, it's not within his province to correct 5 this witness. ThB Court has instructed the witness. Those 6 questions are improper. Those statements are improper. In 7 addition, the witness has said you are the one that told me B these arB documents submitted to the Marker's Compensation. 9 That is absolutely accurate. He doesn't know whether they 10 are or not. He was told by the Court and by h r . Carr 11 yesterday that they were submitted to the Worker's IS Compensation Commission. He doesn't know that. 13 MR. CARR: But hs is challenging it, Counsel. 14 hR. HEINEhAN: Hb isn't challenging it. 15 h R . CARR: He most certainly is. H e 's refusing to IB answer the question. He is casting doubt on whether or not 17 thesB reports were submitted to the Worker's Comp. IB MR. HEINEhAN: No, he didn't. 13 h R . CARR: He is saying that I just have to takB SO your word for it, when in Fact the Court has ruled on it. SI You havB given them to us, you have told us these were se submitted to the commission. They're marked on the Front of S3 them they were submitted to the Commission, and this witness 34 has no right to challenge that. He has no right to leave 24 1 the implication to the Jury that these WBre somehow or other 2 Just things that I said were submitted to thB Commission, 3 because I have no idea what was submitted to the Commission 4 I have relied on what you havB said, and the Court has 5 raliad upon what you have said. 6 MR. HEINEMAN: No, you have.said it. 17 MR, CARR: ThB Court has ruled that thBy were 8 submitted to thB Commission. 8 MR. HEINEMAN: Ths Court has ruled -- 10 MR. CARR: This witness does not have ths right to 11 contradict the Court, and neither do you, Counsel. You can 12 put it in the record that you don't agree with thB Court, 13 but you haven't got the right to contradict the Court. 14 MR. HEINEMAN: Now Just one minute, Mr. Carr. 15 This witness was saying tha he doesn't know if these ara the 18 only records that were submitted to the Worker's Camp 17 Commission. Hb said that. Hb doesn't -- he has no IB knowledge -- 18 MR. CARR: That has nothing to da with it. I 20 didn't ask him whBthBr or not they WBre the only records. 21 MR. HEINEMAN: Do you mind if I say something 22 here? Hb has no knowledge as to whether or not these things 23 were submitted to the Commission. All he knows is he as 24 told that. And he has said -- M r . Carr askBd him when you 25 1 say this record, uihat are you referring to. He said I'm 2 referring to this document that you said uias submitted to 3 the Commission. That's uihat hB said. That's a perfectly 4 reasonable, honest response to the question. 5 THE COURT: First of all, I have found that those 6 are the records submitted to the Comp Commission. They have 7 bean accepted an that basis. They've been used on that 0 basis. 9 Number tuio, his comment about any othBr records is 10 not at all responsive to the question that urns asked of him. 11 It follows a long pattern that this witness has had of 12 interjecting matters that are unresponsive to thB questions 13 that are asked of him. 14 Number three, I think it is proper impeachment of 15 the witness to question him as to his knowledge that his 16 going against the dictate, or an order, or a request of thB 17 Court, under the circumstances what Nr. Carr did was not 10 improper. If it were improper I would order it stopped, and 19 I would correct it. I heard what was said. I know what has 20 happened in this matter. UJhat he did was not improper. 51 The witness' response as to thB othBr, you know, E2 not knowing whether anything else was submitted, is not at 23 all responsive to the question. There's a long pattern that 24 this witness has had of making non-responsive answers to --i 26 1 questions of Counsel. I think that covers all the grounds a that you had. 3 Number three -- number three, I have ordered that 4 all thesB types of arguments be made up here for reasons I 5 have already made in the record, and I think that despite 5 the actions of this witness in othsr matters that have gone 7 on, that these arguments are mads at the bench has made the 0 proceedings in front of thB jury a lot smoother, a lot less 9 abrasive, and has generally helped in the conduct of this 10 trial. 11 From my witnessing of how things have proceeded 12 since I have put Forth this order, the motions are to be 13 argued at the bench. I think it was a wise move, and I am 14 going to continue to enforce that, enforce it strictly. I 15 think it has definitely helped. In the progress of this 16 trial I think it has helped. I think that it's something 17 that I should continue, and I will probably adopt it in 10 other trials in thB future. I think it has proved to have 19 worked out very well. I think that covers everything. 20 MR. HEINENAN: TherB's one morB thing, your Honor. 21 I would like to have a continuing objection. I'm not sure 22 if the Court gavB me a continuing objection yesterday to any 23 questioning of this witness on this Plaintiffs' Exhibit 24 1702. 57 1 THE COURT: I think I did, but I mill again. s MR. HEINEMAN: Without it being admitted into 3 evidence on the basis that this uiitness has .never seen the 4 document before, he didn't prepare it, he knows about it, 5 and, therefore, it can't be used as impeachment of him. So 6 it has to be used-- it has to be put in evidence before he 7 can be questioned about it. B THE COURT: I think you asked for one yesterday. 9 I gave it, but I mill give it again in case it uiasn't from 10 yesterday. 11 15 CThe fallowing proceedings tuerB had in the 13 presence and hearing of the jury:) 14 15 CBy Mr. Carr) Or. Suskind, by the response that 16 you gave to ms, you have implied that there may be other 17 reports of Or. Nestmann that have been submitted to the 19 Worker's Compensation Commission in addition to or different 19 from the ones that are contained in Plaintiff's Exhibit BO 17B2. Do you have any knowledge that any other reports uisrB 21 submitted to the Commission other than those reports that 52 are contained in 1705? S3 A I know at least one, sir. 54 Do you have any knowledga, sir -- you do have SB 1 knowledge of one, sir? a A Yes. 3 UJhat one is that? 4 A That's on a llr. CecilCunningham. 5 Doctor, Cecil Cunningham's report is included in 6 both groups. It's included in 1779 and it's included in 7 17BS. Now where is the report -- and these arB the two B reports that we have been given by Monsanto. Have you seen a some other report, sir, a third report? 10 A Well, I 'm not altogether sure about the first one. n If it's the one of JunB Bth, which was a date of an is examination. The date of an examination of Mr. Cunningham 13 on June Bth in which -- and I have rBad this recently -- hB 14 indiatsd that he has a moderately severe psychoneurosis. 15 Doctor, is the report of June Bth that you're 16 talking about, sir -- 17 A Yes. IB Q -- onCecil Cunningham? 13 A Yes. SO Q All right. Now, Doctor, turn to the exhibit on SI Cecil Cunningham, that is part of 17B2, which has been SS submitted to the Commission, and see if you see there, sir, S3 the diagnosis of psychoneurosis. 54 A I don't see it in this copy, sir. S3 1 All right. Now, Doctor, turn to Exhibit 1779, the 5 one that we were looking at, air, that is the group exhibit 3 that ujb started to go through, and uts want through Hr. Cecil 4 Cunningham, and see, sir, if you notB that in that report, 5 bearing the same date, June B, 1355, that in that report E there is a diagnosis of moderately severs or severe 7 psychoneurosis. Do you sbb that, sir? 0 A I don't see a date on this one, sir. The one I'm 3 referring to had a definite date, June B, 1355. 10 Well, Doctor, if you will compare the two reports 11 you will see that they are exactly the same, word for word, 15 with the exception that the diagnosis of moderately severe 13 psychoneurosis is lBft out; isn't that correct, sir? 14 A No, sir. 15 Are theyexactly the same, sir? 16 A No, sir. 17 What is the difference between the one in 1773 and IB thB one that was given to the Commission, 17BE? 13 A The difference is that the one in 1773 Dr. SO Nestmann says my diagnoses on this man are oral leukoplakia, El left testicular atrophy, moderately severe or severe EE psychoneurosis. In thB one that you havB given me in 17B2 S3 there is no diagnosis at all. 24 Certainly. I 'll acceptthat, Doctor. 30 1 A That's the real difference. Q The one that mas submitted to the Commission does 3 not include the diagnosis of this oral lBukoplekia, left 4 testicular atrophyi or moderately severe or severe 5 psychonBurosis; is that correct, sir? B A That's correct, sir. 7 Q So the Commission did not know that this man had B these three problems insofar as you can tall from that S report; isn't that correct, sir? 10 A No, sir. No, sir. 11 Does that report tell the Commission that he had 1E the problems of severe psychoneurosis? 13 A No, sir. 14 It does tell the Commission, if you read the 15 report, that h e 's got the oral leukoplekia, doesn't it, sir? 16 If you read the full report. 17 A In 1779, yes, sir. 18 If you read the full repot, it does tell thB 19 Commission that hB has left testicular atrophy, doesn't it, E0 sir? If you read the full report. The second paragraph, El second page of Cecil Cunningham's report, sir, the last line ES in the second paragraph, inhere it says "the left testis is S3 atrophic," do you.see that, sir? E4 A Are you referring to 1779, sir? 31 1 I am, indeed. 2 A Where is it nau, sir? 3 And it is in 17B2 in exactly the same language, is 4 it not, sir? 5 A Where is the quotation, sir? I'm sorry, I didn't 6 get it. 7 Were you listening to mB, Dr. Suskind? B A Yb s , I am listening. S Q Were you at the time that I told you where it was, 10 sir? 11 A I was trying to, sir, yes. 12 Doctor, I told you it was on thB second page, 13 second paragraph, last line, both in the 1782 and in the 14 1779 exhibit. 15 A Yes, sir, I see it, sir. IB Q It is in both exhibits, isn't it, sir? 17 A It is in both exhibits. IB So the Industrial Commission, the Workmen's 19 Compensation, was told that he had this atrophic testical, 20 was it not, sir? 21 A Yes, sir. 22 But the diagnosis of left testicular atrophy was 23 not there, was it, sir? ThB Final diagnosis. 24 A In this report, no, sir. 32 1 So the Commission would havB to rsad that report, 2 17B2, and make its own diagnosis that there was testicular 3 atrophy, would they not? 4 A No, sir. No, sir. 5 They wouldn't, sir? B A No, sir. 7 You think the description is sufficient? B A No, but thBre are other ways of transmitting it. 5 Doctor, you understand my question, though -- 10 A Yes, sir. 11 Q -- relating to this -- 12 A Yb s . 13 -- report? 14 A Yb s . 15 Q There are other ways of transmitting it, indeed. 15 By testimony, by letter from lawyers, by all kinds of 17 things. But, Doctor, I 'm examining you with regard to these IB reports and the contents of these reports. You surely 19 understand that, don't you, sir? 20 A Yes, sir. 21 Now, Doctor, with regard to the important 22 diagnosis that I'm asking you about, the Industrial 23 Commission, the Worker's Compensation Commission was not 24 told that in Dr. Nestmann's opinion this man was moderatBy 33 1 severe or severe psychoneuroticj isn't that correct, sir? 2 A No, sir. 3 Q That isn't correct? 4 A It is correct. 5 Q It is correct. They weren't told that? B A In the rBport that I have, in 17B2 -- 7 Q Excuse me, Doctor, is it correct or not, they were 8 not told that his diagnosis was a moderately severe or 9 severe psychoneurosis? 10 A From this report they weren't told, yes, sir. 11 That's what I'm asking youabout, Doctor. 12 A From this report there's no indication of any 13 diagnosis, right, sir. 14 Q That diagnosis is omitted, is it not, sir? 15 A All the diagnoses areomitted, sir. 16 Q Excuse me, Doctor, that diagnosis is omitted, is 17 it not, sir? 18 A Yes, sir. Yes, sir. 19 D And, Doctor, are therB any other reports of which 20 you are aware that deal with Cecil Cunningham that was 21 submitted to thB Commission other than the one that's in 22 Exhibit 17B2? 23 A Yes, sir. 24 And wherB is that rBport, sir? 34 1 A Well, right in 1782, air. 2 Q There is another report? 3 A Yes, sir. 4 Q Another of Dr. Nestmann's in 1702? 5 A Yes, sir. 6 Q Would you point it out to me, please, sir. 7 Doctor, what you are doing nouj, I asked you for a report, 8 did I not, sir? 9 A Well, this is a report, sir. 10 Q Excuse me. Doctor, did I ask you for a report of 11 D r . Nestmann? Did I ask you where there was another report 12 of Dr. Nestmann in this exhibit? 13 A This is a report of Dr. Nestmann, sir. 11 Would you answer my question, please, Doctor? 15 A Yes. 16 Q You've showed mB a page that is the Monsanto's 17 lawyers summary of Dr. Nestmann's testimony, have you not, IB sir? 19 A I don't believe that's a Monsanto -- 50 IndBBd it is a Monsanto. You see that, sir? 21 Brief on behalf of Monsanto Chemical Company. Do you see 22 that? This is part of their brief, Doctor. Do you 23 understand that? 24 A Yes, sir. 35 1 Q All right. Noui uihat you are reading there, a Doctor, what you directed my attention to, Doctor, was a 3 summary of a lawyer for Monsanto of Dr. Nestmann's 4 testimony; isn't that correct, sir? 5 A No, I don't know that, sir. 6 Q Doctor, what does it say at the top of the page? 7 A It doesn't say that it's a lawyer's testimony. 8 Uihat does it say, sir, at the top of the page? 9 A It says name, Cecil Cunningham, claim number, 10 summary of Dr. Nestmann's testimony -- 11 Thank you, Doctor. IS A -- June 0, 1955. 13 All right, Doctor. That's enough, doctor. Does 14 it say that this is Dr. Nestmann's report, or does it say 15 this is a summary Df Dr. Nestmann's testimony? 16 A It's a report on Dr. Nestmann's testimony. 17 Yes, indeed, Doctor. Now I asked you For a report IB of Dr. Nestmann's -- a report of Dr. Nestmann, did I not, 19 sir? SO A Well, this is a report, I would say, of Dr. SI Nestmann. It's Dr. NBstmann's testimony, sir. ss Q Now, Doctor, this is what a lawyer is summarizing, S3 and you know it. 24 A No, I do not know it, sir. I didn't even realize 36 1 that. 2 Q You didn't, did you? 3 A No, sir. 4 0 Now you do realize it? 5 A I 'm not even sure that I do. 1 don't know that 6 this is a -- 7 Doctor, I want you to assume that that is a Q lawyer's summary of Dr. Nestmann's testimony, since you 9 don't knout it. Will you assume that, please, sir? 10 A I am assuming that, sir. 11 Q IF it is a summary, it's not the doctor's report, 15 is it, sir? 13 MR. HEINENAN: Objection, your Honor, May Counsel 14 approach the bench? 15 THE COURT: Yes. Yes, you may. IB 17 CThB following proceedings were had at the bench IB out of the presence and hearing of the Jury:5 19 SO MR. HEINEMAN: This is a, if we're talking about SI thB right thing here, what the doctor is referring to is a SS direct quote from the testimony. S3 THE COURT: Yes, but that's not a report. That's S4 what he was asked. 37 1 MR. HE INEMAN: Hb was asked Is that a lawyer'a 2 summary? 3 THE COURT: He said yes. 4 MR. HEINEMAN: What h e 's got here, question, 5 quote, It's a quotation. 6 THE COURT: Yes. 7 MR. HE1NEMAN: It's a quotation from his B testimony, 9 THE COURT: Yes, as part of a summary of Dr. 10 Nestmann's testimony. 11 MR. HEINEMAN: That's right. 12 THE COURT: Right. It's not a report. 13 MR. HE1NEMAN: What he is saying is that this -- 14 what this witness is saying is that this is clearly a report 15 of what Dr. Nestmann said. 15 MR. CARR: No question about that. 17 THE COURT: But that's not a report. 18 MR. CARR: It's not Dr. Nestmann's report. 19 THE COURT: You've been in practice a long time, 20 you know what a report is and you know what testimony is. 21 That's the point he's trying to make. That's all, we all 22 know that. Ydu knew that your First year out of law school. 23 MR. HEINEMAN: What h e 's saying is there's nothing 24 there but the lawyer's summary. That's what hB asked the 36 1 witness. That's not true. What there is is a direct 5 quotation from what the doctor testified to in front of the 3 Worker's Compensation Commission. That's not just a 4 summary. 5 THE COURT: I have seen a lot of instances, and S I 've donB, and I 'm sure you have too, where part of a 7 summary of something includes a quotation, a small portion a that you want tD use in the exact language for some reason, 9 usually for clearing of the materials or some other reason. 10 The fact that it contains a quotation is not a report. 11 It's a summary, number one. Number two, this is 12 conjecture. Whether it is a summary, or whether it's a 13 summary and a quotation, it is testimony and not a report. 14 W e 're going down a side alley. I would overrule your 15 objection on this basis, I think we should get back -- 16 MR. HEINEMAN: This is the very reason why it's 17 improper for the witness to be questioned about something 16 that's not in evidence that the jury can look at for 13 themselves, because the question implies that all you have 50 in here is lawyer's language, and that is a direct quote 51 from the doctor, That's what's wrong with the implication 52 that Mr. Carr made. I object to it. 53 THE COURT; Absolutely not. Overruled. 24 33 i (Tha following proceedings mere had in the s presence and hearing of the jury:) 3 i Q CBy Mr. Carr) Doctor, you are and havB been aware 5 at least since yesterday that Dr. Nestmann did testify at 6 the hearing with regard to Cecil Cunningham; isn't that 7 correct, sir? 8 A Yes, sir. 9 And, Doctor, you knew that when I started asking 10 you questions about Dr. Nestmann's reports, did you not, 11 sir? IS A Yes, sir. 13 Now, my, question, sir, disregard For the time 14 being, uib'11 get to it, disregard For the time bBing, sir, 15 Dr. NBstmann's testimony. 16 A Okay, 1 will. 17 Q Will you do that, sir? Ny question to you, sir, 18 was there ever a report of Dr. Nestmann that was submitted 13 to the Commission in which it was stated that Dr. Nestmann's 20 diagnosis was he had a modBratBly savers or severe 51 psychoneurosis? 22 A I really don't know, sir. 23 Well, then, Doctor, the only knowledge that you 24 have oF reports that were submitted to the Commission is 40 1 that report which is contained in Plaintiffs* Exhibit 17BEj 5 isn*t that correct, sir? 3 A No. 4 Q Ulhat other knowledge do you have of Dr. Nsstmann*s 5 reports that was submitted to the Commission other than that 6 one that's contained in that exhibit? 7 A UBry Frankly, sir, I am not -- I don't know 8 whether or not the report in 1779 wasn't submitted. You 3 know I really don't know that it wasn't. 10 Q Doctor, my question to you, sir, is what knowledge 11 do you have that a report was submitted to the Commission 12 other than the one that is in 170S7 You understand my 13 question? Please answer my question, sir. If you know that 14 1779 was submitted to the Commission, if you know that Dr. 15 Nestmann's report as it regards Cecil Cunningham was in fact 16 submitted to the Commission, that's fine, and I 'll question 17 you on that and w e 'll discover where it is in the IS Commission's record. W e 'll ask rionsanto to produce that 19 particular copy. SO A Okay. SI But at this point in time, Doctor, the only one ss that Monsanto has produced that was submitted to the S3 Commission is the one that is in 1792. Now dri you know of . 54 some other report that Monsanto has not produced to us that 41 1 mas submitted to thB Commission other than the d h s in 17627 s A No, I do not knou, sir. 3 011 right. And the one that is in 1762 does not 4 contain the diagnosis of moderately severe or severe 5 psychoneurosis, does it, sir? 6 0 In this particular copy, it does not, sir. 7 Doctor, is there any copy in uhich it does appear, 6 sir? 9 0 I don't knou, sir. 10 Nou, Doctor, these various reports that u e 've been 11 through, ue havB completed thB Exhibit 1779, have ue not, 12 sir? 13 0 I don *t knou. Have ue? 14 Q Doctor, do you have knouledge ofany report that 15 uas submitted to the Commission in uhich the diagnosis of 16 Dr. NestmBnn uas severe or modBratB or mild psychoneurosis, 17 sir? 10 0 Yes. 13 And uhat report is that, sir? 20 A It's a report of the testimony of Dr. Nestmann -21 Q Doctor, you're talking about testimony. Do you 22 understand uhat the uord "report" means? 23 A There's a report of thetestimony, sir. 24 Q Doctor, do you understand? I'm not asking about a 42 1 report of testimony. 2 A Yes, sir. 3 You know that I 'm asking you abot a D r . Nestmann 4 report, don't you, sir, a written report as w b 'v b Just gone 5 through, sir? S A No, I don't understand that, sir, because report 7 to mB -- B Doctor, we went through that when we talked about 3 the summary of the lawyer's summary of Dr. Nestmann'a 10 testimony, did we not? 11 A Right. 12 Doctor, you do know that a report of a doctor is 13 as is in 1779, or those documents in 17B2 that bBar his name 14 and his signature. You understand that. That is a doctor's 15 report. You do know that, d o n 't you, sir? 16 A No, sir. 17 You don't knoui that? IB A No, sir. 19 All right,Doctor. If you don't knoui that then E0 uie'll have to pass to the next subject. Do you knoui of any 21 documents, sir, signed by Dr. Nestmann that uiere submitted 22 to thB Commission with regard to any of these pBaplB in 23 which the diagnosis of psychoneurosis was contained, sir? 24 A Yb s , sir, in a rBport. In a report. I regard 43 1 that as a report. 2 Doctor, did you hear my question? It included the 3 word signed by Or. Nestmann. 4 0 Well, I would assume that the testimony that he 5 gave -- S FIR. CARR: Your Honor, this witness insists upon 7 'playing games. 0 THE WITNESS: -- would be signed too. No, I'm 9 not. 10 FIR. CARR: He knows the difference between 11 testimony. 12 Q (By Fir, Carr5 Doctor, what makes you think that 13 Dr. Nestmann signed thB testimony? 14 A Hb could sign a transcript. 15 Who told you that? 16 A I don't know. He could have, sir. 17 Doctor, noui you're simply speculating, and Dr. 10 Nestmann did not sign his testimony. A court reporter 19 certifies that it's correct. HavB you ever signed your 20 testimony in court, sir? 21 A Not in court, but I have certainly -- 22 Did you sign your testimony in Worker's 23 ,Compensation? 24 A I 've signed depositions, sir. 44 1 Sure, you have. Did you 3ign your transcript of H testimony bsforB the Marker's Compensation Commission in 3 this very matter, Dr. Suskind? 4 A I don't recall, sir. 5 Doctor, back to thB question that I asked you, do 6 you know of any reports signed by Dr. Nestmann, submitted to 7 the Commission in which he states that any of these people B had psychonsurosis? ,B A IF you mBan doctors' letters -- 10 Q You heard what I said. 11 A Doctors' letters, no, I don't know Df any other. 12 Doctor, I don't mean doctors' letters, I said 13 report. I didn't say letter. I said any report signed by 14 r. Nestmann that was submitted to the Commission in which 15 he says there's a psychoneurosis, 16 A Yes, sir, I do. 17 What is that, sir? IB A That's a report on fir, Willard. 19 Q Yb s , Doctor, I have it in my hand. 20 A Yes, sir. 21 Q There is a report with regard to Mr. Willard, 22 isn't there, sir? 23 A Yes, sir. hay 3rd, 1953, sir. 24 Yes, Doctor. I'd like to have it marked as a 45 1 Plaintiffs * exhibit. 2 3 CPlaintiffs' Exhibit 1703 was marked For 4 identification by the court reporter.3 5 6 (By Mr. Carr) I hand you now what's been marked 7 Plaintiffs' Exhibit 1763 and ask you if you recognize that e as the report signed by Dr. Nsstmann in 1953? You do 3 recognize that. It has his signature, does it not? 10 A Yes, sir. 11 Q It has the state compensation stamp an it. 15 A Yes, it doss. j. 13 MR. CARR: I offer that into evidence, if it 14 plBase tha Court, 15 THE COURT: Any objections? 16 MR. HE INEMAN: Your Honor, uib make the same record 17 we mads before with respect to documents of this kind. 10 THE COURT: Fine. 19 MR. HEINEMAN: I think the Court has already 50 ruled. 51 THE COURT: I will incorporate arguments of both 55 Counsel. It's admitted over objection. 53 MR. CARR: I ask leave to pass it to the jury. 54 THE COURT: Yes you may. 46 1 CBy fir. Carr} Doctor, this report is in a relatively small print and it's somewhat difficult to read. 3 Have you been given a report that you have with you that 4 would be blown up that would have better -- 5 A No, I don't havB anything of that nature with me, 6 sir. 7 Q You were aware of this report, weren't you, sir? B A I was aware of this report, yes, sir. 9 Q You've read it, haven't you, sir? 10 A I bBlieve I have, yes, sir. 11 Yes. You read it probably Just last night, didn't IS you? 13 A No, sir. 14 All right, Doctor, that's notimportant. 15 A I read it many days ago, sir. 16 This report is dated flay4, 1353, and it was a 17 report that was sent directly to the Commission; is that 18 correct, sir? 13 A It was requested by the Commission, sir, yes, sir. 20 MR. CARR: Your Honor, would you direct the 21 witness to respond to my question and not tell me whether or 22 not it was requested by the Commission. 23 THE COURT: Doctor, please respond to the 24 question. 47 1 THE WITNESS: Yes, sir. THE COURT: I don't think that that mas a 3 responsive answer. Listen to ths question again and please 4 respond to the question. 5 THE WITNESS: Yes, sir. 6 THE COURT: I'm sorry, I didn't hear what you 7 said, sir. B THE WITNESS: Sorry. I said yBS, it mas sent to 3 the Commission. This is in answer to his question, sir. 10 THE COURT: Thank you, 11 0 CBy hr, Carr) Doctor, in regard to this report, IE with respect to Fir. Willard, the Commission, did ask Dr. 13 Nestmann to examine Mr. Willard, did they not, sir? 14 A I believe they did. 15 Yes. And after this report was submitted some two 16 to three years after this report was submitted Monsanto 17 hired Dr. Nestmann to examine some 5 others, did they not, ia sir? 19 A I don't know whether they hired him or not. SO You don't know that, sir? 21 A No, sir. EE W e 'll get to that in a moment. You don't know S3 that from that point on, after this report was made, that E4 Dr. Nestmann became a Monsanto witness, testifying in behalf 4B 1 aF Monsanto, submitting reports in behalf of Monsanto? 2 A I know that he did it at least once. 3 Q Well, Doctor, you know that he did it mors than 4 that. This exhibit is already in evidence in which he has 5 described that Dr. Nestmann, his findings concerning B psychoneurosis in most of tha employees he has examined for 7 us. You know that, don't you, sir? B A That's what that Wager report reads. Whether it's 9 accurate -- 10 Q That's what Mr. Wager of the Monsanto Company says 11 about Dr. Nestmann, doesn't hB, sir? 12 A That's what he says in that report, sir. 13 Doctor, back to this report, Dr. Nestmann says as 14 far as the present illness is concerned that the man has got 15 a considerable number of symptoms, doesn't ha, sir, no 16 strength for four years, shortness of breath for four years, 17 pain like a toothache beneath both knees? Does he not, sir? IS Present for Four years. Do you see that, sir? 19 A Yes, I do, sir. 20 Unable to sleep, darned nervous for four years. 21 Do you see that, sir? 22 A Yb s , I do, sir. 23 Q These complaints that h B 's made there are very 24 similar to the complaints that many of these othBr workers 43 1 made; isn't that correct, sir? s A There are some similarities. 3 It's not unique with fir. Willard, is it, sir? 4 A I believe that there is a uniqueness about hr. i 5 Willard, yes, sir. 6 Doctor, 1 didn't ask you if there was a uniqueness 7 about Mr. Willard. Hopefully there's a uniqueness about all- B f us. My question, sir, is that the complaints that h e 's, S making therB, sir, arB not uniqua, they arB thB same or 10 similar to the complaints made by many, many others.* 11 A No, sir. 12 Q They'rB not, sir? 13 A No, they are more numerous, sir. 14 Well, he may have more complaints, sir, but the 15 complaints he has arB similar to the ones that others have 16 made; isn't that right, sir? 17 A Some oF them arB, right, sir. IB Doctor,there's, a lot of men complained about loss 19 of strength, weakness, have they not? 20 A Some of them have. 21 Doctor, more than some. Of the ones that you 22 examined, a considerable number; isn't that correct, sir? 23 A Some of them, sir. ' 24 Well, Doctor,when you say some of them, how many 50 1 do you mean, sir? 2 B Well, 1 can't tell you what the exact numbers 3 ware. But in my memory, sir, they weren't a very large 4 number, which you are inferring, sir. 5 Doctor, there ware 51 of your 35 that complained B of fatigue, 27 complained of achBiness and pains; isn't that' 7 correct, sir? a A That's in 1953, sir, yes. 9 Isn't that correct, sir? Now that's a 10 considerable number, isn't it, sir? 11 NR. HEINENAN: Objection, your Honor, the question 12 was on weakness, wasn't it? 13 THE COURT: Objection is overruled. 14 CEy Nr. Carr) Isn't this a considerable number, 15 Doctor, 21 fatigue, 27 aches and pains? 16 A Yes, that -- that is. 17 Q Doctor, second complaint is shortness of breath. IB Now there's a considerable number that'have complained of 19 shortness of breath, aren't there, sir? 20 A No, sir. 51 Doctor, there's nine, according to your report in 22 1953. 23 A Well, we haven't counted those who complained of 24 shortness of breath, so -- SI f 1 Yes, ydu did, Doctor. On page five you havB the 2 ones that complained of shortness of breath. 3 A Okay. 4 Don't you, sir? 5 A That's ninB, sir. 6 Q Doctor, you did count them, didn't you, sir? 7 A Yes, sir. a There's nine. 9 A Okay. 10 That's a considerable number, isn't it, sir? 11 A Yes, sir. IS Q And, Doctor, complains of painbeneathboth knees, 13 but especially the right knee, there most of thetime, it 14 comes and goes. A considerable number of men complained 15 about pains in the legs, didn't they, sir? IE A Some of them did, yes, sir. 17 Q Doctor, is 27 a considerable number? Doctor, is 18 27 a considerable number? Page 5 of your 1953 report, if 19 that's what you're trying to find, Doctor. SO THE COURT: Doctor, please answer the question. 21 THE WITNESS: I can't answer that question that 22 way, sir. 23 CBy Mr. Carr5 Doctor, my question is is 27 a 24 considerable number. That's my question. 52 1 A 27, yes, sir, that's a considerable number. But a that doesn't refer to the pains in the legs. 3 That's my question, Doctor. Doctor, that's my 4 question. Is 27 a considerable number? 5 A 27 aches and pains in a variety of places may be, 6 but you're referring to Mr. Willard -- 7 Q Doctor, I 'll get to what I 'm referring to in a B moment 9 A Well, you started off with one question, and then 10 you shift to another. 11 Q Doctor, if I do that, it's because I want to do 12 that. I have the right to do that. Yd u do not have the 13 right to propose the questions that I may ask you. If I 14' twist anything -- 15 MR. HEINEMAN: Objection, your Honor, he doesn't IB have a right to confusB ths witness, 17 CBy Mr. Carr} If I misrepresent anything,, your 10 lawyer -- 19 THE COURT: Gentlemen, could you approach the 20 bench for a minute, please. 21 22 CThB following proceedings werB had at the bench 23 out of the hearing of the jury:} 24 53 1 THE COURT: If you make ana mors remark like that s in front of this Jury in the course of this, I 'm holding you 3 in contempt. 4 MR. HEINEMAN: Your Honor, do you conceive in your 5 years of sitting on the bench that what he bias doing right 6 then, Mr. Carr mas doing, is proper? Do you have any 7 conception that that mas a proper behavior for a lawyer in a questioning a witness? 9 THE COURT: Uhat he did was not improper. Uhat 10 you did is a violation of my rules against speaking 11 objections. Mr. Carr has bBen trying to explain to this 12 witness what h e 's supposed to do, and h a 's explained to him 13 a number of times. The witness does not -- and I have 14 explained to this witness a number of times. Uhat you did 15 was in violation of my rule against speaking objections. 16 MR. HEINEMAN: Your Honor -- 17 THE COURT: I don't want it dona again. 16 MR. HEINEMAN: Your Honor, it is true that what I 19 Just said was a speaking abjection, and it was in violation 20 of your order, and it was unintentional, and I apologize to 21 the Court for that, 22 THE COURT: The apology is accepted. 23 MR. HEINEMAN: I must say that my emotions were 24 arousBd by the impropriety of what I was observing Mr. Carr 54 1 doing, an I strenuously object to what he's doing as 2 absolutely improper. He is not entitled to chastise the 3 witness. H e 's not entitled to instruct the witness. The 4 Court's province is to instruct the witness. I object to 5 it. I Just got carried away. B THE COURT: Let's take a break. 7 B CThe following proceedings were had in the 9 presence and hearing of the Jury:) 10 11 THE COURT: Ladies and gentlemen, w e 'll take a 12 short recess at this time. I would remind you that you're 13 not to discuss this matter among yourselves, with anyone 14 outside thB Jury panel. bJe'll take a short recess at this 15 time. 16 17 CShort recess.) IB 19 CBy Mr. Carr) Dr. Suskind, at the break you 20 suggested that when I described the 27 people who had aches 21 and pains according to your report in 1953 you suggested 22 that I misrepresented that because the exhibit with regard 23 to Dillard refers to pains in the legs. Do you recall that, 24 sir? 55 1 A Yss. 2 Doctor, in point of fact, do you know houj many 3 people werB actually complaining of pains in ths lags in 4 1953 according to your report, sir? 5 A I haven't counted them, sir. 6 Would it surpriss you -- would it surprise you, 7 sir, if I told you that at least 19 were yet complaining of B pain in the legs in 1953 according to your report, sir? 9 A I can't comment, because 1 haven't counted them, 10 sir. 11 Doctor, but you have commented. You have stated 12 to this Jury that I twisted or misrepresented when I asked 13 the question weren't a large number of people having this 14 same kind of complaint, that is pain in tha legs, and you 15 said my question was improper because it was suggested by IS that that a large number had pain in the legs likB Willard, 17 when in fact a large number did not have pain in the legs, 18 o you recall that, sir? That was the implication. 19 A No, I do not recall it the way you stated, sir. 20 Do you agree, Doctor, that you suggested in this 21 courtroom that 1 was misstating your record insofar as pain 22 in the legs? 23 A No, I did not, sir. 24 Do you agree, then, Doctor, that there were a 56 1 large number d F individuals who had pain in the legs in 2 19537 3 A I haven't counted them, so I can't tell you, sir. 4 Q Da you disagree with my assertion, sir, that I 5 have counted them and there's 19 at least, sir? 6 A Since I haven't counted them, I can't verify it, 7 sir. B Q Wall, Doctor, it's your report, and are you saying 9 that it's not correct? 10 A | No, I 'm not at all, sir, not at all. 11 Doctor, do you agree that a large number did IS indeed have pain in their legs, or so reported to you and so 13 you reported to us in your 1353 report? 14 A There were a number of persons of the 36 who had 15 complained, had complained of pains in the legs. 16 Q Now, Doctor, that is not responsive to my 17 question. Fly question is a large number of persons in '53 IB who presently complain of pains in the legs. 13 A N o . SO Q Do you agree that there was a large numbsr of thB 51 workers that you examined in 1953 that had present ss complaints of pains in the legs, sir? 53 A Nd , sir. 24 Do you quarrel with the number 19 as being a large 57 1 number? 5 A 1 mould quarrel with that, air. 3 You say IS out of 36 examined mould not be a large 4 number? 5 A It might not be, sir. B Q Doctor, is 19 a large number? You said earlier 7 nine mas a large number. Nom 19 is not a large number. B MR. HEINEMAN: Objection. May Counsel approach 9 the bench? 10 THE COURT: Yes, you may. 11 ia CThB Following proceedings mere had at the bench 13 out of the hearing of the Jury:3 14 15 MR. HEINEMAN: Your Honor, me have here another IB misrepresentation by Mr. Carr of what thB witness testified 17 to. He Just said you testified bBfore that nine mas a large IB number. ThB witness testified in response to Mr. Carr's 19 question that nine mas a considerable number. ao MR. CARR: Well, I'll amend that. El MR. HEINEMAN: Thank you. sa THE COURT: Okay. Fine. 23 24 58 1 CThe fallowing proceedings mere had in the 5 presence and hearing of the jury:) 3 4 Q CBy Hr. Carr) Doctor, do you agree that 19 is a 5 considerable number of people to have this complaint? 6 f t Yes, I do, sir. 7 Q Yes. So then you would agree that Mr. Willard, 8 and would you agree with my statement to you, sir, that at 9 least 19 had that complaint? 10 A I can't agrBB, because I haven't counted them. 11 Would you disagree? IS A 1 would assume that you are accurate, sir. 13 Q Doctor, if that is in the record, and your report 14 is in the record, thBn that is a considerable number that 15 had the complaint of pain in the legs in 1953. IB A They had complaints of pain in the leg. 17 Q Is that correct, sir? 18 A That would be so, sir, if the 19 is accurate. 19 So M r . Willard thBn was not unique in his SO complaint, was he, sir? 21 f t Oh, yes, he was, sir. 22 Q 19 have similar complaints, sir. 23 f t I*m not saying -- it had nothing to dD with pains 24 in thB legs, sir. 55 1 Q Doctor, my question had to do uiith pains in tha 2 lags. I've asked you, and I went down, uiaa going down this 3 list of complaints, sir, and asking you whether or not hr. 4 Willard was unique, that's houi we got on this -- 5 ft I said he was unique, air. 6 Q Doctor, my question to you is having pain in the 7 legs, the complaint of pain in thB legs, is that unique? a A No, sir, that is not -- that is not unique, sir. 9 Q That is my question, Doctor. 10 ft Well, if that's your question, that is not unique, 11 Q Doctor, thB next complaint that he had, that h e 's 15 unable to sleep and darned nervous for four years, that is 13 not a unique complaint, is it, sir? Doctor, bie've already 14 established that 17 of your people that you examined in 1953 15 had the complaint of nervousness. This category hers, 16 number four, unable to sleep, too darned nervous for four 17 years, there's a large number of people that uiere darned IB nervous, weren't there, sir? 13 ft There was 17 who complained about nervousness, SO sir. 51 He was not unique in having complaints of 55 nervousness, was he, sir? 23 ft That aspect of it is not unique, sir. 54 Doctor, we also described that h e 's lost BO 1 confidence in himself for thB past one and a half years; is 2 that correct, sir? Is that what it says, sir? 3 A That's what it reads, sir. 4 That's not unique, is it, sir? 5 A Yes, sir. 6 Q Doctor, there was a significant number of persons 7 examined by'Dr. Nestmann that, the reports that we have, all 0 except one, were he had diagnoses, all except one were 0 diagnosed as psychoneurotic, weren't they, sir? 10 A Which exhibit are you referring to? 11 Exhibit 1779 that we just went through, sir. IS All except one on the reports where hB made diagnoses or 13 impressions, all except one were considered psychoneurotic; 14 isn't that correct, sir? 15 A That's correct for that question, sir. IB Q All right, Doctor. Now, a psychoneurotic indeed 17 loses or has little confidence in himself; isn't that 10 correct, sir? 19 A No, sir. 20 Q That isn't correct? SI A No, that is not a -- that doesn't neBd -- that 55 does not need to be a characteristic of psychoneurosis. S3 Doesn't need to be, but may be, Doctor. E4 A Oh, in rare intances, sir. 61 1 Only in rare. Dell, than, Doctor, perhaps this is 2 ns that ujs can not establish, but certainly that ethers 3 havB got the problem of lost confidence; is that correct, 4 sir? 5 A That is unique, sir. 6 Q This you would say wbuld be unique. The complaint 7 of cough continually would also be unique, would it not, 0 sir? 9 A I think so. 10 And his complaint of quivering, something in thB 11 upper abdomen, present for two and a half years -- well, 12 there were a number of complaints of upper quadrant pain, 13 wasn't there, sir? 14 A That is not pain, sir, that is quivering. 15 0 I understand that. 16 A Completly different. 17 Doctor, I understand that. There was a number of IB persons that had abdominal complaints, weren't there, sir? 19 A There was some. Not many, sir. A very few. 20 Not many, sir? 51 A N o . 22 Q How many do you judge there were, Doctor? 23 A I have no idea. 24 Well, Doctor, if you have no idea -- 62 1 A From my recollection -- 2 Doctor, how can you say that there weren't many if 3 you have no idea? Have you counted them, sir? 4 A I haven't counted them recently, sir. I 'd be 5 happy to do that for you, if you want me to. 6 Q Doctor, when we went through Dr. Nestmann's report 7 there were a number of these people that complained of B abdominal complaints, weren't there, sir? 3 A No, sir, I don't recall that. 10 Look at the very first one, Jeffers, stomach 11 aches. Chief complaint was stomach ache, was it not,sir? 12 AIt says ''like it is a little weak." Idon't know 13 what that really means, sir. 14 Doctor, you may not know what it really means, 15 just like I don't know what it really means to say there's 16 quivering in the stomach. That isn't the point. The point 17 is therB usrB a number of others that had like complaints. 18 A Out of the 1703 there's Just one, sir. 19 Q Out of 17B3? 20 A I mean 1779. I'm sorry. Among the chief 21 complaints, the stomach seems like it's a little weak is 22 okay for hr. Jeffers, but in looking through the rest of 23 them I don't find any stomach complaints among the chief 24 complaints, sir. 63 1 Q Well, there may not be among the chief complaints, s but they are in the body. If you look at biright, h e 's got 3 upset stomach a lot of times and bBlly ache, doesn't he, 4 sir? 5 A M r . Wright? 5 Q Yes. I think it's the last -- second to last one. 7 A Okay. Yes, I see that, sir. B Q Doctor, in your examination in 1953 you Found a 9 number that had these complaints of pain in the abdomen, did 10 you not, sir? 11 A A history of having had complaints. 12 Q Yb s , Doctor, that's what -- 13 A A history. But not in 1953, sir. 14 Doctor, if you'll just look at your boxscors on 15 the first page, on page 34, therB is two out -- at lBast 16 two, sir, out of that first group of six that have these 17 complaints, present complaints of pain in the right upper 19 quadrant, aren't there, sir? 19 A This man had a littlB problem, sir, yes. hr. 20 Steels 21 Q Doctor, I 'm not trying to ask you to diagnose it. 22 All I 'm trying to establish with you, sir, ie that his 23 complaints uers not unique. That's all I 'm trying to 24 establish, Doctor. 64 1 For 1953 they would hava been unique because I 2 don't Find in the other areas of the boxscores that there 3 mere pains in thB abdomen, sir. 4 Well, Doctor, at least two in your boxscore had 5 the pains -- 6 6 Only two out of 36 complained of soreness in the 7 right upper quadrant, and they appear to be similar. It's B so designated. 9 Q Yes. 10 A But I don't see in the boxscores that there are 11 any other persons who complain about abdominal discomfort or 12 stomach illness, or whatever. So that Mr. Willard's 13 complaint to me would be unique about his stomach complaint. 14 Doctor, you had a number that had a development of 15 ulcBrs, did you not, sir? 16 6 There was some that had history oF ulcers. I 17 can't count them. I know what they were likB in *79, sir, IB but I can't tell you about 53. 19 Wall, Doctor, in '79 you found of the exposed 20 people that a significant number, I think you even called it 21 a statistically significant number, had stomach ulcers, 22 didn't you, sir? 23 A Had a history of having -- 24 Isn't that right? 55 1 A -- of having uppBr gastrointestinal ulcers. s Isn't that correct, sir? 3 A That is correct, sir. 4 That was one of the feui things that you did Find 5 that mas statistically significant; isn't that correct, sir? 6 A That was one of the things that by history we 7 found. B Q Doctor, we're talking about nr. Willard's history 9 hBre, aren't we, and his complaint -- 10 A Correct -- 11 Q -- complaint about this stomach pain or quivering; IB correct, sir? 13 A Correct. 14 And it developedfrom 1953to1973 that what Hr. 15 Ulillard's complaint was with his abdomen, you found to be 16 statistically significant by *79; isn't that correct, sir? 17 A There's no history ofulcer in Dr. Nestmann's 10 records. 19 Doctor, I'm not asking about a history of -- 20 A Are you talking about quivering? 21 I 'm asking about stomach problems that developed 55 to be true, sir, according to your study of '79. That's 53 what I'm asking about. 24 A We are talking about -- 66 1 No, Doctor, excuse me. Listen to my question. s A I will, sir., 3 Q You found a significant number of stomach problems 4 by history to havB existed in 1979, did you not, sir? 5 A No, sir. 6 Is an ulcer a significant problem, Doctor? 7 A We found upper gastrointestinal ulcers -- 6 My question, sir -- S A That's part of stomach problems. 10 Q My question, sir, is an ulcer stomach problems? 11 A It is a stomach -- it's a gastrointestinal 15 problem, sir. 13 Q Is that part of the stomach, sir? 14 A It could be part of the stomach. 15 Yes, Doctor. \ 15 A Some of them did not have stomach ulcers. 17 Doctor, is it a significant problem to have IQ ulcBrs? 19 A j It might be, if it were -- if it were verified, 20 sir. El Q Doctor, did you find -- did you report in your 25 report in 1984 that it uas statistically significant, this 53 number of persons with a history of stomach ulcer? 54 A We thought that the -- that thB frequency of 67 1 gastrointestinal ulcers, not any other problem, but 2 gastrointestinal ulcers, history of, was statistically 3 significant, yes, sir. 4 And it is a stomach problem, isn't it, sir? 5 A It's one of the stomach problems, sir, 6 Q It is a stomach problem, isn't it, sir? 7 A Some of them are stomach problems. 8 Q Some of the ulcers are stomach problems? 9 A Right. Some ofthem are. 10 And some of them are not? 11 A That's right, 15 These gastrointestinal ulcers that you found, sir, 13 by history houu many of thBm mere stomach ulcers? 14 A I can't tell you, but we combined the duodenal 15 with the stomach, sir, in ordBr to be accurate, 16 Doctor, the duodenal is directly adjoining the 17 stomach, is it not, sir? 18 A Correct, sir. 19 Yes. New, Doctor, Mr. Willard's problem then the 50 history confirmed, by that I mean historically it was 21 confirmed that the stomach problems were significant in the 52 exposed people; isn't that correct, sir? 53 A Not in 1953, sir. 24 Doctor, did you listen to my question? I said SB 1 history. Historically, sir, his problem was confirmed to be s statistically significant, that is stomach problems, sir. 3 A No, sir. 4 Q Did you find in '79 to be statistically 5 signifleant? 6 A Stomach ulcers and duodenal ulcers. 7 Yb s . 8 A I don't know what his problems were here, sir. 9 Did you find that to be significant? 10 A I don't know what his problems were here, sir. 11 Q Doctor, you're not listening to my question. IS A I am, sir. 13 Did you find a stomach ulcer and duodenal ulcers 14 to be statistically significant in *79? 15 A We did, sir. IB Q Yes. 17 A It's in the paper. 18 And, Doctor, was Willard complaining of a stomach 19 problem in '53? This report that's in front of you, Doctor, 0 thB symptom that w e 're talking about, the complaint that El w e 're talking about was related to the stomach, wasn't It, EE sir? S3 A No, sir. If you're talking about number seven, 4 quivering like -- 69 1 An air hammer in the upper abdomen. e A i don't know what that means, sir. That's not a 3 stomach problem, It can bB anything. It could bB a muscle 4 problem. 5 And it could be a stomach problem? 6 A It could be a liver problem. 7 Doctor -- B A It could be an esophageal problem. 9 It could be a stomach problem? 10 A Uery remote. It's very remote, because it's not 11 defined here, sir. ia Q Doctor, indeed. 13 A You are certainly right, sir. 14 The person writing it down didn't define it, sir, 15 but it could be a stomach problem, couldn't it, sir? 16 A Not necessarily, sir. 17 Doctor, I didn't ask you not necessarily, did I, IB sir? Aren't you going to concede that this problem that he 19 had just might conceivably havB been, his complaints might SO conceivably have bBen a stomach problem? ai A -No, sir. ss Yd u 'tb not going to concede to that? S3 A No, sir. I'm not going to concede to that because 24 it's inaccurate. 70 1 Let's pass on to the next problem, Doctor. e A Thank you, sir. 3 0 Doctor, this gentleman also had a complaint of 4 being hot or cold all the time, and I can't read that, takes 5 a chest cold, or catches, it looks like takes a chest cold 6 at frequsnt intervals, present tuo and a half years; is that 7 correct, sir? B A That's uihat number nine appears to be, sir. 9 Doctor, there mere others that have complained 10 aver the years about infectious problems, mere there not, 11 sir? IS A No, sir, very feu. 13 Well, Doctor, very feu is others, isn't it, sir? 14 A Nat out of -- not uniquely, sir. 15 Doctor, is very Feu others -- fir, Willard uas not 16 unique in having complaints of colds follouing this 17 exposure, uas he, sir? IB A Having Frequent colds might be unique, sir. Yes, 19 he complained about Frequent colds. BO All right. I think that's unique, sir. B1 A WhBn people do have colds, you and I have colds -- H2 Excuse me, Doctor. Do you think that's unique S3 then? 24 A Yes. I think that he is complaining uniquely. 'V V 9m 71 1 Q Doctor, I don't know that I understand that. Has a he got a unique complaint? 3 A He has a unique complaint, sir, gas. 4 All right. Doctor, the reporter, Dr, Nestmann, 5 goes on to say that he bias exposed to the explosion as 6 previously described March 0, 1343, doesn't he, sir? 7 A Yes, sir* B In point of fact, w e 've already established that S it was not an explosion, haven't we, sir? 10 A UJell, not in the sense that explosions are usually 11 regarded -- 12 U)e already established that it was not an 13 explosion, Doctor. I think you can answer that question. 14 A Yes. 15 Did we establish that this morning? 15 A Yes. 17 Doctor, I established it with you for a purpose IB this morning, because I knBw I was going to ask about this 13 report. 20 A Okay. 21 Q As you know -- I see you smiling -- as you know 22 the problem of explosion, and his problems, you know that 23 Dr. Nestmann related it to an explosion, don't you, sir? 24 Now you know that, don't you, sir? 72 1 A Yas. Dr. Nestmann has described it before as an 2 explosion. 3 Doctor, in point of Fact, Hr. Willard wasn't even 4 in there when it exploded or whatever occurred, was he, sir? 5 A That's quite true, sir. 6 Yes. But Dr. Nsstmann reports that he was, 7 doesn't he, sir? 6 A I don't believe he says that he was exposed to the S explosion. 10 Dh, that's exactly what he said in that line we 11 just read. Patient was exposed to the explosion ae 12 previously described. That's exactly what he says, isn't < 13 it, sir? 14 A H e 's saying that generically, sir. 15 Q Excuse me, Doctor. That is exactly what h e 's 1 ii. 16 saying that this patient was exposed to the explosion; isnli't 17 that correct, sir? IB A Yes. 19 Q Yes. And, Doctor, you know that because you 20 checked it when you saw where 1 was going at recess. I see 21 you nodding your head yes. I 'd like the record to get that. 22 You know because you went back and looked at the report and 23 saw that he wasn't in thB explosion, that he only came in , 24 hours later, isn't that correct, sir? I 73 1 A I have known that For 35 years, sir. 2 Fine, Doctor. i 3 A kay. I knew that in 1949, and I 've known that' 4 since. I 've talked about it many times about Dillard's 5 relationship to that run-away reaction. G All right. Tell me this, Doctor, you knew that i 7 this report by Nestmann was submitted to the Commission in B '53 in which he says his psychoneurosis is related to the S explosion, like combat Fatigue. Did you ever tell the 10 Commission that this statement of Dr. NBstmann was not true, 11 and that this man was not in the explosion, and that his \ i 1E psychonsurosis could not be like combat Fatigue? Did you 13 ever tell the Commission that? 14 A I didn't havB to, sir. i 1 15 All right, Doctor. 16 A I didn't have to. 17 Let's go on to this report, Doctor. This report; IB by D r . Nestmann in 1953 states, doBS it not, sir, that on 19 the last page, the last paragraph, any psychoneurotic eo individual doBS poorly under stress, whether this stress is El an explosion, whether it is Front-line duty in the service, EE or any other traumatic experience, makes no diffBrBncB? S3 Isn't that what ha said, sir? E4 A That is what he wrote at that time, sir. 74 1 Q Yes, Doctor. Kb did write that at that time, aipd I 2 he related this, ha said this man was a psychonaurotic who 3 reacted poorly to this explosion that he wasn't even in; 4 isn't that correct, sir? 5 B No, sir, it is not correct, sir. i 6 0 Oh, Doctor, didn't ha tell -- doesn't he say here ii 7 that this man reacted poorly to a stress of the explosion,' 0 equating it to front-line duty? i 9 A That is what -- that is what the sentence reads,1 10 sir. 11 Yes, indeed, it does. 12 A Yes, it does. j | i 1 13 But you know that hr. Willard's problem came after i 14 his exposure and developed sometime after his exposure, that 15 is nervousness; you know that, don't you, sir? IB A I know that hr. Willard wasn't present -- ! 17 Excuse me, Doctor. 10 A -- at the time of the run-away reaction. 19 Read my question back to him, please. 20 21 CQuestion read.) !i 22 23 THE WITNESS: Would you read it again? I'm sorry. 24 75 1 CBy Mr. Carr!) Don't you, sir? a A I'm asking her to rsad it again, sir. 3 4 CQuestion read.) .5 6 THE WITNESS: I don't believe you said exposure, 7 sir, did you? 8 CBy Mr. Carr) Yes. I said exposure, Doctor. 3 A It came as -- in relation to his exposure. 10 My question was, Doctor, itcame -- his 11 nervousness developed at some time after his exposure, did IE it not, sir? 13 A I'm not sura I understand the question. Exposure 14 to -- 15 To the product of the run-aiuay reaction. 15 A Td the run-away reaction? 17 Q To the TCDD, sir. 18 A Wb II, he uias still -- he was still working whBn 19 his complaints of nervousness occurred. 20 . Doctor, my question is -- El A He was still working. EE -- my question is these complaints started after 23 the exposure, did they not, sir? 24 A During thB exposure, sir, not after. During. 7G 1 Q They occurred after he was first exposed, did they s not, sir? 3 A After he was first exposed, yes, sir. 4 Q Yes, Doctor. 5 A Yes. G He did not have complaints of nervousness prior to 7 the exposure, did he, sir? 8 A I don't know that. 3 Doctor, you do know that. Look at your records, 10 sir, and see if there's any statement in your 1953 report or 11 in your 1950 report, or your 1949 report, that he was IS nervous prior to this episode, sir. 13 A No, I don't havB any record of that, sir. No. 14 Hs states he became nervous after this exposure, 15 did he not, sir? 16 A Yes, sir. 17 Q And, Doctor, it tuas some months after the 18 exposure, wasn't it, sir, that hB started having his 19 problems? SO A I believe that's true, sir. SI Q He didn't even notice thB acne until six weeks SS after the first exposure; isn't that correct, sir? S3 A I haven't referred to thB 1949 report recently, H4 but that may be accurate, sir. 77 1 Wall, It reports that he entered thB building 2 several hours after the explosion, symptoms mere first noted 3 by this patient about six uesks following his first 4 exposure, that's what it says, and follouusd by an aching 5 type of pain in the calf of his leg. That's in Exibit 1684, * s sir. It wasn't until mid August that hB was even auiars of 7 his comedones. After he had his first episode of pain in B the calves he experienced repeated bouts of such pain with 8 increased intensity with time. During the first part of 10 1S4S the aching was so intense that he was unable to walk 11 and entered a hospital where he remained for 16 days. In IS '48 h B 's complaining -- he complained of insomnia and 13 nervousnessj isn't that correct, sir, since the 14 hospitalization? 15 A At the time we first axamined him he complained of 16 insomnia and nervousness, yes. 17 Isn't what I read to you correct, sir? 18 A That is correct, sir. 13 And, Doctor, the report that Dr. Nestmann gave to 20 the Commission that this man was a psychoneurotic SI individual, who all of his problems stemmed from an 25 explosion like in combat, simply borne out by thB record 23 relating to Mr. Willard, is it, sir? 24 A I believe it is borne out by -- 7B 1 Q Doctor, is there anything in the record that 2 suggests this man was psychoneurotic? 3 A Yes, Bir. 4 Q Before his exposure. 5 A Before, no. 6 Q Yes, Doctor. 7 A But in the 1953 report, yes. B Q Sir, is there anything to suggest that he mas made 3 psychoneurotic by an explosion similar to combat? 10 A By an explosion? 11 Yes, Doctor. IS A No, sir. 13 Q Because there wasn't an explosion, and even if 14 there was, hB wasn't there when it exploded. 15 A That's quite true, sir. 16 Q He could not be reacting to stress of an explosion 17 as suggested by Dr, NBstmann, could he, sir? Answer that IB question,please, D r . Suskind. 13 A Yes, sir, he could be. SO Hb could? 21 A Yb s , sir. 22 He could be reacting to stress of an explosion 23 where hB wasn't -- when hB wasn't evsn there, and it didn't 24 explode? 79 1 A Yes, sir. 2 Doctor, how can you react to something that didn't 3 exist? 4 A flay 1 answer the question? 5 Doctor, my question is houi can you react to 6 something that doesn't exist. 7 A Okay. Dr. Nestmann refers to the explosion in a B generic fashion. He is not talking about the actual 9 incident. H e 's talking about the results of that incident. 10 H e 's talking about, and he knsui uihat he was talking about, 11 he knew that he was talking about the materials of that soIS called explosion. And hr. UJillard was exposed to the 13 products of that run-away reaction. That is what Nestmann 14 is liksly to mean. And I -- and also the fear, hB is 15 reacting as in combat fatigue. Combat fatigue refers to a 16 stats of psychoneurosis in which the combat person develops 17 a fear of the risk, the risk of combat. The fear of the 18 risk of combat. And that's what Dr. Nestmann is talking 19 about. SO Doctor, I 'm quite interested in the first part of 21 your answer where you say -- 22 THE COURT: Nr. Carr, before you pursue that, is S3 this a good place to break? 24 NR. CARRi No, your Honor. I 'd like to get this BO 1 point established. e THE COURT: Bo ahead. 3 (By Mr. CarrO Uhsre you say Or. Nestmann said his 4 psychoneurosis is caused by the exposure to the material. 5 A I didn't say that, 6 HR. CARR: Would you read the first part of his 7 ansuier back plBasa. 0 THE WITNESS: I said -- 9 NR. CARR: Would you read the first part of his 10 ansuier back. 11 12 CAnswer read.!) 13 14 MR. CARR: Thank you. 15 THE WITNESS: That's uihat I meant, sir. IB (By nr. Carr!) Yes, indeed. Ha utasexposed to the 17 products of thB run-away reaction to the materials, was he IB not, sir? That's what you said, and that's uihat you meant, 13 isn't it, sir? 20 A Correct, sir. 21 Q Thank you, Doctor. 22 A And he had symptoms from that. 23 Q ' Thank you, Doctor. One of thB symptoms that he 24 had from that uas the psychoneurosis? B1 1 A No, sir, absolutely not. s Q Doctor, isn't that uihat followed his exposure to 3 tha materials? 4 A It's the Fear of that, 5 Doctor, did thB psychoneurosis Follow his exposure 6 to the materials? 7 A The psychaneurosis Fallowed this man , as Dr B Nestmann points out -- 9 Q Doctor, my question is -- 10 A -- combat FatiguB, which is the Fear 11 Doctor -- 12 A ThB Fsar of that problem. 13 You're not listening to my question. 14 A I am indeed, sir. 15 Psychoneurosis followed the exposure to the 16 materials of thB explosion? 17 A The risks From the materials of that explosion, IB sir. 13 Q Doctor, you're not answering my question. 20 MR. CARR: Your Honor, would you direct the 21 witness to answer my question. 22 THE COURT: Doctor, answer t h B question, 23 THE WITNESS: Yes, sir. 24 THE COURT: Answer the question as it is asked of BE 1 you, please. s THE WITNESS: Okay. Would you ask the question 3 again, please. 4 MR. CARR: Would you read the question to him 5 again, please. 5 7 CQuBstion read.) B 9 Q CBy Mr. Carr) Did it not,sir? 10 A No, sir. 11 He Lias psychonsurotic before he was exposed to the IS materials? 13 A I don't know, sir. 14 The psychonBurosls followed his exposure to the 15 materials, it came after his exposure to the materials of 16 the explosion, did it not, sir? 17 A It followed, but was not caused by, IB Doctor, my question is in point of time, the 19 psychoneurosis came after his exposure to the materials in SO the explosion, did it not, sir? ei A After his BxposurB to that -- to those materials es in timB. S3 Thank you, Doctor. 54 A Only in time, sir. B3 1 MR, CARR: That's all I need, your Honor. 2 THE COURT: W e *11 break until 1:15 For lunch. 3 Court is in rscsss. 4 5 CLunch recess.) 6 7 THE COURT: Ladies and gentlemen, I may not have 0 told you earlier, we'rs going to break at 3:00 today, rather 9 than at quarter to five. So 1 may have told you earlier, 10 but I don't think I did. hr. Carr, you may proceed. 11 CBy Mr. Carr) Or. Suskind, I think wb established 12 just shortly before noon that Dr. Nestmann was referring to 13 the -- talking about the results of the exposure, that he 14 was talking about the materials of the so-called explosion, 15 and that he was exposed to the products of the run-auay 16 reaction, and that was what Dr. Nestmann was likely to 17 mean. Do you recall that, sir, when he described the 10 psychoneurosis that Hr. Willard had? 19 A I do recall I said that. 20 Yes. 21 A But that was only part of it, though. 22 Q I understand that, Doctor. But that part -- we'll 23 explore the other part in a moment. Ulhat Dr. Nestmann was 24 saying then in your Judgment was that this man, who you say B4 1 Dr. Nestmann knew what he was talking about, but the man he 2 was talking about was exposBd to the products of the run 3 away reaction, and after that exposure to that material 4 developed this psychoneurosis; correct, sir? 5 A In timB, yes, sir. 6 And, Doctor, you know that there have been, not 7 just this man that has been diagnosed as having 8 psychaneurosis, or having nervousness, but that a 9 significant number of these men had similar problems; isn't 10 that correct, sir? 'll A I believe they did, sir. 12 And you also know Doctor, that all of these 13 problems according to your reports, all of these problems 14 connected with this nervousness and the psychoneuroses all 15 developed Following the explosion, and For that matter IB following'the chloracne, the cutaneous lesions; isn't that 17 correct, sir? 18 A In time, sir, yes. 19 Q Doctor, well, in point of time these men, the 36 20 that you examined,. 29 of the 36 developed problems, and of 21 those 36, 17 of them developed nervousness problems; isn't 22 that correct, sir? 23 A They did. 24 Q Doctor, was there a history of anything else, B5 1 anything else that thay might havs bean exposed to or might 5 have been subject to that could account For the causation of 3 these psychoneuroses, any other materials that they mere 4 exposed to that you're aware of, that could account for the 5 psychoneuroses and these nervousness problems developing at 6 the point of time that they developed? 7 A Yes, sir. B What other material or what other circumstances 3 were involved, sir? 10\ A The circumstances were the Fact that thBre was a 11 run-away reaction, thBrB were people who became sick. 12 Doctor, that's the thing that you already said. 13 A May I Finish, sir? 14 Q My question to you, sir -- 15 A You said circumstances, and I will give you the 16 cicumstances. 17 h R . CARR: Your Honor, will you ask the witness to 10 stop when I 'm trying to ask him a question, clariFying it. 19 h R . HEINEhAN: Your Honor, may we approach the 20 bench on that subject? 21 THE COURT: Yes, you may. 22 23 CThe Following proceedings were had at the bench 24 Dut of the hearing oF the Jury:) BE 1 MR. HEINEMAN: Mr. Carr objects, he asks tha 5 question, he says what other circumstances, sir. The man 3 gets about eight words out of hiB mouth, Mr. Carr doesn't 4 like what h e 's saying, so he objects to it. He starts 5 interrupting him. 6 THE COURT: Keep it down. 7 MR. HEINEMAN: Then he asks you for help, saying S the man is interrupting his question. Now the problem is he 3 interrupted the witness' answer and I object to it. I 'd 10 like the witness to be able to explain the circumstances 11 that Mr. Carr asked For in the question. 15 MR. CARR: Mr. Heineman is ignoring my question, 13 which said what other materials other than materials in the 14 explosion, and what other circumstances other than the 15 incident could account for the psychoneurosis. 16 MR. HEINEMAN: Well -- 17 MR. CARR: May I Finish pleasB. ThB witness is 16 relating this same circumstance. I 've asked him For what 13 other circumstances, what other materials could they bB 50 exposed to to account For these problems. That's what I 51 asked him. SB MR. HEINEMAN: Could I have the court reporter 53 read the question back? 54 THE COURT: No. I heard it. I heard the answer. 87 1 Mr. Carr's account of it is correct. It was not responsive '2 to the question. It was repeating what he said before. 3 Your objection is overruled. 4 S CThs following proceedings werB had in the 6 presence and hearing of the Jury:} 7 8 CBy Mr. Carr} Doctor, in case I didn't make it 9 clear in my question to you, sir, my question to you is what 10 other materials other than the materials in this incident or 11 what other circumstances other than this incident could 15 account for, to have caused thB nervousness and the 13 psychoneurosBs, sir? 14 A UJhet I had attempted to say, sir, was that as a 15 consequence of this incident, as a consequence of this IB incident -- 17 Doctor, that's where I interrupted you. I want to IB know what other circumstances or other materials. I know 19 about the consequences from this incident. You're trying to 50 tBll me the consequences of this incident. Now exclude 51 that, Doctor. What I'm asking you, sir, other than this 22 incident, other than the materials involved in this 53 incident, what other materials or what other circumstances, 24 sir, could account for the nervousness or the neuroses? BB 1 A I am attempting to answer that question in terms 2 of circumstances, sir. 3 Okay. Let's do it one at a time, sir. Any other 4 materials that you are aware of that are in the record that 5 could account for these problems? . 6 A I don't know, I can't answer that question. 7 My question, sir, are there any other materials. a You do know what's in the record. You madB thB record. Are a therB any other materials in the record that you know of to 10 which these men were exposed that could havB caused the u nervousness and the psychoneurosBS? 12 A 1 cannot answer that question because you have 13 related it to cause, and I can't relate it to cause. 14 Q Doctor, my question is -- 15 A You said cause, sir, and I can't accept that. IB Q Doctor, my question is what other materials, other 17 than these materials, could have caused this nervousness? ia A I can't answer that question, sir. 19 Is it because you don't know of any other 20 materials -- 21 A No, because you used the word ''cause, " sir. 22 Yes, Doctor, I am using the word cause because the 23 psychoneurosis was caused either by, as Dr. Nestmann said, 24 the materials to which they werB exposed, or to the incident B9 1 isslf. That's mhat Dr. NBstmann has said. I 'm now 5 exploring with you, Doctor, mhat other causes could there 3 be, A, what other materials other than thB material in this 4 exposure, B, mhat other circumstances, other than the 5 circumstances of this exposure, this incident, this 6 reaction. Now that's what I 'm doing, Doctor. Now what 7 other materials do you know of that the men were exposed to a that could have caused these nervous problems, a psychoneuroses problems that these men all had, 17 of them 10 had? n A I can cits one, sir. 15 Please do, sir. 13 A This is one, and you have read it to me, where the 14 man indicated that his nervousness seemed to be caused by 15 niran. Niran is a rubber additive. IB I don't recall thB niran. 17 A Well, I do, sir. And it's in the record. ia I'll accept that, Doctor. That *s fine. Anything 19 other than the niran? 50 A I don't know, sir. HI All right. Now what other circumstances, sir, 55 other than this incident are you aware of that's in the 23 record, sir, that could cause this nervousness or 54 psychoneuroses that these men had? ArB there any other 90 1 incidents or circumstances that could have caused this, 5 other than the one in question? 3 A I cannot answer that Bither, sir, because I don't 4 know. 5 0 Doctor, is the answer that you don't know of any E other circumstances that could have caused it, or any other 7 incident that could have caused it? B A 1 cannot answer the question, sir. S MR. CARR: Your Honor, would you direct the 10 witness to answer that question. 11 THE COURT: Doctor? 15 THE WITNESS: Yes, sir? 13 THE COURT: ThB question has been clearly put. 14 You have to answer the question. 15 THE WITNESS: Would you repeat the question, 15 please? 17 IB (Question read.? 19 50 THE WITNESS: I don't know of any other incidents, 51 Q CBy fir. Carr5 Thank you, Doctor. And, Doctor, so 55 Far as your knowledge is concerned, othBr than the one 53 incident of the niran exposure, the materials to which these 54 gentlemen were exposed to, which precBdsd their onset of 31 1 nBuroses was the 2,4,5-T and its contaminant; isn't that 2 correct, sir? 3 A These men who were referring to -- 4 Would you answer that question, please, Doctor. 5 A Were exposed to 2,4,5-T and its contaminants, m b s , B sir. 7 Is that a yes to my question, sir? B A Yes, I believe it is. B Q And, Doctor, the only circumstances that you're 10 aware of that would be related to or predated or preceded 11 their nervousness and psychonBuratic condition was the 12 incident and the circumstances surrounding the incident; 13 isn't that correct, sir? 14 A That I can't answer either, because -- 15 Doctor, my question is so far as you know, and I IB thought you Just gave us the answer that this is thB only 17 circumstance so far as you know, you have no knowledge of IB any other incident or any other circumstances that could 19 have caused this psychoneurosis; isn't that correct, sir? 20 A I believe -- I beliBve I do, if I search my memory 21 for cause of psychoneurosis. 22 Q Didn't you Just tell me, Doctor, that you knew of 23 no other circumstances or incident that could have caused 24 the psychoneurosis in thesB men that were involved in this 95 1 incident? Didn't you Just tell us that, sir? 2 8 If you're talking about industrial incident, 3 that's true. 4 Doctor, do you know -- 5 A Industrial incidant. 6 Q Doctor, do you know, do you hav/s knowledge of any 7 incidents in these man's lives that caused their B psychonsurosis, that could have caused their psychoneurosis? S What incident, if any, do you have knowledge of that could 10 have caused it, sir?. 11 A There are any number of persons -- is 0 Doctor, there are any number of causes of 13 neuroses. I'm asking you what is your knowledge in these 14 group of people's lives, in these men's lives that could 15 have caused thBir psychoneurosis, other than the incident in 16 question? I 'm asking you about your knowledge. 17 A ArB you referring to -- 18 MR. HEINEMAN: Excuse me, Doctor, iBt me object. 13 Your Honor, objection. Hb interrupted the answer. 50 THE COURT: The objection i3 overruled. 21 THE WITNESS: Are you referring to 1779? ArB you 52 referring to these people? S3 CBy Mr. Carr) Doctor, you understand the question 24 that I 'm-asking you? 93 1 A No, I don't. I have to refer to specific people. 2 I'm talking about these men that you saui In 1353, 3 these men that Dr. Nestmann has seBn and said has 4 psychoneurosBs Those are the men that I'm talking about, 5 sir. What incidents, other than this run-auiay reaction 6 incident was there in the lives of these man of which you 7 have knowledge, sir, that could have caused the a psychoneurosis? 9 8 I can name one, sir. 10 Please do. 11 A Harold Young. 12 Q Yes. 13 A Harold Young. 14 What incident in his life could have caused the 15 psychoneurosis, sir, other than the incident in question? 16 A Okay. This uias 1950 -- 17 Doctor, my question -- 18 A I'm talking about an incident, sir. 19 Yes. 20 A A specific incident. 21 Right. 22 A And please let me finish. He was as a result of 23 treatment, he had become hyperpigmented, and he didn't 24 realize how h y p B r p ig m e n te d he h a d b B com B . This is 1950 n o w . 34 1 It's in West Uirginia. 2 Q Doctor, let me interrupt For a minute. The 3 hyperpigmentation was caused by exposure to these materials, 4 uias it not, sir? 5 A Let me tell you about the circumstances, though, 6 sir. 7 Was it not caused by the exposure to these B materials? S A Not necessarily. It could have been caused by the 10 treatment. 11 Doctor, did you not report that it was caused by 12 exposure to the materials? 13 A But I'm not talking about the hyperpigmentation, 14 I'm talking about the incident. 15 Q Doctor -- 16 A Please let me finish. 17 Doctor, would you please confine yourself to IB circumstances other than the incident in question. IS A I will, sir. 20 Doctor, the hyperpigmentation was caussd by the 21 incident in question. 22 A I will, sir, if you'll let me Finish. 23 MR. CARR: Your Honor, would you instruct thB 24 witness to let me finish my question? 95 1 MR. HEINEMAN : Objection, your Honor, hB 2 interrupted the answer. 3 THE COURT: Doctor, please wait until the attorney 4 has finished the question. 5 CBy Mr, Carr) Doctor, the hyperpigmentation was 5 caused by the incident in question, was it not, sir? 7 A No, sir. B 0 It was not? 9 A It was one factor, sir. 10 Doctor -- 11 A Only a few hadhyperpigmentation, sir. 15 Yes, and he was one of the few that had it, wasn't 13 he, sir? Nothing else happened, he wasn't exposed to 14 anything b Ibb to cause the hyperpigmentation, other than the 15 materials, was he, sir? 16 A I don't know, sir. He was being treated -- 17 Doctor, look at your report, and let's get that IB established first. IS A He was being treated for his -- 50 MR. CARR: Your Honor, would you direct the 21 witness to look at his report. 25 THE COURT: Doctor, please follow the question. 23 CBy Mr. Carr) Doctor, page 13 of your 1953 -- 24 A I 'm talking"about page 10 on my 1950 report, sir. 36 X Doctor, pagB 10 refers to Mr. Selby and M r 2 Willard. Page 13 refers to Harold Young. 3 A I'm sorry, sir, it's in the 1350 report. 4 1350 rBport? 5 A Yes, sir, it is. It's on page -- 6 a Excuse me one minute. Are you talking about 7 Exhibit -- 8 A It's on page 10. 3 Yes, Doctor. He, according to thisreport, and 10 according to your 1953 report, he developed chloracne, did 11 ha not, sir? IS A I 'm reading on page 10, sir, and I 'd like that to 13 be read. We all know he developed chloracne. I 'm not 14 talking about his chloracne, I'm talking about the 15 hyperpigmentation and the fact -- 16 Doctor -- 17 A -- that he became emotionallydisturbed -- 10 Doctor -- your Honor, would you direct the witness 13 to let me ask him a question. SO THE COURT: Doctor, please, I ' v b asked you before. SI Please follow my requests. Let the attorney ask his ss question and then respond only tD the question. 23 THE WITNESS: Yes. 54 Q CBy N r . Carr} Doctor, this man, Harold Young, 37 1 developed chloraone, did ha not, sir? 2 A Among other things, he did, sir. 3 And ha went to a local dermatologist, didhB not, 4 sir, for X-rays -- X-ray management of his skin lesions, 5 sir. 5 A Correct. 7 Q And after several visits to the dermatologist his 0 skin became dark and remained a grayish-brown color for 3 about a year; isn't that right, sir? 10 A That is correct, sir. 11 And while he received peeling therapy fromanother 12 dermatologist, he developed this same hypBrpigmentation* 13 problem again, did he not, sir? 14 A Yes, sir. 15 Q This hyperpigmentation caused this man to go in IB seclusion, did it not, sir? 17 A No, sir. IB Q Doctor, look at page 3, if you would, sir. Your 19 very words, sir, quote, the hyperpigmentation has caused 20 this .patient to go into seclusion. Dr. Suskind -- 21 A TherB's an explanation for it, sir. 22 MR. CARR: Your Honor, would you direct thB 23 witness to let me finish my question. 24 THE COURT: Doctor, w e 've gone through this threB 9B 1 times in thB last half hour. Let the attorney ask the s question, please. 3 Q CBy Hr. Carr) Doctor, the words, quote, the 4 hyperpigmentation has caused this patient to go into 5 seclusion are your words, are they not, sir? 6 ft ThBy arB, sir. 7 And, Doctor, it also points out that this man was a a handsome man, active man before this hyperpigmentation a took place, and he developed a number of psychological 10 problems, things that he deeply resented following this il hyperpigmentation; isn't that correct, sir? e A No, sir. 13 It's not correct, sir? 14 A No, sir, it's not correct. It's notcomplete. 15 Doctor, I haven't read theentire report to you, 16 but haven't I read to you what this report says, among other 17 things? 10 A Paraphrased it, yes. 13 Is it true that, Doctor, that he was a handsome 20 man and quite proud of it, as you say on page 10? 21 A Yes. 22 Is it true that it caused him to have a condition 23 which he deeply resented and as a result has secludBd 24 himself from most social activity? Is that also true? 99 1 A No, sir. a Q Doctor, isn't that what you said? Didn't I rsHd a it to you, as a rssult has secluded himself from most social 4 activity? 5 A That's only part of it, sir. Why don't you read 6 the wholB sentence? 7 Q I'll be glad to read the uihole sentence, Doctor. Q A Right From this man is -- From the melanoma, sir. 9 Q Let me read the entire paragraph. 10 A Okay, if you would, please. 11 Q Sure, Doctor, that you wrote in this exhibit. 12 ''The interview revealed the presence of a disturbing 13 emotional problem." Is that correct so Far? 14 A Right. 15 Q "This man is handsome and quite proud of it." IB Correct, sir? 17 A That's what I wrote, sir. IB Q "He also has strong racial prejudice." 19 A That's correct. 20 Isn't that correct also, sir? 21 A That's right. 22 ''The melanoma has caused him to be mistaken For a 23 Negro, which he deeply resents, and as a rssult has secluded 24 himself From mast social activity." 100 1 A That's correct, sir. 2 Q Doctor, is that tuhat you wanted me to read, that 3 this man rssented bBing mistaken For a Negro? Is that what 4 you wanted me to read, because, that's what I omitted? 5 A Correct, 6 You wanted me to read that? 7 A That was in 1949, sir. 0 I understand that, Doctor. 9 A And there was -- 10 Q It's not 1949 now, and I wished to omit that 11 statement, Doctor. 12 A But I think -- 13 I avoided, I wished not to read that statement, 14 but you wanted it read, did you not? 15 A I did, because that points out the reason for his 16 psychoneurosis, sir. 17 Q He was caused to be psychaneurotic because of his IB appearance, was he not, sir? 19 A Because of his fears because of his social BO prejudices too. SI Did it cause him to be psychoneurotic because of as his appearance, sir? S3 A Because of people's reaction to his appearance. S4 MR. CARR: Your Honor, would you instruct the 101 1 witness to answer my question? s THE COURT: Doctor. 3 THE WITNESS: I thought I had. H THE CORT: You've got to respond to the question 5 that was asked of you, not another question. Please G respond. 7 THE WITNESS: Would you read the question, please, B S (Question read.) 10 11 THE WITNESS: No, sir. 15 (By hr. Carr) What, other than this appearance, 13 caused him to be psychoneuratic, Doctor? 14 A The social reaction. 15 Q What caused the social reaction,Doctor? 16 A His hyperpigmentation, sir. 17 His hyperpigmentation caused the social reaction, IB which caused the psychoneurosisj is that correct, sir? 19 A Which may have been responsible for his -- 20 Q Is that correct, sir? 51 A Yes, sir. 55 And, therefore, the psychoneurosis was a direct 53 cause, right in line, uias it not, sir, with his 54 psychoneurosis and the hyperpigmentation? 105 1 A That was onB factor, sir. 2 Yes, Doctor, that uias the factor which caused this 3 man -- was there anything else, other than the v 4 hyperpigmsntation, sir, that caused his psychonsurosis, sir? 5 A Yes. 6 Q What else, sir? 7 A His own prejudices at the time, sir. B Doctor -- 3 A His own attitudes. 10 Indeed, Doctor. 11 A That's quite true, sir, and I think you've got to 15 Face it, whether it's '43 or 'B6. 13 Q No question about that, Doctor, indeed we do have 14 to face that. And some people havB to face it everyday of 15 their life, Doctor. IB A You said it, sir. 17 Now, Doctor -- IB A 1 agree with you, completely. 13 Did Monsanto hire Just unprejudiced people in 20 1343, or did they hire the run-of-the-mill people as they HI come in, both prejudiced and unprejudiced? 22 A I have no idea., sir. 23 Doctor, indeed you do have an idea. It's in 24 Charleston, West Uirginia. There are prejudiced people, 103 1 thBre are unprejudiced people in Charleston and Nitro, West 2 Uirginia, Just like there is in Belleville, just like there 3 is in East St. Louis. Yd u know it's a fact, don't you, sir? 4 M R . HEINEMAN: May Counsel approach the bench? 5 THE COURT: Ybb you mBy. 6 7 CThe Fallowing proceedings were had at the bench B out of thB hearing oF the Jury:} 9 10 MR. HEINEMAN: This is surely not conceivably 11 relevant whether Monsanto hires prejudiced people or IS unprejudied people. 13 MR. CARR: It is relevant, because, your Honor, 14 nobody is entitled to bB a perfect person, and, therefore, 15 if one gets injured because he is an imperfect person, that 15 is not a defense that it was caused by the product which 17 acts upon a prejudied person, and, therefore* the injury is IB the same regardless of it. The causation was the material 19 that caused the hyperpigmentation. SO MR. HEINEMAN: That's about as far reaching a HI theory as I 've ever heard about. This whale Nitro issue is ES not relevant to the lawsuit, let alone what Monsanto's 23 hiring practices were. 24 MR. CARR: It is most certainly. It is relevant 104 1 to show what dioxin caused, which your company has denied 2 and covered up the effects of uthat dioxin can cause far 3 many, many years. 4 THE COURT: Two things. There's an old addage 5 that one takes a plaintiff as onB finds them. I think B that's basically what you're saying here. 7 MR. CARR: That's correct. B THE COURT: This was opened up by your witness' 3 insistence on that part of it being read in the manner, I 10 might add, that was unresponsive to the question that was 11 being askBd of him at the time. On the basis of both of 12 those grounds, your abjection is overruled. You have long, 13 months ago, made your objection as far as the relevancy of 14 the Nitro incident. UJe covered it a long, long time ago. 15 So the objection is overruled. IB 17 CThe following proceedings were had in the IB presence and hearing of the jury;) 13 0 HR. CARR: Kathy, would you read the last 1 question. 3 (Question read.) 4 105 1 THE WITNESS: Probably so, sir, yes. E CBy Mr. Carr5 Doctor, you know that the emotional 3 make-up and the prejudices for good or bad that are in all 4 f us go into make up each of us; you know that, don't you, 5 sir? B HR. HEINEMAN: Excuse me, your Honor, may Counsel 7 approach the bench again? B THE COURT: Yes, you may. 9 10 (The Following proceedings were had at the bench 11 out of the hearing of the jury:5 IB 13 MR. HEINEMAN: Your Honor -14 THE COURT: Wait 'till he gats up here. 15 MR. HEINEMAN: Your Honor, the pursuit of this 16 entire thing is nothing -- it has nothing to do with the 17 merits of this lawsuit. It is designed to inflame members IB of the Jury. I object to it. I think it's an issue that we is must discuss very strongly. I would ask the Court Far a SO recess so that we can go into chambers and discuss this SI question. It is a very serious problem to be raising these ss issues in Front of this Jury. S3 MR. CARR: I didn't raise the issue, Counsel. 24 THE COURT: The objection is overruled. I've 10B 1 already ruled Dn it, I think my ruling is correct. Your 2 objection is overruled. It has been more than adequately 3 covered at this conference at the bench. My ruling is that i 4 it's not improper. The objection is overruled. I 'll make 5 it a continuing objection to the line of questioning, 6 reserving all of your objections. 7 B CThe following proceedings mere had in the 3 presence and hearing of the jury:) 10 11 MR. CARR: Would you read my last question again? 12 13 CQusstion read.) 14 15 THE WITNESS: In part, sir, yes. IB Q (By Mr. Carr) Doctor, is it your bellBf that 17 Monsanto is entitled to expose to contaminants only those IB people who are unprejudiced or are people who have biases IB and prejudices also entitled not to be exposed ta harmful 20 materials? 21 A I don't understand the question, sir. 22 MR. HEINEMAN: Your Honor, may Counsel approach 23 the bench? 24 Q CBy Mr. Carr) It's so simplB -- 107 1 THE COURT: Yes, you may. a a CThe following proceedings were had at the bench 4 out of the hearing of thB jury:) 5 6 FIR. HE INEMAN: This is completely irrelevant, your 7 Honor. The question, to ask this witness' opinion as to B what Monsanto is or is not entitled to da is absolutely 3 irrelevant. Now this is ridiculous. Mr. Carr continues to 10 pursue this question. H e 's trying to raise some 11 inflammatory issuB in front of thB Jury. I mean it's bad ia enough that it's gone as far as it has, but he keeps 13 pursuing it and turning thB knifB in this issue in front D f 14 this Jury, and I object to it. Whether or not Monsanto is 15 entitled to do this or isn't entitled to do it, this witness IB is not competent to say. 17 MR. CARR: But ha has done so. He has implied, he IB said, "Ahh, this person is prejudiced." H e 's implied, 19 therefore, it's Just tough that he happened to gat -- ao MR. HEINEMAN: That isn't what hB said. ai MR. CARR: Yes, indssd. aa THE COURT: Okay. You are now repeating 33 abjections. The other two times you came up here they were 34 new, they hadn't been raised beforB. You are now repeating 1 irrelevance and inflammatory objections. You've nade it 2 before, in which I 've also made as a continuing objection. 3 They arB continuing. They are for this entire linB of 4 questioning. Unless you have a neui objection, don't -- I 5 notice also that after each of the questions in this line of 6 questioning there's been such an objection. Unless you have 7 a new objection and not a continuing objection, because I 8 don't want every question stopped for a minute or a couple 3 of minutes and have you come up to the bsnch for a 10 conference for something w e 've already done. So keep that 11 in mind in your Future objections. As I 've donB before, 12 these objections are overruled. 13 14 CThe following proceedings were had in tihB 15 presence and hearing of the jury:) 15 17 MR. CARR: Would you read the last question again, 10 please. 19 20 CDuestian read.) 21 22 THE WITNESS: I think the quesion -- the answer is 23 very obvious. It's no, sir. 24 Q CBy Nr. Carr) Nonsanto is entitled to harm 103 1 anybody! whether they're prsjudied or unprejudiced; isn't 2 that correct! sir? 3 A I don't know how to answer that question. You use 4 the word "entitled." 5 Q The employer takes the employees in that condition 6 that they're Found, they're subject to an examination, a 7 pyhsical, if they want a mental examination, and they take B thosB employees For good or bad as they are; isn't that 9 correct? 10 A . Absolutely, sir. Absolutely. 11 Simply because this man is racially prejudiced is 12 no reason For him not to be able to say that his emotional 13 problems were caused by his -- his psychonsurotic problems 14 were caused by the hyperpigmentation, which was caused by 15 the chemical; isn't that correct, sir? 16 A I don't understand the question. It's a very long 17 one, sir. It has many diFFerent parts. Mould you mind 18 repeating the question so I can take it apart. s. 19 20 (Question read.) 21 22 THE WITNESS: I didn't say that. 23 (By Mr. Carr) Could you answer that question. 24 please, sir. 110 X f t I don't know how to answer it, sir. 2 q You can answer it yes, Monsanto, or you can answer 3 it no, Monsanto. 4 f t Would you restate the question so I understand it, 5 sir, please. 6 Ulould you read the question again to him, please. 7 a CQuestion read.) 9 10 THE WITNESS: He can say that if he wishes, sure. 11 Q CBy Mr. Carr) Doctor -- 12 f t The answer was yes, he can say that if he wishes. 13 Doctor, isn't it appropriate that ha should say 14 that, that his hyperpigmentaion, if he is a prejudiced 15 individual, and the hyperpigmentatian acts upon him as he 16 was the way Monsanto hired him, isn't he entitled to say, 17 "Hey, I 'm psychoneurotic because of what Monsanto did to me 18 as a human being, as an entity, with my prejudices, with my 19 likes, with my dislikes?" Isn't he entitled to say that, 20 sir? 21 A If he wants to, yes, sir. 22 MR. HEINEMAN: Your Honor, excuse ms, may we 23 approach the bench? 24 THE COURT: Yes* you may. 111 1 CThe Following proceedings wars had at the bench 2 out of the hearing of the jury:) 3 4 fIR. HE INEMAN: Now he 'a asking the witness to make 5 mortal judgments, legal judgments, what this man is entitled 6 to do or entitled not to do. That's not relevant. 7 MR. CARR: Oh, your Honor -- B MR. HEINEMAN: This witness is not competent far 9 that. 10 THE COURT: 1 want to stop you right now. You are 11 repeating an objection you made before, and I asked you not 12 to do it. I have overruled it before. 1 am overruling it 13 now. This question is no different than the other question. 14 MR. HEINEMAN: It is different. 15 THE COURT: It is not. Objection is overruled. IB Let's get back to the question. 17 IB CThe following proceedings were had in the 19 presence and hearing of the jury:) 20 21 CBy Mr, Carr) Doctor, you understand the reason 22 for that question is because you said that Harold Young was 23 prejudiced, and his psychoneurosis results from his 24 prejudice; isn't that correct, sir? 112 1 A No, sir, s What did his pshchoneurosis result from, then, 3 sir? 4 A The psychoneurasis, as I understand it, in part or S altDgBthar, and psychoneuroses are not due to just ona B thing, sir, there are many factors, many factors. 7 Doctor, when you get back to it, tuould you answer 8 my question, sir? 9 A Yes, I will, indeed. Ha found himself in a 10 socially difficult situation. To him hs was unacceptable. 11 Now that's a social situation. ie Q And what caused -- 13 A That's a social situaion. 14 What caused him to bB unacceptable in his eyes, 15 Doctor? 16 A In his eyes, the hyperpigmentation did. 17 Doctor., and what caused thB hyperpigmentation? IB .A The treatment that he got. 19 Q And what caused the treatment that hB got, Doctor? eo Why did he get the treatment that he got? 21 A Well, he had chloracne to start with. 22 Yes, Doctor. And what caused the chloracne, 23 Doctor? 24 A The chloracne was associated with his exposure to 113 1 TCP. 0 Doctor, his psychpneurosis is related to the 3 circumstance in 1948, is it not, sir? 4 A Not altogether. 5 Q Doctor, I didn't say altogether, did I, sir? I S said it is related to the 1949 incident, ie it not, sir? 7 A Remotely, yes. 8 Q Remotely? 9 A Yes. 10 Q The chloracne istreated by an ordinary type 11 treatment tha dermatologists use,X-ray, andbecause of this 12 man's particular molecular make-up, X-rays on his skin, 13 maybe not on your skin, and maybB not on my skin, but the 14 ujay this man is made, the X-rays caused him to be grayish15 brouin in color. 16 A Correct. 17 Q And that caused -- and the grayish-brown in color 18 caused the social problem, and that social problem caused 19 the neurosis, coupled with his prejudice; isn't that 20 correct, sir? 21 A I would say in part. 25 Well, what s Isb is therB involved? 23 A Well -24 What havB I omitted,Doctor? 114 1 A He was having problems at home. s Q Oh, Doctor, where's that? 3 A Well -- 4 Where's that? , 5 A He told us -- B Problems at home not connectedwith his appearance 7 and his view of himself, Doctor? B A I don't know. I have no idea. a Doctor, why do you say it if you don't know? Back 10 to my question, please, sir. The social problem was caused n by a combination of the way hB existed as a human being, is coupled with the grayish-brownish color; isn't that correct, 13 sir? 14 A The social problem was associated with some of 15 that, yes, sir.. 16 It was caused by it, wasn't it, Doctor? Is there 17 any other c b u s b mentioned in your report other than his 18 grayish-brownish color that caused his social problems and 19 caused his problems at home and caused all of his problems, 20 psychoneurotically speaking? 21 A Yes, the incidents that occur. What incidents that occur, Doctor? 'V 23 A ThB incidents that w e 've referred to. It happened 24 to be on a bus. 115 1 Doctor, that's all oonnacted with his grayish* a brownish color, isn't it, sir? 3 A Yes, but -- 4 Q Doctor -- S A If the incident hadn't occurred, sir -- 6 Q Doctor, will you get back to my question. 7 A If the incident hadn't occurred, he wouldn't have B reacted that way. S Doctor, would you get back to my question, sir. 10 The Incident was caused by his grahish-brownish color, 11 wasn't it, sir? 12 A No, sir. t 13 What other cause was there, sir? 14 A The incident was also caused by the social 15 prejudices of that era, sir, in West Virginia. 16 Q The social prejudies of that era are not so far 17 gone, they're still here in this era, sir. The question ia that I 'm asking you, Doctor, his social problems were caused 19 by the hyperpigmentatiori, the grayish-brownish color, were 20 thBy not, sir? As he was living -- 21 A In part, sir. 22 0 As he was living as a human being at that time in 23 that society. 24 A In part, sir. In part. ----------------------------------------------- - ----------------------------- --------------------- 116 1 Q Uhat else caused the social problem, sir? a A As I just pointed out, the cultural attitudes that a existed in that -- 4 Q Doctor, that's the culture that he was living in. 5 That's the fluid that he bias swimming in. He would not have 6 had the problems in that culture were ha not grayish-brouin, 7 would he, sir? 8 MR. HEINEMAN: Object, your Honor, he interrupted 9 the answer. 10 THE COURT: Objection is overruled. 11 THE WITNESS: There were many questions there. 12 Would you repeat the question? 13 Q (By Mr. Carr) Doctor, he would not have had the 14 reaction on the bus and elsewhere were he not that color. 15 He would not have perceived these actions as being against 16 him. 17 A Probably not, sir. IB Q Doctor, was the color, thegrayish-brownish color 19 that caused it, when he went out in public, and he saw 20 people reacting to this particular grayish-brownish color; 21 isn't that correct, sir? 22 ft That's true, sir. S3 Q And, Doctor, that wascaused by thetreatment that 24 he received on his particular kind of skin; isn't that 117 1 right, sir? a A Probably so, sir. 3 Q And, Doctor, ths treatment was necessary and used 4 by competent dermatologists on others uho had chloracne; 5 isn't, that correct, sir? 6 A No, sir. 7 Oh, other dermatologists did not use X-ray 5 treatment? 9 A They did eroneously, unfortunately. 10 Q My question is didn't other competent 11 dermatologists use X-ray on the chloracnB? IS A Others did, but competent I mould have to say I 13 don't knou. I mould question their competency. 14 Doctor, are you nom blaming the dermatologists, 15 Doctor? 16 A I'm Just saying that the dermatologists didn't 17 realize -- IB Q My question, Doctor, are you nom blaming the 19 dermatologist? Do I have to go through and demonstrate to 20 you -- 21 A I 'm not blaming them, sir. It mas inappropriate 22 treatment For chloracnB. 23 Q Who knem that, Doctor? Did the dermatologist knou 24 it? 11B 1 A They could havB realized it -- 2 Q Did the dermatologist knout it, Doctor? 3 A They could have realized it by doing it. 4 0 Could have realized by doing it, sir? 5 A Yes, sir. They could havB realized thBir error -- 6 first of all, X-ray didn't cure it, X-ray only mads it 7 morse. B Doctor, who knew that? UJho had experience in 9 treating chloracne at that time? 10 A There utere a fern people who did. 11 Q Horn many in the country, sir? 12 A UIb II, I don't knout numbers, sir. 13 It mould be very fern, mouldn't it, sir? 14 A There mould be a feu. 15 Q Yes, Doctor, a feu. Are you blaming these 16 dermatologists for using a treatment that only a very few 17 people might knom mould be inappropriate? IB A I'm not blaming them, sir, no. 19 Doctor, let's pass on from the dermatologists. 20 His treatment mas caused -- the treatment caused the 51 grayish-bromnish color, didn't it, sir? 22 A In that man, yes. 23 Q And the treatment mas called for because of his 24 chloracne, masn't it, sir? 119 1 A It wasn't called Far, sir. h Doctor, did the men make the decision to treat 3 himself uiith X-ray or did a doctor exercising his best 4 judgment at that timB, whether for the good or for the bad, 5 did a doctor make the decision that this is chloracne, or 6 this is acne, I better treat it with X-ray? Did a doctor do 7 that? 8 A A doctor made the decision, yes, sir. 9 ' And the doctor was caused to make the decision 10 because he saw the condition in the man; isn't that correct, 11 sir? 12 A Yes. 13 Q And the condition in the man was caused by the 14 2,4,5-T and its contaminant, wasn't it, sir? 15 A The condition was associated with 2,4,5-T and its 16 contaminants. 17 The chloracne was not caused, sir. Haven't you IB demonstrated time and time again that TCDD causes chloracne? 19 Didn't you write a paper saying chloracne - hallmark of HO dioxin exposure? HI A Hr. Carr, you said 2,4,5-T. H2 0 And its contaminants, Doctor. 23 A 2,4,5-T doesn't causs chloracnB. 24 Q Doctor, did you hear me say 2,4,5-T and its iao 1 contaminants? a A You have to separata them. 3 Dotor, did you hear mB say whenyou'rB exposed to 4 E ,4,5-T? It has got ths contaminant in it, youcan't 5 separate it. 6 A Yes, you can. 7 Q Honsanto could have separated it, couldn't they, Q sir? 9 A N o . Ule have proven -- 10 Q Now, Doctor, without all this byplay, sir, the 11 contaminant in the ,4,5-T is what caused the condition that ia caused the dermatologist to treat the condition; isn't that 13 right, sir? 14 A ' I assume that that's so, sir. 15 Q And ths man's biological make-up, coupled with 16 that treatment is what caused the grayish-brownish colar; 17 isn't that correct, sir? 18 A mould you repeat the question, please, 19 0 (Question read.) 1 THE WITNESS: Yes, 1 bslisvB it is, sir. S3 (By hr. Carr) And, Doctor, the grayish-brownish 4 color coupled with the man's prejudices caused his 121 1 psychoneurosis, did it not, sir? 2 A No, sir. 3 Q What caused it if it wasn't those two things, sir, 4 his grayish-brownish color and his prejudice? What other 5 Factor caused it? B A IhB social response -- 7 Doctor -- B A -- of his FriBnds. 9 Q -- that was a response, that was a result. 10 MR. HEINEMAN: Objection. Can the witnBS3 answer? 11 THE COURT: The objection is overruled. IB Q CBy Mr. Csrrl That was a result of his color and 13 his prejudice, was it not, sir? The social response was a 14 result of his color and his prejudice combined? IS A No, sir. 16 Uls haven'testablished that? 17 A No, sir. 18 Q All right. What caused the social result then, 19 Doctor, if. it wasn't his prejudice coupled with his color? BO A The social response, sir, and please let me 21 finish, the social response to this man unfortunately at the 22 time was the result of a cultural attitude. Cultural 23 attitude. And his prejudices had nothing to do with it. 24 Nothing to do with the cultural response, His prejudice was 122 1 involved in how he reacted to that -- 2 Q And that caused the neurosis and that's what my 3 question is aiming at, Doctor, 4 A Lat me finish, sir. The combination of the fact 5 that he had prejudices and thsrB warB social responses which 6 he resented, the combined circumstance played a role in his 7 neurosis. B Doctor, I 'll certainly accept that, and, 9 therefore, the circumstances in question, the incident was 10 responsible far, coupled with these other problems, the 11 attitudes of society, his own attitudes, his biological 12 make-up, the treatment that he got caused by his 13 psychoneurosis; isn't that correct, sir? They were all 14 factors which added together caused his neurosis; isn't that 15 correct, sir? 16 A No. There was a sequence of events, sir. 17 Doctor, isn't that what you do when you have a 10 sequence of events, you add things together? 19 A It's not additive. Sequence doesn't mean 20 addition, sir. 21 Doctor, these events combined to cause the 22 psychoneurosis, did they not, sir? 23 A The events led to the psychoneurosis, u b s , sir. 24 Doctor, it is, therefore, an incident that is 123 1 associated with the circumstances, but 1 asked you to give 2 me psychcneuroses cases that were not connected with, that 3 were not associated with this circumstance of this 1949 4 autoclave reaction. Now, sir, please name me, if you can, 5 any psychoneurosis in these men, one or more, that was not 6 associatd with the circumstance in question, sir. 7 A UIb only examined those people -- 8 Doctor, would you answer my question, please, sir. 9 A I said we only examined those people who had 10 chloracne. 11 MR. CARR: Your Honor, would you direct the 12 witness to answer my question. 13 THE COURT: Doctor. i 14 THE WITNESS: Yes, sir. 15 THE COURT: Please answer the question. You have 16 to give an answer that responds to the question and not an 17 answer that's not related to it. 16 THE WITNESS: Thank you. Would you read the 19 question, please. 20 21 CQuestion read.^ 22 23 THE WITNESS; I don't know of any case other than 24 those we examined, and those that you have presented to me, 124 X air. s Q CBy Mr. Carr) Than you know of no cases other 3 than these that are associated with the incident! no 4 circumstances, sir, other than the incident that could have 5 caused the psychoneurosis in these men? 6 A I haven't looked for them, sir. 7 Q Sir? B A I haven't looked for them. 9 Doctor, is an answer to my question that you have 10 no knowledge oF any circumstance other than this *49 11 reaction that could have played a role in causing these men 12 to became neurotic? 13 A My answer is that I only know these cases which 14 you have presented to me, sir. 15 MR. CARR: Your Honor, please direct the witness 15 to answer my question. 17 THE WITNESS: Well, I am. IB THE COURT: Doctor, you're not. The answer was 19 not responsive to thB question. Please listen to the SO question again and respond to the question that was asked of 21 you and not something else. Could you read the question .22 back onB more time? 23 MR. HEINEMAN: Your Honor, may Counsel approach 24 the bench? 125 1 THE COURT: Yss, you may. s 3 CThe following proceedings were had at the bench 4 out of the hearing of the jury:3 5 B MR. HEINEMAN: Your Honor, I'd like to object. 7 That answer was directly responsive to the question. S THE COURT: No, it uias not. He was asked whether S he knew of any. He gave an explanation as to why he did not 10 know of any others, and that being that he hasn't looked for 11 any others. That may bs a reason for an answer that he 12 doesn't know of any others, but it is not in answer to the 13 question of do you know of any others. It's Just typical of 14 what he's been doing throughout this. He was asked does he 15 know Df any others, for his knowledge or lack of knowledge, 16 rather in answering the question about whether such 17 knowledge exists. It was not at all responsive to the 16 question. 19 MR. HEINEMAN: Obviously I disagree with the 20 Court's interpretation. The answer in my opinion was 21 responsive to thB question. I object to the Court's 22 instruction of thB witness. 23 THE COURT: Objection is overruled. 24 126 1 CThe following proceedings werB had in the s presence and hearing of the jury:) 3 '4 CBy Mr. Carr) Would you answer the question, 5 please, D r . Suskind. 6 A I don't know of any other cases except those we 7 discussed, sir. 8 Doctor, that isn't my question. My question is do 9 you know of any other circumstance that could have caused 10 the psychonsuroses in these men, other than the circumstance 11 of this autoclave reaction? 12 A I'm not sure I can answer the question, sir. 13 Do you have knowledge of any other circumstances 14 that could have caused any one of these men to become 15 neurotic other than the circumstances of the autoclave 16 reaction? 17 A If the Court will permit me, if I looked for them, IB sir, I could answer the question. If I looked for them. 19 Doctor, I 'm asking you as to your present 20 knowledge. Ydu suggested to this jury when I started on 21 this line of cross examination that there were other 22 circumstances that caused these men to be neurotic, I wish 23 to establish, as you know, Doctor, that you don't know of 24 any other circumstances. 127 1 You gave us one that you said was a circumstance s not connected uiith the incident. Now I'm asking you, sir, 3 do you knoio of any other circumstances that could have 4 caused these men to become neurotic other than their 5 connection with this incident? 6 Now Just tell me whether you have knowledge. IF 7 you do know of some other circumstances, then tell me what 0 they are. IF you don't know oF any other circumstances, For a whatever reason you don't know of any other circumstances, 10 you haven't read it, you haven't looked For it, then tell li me, sir, that you don't know of any other circumstances la other than this incident that could have caused these men to 13 become neurotic. 14 A I can answer that question, sir. From the work 15 I 've donB, I don't know of any othBr. 16 Q All right. 17 A From the work I 've done. IB Thank you, Doctor. Then we have either the IS incident itsBlf caused the men to become neurotic, so far as SO you know, or the materials that ware involved in the 51 incident caused the men to become neurotic according to Dr. 22 Neetmannj is that correct, sir? 53 A Would you read thequestion back. 24 129 1 CQuestion read.) s 3 THE UITNESS: I would sag no, sir. 4 CBy Mr. CarrD How is it incorrect, Doctor? 5 0 It's incorrect because I believe that when Dr. 6 Nestmann compares, in Mr. Willard, For example, the 7 psychoneurosis to combat Fatigue, which we went into a earlier, what he was saying was that these -- this man at 9 least developed a fear of the, of what might happen, a Fear. 10 This is an anxiety neurosis. 11 There are 29 different kinds of neuroses, and Mr. 12 billiard had a kind of chronic anxiety neurosis, the Fear of 13 his becoming ill. For example, he knew that his father had 14 died of a stroke in his *40*5, He knew that his brothers, 15 one brother died of a -- of a coronary occlusion at agB 46 16 and another at 6B, and he was Fearful. He was Fearful that 17 this circumstance might produce heart disease. And that was 10 an anxiBty reaction, sir. IS That was thereabout a circumstance that led him to 20 believe that it might cause heart disease? 21 A I can tell you what that was. Earlier when we 22 examined thesB people in '49 and *50 they were ill. They 23 had problems. We described them. Those people who 24 developed psychoneuroses, anxiety neuroses, some of their 159 1 Fears -- their Feara didn't go away* They continued to have a those Fears. So they had aches and pains and they had 3 nervousness and Mr. Willard complained of heart disease, and 4 1 think Dr. Nestmann was saying that as in combat Fatigue 5 they had -- they had Fears oF thB risks that the original -- 6 the original incident might have been responsible For. 7 Wall, Doctor, then their psychonsuroses was 8 associated with the incident because their Fear was caused S by the incident; isn't that correct, sir? 10 A The Fears were related to the incident, yes* 11 Doctor, and it wasn't an explosion that caused 15 these men to be FsarFul, was it, sir? 13 A Wall, I don't believe thBre was an explosion, sir. 14 Q It wasn't an explosion that caused these men to be 15 FBarFul, was it, sir? IE A No. 17 Q It was what happened to their body Following their IB exposure that caused them to be FearFul, wasn't it, sir? 13 A That happened to some oF them, especially right 50 aFtBr the incident, sir, yBS. 51 Q Doctor, it was what happened to all oF them, the SB original Four that you saw and 53 out oF the 36 that you saw 53 in '53, that's what put the Fear in them, isn't it, sir? 54 A No, sir. 130 1 UIb II, what Is it -- ujhat is it that you Just s explained to us, sir, that put the Fear in them? Didn't you 3 just tell us it was what happened to them, what happened to 4 their bodies that caused them to be Fearful? Didn't you 5 just tell us that, Doctor, or am I imagining that? 6 A No, I said that, sir. 7 Q All right. Doctor, that's what 1 said. B A Hold it, sir. Not in 1953, sir. In 1953 there `9 uiBrs a few, and we cite Willard as one of them, who was a 10 continuous complainer and who was psychoneurotic. Ue only 11- cited him and some others, but mostly him. I have referred lS to that description of his psychoneurosis on a number of 13 occasions, and it's not different from this. It's not 14 different From this. As a matter of Fact, this is dated Nay IS 4, 1955, and our examination was -- 16 1953. Doctor, it's 1953. 17 A I'm sorry, '53. IB Ybs . 19 A I 'm sorry. Thank you. And our examination was in SO the middle of April in 1953. So what we were doing SI essentially was seeing the same thing. SS And that's fine, Doctor. How was it caused in S3 him? It was caused by fear, wasn't it, Doctor? 54 A I believe he had some fear, sure. 131 1 Q And the Fear was caused by what happened to his a body, wasn't it, sir? 3 A Originally. 4 Well, Doctor, I don't care whether it's originally 5 or Finally. The fear that that man had in him was caused in 6 him by what happaned in his body. 7 A Back in 1350, '49. B Back in 1949, back in 1950, whenever it happened. 9 The Fear that was caused to him was caused by what happened 10 to his body, wasn't that correct, sir? 11 A I believB that was part of it, plus the Fact -IS Well, what else, Doctor, what other things caused 13 his Fear, other than what happened to his body? 14 A I was describing his fear of heart disease, sir. 15 That's something that happened to his body. Hb 16 worried about is he going to get heart disease. 17 A That was not the result oF the incident, sir. IB That was a fear because he had a Family history of heart 19 disease and stroke. 20 Doctor, shouldn't he have a Fear of heart disease SI if he's got a history of heart disease in his family? 2H Shouldn't he have a Fear? S3 A But that has nothing to do with the incident. 24 Q Excuse me, Doctor. I suggest to you it has 132 1 everything to do uiith it. Hasn't he got the right to have a 2 fear if h e 's got a family history of heart disease? Hasn't3 he got the right to have that Fear, Doctor? 4 A I cannot accept the uiord ''right," sir, because 5 thBrQ's no such thing as right. 6 Isn't it a consequence of a family history of 7 heart disease, isn't it a consequence that you too will have B that fear that perhaps it's going to happen to you? S A Yes. 10 And, Doctor, uihen you have that kind of history 11 you know that it takes Ib s s trauma, less exposure to toxic 12 substances, less other things to cause heart disease in you 13 then it doss in perhaps somebody that has no family history; 14 isn't that also true? 15 A No, sir. IB Oh, in what way is itfalse? 17 A Wall, you know, I 'm not altogether sure that I IB understand what you're associating this with. 13 Q Doctor, you knowexactly what I'm saying. 20 A Would you read thB question, please, tha first 21 question. 22 23 (Question read.) 24 133 1 THE WITNESS: Absolutely not. That's not so, sir. 2 Thars's no proof of that at all in all studies that have 3 been done. 4 Q CBy Hr. Carr5 Doctor, is It a belief that people 5 have? 5 A What is a belief that people have? 7 As I stated, that exposure to toxic substances, to B trauma, to things of this sort, can cause heart disease? 9 A No. It's -- if it is, it's an Broneous belief, 10 sir. 11 Q Whether it's eroneous or not is immaterial to me. 12 It caused a fear in this man, did it not, sir? 13 A No, sir. 14 What caused the fear then, sir? What mas he 15 afraid of? Was he afraid of dying of a heart attack because 16 he mas exposed to these substances? Was that his fear? 17 A He uias afraid of dying of a heart attack because IB he had a family history, sir. 19 And not associated with this substance, sir? 20 A The family history wasn't associated with it. 21 Q Doctor, did he havB the neurotic condition before 22 he was exposed to the substance or not, according to your 23 records? Let me answer it, Doctor. It was stated on pagB 24 five that the nervousness in all of these individuals came 134 1 up after the exposure to the substance. That's what you 2 said in 1953] isn't that right, sir? 3 A That's what us were told, gas* 4 Q So his nervousness, his Fear came up after his 5 exposure to the toxic substances; isn't that right, sir? B A His nervousness, yes. 7 0 And Dr. NBstmann even described it as being B exposed to toxic gases, didn't he, sir? 9 A Yes, I believe that he does have that kind of 10 description. 11 So this man's fear of heart disease came up, his 15 neurosis came up aFter his exposure, didn't it, sir? 13 A In time, sir, yes. 14 Q In time, that's what I'm talking about. After is 15 in time, isn't it, sir? Could I have an exhibit marked IB 174B--A? 17 IS CPlaintiFFs' Exhibit 1748-A was marked for 13 identification by the court reporter,) 50 SI Q CBy hr. Carr) Doctor, you recognize what's been 25 marked 174B-A as a blow-up of Plaintiffs* Exhibit 174B? 53 The identification is right there, Doctor. You're looking 24 at thB wrong place, Doctor. Look up herB. Do you recognize 135 1 it as a blow-up of Plaintiffs' Exhibit 174B? a A Yes. 3 MR. CARR; I offer 174B-A into evidence, if it 4 please the Court. 5 THE COURT; Any objection? 6 MR. HEINEMAN: It's this thing? 7 MR. CARR: Yes. B MR. HEINEMAN: Your Honor, may w b incorporate the 3 same objection that we mads uith respect to this document 10 that w b did before? 11 THE COURT: Sure. I'll incorporate all arguments 12 on it. It's admitted over objection, 13 THE WITNESS: There uie are. 14 Q (By Mr. Carr) Doctor, of those persons, of the 36 15 that you saw in 1353, of those persons that died according 16 to the death certificates that us have up to the present 17 time, hou many of those people died of heart disease or IB something that's been described as circlatory disease tuhich 19 could well be heart disease? And, Doctor, thB men that died 20 of heart disease at age 42, at age of 40.5, at age of 35, at 21 age of -- I 'm sorry, I 'm reading the wrong callumn. I 'm 22 reading their life expectancy. I apologize. Died of heart 23 disease at the age of 43, 4B, circlatory disease at 75, 24 heart disease at 42, heart disease at 54, heart, disease at NID 136 1 47, heart disease at 43, heart disease at 45 and at 63; a isn't that correct, sir? 3 MR. HEINEMAN: Excuse me, your Honor. 4 THE WITNESS* I don't see a 47, sir. '5 MR. HEINEMAN: Excuse me. 8 THE WITNESS: I see the numbers -- 7 MR. CARR: Did I say 477 B THE WITNESS: Yes. That's all right. Whatever it 3 urns, 10 MR. CARR: 67. 11 THE WITNESS: 1H MR. HEINEMAN: That's what it was. 13 0 CBy Mr. Carr) Isn't that correct, 14 A Yes. 15 Doctor, would it be reasonable to say that there 16 are no other causes of dBath other than the cancer on these 17 death certificates; isn't that correct, sir? IB A I don't know, sir. I haven't sesn them. IS Dn this chart, Doctor. SO A You said death certificates, and let's stick to 21 that. I haven't seen the death certificates. There could 22 have been other causes too, 23 Q Doctor, you have seen the death certificates 54 because ub went through them when we mads this board. 137 1 There were two other causes, one was Steele, a neurotic, who a committed suicide, a peychonsurotic, got psychoneurotic 3 after that, and committed suicide, and the other, sir, uias a 4 man that was killed in an automobile-train collision. 5 MR. HEINEMAN: Objection. 6 Q (By Mr. Carr5 Those are the deaths, sir. 7 MR. HEINEMAN; Objection, your Honor. May Counsel 0 aproach the bench? S THE COURT: Sure. 10 11 (The following proceedings were had at the bench 12 out of thB hearing of the jury:) 13 14 MR. HEINEMAN: I don't believe w e 've had any 15 evidence that Steele was a psychoneurotio. I object to that 16 potion of the question. 17 MR. CARR: I'll be glad to change that. I will be IB glad to change that. 13 MR. HEINEMAN: But why was it said in thB first 50 place, whan you know the BvidBncB isn't in there? 81 THE COURT: Objection is sustained. 25 23 (The following proceedings were had in the 24 presence and hearing of the jury:) 138 X Q CBy hr. Carr} Doctor, with regard to hr. Steele, 2 we have no report on Steele from Dr. Nestmann, have we, sir? . 3 Do we, sir? 4 A I haven't seen it. 5 But we do havB your report which -6 A in the exhibits. 7 tile do have your report which said he had B nervousness Fallowing the accident; correct, sir? Page 9 of 3 Exhibit 1701, Doctor, your 1953 report. 10 A He had a history of nervousness. A history. 11 Yes, Doctor, indeed. Following the incident? 12 A Right. 13 And not bBfore; correct, Doctor? 14 A Yb s . 15 Q And this man committed suicide, didn't he, sir? 15 A I don't know. 17 Doctor, of the death certificates that you've seen IB of the mBn, of the 35.that have diBd subsequent to their 13 exposure, it's been cancer or heart disease, hasn't it, sir? 20 A No. Ulhat I was referring to is the other -- 21 Excuse me, Doctor, could you answer my question, 22 please, sir. 23 A No, sir. 24 Ulhat other causes of death have we had of these 139 1 35, sir, other than cancer or heart disease? s A On the -- 3 Q And other than the accident and the suicide. 4 A On the death certificates there are usually 5 secondary causes. 6 0 Excuse me, Doctor. 7 A And I haven't seen that. B UJe went through the death certificates, Doctor. 9 -You looked at each of them. You agreed at the time the * 10 cause of death on the death certificates oh these men was as 11 stated hBrs, Doctor. 12 A Those mere listed as the primary cause, |sir. 13 Doctor, I don't care uihat it uias listed: 14 A I do. ; 15 Da you agree this was the cause of death? 16 A It was thB primary cause given, sir. 17 Fine with ms, Doctor. The primary cause of death IB were these conditions, cancBr and heart disease; correct, 19 sir? 11! 20 A That's what was listed, and that's how you have it 21 listed, sir. i" 25 D Now, Doctor, would you say that a fear in Hr. 23 Willard that he might die of heart disease would bs 24 reasonable? 140 1 A Not sir, because our findings on Mr. Willard mere s negative. 3 All right, Doctor. Your Findings on all thesB 4 people mere negative as Far as heart. You didn't diagnose a 5 single one of them as having any heart problems when you saw 6 them in 1953, did you, sir? 7 A U)a didn't do HCB's on these people, sir. B Then why do you say you didn't Find it in Mr. 9 Willard, sir? 10 A In 1979 we didn't Find it in Mr. Willard, sir. 11 Doctor, we're talking about Fears that developed IS in 1953, 1949 and 1950, aren't we, sir? 13 A You gave ma -- you gave me -- w e 're talking about 14 causes of death, and Mr. Willard. 15 Doctor, did you find -- no, w e 're talking about 16 his Fear, Doctor. 17 A Okay. Fears which would lead to death due to IB hBart disease? 19 Oh, no, Doctor. I 'm not saying the Fear causes SO the heart disease. Did you believe that I said fear causes SI heart disease? I 'm suggesting to you, Doctor, that this ss exposure, either the materials caused the neuroses, or the S3 incident itself caused the neuroses is what I 'm suggesting S4 to you, that you have said, and Dr. Nestmann has said; isn't 141 1 that correct, sir? A I have said it was the circumstance, yes. 3 That caused it; correct, sir? 4 A That might be responsible for their anxiety. 5 Doctor -- oh, is the nervousness now something B diFFBrent than ths neurosis? 7 A No, it isn't. I callsd it a few minutes ago -- 6 The neuroses, the nervousness, the anxiety, was 9 caused by in these man what happened to them at the time of 10 and fallowing the incident when they were exposed to the 11 S,4,5-T and its contaminant; isn't that correct, sir? IS A No, sir. 13 How is it incorrect, Doctor? 14 A It's incorrect because they feared what might 15 happen to them. 16 Q Doctor, isn't that what I said? 17 MR. HEINEMAN: Objection, he interrupted the IB answer. 19 THE WITNESS: I don't think you said it that way. SO THE COURT: The objection is overruled. SI (By Mr. Carr) I'll accept that statement. It was 55 their fear of what was going to happen to themthat caused S3 the neurosis; correct, sir? 4 A That is associated with ths neurosis, yes. 142 1 Q Uhat caused the fear, Doctor? 2 A As we said before, the fear urns stimulated by the 3 presence in 1949 and '50 of illness. 4 Q Yes. 5 A And they feared that going back in to the plant or 6 working in that plant might have an adverse effect on them. 7 Q Doctor, they continued to have that fear even when 8 they didn't work in the place where the 2,4,5-T was made,.' 8 didn't they? 10 A Yes, they did. 11 They continued to have it, and that fear was IS caused by the incident, wasn't it, sir? 13 A It was caused by the circumstance of the incident. 14 Q Yes. Thank you, Doctor. 15 THE COURT: Mr. Carr, is this a good point to 16 break? 17 MR. CARR: Yes, your Honor. IB THE COURT: Ladies and gentlemen, we, as I told 19 you before, arB going to break for the day at this point in SO time. UJb will resume again Monday at 9:30. I would remind 21 you as X do on any overnight break, you're not to read, 22 listen to or watch anything about this case in particular or S3 subject matter in general in any of thB media, print or 24 electronic. Thank you for your attention and cooperation 143 1 this week. Hava a good weekend, Ue'll see you Monday 5 morning. Court Is adjourned. 3 Gentlemen, could I see you for a minute? 4 5 CThe Following proceedings were had in chambers 6 out of the presence of the Jury:) 7 a MR. CRAUEN: Before we get into the two motions a that have been tendered since the 55th of February, we would 10 make a Motion for Mistrial based on uihat we consider to be \ li some outrages in the courtroom this afternoon. 15 Ule would like the Court to make available to us 13 a -- a copy of the audio tape, because in many respects the 14 record itself perhaps can't do justice to that which has 15 happened. But in his abuse and examination of Or. Suskind, 16 Mr. Carr has absolutely gone beyond the bounds. He has i 17 suggested in front of the Jury, without any interference by ie the Court, that Monsanto could have had a mental examination 19 of its employees and excluded people with prejudices, they 50 hired people with prejudices. 51 He has resorted to some things that I'm sorry to 52 have to say this, but apparently w s 'rB trying a different 53 case. He is Just abusing Dr. Suskind beyond any semblance 54 of reason, and then the final straw is that Mr. Carr can sit 144 1 thBrs and make these on-going speeches in the form of s questions, and Mr. Hsineman was ordered not to even -- he 3 can't make a speaking objection. Then hs was ordered not to 4 approach the bench anymore uiith objections. 5 THE COURT: No, that's not correct. With repeats 6 of the same objections. 7 MR. CRAUEN: Judge, that bihole scenario was Mr. B Carr, with no objections sustained, uias just doing his thing S in front of that Jury, and the bottom line utas to suggest to 10 the Jury, which is biracial, that Monsanto is in favor of 11 prejudice. Now that's simply inappropriate for this kind of ih a trial or any trial. That's precisely what he did with, we 13 think, malice and forethought. That's the part I hate to 14 say, because that isn't an issue in this case, or any case, 15 but he injected it in this case. He did irreparable damage 16 in front of that jury, and he did it intentionally. 17 U)e make a Motion for a Mistrial because of that IB conduct. Us would like a copy of the audio tape for future 13 purposes because the cold printed record can't show that Mr. eo Carr stands in front of the witness, yells at thB witness, 21 interrupts the witness, walks on his answers, makes S oratorical speeches in the form of questions, and then S3 suggests that we hired people with prejudice when we could 54 have excluded them with mental examinations. That's 145 1 outrageous. a Let me Just go ahead and touch on all the rest of 3 it. 4 MR. CARR: No, I'd like to reply to that first. 5 THE COURT; I 'd prefer to do it one at a time. It 6 would be easier for me to follow. 7 MR. CRAUEN: We ask for two things. We would like B a copy of the audio tape, number one, and we will pay 3 whatever expenses. We will make copies under whatever 10 safeguards the Court wants to impose upon us, but we would 11 like a copy of that tape. And number two, we want a 1.2 mistrial because of the prejudice that went on in that 13 courtroom this afternoon that has gone on continuously, I 14 might say. 15 MR. CARR: Your Honor, in response to the two 16 statements Counsel has made, suggestions, or motions, as far 17 as the video tape is concerned, I don't know that there -- IB is there a video tape? 13 THE COURT; There's audio. There's no video. 20 MR. CRAUEN; I said audio. 21 MR. CARR; Oh, I thought you said video. To me I 22 don't see that it makes much difference one way or the 23 other. It isn't appropriate to make it part of thB record. 24 I suppose it can be, but I haven't researched the 146 1 proposition, and I would ask For leave to respond to that s after I*vs had an opportunity to determine what is 3 appropriate under the circumstances. It may be perfectly 4 proper. It may be improper. I wish not to yet into a 5 position of disagreeing until I know to what I speak on the 6 point. 7 As far as the major paint that they're making, a 6 notion for Mistrial, it's suggesting that I accused Monsanto 9 of hiring prejudiced people. It's absurd on the face of it. 10 My line of questioning, perhaps Counsel couldn't hear 11 since -- 12 MR. CRAUEN: I heard very well, Mr. Carr. 13 MR. CARR; -- since my back was to him. 14 MR. CRAUEN: Mr. Carr would be -- 15 MR. CARR: May I Finish, Mr. Craven? 16 MR. CRAUEN: Well -17 MR. CARR: Your Honor, would you tell Mr. Craven IB to let me finish? 13 THE COURT: Bo ahead, Mr.carr. 20 MR. CARR: My line of quesioning was aimed at 21 showing that anybody and everybody takes he plaintiffs as ! 22 they Find them. The suggestion of the witness was that Mr. 23 Young was prejudiced. The implication being to the Jury 24 that this prejudiced individual somehow or another was not 147 1 entitled to the seme protection, the same rights under the s law, that an unprejudiced person is* 3 rig question, as the Court is aware, and as Counsel 4 is aware, because h e 's at the bench, not Counsel Craven, but 5 Mr. Heineman, my line of questioning was aimed at showing 6 that the employer takes the employee as they find him, 7 whether they're prejudiced or unprejudiced. B In Nitro, West Virginia, as the witness himself 3 pointed out, a prejudiced community, where this plant was 10 located and the people thers are subject to those 11 prejudices. The witness suggested that somehow or other IS because this Harold Young reacted to that prejudice in that, 13 what he could consider an unreasonable way, that somehow or 14 other his psychoneurosis doesn't count, because it was a 15 product of his own prejudice living in an environment that's 18 prejudiced. 17 For the sake of cross examination I accepted that IB as rtrue and then by further questions pointed out that the IS employer doesn't screen their employees. They take them as 20 they find thBm as every employer.does, and that to say 21 simply because somebody is prejudiced that thBy're not 22 entitled to protection of the law is an absurdity. That was 23 the line of questioning, that was the intent of the 24 questioning. 148 1 Then it didn't even enter my mind, quite Frankly, a to suggest that Monsanto hired prejudiced people, or that it 3 mas obligated to hire unprejudiced people. The race issue 4 utas injected into the case unnecessarily by the witness. 1 5 had avoided when I went through Exhibit 1701, the 1953 6 report, From the beginning, I avoided careFully the words 7 relating to Negro, and this exhibit 1701 was never passed to B the jury. The Witness Suskind up until today also avoided 9 the problems, the social problems oF Harold Young as being 10 associated with his perception by the community that he was 11 a Negro and his reaction thereto. I avoided it careFully ia because 1 wished not to offend any jurors, and wished not to 13 have race to have anything to do with this case. But the 14 witness insisted that I rBad, as a matter of Fact, insisted 15 vehemently that I -- I First directed his attention to page 16 nine, where all the entire problems were sat out. He 17 insisted on going to page tBn. Then I read around the 16 racial prejudice, and the Negro description in the exhibit, 19 and the witness insisted that I read it all. ao I would not consciously use a racial element in ai any lawsuit at any time. The Court knows my long history in aa the area of racial relations, as Jim Craven knows or should E3 know. I assume hB knows it. Maybe he doesn't. But race is E4 not something that I injected in the case. I did not ask 149 1 the questions of Suskind relating to the employer's ability s to hire for thB purpose of in any way suggesting that they 3 should be blamed because they hired unprejudiced -- because 4 they hired prejudiced people. It would be an absurdity. 5 I'm too -- I 'm much too good of a lawyer to try to prove 6 that a stupid thing like that -- every employer on earth 7 hires prejudiced people, and there's no law that says they e are required to do anything else except hire the man as they 9 come. So it's ridiculous for him to even suggest that. I 10 oppose the motion. 11 THE COURT: JudgB. 15 MR. CRAUEN: On the question of the tapB, I don't 13 know why Mr. Carr needs time, but in any event, if the Court 14 is going to give him time we request that the tape be 15 impounded. 16 THE COURT: Right. 17 MR. CRAUEN: And securely so, and that all tapes IB of this trial be impounded. Ule would like to make 19 arrangements to get copies of today's tape at the earliest SO possible time. 21 Now the question of injecting race into this 22 trial, that tape will indicate who did what to who and when 23 and when he did, when Dr. Suskind kept saying thsrB WBre 24 other reasons, and fir. Carr kept saying well, all right, I 150 1 tried to avoid riding this. 2 He did it to give the impression that the a prejudice uias partly Dr. Suskind's, and then when he did 4 read that material he did it in that context. It mas Just 5 apparent to everybody in the courtroom and to thB Jury, mho 6 perked up their ears, that uie had a question of racial 7 prejudice arising in Uest Uirginia, And IF you come in off B of Mars and listen to this trial you would think that the 3 plaintiffs uiBra thB UlBst Uirginia Nltro workers. That's 10 another subject. But, nonetheless, uie're entitled to that 11 tape. IS W e 're entitled to a mistrial, hr. Carr has 13 intentionally injected this thing. I regret saying that, 14 because yes, I 'm not trying to say Bax Carr is prejudiced. 15 I don't even for a moment Bntertain that notion. But IB sometimes he gets over zealous as an advocate, and today he 17 broke all the bounds. He can be as free of prejudice as a IB new fallen snow, but he can use it as an advocate, and today 19 he broke the bounds. I 've never seen a witness treated that SO way. 21 MR. CARRi It is so strangs to ms that I should be 52 accused of that which Monsanto's witness did. Monsanto was S3 the one that injected this issue in the case, not me. I met 24 the issue and examined it. It's very strange. I don't 151 1 understand how you can accuse the victim of being the s perpetratecr of the crime. Because that's what happened. 3 It utas your side of the table that injected race into the 4 case. It was your side of the table that wanted to bring S out the way the community reacted to this man because of his 6 color. It was unnessary. All you had to do was to say the 7 man was psychoneurotic because of his pigmentation, which is B all you had to do, which is what I did. The only thing 9 required to do to prove the point that Suskind wanted to 10 prove. Hb didn't have to bring in race at all. But he 11 insisted on it. 12 THE COURT: I 'm going to have the tape impounded. 13 I will make arrangements For that. I 've never looked into 14 that question myself, as a matter of fact. 15 MR. CRAUEN: May we get a copy of it? 16 THE COURT: Pardon? 17 MR. CRAUEN: May we get a copy of it? 16 THE COURT: Well, w e 'll takB care of it later. 19 I 'm going to have him impound it for right now. 20 As far as the Motion for Mistrial, I am denying 21 it. I think -- I listened to all of this,-I saw all of 22 this, I took natBS on this as I take notes throughout all of 23 this case, for a number of reasons, this is exactly one of 24 the types of reasons why. This whole issue of race was 152 1 injected by repeated non-responsivB answers -- repeated non2 responsiva statements, they were in na way answers, of Or. 3 Suskind to questions propounded by plaintiffs' attorney. 4 It was brought out in such a way so that 5 apparently plaintiffs' counsel in his judgment decided that 6 reading this could not be avoided. Once it got out it was 7 handled in a responsible way. I completely disagree with B your assessment of how it was handled in front of the Jury. 3 I think that it would be an outrage to let this case be 10 mistried on the basis and on the motion of the party whose 11 witness caused this incident to happen. Number one. 12 Number two, 1 think the incident was handled 13 correctly. I don't think that Monsanto wae prejudiced by 14 it. I don't think anything happened out therB that would 15 justify a mistrial being granted on motion of Monsanto under 15 these circumstances. Nothing at all. 17 It was injected by this witness as one of many 18 non-responsive answers, nan-responsive statements that havB 13 been given by this witness repeatedly in his examinations, 20 and it's something that once it was brought out, I think was 21 handled as correctly as any situation like that can possibly 22 be handled. 23 I think that the characterization, thB statement 24 that the characterization was made that Monsanto hires ' 153 1 prejudiced people is totally inaccurate. The whole thrust a of this uias that Monsanto took these people as they Found 3 them, and this one apparently was found with racial 4 prejudice, which aggravated the situation, which Mr. Carr 5 attempted to causally relate to the autoclave run-away 6 reaction. 7 There is no basis at all for a mistrial. Under B these circumstances, and thBre is especially no basis for a S mistrial on something that was brought out by Monsanto's 10 witness' improper conduct. Your motion is overruled as far 11 as the mistrial. 12 Your motion is taken under advisement as far as 13 the tape. I think the operator is still here so I will make 14 arrangments right now to make sura that the tapB, the audio 15 tape of today's proceedings, is kept so that it's not 15 erased. Exc u s b me just a minute. 17 IB CDiscussion held off the record.) 13 20 MR. CRAUEN: Judge, thB question has arisen, is 21 there not an audio of this entire proceeding, an audio tape? 22 THE COURT: I don't know. I think a lot of those 23 tapes, once the -- the tapes are basically used as back-up 24 for the reporters. I think after some point in time tapes 154 1 are reused, and I mould assume that these are too after a 2 point in time, and especially under our circumstances when 3 these transcripts are turned out at such a fast rata. I 4 don't knom -- I don't know how far back audio tapes of this 5 proceedings are still in existence. I Just haven't checked. 6 But normally* what they do is they mill make tapes of this, 7 they're available if someone needs to listen to them, you 8 know, something is lost, mainly if a reporter has problems. 9 I don't know horn far back any of these tapes go. I haven't 10 inquired. 11 MR. CRAUEN: Uie are nom asking that the tapes be 15 preserved and us are asking for copies of the tapes. 13 THE COURT: I'll take that under advisement. 14 MR. CARR: UJell, if the entire trial isn't 15 preserved, I sure as hell mould object to Just the Monsanto IB part being preserved. It's kind of late to makB a motion to 17 preserve audio of Just the Monsanto part of thB case. IB THE COURT: I don't knom. I 'll have to find out. 19 I Just don't know mhat has happened to that. It's not come 50 up. I'll have to find out. 51 MR. CRAUEN:. Well, in any event, me mould like 55 copies of everything that is in existence. U e 'd likB to S3 have some information as to mhat is or is not in existance. 54 THE COURT: I 'll try to get that for you. 155 1 MR. CRAUEN: Now may I move on to the other 2 motion? 3 THE COURT: Sure. 4 MR. CRAUEN: We filed on the 25th of February a 5 Motion to Uoir Dire the Jury with reference to another B article where Mr. Carr ie quoted extensively with reference 7 to this trial. That article was in a Belleville newspaper. B It was more of the same and, of course, it's one of a 9 continuing series of -- 10 MR. CARR: I hope you're not arguing that motion 11 now. 12 MR. CRAUEN: Yes, I am. 13 MR. CARR: We 'tb not up for argument. I haven't 14 filed my response yet. 15 MR. CRAUEN: This motion was filed the B5th of 16 February. 17 MR. CARR: I understand that, but I haven't filBd IB my response yet. 19 MR. CRAUEN: Are we at your pleasure on this? 20 MR. CARR: Yb s . The Court gavB me leave to file a 21 response. ' W e 're at the Court's pleasure. The Court said I 2 may file a response. 23 MR. CRAUEN: Judge, this is an article that 4 appeared in February, on the 16th, Sunday, the 16th of 156 1 February. 2 THE COURT: 1 know, 1 read it. 3 MR. CRAUEN: We uiant to have the Jury voir dired, 4 and delay and no decision is a denial of the motion. 5 MR. CARR: Wb II, I don't know how that is. 6 THE COURT: I didn't hear you. 7 MR. CARR: I don't know how giving me an B opportunity to File a response in view of what you all have 3 been doing in the Supreme Court to us, and these motions 10 could be considered a denial of the motion. I expect to 11 have a response on filB to your motion next weak. 12 MR. CRAVEN: Rex, you've had a month, or almost a 13 month. 14 MR. CARR: There was another motion that I 15 responded to, I think, this weBk, and a weak ago I think I IB responded to the Supreme Court in something, andtwo weeks 17 before that I responded to the Supreme Court, plus I've been IB trying this lawsit everyday. I don't have the time back in 19 the office during thB day to file these -- prepare these 20 motions, prepare responses. I have a problem of working at 21 night to get the casB readyfor the next day forthe next 22 witness, and I'm simply notequipped to work 24 hours a day. 23 I 'll have a response to that motion on file next week. 24 MR. CRAUEN: Look at the total unreality of that. 157 1 Judge, this is simply -- there has to be evBnhandednBss. 2 Ule're asking to have the Jury asked about a story that 3 appeared in the Belleville newspaper, front page I think it 4 mas, thB 16th of February. The reason For it is to 5 ascertain if the jurors read Mr. Carr's remarks about this 6 case, including what a bad person, bad company Monsanto is, 7 and how much money the prior settlement was, and so forth, a all of which if thB jury read it would antitie us to some s kind of reliBf. Yet w a 've been going on with the trial for 10 almost a month, since this was published, and Mr. Carr has 11 succeeded in not -- raising it, raising it, raising it, 12 that's a prejudice to us in itselF, the dslay. 13 Now, if this Jury read that article, we should be 14 able to ascertain that, we should be able to make a record 15 on it, we should not havB to go to trial before a Jury IB that's bBBn reading Mr, Carr's holdingforth of the case, 17 tde say in here that this is a deliberate -- one of a ie series -- 19 THE COURT: I read both motions. 20 MR. CRAUEN: An on-going thing. Hb 's saying no, 21 no, at his pleasure w e 'll do it. Judge, his pleasure -- 22 MR. CARR: It is the Court's pleasure. The Court, 23 I think, is the one that gave me leave, Counsel, not you and 24 not m e . 15B 1 MR. CRAUEN: I understand that. 2 MR. CARR: It's the Court that ordered me, and 3 I 'll obey the Court'a order. 4 MR. CRAUEN: It should be apparent to anyone that 5 ue filed this at the earliest practical time, that there E were some non-court days in there. UJe filed this as soon as 7 us could after that. UlB've gotten nothing. The delay B itself is a prejudice to us. 3 MR. CARR: Hold it, Counsel, when was that news 10 story published that you're complaining of? 11 MR. CRAUEN: The 15th of February. 12 MR. CARR: You filed this motion uihBn? 13 MR. CRAUEN: The 25th. 14 MR. CARR: That's ninB days later. 15 MR. CRAUEN: That's right. IB MR. CARR: Okay. 17 MR. CRAUEN: It was on a Sunday, and I think there IB were one or tuo court days during that weBk, and that's all. 13 It's not right to have tD kBep trying a casB 20 bsforB a Jury that may have bBan reading Mr. Carr's 21 holdingforth about this case, and the fact that the co22 defendant settled for four million dollars, his versions of 23 this trial. 24 f course, me didn't ever get a chance to voir 159 1 dire about his holdingforth For the Nsuj York Timas whan the 2 reprint of that was in tha Post Dispatch. Noui here is tha 3 hometown paper oF tha Jury, we can't even voir dire the 4 jury. IF he has his way, when we gat around to it, it will 5 be stale. E THE COURT: Do you have anything to say? 7 MR. CARR: Yes. As I suggested, your Honor, I 'll 8 have our response on File Monday. 9 THE COURT: This was raised once beFore, I believe 10 by Mr. HeinBman. I think it was raised by you earlier. 11 MR. NA5SIF: Last week. 12 MR. HEINEMAN: Yss. 13 THE COURT: I stated at the time, I don't remember 14 when it was raised, but it was raised by you beFore, and I 15 stated at the tim that I had read the article, I 've read 16 the motion, I did not think that waiting would make it 17 stale, and that it was not prejudice to the defendant. IS Ule had a thorough discussion at the time of what 19 was going on as Far as the trial was concerned about matters 0 in the Supreme Court in these particular motions, and I 51 would incorporate what happened therB, I would incorporate 22 what I said then also. 23 And the sum and substance of what I said was 24 basically, number one, Monsanto was not prejudiced by the 160 1 delay in consideration of the motionsj and number two, that 2 the may I preferred that these motions be handled by me, and 3 what I have found most effective is to have oral argument on 4 them if requested aftBr the time that there has been a 5 response by movant, response by respondent to the motion, B and that if they want a further supplemental response by the 7 movant, that the argument is shorter, better and my decision 8 is easier after that. 3 Number three, in the priority of matters before 10 this Court, obviously anything in the Supreme Court takes 11 precedence over anything in this Court. When the Jury is 12 available, trial in front Qf the Jury takes precedence over 13 anything that w e 're going to do back here. 14 fir. Carr has indicated that next week h B 'll have a 15 response on file. That response is timely. If you wish to IB make a -- you're the movant, you'rB entitled to the last 17 word, if you want to filB a response on that, then it will IB be arguBd. I do not think that that is prejudicial to your 19 client, I think that it is a timely proceeding. 20 In the context of everything that's going on, and 21 that aftBr that response is filed, and if you wish to do so 22 after you've made a reply to that, the appropriate time to 23 arguB it after court sometime not in Jury tima. That's my 24 position. That was my position then and it's my position 161 1 now. I don't think anything has changed. 2 MR. CRAUEN: Can we fix a specific calendar on 3 this? Mr. Carr is going to file a response on Monday. Can 4 ujs file a reply on Wednesday, sometime during thB day 5 Wednesday, and argue it at the conclusion of the taking of 6 evidence on Wednesday? 7 MR. CARR: Well, your Honor, I wouldn't object to B that, except what they may reply to, if they assert 9 something new that is, in fact, not a reply to my motion, as 10 thBy do from time to time, I would want leave to reply to 11 any new matter that they assert. But other than that I 12 won't object to thB schedule. 13 THE COURT: Fine. So Wednesday w e 'll plan on 14 arguing it. 15 MR. CRAUEN: Wednesday at thB -- 16 THE COURT: After court. 17 MR. CRAUEN: After court. IB THE COURT: Right. 19 MR. CRAUEN: H e 'll File his answer on Monday, or 20 his rBply on Monday, and w e 'll reply to it. 21 THE COURT: By Wednesday. 22 MR. CRAUEN: Will that be also true of the other 23 motions? 24 THE COURT: Bath motions. 162 1 MR. CARR: I won't have a response ready on the s second motion. 3 THE COURT: I thought you meant both motions. 4 MR. CARR: No, I don't have it ready yBt. I'm 5 still working on it. 6 MR. CRAUEN: You know, Judge, there's just 7 something that ofFends my sense of logic. Ule're going into B ths third year of a trial. This motion raises the question 9 that no Jury can reasonably be expected to try the Nitro 10 case, which Mr. Carr is doing, and these plaintiffs, and 11 take the medical testimony and to sit there and endurB this 12 kind of case and than try to pick and choose and sort and 13 make sensB out of this case. New what ths Appellate Court 14 said in -- 15 THE COURT: Wait a minute. You're arguing the 15 motion now. 17 MR. CRAUEN: What I 'm saying now his nation af the IB time sequence compels us to go ahead and keep right on 19 trying the case, which is a fairly strong indication to me 20 that he thinks h e 's going to prevail on the motion. That 21 doesn't seem right. It just doesn't seem right that you 22 have to keep trying something when you're saying the trying 23 f it offends the laws of this stats. 24 THE CDURT: Well, I disagree with you. My 163 1 position has always baen on these motions and on requests to 2 adjourn these proceedings and order that these motions go 3 forward that we are going to continue trying it and handle 4 these motions at the time 5 I think I made clear before on the record that if 6 you're seeking an ultimate relief of an end and the end 7 comas because of that seeking of this ultimate relief of an a end X amount of time afterwards rather than earlier, you a still got the end. If the motion is denied, you havB not 10 lost the intervening timB in proceeding on the trial. n I have consistently taken the position, unless its 12 been an impossibility, or some extraneous reason had 13 interfered that this matter should proceed while we were 14 considering these motions, and I 've read both of the motions 15 when they were filBd -- excuse ms. I'm trying to get over a 16 cold. I've read both of these motions when they were filed. 17 My impression then, and I haven't heard anything to change ie it, is that the trial should proceed while we are 13 considering them. 20 I think as far as a priority as to time that your 21 motion on a vcir dire of the jury would takB precedence as 22 far as being handled first. I think also it is the second 23 motion, the motion on the asking for a mistrial, is by the 24 nature of the matters that you state, thB allegations that 164 1 you make, and the relief that you seek a much more 2 complicated and meatier, I guess you mould say, motion, and 3 under the circumstances thBn I think it mould be very 4 reasonable that that one be briefed and argued second, both 5 on the basis of the material allegations of the motions by B comparison, and as to the -- any possibility of time 7 affecting the substance of the motions which it would be B more likBly to do in the voir dire situation, by your own 3 argument, than it would on the mistrial motion. 10 So under those circumstances, what I would like to 11 do, is after the argument on Wednesday, or perhaps on 12 Thursday, if we could agree to a -- well, I'd prefer it on 13 Wednesday, actually, if we could agree to a time schedule 14 for briefing and then ultimately arguB it an the Motion for 15 a Mistrial that you filBd. So we keep it rolling. 16 MR. CRAUEN: Can we fix that calendar now then? 17 THE COURT: Pardon? IB MR. CRAUEN: Can we fix the calendar now? 19 THE COURT: I haven't asked anyone to think about 20 it. I don't know if both of you are ready to give me a 21 suggestion now. I'm willing, 22 MR. CARR: I will work next weekend, your Honor, 23 in order to get thB other motion -- my response to thB other 24 motion read, and I should have a response to that motion 1B5 1 than ready for the week after this coming week. As far as e I'm concerned then we could argue it sometime that following 3 week. The week that I file the response. 4 THE COURT: So next week we*re going to argue this 5 other one and sometime the next week filB a response to 6 that? 7 MR. CARR: Right. B MR, CRAUEN: A week from Monday h e 'll file a 3 response to the Motion for Mistrial? 10 MR. CARR: I should be able to do so. 11 MR. CRAUEN: And we would fils our reply sometime is an UJBdnBsday and argue it on the fallowing Wednesday, so 13 it's a week later; is that what you're saying? 14 THE COURT: Is that acceptable to you? 15 MR. CARR: Fine with me. IB THE COURT: FinB. 17 MR. HEINEMAN: All right. IB THE COURT: After court again. Let mB make that 13 clear. I don't want you to have to come down here in the SO morning expecting to aguB this and wait until Five to do it. SI MR. CARR: Your Honor, thBre is one thing I would SS ask thB Court to consider doing, and it's certainly within S3 the Court's power to do as it wishes, oF course, but as the 54 Court knows, For the past two months Monsanto -- any time 166 1 the Court rules on a motion of this sort, Monsanto files a 2 Motion for Supervisory Order in the Supreme Court, 3 Most recently they took advantage, I don't know if 4 it's deliberate or not, but they took advantage of a rule 5 that says I have to file a reply luithin three days in the S Supreme Court If something is personally served. MaybB it 7 uias five days. I forget which, either three or five. 8 It's impossible for me to, if the court issues 9 orders on these motions, more than -- it's impossible for me 10 to respond, first of all, to more than one a meek because of 11 the trial. They have at least eight pending now in the 12 Supreme Court that they filed. I'm fairly sure there's 13 Bight. 14 This, of course, Mr. Craven is here only because 15 he is their Appellate counsel, and he intends obviously to 16 take these matters on up to the Supreme Court, as is his 17 right to do, but from my viewpoint I can't respond under the 18 constraints of the Supreme Court rules to more than one 19 motion at a time. They caught me in the bind last time. 20 They filed two motions at one time in the Supreme Court. 21 ne I don't even think they served you with, but one you 22 were served with as a respondent, and one you were not a 23 respondent. There were two filed, 24 THE COURT: I didn't gat a copy of one of them. 1B7 1 MR. CARR: I had a hell of a time replying to 2 those, and did not reply to either of those within the time 3 allowed by the Supreme Court because 1 was busy trying this 4 case. 5 Ulhat I would ask if the Court could consider B making rulings an these motions in a framework that would 7 give me an opportunity if they're going to file a motion, B give mB an opportunity to adequately respond without asking S the Court to recess the trial so that I can respond, because 10 the next time I get caught in a switch like that, I don't 11 want to ask leave of counsel to agree far time for me to 12 fils in tha Supreme Court. 13 I want to be timely in the Supreme Court, but I 14 can't be timely when they're doing this and try the case as 15 well< Sc for the sake of -- but I can be timBly if I get IB the weekend between motions to work on them. So what I 17 would ask the Court to do, if it's possible to do it, rather IB than ask For a rBcess From timB to time to write my response 19 to the Supreme Ccurt, that you time your orders so that I 20 will have appropriate timB after the orders in which tD 21 respond to their motions. I don't know whether it's 22 appropriate or not, but I 'd like for thB Court to consider 23 it. 24 MR. CRAUEN: I'd have to say that this 168 1 anticipatory winning that hr. Carr does all the t i m B kind of 'E doesn't -- 3 MR. CARR: Counsel, both of these motions have 4 already bean ruled upon, similar motions have already bBBn 5 ruled upon by the Court. B HR. CRAUEN: Then why don't you have time to 7 respond to them? B MR. CARR: Counsel was even so sure that we S wouldn't Bven need arguments he suggested to the court, 10 ''Judge, we don't need to argue it, just go ahead and rule on 11 it." 12 MR. HEINEMAN: Uhat arB you talking about? 13 MR. CARR: Uhen you Filed these motions. 14 MR. NA5SIF: Said he didn't need oral argument on 15 it. The Judge asked you if you nsBdsd time to File a 16 written response. You said yes. He asked Ken if hs needed 17 oral argument, and Ken said no. 16 MR. CRAUEN: The last time that Mr. Carr Filed 19 some responses in the Supreme Court they were late under the 20 rule. Hs filed a Motion to File Instanter. Lie Filed a 21 written consent to his Motion to File Instanter. Your 22 Honor wasn't served with a copy of something, but it was a 23 casB in which yDu're not a respondent. 24 THE COURT: I understand that. 163 1 MR. CRAUEN: I assumed you didn't want a copy of 2 it. UJhen this Court rules uis may nsBd time to prepare our 3 response in the Supreme Court to Mr. Carr's Motion for 4 Supervisory Crder. Ule would like to think that uie would be 5 able to have the same kind of consideration to respond to 6 his Petition for Supervision. That's a distinct 7 possibility. I don't think uie need to go into anticipatory B rulings. 9 MR. CARRi I have nothing Further to say, Judge. 10 THE CDURT: Fine. Okay. 11 12 CCourt adjourned.} 13 14 15 1G 17 18 19 20 21 22 23 170 1 STATE OF ILLINOIS D s TWENTIETH JUDICIAL CIRCUIT 5 3 COUNTY OF ST. CLAIR 5 4 5 I, KATHLEEN WATSON BRUNSMANN, one of the OFFicial B Court Reporters, do hereby certify that the Foregoing 7 transcript is a true and correct copy oF said transcript. B 9 DATED: March 28, 19B6. 10 11 12 >\u^-- . 13 KATHLEEN WATSON BRUN5MANN, RPR, CSR 14 OFFicial Court Reporter 15 IB 17 IB 19 20 21 22 23 24 171 1 STATE OF ILLINOIS } 2 TWENTIETH JUDICIAL CIRCUIT 3 3 COUNTY OF ST. CLAIR ) 4 5 I, RICHARD P. BOLDENHERSH, CIRCUIT JUDBE, do E hBreby certify that the foregoing transcript is a truB and 7 correct copy of said transcript. B S DATED: March 2B, 1SB6 10 11 1E RICHARD P, BOLDENHERSH, CIRCUIT JUDBE 13 14 15 1B 17 1B 19 20 21 22 23 24