Document jkzq1E501vYd2KQwqzZ2gj4O

1 IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF: ILLINOIS 2 ST. CLAIR COUNTY FRANCES E . KSMNER, et al 4 Plaintiff, 5 VS. MONSANTO COMPANY, 7 Defendant. ') ) ) ) ) ) ... ) ); ) . ': j Nov 30-L-970 8 9 Before the HON. RICHARD P. GOLDENHERSH, Judge 10 11 REPORT OF PROCEEDINGS 12 JURY TRIAL . 1 3 April 10, 1985 14 15 APPEARANCES: IS MR. REX CARR and MR. JEROME 3EI.GFRE.IP. 17 on behalf of the Plaintiffs; 18 MR. JOHN R. 1USGRAVE and MR. JOSEPH MASSIF On beha : of the defendant.- 19 20 ' i KIMBERLY GANG, CSR, RPR, CM 21 Official Court Reporter 22 23 24 1 1 . BE IT REMEMBERED, that onApril 10, 198.5,'the same 2 being one of the regular judicial days of said court, th<a 3 above-entitled cause came on regularly for hearing before the 4 HONORABLE RICHARD ?. GOLDENHERSH ,. one of the -Judges of said 5 Court, at the St. Clair County Building, 10 Public Square, in 6 the City of Belleville, St. Clair County, Illinois. 7 thereupon the following proceedings were h a h 3 (The following proceedings were had in the hearing 9 and presence of the jury) 1 JAMES HIBURE 11 having:resumed the witness stand, being previously sworn, 12 testified further as follows: 13 CROSS EXAMINATION 14 y r .By'v-' . cy 15 MR. REX CARR.: lo Q. Doctor, you recognize 1231A as the paragraph from 17 exhibit 1281 in which you point out the potential substantial 13 risk? 19 A. Yes 20 -MR.,-. CARR: I offer 1281A into., evidence, if it please 21 'the court. 22 'MR.. MUSGRAVE: Okay. The court has already ruled 23 on the exhibit. 24 THE COURT: I will incorporate all of your objections and the rulings. ;2 Q. Doctor,this paragraph which I have placed on this 3 individual board from Exhibit 1281, that was contained as you 4 have indicated in 1281 and the upper right-hand corner of 5 1281 there is a list of persons that received copies of this '6. memo of December 30, 1980, is that correct, sir? 7 In the upper right-hand corner you said? 8 ' Q. Yes. 3 vA.. Yes. 10 Q. And those persons include Gloeckner, Callis, senior 11 vice president Thfodahl and Doctor James D. Wilson, is that 12 correct, sir? 1 3 A. That is correct. 14 k.NQwy' you '-mentioned '.'yourself.'-that you. were not at 1 5 any other meetings in which this matter was discussed, IS presumably if one or several of these persons in this, listed 17 oh the'' document 1281 in the upper right-hand corner , if they 18, were 'at..meetings at which time it was discussed, -they- would, 19 of course, know or should know, at least, if they read your 20 report * should know what you said about the potential 21 substantial hazard that might be present if it were true that 22 the 2,4 dichlorophenol contained 9.5 parts per billion of the 23 tetrachlorodibenzo-p-dioxin? Do you follow that question? 24 A. No, I don't. The question was long enough and had 1! 1 enough parts, I don't. 2 Q. I think we have established yesterday that this 3 paragraph was precipitated or caused by the:^re^x^.t4iat;''^tch:. ;4 sample 703 of 2,4 dichlorophenol was reported to have-9.5 3 parts per billion of tetraehlorodibenso-p-dioxin in it. Do .6 you recall that ;was your test imony yesterday? 7 A. My testimony was that the report saysr yes. There 8 was a tetra there at that level. . 9 Q. My question went beyond that. What precipitated 10 the inclusion of this paragraph in your December 30, 1980, 11 report or critique was the fact that that October 10,1980, 12 report reported 9.5 parts per billion o f ' 13 tetrachlorodibenzo-p-dioxin in it, correct, sir? 14 A. I believe my answer from yesterday was and would 15 still be correct. Today it is hard for me to remember 16 exactly what prompted it but since that appears to be the 17 highest tetra concentration in the report, that most likely 13 is the case, yes. 19 Q. I think we went through this and you correct me. 20 You go through that report again. If there is something else 21 reported that could have precipitated that paragraph; that i 22 have put on this exhibit other than the presence or reported: 23 presence of these;tetras, I want you to let me know. I don't 24 want to be guessing about this. 1 A* I don't seeanything/else, sir. It is hard for me 2 to remember exactly why I did something 6 years ago. O Q. Look at it again and be sure, sir. 4 A. Look at it? 5 MR. MUSGRAVE: Your Honor, the witness has answered' S the question as best he can. Looking at it again. He says 7 it is hard for him to remember. He has fully answered the 3 question and I object to counsel continuing to ask the same 9 question when he has gotten the responsive answer. 10 MR. CARR: I will rephrase it. 11 Q. Look at the report today and see if there is 12 anything else that in your judgment could have or would have 13 precipitated this paragraph other than the reported presence 14 of 9.5 parts per billion of tetrachlorodibenso-p-dioxin? 1 5 A. If you want me to look at it today, I will have to 16 have a copy of it, I did look at it yesterday and I didn't 1 7 see. anything.else at: that time. 13 Q. All right. And presumably,- then, that paragraph 19: would have been read by others, the people to whom it was 20 directed, if they were doing:t'heir job? You, of course, 21 don't know whether:they did or did not but it was there for 22 them to read, wasn't it, sir? 23 A, The paragraph that you have highlighted here? 24 Q. Yes. 5. h ' ' // / / /-'/'.h-/--/ 1 A. Yes 2 Q. And if those persons received copies of the 3 September 15, 1931, memo which you pointed out yesterday, 4 confirmed the presence of the 9.5 5 tetrachlorodibenso-p-dioxin, they presumably would have known 5 then that what precipitated the paragraph describing it as .7 potential substantial risk, they would have known that that 8 was confirmed, wouldn't they, sir, presumably? 9 A. I am sure the connection could be drawn. It is 10 just that 'with that kind of an expiration of time, it is hard 11 to know whether they would remember what I had said back a 12 year before or not. 13 Q. Well., as a matter of fact, the September 15th memo 14 specifically refers to these various other memos, doesn't it, 15 sir? I am handing you now Plaintiffs' Exhibit'1232 and I ask 15 you 'whether or not it specifically refers to your memo of 17 12-30-80 and to the October 10, 1980 report? 13 A. Yes. That is specific reference to my December 30, 19 1980, memo and to the original memo. 20 Q. So that the chronology is all there in the 21 September 15, 1981, memo and does it say who received that? 22 Wilson, Dahm and Hileman ana Gloeckner all received that 23 document, is that correct, sir? 24 v; A. Yes, it is. 5 i-,tYi 1 Q. Handing you now what has been marked Plaintiffs' 2 Exhibit 1284 which has been previously marked by Monsanto as 3 a Monsanto Exhibit 841 and I will ask you if you recognize 4 that as a report dealing with dichlorophenol, 2,4 5 dichlorophenol and in particular batches KSA7005 and 7009? 5 A. Yes. This reports on the analysis of a number of 7 chlorophenols including the ones you mentioned. 8 Q. Now, we have been told before -- strike that. Let 9 me -- Handing you now what has been marked Plaintiffs' 10 Exhibit 1284A . You see that is a copy of the table 2 from 11 that exhibit, do you not, sir? 12 A. Yes, I do. 13 MR. CARR: Your Honor, I ask permission to pass 14 copies of that to the jury. 15 THE COURT: You haven't offered -- 16 MR. CARR; That exhibit is not in evidence. I offer 17 Exhibit 1284 into evidence, if it please the court. 18 THE COURT: Any objection? 19 MR. MUSGRAVE: The same objection as we made 20 previously to the extent that the memorandum deals with OCP 21 or OCP-crude. We have no objection. It deals with other 22 products. We make the same objection that we have been 23 making. 24 MR. CARR: Your Honor -- 7 Hj 1 THE COURT: I will admit it to the extent that it 2 is objected to. It is admitted over objection to the 3 extent. It is admitted without objection. You may pass it 4 to the jury. . 5 HR. CARR: And would- 'the' record also reflect that 5 this exhibit is Monsanto Exhibit 841. It does now bear-- - 7 THE COURT: The necord will so show. 3 MR. HUSGRAVE: May the record also reflect, Your 9 Honor, that I marked this in clarification examination with a 10 witness after the court had overruled my objection and has 11 done so repeatedly with regard to evidence coricefnihg 12 products other than orthochlorophenol and I have, therefore,: 13 responded in view, of.the court's ruling but I for the sake of 14 consistency and Simply maintaining, Monsanto's position with 15 regard'to the relevancy. .16 THE COURT: The record reflects that consistency 1 7 also. The record reflects all of that. You may pass it to 13 ..the .jury. 1 9 '.'(Plaintiffs'; -''Exhibit -3.2-84A,'is passed to the jury.) 20 Q. Doctor Mieure, we have been told previously that 21 the ..letter's and numbers to the left or under the columnT : 22 headed samples can be interpreted to showthedate, the year 23 and the month on the sample, is that correct? 24 A. Yes, sir. 3^" -- 1 Q. And the sample 7005 would have been products of 2 what date? 3 A. Sir, you are right in what you say but I have 4 forgotten the-code. 5 Q. You have forgotten the formula? 5 A. Yes, I have. 7 Q. It is my understanding that this would be April of 3 1981. I have written that down somewhere. I believe it is 9 in evidence as to what it is. And the sample shows, does it 10 not, the tetras being discovered yesterday in the, let's 11 see. In the KM stands for, according to Doctor Hileman in a 12 previous'sample, Plaintiffs' Exhibit 1174, the K stands for 13 the Krumrarich Plant. The letter stands for.the year. M in 14 that case was 1930. Since there is --- and I would assume the 15 A as well that that means it is 1981. The number 2 or the 16 number 4 would mean the month being in this case would be 17 April. So if Doctor Hileman's interpretation is correct, 18 this would indicate that this batch tested on or reported 19 later on October 7th of 1931 would have been taken from the 20 batch manufactured at the Krumrarich Plant in 1981 in April, 21 is that correct, sir? 22 A. Yes. If all the assumptions are correct. 23 Q. And if my math is correct. And, Doctor, it reports 24 there that there are, and the standard used in this instance : . .. 9 ` "~ ' ' :1 -- 1 as well was to quantitate the 2,3,7,8 standard for the 2 tetras, was it not? 3 A. Yes. The tetrachloro standard was the 2,3,7,3 from 4 table 4. 5 Q. And the report indicates that there were 2 parts 5 per billion in the 2,4 dichlorophenol sample referred to that 7 coeluted with that standard, isn't that correct, sir? 3 A. Yes, sir. 9 Q. Handing you now what has been marked Plaintiffs' 10 Exhibit 1176, could you mark this 117SA. Do you recognize 11 1175A? 1176A is table 1 from that exhibit, is it not? 12 A. Yes, it is. 13 MR. CARR; Leave to pass that table to the jury, 14 Your Honor. 15 THE COURT: 1176 has been admitted? 16 MR. CARR: Yes, it has. 17 THE COURT: You may pass it to the jury. 13 (Plaintiffs' Exhibit 117SA is passed to the jury.) 19 Q. Mow, this table 1 shows, does it not, that there 20 were 5 parts per billion o f .tetrachlorodibenzo-p^dioxin in 21 the sample tested? 22 A. Yes. In sample 7005. 23 Q. And that is dated December 4, 1981, is it not, sir? 24 A. Yes. That is the report date. 10 '-r7 1 Q. And could you find Plaintiffs' Exhibit 1174. 2 Handing you now What has been marked Plaintiffs' Exhibit 1174 3 which has previously been in evidence and 1174A is the table 4 3. from that exhibit, Doctor ilieure. And, you find that to be 5 so, sir? You can just take my word for it, Doctor. vie have 5 previously marked it and it has previously been admitted into 7 evidence. This report has a number of isomers there that are 3 identified, isn't that correct, sir, the tetra isomers? 9 'y- ;vA.i;'. :Yes.'V a number of tetra isomers. . 10 Q. Actually there is 1, 2, 3, 4, 5, 6, 7 specifics and 11 an 8th one that has 2 isomers in it, correct, sir? 12 A. That is correct. 13 Q. And it even reports that there is .8 parts per ^ 3.4 billion of the 1,3,7,8 isomer, doesn't it, Sir? 15 A. 8 of the 1,3,7,8, yes, sir. 16 And there is 4 parts per billion of the 2,3,7,8 17 isomer, isn't it, sir? IS A. ; That is what, the report, says and the sample17003.X 19 Q. And this would be a sample that would have been 20 manufactured according to the symbols that Doctor .Eliemail21 told me cpfrectly, January of 1980. The M standing fofflSBO 22 ana the 1 standing for January? 23 A. According to what-you said earlier, yes, 24 O So, these exhibits taken together show that over a n 1 period of time from at least the ones that I have asked you :;2; about today, from January of 1980 into 1981, the 2,4 % dichlorophenol was found to contain 4 tetrachlorodibenzo-p-dioxins and those reports that were more 5 specific than others identified those isomers as therein S quantities eluting as if it were 2,3,7,8 and this report for 7 January of 1980 is more specific than ever and shows that it -3; i s 4 parts per billion of 2i3,7>8TCDD, correct, sir? /% A. Yes. That'is; what it, says. 10 Q. So, you know from your prior examination that as 11 far as the 2,4 dichiorOphenol is concerned, that samples 12 tested in 1979 were found to contain 13 tetrachlorodibenzb-p-dioxin isomers therein, samples tested 1:4 in 1980 were found to have such isomers therein and this 15 sample tested in 1981, albeit of a 1930 sample showed again 15 that there were tetra isomers i n , i t . S o we have got all 3 17 years, '79, 'SO and '31 so far as these documents show having -18 2,3,7,3 or isomers that coelute with 2,3,7,8 without more 19 specificity in 2,4 dichiorophehol, isn't that corret, Doctor 20 /Miefe?v . 21 -A. Yes. .Although in only the one: case is it- - ; : 22 specifically .reported as the 2,3,7,8. 23 Q. Only the one case is that spcifie. That is all 24 that they tried to be specific. They had the capacity to kfY' `SP.- 1 be. Well, your laboratories and the Dayton laboratories 2 reported the information that you wanted to have insofar as 3 your, capabilities Was concerned relative to the ^ 4 tetrachlorodibenzo-p-dioxins, isn't that correct, sir? ; 5 MR. MUSGRAVE: fir. Carr, you are referring to this 6 witness or you and who? 7 MR. CARR: I am referring to you as Monsanto. That 3 is, the knowledge that he has as what Monsantodid at Dayton S and what it reported, what it looked for and what if did at 10 Greve Coeur and what it looked for in Sauget, Illinois. 11 14R. MUSGRAVE: What point in time are you talking 12 about? 13 MR. CARR: For the years, Mr. Musgrave, I think it 14 is pretty clear in the years that I am talking about is '79, 15 '83 and '31. 16 A. We reported the tetras according to the best 17 capability that had in those, over that time period and, 13 of course,: it changed from time to time. 19 Q .i,'-}-..;''nd/:"of course, we have had other documents, I 20 don't know whether I asked you about them but other witnesses 21 have been asked about them, that it was the policy of 22 Monsanto at that time if you couldn't, if you were hot mre 23 specific that when you have a tetra, you should treat it.as 24 if it is all 2,3,7,8 TCDD. You recall that policy at ` r ____ Monsanto or dp you know that to: be the fact? rCi'z, MR. MUSGRAVE: 1 object to the vagueness of the Jv.V- 3 question. For what purposer Mr. Carr? I object to the 4 vagueness of the question, Your Honor. ,5 THE COURT: Overruled. I don't think it is vague. 5 A. Analytically we try to differentiate as best we 7 could between them. What the medical community did with 3 their assessment was something that was outside of my realm . 9 of authority. 10 . All right . Then you are not , you don't know v " i i ': whether it is Correct or incorrect that Monsanto, the 12 company, insofar as its relation to its customers were 13 concerned and insofar as assessing possible health effects of 14 tetrachlorodibenso-p-diosin upon the ultimate users of the 15 product, hre you saying that you don't know that it was the 13 policy of Monsanto to treat all tetras as if it were 2,3,7,3 17 TCDD in assessing health risks? la A. I believe it was our policy but I am not certain. : >1;9V Q. All right. And at any rate, these documents y ;2$' established that there are fetra isomers present in all of v-: % the 2,4 dichlprophenol being manufactured from 1979 through 22 1981, isn't that correct, sir? 23 . MR. MUSGRAVS: Objection, Your Honor. That is a 24 misrepresentation of the evidence that Mr. Carr has put forth . . . i4:-- :v;V;. . . . : : 1 with this witness. If you will look at the sample, Mr. Carr, 2 on the same sample right there, sample KM70O3 there is no ^ 3 detection of tetras in that sample so your reference to all, .4 Mr. Carr, is obviously incorrect. 5 MR. CARR: I am sorry. I didn't mean to say and 6 indeed you are absolutely correct. ^ 7 MR. MUSGRAVE: Ana furthermore, there are many 8 other samples. Mr. Carr suggests that you have already put 9 into evidence that show no detectable tetras. 10 MR. CARR: I agree 100 percent that there are 11 probably in this period of time in 1980 and *81, there are 1 2 probably more samples that showed no detectable tetras than 13 there were samples that showed detectable tetras. 14 Q. Are you aware of that fact, Doctor Mieure? 15 A. I haven't looked at the data recent enough to know 16 that, sir. 17 Q. Mr. Musgrave. and I both agree that that is the 13 case, that there were. I know that is the case. Whether he 19 does or not. I know that the sample's that were tested, more 20 showed no detectable tetras than in fact showed detectable 21 tetras but my question and I did inaptly phrase it. My 22 question is is that we know that 2,4 dichlorophenol being 23 manufactured, that some batches of 2,4 dichlorophenol being 24 manufactured in '79, '80 and '81 contained . Is ' " : - ". 1 tetraGhlorodibeji20-p-diQxin in parts, per billion. We know 2 that, don't we, sir? t;;:y y3. A. According to our best analytical capability, yes. 4 Q. And, of course, if you-were not privy to any 5 customer notification process, you, of course, don1t know 0; whether the customer was ever notified that a particular 7 batch had a tetra in it or one or. more parts per billion of ' 3 tetras in it or not, isn't that correct, Doctor Mieure? 9 A. You are talking about these products, all these 10 products?' 11 Q. Yes. 2,4 dichlorophenoi right now. I think you 12 testified earlier that you were not party to any customer 13 notification? 14 A. That is correct. w 15 Q. All right* Handing you now what has been marked 15 Plaintiffs' Exhibit 1285, Doctor Mieure. You recognize that 17 as a report by -- is it Doctor Taulli or just Tom Taulli? 13 A. I believe it is Mr ./ 19 Q. All right. Do you recognize that as a report by 20 Mr. Taulli with reference to samples of Santophen tested for 21 various periods of time described in,the exhibit? 22 A, Well, I am not certain, sir, whether it is a report 23 in the formal sense of the word. It is 3 data tables. 24 Q. Well, and it has got the author Tom A. Taulli, ;':j ' '\ y :y : 16 ; y/;y vYbyi y h.yhb:\y ?yy;;:y.r.;.: 1 October 15 of '79. I think it is on all 3 sheets, is it 2 not? I don't see a date on the last sheet. 3 A. It is cut off at the bottom but there appears to be 4 his name and a date down there, yes. It appears to be on all 5 3. '/ . ; 6 . Q. All. right. 7 MR. CARR: I offer this 1235 into evidence if it a please the court. 9 MR. MUSGRAVE: Yes, Your Honor. Again, it appears 10 to deal strictly with Santophen. We make the same objection 11 that we made previously. The documentdoes not deal with 12 orthochlorophenol or orthochlorophenol-crude and has no 13 probative value weighed against other considerations. 14 Irrelevant and: immaterial. IS "THE COURT: It will be admitted over objection. IS MR. CARR: Arid ask leave to pass that exhibit, 17 'rather, a page. No, we have got the entire exhibit. That 13 exhibit to the jury, Your Honor. 19 THE-COURT: Fine. Go right: ahead. . 20 (Plaintiffs' Exhibit 1285 is passed to the jury.) 21 Q. Doctor Mieure, you. recognize, 1285A as the last page 22 of that document? 23 A. Yes, sir. 24 Q. And for the record, the handwriting that appears on ',;17..:;V. ': : -"V'. 1 that document, August '78 through April '79 is ray 2 handwriting, Your Honor. It is the date was cut off when it 3 was given to me and I deduced from the document that it was 4 and from the letters that did exist that what was really up 5 there was August '78 to April of '79. 5 THE COURT: Pine. 7 MR. CARR: But I want the record to be clear that 8 that is my handwriting. And offer 1285A into evidence. 9 THE COURT: I will incorporate your same 10 objections. 11 MR. MUSGRAVE: Thank you, Your Honor. 12 THE COURT: And the same ruling. 13 Q. Now, Doctor Mieure, this exhibit shows the date of 14 certain samples and the batch number or sample identification 15 number and the parts per billion of 2,3,7,3 TCDD et al that 16 was identified in each of those samples, isn't that correct, 17 sir? 13 A. Yes, it is. 19 Q. Nov/, the second page of the document., I am sorry, 20 the third page of the document that goes, that is on the 21 board as well goes back as far as August of 1973, August 17, 22 1978, does it not, sir? 23 A. That is the date of the first sample here. 24 Q. And that particular table is somewhat more isomer 18 881 Si! /''v';'!V' 1 specific than the first page, correct, sir? 2 A. Yes.,:' it is. '; ;ihi i 3 Q. Now, that page covering samples.from August of 173 to April of 179 and by the way, the identification code you :5 can see there, it now confirms what I told you before. L 6 stands for '79, M for '80 and A would be 1981 and K would be 7 1973. Do you see that, sir? 'v8 A. Yes. It appears to confirm that. 9 Q. All right. Now, there were in August of 'IS the 10 batch that was tested apparently in October or reported in 11 October of *79 had 14.2 parts per billion of the tetras, did 12 it not, sir? 13 A. In October of *79? 14 Q, The date of this report, October 15th of '79, the 15 date of the report? IS A. I am sorry. Could you please identify again which 17 material- .you are talking about there? I didn't follow 18 .your -- - - 19 Q. The very first sample, August 17th of '73. 20 'A.' Okay.; 21 Q. Shows 14.2.parts per billion ;of the tetra isomers, 22 doesn't it, sir? 23 A. Total tetras, yes., sir. 24 Q. And the next sample shows 26.1 part per billion i9 : il 1 total tetras, doesn't it/ sir? 2 A. Yes, sir. 3 Q. And at this point in time when you are testing '% these products, you have, or this proddct, you have the 5 isomers that allow you to be more specific at least between 3 5 coeluters or 3 isomers. You can quantitate it with 3 7 standards that you have at that time, the 2,3,7,3 standard, 8 the 1,3,6,8 standard andthe 1,3,7,9 standard? 9 A. I am assuming when you say we, now, you mean 10 Monsanto Company? 11 Q. Yes. ''-h"''-'-'--.' .12 A.: :Apparently so because that is the way the data dre 13 reported. 14 Q. 'Prior to .that time if my memory serves me right, up 15 until sometime mid 1979, you had the only the one, or early 15 '79. Not mid. I think you got the second isomer in March 1 7 but any testing that would have been done of, these .sampies , 18 back in 1978 or '79 to the best of your -knowledge'','' the only 19 tetra isomer that you had would have been the 2,3,7,8 20 standard? 21 MR. MUSGSAVE: Well, Mr. Carr, this is .a H D document. You said *73 or '79, 23 MR. CARRs I said '78 * 24 MR. MUSGRAVE: You said '73 or '79, Mr. Carr. ~ 20 : ' '; pi Q. Well, early '79. The only standard you had if you Z2: tested these products back in '78. For instance, this 3 product was manufactured- August 17, 1978. If you had tested 4 that product at that time, it would have revealed 14.2 parts 5 per billion of TCDD, wouldn't it, sir? "6 A. If the analytical methods wert the same and were :/:l consistent, why it would reveal that. 3 Q. Assuming these factors are true. But you could not 9 differentiate. You could not break it down at that time, 10 isn't that correct, sir? 11 A. We could not identify isomers, that is correct. 12 Q. So if what I have advised you before and what you 13 believe to be the case, that the medical department treats 14 all the tetras as if it were 2,3,7,8, you would be and by you 15 I mean Monsanto, you would be obliged to treat all of these IS samples as having TCDD, that should be treated as if it is 17 2,3,7,3 as it appears in this last column of .TCDD, level, . 13 would that be correct, sir? 19 - A. - .No, sir. 20 Q. No, that would not be correct? 21 A. Mo. 22 Q. Well, do you want to correct me on that? 23 A. Well, if one had evidence that it wasn't the 24 2,3,7,8. In other words* that it coeluted with 1,3,S,8 or .-21 ./ '1 ;-n . . .p -/ - h 1! ,":i; coeluted with -- 2 Q. You forgot some. I said in 173. You only got the 3 one isomer in '78, according to the sworn testimony here. 4 A. Okay. 5 Q. We have only got the 2,3,7,3 isomer? A. Evidently I didn't understand your question. 7 ;Q Back up again. You do know that to be the case. 8 You were working in this.department in '78? 9 A. I do know what to be the case, sir? 10 Q. That you had just the 2,3,7,3 isomer. 11 A. That is correct. 12 Q. So, at that time you would have reported, if you 13 had tested these samples using that standard, you would have 14 reported these various levels of TCDD as shown in this last 15 column, would you not, sir? 16 A. We would have reported it that way if that is what 17 we saw on the chromatograph but you just remeisber, sir-- -. 18 Q. We:have already gone through that assumption. 19 :A. But if something didn't coelute, .it would not have 20 been reported as a 2,3,7,8 or coeluter. I think that is the 21 key that we are discussing here. 22 Q. Well, but 1,3,6,8, my understanding is, you have 23 said it, I think you have said it, maybe the others have,said 24 it, that it does coelute with 2,3,7,8? 22~ ' i - 7 .7: ISili MBs A. : No, sir. 1,3,6,8 does not coelute. ,1B 2 Q. Well, then we have had some people who have misled 3 us here, Doctor Mieure, because earlier witnesses have 4 testified that when they report and there is documents in 5 evidence that say and Doctor Wilson has testified to it, that 5 1.3.6.8 coelutes with 2,3,7,8 and you can't distinguish 7 them. You can't separate. You may be talking about all 8 1.3.5.8 -- 9' MR. MUSGRAVE: Just a moment, Doctor Mieure. I 10 object to counsel's speech because it clearly is a speech. 11 His interpretation of the testimony. I object to counsel's 12 erroneous interpretation of the testimony and counsel stating 13 conclusions that he might be drawing from the testimony. It 14 is clearly contrary to the evidence and I object to it and I 15 request that, the court instruct the jury to disregard it and 16 that Mr. Carr ask a question. 17 Q. I direct your attention.to-exhibit ~f 13 MR. MUSGRAVE: Just a moment, Mr. Carr. 19 MR. CARR: I wasn't. I really didn't pay to much : 20 attention to Mr. Musgrave's objection because I knew I couid 21 meet it because I will withdraw the question and whatever he 22 is objecting to and demonstrate what I said is correct. 23 MR. MUSGRAVE: The speech, Mr. Carr, is what I was 24 objecting to. You withdraw the speech? 23 - 3 b m m .:;,1B .s .M tl`~ ,'iH:'"'I 1 MR. CARR: Well, if it wasn't a speech I withdraw 2 it. 3 THE COURT: Let's me rule on that part. That was a ' 4 question and not a speech. So your objection to that part is 5 overruled. The question has been withdrawn and I will allow 6 it to be withdrawn. 7 MR. MUSGRAVE: May the jury be instructed to disregard' it now that he has withdrawn it? --p/ THE COURT: I will reserve ruling on it to see if 10 he can establish it. n Q. Doctor, if you look at Exhibit 1116 which Doctor :;: 12 Wilson has previously identified i.t'.but might be a little :;;;y112: difficult for to you read it up close. 14 A. I think I can read it. -v" 15 MR. MUSGRAVE: What is the exhibit number, Mr. Carr? MR. CARR: 1115. . /h 13 Q. Have you read that, sir?. ' 19 A. I haven't finished it yet. All right. Okay, I 20 have read it. 21 ?:Q> My memory doesn't serve rue to tell me exactly the 22 date of this but it IS either May or March. It wouldn't;be 23 May because it says -- So it would be March or Aprilof 1979? 24 MR..MUSGRAVE: Mr.'Carr -- 24 : It::''; v*` PlJJlIggg "ipilY-y 1 MR. CARR: You haven't seen it? 2 MR. MUSGRAVE: I have it here. This is one page, I 3 believe, out of a month end summary. 4 MR. CARR: That is correct. 5 MR. MUSGRAVE: And I think it is important if you 6 are going by your memory that you go by your memory accordihg 7 to the evidence that you put in and I believe if you look at 8 the appropriate document, we will have the date. 9 MR. CARR: I think you will find it would be March 10 of 179, counsel. 11 MR. MUSGRAVE: Well, I think it is a month end 12 summary dated March but -- 13 MR. CARR: Yes. That is the only date that was on 14 it was March '79. 15 IS March. MR. MUSGRAVE: It comes out after the month of . T \ r y. : ' : ; 17 MR. CARR: I really don't care whether it came out 13 in June or July. It is unimportant ..when it came out. 19 MR. MUSGRAVE: Well, it may be to you, Mr. Carr. 20 Q. You do see that by this time, Doctor Mieure, the 21 testimony is that they do have the 1,3,6,8 isomer standard. 22 Do you understand that? 23 A. Does it say that in there? 24 Q. No, it doesn't say that in there but I am advising |lf 25 4; V' 1 you that that is the fact. 2 MR. MUSGRAVE: Well, I object to by this time with 3 no identified date, Your Honor. 4 - MR. CARR: By whenever this document was prepared. 5 THE COURT: Objection is overruled. 6 Q. And, Doctor, this document addresses the point of 7 inability to distinguish some coeluters from other isomers, 8 does it not, sir? 9 A. Yes, it does. la Q. Nov/, Doctor, whatever the report would be, in 1978, 11 you had no standard other than the 2,3,7,8 standard to use to 12 quantify tetras, isn't that correct? 13 A. That is correct. 14 Q. And at that time while they weren't tested at that 15 time, it is in evidence some 7 samples of Santophen that was 16 tested, one of these documents here, these TCDD levels were 17 in these products whether they were detected or not, isn't 18 that correct, sir? 19 A, The TCDD levels were in the products whether they 20 were tested or not? 21 Q. ;Yes. 22 23 yes, If these are the same samples, I would assume that, 24 Q. The product that was manufactured in '78 and '79 ,ri&l'a* 'Vv : .v 1j'C - ['} >. / t- - ' , 26 contained these levelsof tetrachlorodibenzo-p-dioxinsr did they not/ sir? MR. MUSGRAVE: I object, Your Honor. Q. According to this report? MR. MUSGRAVE: I object, Your Honor. The question calls for pure conjecture and speculation. He is now sRing whether all products contain thse levels. There is not anyone can say that. MR. CARR: I didn't say that. MR. MUSGRAVE: Tlnat is exactly what you said. THE COURT: Objection is overruled. Answer the question. A. The report says that some samples contained some dioxins. ; Q. All of the samples tested at least the tests that were reported shown in this exhibit, they all contained tetra dioxins in addition, it doesn't refer to other dioxins put they all contained tetra dioxins, did they not, sir? MR. MUSGRAVE: I object to it, Your Honor. That is clear misrepresentation of the document that he has in front of him. There are clear samples here where there are none detected at the levels of detection for all. ' MR. CARR: Point out the document, the sample '.shown on 1285A that did not have tetra dioxins and so reported? ';S;'-yVy":'';','-:'^yyV: y ,.' .': '-";''r by'-'. .. yiliilIJS ' ' : y' . . ' > y i Point that out to me. Which one is not -- 2 MR. MUSGRAVE: I thought you were referring to '.V-. j. :f:^:-&; 1285. The entire document. ' ' 4' MR..;CARR: But I am referring from the beginning to ^ exhibit 12S5A, as you know and as the witness knows. V;6 MR. MUSGRAVE: Ho, Mr. Carr. You have been saying' : ' ; y . 7 ; all products. You see, sir? Nov; you are referring : -,.-j:'.'8 specifically to samples, I understand. '.y -: ' . y V ; 9 ': THE COURT: Objection is overruled. Go ahead, Mr. 10 Carr. ; , y - '''ir Q> All of these products, that., were tested and shown by ;:. v.. 12 this chart, that were tested in 1979, but that were 13 manufactured both in '78 and in '79 showed detectable levels 14 of TCDD? 15 MR. MUSGRAVE: You are referring to 1285A? ': r ;/r/.;;.;: is Q. Do they not, Doctor Mieure? 3.7 A. Referring to the chart that is up here, yes. 18 Q. Yes. And, Doctor -- . : .y 19 MR. MUSGRAVE: May the record show Do I y y v"y;''^2b'- understand that to be 1285A? THE COURT: I think the record was clear on what 22 the question referred to. Q. Doctor, insofar as the 2,3,7,8 isomer, is concerned, .. y-.... .2 4 that is those isomers that coelute with 2,3,7,3 now that you BMSyyyyy:' y '?*$<!?M::,< r' . / 2 8 , y ; : j y y ' y - y y y ;y 1 A. Well, that is a standard deviation so that means 2 that the result, the true value is expected to lie within \:3; therev Within 95 percent limits. 4; Q. So where from 1.3 parts per billion 2,3,7,8 TCDD 5 and average it out at 2.3 after having 5 runs, isn't that :<e correct, sir? 7 A. That is what the report says. 3 : Q. Doctor, another batch manufactured in 1979, January 9 30, 1979, has 7.9 parts per million -- parts per billion, 10 rather, of 2,3,7,8 TCDD? 11 A. That is what the report says. 12 Doctor Mieure, you are now aware of the fact,, 13 aren't ybu, sir, that the 2,4 diehloropheno! that was 14 manufactured in February of '79 contained, according to your ; 15 own report, 120 parts per billion of 2,3,7,3 TCDD; according 15 to the University of Nebraska it contained 2600 parts per 17 billion of 2,3,7,3 TCDD; and the Santophen manufactured in L 13 January of 1979 contained 7.1 parts per billion of 2,3,7,8 19 TCDD et al. All of that, all of these have high findings of 20 2,3,7,3 all occurred in the months of January and February of 21 1979, isn't that correct, sir? 22 ;'-MR.:'MUSG5iAVE:" I object to the question. It mis23 characterizes and misrepresents and misstates the evidence, 24 Mr. Carr. You yesterday put in documents with regard to the __ _ _ 30 fi  1 finding of Nebraska. That clearly showed by that document 2 that the finding of Nebraska was all tetras. In fact, 3 included some isomers that did not even coelute v/ith the 4 2,3,7,8 standard. Just for starters. That is the beginning 5 of where you mischaracterized the evidence. i object, Your 6 Honor, to the question as a mischaracterization of the 7 evidence and art attempt to mislead the jury. 8 THE COURT: The objection is overruled. 9 A. Sir, I don't recall 'what University of Nebraska 10 report was. 11 Q. Let me show you Doctor Ward's analysis. 12 ''V''.'MR.:;'MUSGRAyE:Why don' t you show him the report , 13 .counsel? . 14 ':Q. 1169A. Now, does that refresh your recollection, 15 Doctor Mieure? 16 A. I can read what is said here but in terms of does 17 it refresh my recollection, no, it doesn't. Is that a 13 report? . 19 Q. Doctor Brian Ward's memo dated 9-25-79. You do 20 recognize his signature, don't you? 21 A. I'lo, I don't recognize his signature. It says 22 something Ward but I don't recognise his signature. 23 Q. You have not seen his signature? 24 A.. I probably seen it but it has been years. Willi Ml Ml' Q. Who is Doctor Brian Ward? A. He was an industrial hygienistwithMonsanto at ;'v.:v;3' that time. 4 Q. And you do recognize that he described these '.S'. Nebraska samples as having those parts per :billion of the s 2 ,3,7,8 family? ' 7 MR. MUSGRAVE: I object to counsel testifying as to ' 3 what anybody described. The document speaks for itself. 9 MR. CARR; I am- asking-what the document describes. 10 THE COURT: Objection is overruled. 11 A. And your question again ws? 12 Q. The document describes the 2600 parts per billion 13 as being in the 2,3,7,3 family, doesn't it, Doctor Mieure? 14 A. 2,3,7,3 family. Yes, sir. Is this a final report, 15 sir? IS 0. I haven't the vaguest Idea, Doctor Mieure;, These . 17 were reports given to me. 10 HR. MUSGRAVE; Do you have the vaguest idea? . 19 Q. This is a report of Doctor Mieure in which he 20 compares the Dayton findings to the Nebraska findings? 21 A. No, sir. That is not my report. You just said it 22 is a. report of Doctor Mieure. 23 Q. You are correct. Doctor Ward's report in which he 24 compares the Dayton findings to the Nebraska 'findirigs.'.'and-';;' ssaMiiiissiiSS' 1 different dates for the Dayton findings, Juhe 23rd and 2 October 3rd of '79. You see that date also? 3- A. Yes. I would be very surprised if that is a final 4 report, It is probably -- 5 Q. I don't want to get into a hassle with you. It is 6 hot a report at all. It is his analysis, apparently his 7 analysis of what these other final reports said and all I am S directing your attention to is that this Monsanto document 9 prepared by Doctor Ward described 2600 parts per billion, 10 Nebraska report as being in the 2,3,7,8 family, does it not, 11 'sir? 12 tA.y. This particular piece of paper says that, yes. But 13 you can't vouch for what this reports. It may even be 14 telephone notes. 15 Q. I am addressing the objection that Mr. Musgrave MS, made as to what was identified by Nebraska and what was not 17 identified by Nebraska. 13 MR. MUSCEAVS: Well/ you are not, Mr. Carr. You 19 are not addressing it. Show him the report that you put into 20 evidence, Mr. Carr, if you want to address my objection. 21 ME. CARR: Mr, Musgrave :-- 22 THE COURT: I have already ruled on the objection. 23 It need not be addressed, for that matter, and the point that 24 Mr. Carr has chosen to address it, that is proper. You may 33 II 'i- llliSI 1 proceed, Mr. Cair.;/ 2 Q. Doctor Mieure, whether it is 120 parts per billion 3 or 2500 parts per billion is irrelevant to the question that 4 I am asking you. The question that I am asking you, is it 5 not a fact that high tetras were reported in the Santophen or 5 found in the Santophen that were manufactured in January of 7 *79 just as there were high tetras found in the OCP 8 manufactured in January of '79 and just as there were high 9 tetras found in the 2*4 dichlorophenol manufactured in 10 Februaryof -79? Isn't that correct, sir? 11 A. I wouldn'tuse high to Characterize the findings. 12 No. They were detectable. 13 Q. Well, they were above, weren't they, sir, what 14 document for Santophen 1239A describes as probably medically 15 acceptable for Santophen? IS A. I am not familiar with it'. What is the document, 17 sir? 18 Q. You are riot familiar with it? 19 A. Okay. Your question is? 20 Q. These levels of Santophen that were detected in 21 this material that was tested in '79 had a number of samples 22 that Were above the one part per billion level that this 23 document describes Doctor Paget estimating that is quote 24 probably acceptable medically in Santophen, isn't that 34v 1 correct, sir? 2 A. Some of those other numbers were higher than that. 3 Q. Could you answer that question, please? 4 A. I would have to -- 5 COURT REPORTER: These levels of Santophen that 6 were detected in this material that was tested in '79 had a 7 number of samples that were above the one part per billion 3 level that this document describes Doctor Paget estimating 9 that is quote probably acceptable medically in Santophen, 10 isn't that correct, sir? 11 A. Yes, that is correct, but I don't think he is 12 saying that something above that is necessarily unsafe, 13 though. I think that was his judgment that allows certainly 14 if you can get down to that level you have got a safe level* 15 Q. Now, you have discussed that with Doctor Paget, 16 haven't you, sir? 17 A. No, sir. Q. You have discus sed that with Doc tor Wilson, haven' 19 you, sir? 20 A. I haven't. seen' Doctor Wilson. 21 Q. You have discus sed that with the lawyers? 22 A. I have heard it discussed. 23 Q. You have heard it discussed with the lawyers and 24 you got that thought from them, didn't you, Doctor Mieure? 35 CO 1 1 : ;^A. No, sir. ' 2 A ; Q. 3 ' A. From whom did you get that thought? From myself. 4 / Q. You had never seen this document before, Doctor :% liieure. You just got through telling us that? "6- ' . A. I don't know that I have seen the document. I told 7 you the thought, not the document. 3 Q. And you discussed that with who, Mr. Musgrave? 9- A. I don't know who I discussed it with. IO Q. Well, think, think. When did you discuss it with 11 them, Doctor -Misure?' 12 A. When did I discuss it? 13 \ Q. This one part per billion. Whether or not what 14 Doctor Paget meant when, he said one part per billion is 15 probably acceptable medically? Think back hard. 16 A. I believe I was asked what and I don't remember. 17 . Q- i am not asking you that. ' I am asking you to think 18 back '-when you had the discussions and- With whom you had the 19 discussions.;.'-:; 20 A. Within:the last couple of days but T don't remember 21 whom. 22 Q. Who were those persons in the last couple of days 23 you had those discussions with? 24 A. Some of those attorneys. _; ;^ VY 1 Q. Name those attorneys? 2 A. The attorneys that it could have been? 3 Q. No, I want to know the attorneys that you discussed 4 it with, not who it could have been. 5 A. Sir. I don't know who I discussed this with. 6 Q. Think hard. It just happened a couple of days ago, 7 didn't it, Doctor Mieure? 8 A. Yes. 9 Q. It just happened while you were waiting here to 10 come on the stand, didn't it, sir? 11 A. Yes. ' 12 Q. Who was present when you had that discussion? 13 A. I don't recall, sir. 14 Q. What..attorneys were present, sir? 15 A. I don't recall. 15 ^ Q. Was Mr. Musgrave there? 17 A. Possibly. 18 Q. You surely can remember whether you discussed it 19 with Mr. Musgrave? . 20 A. You are implying there was a big discussion of 21 this, sir, and that isn't the case. 22 Q. I am asking you discussed it. Xfith whom did you 23 discuss it? 24 A. I don't remember, sir. 1 V:''0y0^;,-; Give me you are best memory then? 2 MR; MUSGRAVE: I object. It has been, asked and '3 answered. 4 : q * I want your best memory? 5 MR. MDSGRAVE: Just a moment. May I finish making 5 ray objection. I object, Your Honor,.. He has been asked and 7 answered the question and this is just a repetitive question. 3 THE COURT: Overruled. 3 Q. Your best memory, Doctor Mieure? 10 :.'A. . It could have been -- 11 Q. I don't want who it could have been. 12 A. I don't know who it was, sir. 13 Q. Was Mr. Husgrave present? 14 A. ; He may have been. 15 Q. . was Mr. Heineman present? 16 A. He may have been. 17 ;' Q. Was he present or not? 18 .. 'A. I don't know, sir. I really don't. 19 .. Q. Where did the discussion take place? 20 A. Probably in the annex about 3 blocks from here. 21 / Q- And vas Mr. Massif present? 22 A. I don't know, sir. 23 .: q .. Well> tell us who wasn't present? Was Mr. Thiess 24 present? P'.' 38 ffi:. l A. Who is Mr. Thiess. Mr. Thiess must have been 2 absent because I don't know who Mr. Thiess is. ;3- Q. Was Mr. Cornfeld there? 4 A. I don't know Mr. Cornfeld. h.'- 5 Q. Well, name the attorneys that you do know from 5 Monsanto that represents Monsanto? /\v,:-- u 7 A. The attorneys from Monsanto that represent 3 Monsanto?' 9 Q. Yes, that could possibly be the candidates? 10 A. Beyond the group that we have mentioned/ I think 11 you have just about covered them. 12 Q. Well, then it is either Mr. Massif / Mr'. Heineman or 13 Mr. Musgrave/ is that correct, sir? 14 .A. Yes.. . 15 Q. Or could be all 3f couldn't it, sir? 15 A. It could" be. ; , -'i'.'v.. 17 Q. You could have been in a room with all 3 of those J1Lop attorneys/ couldn't you, sir? 19 A. Could be. 20 Q. And -it' "is that discussion that you learned Of what 21 Doctor Paget said and what Doctor Wilson recorded/ Isn't that 22 correct, sir? 23 A. That is when these facts came up. It wasn't ' 24 presented to me as what there is, who said what and where. li I Q. I didn't ask you that. I asked you that is when 2 you learned it? 3 A. Yes. 4 Q. And that is when you determined, when you decided 5 what you were going to testify to that Doctor Paget must have 6 meant that anything above that could also be safe. That is 7 where you made that decision, isn't it, sir? 8 A . I don't believe that is what I said that anything 9 above that could be safe. 10 Q. Well, what did you say? 11 A. I believe I said that that isn't saying that a 12 level above that would be harmful. 13 Q. And you don't interpret that as saying that, I take 14 it? 15 A. I think he made a judgment that a level below that IS certainly is safe. 17 Q . Ana -- 18 A. He is not saying a level above it is not safe. 19 Q. Is it saying that a level.above it is safe? 20 A. It is not saying that it is not, it is not saying 21 that it is. 22 Q. Yes. Indeed. That is exactly right, isn't that 23 correct, Doctor Mieure? So he is not saying with this memo 24 that anything above one part per billion 2,3,7,8 TCDD is US ---- ^ . . . ; : 1 safe, is he, sir? 2 A* He is not saying that it is safe, no 3 Q. Excuse me. That is exactly right. And, therefore, 4 one part per billion could indeed be unsafe, couldn't it, 5 sir? 6 A. Could indeed be. 7 Q. Yes? 8 .A . Yes. 9 Q. And that is what Doctor Paget is telling you people 10 at Monsanto that is manufacturing this product. That above 11 one part per billion could be medically speaking unsafe, 12 isn't that correct, sir? 13 MR. MUSGRAVE: I object to that, Your Honor. 14 THE COURT: Objection is overruled. 15 A. I think he is saying that if you -- 16 Q. Could you answer that question? Read the question 17 back to him and you can say yes and you can say no, you can 18 say anything that is responsive to that question. 19 MR. MUSGRAVE: You asked him, Mr. Carr, what Doctor 20 Paget was telling him and he is about to answer it. 21 MR. CARR: That isn't what I asked him. 22 COURT REPORTER: And that is what Doctor Paget is 23 telling you people at Monsanto that is manufacturing this 24 product. That above one part per billion could be medically _ Mm _ _ __ 1 -- ' ;V 1 speaking unsafe, isn't that correct, sir? 2 A. He was telling us if we he can get down to that 3 level we can be certain we have a safe product. 4 Q. Doctor Mieure, answer that question, please, that I 5 asked you. I asked you whether or not what I said was 6 correct. You can say yes, it is correct. You can say no, it 7 is not correct. I am either wrong in what I said to you or I 8 am right in what I said to you. Please answer that 9 question. 10 A. Well, I don't know whether you are wrong or right. 11 Q. Would you read the question back to him again and 12 answer that question? 13 COURT REPORTER: And that is what Doctor Paget is 14 telling you people at Monsanto that is manufacturing this 15 product. That above one part per billion could be medically 16 speaking unsafe, isn't that correct, sir? 17 A. Well, I don't believe this is the question that can 18 be fairly answered with a yes or no. 19 MR. CARR: Your Honor, would you direct the 20 witness -- 21 THE COURT: Doctor Mieure, you have to answer. 22 MR. MUSGRAVE: Are you directing him to answer yes 23 or no? 24 THE COURT: I am directing him to answer yes or no. 1 MR. MUSGRAVE: May 1 be noted that the witness 2 is -- 3 THE COURT: The question is clear. Doctor Mieure, 4 please answer the question yes or no. 5 A. The question again was he -- 6 Q. Could you read the question again? 7 THE COURT: It has been read twice and stated once 8 and I think that is enough. Doctor Mieure, answer the 9 question. 10 A. Okay. Well I truly have forgotten but I believe 11 the answer is yes. 12 Q. Doctor Mieure, in point of fact, at least by 13 October 15, 1979, somebody at Monsanto, if they read Tom 14 Taulli's report, knew that of the batches that were 15 manufactured in 1978 and 1979, 1, 2, 3, 4, 5, 6, 7, 8 of 16 those batches or 9 of those batches contained 2,3,7,8 et al 17 isomers above the level of one part per billion, isn't that 18 correct, sir? 19 A. Sir, I am not sure there is a report. You said if 20 there was a report. 21 Q. The document, Doctor Mieure, that is 1285A, isn't 22 that correct, sir. That 9 contain 2,3,7,8 TCDD et al above 23 the level of one part per billion? 24 A. I guess a smaller number, sir. You are talking 43 ifi v"1'};l) 1 about the 2,3,7,8 et al? 2 Q. That is right. You get 9? 3 A. Could I see once again. 4 Q. 1, 2, 3, 4, 5, 6, 7, 8, 9? 5 A. Yes, sir. 6 ~ Q. And the -- you don't know, do you, sir, whether or 7 not all of the, and in addition to the ones that had 9, there 8 is 1, 2, 3, 4 additionals that contain a half of one part per 9 billion, isn't that correct, sir, of 2,3,7,8 TCDD et al? 10 A. Yes. 11 Q. And Doctor Mieure, I take it you don't know whether 12 or not this information was ever disseminated to the people 13 that make Lysol, do you, sir? 14 A. No, sir. I don't know that. IS Q. All right. And you, of course, wouldn't know how 16 the people that make Lysol would react if they knew that the 17 product that was being shipped to them contained TCDD levels 18 not just the 2,3,7,8 levels that we have described but the 19 all the TCDD levels that isdescribed in this Exhibit 1285A? 20 You don't know how they would react to that, do you, sir? 21 A. No, sir. 22 Q. Doctor Mieure,because I don't want to get into it 23 if you were not party to itbut were you ever at any 24 discussion at any level in which it was discussed whether or ---- -- -------- -- 44 ------- ---- ---------- -- . --------- -- 1 not Lehn and Pink or Sterling Drug Company should or should 2 not be advised of these things that are contained in this 3 Exhibit 1265A? 4 A. I believe the question was was I every in any 5 meetings of that type? 6 Q. That is correct. 7 A. No. I was never ih any meetings of that type. 8 THE COURT: Mr. Carr, is this a good point for a 9 short break? 10 MR. CARR: Yes, Your Honor. 11 THE COURT: Ladies and gentlemen, we will take a 12 short recess at this time. I would remind you and this will 13 go for any other breaks that we take during the day that you 14 are not to discuss this matter among yourselves, with anyone 15 outside the jury panel or as of yet form any opinions or 16 conclusions about the matters on trial. Court will be in a 17 short recess. 18 COURT RECESSED: 19 (The following proceedings were had in the hearing 20 and presence of the jury) 21 JAMES MIEURE 22 having resumed the witness stand, being previously sworn, 23 testified further as follows: 24 45 III 1 CROSS EXAMINATION 2 ' B* " 3 MR. REX CARR. 4 Q. Doctor Mieure, turn to the front page of document 5 1285, if you would, 1285A, that is the last page of the 6 document, refers to the production from August 17th of *78 7 through April 29th of *79, does it not, sir? 8 A. August 17th through April 29th of '79, yes, sir. 9 Q. Now, the front page deals with the production 10 period from May 16th of '79 to September 12th of '79, does it 11 not, sir? 12 A. It appears to, yes, sir. 13 Q. So in these documents we have the production 14 covered from August, at least some of the material produced 15 in that period of time, from August of '78 through September 16 12th of '79, a period just slightly over one years time, 17 correct, sir? 18 A. Yes, sir. 19 Q. All right. And on that front page of 1285, it 20 shows, does it not, that in May of '79 there were 2 batches 21 that had one or above part per billion of 2,3,7,8 TCDD et 22 al. In June again there were 2 out of 3 batches that had 23 above one or above 2,3,7,8 TCDD, isn't that correct, sir? 24 MR. MUS6RAVE: Et al, Mr. Carr. --------------------- -- ---- -- 46" - -------------------------------- -- ---------- --- ------------------ ----------- ,. 1 Q. Isn't that correct, sir? 2 A. Yes, it is. 3 Q. And in July they were all below the detection limit 4 of .5, is that correct, sir? Detected but was below that .5 5 limit, correct, sir? 6 A. I am trying to see what the designation, what that 7 caret actually means in this case. Whether it means detected 8 or not detected. It is somewhat ambiguous. It really should 9 be defined and I don't see it defined exactly what that 10 means. 11 Q. Well, my understanding from other documents, I 12 don't know, I don't recall whether you have testified to it 13 or not but other documents where you have the none detected, 14 you put ND caret and then your detection level. Where you 15 have detected something that may be the isomer you re 16 looking for, you don't use the initials ND, you just put the 17 caret and then your detection limit or the level at which you 18 detected it not more than? 19 MR. MUSGRAVE: We will object. 20 Q. Is that correct, sir? 21 MR. MUSGRAVE: I object to Mr. Carr's 22 understanding. If that purports to be his understanding 23 based upon the evidence because it is a mischaracterization 24 and misrepresentation of the evidence. -- -- _____ . . ---- ;; 'V:.v 1 THE COURT: Overruled. 2 A. My group generally would have reported it the 3 you said. Not all analytical chemists were consistent 4 am not completely certain how Mr. Taulli reported. 5 Q. Well, the way that you criticized, well I don1 6 know whether you criticized that particular point but you 7 pointed out that the letters ND should be used where it is 8 none detected? 9 A. Yes, I did, and I also pointed out that it would be 10 best to show right on the document it is what your 11 abrviations meant. 12 Q. All right. So in any event, be that asit ma 13 whether there was or was not, it was below one part per 14 billion that Doctor Paget estimated was probably medically 15 acceptable in the document that we referred to earlier, isn't 16 that correct, sir? That is. All the batches for July? 17 A. July production, yes. 18 Q. And in August of '79 there was of the 2 batches 19 reported, one had one part per billion of 2,3,7,8 et al and 20 that was August 31st of '79, is that correct, sir? 21 A. That is correct. 22 Q. And now, do you have any knowledge, Doctor Mieure, 23 that from September 12th of '79 for a period of the next 3 24 years, do you know whether or not any Santophen was eve r . -- :----------- - ---------- ---------- ;------------------------ f S ----------- -------------- ---------- -- -- -- 1 again tested to discover whether or not it had one part per 2 billion or more of 2,3,7 r8 et al in it? 3 A. It is my recollection that Monsanto set up a 4 routine screening procedure for monitoring Santophen. 5 Q. Well, they did on paper but my question is, do you 6 have knowledge of any single Santophen sample that was tested 7 between that period of time and the next 3 years? 8 A. Do I have personal knowledge of it? 9 Q. Yes. Have you ever seen any report? Do you have 10 any knowledge that Santophen was tested again after September 11 12, 1979, up to late 1982, a period of some 3 years? 12 A. I have no personal knowledge of that but I would 13 not have expected to have had that knowledge. 14 Q. All right. You don't have any recollection of ever 15 having tested it, I take it, do you, sir, in that period of 16 time? Of course, you wouldn't remember specifically anyway, 17 would you, sir? 18 A. I would not have tested it myself specifically 19 because I was a manager at that time. 20 Q. Now, if these levels of -- you had these kind of 21 levels in '78 and '79. You changed your, you quit using 22 caustic in April of '79 but even after you quit using the 23 caustic, you were still getting 2,3,7,8 et al at one and 24 above, weren't you, sir, according to these documents? / 49 1 A. Sir, I don't know when these changes took place. 2 Q. Well, if you would assume, if you would, that they 3 quit using the caustic in the chlorinated phenols, according 4 to the documents we have in evidence, sometime in April of 5 '79. That still notwithstanding whatever change in processes 6 may or may not have taken place in that period of time, they 7 were still detecting or they were still being manufactured 8 Santophen that had 2,3,7,8 TCDD et al in it after that change 9 in manufacturing process, isn't that correct, sir? 10 A. Based on these results? 11 Q. Yes. 12 A. These results indicate -- 13 MR. MUSGRAVE: You say 2,3,7,8 et al, Mr. Carr? 14 MR. CARR: That is what I said. > 15 MR. MUSGRAVE: You said 2,3,7,8, Mr. Carr. 16 Q. Isn't that correct, Doctor Mieure, according to 17 these documents? 18 A. According to these documents, yes. 19 Q. And do you have, do you know, have you discussed 20 with counsel, do you have any knowledge from any source 21 whatsoever that a single other batch of Santophen was tested 22 after September 12th of '79 up until late '82? 23 A. As I just testified, no, I don't know that but I 24 would not have effected to know that. ' ; : ~ "3U -'; : 1 Q. Now, and these results are erratic. Sometimes you 2 get detectable levels of Santophen in the product, according 3 to these reports, and sometimes you don't, according to the 4 first page of document 1285, isn't that correct, sir? 5 A. I don't know if I would describe it as erratic but 6 sometimes you appear to get it and sometimes you don't. 7 Q. And you never really know whether the product 8 manufactured then has the 2,3,7,8 et a1 isomer in it without 9 testing it then, would that be a fair conclusion to make, 10 sir? 11 A. That you would never know. 12 Q. You don't know that it is in there since you don't 13 have consistent results. Since one month you can detect it 14 and the next month you don't detect it and then the following 15 month you detect it again or the one batch you detected and 16 the next batch you don't and one batch you detect and the 17 next batch you don't. If you don't test it, you will never 18 know whether it is there or not^ will you, sir? 19 A. At these low levels, no. 20 Q. And, of course, if you don't detect it, if you 21 don't test it, you wouldn't detect it and if you wouldn't 22 detect it you can't notify anybody that it is there, can you, 23 sir? 24 A. Well, I don't know why you would want to notify but 51 1 2 Q. I didn't ask you that Doctor Mieure, did I? 3 A. No, sir. 4 Q. And don't you think that a customer, since you 5 brought up the customer, don't you think that a customer 6 ought to have the right to know what is in the product he is 7 buying from you? 8 A. I guess that would depend on whether it is a 9 significant finding or not. 10 Q. Whether who judged it was significant? You or the 11 customer? 12 A. Whoever had the information. 13 Q. Well, if you don't pass that information on to me, 14 I can't make a decision whether it is significant or not, can 15 I, sir? 16 A. Who are you representing in this? 17 Q. The customer. If you don't give me the 18 information, I can never make that decision, can I, Doctor 19 Mieure? Isn't that correct, sir? 20 A. You are talking about the customer now? 21 Q. Yes, the customer. 22 A. The customer couldn't make the decision if he 23 didn't have the information, no. 24 Q. And, do you know of any reason why you wouldn't 57 i 1 want to tell your customer that it does contain dioxins in 2 the product you are selling? Can you think of any reason why 3 Monsanto wouldn't want to tell their customers of that? 4 A. Sir, there are hundreds of trace organic chemicals 5 in every product and you can't possibly relate all of those 6 to a customer. 7 Q. But that isn't really what I asked you. I asked 8 you whether or not you know of any reason why Monsanto would 9 not want to tell its customers that the product it is 10 shipping to it does or does not contain 2,3,7,8 isomers et 11 al? 12 MR. MOSGRAVE: I object to the question as calling 13 for this witness to speculate and state conjecture as to what 14 somebody else may or may not think with regard to reasons why 15 they would or wouldn't do something. It calls for him to 16 state such testimony. It is improper and I object. 17 THE COURT: Overruled. I think it calls for his 18 opinion within an area which he has expertise. Overruled. 19 .A. Okay. No. I don't know what criteria Monsanto 20 used to decide when and when not to notify a customer. 21 Q. Doctor, I don't think that is exactly responsive to 22 what I asked you. Do you know of any reason why Monsanto, 23 can it occur to you, any reason why Monsanto might not want 24 to tell the people that make Lysol whether what they are -- SSI . "3 T " :" : 1 shipping them does or does not contain 2,3,7,8 TCDD? 2 A No, sir. 3 Q. Okay. You don't know whatr how Monsanto views the 4 Lehn and Fink, whether or not they would quit buying the 5 product if they discovered that there were dioxin isomers in 6 the product. You don't know that? ~ 7 MR. MUSGRAVE: I object to that. That calls for 8 the man to speculate and to state conjecture as to what Lehn 9 and Fink or people at Lehn and Fink would or would not think. 10 THE COURT: Overruled. 11 Q. I am asking his knowledge. 12 A. 1 have no knowledge of that issue, sir. I have no 13 contact with Lehn and Fink. \ 14 Q. But in any event, you do know that if you don't 15 pass the information on* you and I can differ as to what is 16 significant, can't we, sir? Doctor Paget says one part per 17 billion is probably safe but even he is using the word 18 probably safe. He doesn't know that and he says it is 19 probably acceptable medically. Even he isn't being 100 20 percent sure when he uses the word probably, isn't that 21 correct, sir? 22 MR. MUSGRAVE: I object to that, Your Honor. 23 Calling for this witness to testify as to what Doctor Paget 24 thinks or doesn't think. Doctor Paget has been here. He has -- ----- :------ :-- --------5"4-------- :-- :----:-- ;-- -- -- -- -- ~ ~ 1 testified and I also object it is a mischaracterization and 2 misrepresentation of the testimony of Doctor Paget. 3 THE COURT: Overruled, on both grounds. 4 A. And the question again, sir, was? 5 MR. MUSGRAVE: Let me add that that is also a 6 question that has about 5 questions in it and I object to the 7 multiple nature of the question. 8 THE COURT: Overruled. 9 A. That is what I was going to ask you. Which of 10 those would you like me to answer? 11 Q. The one that ended up isn't that correct that he is 12 not 100 percent sure that one part per billion is acceptable 13 medically? 14 MR. MUSGRAVE: The same objection with regard to 15 speculation and conjecture. Requiring the witness to 16 interpret. 17 THE COURT: Same ruling. Overruled. 18 A. Doctor Paget used the word probably. I don't know 19 the context in which he used it. 20 Q. My question is, though, that that means that using 21 the word probably means that he isn't 100 percent sure that 22 it is acceptable medically, isn't that correct, sir? 23 MR. MUSGRAVE: I object. It has been asked and 24 answered. On the same basis. Calling for conjecture and on ' ' : : 55 1; : --~ .::- 1 what Doctor Paget meant. 2 THE COURT: Overruled. 3 A. I believe it is Doctor Paget's opinion that is 4 stated there and so he put it down as probably because it is 5 his opinion. 6 Q. And that means he is not 100 percent sure, isn't 7 that correct, Doctor Mieure? 8 MR. MUSGRAVE: May my objection to these continued 9 questions requesting this witness to speculate and to draw 10 conclusions as to what Doctor Paget meant be a continuing 11 objection, Your Honor? 12 THE COURT: jit is noted as a continuing objection. 13 A. Which means he is not 100 percent sure was your 14 question, I believe? 15 Q. Yes. 16 A. Scientists are seldom 100 percent sure of anything. 17 MR. CARR: Your Honor, would you direct the witness 18 to answer my question. 19 THE COURT: Doctor Mieure, you have to answer the 20 question directly. 21 MR. CARR: And ask the jury to be instructed to 22 disregard his response. 23 THE COURT: The jury is so instructed. It was not 24 responsive. 5F 1 A. Which means, the question again was which means he 2 is not, which means -- 3 MR. CARR: Would you direct the witness to answer 4 the question? 5 THE COURT: Doctor Mieure, please answer the 6 question. 7 A. Was the question, I don't know whether yes or no is 8 the answer. Was it directed as a positive question or as a 9 negative question? 10 Q. Could you answer the question please, Doctor 11 Mieure? 12 A. I am not sure what the question was, sir. 13 Q. You are not sure what it is? 14 A. I am not sure whether you asked it in a negative 15 time. 16 Q. Doctor Paget isn't 100 percent sure, is he, sir? 17 A. He doesn't appear to be. Scientists seldom -- 18 MR. CARR: Would you direct the witness to answer 19 the question again? 20 A. I don't know whether he is or not, sir. 21 THE COURT: Doctor Mieure, please answer the 22 question. 23 MR. MUSGRAVE: Well, I object. He has. He said he 24 doesn't know whether he is or he is not. That is his answer. " .: : .. " " 57 : ' ' : " 1: "