Document jm9Xr2NbBeKa8jOYgyxkDZk25

1 IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS 2 ST. CLAIR COUNTY 3 FRANCES E. KEMNER, et. al. ) ) 4 Plaintiffs, ) ) 5 VS. ) NO: 30-L-970 ) 6 MONSANTO COMPANY, ) ) 7 Defendant. ) 8 9 10 REPORT OF PROCEEDINGS 11 Before the HON..RICHARD P. GOLDENHERSH 12 JURY TRIAL 13 July 12, 1985 14 15 APPEARANCES: 16 Mr. Rex Carr Mr. Jerome Seigfreid 17 On Behalf of the Plaintiffs; 18 Mr. Kenneth Heineman Mr. Joseph Nassif 19 On Behalf of the Defendant. 20 21 22 23 Debra M. Musielak, CSR, CM 24 Official Court Reporter 1 / .. . - JlfF*.t*1.^l^+X >^3 r,'*;Tv ;U*r'i'X\p*r-J'*r / - ^ .'1r,* 1 IHPEX 2 3 WITNESSES CALLED ON BEHALF OF THE PLAINTIFF: 4 1. DR. GEORGE ROUSH (2-1102) 5 Cross Examination.................... 6 '7 3 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 p a g e ': ,` 2 , '' 1 SXMBIJS. 2 Page Identify.d 3 4 EXHIBITS SUBMITTED ON BEHALF OF THE PLAINTIFF: '5 Plaintiff's Exhibit Wo.: 1485 (report) 0 1486 (report) .... 5 * 1487 (report) 7 1488 (Page from 1488A). . . . . 7 1483A (report) 8 1489 (report) 1489A (blow-up 1483) . . 9 9 1430 (memo) . . . . . 109 149 0A (blow-up 1490) io- 1491 (memo) . 1491A (blow-up 1491) . . . . . . n i * 11 1492 (report) 1492A (blow-up 1492) . . 12' 1493 (memo) . 1494 (report) 13 149 4A (Part of 1494) . . 1494B (blow-up 1494A). . 14 1495 (report) 15 16 17 - 18 19 20 21 22 23 24 Page; Admitted .3 9 .9 .107 .103 .109' ,110. .111 .111 .112 .113 .160 .161 .161 .173 1 BE IT REMEMBERED, that on the 12th day of July, 2 1985, the same being one of the regular judicial days of said 3 court, the above-styled cause came on regularly for hearing, 4 before the HONORABLE RICHARD P. GOLDENHERSH, one of the 5 Judges at the St. Clair County Building, 10 Public Square, in 6 the City of Belleville, County of St. Clair, State of 7 Illinois. Whereupon the following proceedings were had; 8 COURT CONVENED: 9 THE COURT: Ladies and gentlemen, we are going to 10 vary the schedule a little bit. We are going to take a break 11 around five minutes to ten. One of the lawyers in our 12 Circuit, Earle McCaskill, is being sworn in as an Associate 13 Circuit Judge. I'm supposed to be at the swearing in at ten 14 o'clock. We will break around then and resume immediately 15 after the swearing in, approximately five to 10:00 to 10:30. 16 Just like the swearing in of attorneys, something like this 17 is a public thing. If you'd like to see it, you are welcome 18 to do so. Mr. Carr, you may proceed. 19 20 DR. GEORGE _ROUSH 21 (being called as a witness on behalf of the Plaintiff, under 22 Section 2-1102, upon being previously sworn, continued t o - i' 23 testify as follows) 24 CROSS EXAMINATION 1 BY MR. REX CARR 2 Q. Doctor, I'd like to hand you Plaintiff's Exhibit 3 1485 ask you to see if you recognize that as a letter written 4 by Dr. Barnes with attachments that is a part of your 5 Department of Medicine and Environmental Health? 6 A. Yes, sir. 7 MR. CARR: Offer 1485 into evidence if it please 8 the Court. 9 THE COURT: Any objection? 10 MR. HElNEMAN: Your Honor, we would object on the 11 basis that it apparently has to do with a request about Agent 12 Orange, not the product in question, we think it's irrelevant 13 to the issues of the lawsuit. And further, I don't think 14 adequate foundation has been laid for submission. Object to 15 it on that basis. 16 MR. CARR: Your Honor, the document deals with 17 chlorinated phenol manufactured by Monsanto. It demonstrates 18 their attitude toward their chlorinated phenols and dioxin 19 content thereof. It illustrates and is relevant on the issue 20 of punitive damages. 21 THE COURT: Admitted over objection. 22 Q. (by Mr. Carr) Dr. Roush, this exhibit deals with a 23 telephone call that your department received relative to a 1-- 24 the two 50-gallon barrels of what had contained the chemical 1 substances'that have been referred to in the past as Agent 2 Orange, is that correct, sir? 3 A. Yes, sir. 4 Q. Now, .the first drum, or at least each barrel in 5 question according to this call, had been purchased from the 6 Granite City Arsenal in 1965, do you see that, sir? 7 A. Yes, sir. 8 Q. And, the one or two gallons remaining in each drum 9 according to the label apparently on that drum was 50 percent 10 2,4-D, which is the chlorinated phenol and 50 percent 11 2.4.5- T, which is a chlorinated phenol, is that correct, sir? 12 A. Phenoxy herbicides, not phenols. 13 Q. Well, it's a derivative? 14 A. It's a deriative of it. 15 Q. Yes. And, it is the -- that is the make-up of 16 Agent Orange, wasn't it, sir, it was formulated so it could 17 be 50 percent 2,4-D and 50 percent 2,4,5-T? 18 A. I think there really is not 2,4,5-T, they are the 19 esters of 2,4,5-T. The second would be Agent Orange to me, 20 not the first one, 21 Q. Well, in any event the first one has 2,4-D and 22 2.4.5- T both in it? 23 A. Yes, sir. 24 Q. And.you, of course, knew that the 2,4,5-T 1 manufactured by Monsanto in 1965 contained TCDD at levels of 2 40 to 55 parts per million, didn't you, sir? 3 A. I'm sorry, I didn't hear that percentage. 4 Q. You knew that the 2,4,5-T manufactured by Monsanto 5 in 1965 contained TCDD at the levels of 40 to 55 parts per 6 million, some of the batches, did you not, sir? 7 A. I don't recall the numbers. 8 Q. I'll hand you Plaintiff's Exhibit 1486, ask you to 9 read that and see if you recognise that as a Monsanto 10 document referring to what you had stated in the past as to 11 the dioxin content of the 2,4,5-T manufactured in 1965 by 12 Monsanto, or at the very least, see if it refreshes your 13 recollection as to what you knew about the dioxin content of 14 that 2,4,5-T? 15 MR. HEINEMAN; Let me object, Your Honor, to asking 16 him any questions about this document. There is nothing on 17 this document here that has just been marked 1486 that 18 identifies the author. Doesn't identify the recepient. 19 There is no indication that Dr. Roush has ever seen it 20 before, and I would object to any questioning of the witness 21 about that document on that basis. . 22 THE COURT: I think it's been posed to him to 23 refresh his recollection. For that purpose I don't think your objection is -- is accurate. The objection is 1 overruled. At this point in time. 2 Q. (by Mr. Carr) Does it refresh your recollection, 3 Dr. Roush, as to the TCDD content of the 2,4,5-T produced at 4 Nitro in 1965? 5 A. Yes, sir. 6 Q. And, you indeed do recall that the dioxin content 7 was 40 to 55 parts per million, do you not, sir? 8 A. I don't recall this. I'm not sure how accurate 9 this reflecting -- but I'm assuming it is. 10 Q. Well, I'm asking right now whether or not that 11 refreshes your recollection. I have plenty of other 12 documents, Doctor. 13 MR,' HEINEMAN: Your Honor, i object to the \ 14 questioning. 15 Q. To help you if you have no memory of it. 16 MR. HEINEMAN: I object to the question as being 17 misleading. The document says an average of 6 to 8 parts per 18 million from *66 to *69 and three samples measured from'40 to - 19 55 parts per million in 1965, and he's implying that all of 20 it at that level, and X object to it. 21 THE COURT: Objection is overruled. 22 Q. (by Mr. Carr) Could you answer that question, 23 please, Doctor? Doctor, it refreshes your recollection that' 24 the 2,4,5-T or at least some of the 2,4,5-T manufactured in 1 1965 had dioxin content TCDD at the levels of 40 to 55 parts 2 per million? 3 A. This is not my statement. 4 Q. Dr. Roush, X didn't ask you whether it was or not, 5 it refers to things that you have said in a letter to Dr. 6 Suskind, does it not, sir? 7 A. Yes, sir. 8 Q. Now, does that, first of all, does it accurately 9 quote you as to what you told Dr. Suskind? 10 A. I don't know. 11 Q. Secondly, does it refresh your recollection as to 12 what dioxin content there was in the 2,4,5-T manufactured in 13 1965? 14 A. It's in the range, but that's all I can say. 15 Q. All right. Doctor, I'll hand you in addition 16 Exhibits 1487 and 1488, and ask you to take a look at those, 17 if you would. See if you recognize those as Monsanto 18 documents dealing with the dioxin content of the 2,4,5-T 19 manufactured by Monsanto at Nitro, the one I just gave you is 20 the second numbered document and this is the first numbered 21 document, i don't recall the numbers. The .single page 22 document is numbered 1486, is it not, Doctor? ( 23 A. Yes, sir. The old one, this was 86, this is 87. '. 24 Q. All fight. The one that says from Udell's graph is 1 1487, correct, Doctor? 2 A. Yes, sir. 3 MR. CARR: And then the next documents here would, 4 be 1488, offer those two document into evidence if it please 5 the Court. 6 MR. HEINEMAN: Your Honor, we would object to them 7 on the basis that there is no identification of author. No 8 identification of recipient. No indication Dr. Roush has 9 ever seen either one of them before. There is no foundation 10 laid for their admission whatsoever, and in addition, 11 Plaintiff's Exhibit 1488 is obviously two random sheets taken 12 from some other document. It's not complete. There has got 13 to be 33 pages missing. 14 MR. CARR: Yes, if you want the complete, mark that 15 1488 A. 16 Q. (by Mr. Carr) Doctor, who is H. C. Gott, Jr. 17 A. I can't characterize -- X think he's an industrial 18 chemist. 19 Q. Employed by Monsanto, is he not? 20 A. Yes, sir. 21 Q. Hand you now what's been marked Plaintiff's Exhibit 22 1488 A, ask you to turn to page numbered, well, the number is 23 on the document that I've given you here that's 1488, C21175, 24 please 1 A. This number? 2 Q. That's correct, and is the page that's part of 3 Exhibit 1488 contained in Exhibit 1488 A? 4 A. Which exhibit are you saying? 5 Q. Right here, 1488 is that page, is it not? 6 A. Yes, sir. 7 MR. CARR: Counsel, would you like to see it? 8 MR. HEINEMAN: Yes, please. Your Honor, did the 9 Court rule on the offer? 10 THE COURT: No, I haven't ruled on either one of 11 them. 12 MR. HEINEMAN: Our objection still stands with 13 respect to 1487 and 1488. I don't believe 1488 A has been 14 offered, has it? 15 THE COURT: Are you offering 1488 A? 16 MR. CARR: No, Your Honor, just to show that 1488 17 is a page from 1488 A. 18 THE COURT: Okay. 19 MR. CARR: I see no point in offering the entire 20 document for the record. There is no dispute. 21 THE COURT: Do you have any other objections? 22 MR. HEINEMAN: We would further object on 23 relevancy, Your Honor, Lack of relevancy. 24 THE COURT: They are both admitted over objection. 1 1487 , 1488. 2 MR. CARRs Your Honor, the only exhibit that we had 3 prepared to pass to the jury is 1487, it duplicates and is . 4 the same as the information on 1488. 5 Q. (by Mr. Carr) Doctor, those exhibits show, as did 6 the memo that referred to your conversation, or letter rather 7 to Dr * Suskind, that indeed the TCDD content of 2,4,5-T in 8 1965 in April of 1965 was 16 to 55 parts per million, did it 9 not, sir, do they not, sir? 10 A. From 5 to -- 11 Q. Did you understand my question, Doctor? 12 A. Yes, sir. 13 Q. Referring to April of *65 goes from from 12 to 55 14 parts per million, does it not, sir? 15 A. Yes, sir. 16 Q. And, in 1964 the average content according to those 17 documents was 12 parts per million, was it not, sir? 18 A. Yes, sir.' 19 Q. Now, if the -- if this 50-gallon drum that this 20 gentleman filled with diesel oil contained two gallons of 21 diesel fuel, it would have two -- I mean 50 gallons of diesel 22 fuel, it would have yet two gallons of 2,4,5-T, 2,4-D 23 therein, would it not? 24 A. ' Yes, sir. 1 E4R. HEINEMAN: Object, .that calls for speculation 2 and conclusion on the part of this witness. 3 MR. CARR: Calls for mathematical calculation. 4 THE COURT: Objection is overruled., you may 5 proceed. 6 A. Yes, sir. 7 Q. That would be anywhere from one twenty-fifth to 8 one-fifthieth of that drum would be the Agent Orange content, 9 wouldn't it, sir? 10 A. Yes, sir. 11 Q. And one-fiftieth of 55 parts per million is. over 1 12 part per million, isn't it, sir? 13 A. Yes. 14 Q. And, that would be the dioxin contaminant in that 15 . drum that that man was working with if the drum had 16 originally contained that batch that had 55 parts per million 17 of TCDD, correct, sir? 18 A. Yes, sir. 19 Q. Now, on the other hand, if that drum that he was 20 working with in 1965 had been in fact manufactured in 1964, 21 the dioxin contaminant in 1964 was 12 parts per million, was 22 it not, sir? 23 A. Yes, .sir . 24 Q. So, if that drum that he was working with had been r.'*,7^4 1 manufactured in *64, he would be working with one-fiftieth of 2 12 parts per million, wouldn't he, sir? 3 A, Yes, sir. 4 Q. Which would be 240 parts per billion, wouldn't it, 5 sir? 6 A. Yes, sir. 7 Q. So, this man has worked with and put on the floor 8 of his garage, and around the various parts of his property, 9 material that is contaminated with dioxin that may range from 10 240 parts per billion, to one or two parts per million, is he 11 not, sir? 12 A. Yes, sir. 13 Q. Now, Doctor, you at Monsanto knew in 1983 that that 14 was the contaminant of products that you manufactured, you at 15 Monsanto knew that this man had put on his property, on his 16 body, on his dirt, at his home, material that had at least 17 240 parts per billion of dioxin therein, did you not, sir? . 18 MR. HEINEMAN: Your Honor, I object, there is no 19 information in any of my notes, exhibits to identify it as 20 Monsanto product. 21 MR. CARR: Your Honor, I think that can be inferred 22 by the fact that the man called Monsanto. Monsanto 23 manufactured the contaminant at the time, that it was 24 obtained from the Granite City Arsenal, and that while it 1 doesn't appear from the document that Monsanto's label was on 2 it, -and in any event whether that is the -- well, there is a 3 Chemtech message that it was phoned to them by those people. 4 In any event, it demonstrates the attitude of Monsanto toward 5 the public and toward dioxin and toward the people of 6 Sturgeon. That is the basic elements of this case relating 7 to punitive damages. It illustrates what they knew about the 8 product and what they did about it. The same thing as what 9 they did with Sturgeon, Your Honor, what-they did here. 10 MR. HEINEMAN: Your Honor, I object to that speech 11 as being jury argument. I ask that the speech be stricken 12 from the record and that the jury be instructed to disregard 13 it. 14 THE COURT: Objection is overruled.. It was proper 15 response to your objection which was made before the witness 16 answered the question. Going to the merit of the objection, 17 the objection .is overruled. It's a proper question. 18 THE COURT: Dr. Roush, please answer the question? 19 A, Would you repeat the question? 20 (Court Reporter read back the previous question.) 21 A. Dr. Byrons knew it. 22 Q. He's a Monsanto senior physician, is he not, sir? 23 A. He is no longer working for Monsanto. 24 Q. His knowledge at that time was Monsanto's .5i_'CLv iu nix?' s* 1 knowledge, was it not, sir? 2 MR. HEINEMAN: Object, Your Honor, that asks this 3 witness for a legal conclusion. 4 THE COURT: Overruled, it does not. 5 Q. This man was a responsible senior physician working 6 in your department under you, was he not, sir, for Monsanto? 7 A. Yes, sir. 8 Q. He was acting for Monsanto in responding to this 9 call, was he not, sir? 10 A. Yes, sir. 11 Q. And when he acted for Monsanto, he knew, as you 12 have stated here, that this material that this man put in his 13 garage floor, put on the dirt around his property to control 14 the dust, contained dioxin at least 240 parts per billion. 15 Nov;, Doctor, he told, according to this memo, he told this 16 man that his exposure was minimal due to dilution with fuel 17 oil, the dilution with fuel oil puts it down to 240 parts per 18 billion. Isn't that correct, sir? . 19 A. Yes, sir. 20 Q. You at Monsanto knew that 2-40 parts per billion is 21 240 times higher than the level that CDC set for dirt, as a 22 minimum level, sir, you knew that, did you not, sir? 23 A. That CDC position came after this note. 24 Q. Well, Doctor, you knew that 240 parts per billion 1 -- well, even assuming that that is so, Doctor, have you 2 contacted this man since then to tell him that, even without 3 that there is no question in your mind but what it's unsafe 4 for somebody to be living in a house that dirt is 5 contaminated either with one to two parts per million of TCDD 6 or at a minimum 240 parts per billion of TCDD, you know that 7 to this day that it's unsafe, don't you, sir? 8 A. No, sir. 9 Q. It is your position, that the response that 10 Monsanto gave to this Mr. Yasenko from Niebo, Illinois, was a 11 proper and legitimate response, is that correct, sir? 12 A. I don't know what the other call, there was another 13 call made. 14 Q. Doctor, this is the sum total of the records 15 dealing with it, do you have some knowledge of another call 16 that's not given to us? 17 MR. HEINEMAN: Object, Your Honor. I don't know 18 that it's clear that this is the sum total of all records ' 19 that might relate to a call by somebody to Mr. Yasenko that 20 might not be covered by a request that Mr. Carr has made for 21 production of documents in this case. 22 MR. CARR: Our request, as the Court, Mr. Heineman 23 knows, was for everything dealing with dioxin that they have 24 in their possession. This deals with dioxin. If they made 1 some other contact with Mr. Yasenko that they did not give 2 us, they are in contempt of this court. 3 MR. HElNEMAN: Your Honor, it may well be that I . 4 don't know whether there is a document there, but my point is 5 it may well be that there is a document written by some 6 environmental expert about a call to a Mr. Yasenko that 7 doesn't even mention the word dioxin in it. 8 THE COURT: Do you have such a document? 9 MR. HEINEMAN: No, as I say, i don't know whether 10 it exists or not. 11 THE COURT: Objection is overruled, you may 12 proceed. 13 Q. (by Mr. Carr) Doctor, do you have any knowledge of 14 any such calling or any follow-up? 15 A. No, sir, it was referred to someone else for 16 action. 17 Q. Someone else at Monsanto for action, was it not, 18 sir? 19 A. Yes, sir. Yes, sir. 20 Q, Doctor, this man is -- you told him through Dr. 21 Barnes that his exposure was minimal, because of this 22 dilution, will you agree now, sir, that his exposure is not, 23 minimal? 24 A No, sir. / 1 Q, You believe that his exposure is minimal? 2 A. Yes. 3 Q. And, Doctor, it is your position that his dirt 4 contaminated with 240 parts per billion or one or two parts 5 per million is perfectly safe and appropriate for him to live 6 in, is that correct, sir? 7 A. Yes. 8 Q. And, you, of course, know that the effects from 9 dioxin contamination do not all immediately appear, you know 10 that, don't you, sir? 11 A. Yes, sir. 12 Q. And this all was in March of *83, the man had used 13 the oil in February of *83, so he called within a month 14 apparently of the time he was exposed to it and put it on his 15 property. The problems that were going to develop that~may 16 develop from dioxin exposure would not necessarily have 17 developed in that first 30-day period, would they, sir? 18 A. They-may well not appear. 19 Q. They may well appear in Yasenko if dioxin causes 20 cancer as the Plaintiff's evidence shows that it does and as 21 other experts believe.to be the situation. This man can get 22 cancer at 10, 20, 30> 40 years from this exposure, can he . 23 not, sir? 24 A. If this exposure is sufficient. 1 Q, Doctor, the exposure that he's got, he has put his 2 hands in it, it's been on his skin and more than that, it is 3 presently on the dirt in his garage, and on the loose dirt 4 around-his house. It is there. It has a half-life of what 5 did we establish, ten years as a half-life in the soil? It6 will be there for the rest of his life twenty years from now, 7 25 percent of that will still be there, 25 percent of 240 8 parts per billion, sir is 60 parts per billion, 20 years from 9 now the dirt in his house, in his garage, will still be at 10 least 60 parts per billion, Dr. Roush. Don't you consider 11 that this exposure over that period of time is going to be 12 extremely injurious to his health? 13 A. No, sir. * 14 Q. And that is the position that you at Monsanto 15 believe is the appropriate position and the position that you 16 intend to maintain with regard to dioxin and its safety, 17 isn't that correct, sir? 18 A. Yes, sir. 19 Q. Will you tell me, sir, why is it that you require 20 in chemicals that you buy from other people that there be no 21 2,3,7,8 in it, and of all the other dioxins that there not be 22 more than 10 parts per billion, why is it. Dr. Roush, that 23 you say to others the chemicals you give us shall not contain' 24 any 2,3,7,8, but yet you will sit in this courtroom and say \ 1 that it is safe for others to live with soil that has 240 2 parts per billion or 60 parts per billion or 2 parts per 3 million, will you tell me that, Dr. Roush? 4 A. There are several things. First, the level of one 5 to five to ten parts per million of dioxin was common in 6 2,4,5-T throughout the '60's and '70's with many people in 7 the United States being exposed to it on a wide basis, and 8 none of them got Chloracne, nor was it reported there was any 9 other effects on people. Used for twenty years without any 10 evidence of effects at 1 to 2 parts per million by all people 11 using those phehoxic herbicides around their houses and on 12 farms and on woods. So, that is the basis for my saying that 13 1 to 2 parts per million, and it's going to be higher than \ 14 that, was without effects. Now, turning to why Monsanto goes 15 to a lower level is we are talking about the new standards 16 and specifications from government. If we are going to sell 17 a product that now today that contains dioxin, and if the 18 Canadians say we won't by your product if it contains more 19 than 1 part per billion, we better have a rule that says we 20 will meet one part per-billion. Now, what's happened over . 21 the last ten years up until 1982, the standard for dioxin 22 content of all phenoxic herbicides was a hundred parts per 23 billion. Before that it was 1 to 2 and where there was no 24 limitations on the dioxin content. Since then in 1982, the 1 standard for dioxin TCDD, no 2,3,7,8-TCDD in phenoxic 2 herbicides around the world has been lowered from a hundred 3 parts per billion down to 10 parts per billion and they are. 4 talking about in the next three to four years going to five 5 parts per billion and the Canadians have said we won't use it 6 if it contains more than one part per billion.' 7 Q. Doctor, why do you believe that the countries 8 around the world and Canada and others are saying they don't 9 want 2,3,7,8-TCDD? Why do you think they are saying that? 10 A. Because it's a contaminant and we can get it out. 11 Q. Why? There is a lot of things that are 12 contaminants they don't require you to get out. Why do they 13 want no 2,3,7,8-TCDD? Why is that, Doctor? 14 A. Because it's-a possible hazard. 15 Q. Because they believe that it is a hazard, don't 16 they, Doctor? 17 A. Wot at that level, they don't. 18 Q. Doctor, they are giving you standards that they say 19 we don't want 2,3,7,8-TCDD because they believe, because the 20 world believes that it is a health hazard. Isn't that the 21 reason they are setting those standards for 2,3,7,8-TCDD 22 level? 23 A. No. , 24 Q- That's not the reason? 1 A. To provide safety factor. 2 Q. Yes, Doctor, why do they want to be safe? Why do 3 they want to be safe, Doctor? They don't want people to 4 become unhealthy; don't want people to have the risk of 5 cancer 20, 30 or 40 years from today, do they, Doctor? 6 A. If they can get it out, they should. 7 Q. All right, Doctor. Now, Monsanto has said they 8 consider this a health thing, knowledge today that .they have 9 in the past ten years that they didn't have, you say, in the 10 prior period of time and give that as it is, they have got 11 the knowledge today in the past ten years, you've got that 12 knowledge, I've got that knowledge, the world.'s got that 13 knowledge, So they are saying no more 2,3,7,8. As a matter 14 of fact, Monsanto has set the level of, you said, 1 part per 15 billion of 2,3,7,8. Monsanto has set the level for the 16 chemicals it buys have no 2,3,7,8-TCDD, not any detectable at 17 a level down to 1 part per trillon, no 2,3,7,8-TCDD, isn't 18 that correct, Dr. Roush? 19 A. Not to my knowledge. 20 Q. I'll show it to you in a few moments when we get to 21 that point if you are not aware of it. But now,, you say that, 22 there is no evidence that people got Chloracne and use this 23 for years and that's one reason you say demonstrates that 24 it's safe because nobody got Chloracne. Well, Doctor, you X have seen a number of workers admittedly with equal exposure, 2 to dioxin, some get Chloracne and some do not get Chloracne, 3 and you have seen that some get porphyrin abnormalities and. 4 some don't get porphyrin abnormalities, and you have seen 5 that some get neuro-psychiatric problems and others don't 6 get. Some get tired and others don't. You have seen and we 7 have demonstrated in this case a variety of consequences from 8 dioxin exposure not just Chloracne. The Chloracne is one of 9 the signs. We have demonstrated to you and we have shown you 10 the articles that porphyrin abnormalities may be a better 11 sign of dioxin poisoning than Chloracne, and we have got 12 other documents to show you as well on that. Now, Doctor -- 13 MR. HEINEMAN: Your Honor, I object to that as a 14 speech. He obviously has nothing to do with this question 15 because he says, "Now, Doctor." Just made a speech. 16 MR. CARR:. I'm giving him -- 17 MR. HEINEMAN: May I make my objection? 18 MR. CARR: You interrupted my question, Mr. 19 Heineman. I did not finish my question. 20 THE COURT: Mu. Carr, go finish your question 21 please. Your objection is overruled. 22 Q. In view of that circumstance, when you say that you 23 don't know of any ill effects because you haven't seen 24 Chloracne, isn't it possible that the people that have used 1 those herbicides have gotten cancer, that they can't prove 2 because of their low-dose exposure, isn't it possible they 3 got cancer caused by this exposure. Isn't it possible when, 4 they which home at night more tired than ordinary, have more 5 sleep difficulty than ordinary, more irritability with their 6 children, fly off the handle more quickly, isn't it possible 7 that those things which you know are symptoms of dioxin 8 poisoning, isn't it possible that those things that they are 9 showing were in fact caused by the dioxin exposure that you 10 say was in their products. Isn't it possible that those 11 sicknesses have been caused by this prior dioxin exposure 12 which the various Governments and which the various 13 scientists today is saying is unsafe. Isn't that possible, 14 sir? 15 A. No, sir. 16 MR. HEINEMAN: Wait a minute Doctor, please, let me 17 make my objection. May I object to the question now? 18 THE COURT: Now you can. 19 MR. HEINEMAN: I'd like to object, first of all, to 20 the speech that preceded it. Ask it be stricken and that the 21 jury be instructed to disregard it. Second thing I'd like to , 22 object to the question on the grounds that it's a multiple 23 question, probably eight or ten questions in there. I don't 24 see how it's possible for the doctor to answer all of them. 1 The third thing is that he assumes as true, he states as a 2 fact that there are illnesses which is totally unknown and 3 which there isn't any evidence that there is anybody else 4 claiming illnesses from exposure to those things that Mr. 5 Carr is referring to right now, and I object to that. 6 THE COURT: Objection is overruled. Doctor, you 7 did answer no, is that correct? 8 MR. CARR: I don't think he answered. 9 THE COURT: I thought I heard you say no. 10 A. I*m not sure. 11 THE COURT: Read back the answer. 12 MR,-CARR: I'm sorry. 13 COURT REPORTER: "No, sir." 14 THE COURT: We will break until approximately 15 10:30. 16 (Following a recess, these proceedings were had in open 17 court.) 18 THE COURT: Ladies and gentlemen, before we start, 19 in line with our policy of trying to keep you advised of 20 times when we would not have court, as soon as we know of 21 those times, I think I have already told you, if not I'll 22 tell you now we won't have court on July 19th, Friday, July 23 19th. We are also not going to have Court this next Monday, 24 July 15th, and the afternoon of July 22nd. So we will go to 1 noon on that day. 2 THE COURT: Hr. Carr, you may proceed. 3 Q. (by Mr. Carr) Doctor, you responded negatively to , 4 the question that I asked you as to the position that 5 Monsanto's taken. And, I take it that what has occurred, the 6 things that you at Monsanto have learned since, at least 7 since the Sturgeon incident took place, to this date has not 8 been sufficiently important to you at Monsanto to change the 9 attitude .that Monsanto has toward dioxin and as to the need 10 to keep humans away from exposure to dioxin, is that correct, 11 sir? Have I interpreted your response correctly? 12 A. No, sir. 13 Q. I have not interpreted? 14 A, No, sir. 15 Q. All right. Then is it that Monsanto does perceive 16 that dioxin is injurious to the health of people, that people 17 should not be exposed to it, that there is more risk to it 18 than simply teenage &cne or Chloracne? 19 A. No, sir. 20 Q. That isn't correct either? 21 A. No, sir. 22 Q. Is it your position then that it is only the acne > 23 problem that you at Monsanto are concerned wi.th as of being , 24 associated with or caused by dioxin? C 1 A. No, sir 2 Q. That isn't correct either? 3 A. No, sir. 4 Q. Then do you believe that this lung cancer rate of 5 deaths at Nitro being a 143 percent higher than what it 6 should be in the amount of deaths from lung cancer that 7 should be, do you think that is an important factor that you 8 at Monsanto should consider when you tell people how they 9 should react to dioxin contaminated dirt as this gentleman, 10 Mr. Yasenko, or to other people like the people at Sturgeon, 11 is that a factor, sir? 12 A. No, sir. 13 Q. That's not a factor either? 14 A. No. > 15 Q. You are not persuaded that the fact that -- and 16 admittedly those may all -- the lung cancer rates that we 17 know have association with tobacco, but even at that, the 18 lung cancer at Nitro is a 143 percent higher than what was 19 expected, than even expected among smokers, doesn't that mean 20 anything to you, Dr. Roush? 21 A. Yes, but they are not related. t 22 Q. Now, Dr. Roush, what makes you say that those lung 23 cancer deaths in the people at Nitro that were exposed to 24 dioxin is not related to the dioxin exposure? 1 A. Because there is a -- the same level of lung cancer 2 in the non-exposed workers. 3 Q. No, Doctor, you are misunderstanding this figure, / 4 it's not the same level, we have pointed out, sir, if you 5 recall, there are only three or four, one, two, three, yes, 6 three lung cancers in the unexposed, in the group you call 7 unexposed. In a larger group of people than the exposed 8 people, and there is ten in the exposed people. Doctor, 9 doesn't that persuade you? 10 A . No, sir . 11 Q. Doctor, how can it, if you've got a larger group of 12 people and presumably they are the same age, they started to 13 work the same time, one group of people, only three lung 14 cancers, and the other group of people a smaller group of 15 people, the only thing live is the exposure to dioxin, the 16 only thing that you know is that is different, you get 10 17 deaths from lung cancer in the smaller group and only three \ 18 deaths from lung cancer in the larger group. Doctor, why 19 isn't that persuasive to you? 20 A. Because your are looking at that same persons, says 21 there is no more lung cancer in the exposed than there is in 22 the unexposed. 23 Q. Doctor, the figures that you have here, the figures 24 that you see here, the figures this exhibit, this is the -f 1 exhibit that you agreed accurately reflected the number of 2 deaths from lung-cancer associated with dioxin. This is your 3 testimony, sir, those exhibits are introduced into evidence, 4 because it's came from Monsanto's records. It shows three 5 deaths from those who are unexposed from lung cancer and ten 6 deaths from those who were exposed. Your only people with 7 six before we took the four that were exposed and put them in 8 with the six that were admittedly exposed by Sack, your own 9 people at six said that was a higher rate than was expected. 10 The table that you put them in. The six was a higher rate 11 than was expected. Doctor, how can you gain say, how can you 12 say that ten out of 67 is not as significant as the three 13 which was out of a 128 or something like that? 14 A. Because you can't take the ten out of the 67. 15 Q, Doctor, you can. Those are the ten from the 67 16 that were exposed to dioxin, those are your figures, not 17 mine. 18 A.. No, sir, those are not. 19 Q. Doctor, do you not agree that those four people 20 were exposed to dioxin? 21 A. Yes, sir. 22 Q. And those four people should be with the six that 23 were exposed to dioxin, shohld they not, sir? 24 A. Yes, sir. 1 Q. And that makes ten, doesn't it? 2 A. Yes, sir. 3 Q. And when you take those four from the group that 4 was not exposed, you are left with three lung cancer deaths, 5 aren't you, sir? 6 A. Yes, sir . 7 Q. Now, Doctor, ten out of 67 is larger than three out 8 of whatever the number was, 123 or something of that sort, 9 isn't that correct, sir, 207? 10 A. No, sir. 'll Q. 10 out of 67 is not a greater percentage than 3 out 12 of a 120 or 207, whatever that figure was? 13 A. Where did you get the 67? 14 Q. The 58 deaths, sir, plus the 9 that was reported by 15 Zack, plus the 9 additional deaths from cancer that she 16 omitted to report, 67, do you recall that, sir, we went 17 through one whole day of that? 18 A. Yes, sir. 19 Q. You don't recall that, sir? 20 A. Yes, sir,- but I disagree with your denominator of 21 67. 22 Q. Doctor, you agreed with the denominator when we put' 23 it on the board. You agreed that those records showed those' 24 deaths, did you not, sir? 1 A. Yes, sir. But I don't agree with the 67. 2 Q. Doctor, were there 67 deaths total reported when 3 you add the 9 to the 58? 4 A. Yes, sir. 5 Q. Were there not? 6 ' A. There weren't 58 deaths with it. 7 Q. Sir? Yes, there were 58. 8 A. All right. 9 Q. And the 9 added to the 58 is 67, isn't it, sir, and 10 that makes 67 deaths among those people that were exposed to 11 dioxins, doesn't it, sir? 12 A. But you have to change the denominator, too. 13 Q. The denominator is the 67 when you add the 9 to 14 it. 15 A. No, sir. 16 Q. I don't want to go through all that again, but do 17 you not admit that the 10 in the exposed is more than the 3 18 in the unexposed? 19 A. Yes. 20 Q. And it's a higher rate among the exposed than -- 21 that 10 is a higher rate? 22 A. No, sir. 23 Q. Doctor, isn't 10 out of whatever the number was 24 higher than the 3? 1 A. 58 and 32 together before you get -- that's the 2 denominator. 3 Q. Where is the 32? 4 A. -That's the total deaths in the Zack-Suskind study. 5 Q. The total deaths the Zack-Suskind study? 6 A. That's where you are getting the other. 7 Q. The Zack-Suskind study were all exposed, we add 8 that we have a much higher rate. 9 A. But you have to have that denominator before you 10 talk about the percent. .11 Q. Doctor, if you add the Zack-Suskind deaths to this, 12 you even have a higher rate of death rate? 13 A. That's what you've got those lung cancers, you are 14 adding those two together. 15 Q. Doctor, it's a 143 percent. 16 A. No, sir , it is not. 17 Q. Doctor, I'm not going to quarrel with you, Doctor, 18 I'm not going to go over and re-examine those, but the 10 is 19 higher than the 3, isn't it? 20 A. Yes, sir. 21 Q. Wow, Doctor, that doesn't persuade you, I take it, 22 does it, sir? 23 A. No, sir. 24 Q. None of this- other evidence pursuades you? 1 A. What other evidence? 2 Q. The evidence of the 30 percent abnormal porphyrins', 3 that doesn't persuade you either? 4 A. I don't think those were abnormal porphyrins. 5 Q. Doctor, the laboratory reported them to be 6 abnormal? \ 7 A. Wo, sir. 8 Q. Doctor, we went through that. Did not the 9 laboratory put those in the abnormal category? 10 A. Wo, sir. 11 Q. Doctor, did not Dr. Suskind call them abnormal in 12 his draft from the laboratory report? 13 A. Yes. 14 Q. During those abnormal porphyrins -- has anybody 15 called those porphyrins normal? Have you seen any 16 laboratory, any doctor anywhere that called those porphyrins 17 normal? 18 A. They don't interpret them. 19 Q. Doctor, did anybody call them normal, any time, 20 anywhere? 21 A. No one called them abnormal either. 22 Q. Dr. Suskind called them abnormal, he put them in 23 his table. We have the table in evidence. You've seen it. 24 A Yes, sir. 1 Q. Didn't he call them abnormal? 2 A. Yes, sir. 3 Q. Doctor, doesn't those abnormal porphyrins, when you 4 talk about the number of people over the period of years that 5 have been exposed to the Monsanto products that contain 6 dioxin, you know that the abnormality in the porphyrins can 7 cause people to be tired, you know that, don't you? 8 A.. No, sir. 9 Q. You don't know that? 10 A. No, sir. 11 Q. Doctor, doesn't porphyria have all kinds of bad 12 consequences, one of which is fatigue and tiredness? 13 A. If this is porphyria. 14 Q. Doctor, that's what I'm asking you, doesn't 15 porphyria cause people to be tired? 16 A. No, sir. 17 Q- It' doesn't? 18 A. * No, sir. 19 Q. You just got through saying that if it is porphyria 20 it is one of the-attributes, didn't you just say that? 21 . A. Yes, sir. 22 Q. Doctor, you are really going around in circles, if 23 it is an attribute of porphyria, tiredness is a symptom of 24 porphyria, is it not, sir? 1 A . No , sir. 2 Q. Doctor, 'didn't you just tell me that people get 3 tired when they have porphyria? 4 A. They can. 5 Q. Well, Doctor, what are you doing here, what game 6 are we playing here? 7 MR. HEINEMAN: Your Honor, I object to -- 8 Q. You just got through saying -- 9 MR. HEXNEMAN: May I object to the tone and to the 10 argumentative nature of the question. Mr. Carr keeps 11 switching back and forth between porphyria as a disease and 12 abnormal porphyrins. 13 MR. CARR: That isn't so, I used the word 14 porphryia, porphyria, porphyria with this doctor, attributed 15 to, associated with tiredness. He says porphyria can cause 16 tiredness. 17 A. Yes, sir. 18 THE COURT: Objection is overruled. The questions 19 are clear and any change in subject is also clear within the 20 context of the question, and this witness is able to follow 21 that. Objection is overruled. 22 Q. (by Mr. Carr) Now, Doctor, if dioxin can cause / 23 porphyria, and if porphyria can cause people to be tired,.is 24 it not possible, sir, that the tiredness that some people 1 have may have in it a component of dioxin causation? 2 A. If there is sufficient porphyria. 3 Q. Yes. And, Doctor, abnormal porphyrins, the 4 laboratories, the very first thing you do to discover 5 porphyria, is to send the urine to a laboratory to see if the 6 porphyrins are abnormal, don't you, sir? 7 A. Yes, sir. 8 Q. And, you know that Dr. Ellefson has testified in 9 this case under oath by deposition that the abnormal 10 porphyrins shown in around 20 of the Sturgeon Plaintiffs 11 indicates that they may have intoxication porphyria, you know 12 that as well, don't you, sir? 13 A. No, sir. 14 Q. You don't know that? 15 A. No, sir. 16 Q. Did you not read Dr. Ellefson's deposition? 17 A. No, sir. 18 Q. Has'not counsel informed you of what Dr. Ellefson 19 testified to? 20 A. No, sir. 21 Q. Well, would you assume, please, that Dr. Ellefson 22 has testified that the abnormal porphyrins in the Plaintiffs 23 who had the abnormal porphyrins indicates intoxication porphyria. Will you assume that, please? 1 MR. HEINEMAN: Your Honor, may I object to the 2 implication that Mr. Carr is trying to make. At Mr. Carr's 3 request this Court has excluded witnesses from the trial and 4 it would be an implicit violation of that order, perhaps, to 5 have a witness read testimony from a prior witness. 6 THE COURT: Objection is overruled, that's not at 7 all the intent of that order. 8 MR. HEXNEMAN: May we approach the bench, Your 9 Honor? 10 (The following Side Bar conversation was had outside the 11 hearing of the jury.) 12 THE COURT: Are you trying to say an exclusionary 13 order prevents you from briefing the witness and preparing 14 the witness as the context to which he is appearing? 15 MR. HElNEMAN: No, sir. 16 THE COURT: That's what your remark implied to me. 17 MR. HEINEMAN: Can he read testimony of a prior 18 witness? 19 MR. CARR: Read an evidence deposition that was 20 taken before the order was ever entered? ! 21 MR. HEINEMAN: I'm talking about, you are asking 22 him about the testimony that occurred in court. 23 MR. CARR: No, it was an evidence deposition. 24 THE COURT: Wait a second, but that's even to r 1 restrictive. What you are implying, you are saying you can't 2 even tell him the substance of what Ellefson said as opposed' 3 to reading the deposition or not, that's what you just told, 4 me. 5 MR. HEXNEMAN: I have assumed that that is not a 6 violation of this Court's -- 7 THE COURT: And that is an absolutely correct 8 assumption, and you can derive the information and 9 communicate the information that Ellefson catagorized one of 10 those people as having intoxication porphyria without having 11 him read an entire two days of evidence deposition or 12 whatever. You know, X don't see any basis for the objection 13 that you made. 14 MR. HEXNEMAN: My objection, Your Honor, was that 15 Mr. Carr was, in his tone of voice and inflection, chastising 16 this witness for not having read the prior testimony that was 17 admitted into evidence. 18 MR. CARR: Simply isn't so. I wasn't chastising 19 any witness. 20 THE COURT: That's not at all what happened. Your i 21 objection is overruled. 22 MR. HEINEMAN: May- I have this clarification? Is 23 it your position that they cannot read testimony, prior 24 testimony of a witness in court? 1 THE COURT: I haven't even considered that. Before 2 I would say what my position is I'd like to have that 3 discussed. What is your position on that? 4 MR, CARR: I see absolutely no reason to say that a 5 witness can't read prior testimony in court. The 6 exclusionary rule is to keep the witness from being here in 7 the courtroom to hear the testimony at that time. I don't 8 know that it has ever been, that the rule has ever been 9 interpreted to mean they cannot read evidence depositions or 10 transcripts of testimony. 11 THE COURT: VThat's your position? 12 MR. HEINEMAN: That's fine with me, Judge. 13 THE COURT: I think that's fine with me, too. 14 That's fine with me. 15 MR. HEINEMAN: I was just giving the Court's order 16 the broadest implication. 17 THE COURT: No, no, no, no. The whole point of, I 18 think, your objection is to what Mr. Carr said was on a much 19 more narrow basis, and I think it was, I don't agree with the 20 objection, and you know, offhand I don't see any reason why 21 it can't be read either. 22 MR. HEINEMAN: Okay. That's why I wanted to 23 approach the bench, make sure. 24 THE COURT: But his broad question, contrary to the 1 objection, was informing him by any means, memorandum, 2 discussion with you, discussion with technical people at 3 Monsanto, or reading of either the evidence deposition or the 4 transcript, or that part of the evidence deposition that was 5 read in court, of this particular fact, and that was the 6 broad implication of Mr. Carr's question. Your objection on 7 that basis is overruled. 8 (The following proceedings were had in open court.) 9 Q. (by Mr. Carr) Doctor, I take it that you have no 10 knowledge then that the Plaintiffs in this case have been 11 said by Dr. Ellefson, a number of Plaintiffs in this case 12 have been said by Dr. Ellefson to have intoxication 13 porphyria? 14 A. No, sir. V 15 Q. Now, Doctor, those Plaintiffs were exposed to the 15 dioxin and your workers were exposed to the dioxin. Dr. 17 Ellefson diagnosed -- I want you to assume, if you will, that 18 he diagnosed it as intoxication porphyria based upon one or 19 more of certain porphyrin abnormalities in the urine tests, 20 mainly related to the uroporphyrin and the coproporphyrins. 21 Would you do that, please? 22 A. (indicates affirmatively.) 23 Q. Where he found an abnormality in the uroprophyrins 24 or when he found an abnormality in the coproporphyrins, he 1 said that is an indication of intoxication porphyria. Would 2 you assume that, please? 3 A. Yes, sir. 4 Q. Wow, if that is his diagnosis of porphyria, and you 5 have 35 percent of your admittedly exposed Nitro workers 6 having porphyria, and another 28.6 percent of the people that 7 work in the plant, and having, as you say, admittedly you 8 can't work there without having some exposure, also having 9 abnormalities in porphyrias, and we will demonstrate shortly 10 that your Krummrich plant workers have abnormalities in the 11 porphyrins. Doctor, would not those, if those abnormal 12 porphyrins indicate or show that those people have porphyria, 13 could not the tiredness that those people indicate be caused 14 by porphyria, assuming first that they have got porphyria? 15 A. Wo, sir, I don't think so. 16 Q. Doctor, you told us that -- the sign of porphyria 17 or one of the consequences of porphyria is tiredness, did you 18 not, sir? 19 A. I don't recall what I said, I'd like -- 20 Q. Would you instruct the witness that he testified 21 that one of the consequences of porphyria, one of the signs 22 of porphyria is tiredness. 23 THE COURT: So instructed. 24 A. All right, sir. 1 Q. Doctor, if those'people have got porphyria, assume 2 they have got porphyria, you could also expect them to have * 3 tiredness then, couldn't you? 4 A. Yes. 5 Q. Now, Doctor,- if they have porphyria, from exposure 6 to dioxin and/or tiredness, could there not be literally 7 -millions of Americans, literally millions of Americans who 8 have some form of porphyria from exposure to dioxin and who 9 have some tiredness that they just can't explain that that 10 could be a consequence of porphyria? 11 A. If they have porphyria? 12 Q. Yes. 13 A. Yes-. 14 Q. And this porphyria can be caused by dioxin, can it 15 not, sir? 16 A. Yes. 17 Q. And, Doctor, it is possible, is it not, sir, that 18 the dioxin that you at Monsanto have spread throughout the 19 United States in your herbicides, and in your germicides, and 20 Lysol and other things can be causing porphyria? 21 A. No, sir. 22 Q. That isn't possible? 23 A. No', sir. 24 Q. Doctor, if porphyria can be caused by dioxin, isn't 1 it possible that the dioxin that's spread out has caused 2 porphyria? 3 A. No, sir. 4 Q. Doctor, if dioxin causes porphyria, and you've got 5 2,4,5-T in the parts per million that's been spread .6 throughout the United States, can't dioxin cause porphyria, 7 sir? Your workers have got the abnormalities. Would you 8 assume, please, sir, that those abnormalities may be an 9 indication, as Dr. Ellefson has testified, of intoxication 10 porphyria, would you assume that, sir? 11 A. Assume that they are abnormal? 12 Q. Yes, assume they are abnormal, of course, I've 13 given you that, sir, can't that abnormality be an indication 14 of porphyria? 15 A. If they have got the abnormality of porphyria, 16 could that be porphyria? 17 Q. If they have got abnormal porphyrins, can not that 18 abnormality be an indication of porphyria? 19 A. It depends on degree of abnormality. The answer is 20 no. 21 .Q. Then no abnormality in the porphyrins indicates 22 porphyria, you dispute what Dr. Ellefson has said, I'm -- 23 A. I don't know. 24 Q. Vieil, Doctor, are you disputing what he said? He 1 said that those abnormalities in those particular Plaintiff*s 2 abnormal uroprophyrins, abnormal coproporphyrins were an 3 indication of intoxication porphyria. A form of porphyria . 4 caused by chemicals. Now, do you dispute that, sir, that 5 chemicals such as dioxin can cause porphyria? You don*t 5 dispute that, do you, sir? 7 A. Not that, no, sir. 8 Q. Do you dispute that an abnormality in uroprophyrins - 9 or in coproporphyrins may indicate intoxication porphyria, do 10 you dispute that, sir? 11 A. From dioxin? % 12 Q. From any chemical. 13 A. The answer is yes. 14 Q. You do dispute that? 15 A. I don't dispute that. 16 Q. You don't. You don't dispute the fact that dioxin 17 can cause porphyria, you so stated? 18 A. Yes, sir. 19 Q. And, Doctor, then is it not possible that the 20 others who have been exposed to dioxin, just as the Sturgeon 21 Plaintiff's, just as the Nitro workers, just as we will 22 demonstrate the Krummrich workers, that their abnormal 23 porphyrins are not just with those people, but that others 24 exposed to your 2,4,5-T or your 2,4-D, or your Lysol, that 1 others too may have abnormal porphyrins on account of that 2 exposure, isn't that possible, sir? 3 A. Ho, sir. 4 Q. That isn't possible? 5 A. Ho, sir. 6 Q. Doctor, then I am at a loss, because you've said 7 that dioxin can cause porphyria? 8 A. Yes, sir. 9 Q. And that you know that 2,4,5-T and the Lysol and 10 2,4-D all has dioxin in it? / 11 A. Yes, sir. 12 Q. Can't that dioxin in those chemicals cause 13 porphyria? 14 A. No, sir. 15 Q. It can't? 16 A. No, sir. 17 Q. Dioxin in one form can cause porphyria and in 18 another form cannot, is that what you are saying, Dr. Roush? 19 A. No, sir. 20 Q. All dioxin, all TCDD, all 2,3,7,3, and when I said 21 dioxin I want to be more' specific and say 2,3,7,8-TCDD, can 22 cause porphyria, it can cause it whether it's in 2,4,5-T,23 whether it's in Lysol, whether it's in the ground, assuming 24 you get exposed to it, of course, and that you ingest it, 1 dioxin, no matter what it's in, if it gets in you, can cause 2 porphyria, can it, sir? 3 A. No, sir. 4 Q. It cannot? 5 A. Has to be a sufficient dose. 6 Q. Of course it does, Doctor. 7 A. We haven't mentioned dose, we haven't said anything 8 about dose. 9 Q. I know I haven't said -- I'm simply saying dioxin 10 can cause it, can't it, sir? 11 A. Yes. 12 Q. And what you are saying is that the dose has to be 13 sufficient. 14 A. Yes, sir. 15 Q. Now, what is the dose that in your judgment will 16 cause porphyria? 17 A. Higher than the levels that we get in our Nitro 18 plant or our -- 19 Q- What is the dose, Doctor? 20 A. No. 21 Q. You don't know? 22 - A. I don't know. 23 Q. You don't know the dose, do you? 24 A No, sir S 1 Q. You are saying higher than the levels in the Nitro 2 plant yet you know that Dr. Suskind has reported that your 3 Nitro people have got abnormal porphyrins, you know that, 4 don't you, sir? 5 A. Yes, sir. 6 Q. And it is possible that if they are abnormal that 7 it was caused by the Nitro dioxin, isn't it, sir? 8 A. No, sir. 9 Q. Doctor, if they are exposed to -- if they have got 10 abnormal porphyrins? 11 A. Yes, sir. 12 Q. And they work at Nitro and they are exposed to the 13 dioxin at Nitro, isn't it possible that that caused their 14 abnormal porphyrins? 15 A. If they have got more than the unexposed. 16 Q. Doctor, we have agreed, the other day you agreed 17 that the unexposed in fact were not unexposed, that they too 18 are exposed to dioxin just by virtue of having to walk 19 through the plant or carry messages or walk back and forth 20 every day? 21 A. Yes, sir. 22 -Q. So we don't have any really unexposed group', they 23 didn't compare. See to do the really job of comparing the 24 abnormal porphyrins, what you need to do is to take a group 1 of people that have had no exposure to dioxin, you've got to 2 take a control group, not that works in the same plant that 3 makes the stuff where they are exposed to it every day, 4 you've got to take for a valid study, you've got to take a 5 control group that have had no opportunity for exposure. 6 Then you compare their porphyrins with the group that works j 7 in the chemical plant. The normal person, Doctor, only you 3 agreed yesterday, has an abnormal lab result or abnormal 9 porphyrins, that's only in 5 percent or less. Now, that is 10 the normal control group, only 5 percent or less of the 11 people who have an abnormal porphyrin, isn't that correct, 12 sir? 13 A. Yes, sir-. 14 Q. So when you -- they say that is the control group, 15 and you look at the 5 percent in the normal population that 16 will have an abnormality, and compare it with* a group of 17 chemical workers where you've got 30 percent have got 18 abnormal porphyrins, you have to deduce as a scientist that 19 something that those 30 percent were exposed to, that the 20 five percent were not exposed to, caused those abnormalities, 21 must you not, Dr. Roush? 22 A. No, sir. 23 Q. Sir? 24 A. No, sir. ? - f i. ^ L^ - f 4 A - X 1 Q. You don't? 2 A. No, sir. 3 Q. What else could have caused those 30 percent to 4 have those abnormal porphyrins when the 5 percent did not 5 have them, sir? 6 A. How many tests were being run? 7 Q. Excuse me, Doctor, could you answer that question, 8 please, sir? 9 A. I'm trying to. If we do two separate studies, if 10 we do just uroprophyrins and coproporphyrins, each one of 11 them have a 5 percent chance of being abnormal. 12 Uroprophyrins and coproporphyrins,. therefore 10 percent would 13 be suspected to be abnormal. 14 Q. We have got 35 percent even that begin? 15 A. Then you would include the one on the low side> 16 well,- the high and low 5 percent of the top, 5 percent of the 17 low, that's 10 percent times two, is 20 percent. 18 Q. So what you are saying is that when you said 19 yesterday that five percent of people would have an abnormal 20 porphyrin, what you meant to say was that 20 percent would 21 have it, is that right, sir? 22 A. I'm talking -- 23 Q. Is that right, Dr. Roush? Is it 20 percent of the/ 24 people that take a porphyrin test are going to have abnormal 1 porphyrin, is that what you are saying? 2 A. If we are talking about high or low. 3 Q. Is that what you are saying about total porphyrin, 4 test, 20 percent of the people are going to show up with the 5 abnormality? 6 A. If you take all the tests together, yes. 1 Q. Doctor, wherein did you find that figure, and where 8 did you discover that that 20 percent of the people are going 9 to have abnormal porphyrin tests? 10 A. That's the way they set the reference levels. 11 'Q. Doctor, where did you find that, no testimony in 12 this case and no laboratory ever said that 20 percent of the 13 tests are going to be abnormal in the porphyrins? 14 A. It says on each one of the tests you have to take 15 that five percent on above and below. 16 Q. Where does it say that? 17 A. That's what reference values are. 18 Q. Where did you find that, Doctor? 19 A. Where did I find what? 20 Q. Why did you testify yesterday that five percent of 21 the population will have abnormal porphyrins? That's what, 22 you said that's high, low, or whatever? 23 A. No, sir. 24 Q. That will be 5 percent of the people show up with --i 1 abnormal porphyrins, didn't you say that? 2 A. Yes, because we only -- 3 Q. You did say that? 4 A, Yes, sir. 5 Q. And let's -- please, the case will never end if X 6 have to reestablish points once said. Wow, we have got, on 7 your instance, we have got 35 percent of your people, not 8 five percent, now, Doctor, what other than dioxin exposure do 9 they have that could cause that 35 percent .of the people to 10 have abnormal porphyrins when you expected to find it only in 11 percent 12 A. I assume the 35 percent is abnormal? 13 Q. Yes, 14 A. How many tests were run? 15 Q. ' Doctor, please answer my question. 16 A. I am trying to. I have to know how many tests. 17 Q. 436 tests were run. 18 A. Have we done uro -- 19 Q. Doctor, would you please answer that question? 20 A. I am trying to. 21 Q. Doctor, I am not the witness, you understand? 22 A. Yes, sir. 23 Q- You have the knowledge, I have given you the facts, 24 I want to know, based upon the facts that I have given you, / 1 sir, the facts that Dr. Suskind has given us, sir, the facts 2 that are in the evidence in this case, that's all we can go 3 . on is the facts that v/e have, Dr. Roush. Now, based upon 4 that, would 35 percent of those workers having abnormal 5 porphyrins, what could have caused those abnormal porphyrins 6 when you expect five percent of the people to have abnormal 1 porphyrins, other than the exposure to the chemicals in their 8 work place? 9 A. (pause) The answer to that would be yes. 10 Q. It would be the chemicals in the work place, would 11 it not, Doctor? . 12 A. If they are abnormal. 13 Q. Now, Doctor, isn't it possible, sir, that if dioxin 14 has caused those abnormalities in the porphyrins, that that 15 dioxin that they are exposed to at that level that you 16 mentioned earlier, can also cause abnormal porphyrins in 17 other people exposed to that product manufactured by 18 Monsanto? 19 A. Exposed to the same level? 20 Q. Yes. 21 A, Yes. 22 Q. And, Doctor, nobody has yet established the level, 23 the lowest level that will cause intoxication porphyria if 24 it's dioxin, have they, sir? 1 A. Yes, sir. 2 Q- Who established the level that would cause 3 porphyria in human beings or abnormal porphyrins and where 4 was it established? 5 A. Not as an absolute number. 6 Q. Well, where was it established, who established it? 7 . A. Dr. Poland has done it. 3 Q. What did he do with humans? 9 A. He looked at the people at Diamond Shamrock and 10 said he didn't find any porphyria. 11 Q. Now, Doctor, you are answering me with a different 12 thing. I want to know what is the level, the lowest level 13 that was established that would cause porphyria? 14 A. I don't have it. 15 MR. HEINEMAN: Object, Your Honor. 16 Q. You don't have it, do you? 17 MR. HEINEMAN: He asked him who did it, he just 18 answered who did it. 19 THE COURT: Objection is overruled. 20 Q- There hasn't been any. The lowest level necessary 21 to cause porphyria by dioxin established, has there, Doctor? 22 A. No, sir. *\ 23 Q. And nobody knows how little it may take to cause 24 porphyria, do they, sir? 1 A. No, sir. 2 Q. And, Doctor, as you sit there, based upon the 3 scientific evidence that you have as to what levels of dioxin 4 can cause porphyria, you have no scientific evidence other 5 than speculation as to how much dioxin it will take to cause 6 porphyria, isn't that correct, sir? 7 A. Yes, sir. i 8 Q. Doctor, that porphyria can be caused by dioxin, not 9 just a one-time dose, but by the dioxin that accumulates in 10 your body over a lifetime, can't it, sir? 11 A. No, sir. , 12 Q. It cannot be caused by that? 13 A . Zio, sir. 14 Q. Why can't the dioxin that accumulates in your liver 15 over the lifetime reach a certain level however low or 16 however high it might be to cause that blood abnormality 17 known as porphyria? 18 A. Would you read that, please? 19 (Court Reporter read back the previous question) 20 A. The occupational porphyria as that have happened, 21 there, have been only two out of the ten to fifteen different 22 groups that have been studied with occupational exposure. 23 Q. Doctor, I submit you are not answering my 24 question. I am asking you why you cannot, you said dioxin 1 can cause porphyria? 2 A. Yes, sir. 3 Q. Nov/, I want to know why dioxin accumulated in your 4 body cannot cause porphyria. 5 MR. HEINEMAN: Your Honor, may I object, I believe 6 Mr. Carr interrupted the witness' answer, X think the witness 7 was being responsive to the question. 8 THE COURT: Objection is overruled. The answer was 9 not responsive to the question. 10 A. The workers with exposure to occupational dioxin 11 that have been shown to have porphyria -- 12 Q. Doctor, that isn't what I'm asking you, that's a 13 different question. You've said dioxin exposure can cause 14 porphyria? 15 A. Yes, sir. 16 Q. Now, cannot the dioxin that you are exposed to over 17 a period of time accumulate in your body? i 18 A. Yes, sir. 19 Q. And cannot you accumulate dioxin in sufficient 20 levels in your body, whether it's a one-dose shot or whether 21 it's a little dose shot 365 days of the year, can't it reach 22 a level that will cause porphyria? 23 A. Not to my knowledge. 24 Q. Doctor, why is it that dioxin in the one-shot can 1 cause porphyria and dioxin in a cumulative shot cannot? 2 A. I don't know. 3 Q. ` Doctor, you don't know that it cannot, is that 4 correct? 5 A. Yes, sir. 6 Q. So what is correct, dioxin can cause porphyria, can 7 cause porphyria in a one-dose, in a five-dose or in a 8 cumulated amount, can!t it, sir? 9 A. Wo, sir. 10 Q. Can't cause it in the one-dose? 11 A. Yes, sir. 12 Q. Can it cause it in a dose taken.over a period of 13 thirty days? 14 A. I would assume so, yes. 15 Q. Can it cause it in a dose taken in a period of a 16 year? 17 A. I don't know how long it takes. 18 Q. My question is,- can it cause it -- do you have any 19 knowledge it can't be caused in a period of a year of 20 exposure? 21 A. No, sir. 22 Q. Can it cause it in -a period of five years? 23 A. I don't think so. 24 Q. Why not, Doctor, is there anything less toxic about 1 the dioxin that you accumulate over a period of time as 2 opposed to dioxin that you accumulate in a short period of 3 time? Is there any qualitative difference in that dioxin? 4 A. Yes, sir. 5 ,,.Q. What is the qualitative difference? 6 A. It goes into different places. The accumulation of 7 dioxin goes into the fat and leaves the liver. We talked 8 about that before. Th dioxin is more soluble in fat than it 3 is in the liver, so the dioxin leaves the liver with 10 continued exposure and is deposited in the fat. 11 Q. And doesn't accumulate in the liver? 12 A. Not -- 13 Q. Didn't you see the liver tissue of the lady at 14 Seveso? 15 A. That was an acute exposure. 16 Q. Doctor, it was more than acute exposure, the lady 17 lived with it for days,' did she not have it in her liver? 18 A; She lived in'it for days, that's right, that's not 19 a year's accumulation. 20 Q. But it is accumulation, isn't it, sir? 21 A. Yes, sir. 22 Q. It was in the liver in very massive doses? f *' 23 A. Yes, sir, absolutely. 24 Q Doctor, if the level of dioxin exposure at Nitro, 1 sme of-those people at Nitro, Doctor, that have those 2 abnormal porphyrins, were exposed to dioxin only ten, > - 3 fifteen, or twenty years prior thereto, weren't'they, sir? ' 4 A. Yes, sir. _ 5 Q. So that means that that -- if the dioxin'caused the \ 6 abnormal porphyrins, as a matter of fact, from '4S to *79 1 would have been thirty years prior thereto, if the abnormal 8 porphyrins were caused by the dioxin, had to have been caused 9 then by dioxin that they were exposed to some thirty years 10 before, is that correct, sir, if it was caused by dioxin? 11 A. And if they are abnormal? 12 Q. Yes, and if they are abnormal. 13 A. And if all of those were abnormal that you are 14 saying -- 15 Q. That's right, assume they have been called abnormal 16 by a reputable scientific scientist called Dr. Suskind? .17 A. Doesn't mean it's true. 18 Q. That's true nothing he says is true-or false ' 19 because he said it. Just assume he said it, as you have seen 20 he said it. Assume that if that occurred, that abnormality 21 occurred by exposure to something that took place thirty - 22 years before, didn't it, Doctor? 23 A. And also we are saying that the level of 24 abnormality was no different between his unexposed and the >' *ti -* 1 exposed, if the abnormals are about the same, statistically 2 are not different, then it's from the porphyrin, then it's 3 not from dioxin. 4 Q. Doctor, it is if those that are so-called unexposed 5 have a daily dose and the daily exposure by virtue of working 5 in that plant, isn't it, sir? 7 A. There still has to be a dose response. If there is 8 no dose"response, then it's not real. 9 'Q. We already established that you haven't yet -- 10 science hasn't yet found the no effect level of a dose of 11 dioxin? 12 A. Yes, sir. 13 Q. You haven't yet determined the smallest amount of 14 dioxin that it would take to have no effects on the body, on 15 the system? 16 A. Yes, sir. 17 Q. So, that means that no matter how small they cut 18 the dioxin into, no matter what how minute particles they 19 have treated thus far,- they cannot yet find a dose small 20 enough that it won't cause some effects. Now, Doctor, this 21 is the kind of chemical that those men are exposed to on a22 daily basis, on those people that you have said are 23 unexposed.- This is the kind of chemical that we are dealing with. Now, Doctor, can it not be that their abnormal 'V \ 1 porphyrins have been caused, if you've got no other 2 explanation for it, can it not be that those abnormal 3 porphyrins were caused by their daily small dose, admittedly 4 small dose because they are not working with it, simply 5 passing through the plant? Can it not be that it's caused by 6 that low dose, small dose exposure to dioxin? 7 MR. HEXNEMAN; Let me object, Your Honor, to the 8 statement portion of Mr. Carr's question, if that's what it 9 is, because he never asked the doctor whether or not he 10 agreed with that portion, and I object to it. Ask that it be 11 stricken and ask the jury be instructed to disregard it. 12 THE COURT: Objection is overruled. It was 13 properly preparatory to the question that was asked. Answer 14 the question, please, Dr. Roush. 15 A. If the degree of abnormalities in the so-called 16 unexposed, you are saying have low-level exposure, if their 17 degree of abnormality is the same as those with a known 13 continued higher exposure, if their degree of abnormality is 19 different, then it's possible, but this appears the same, 20 then no relationship. 21 Q. We know that it's different because there are 35 22 percent for one group and 28.-6? 23 A. That may be statistically not different. 24 Q. It isdifferent, Doctor. 1 A. No, sir. 2 Q. Isn't 35 percent different than 28.6? A. No, sir. ' 4 Q- Not different? 5 A. No, sir. o Q. Are they the same, Doctor, 35 the same as 35? 7 A. If they are not -- 8 Q. Is 35 the same as 35? 9 A. 35 is -- yes, sir. 10 Q. 35 the same as 34? 11 A. No, sir. 12 Q. Doctor, there is a difference while -- what you' are 13 saying is that you don't know whether or not it is what from 14 a statistical viewpoint whether or not it is statistically 15 different or unusual or of consequence, is what you are 16 saying in fact? 17 A. No, sir . '18 Q. No.. All right. Doctor, is there any other, factor 19 involved in the hypothetical facts that I've given you, where 20 this man has his abnormal porphyrins and he makes daily low 21 dose, very small dose, admittedly, by walking through the 22 plant or walking through the department or carrying a message 23 to the foreman or whatever, is there anything else that you 24 know of that he could have been exposed to to cause the 1 abnormal porphyrins other than the dioxin? 2 A. No, sir. 3 Q. And, Doctor, if his abnormal porphyrins can be 4 caused by that kind of dose, cannot that kind of dose in 5 other context cause abnormal porphyrins as well? 6 A. If .all of what you said is correct -- 7 Q. Yes? 8 A, Then it would be. 9 Q, And if that is true, cannot the dioxin that 10 Monsanto and others have put in the communities by virtue of 11 2,4-D, and Lysol, and' 2,4,5-T, and silvex, and half a dozen . 12 other chemicals, cannot those persons exposed to that on a 13 daily basis, admittedly a low-dose exposure if it caused it 14 in the Nitro workers, may it not possibly cause it in those 15 people as well? 16 A. (pause) What am I going to use for a normal? 17 Q. Could you answer the question that I've given you, 18 Doctor? 19 A. I don't know. 20 Q. Doctor, you know if it caused, if that kind of 21 exposure, hypothetically ,admittedly, I'm not asking you to 22 agree that you agree that in fact it caused it, because I 23 know Monsanto's position, but hypothetically if -it caused 24 abnormal porphyrins in the one instance, may not the same 1 kind of exposure, same kind of a dose cause it in other 2 instances? 3 A. Yes. 4 Q. Doctor, the kind of doses that we are talking about 5 there, are many times smaller than the dose that Mr. Yasenko 6 was exposed to, is it not, sir? 7 A. Who is Mr. Yasenko? 8 Q. He's the gentleman from Illinois who wrote, who 9 called Monsanto and asked for information because he was 10 exposed to 2,4,5-T, asked for guidance, it's what brought up 11 this conversation that we are having? 12 A. I see. 13 Q. Doctor -- 14 A. I understand. 15 0. Wasn't his exposure many times greater than the 15 exposure that v/e are talking about for the ilitro worker or 17 for the worker in the field or the user of the 2,4-D, wasn't 18 his exposure many times greater and won't it be continuing to 19 be many times greater than the exposure we have been talking -20 about? 21 A. The man using 2,4,5-T? 22 Q. Yes. 23 A. No, sir. 24' Q. Doctor, you don't use 2,4>5-T any more? 1 A. I'm talking about when we were using 2,4,5-T. 2 Q. I'm talking about this man, he has it now all the 3 time, every day on a daily basis since 1983? 4 A. Hov; is he getting it every day? 5 Q. Doctor, did you read the note I gave you? 6 A, Yes, sir. 7 Q. Did he not put it on his garage floor to control 8 dust? 9 A. Yes, sir. 10 Q. And on various parts of his property, mine has got 11 a blank out there, but I assume it's something around his 12 house. Did he not use it there, see that, perhaps you didn't 13 read that, Doctor. 14 A. Yes, I did, I'm sorry. 15 Q. You are on the wrong page. Right there, Doctor. . 16 A. I'm not sure what it says after, including his 17 house. 18 Q. Yeah, he poured the oil, just like Bliss did over 19 at Times Beach, sprayed this oil on the community that they 20 have now abandoned because the dirt got -the TCDD in it. He's 21 got in it in his garage, got it around the foundations or 22 various parts of his property at least in his house, he's 23 living with it on a daily basis, 24 A. Y e s , s ir. - - ^ i r:* ^ 1 Q. Isn't he going to get more exposure than your 2 occasional Nitro worker passing through the plant? 3 A. I don't know. 4 Q. Well, Doctor, you know he will have a daily 5 exposure, don't you, sir? 6 A. Yes. 7 Q. Nov;, Doctor, insofar as Monsanto's position, is it 8 going to be that Monsanto is going to persist in its attitude 9 toward people like Yasenko and attitude toward the world at 10 large that dioxin is harmless and that it's, well, not 11 harmless, I withdraw that word, but that dioxin, the only, 12 think you needed to worry about is Chloracne? 13 A. No, sir. 14 Q. Doctor, do you agree to that which you have 15 disagreed with earlier while your Northwestern people said 16 it's so, do you agree now, finally that dioxin can cause 17 those things described in Exhibit 1267 A? 18 A. No, sir. 19 Q. You don't agree then? 20 A . k No, sir. 21 Q. Is it that you believe dioxin, as you stated it 22 when I put you first on the stand, dioxin will cause only ^ 23 Chloracne? 24 A. N o , sir. 1 Q. Because that's what you said first, didn't you, 2 sir? 3 MR. HEINEMAN: Object, Your Honor. 4 A . Mo, sir . 5 MR. HEINEMAN: Mischaracterisation of what he said. 6 THE COURT: Overruled. 7 Q. (by Mr. Carr) You didn't say that, sir, not just 8 in court but in your deposition, the only thing dioxin will 9 cause will be Chloracne? 10 A , Mo, sir. 11 Q. Well, I'll bring the deposition back after lunch, 12 Doctor, and we will see what exactly what you said. All 13 right? 14 A. Yes, sir. 15 Q. But you have said today, at least, that dioxin will 15 cause porphyria? 17 A. Yes. 18 Q. And will dioxin cause hyperpigmentation and 19 hirsutism? 20 A. Yes, sir. 21 Q. Dioxin cause liver damage? 22 A, Yes, sir. 23 Q. Dioxin call elevated serum hepatic enzyme levels? 24 A. Y e s . 1 Q. Disorders of fat metabolism? 2 A. Yes. 3 Q. Will dioxin cause disorders of carbohydrate 4 metabolism? 5 A. I don't know. 6 Q. You can't say that it doesn't, is that correct? 7 A. I don't think it's been established, 8 Q. So it may -- it's not been satisfied to your 9 approval yet? 10 A. Not to just me. 11 Q. Will it cause cardiovascular disorders? 12 A. I don't think so, 13 Q. Doctor, we have heart disease in your Nitro people 14 37 percent higher than expected, this is Zack-Gaffey here? 15 A. Yes, sir. 16 Q. What caused that in this exposed group, 37 percent 17 higher than expected, if it wasn't the dioxin? 18 A. That's the same level as found in the Nitro area, 19 people live outside of Monsanto, or don't work at Monsanto 20 have the same level of heart disease. 21 Q. Well, do they breathe air that comes from fumes 22 emitted by Monsanto? 23 A. It isn't just people that live close to that plant. 24 Q. Excuse me, do they live in the Kanawha valley where 1 Monsanto and other chemical companies put out fumes that 2 could be considered injurious to ones health, are those the 3 people that you are talking about? 4 A. Yes, sir. 5 Q. What you are talking about, you are comparing your 6 workers to the people that live in a valley that's surrounded 7 by chemical companies, aren't you, sir? 8 A. Yes, sir. 9 Q. That 37 percent higher figure is compared to the 10 normal population, isn't it, sir? 11 A. T o `what normal population? 12 Q. The porportional normal population selected by Zack 13 and Gaffey? 14 A. Yes, sir. 15 Q. Those workers of yours got cardiovascular disorders 16 37 percent higher than expected, 37 percent higher, a large 17 figure, Doctor. Now, do you now agree that dioxin can cause 18 cardiovascular disorders? 19 A. No, sir. 20 Q. You don't,correct? 21 A. No, sir. 22 Q. What you are saying is that this 37 percent was 23 caused by something else and not dioxin, haven't you, sir? 24' A. Yes, sir. 1 Q. What evidence do you have that that 37 percent was 2 caused by something else and not by dioxin? 3 A. It's the same as the people in the area, have the" 4 same level of heart disease, 5 Q. Doctor, cannot all of those people being exposed, 6 living near Monsanto, can't they all get the dioxin from . 7 Monsanto's fumes? 8 A, To some degree, 9 Q. Yes, indeed, Doctor, so you don't have a control 10 group. You are comparing it to a group of people that's 11 exposed to the same thing. That's not a control group. If 12 that 37 -- if those people could have heart disease caused by 13 your chemical fumes, those people have a heart disease caused 14 by the dioxin, it's the same thing, Doctor. Wow, do you 15 agree that dioxin can cause cardiovascular disorders? 16 A. Wo, sir. 17 Q. You still don't agree. All right, Doctor. You 18 don't believe, then, and you don't agree with Northwestern 19 University? 20 A. That isn't Northwestern's position. 21 Q. Doctor, we have established that' you paid 22 Northwestern and we went through this, we read the sentence 23 from their text that they wrote, they wrote it, didn't they, 24 sir? I didn't write it.- 1 A. Yes, sir. 2 Q. They wrote' it. They said those are the toxic 3 effects from dioxin exposure, didn't they, sir? 4 A. No, they did not. 5 Q. Doctor, didn't we read that sentence from the text? 6 A. Yes, sir. 7 Q. They said that, didn't they, sir? 3 A. No, sir. 9 Q. Who said it if they didn't? 10 A. They were quoting that man who wrote that chart. 11 Q. Doctor -- 12 A. That wasn't -- 13 Q. The text that we read was not a quote, 'was it, sir? 14 A. Yes, sir. 15 Q. It was in the body of the text, wasn't it, sir? 16 A. No, sir. 17 Q. Do you have that protocol, that particular 18 document? No, that's not the one. X don't recall the number 19 right now. Do you have the number, Jerry? The number that 20 comes to my mind is 1277, but that seems too early. I've got 21 it. 1266. 22 A. I've got it. Page 28. 23 Q. No, that's the table, Doctor, I'm looking for the 24 text. We 1 A. That's on 27, on the second paragraph. 2 Q. It says, does it not, sir, "The toxic* effects of 3 2,3,7,8-TCDD in man are summarized in Table 7?" 4 A. Yes, sir. 5 Q. That is Northwestern'sstatement, isn't it, Doctor? 6 A. Yes, sir. 7 Q. And, we went throughthat, did we not, sir, they 8 are saying that Table 7 is the toxic effects of 2,3,7,8-TCDD 9 in man, are they not, sir? 10 A. They are quoting somebody else's -- 11 Q. Excuse me, Doctor, they are not quoting anybody, 12 that is their text, is it not, sir? 13 A. Yes. 14 Q. And they are not quoting anyone, are they? They 15 are saying positively affirmatively, definitely, without 16 quotes, without hesitation, without equivocation, they are 17 saying the toxic effects of 2,3,7,8-TCDD in man are 18 summarized in Table 7, aren't they, sir? 19 A. Yes. 20 Q. And, Doctor, one of those toxic effects is f 21 cardiovascular disorders, isn't it, sir? 22 A. Yes. . 23 Q. And you do not agree with the statement that one of 24 the toxic effects of 2,3,7,8-TCDD exposure in man is 1 cardiovascular disorder, do you, sir? 2 A. Wot established. 3 Q- My question is, you don't agree with it, do you? 4 A. Ko, sir. 5 Q. Therefore, you disagree with this statement in this 6 protocol, do you not, sir? 7 A. I do not agree with that. 8 Q. And you also say that the fact that you've got 9. heart disease rate of 37 percent higher in your Hitro people 10 are caused by something and not caused by dioxin, don't you, 11 sir? 12 A. Yes, sir. 13 Q- What evidence do you have that it's not caused by 14 dioxin, D r . Roush? 15 A, Because it's the same the people that live outside 16 the plant. 17 Q. What evidence do you have that what those people 18 outside got is not caused by your chemicals? 19 A. You have to have a dose response -- 20 Q. What evidence do you have that their high heart -- 21 what else goes on in ,that Kanawha Valley other than the 22 manufacture of those toxic chemicals, probably all of which 23 can cause cardiovascular disorders not just dioxin, probably 24 all of which can cause it, what else is going on there to 1 cause this high rate in your people? 2 A. Lifestyle. 3 MR. HEINEMAN: Let me object, Doctor. Please let'4 me object. Please. ' 5 MR. CARR: Do you have -- 6 MR. HEINEMAN: I'd like to object to the form of 7 the question. Your Honor. Mr. Carr is stating all kinds of 3 things as to which there is no evidence whatever, so with 3 respect to all other things, in the valley, and it's totally 10 irrelevant to the lawsuit, and I object to it. 11 THE COURT: Objection is overruled. 12 Q. (by Mr. Carr) Doctor, what is there in that valley 13 that you are aware of that can.cause or account for this 14 heart disease other than exposure to chemicals? 15 A. First thing you.say is lifestyle. 16 Q. Do they have a different lifestyle there, sir? 17 A. The people with heart disease have a different 18 lifestyle than those who don't. 19 Q. Doctor, that is because they have got the heart 20 disease. The heart disease came second. 21 A. Yes, sir. 22 Q. Now, Doctor, the lifestyle can't cause the heart 23 disease if you are changing your lifestyle because of the 24 heart disease? 1 A. No, sir. 2 Q. Now, Doctor, what else is there in that valley, do 3 the people in the Kanawha Valley, the Nitro workers, with 4 this 37 percent higher rate, do they have a different 5 lifestyle than you or me or anybody else? 6 A. That's-what causes heart disease. 7 Q. What you are saying for some peculiar reason, those 8 people have a different lifestyle than the average American 9 citizen, and therefore they have got a 37 percent higher -- 10 A. Yes, sir. 11 Q. And, Doctor, then that accounts for everybody then, 12 everybody, the normal American citizen which includes the 13 lifestyles of all of us. What about those people do you have 14 any knowledge that they live any differently than you or that 15 I do? 16 A. No, sir. 17 Q. Then, Doctor, how can you say then that lifestyle 18 causes their heart disease, if you have no such knowledge? 19 You are simply speculating, aren't you, sir? 20 A. No, sir, there are a lot of pockets of high heart 21 disease in the United States that are not exposed to dioxin. 22 Q. Doctor, there is a lot of things that cause heart 23 disease, isn't there? 24 A. They are well recognised, too. 1 Q. No question about that. One of those things is 2 dioxin, isn't it? 3 A. No, sir. 4 Q. Dioxin isn't recognized? 5 A. No,' sir. 6 Q. Well, you don't recognise it, but is there 7 something about those folks at Nitro when Zack-Gaffey looked 8 at that, they looked'at all elements, didn't they, sir? 9 A. All what elements? 10 Q. .All elements that might go into account for those 11 problems? 12 A. No, sir. 13 Q. They didn1't? 14 A. No, sir. 15 Q. Then they just threw that out there and they looked IS into -- why did they look into the heart disease, why did 17 they look into the cancer, why did they look into those 18 things unless they wanted to see whether or not it had a 19 relationship with dioxin, what's the point of the study? 20 A. Describe the mortality experience of that 21 population. 22 Q. Why did they go into the cause of death, just want rL 23 to talk about the mortality experience? 24 A I'm sorry? Why did they go into what caused the ..V. 1 1 death? 2 Q. That's what mortality study is. 3 Q. And they did that because they wanted to see 4 whether or not there was a relationship to dioxin exposure, 5 didn't they, sir? 6 A. Wanted to decide whether or not there was a 7 mortality experience different than a normal community. 8 Q. They found that there was? 9 A. Not different, heart disease was the same as the 10 community. 11 Q. They found it was 37 percent higher than expected, 12 didn't they, Doctor? 13 A. For the non-Kanawha Valley population, yes. 14 Q. Doctor, they found that something about their 15 occupation caused this problem then, is that it? 16 A. No, sir. 17 Q. What about the lung cancer, was the lung cancer 13 caused also because of living in Kanawha Valley? 19 A. Yes. 20 Q. And the genitourinary cancer caused because they 21 are'living there? 22 A. No, sir. 23 Q. That v/as caused by dioxin? 24 A. Yes, sir -- no, sir. i 1 Q. Then it was caused by living in Kanawha Valley? 2 A . No, sir. 3 0. What was it caused by? 4 A. Being exposed to PAB. 5 Q. The bladder cancer was caused by PAB? 6 A.- Yes, sir. 7 Q. And lymphatic cancer was caused by what? 8 A. Lymphatic -- 9 Q. Lymphatic cancer, 92 percent higher was caused by 10 what? 11 A. Those numbers are too small to draw any 12 conclusions. 13 Q. What was it caused by? 14 A. Could be just the little lymphatic cancer that 15 happens in all of us. 16 Q. No, it's 92 percent higher than what happens in ail 17 of us. f 18 A. -You can't do that with only three. 19 Q. Doctor, those are the figures, this figure is taken 20 from your reports? 21 A. Yes, sir. 22 Q. She did it, Sack-Gaffey did it? 23 A. Yes, sir. 24 Q. So don't say you can't do it, because Monsanto did 1 it, did they not do it? 2 A. Yes, sir. 3 Q. And, Doctor, what caused it then, those all other 4 cancers 43 percent higher, what caused that, just living in 5 Kanawha Valley? 6 A. Yes, sir. 7 Q. Then nothing about the occupation of your Nitro 8 workers has anything to do with any disease that they get 9 other than the PAB caused diseases, is that correct, sir? 10 A. That's what that study shows. 11 Q. What the other chemical companies did, however, 12 caused those diseases in your men, in your workers? 13 A. No, sir. 14 Q. Well, that's what we are talking about living in 15 Kanawha Valley caused those problems, we are talking about 16 exposure to the results of chemical companies, all the other 17 chemical companies are at fault and not Monsanto, if I read 18 you correctly? v 19 A. Ho, sir, 20 Q. Well, is Monsanto at fault, sir? 21 A. For what? 22 Q. For causing those problems with the Nitro workers? i 23 A. No, sir. 24 Q. Then is somebody else at fault? 1 A. No, sir. - 2 Q. God hated those people and pointed the finger at 3 those folks? 4 A. No, sir. 5 Q. But it wasn't Monsanto that caused any of those 6 problems, right? 7 A. Besides the PAB? 8 Q. PAB problems caused by Monsanto but none of the 9 others? 10 A. Yes, sir. 11 Q. The other chemical companies caused the problems? 12 A. No, sir. 13 Q. The lifestyles caused the problems? 14 A. Yes, sir. 15 Q. The way those people lived caused them to get lung 16 cancer? 17 A. Yes, sir. 18 Q. All right. And, those ten folks that got that lung 19 cancer lived differently and you know they lived differently 20 than the' fellow that didn't get lung cancer? 21 A. Yes, sir. 22 Q. Now, which one of those persons, identify for me 23 the person that you know that lived differently than his 24 neighbor? 1 A. The chart talks about all those people practically 2 were smokers. 3 Q. Yes, Doctor, so? 4 A . Well -- 5 Q- But this is a higher rate than expected among the 6 smokers? 7 A. No, sir. 8 Q. ` Oh, yes, Doctor, you better read your report again,. 9 Doctor. It's a higher rate because we have established and 10 you have established that exposure to something that can 11 cause cancer can be heightened, can be increased can be 12 promoted by dioxin, which you know to be a fact, don't you, 13 sir? 14 A. Not in man. 15 Q. Not in man? All right. Then, again, this lung 15 cancer was not any responsibility of Monsanto's? 17 A. No, sir. 18 Q. Dioxin didn't cause it at all? 19 A. No, sir. 20 Q. All right. So now, the only thing that you will 21 say that the dioxin exposure had a connection with is the 22 bladder cancer? 23 A. Yes, sir. 24 Q. And everything else is somebody else's fault? 1 A, Hof Sir. 2 0. Well, you said the heart disease is caused because 3 they live in this valley that's surrounded by chemical 4 companies? 5 A. Wo, sir. 6 Q. No, you said it's caused by their lifestyle? 7 A. Yes, sir. 8 Q. Which of those 27 persons, name those persons that 9 had a lifestyle and tell me where you got the information 10 that they lived differently than you and I? 11 A. X don't have that information. 12 Q. Then, Doctor, you don't have the information that 13 their lifestyle is any different than mine or yours or 14 anybody else that doesn't have heart disease, do you, sir?, 15 A. We know what causes heart disease. 16 Q. Excuse me, Doctor, do you have any information that 17 a single one of those persons has a different lifestyle, any 18 information that a single one of those 27 have a lifestyle 19 that causes heart disease? 20 A. Wo, sir. 21 Q. Then, Doctor, what you are saying then it's pure 22 speculation, you are saying that the lifestyle caused it, but 23 you have absolutely not one iota of evidence to suggest that 24 those people did not live a sound, sober, careful life which 1 would prevent heart disease, do you, sir? You don't have a 2 single evidence, all you know is they have got heart disease, 3 isn't that correct, sir? 4 A. Yes, sir. 5 Q. The single fact that you have is that they have got 6 heart disease? 7 A. No, sir. 8 Q. . What other fact do you have other than exposed to 9 dioxin? 10 A. They live in a town that has the same kind of heart 11 disease as our workers. 12 Q. But, Doctor, you said it's caused by lifestyle and 13 not by the chemical companies is what you said now. You said 14 this heart disease was caused by lifestyle? 15 A. Yes, sir. 16 Q. Now, does the people in that valley have a 17 different lifestyle than anybody else? * 18 A. I would presume so. 19 Q. Do you know they do? 20 A. No, sir. 21 Q. You don't hav.e any evidence that a single one of 22 them has a different lifestyle than anybody else, do you? 23 A. No, sir. 24 Q. They have the same lifestyle that you have and that Ih-jV l *!"-***< > *1 ^--A > ^ >*>^ l 1 I have, don't they, sir, so far as you know? 2 A. No, sir. 3 Q. Do you have some knowledge that they have a 4 different lifestyle? 5 A. They have. 6 Q. What is the knowledge that you have as to their 7 different lifestyle? 8 A. Because they have got heart disease. 9 Q. Doctor, you are saying because it's a horse it was 10 caused by something else. Now, Doctor, I want to know the 11 evidence upon which you.base your statement that they have a 12 different lifestyle other than the fact that they got heart 13 disease? 14 A. Because they got heart disease they got different 15 lifestyle. 16 Q. So everybody that has got heart disease got a 17 different lifestyle is what you are saying? 18 A. Yes, sir. % * 19 Q. So if we all changed our lifestyle, none of us 20 would have heart disease? 21 A. I can't go that far. 22 Q. No, you can't go that far you know that chemicals 23 cause heart disease? 24 A. No, sir. ^ - ___ _. - - -- . ----- --- '--V -- -- 3. jjwKfi 1 Q. You know that -- you don't know that either? 2 A. No, sir. 3 Q. Doctor, then those people that have it at a higher, 4 all the people that have heart disease are in the group of 5 expected, aren't they, sir, they look at the total 6 population, don't they, sir? 7 A. I 'm sorry? 8 ' Q. There is all kind of lifestyles in this total 9 population, isn't there, sir? 10 A. Yes, sir. 11 Q. And when they say 37 percent higher, they are 12 talking about a normal population that includes all kinds of 13 lifestyles, aren't they, sir? 14 A. Yes, sir. 15 Q. Doctor, if lifestyle is the only cause of heart 16 disease, then Northwestern University is dead wrong when they 17 say that cardiovascular disorders can be caused by chemicals, 18 aren't they, sir? 19 A. I don't think Northwestern said that. 20 Q. Doctor, didn't we just go through that? 21 A. Yes, sir. 1 22 Q. And didn't you agree that they did say that? 23 A. That's what they said. 24 Q. All right. Doctor, please don't tell me again that fe'SirW 1 you don't think they said that when you know they did say. 2 it. Let's pass on from that. Doctor, is there any evidence, 3 at all that you have that dioxin does not cause heart 4 disease? 5 A. No, sir. 6 Q. Doctor, what you are saying is that you don't have 7 any evidence that dioxin does not cause heart disease. We 8 have the evidence here that people exposed to 'dioxin got 'a 9 rate 37 percent higher than expected. We have got 10 Northwestern's statement that cardiovascular disorders are 11 caused by dioxin exposure and we have other scientists that 12 say the same thing. And you have no evidence to counter it, 13 isn't that the state of where we are right now, Dr. Roush? 14 A. No, sir, others say the same thing X say. 15 Q. Who says that? IS A. ANA says that. 17 Q. Says what, says dioxin doesn't cause heart disease? 18 A.. No evidence that it causes heart disease. 19 Q. Is that the equivalent to saying dioxin does not 20 cause it? All they are saying, it's not yet been proved to 21 their, satisfaction? _rt ' 22 A. Yes, sir. 23 Q. And part of what they are saying is'based upon 24 studies like 2ack-Gaffey, isn't that correct, sir? 1 A, Yes, sir, that showed the 37 percent higher. 2 Q. Part of what they are saying is based upon a study 3 that you know and based upon Suskind's study, a study you 4 know to be a fraud? 5 A . No, sir. 6 Q. Doctor, that's what you testified to? 7 A. That they are frauds? 8 Q. Yes, the Suskind -- you said if he did not report 9 the cancers that were reported to him, that it was a fraud, 10 do you recall saying that, sir? 11 A,. Not that Irecall. 12 MR. HEINEMAN: Object, Your Honor, that certainly 13 was not my recollection of his testimony. 14 THE COURT: Objection overruled. 15 Q. (by Mr. Carr) Doctor, thosepositions that others 16 have taken as far as humans are concerned, are based in good 17 'part upon things that Monsanto has printed or had cause to be 18 printed, and said, and things' that you did, press releases 19 that you sent out and studies that you had, isn't that 20 correct, sir? 21 A. Yes, sir. 22 MR. CARR: Your Honor, I have noon. 23 THE COURT: Okay. And, Ladies and gentlemen, we 24 will break for lunch at this time. Vie will resume again at 1 one o'clock. The admonishments that I normally give to you 2 during the break will apply during this lunch break also. 3 Court is in recess for lunch; 4 (Following a recess for the lunch hour, these proceedings 5 were had in open court.) 6 THE COURT: Mr. Carr. 7 Q. (by Mr. Carr) Dr. Roush, at the break or sometime 8 before the lunch break you mentioned that it was not your 9 testimony that Chloracne was the only result that could occur 10 from exposure to 2,3,7,8-TCDD, do you recall that, sir? 11 A, Yes, sir. 12 Q. And, you recall your testimony on the 30th of May, 13 1985 at Page 196 Line 8, Doctor, whether or not this question, 14 was asked you. 15 MR. HEINEMAN: Excuse me, what date? 16 MR. CARR; 'May 30th, 1985. 17 Q. Now along that line it is your belief, is it not, 18 sir, that acute exposure to 2,3,7,8-TCDD will cause Chloracne 19 and in the long run that Chloracne is the only adverse human 20 health effect from exposure to 2,3,7,8-TCDD and.your answer 21 was yes? 22 A. That was for chronic exposure. 23 MR. HEIMEMAN: The statement says in the long run. \ 24 Q. Yes, indeed. 1. A. Chronic exposure, yes. Acute, all those things we 2 had listed. All of those of concern. 3 Q, What you are saying is that you can get all of 4 those things? 5 A. Or some of them. 6 Q. Well, is it all of them or some of them? ( 1 A, There are a question on many of them, but some of 8 them will surely occur if the exposure is high enough. 9 Q. And, you'll have those problems then for the rest 10 of your life? 11 A . Mo, sir. 12 Q. Then what you are saying is that there is no 13 long-term effect from exposure to dioxin except Chloracne? 14 A. Yes, sir.. 15 Q. And that is the position that you take and have 16 taken? 17 A. Yes, sir. 18 Q. That all the other problems that come from exposure 19 to dioxin will -- it will be either Chloracne, or it will go 20 away? 21 A. Yes, sir. 22 Q. And you also believe that you can't get any 23 ,problems from chronic low-dose exposure to dioxin, isn't that 24 correct, sir? 1 A. If you don't get Chloracne? 2 Q. Yes. And, it's perfectly all right to be exposed 3 to as much dioxin on a long-range basis as there may be and* 4 if it doesn't cause Chloracne, it's not going to cause any 5 problems, isn't that correct, sir? 6 A. Yes. 7 Q. Yes. So, and that is the philosophy by which 8 Monsanto has been guided with it's own workers, with the 9 people at Sturgeon, and with the public' at large, isn't that 10 correct, sir? 11 A. No, sir. 12 Q. No? Well, is that what Monsanto believes to be the 13 case? 14 A. What does Monsanto believe? 15 Q. As I posed.it to you, sir, that if you don't get 16 Chloracne, it doesn't make any difference how much dioxin you 17 are exposed to, and over how long a period of time you are 13 exposed to it, if you don't get Chloracne, you are not going 19 to have any other ill effects from it or any ill effects from 20 it? 21 A. Yes, sir. 22 Q. And that is the philosophy by which Monsanto has 23 been guided in its handling of exposure of it's own workers 24 to dioxin, the exposure of the public to dioxin and the 1 exposure of people of Sturgeon to dioxin, isn't that correct, 2 sir? 3 A. Yes, sir. 4 Q. And there has been none of the facts that you at ^ 5 Monsanto have learned, since the spill at Sturgeon, up to and 6 including the present time, to change that view and that 7 philosophy, isn't that also correct, sir? 8 A. Yes, sir. 9 Q. And for all of the items that we have pointed out XO here that have come from your own study, from your-own 11 employees, from your own work, you have some explanation for 12 what might appear to be as something caused by long-term 13 exposure to dioxin. You'd have some other explanation for 14 that other than dioxin, do you not, sir? 15 A. Yes, sir. 16 Q. And in the instance of the heart disease, your 17 explanation is that all of the people of Kanawha Valley have 13 a lifestyle that causes in them a higher rate of ^ 19 cardiovascular disease than the rest of the country, isn't 20 that correct, sir? 21 A. Not the rest of the country. There are other areas 22 that of the United States that have just as high heart 23 disease as in the Kanawha Valley, * 24 Q. But the population at large, what is considered the i United States population that the heart disease rates that 2 are taten from that includes those other areas, the people of 3 the Kanawha Valley, have their heart disease because they 4 live a different lifestyle than the rest of the people that 5 do not yet this high, do not have this high rate of heart S disease? 7 A. Yes, sir. 8 Q. And, it is your belief that since all the people in S the Kanawha Valley have this -- well, have you done anything 10 to investigate the truth of that statement or the accuracy of 11 that statement that all of those people in the Kanawha Valley 12 have a different lifestyle than the rest of the country? 13 A . No, sir. 14 Q. Other than those pockets? 15 A. Wo, sir. 16 Q. Then that again is a statement that you at Monsanto 17 insist upon that has absolutely no basis in fact, or 18 evidence, or proof, isn't that correct, sir? 19 A. Wo basis for v/hat? 20 Q. For the statement that the people in Kanawha Valley 21 have a higher heart disease rate than the rest of the country 22 because they live a different lifestyle than the rest of the 23 country? 24 A. I didn't say rest of the country, I said there are 1 other pockets of excess 2 Q. Excluding those other pockets as well that have a 3 high rate of heart disease, there are other pockets of the 4 country that have a high cardiovascular heart disease, right, 5 sir? 6 A. Yes, sir. 7 Q. And it is your belief that Kanawha Valley1s 8 lifestyle and those other pockets of the country, have a 9 lifestyle that causes the heart disease that they have? 10 A. Yes, sir. 11 Q. Now, have you done any investigation, and by you I 12 mean not only you, but, any scientific authority that you 13 have previously, have you done any investigation, have you 14 seen any investigation of the lifestyle of the people of the 15 Kanawha Valley to support your statement that their lifestyle 16 is responsible for their high heart failure rate. 17 A, Haven1t done any studies but there are other -- 18 Q. Have you seen any studies that others have done to 19 support your position that the style of life, the way the 20 people in Kanawha Valley live and comfort themselves, is 21 responsible for their heart disease, have you seen any 22 studies by anybody that says that? 23 A. I've seen other studies that have shown that 24 lifestyle in other countries that have -- 1 Q. Doctor, I'm asking you specifically about the 2 Kanawha valley, have you seen any study from anybody that 3 says it is the lifestyle of the people of the Kanawha Valley 4 that's causing their heart disease to be higher, have them 5 have more heart disease, more heart failures, more heart 6 deaths, that it's their lifestyle that is causing that? 7 A . No, sir. 3 Q. Doctor., then what you are saying, then, is absolute 9 speculation? You have absolutely not one iota of proof that 10 the people of Kanawha Valley have a lifestyle that's 11 different than anybody else's, isn't that correct, sir? 12 A. Yes, sir. 13 Q. And as a matter of fact, I'll go farther than that, 14 the evidence you've been to Kanawha Valley, you are a doctor, 15 head of the department that has an important plant there, 16 you've been there many many times, have you not, sir? 17 A. Yes, sir. 13 Q. And have you observed anything about their 19 lifestyle, have you read anything about their lifestyle in 20 th newspaper, in the magazine, have you seen anything at all 21 about those people of Kanawha Valley that would suggest to 22 you that they live a different lifestyle than we do here in 23 St. Clair County? 24 A. No, sir. 1 -i 1 Q. And, Doctor, then what you do know, though, about 2 Kanawha. Valley is that they have the Nitro Monsanto plant 3 there, and have had it there for how many years, sir? 4 A. Early forties at least. 5 Q. You also know that all during that time, up to 6 1970, that Nitro Monsanto plant was producing chemicals 7 emitting fumes from that production of those chemicals into 3. that community that have when they we re producing dioxins, 9 you know that, too, don't you, sir? 10 A. Know what? 11 Q. That all during that period of time, your Nitro, 12 West Virginia plant in the Kanawha Valley was producing 13 dioxins? 14 A. Part of that time. IS Q. Do you have any -- was there any part of that time 16- when they were not producing dioxins to your knowledge? 17 A. Oh, yes. 18 Q. When was that, sir?19 A, In the early '40's and before, back into the '30's. 20 Q. Well, they started producing their dioxins then in 21 the mid-forties, did they, sir? 22 A. I'm not sure exactly, but something about them, 23- Q. - They continued to produce those dioxins until at 24 least 1970, did they not? 1 A. '69. 2 Q. '69. They produced their dioxins then for 20 3 years, didn't they, sir? 4 A. Just about. 5 Q. And you know that the fumes from that plant 6 producing those dioxins, the steam, the vapor, the dust, 7 everything else associated with that plant in that valley, 8 was exposed to those dioxin contaminants, wasn't it, sir? 9 A. To a degree. 10 Q. Now, you know that dioxin was going into that 11 community and you know that it had, thatentire community had 12 a higher rate of heart disease and heartfailure than the 13 rest of the country, other than pockets of communities, and 14 one thing that you do know is that the dioxin was there, but 15 you do not know that their lifestyle was anything different * 16 than anybody else's anyplace else. As a matter of fact, you 17 know that their lifestyle was the same as everybody else's in 18 every other place in this country, you know that for a fact? 19 A.' No, sir. 20 Q. You don't know that, sir? 21 A. No, sir. 22 Q. Well, did you observe anything that they did 23 differently, lived differently in the Kanawha Valley than we 24 do here in East St. Louis or Belleville or St. Louis, 1 Missouri? 2 A. No, sir. 3 Q. What you observed is that they live exactly the way 4 we do? 5 A. No, sir. 6 Q. Oh, did you observe that they live differently than 7 the way we do? 8 A. Sir? No, sir. 9 Q. What you observed was they lived the same as we? 10 A. No. 11 Q. You can't be both ways. You observed their 12 lifestyle , did you not, sir? 13 A. No, sir. 14 Q- You didn't? 15 A. No, sir. 16 Q. All those years of going to Kanawha Valley you did 17 not observe the way the people lived? 18 A. No, sir. 19 Q. You didn't, sir? 20 A. No, sir. 21 Q. Did you have conversations with those people that 22 you talked to in Nitro, West Virginia? 23 A. Yes, sir. 24 Q. And did you talk about<>ordinary things, hey, did 1 you go motor boating this weekend or skiing or did you go to 2 opera, did you look at the television antenna or did you go 3 to the movies and eat popcorn, didn't you have those 4 conversations with those people? 5 A. Yes. 6 Q. Didn't you read their newspapers? 7 A. Yes. 8 Q. Didn't you see those people on the street? 9 A. Yes, sir. 10 Q. You saw them doing everything exactly the way the 11 rest of us in America live, didn't you, sir? 12 A. No, sir, not as far as their lifestyle. 13 Q- What did you see that'they did differently? 14 A. I don't know what foods they ate. 15 Q. My question is what did you see that they did 16 differently than the rest of us? 17 A. Nothing. 18 Q. What you saw, what you observed, the physical 19 evidence that you saw, was that they did everything the same 20 as the rest of us, saw no difference, did you, sir? 21 A. No, sir. 22 Q. Isn't that correct? 23 A. Yes, that's right, 24. Q. The difference that you know, though, that exists 1 in Kanawha Valley is that Monsanto for 20 years put fumes 2 into that community from its dioxin making process, you know 3 that, don't you, sir? 4 A. Yes. 5 Q. Now, can you not conclude, or is it not possible, 6 sir, that of the facts that you have, the facts that are in 7 your possession, a higher heart disease rate in Kanawha 8 Valley, 37 percent higher you said than the rate of your 9 workers is the same as the rest of the community, what you 10 saw was in this pocket, the same observable lifestyle that 11 you saw elsewhere, and you know that the dioxin was coming 12 into that community for 20 years, and you see the heart 13 disease. Is there any other factor of which you are aware, 14 that you have knowledge of, other than the contamination of 15 that community by Monsanto, that could account for this heart 16 disease rate? 17 A. The lifestyle -- 18 Q. Could you answer my question, please, sir? 19 A. No, sir. 20 Q. You can't answer my question or your answer is no, 21 sir, you don't know of anything except the dioxin to account 22 for the heart disease rate? 23 A. I know-of nothing else besides the lifestyle that 24 v can account for. 1 Q. Sir, you don't know the lifestyle, you already said 2 as far -as you have observed it's the same as everybody else's 3 is what you have said, sir. What you also have said is that 4 the dioxin contamination goes into that community from 5 Monsanto and that that is the only factor that you know of 6 that's different in that community, isn't that correct, sir? 1 A . No, sir. 8 Q. What other factors do you know of that's different a in that community? 10 A. We haven't looked at the risk factors -- il Q. My question is what other factors do you know of? 12 You said you haven't looked. I want to explore our 13 knowledge. What else do you know of other than the dioxin 14 contamination of that community to account for that high 15 heart disease rate? 16 A. Nothing. 17 Q. Thank you, Doctor, Doctor, insofar as the 18 porphyrins*which you said that oniy Dr. Suskind called the 19 porphyrins abnormal from the Nitro workers, you yourself have 20 called those porphyrin results, not those same porphyrin 21 results, but porphyrin results to be porphyrin abnormalities, 22 have you not, sir? 23 A. ' Which porphyrin abnormalities? 24 Q. The 26 that you had at Mayos. Could you get 1 Exhibit 1447, please? Handing you 1447 A, you recognize that 2 as your handwriting on the top of that list, do you not, sir? -J1 A, Yes, sir. 4 Q. Z^nd, v/ould you read those words that you wrote on 5 the top of that document, sir? 6 A. Porphyrin abnormalities. 7 -Q. And, you. recall the 25 results -- Your Honor, I 8 know I had that blown up, but I don't see it here, I don't 9 know what I did with it. 10 THE COURT: Tammy, would that be in that room out 11 there possibly? 12 HR. CARR:' Did somebody change those around? They 13 are in order going which way? It's marked 1433 that's why. 14 Thank you. 15 Q. (by Hr. Carr) Doctor, the Exhibit 1433 which is 16 the blow-up of your 1447, 1447 A, is the porphyrin 17 abnormalities that you had of the 26 Nitro workers, isn't -it, 18 sir? 19 A. Those are Ellefson's abnormals. 20 Q. Those are Ellefson's findings. It is your writing 21 called them.porphyrin abnormalities? 22 A. Yes, sir. 23 Q. Yes, So, those people had those porphyrin 24 abnormalities, you called it in 26 of them, and Suskind 1 called it in a larger number , because he saw a larger number 2 of people, isn't that correct, sir? 3 A. Those are not my abnormalities. 4 Q. Doctor, you saw those results that were given to 5 you by Mayos? 6 A. Yes, sir. 7 Q. You have been working in laboratories, you said 3 yourself yesterday you have? 9 A. Yes, sir. 10 Q. You wrote at the top of those the words porphyrin 11 abnormalities, did you not, sir? 12 A. Yes, sir. 13 Q. And you described those as porphyrin abnormalities, 14 did you not, sir?. 15 A. Based'on Ellefson's normals?. 16 Q. Yes. 17 A. But I am -- 18 Q. Based on" any laboratories normals, that's the way 19 you tell whether they were abnormal, based on those 20 laboratories normals, isn't that correct, sir? 21 A. Yes, sir. 22 Q. And, those are porphyrin abnormalities,, aren't 23 they, sir? 24 A. Yes, sir. 1 Q, Now, Doctor, is there anything, and those are the 2 Nitro v/orkers part of whom at least, if not all of whom, only 3 part of whom were in this Suskind morbidity or health study, 4 isn't that correct, sir? 5 A, I'm sure part of them v?ere. 6 Q. Doctor, those are abnormalities caused by the only 7 element that you know of, they have in common is dioxin 3 exposure, isn't that correct, sir? 9 - A. No, sir. 10 Q. Is there something else that those men have in 11 common, to your knowledge, sir, that you have knowledge of, 12 not yourspeculation, not your guessing, is there something 13 else that those men have in common, other than exposure to 14 .dioxin? 15 A . No, sir. 16 Q. And, Doctor, we have established that not only have 17 the Suskind workers, the people in the Suskind study had 18 exposure many years prior to that time, those workers, some 19 of them have the exposure to the dioxin only back in the 1949 20 incident, isn't that correct, sir? 21 A. I don't know that, but it could 'be. 22 Q. And those are many years later, isn't that, if 23 their porphyrins were caused to be abnormal by exposure back 24 in the '40's or the '50's, and they still have it in 1984 1 when you took it to Mayos clinic, -isn't that -- 2 A. Those aren't my numbers. 3 Q'. Sir? 4 A. I didn't take those to Mayo. 5 Q. You sent them to Mayo? 6 A. No, sir. 7 Q. Somebody for Monsanto sent them to Mayos, when I 8 say you, I don't mean you specifically, I mean agents, 9 employees, attorneys, doctors, v/hatever it is, 10 epidemiologists, whatever it is, somebody in behalf of 11 Monsanto? 12 A. No, sir. 13 Q. Doctor, you at Monsanto sent those to Mayos? 14 A. No, sir . 15 Q. Who did? 16 A. Carnov?. 17 Q- Carnow sent those? 18 A. Yes, sir. 19 Q. From the Nitro workers? 20 A. Yes, sir. 21 Q. And you talked to Dr. Ellefson about Carnow*s? 22 A. Yes, sir. 23 Q. So Carnow was the one that sent those to Mayos? \ 24 A. Yes, sir. 1 Q. And you discussed it with Mayos? 2 A. Yes, sir. 3 Q. And, even knowing that you still wrote on it 4 porphyrin abnormalities? 5 A. By his definition, yes. 6 Q. ' You do know that those were then urine samples of 7 the Nitro workers that Dr. Ellefson has called abnormal from 8 exposures that happened many many years before, do you not, 9 sir? 10 A. No, sir. 11 Q. You don't know that? 12 A. No, sir. 13 Q. Well, didn't they say that they were in the '49 14 accident, some of those, and that had no other exposure other 15 than the *49 accident, or at least had no exposure since 16 1969? 17 ' A. Yes. Yes, sir. 18 Q. And that was exposure that would have ended ten 19 years, I'm sorry, '69 and *84, fifteen years before those 20 tests were run, isn't that correct, sir? 21 A. Yes, sir. 22 Q. The very latest exposure that any of those people 23 could have had to dioxin in the manufacturing process at 24 least, would have been then fifteen years old, wouldn't it, 1 sir? 2 A, Yes, sir. 3 Q. Now, isn't something that persists and lasts for 4 fifteen years called chronic? 5 A. Xf indeed this lasted that long. 6 Q . Yes, indeed, assuming that it's lasted for fifteen 7 years, isn't that chronic? 8 A. Yes. 3 Q. And if this was caused by dioxin and it's lasted 10 for fifteen years, wouldn't those abnormalities be considered 11 then a chronic result of exposure to dioxin? 12 A. Yes. 13 Q. Yes. Now, Doctor, do you have any evidence, any 14 proof, anything that those men got their chronic porphyrin 15 abnormalities from some source or some cause other than the 16 dioxin exposure? 17 A. Dioxin doesn't cause all those things. 18 Q. Excuse me, Doctor, could you answer that question, 19 please, sir? 20 A. Would you repeat the question? 21 (Court Reporter read back the previous question.) 22, A. My answer is dioxin doesn't cause those, things. 23 Q. Doctor, I want you to assume that Dr. Ellefson has 24 testified in this case in a deposition that dioxin will cause 1 those porphyrin abnormalities that are on this board? 2 A. Yes,- sir. 3 Q. Nov/, assuming that, sir, is there anything that you 4 know of, other than the exposure of those men to dioxin, that 5 could account for their porphyrin abnormalities some fifteen 6 years after their exposure? 7 MR. HEINEMAN: Excuse me, Your Honor. Mr. Carr, 8 when you are asking him to assume that, you are asking him to 9 assume those types, obviously Dr. Ellefson didn't testify in 10 this courtroom about those individuals. 11 MR. CARR: Not about those individuals, he 12 testified that each of those findings of those abnormalities 13 that the copro and the porphyrin bilinogens and the uros, 14 all, they all have either the porphyrin bilinogen uro or 15 copro, that each of those are indication of intoxication 16 porphyria and that each can be caused by exposure to dioxin. 17 I'd like for you to assume that he has testified too that, 18 sir. Now, is there anything that you know of, sir, other 19 than the fact that those men were exposed to dioxin fifteen 20 years before to-account for those porphyrin abnormalities? 21 A. Dioxin doesn't cause that. 22 MR. CARR: Your Honor, would you direct the witness 23 to answer my question? 24 THE COURT: Dr. Roush, you have to answer the 1 question as is posed to you. You have to answer it taking 2 into consideration those factors that have been told to you 3 as matters that you must assume, and that either by not 4 objecting or by my overruling an objection I 've agreed'that 5 you have to assume. 6 A. I understand. 7 THE COURT: So please answer the question as it is 8 posed to you, the question with the assumptions. 9 A. Would you repeat that for me? 10 (The Court Reporter read back the previous question.) 11 A. No, sir. 12 Q; Nov/, Doctor, I also asked you this morning about 13 what Monsanto required from other chemical companies when it 14 purchased chemicals from others, and I think I promised you 15 that I would show you some documents to support the statement 16 that I made. And, do you recall, sir, being asked by various 17 employees of Monsanto to give them what you would, whether or 18 not you would consider that marketing a product with no 19 detectable 2,3,7,8-TCDD would be appropriate, do you recall 20 anything like that, specifically talking about ROUNDUP? 21 A. Yes, sir. 22 Q. You do recall that? 23 A. Yes. 24 Q. I hand you now what's been marked Plaintiff's 1 Exhibit 1439, and ask you if you recognize that as a company 2 confidential query that was addressed to you dated August 3 12th, 1983? 4 A. Yes, sir. 5 Q. Offer 1489 into evidence, if it please the Court. 6 MR. HElNEMAN: What's the number, I'm sorry? 7 THE COURT: 1489. 8 MR. CARR: , 1489, I believe. 9 MR. HEINEMAN: Your Honor, we would object only on 10 the basis that it's our understanding that it's somebody 11 else's product, 2,4-D, that's being talked about here, and I 12 don't think it's relevant to the issues in this case. 13 THE C.OURT: Okay. Objection is overruled. 1489 is 14 admitted over objection. 15 Q. Doctor do you recognize.1489 A as being the second 15 page of that exhibit? 17 A. Yes, sir. 18 MR. CARR: Offer 1489 A, 'as well, Your Honor. 19 THE COURT: Same objection? 20 MR. .HEINEMAN: I didn't know what 1489 -21 THE COURT: It's the second page of 1489. 22 MR. HEINEMAN: Blow-up? 23 THE COURT: Blow-up. 24 MR. CARR: Yes. 1 MR. HEXNEMAN: Same objection. 2 THE COURT: I'll incorporate those objections. Same 3 ruling. '4 Q. Doctor, to put this exhibit in appropriate 5 perspective, it points out that Monsanto planned to market 6 something, a mix of ROUNDUP and 2,4-D in 3rasil and the 7 United States, starting in -- apparently wanting to do it 8 some time after August of "83, isn't that correct, sir? 9 A, Yes, sir. 10 Q. And, who is Mr. Harness, who is Robert Harness? 11 A. I'm not sure what his title is, he's with the 12 Agricultural Division. 13 Q. In any event, he was concerned about whether or not 14 2,4-D might cause any possibility of health and environmental 15 effects, was he not, sir? IS A. Yes, sir. 17 Q. And, because of that, he asked you whether or not a 18 product that we could buy from Dow that would have no 19 detectable limits, no detectable 2,3,7,8-TCDD, and no more 20 than 10 parts per billion of all the other dioxins, whether 21 or not that-would present .any unreasonable adverse risk to 22 human health or the environment, did he not, sir? 23 A. Yes, sir. 24 Q. Apparently he was concerned that whether or not 1 even if there was, even no more than 10 parts per billion of 2 all the other dioxins, whether or not that would present a 3 health hazard, wouldn't it, sir? 4 A. Yes, sir. 5 Q. And, you also got about the same time, X suppose 6 you asked your toxicologist what he thought about it, did you 7 not, sir, Mr. Levinskas? 8 A. He did that before I saw it. 9 O. Well, you got it on the 12th, I've got a memo of 10 his dated the 18th, so that couldn't very well be, but I 11 won't quarrel with you on it. Handing you now Plaintiff's 12 Exhibit 1490, I'll ask you do you recognize that as a memo 13 written to you by Dr. Levinskas, I suppose he's a Ph.D., 14 Levinskas? 15 A. Yes, sir. 16 MR, CARR: Offer that exhibit into evidence. 17 THE COURT: Any objections? 18 MR. HEIHEMAH: Same objection as with respect.to 19 1439, Your Honor. 20 THE COURT: Fine, I'll incorporate those 21 objections. Same ruling. It's admitted over objection. 22 Q. Doctor, you recognize 1490 A as being a blow-up of 23 1 4 9 0 ? 24 A. Yes, sir. 1 MR. CARR: Offer 1490 A into evidence, if it please 2 the Court. 3 THE COURT: I'll incorporate the same objections.' 4 MR. HEINEMAH: Yes, please, Your Honor. i 5 THE COURT: Admitted over objection. 6 Q. Doctor, the thing that is being inquired of by 7 those exhibits is not just for a product to be sold in 8 Canada, but it's for a product to be sold in the United 9 States and Brazil-, isn't that right, sir? 10 A, Yes, sir. 11 Q. And so, somebody at your plant is wanting to use 12 something manufactured by Dow that has no detectable levels 13 of 2,3,7,8-TCDD in the United States, aren't they? 14 A. At the one part per billion detection level. 15 Q. Isn't that correct, sir? 16 A. At theionepart per billion detection level. 17 Q. Is the answer to my question yes, sir, with that 18 addition to it? 19 A. Yes, sir. 20 Q. You say yes when you add that? 21 A. That's correct. 22 Q. All right, fine. Doctor, handing you now \ 23 Plaintiff's Exhibit 1491, I'll ask you if that isn't your 24 response to the memo that was addressed to you by Mr. 1 Harness? 2 A. Yes, sir. 3 MR. CARR: Offer 1491 into evidence, if it please' 4 the Court. 5 THE COURT: Any objections? 6 MR. HEINEMAN: If you would please incorporate th 7 same one, Your Honor. <8 THE COURT: Sure, so incorporated. Same ruling. 9 Q. Doctor, do you recognize 1491 A as a blow-up of 10 1491? 11 A. Yes, sir. 12 MR. CARR: Offer 1491 A into evidence. 13 THE COURT: I'll incorporate the same ruling. 14 Q. Nov;, Doctor, prior to the time -- strike that. 15 Doctor, I hand you what's been marked as Plaintiff's Exhibit 16 1492 and 1492 A, I'll ask you whether or not both 1492 A is a " 17 page from 1492, I'll ask you whether or not both of those 18 documents are documents by Monsanto dealing with ROUNDUP? 19 A. Yes, sir. 20 MR. CARR: MR. CARR: I'll offer 1492 A into 21 evidence' which is a page from 1492. 22 MR. HEINEMAN: I'm confused. I have 1492. 23 THE COURT: *A. 24 MR. CARR: 1432 is the original full document, 1492 1 A is a page therein. I'm not offering the full document, 2 just the pertinent page. Offer those exhibits, Your Honor. 3 THE C.OURT: Do you have any objections? 4 MR. HEINEMAN: If you would please incorporate the 5 same objection, Your Honor. 6 THE COURT: Sure. 7 MR. HEXNEMAN: As to 1492 A. 8 THE COURT: Sure. Admitted over objection. Same 9 ruling. 10 Q. Nov?, Doctor, the last exhibit just referred to at 11 the bottom of the page says, "Notes: (1) Must have no 12 detectable 2,3,7,3-TCDD isomer and less than 0.01 ppm total 13 for all detected dioxin isomers, when analyzed by a method 14 with a limit detection of 0.001 parts per million for. each 15 isomer." You see that, sir? 16 A. Yes, sir. 17 Q. Now .001 parts per million is 10 parts per billion, 18 is it not, sir? 19 A. Yes, sir. 20 Q. And .001 parts per million is one part per billion, 21 is it not? 22 A. Yes, sir. 23 Q. And those specifications that Monsanto established 24 from the product that it was going to buy from Dow were 1 specifications that you at Monsanto set for Dow before you 2 would agree to buy their product, isn't that correct, sir? 3 A. I don't know, but I assume that's right. 4 Q. Well, I'm not asking you to assume anything, 5 Doctor. Would you mark this. Hand you now what's been 6 marked Plaintiff's Exhibit 1493 and see if you recognize that 7 as a memo dealing with this product dated June the 13th, 8 1983? 9 A. Yes, sir. 10 Q. Offer 1493 into evidence, if it please the Court. 11 THE COURT: Any objections? 12 MR. HEINEMANj Let me read it for a moment, please, 13 Your Honor. 14 THE COURT: Sure. 15 MR. HEINEMAN: Your Honor, if the Court would 16 incorporate the same objection as with respect to the prior 17 documents relating to this questioning. 18' THE- COURT: Sure. They are so incorporated. Same 19 ruling. It's admitted over objection. 20 Q. Doctor, this document 1493 written by Dr. Richark 21 C. Dirks. Who is he? 22 A. He is one of the toxicologists that work for Dr. 23 Levinskas 24 Q. And Dr. Levinskas works for you? 1 A. Yes, sir. 2 Q. So he's one of your, one of the persons that you 3 supervised, direct and control, is he not? 4 A. Yes, sir. 5 Q. Those other people's names, who is E, J. Brandt? 6 A. I'm not sure of her title, she works for the Ag 7 Division. 8 Q. Those other people that are named there are all 9 people that are either toxicologists o.r connected with the 10 sale of this product? 11 A. Yes, sir. 12 Q. Doctor, the fourth paragraph of this document 13 dealing with a potential source of concern that the author of 14 this document, I suppose, Monsanto itself had with a possible 15 contamination of that which it was going to buy from Dow with 16 dioxin. Isn't that correct, sir? 17 A. Yes, sir. 18 Q. And, it points out that while Dow has'agreed to 19 meet Monsanto's specifications, that is, no 2,3,7,8-TCDD, and 20 not more than 10 parts per billion of the other dioxin 21 isomers, it points out that you are going to check those 22 shipments from Dow yourself, in your ultra trace laboratory 23 in Dayton, doesn't it, sir? 24 A. It was the recommendation that they do it. 1 0. Yes, now, why would they want to do that in view of 2 the fact that the statement that we believe Dow to be a 3 completely responsible company, why would Monsanto want to 4 check this product being sold by Dow? 5 A. To insure they had met that standard. 6 Q. To insure that it has no 2,3,7,8-TCDD for one . 7 thing, isn't that correct? ' 9 A. No, at one part per billion sensitivity. 9 Q. ' Well, that's what you can check it for, that's the 10 way you check it. Did you have sensitivity better than one 11 part per billion, sir, in your instruments? 12 A. We can go into parts per trillon. 13 Q. Parts per trillon I thought, Doctor, was in the 14 tissue and things of that sort? 15 A. I can't answer that. 16 Q. In any event, you didn't want to see, to have any 17 product that had any 2,3,7,8 in it, did you, sir, so far as 18 you could tell? 19 A. Yes. 20 Q. Now, the statement that you believed Dow to be a 21 completely responsible company, do.you mean by that or is it 22 meant-by Monsanto in this document that a responsible company 23 would not ship out something that has 2,3,7,8-TCDD in it but 24 that perhaps an irresponsible company might do so. 1 MR. HEINEMAN: Object to the form of the question, 2 Your Honor, calling for speculation and conclusion as to what 3 the author of this document meant. 4 THE COURT: Overruled. 5 A . No, sir . 6 Q. That's not what you mean by this document then, is 7 that, right, sir? 8 A. No, sir. 9 Q. Well, when you say we consider, "We believe Dow to 10 be a completely responsible company, however, in the present 11 social climate considering dioxins, we consider it prudent to 12 acquire first-hand knowledge, first-hand information, 13 first-hand Monsanto information regarding dioxin levels in 14 this product." You see that sentence, sir?. 15 A. Yes, sir. 16 Q. That means that while you think Dow is responsible, 17 you believe they are completely responsibility -- it's 18 possible-that they could ship you something that has g o t .: 'r 19 detectable levels of 2,3,7,8-TCDD in it, isn'.t that right, 20 sir, you want to check and make sure that doesn't occur? 21 A. Yes, sir. 7 22 MR. HEINEMAN : Doctor, please, let me make my ' * s'*7 23 objection. Your Honor, may my objection with respect to; 24 calling for this witness1 speculation with respect to what 1 the author of the document intended be a continuing one 2 throughout the course of this examination on this document? '. 3 THE COURT: Itfs noted as a continuing objection. ' 4 It is overruled, I don't believe it calls for speculation. 5 It is noted as a continuing objection. 6 Q. (by Mr. Carr) Nov/, would a company that's 7 irresponsible -- would a company that's irresponsible ship 8 dioxins out, sir, in its product, "they knew that the product 9 had dioxins in it? Irresponsible company ship that stuff 10 out? 11 A. I don't know. 12 Q. You don't know whether an irresponsible -- isn't 13 that, sir, what Monsanto is -- something that you want to 14 make sure doesn't happen to you? That while you believe Dow 15 is a completely responsible company, you just want to make . 16 sure that they remain responsible and you don't want to take 17 any chances, you want to check for yourself to make sure that 18 no 2,3,7,8-TCDD is in that product? Isn't that exactly 19 what's going on there, Dr. Roush? 20 A. No, sir. 21 Q. That isn't what's going, on? 22 A; No, sir. 1 'k. 23 Q. What is going on if you are not wanting to protect rj 24 yourself against the possibility that Dow might irresponsibly . 1 ship you some 2,3,7,8 contaminated product? 2 A. To do analyses at one part per billion is hard. 3 That's all that says. 4 Q. Oh, that's all that says? 5 A. Yes, sir. 6 Q. what -- why did they use the word responsible 7 there? 8 A. Because we believe they are good capable company. 9 Q. Well now, responsible doesn't mean capable, sir. 10 Responsible means one that recognizes its obligations to the 11 customer and recognizes its obligations to the public, that's 12 the way responsibility is used in this context, isn't that 13 correct, sir? 14 A. No, sir, not to me. 15 Q. You don't think that's what they are talking about, 16 about what you are talking about, not they, but what your 17 company is talking about when you say,' "We believe "Dow to be 18 a completely responsible company, however, in the present 19 social climate concerning dioxins we consider it prudent to 20 require first-hand Monsanto information regarding dioxin 21 levels in this product." Aren't you at Monsanto talking 22 about, sir, the possibility that this completely responsible 23 company might somehow or other evade or avoid its 24 responsibility and ship you something that's got dioxin in, 1 it and you want first-hand information if that might occur? 2 A. Mot in the least. 3 Q. You don't think that the word -- well, what do you 4 think that you are actually protecting yourself against here, 5 sir? .6 A. An analyzing of dioxin at one part per billion is 7 difficult. 8 Q. Well, that's a given, sir, but it says, although 9 Dow has agreed to meet the specifications for dioxin levels 10 in 2,4-D, we strongly recommend that your, company continue, 11 Monsanto continue to monitor dioxin levels in the 2,4-D 12 supplied by Dov/. Why would you strongly recommend that you 13 monitor those levels, even though Dov? has agreed to do it, 14 sir? 15 A. I don't see where it says strongly recommend. lb Q. Well, if you would look at the fourth line of that 17 paragraph, sir. 18 A. Yes, sir. 19 Q. You see that? 20 A. Yes, sir. 21 Q. Now, Doctor, would a responsible company ship 22 dioxins out to customers knowing that it's got dioxins in 23 there and knowing the customer doesn't know it? 24 A. This -- 1 Q. Would a responsible company do that? 2 A. This will have dioxin in it. 3 Q. Would a responsible company do that, sir? 4 A. Yes. 5 0. And you have no concern about that and you think 6 responsible companies would ship dioxins out to its customers 7 without telling them about it? 8 A. This isn't talking about it. 9 Q. It most certainly is, Doctor, if you specify with 10 Dow that there is to be no detectable 2,3,7,8 up to one part 11 per billion level, if you tell them that there isn't to be 12 any in your product and not to be more than 10 parts per 13 billion, of all the other so-called less toxic isomers, then, 14 if they are going to be responsible to you, they are going to 15 ship just that to you and nothing more, isn't that correct, 16 sir? 17 MR. HEINEMAN: Object to the form of the question, 18 Your Honor. He used the term there isn't going to be any and 19 that's clearly misleading based upon what the document -- 20 Q. Any detectable at the level of one part per 21 billion, Dr. Roush? 22 THE COURT: With that modification, objection is 23 overruled. 24 A. Not by intent. 1 THE COURT: i'm sorry, X didn't hear your answer. 2 A. Not by intent they won't. 3 Q. And by intent, with intent comes knowledge, doesn't 4 it, sir? 5 A. Yes. 6 Q. You have to have knowledge, don't you, sir? 7 A. Knowledge for what? 3 Q. That it's there, for you to be guilty of ah 9 intentional act, you have to know that you are doing it. It 10 can't be an accidental kind of thing, can it, sir? 11 A. There will be dioxin here. 12 Q. Doctor, don't get on another point, we know that 13 there will be, that there may be. We don't know that there 14 will be dioxin in the -- 2,3,7,3 dioxin in this product, but 15 we know that it may be, don't we, sir, but let's not get into 16 that point, sir. I'm talking about one part per billion. 17 A. Yes, sir. 18 Q. Dow has been required by Monsanto to ship the 19 product with less than 1 part per billion by detectable 20 levels, haven't you, sir? 21 A. 'Yes, sir. 22 Q. And that's what you expect to get from Dow, don't 23 you, sir? Isn't that right, sir? 24 A. That's what we hope to get. 1 Q. That's what you will get if they live up to their 2 responsibility to you, isn't that correct, sir? 3 A. If their detection method is good. 4 Q. Well, by definition, they are required to have a 5 detection level that is capable of doing this, isn't that 5 right? Don't you require them to do it? 7 A.- They will do the best of their ability. 8 Q. Don't you require them to do that, sir, isn't that > 9 part of the contract agreement, isn't that part of your 10 specifications that they have the capacity to do it, sir? l A. Yes, if it doesn't, we won't accept it. 12 Q. And how will you know it, sir, if you don't check 13 it yourself? 14 A. Won't. 15 Q. You take it upon their responsibility, don't you, 16 sir? 17 A. If we do it without analysing. 18 Q. Now, they would be irresponsible if they shipped 19 you dioxin products, dioxin containing products knowing -that 20 dioxin was in it, wouldn't they, sir? 21 A. If it was over that limit, yes. 22 Q. Yes, and now a responsible company won'.t do that,23 will they, sir? A. Not on purpose. 1 Q. Well, but if you did it by accident and you learned 2 that you had accidentally shipped that product, a responsible 3 company would call up the customer and say, hey, we 4 accidently -- we didn't meet the specifications or we 5 actually had a lot of dioxin in this shipment and we didn't 6 know it was there, but we know it now, take protective 7 steps. That's what a responsible company would do, wouldn't 8 they? 9 A. If they found out they had shipped it. 10 , Q. Yes, if they found out they had shipped it. That's 11 exactly what they would do, wouldn't they, sir? 12 A. Yes, sir. 13 Q. You know for a matter of fact, Dr. Roush, that 14 Monsanto shipped products all through 1979, and prior to *79 15 that contained very high levels of dioxin, and you also know 16 that it did not notify any of its customers of that fact, you 17 know that, too, don't you, Dr. Roush? 18 A. We notified customers. 19 Q. What customers did you notify, sir, in '79? 20 A. I'm not sure what, when we -- 21 Q. Yes. Doctor, what customer did you notify in *79 22 that the product you were shipping then -- , 23 A. I don't know. 24 Q. You didn't notify any, Dr. Roush, and you know that 1 for a fact, don't you? 2 A. No. 3 Q. Sir? 4 A. X wasn't involved in that. 5 Q. Has anybody ever told you that you informed any 6 customers that what they were getting had dioxin in it?' 7 A. Yes. 8 Q. Who told you that? 9 A. But I'm not sure what time. 10 Q. Who told you that, Dr. Roush? 11 A. I can't answer that. 12 Q- Nobody told you that Dr. Roush, isn't that a 13 correct fact, sir? 14 A. I don't know. 15 Q. Now, Doctor, you at Monsanto are concerned that 16 will not do to you that which you did to others in '79, isn't 17 that correct, sir? 18 A. I'm sorry, would you ask that question again. 19 (Court Reporter read back the previous question.) 20 A. No, sir. 21 Q. Doctor, isn't this a strong recommendation that you 22 check, that your people at Dayton, your ultra trace 23 laboratory that you spent a lot of money to set up, that you 24 check what Dow sends to you even though you say they are * 1 responsible? You are not even going to take their word for 2 it, you are so concerned that some dioxin might come into 3 your plant and come into your product, that you want to make, 4 sure, that your laboratories in on top of it and check to 5 find out, isn't that exactly what this says, sir? 6 A. Yes, sir. 7 Q. And you want to make sure that no dioxin is shipped 8 to you, don't you, sir, at the levels mentioned in your 9 specifications? 10 A. Yes, sir. 11 Q. But, however, you also know that you did that to 12 your customers in 1979? You know that you sold them and 13 shipped them products that contained not one part per billion 14 of 2,3,7,8-TCDD but hundreds of parts per billion of 15 2,3,7,8-TCDD, you know, millions according to Nebraska 16 analysis, you know that, don't you, sir? 17 MR. HEINEMAN: Object, Your Honor, I don't believe 18 the evidence supports that. 19 THE COURT: Objection is overruled. 20 A. Yes, we shipped. 21 Q. Doctor, this method that is the subject of this 22 memo would protect Monsanto against that happening to you,-, 23 wouldn't it, sir, if they followed it out, if you checked 24 that which was sold to you by Dow, you would find out if you 1 had it shipped to you, so you would get orotection by this 2 device? // 3 A. Yes, sir. / 4 Q. And it would protect Monsanto from that which 5 occurred to Monsanto1s customers and to others in 1979, isn't 6 that correct, sir, if you did it, if you followed out what 7 was recommended here. Isn't that correct, sir? 8 A. No, sir. 9 Q. It wouldn't protect you from what happened to your 10 customers? r 11 A. I don't know what happened to my customers. 12 Q. Your customers got shipped products that contained 13 TCDD, sir, and thousands of other parts per billion of other 14 dioxin isomers, that's what happened to your customers in 15 '79, sir? 16 A. Yes, sir. 17 - Q. And you know that happened to your customers, don't 18 you, sir? * 19 A. Yes, sir. 20 Q. If you followed this device, the method with Dow, 21 that wouldn't .happen to you, v?ould it, sir? 22 . A. No, sir. 23 Q. Why don't you want that to happen to you, Dr. 24 Roush, and willingly let it happen to your customers in '79? 1 Now, I ask you, Dr. Roush, is what you did in '79 the act of 2 a responsible company? 3 A. Yes, sir. 4 MR. HEINEMAN: Objection, Your Honor, which 5 question does he want answered, asked two in a row? 6 MR. CARR: Either one or both. .7 THE COURT: Go ahead, Dr. Roush. 8 MR. HEINEMAN: I'm sorry, I didn't har the Court. 9 THE COURT: Objection is overruled. I told him to 10 go ahead. .I'm sorry. I'm having trouble with speaking. 11 Q. (by Mr. Carr) Doctor, how many of your customers 12 in '79 had the ability to check the product that Monsanto was 13 sending to them? How many of your customers had Monsanto's 14 ability? 15 A. I don't kngw. 16 Q. You don't know that any had that ability, do you, 17 Dr. Roush? 18 A. Not officially. 19 Q. Well you don't have any knowledge that any of your 20 customers had any capacity, any capability of checking for 21 dioxin in your chlorinated phenols, you know that, don't you, 22 sir? 23 A. Yes, sir. 24 Q. You had no knowledge that any of them had such an . 1 ability, did you, sir? 2 A. Not personally. 3 Q. They relied upon Monsanto to test the product, did* 4 they not, sir? 5 A. Yes, sir. 6 Q. Because they didn't have the ability. Now, Doctor 7 8 MR. HEINEMAN: Object to that statement, Your 9 Honor . 10 Q. Isn't that correct, sir. 11 THE COURT: Objection is overruled Answer the 12 question, please, Doctor. 13 A. No. 14 Q- They didn't rely upon Monsanto? 15 A. No. 16 Q. Upon whom did they rely, sir? Who was checking the 17 dioxin content for them? 18 A. No one, 19 Q. Monsanto was checking it? 20 A. Yes. Yes. \ 21 Q. And Monsanto is a responsible company, isn't it, 22 sir? 23 A. Yes, sir. 24 Q. And, isn't it the duty of a responsible company to 1 protect its customers from contaminants? 2 A. Yes, sir. 3 Q. But Monsanto didn't do that, did it, in *79? 4 A. Yes. 5 Q. Doctor, uid it tell any of its customers that they 6 had received dioxin in the product that you know of? 7 A. I don't know. 8 Q. Well then, you don't have any knowledge that it did 9 do it? 10 MR. HEINEMAN: Mr. Carr, would you speak up, sir, I. 11 can't hear you. 12 Q. You have no knowledge that they did do it, do you, 13 sir? 14 A. Yes. 15 Q. Oh, you do have knowledge? What knowledge do you 16 have, sir, that they informed customers in '79 of that? 17 A. I don't know in '79, I can't relate to the dates. 18 I know we did tell customers. 19 Q. *79 was when the Sturgeon spill occurred. '79 was 20 when because of the Sturgeon spill you started checking all 21 your products. *79 was the year you found all of your 22 chlorinated phenols had parts per billion of TCDD in it. 23 That's the year, Dr. Roush. 24 A. Right. *_ *' . i, ^ ` 1 Q. In that year, do you have any knowledge that 2 anybody, any of your customers were informed that your 3 products had 2,3,7,8-TCDD in it or any other form of TCDD, to 4 your knowledge, sir? 5 A. Mo, sir. 6 Q. Doctor, you also know that a clean-up service, or 1 do you know that a clean-up service that came into Sturgeon, 8 Missouri, some months after the spill, took a soil sample to 9 your laboratories, to your people and said we are getting 10 something funny in this, we don't know what it is, we don't 11 have the capacity to tell what it is? We would like for you 12 to analyze it. Are you aware that that occurred, sir? 13 A. I don't recall. 14 Q. In early *79? 15 A. I don't recall. 16 Q. May of '79? 17 A. I don't recall. 18 Q. You have no knowledge,1about'that, sir? 19 A. I don't recall anything. 20 Q. Do you know whether or not -- well, if you don't 21 have any knowledge, you don't know. Would Monsanto in your; 22 judgment have a responsibility to tell that clean-up service 23 that you've got something there that may be 2,3,7,8-TCDD, it' 24 has all the characteristics of it? Reckon they'd have that 1 responsibility if they were asked by somebody, you had no 2 legal obligation to them, the clean-up people were not 3 employed by Monsanto, although you did subsequently use that 4 service to do some work for Monsanto, the 0. H. Materials 5 people, I'm sure you are aware of that? 5 MR. HEINEMAN: Excuse me, Doctor, let me object to 7 the form of the question.- Mr. Carr -- if h e rs attempting to 8 tell, ask if witness to assume what it was that Orville Hicks 9 testified to about the sample that was run, he's misleading 10 the witness because Mr. Hicks said that there were too many 11 interferences to make a determination as to what was in the 12 product. 13 MR. CARR: This isn't what Orville Hicks testimony 14 -- Orville Hicks testified he had levels 2,3,7,8-TCDD 15' exceeding not more than 600 parts per billion, per trillon. 16 MR.. HEINEMAM: Interferences, Judge. 17- THE COURT: Well, whichever way the testimony came 18 down, your objection is overruled. I don't think that 19 objection related at all to the question. Answer the 20 question, please, Dr. Roush. 21 A. Would you repeat the question? 22 Q. Let me reform it, Doctor, because it was an 23 involved question. Wouldn't Monsanto have the moral ' ' 24 responsibility, if not a legal responsibility, if it accepted 1 1 a soil sample and said, yes, we will test it for you, 2 wouldn't it have the responsibility of telling that person 3 the results of the test? 4 A. Yes. 5 Q. Do you have any knowledge, sir, that the 0. H. 6 people were ever told the results of the test? 7 A. I'm not even sure. 8 Q. You don't even know what I'm talking about, do you, 9 sir, isn't that correct, sir? 10 A. Yes, at least I'm not sure of the relationship. 11 Q. As a matter of fact, Dr. Roush, you, your 12 department of medicine and environment, have paid precious 13 little, if any attention at all, to the probleras of Sturgeon, 14 Missouri, isn't that correct, sir? 15 A. Mo, sir.' 16 Q. Did you do anything other than have a meeting in 17 July of '79 to discuss the odor problem .in Sturgeon, 18 Missouri? 19 A. Dr. Paget was responsible for that time. 20 Q. My question is did you do anything besides that? 21 A, I don't know what Dr. Paget did. 22 Q. Doctor, if you don't know that, why would you tell 23 us that you did have a concern when you don't know what they 24 did, and what I'm telling you is they had a meeting in July. 1 of 1979 discussing the odor problem in Missouri, and somebody 2 said the thing to do is blacktop it all, put asphalt over it, 3 that was the extent of what you had concern for the people of 4 Missouri, unless I'm mistaken, do you have any other 5 knowledge of anything else that you all did? 6 MR. HEINEMAN: I object if he's representing to the. 7 doctor that all Dr. Paget did, that's a misstatement. 8 THE COURT: Objection is overruled. 9 MR. CARR: What else did he do? 10 MR. HEINEMAN: He testified for three days about 11 it, Mr. Carr. 12 MR. CARR: Wait a second. f 13 THE COURT: Wait, back and forth, gentlemen, the 14 objection is overruled. Answer the question, please? 15 A. Would you restate it? 16 Q. Do you have knowledge of anything that Monsanto did 17 for the people of Sturgeon from say March of 1979 up to the 18 present time, other than have one meeting in which people at 19 Monsanto discussed whether or not blacktop should be put over 20 the stinking soil in Sturgeon, Missouri? 21 A. No, sir. 22 THE COURT: Mr. Carr, is this a good point? 23 MR. CARR: Yes, Your Honor. 24 THE COURT: Ladies and gentlemen, we will take a 1 short recess at this time. The admonishments that I've given 2 you earlier will apply during this break also. Court is in 3 recess. 4 (Following a recess, these proceedings were had in open 5 court.) 6 Q. Doctor, tiiis ROUNDUP and 2,4-D package mix, was 1 this to be mixed with water or how was it to be applied to 8 the fields, diluted? 9 A. I don't knov/, I'm sure it wasdiluted. 10 Q. Actually what it is, it's a powder and you put it 11 in? 12 A. Dilute it at great level. 13 Q. Great level? 14 A. Yes. 15 Q. So that when you actually are putting it out on the 16 field, then you are putting it on the field, and if you've 17 got no more than 10 parts per billion of all dioxin 18 contaminants, you would actually be putting out in the field 19 there a very small fraction of that 10 parts per billion, 20 wouldn't you, as it actually goes on the soil on the farmer's 21 land? 22 A. We talking about pints per acre? 23 Q. Talking about what actually would come out, then is 24 diluted down so it would be much much lower than 10 parts per 1 billion in the final .solution, wouldn't it, sir? 2 A. Yes, sir. 3 Q. And if there were some level of 2,3,7,8-TCDD in the 4 product that's mixed by Monsanto and sold by Monsanto while 5 less than one part per billion and it actually got out into 6 the soil, it would be a very small fraction of what ever, 7 might be in there in the parts, less than 1 part per 8 billion. That means it's in the parts per trillon, so it 9 would be a small fraction of a part per trillon that actually 10 got into the soil, wouldn't it, sir? 11 A. Could be up to a part per billion. 12 Q. Well, not if you diluted it. 13 A. No, sir. 14 Q. I'm talking about what happens to it when you 15 actually dilute it? 16 A. Yes, sir. 17 Q. Come out to have small fraction of that one part IS per billion, wouldn't it, sir? 19 A. That's right. 20 Q. Doctor, why would Monsanto want to establish this' 21 kind of a no detectable level at one part per billion and not 22 more than 10 parts per billion of all the other dioxins, in 23 this package mix, according -- because according to this memo 24 it's going to be sold in the United States and in Brazil and 1 there were no legal requirements as to that were even close 2 to that level, was there, sir? 3 A. Mo legal requirements. 4 Q. Yes. 5 A. But we can't sell this material without getting 5 approval from EPA. EPA makes a final decision. 7 Q. _ Had EPA set any kind of level that would be say for 8 sale in the United States at no detectable 2,3,7,8-TCDD at 9 one part per billion detection limits? 10 A. They decide each one of those on their own basis. 11 0. Excuse me, my question is, Dr. Roush, has the EPA 12 ever set such a level to your knowledge on any product that's 13 put into the farmer's hands for putting on the soil on 14 anyplace else? 15 A. Mot to my knowledge. 16 Q. There are no legal requirements for that. Can it 17 be that Monsanto was concerned about safety of the user of IS that product when it set the .limit at less than one part per 19 billion of detectable 2,3,7,8-TCDD? 20 A. No, sir. 21 Q. You weren't concerned about the safety of anybody?' 22 ' A. No, sir. 23 Q. And, when you use the words safety in your memo of 24 August 19th, 1983, you mistakenly use those words, -is that 1 correct, sir? 2 A. It has to do with -- 3* Q, You didn't mean to say you were going to consider *A3 the safety factor or whether or not it could be safely used 5 as a package, you misused those words, didn't you, sir? 6 A. Yes, sir. 7 Q. Yeah. So actually, you had no -- you weren't 8 setting this limit for anything other than a public relations 9 employee, isn't that correct, sir? 10 A. No, sir, has to do with what they think the 11 direction of Government in terms of what is considered 12 whether they are going to allow us to waive a tolerance, the 13 tolerance in Canada today is one part per billion. 14 Q. Doctor, v/e are talking about the United States, 15 talking about a memo that went to you saying this was going 16 to be sold in the United States and Brazil. There are no 17 such levels.- You are asking an opinion for the safe use of 18 the package that had that kind of a level. As a matter of 19 fact, your whole thing was aimed at whether or not that was 20 safe, wasn't it, sir? Whether or not there was a safe level? 21 A. No, sir. 22 Q. And you just inadvertently used the words safe in 23 Exhibit 1491? 24 A. Well, that was -- 1 Q. You used the words safe once, twice, three times, 2 you've got four paragraphs in that memo and you use the word 3 safe or safely or safety in three of those four paragraphs 4 and you are telling us that whether or not that was, that 5 level was safe had nothing to do with your decision, sir? 6 A . No, sir. 7 Q. You are not telling us that? 8 A. The question they asked -- 9 Q. You are not telling us that, Dr. Roush? 10 A. No, sir. 11 Q. Dr. Roush, I would remind you that your testimony 12 here is under oath. 13 A. Yes , sir. 14 Q. Dr. Roush, and this memo 1431, in which you are 15 asked for an opinion, and you are asked for an opinion 16 whether or not this was a safe level? 17 A, Yes, sir. 13 Q. That's,what the man asked you and your response was 19 you think it is a safe level, you are saying under oath that 20 your response had nothing to do with the safety of the 21 product? 22 A. No, sir. 23 Q. Then it did have to do with the safety of the 24 p r o d u c t t h e n, d i d n ' t it, s i r ? S ' . : - -y. 1 A. It was related to the safe use, yes. 2 Q. Doctor, was your judgment that considering that 3 . dilution factor the safe product for use would have to have' 4 no detectable levels of 2,3,7,8-TCDD'at a detection limit of 5 1 part per billion, isn't that correct, sir? 6 A. Mo, sir. t 7 Q. Doctor, isn't that the level that you set and 8 required Dow to meet? 9 A. What do you mean by you? 10 Q. You af Monsanto, sir, as I have meant you from the 11 beginning, you at Monsanto set that level because that is 12 what you considered in 1983 to be the level of safety, that 13 is no detectable 2,3,7,8-TCDD at one parts per billion? 14 A. Mo, sir. 15 Q. Isn't that exactly why you set that level. Dr. 16 Roush? 17 A. Mo, sir. 18 Q- Was it related to safety at that level, Dr. Roush? 19 A. It is tolerance. 20 Q. Was it related to safety at that level, Dr. Roush? 21 A. No, sir. . - > 22 Q. .Dr. Roush, you just got through telling us. ten r 23 seconds ago that it was related to safety, now you are 24 telling us it's not related to safety, which is the truth, is+rwt'i 1 Dr. Roush? 2 MR, HEiNEMAN: Object, Your Honor, the prior 3 questioning related to the use of the board in the memo not' 4 the level. 5 THE COURT: Objection is overruled, question of 6 safety was involved. 7 A. We had no question about the safe use of this, 3 0. Doctor that isn't what I asked you, 9 A. I'm sorry. 10 Q. This level was set because it was related to 11 safety, was it not, sir?' 12 A. No, sir, 13 Q. Doctor, didn't you just tell us that this memo that 14 you are asked whether or not this was a safe use? 15 A. Yes, sir. 16 Q. And didn't you at Monsanto -- didn't they ask 17 undetectable 2,3,7,8-TCDD at one part per billion, is that a 13 safe use, and didn't you tell them that it was? 19 A. Yes, sir. 20 Q. And didn't you also say 10 parts per billion of all 21 the others would be a safe level in your judgment? 22 A. Yes, sir. 23 Q. And it was directly connected with safety that you 24 set that level, was it not, sir? 1 A. No, sir. 2 Q. Doctor, why would you set a level for 2,3,7,3 3 contamination and dioxin contamination if it's not connected 4 with safety? What other conceivable reason can there be? 5 The remotest reason can there be for you to say or to limit 6 the amount of dioxin that's going to be in your product other 7 than the health and the safety of the people to whom it might 3 be exposed? 9 A. Only to deal with tolerances. 10 Q. Tolerances for what purpose, Dr. Roush? For safety 11 and health? 12 A. No, sir. 13 Q. What other purpose can there be to set such levels, 14 Doctor, other than safety and health? 15 A. To relate it to accepted standards. 16 Q. For what purpose, Doctor, what are the standards 17 for, what do they relate to, why do they set the standards 13 for safety and health, isn't that correct, Doctor? 19 A . No, sir. 20 Q. Why do they set the standards, just because you've 21 got people that got nothing to do? 22 A. If they have got, all they are trying to define 23 safety factors. 24 Q. What they are doing it for, for safety factors, 1 aren't they, sir? 2 A. Yes, sir. 3 Q. And that's what you did it for, .safety factor; 4 that's the reason you set that level? 5 A. No, sir. 6 Q. What other reason could you possibly have had, 7 Doctor? 8 A. So that we -- 9 Q. Other than health and safety? 10 A. So we would meet their standards. 11 Q. No, this was a standard that you were setting for 12 Dow. This was a package that you were preparing for sale in 13 the United States and in Brazil. It was a standard that you 14 set. Why did you set that standard except for'its 15 relationship to safety and health, Dr, Roush? 16 A. Because we thought that's where the standards were 17 going to be. 18 Q. For what purpose would those'standards be set 19 there, Doctor? 20 A. Mixture of things. 21 Q. For safety and health and for absolutely no other 22 reason. What other reason would the EPA or the FDA or France 23 or Brittain or Canada or' Dow or Monsanto or anybody els.e set 24 a level of 2,3,7,8 except for the health of the people to 1 whom it might be exposed, and for the wildlife and 2 environmental health? 3 A. Because it's feasible? Why would you care if it's 4 -- not for -- doesn't effect the health and safety, why would 5 you care, you don't do things just because it's feasible, all 5 kind of things are feasible that you don't do, what other 7 reason is there for doing it? Feasibility just means you can 8 do it, why would you do it, Doctor? 9 A. Unnecessary contaminant. 10 Q. Doctor, why would it be called a contaminant? Why 11 would it be unnecessary? Would why would you want to get rid 12 of them except for health and safety? 13 A. It's for a further level of safety. 14 Q. Exactly right. It's for a level of safety, isn't 15 it, Doctor, and it has been all afternoon, and you have known 16 from the beginning that it had to do only with one think and 17 that is safety, isn't that right, Dr. Roush? 18 A. Wo, sir., 19 Q. Dr. Roush, what else does it have to do with other 20 than health and safety? 21 A. Tolerances, 22 0. Tolerances relating to what, Doctor, whose 23 tolerances? 24 A. Government's tolerances. 1 Q. For what purpose do the Government set tolerances? 2 A. Just to lower the amount that's out there in the 3 environment. 4 Q. Why do they want to lower the amount that's out 5 there? 5 A. So they don't have to worry about it. 7 Q. Why do they worry about it, Doctor? 3 A. Because it's an unneeded thing and possibly toxic. 9 Q. Possibly toxic? 10 A. Right. 11 Q. Doctor, as far as toxic is concerned, you know it's 12 toxic, the problem is how much is it going to be before it 13, harms you, before it harms every human being in the bloody 14 country, that's the problem, Dr. Roush; that's the reason the' 15 Government is concerned about the tolerances; that's the 16 reason they're worried; that's the reason that Monsanto is 17 setting the limit, isn't that correct, Dr. Roush? 18 A* I don't know why they are going to one part per 19 billion. 20 Q. You are back now saying that you don't know why. 21 Monsanto -- 22 A. Mo. Mo. No. No. Why the tolerance has gone to 23 one part per billion; 24 Q. You don't know why not? 1 A. No, sir. 2 Q. You are saying it's because the Government is 3 worried, and what are they' worried about? They are worried 4 about the health and safety, aren't.they, Dr. Roush, aren't 5 they worried about the health and safety? 6 A Wot at one part per billion. 7 Q. And' why do they set the level there? VThy did you 8 set the level at no detectable, got to be less than one part 9 per billion? 10 A. One part per billion is right. 11 Q. Less than, got to have no detectable 2,3,7,8 and as 12 a matter of fact Dow told you that their product has only six 13 parts per trillon of 2,3,7,8-TCDD in it. But you set the 14 level not that low, you set the level at less than, at no 15 detectable 2,3,7,8-TCDD. But back to my question, Doctor, my 16 question is that level is set for the reasons of health and 17 safety, isn't it, Dr. Roush? 18 A. ' No, .sir. ) 19 Q. It's set because Monsanto was legally required to 20. set it, is that the answer, sir? 21 A. No, sir. / 22 Q. Set because Monsanto wanted to pay more for a 23 product that is more greatly refined and it costs more to 24 create a product that has no 2,3,7,8 in it, Monsanto wanted 1 to pay Dow money for that 2,4-D, is that right, sir? 2 A. No, sir. 3 Q. It's at the level because you just flipped a coin 4 and said this is the level we are going to set it, got 5 nothing better to do today? 6 A. Mo, sir. 7 Q. Why did you set the level except, Doctor, that it's 8 related to health and safety? 9 A. Its magnitude to the safety factor. 10, Q. It's related to health and safety, isn't it, sir? 11 A. Mo, sir. 12 Q. You can't say it's a magnitude of the safety factor 13 without at the same time saying -- that means it is related 14 to safety, isn't it, sir? 15 A. Yes. 16 0. Isn't it, sir? 17 A. It is related to safety but not at that level. 18 Q. Doctor, you set it-at that level because it was 19 your, belief that that is the level at which it can. be safely 20 used and that is? 21 A. Mo, sir. 22 Q. That's exactly what you said? 23 A. No, sir. 24 Q. You said it's my opinion can be used safely as a 1 package with that level, did you not, sir, those are your 2 words? 3 A, Yes, sir, X said there is no reason to question the 4 safe use at this mix, 5 Q. That's right, at that level? At a higher level 6 there may be indeed reason in your judgment to question it, 7 isn't that right, sir? 3 A. No, sir. 9 Q. Or there is no reason to set a level at any level 10 then, is that what you are saying, Dr. Roush, because I'm 11 confused? 12 A, Yes, sir. 13 Q. So what you are saying is that any level of dioxin 14 in the product is okay? 15 A. Well, there has never been reported any -- 16 0. Excuse me, Doctor, could you answer that question, 17 any level of dioxin in the product is okay, thousand parts 18 ,per billion? 19 A. Of what? 20 Q. Of dioxin in your product? 21 A. Which'dioxin? 22 Q. Any dioxin. ^ 23 A. Not to 2,3,7,8. 24 Q. Then there is a factor with 2,3,7,8, is that right? 1 A. No, sir. 2 Q. Sir? 3 A. No, sir. 4` Q. Then there is not a factor of -- you can put any 5 amount of 2,3,7,3 in your product and it's safe? 6 A . There has never been any -- 7 Q. Excuse me, Doctor, is that what you are saying? 8 A. No, sir. 9 Q. Then there is some level of 2,3,7,3 in the product 10 that you say is unsafe, is that right, sir? 11 A No, sir. 12 Q. Then that isn't right, then there is no level that 13 you consider unsafe? 14 A. No, sir. 15 Q. Is there a level that you consider unsafe? 16 A. Of what? 17 MR, CARR: Your Honor, would you direct the witness 18 19 THE COURT: Dr. Roush, answer the question. 20 A. I am trying to, sir. 21 THE COURT: Well, listen closely, because what you 22 just ashed has been in the last ten questions. 23 A. I understand that. 24 THE COURT: Please ash the question one more time, \ 1 Mr. Carr 2 (Court Reporter read back the previous, question) 3 A. No, sir. 4 Q. That isn1t right then? 5 A. No, sir. 6 Q. Then there is no level of 2,3,7,8-TCDD that is, 7 that all levels of 2,3,7,8-TCDD is safe then, is that 3 correct? 9 A. No. 10 Q, Then what level is unsafe, sir? U A. Of 2,3,7,8 in 2,4-D? 12 Q. That's what I'm talking about. 13 A. There isn't any 2,3,7,3 in 2,4-D, 14 MR. CARR; Your Honor, would you direct the witness 15 to answer the question. 16 THE COURT: Dr. Roush, answer the question that is 17 asked of you and not another question, or go off on a 18 tangent. I'm ordering you to answer the question that's 19 asked of you. 20 A. I'm sorry sir, i thought I was. 21 THE COURT: You were not, and you haven't been the 22 last few questions. The Court Reporter read this question 23 back one more time. From now on listen to the question and 24 answer only that question. 1 A. I'm trying. 2 THE COURT: Read back the last question. 3 (Court Reporter read back the previous question.) 4 A. 50 ppm, maybe. 5 Q. 50 parts per million? 6 A. Right. 7 Q. And you are even -- you even said maybe as far as 8 that's concerned? 9 A. Yes, sir. 10 Q. And, Doctor, why, if that is your judgment, why did 11 you at Monsanto require Dow to have 2,4-D sold to you that 12 has no detectable 2,3,7,8-TCDD at a one part per billion 13 level? 14 A. Because we want to meet tolerances. 15 Q. Why did you want to meet the tolerances,'Doctor? 16 A. Because the Government is going to set them. 17 Q. Have they set them, sir? 18 A. United States has not as yet. 19 Q. Why would they set them, Doctor? Why would they 20 set those levels of no detectable levels of 2,3,7,8-TCDD for 21 the safety of the people to whom there are-going to be 22 exposed, isn't that right, sir? 23 A. Yes,, sir. 24 Q. And that's the reason that you set the level of no 1 detectable 2,3,7,8-TCDD is because you believe the Government 2 is going to set that level as the level that you may not 3 exceed in 2,4-D, isn't that correct,- sir? 4 A. Yes, sir. 5 Q, And they are going to set that because they believe 6 that that is the level at which it becomes unsafe, isn!t that 7 correct, sir? 8 A. No, sir. 9 Q. Why else v/ould they set it, sir, if it's not at the 10 level that above that would become unsafe? What other 11 earthly reason could they have at saying no 2,3,7,3 at a 12 level of 1 part per billion detection limits if it wasn't for 13 safety purposes, if you get above that it may be unsafe? 14 A. No one. 15 Q. That's the sole and only reason they would have to 16 set such a level, isn't that right? 17 A. Plus feasibility. 18 Q. Sir? 19 A, Feasibility. 20 Q. Doctor, feasibility only means that you are capable 21 of making the product at that level? 22 A. Yes, sir. 23 Q. .Feasibility means that what you are saying is the Government will not require you to do something that is 1 impossible. They will require you to not sell the product if 2 they consider it unsafe, if you cannot make it safe, isn't 3 that correct, Doctor? 4 A. Yes. 5 Q. Now, and Monsanto knows that they must not or 6 should not sell products that got 2,3,7,3-TCDD in it, isn't 7 that correct, Doctor, for safety purposes? nO A, No, sir. 9 Q. No? Doctor-, you set this level because it was 10 related to safety. You set the level because you believe 11 that the level to be established by the Government was -- 12 could be less than one part per billion, did you not, sir? 13 A. Yes, sir. 14 Q. Nov?, do you agree that would be the proper level to 15 set? 16 A. If it's feasible. 17 Q. If you can make the product down to 1 part per 18 billion, you do agree that that'-s the level that should be 19 set, correct, sir? 20 A. Yes, sir. 21 Q. And that is for safety purposes, correct, sir? 22 A. It's related to safety. 23 Q. Well, it's related to safety in the sense that that 24 product is safe whereas a product with more than that may be 1 unsafe? 2 A. Wo, sir. 3 Q. Doctor, you cannot have it, I submit to you, sir, A you cannot have it both ways. You cannot say that that is 5 the level that you are setting if feasibly it can be done for 6 safety purposes. Sir, we know that a person can drive under 7 some circumstances atJ100 miles per hour and do it safely, we 8 know that. But we know also that if you do it long enough or 9 under certain conditions it is extremely unsafe. Therefore, 10 we set speed limits at lower than that, don't we? We set * 11 speed limits that we consider that you can in general safely 12 drive, even though under some circumstances you can't drive 13 those limits, like through school zones and things of that 14 sort. You understand that, don't you, sir? 15 A. Yes, sir. 9. r 16 Q. Those are limits for safety purposes, does not 17 mean, does it, sir, that'everybody that's going to be exposed 18 to one part per billion of 2,3,7,8-TCDD is going to come 19 falling down sick? What it means is that there is a 20 possibility of harm to a sufficient number of people that one 21 should guard against that risk, if you can possibly do it, 22 isn't that what that means, sir? 23 A. For this tolerance? 24 Q. For any tolerance that you may set.  T j-.'W W jrii 1 A. No, sir. 2 Q. Doctor, why set a tolerance if it isn't for that 3 purpose? 4 A, It's related to it but the safety -- 5 Q. Doctor, if it's related to it, it is for that 6 purpose. You can't have it both ways. It either is related 7 to it or it is not related to it,, isn't that right, sir? 8 MR. HEINEMAN: Objection, Your Honor, he cut the 9 witness off. Ask the Court to allow the witness to answer 10 the question. 11 THE COURT: Objection is overruled. 12 A. It is related. 13 Q. Yes, it is. How long have you all at Monsanto 14 known that that one part per billion is related to safety? 15 A, 55 ppm is unsafe. 16 Q. Excuse me, Doctor, I've asked you how long have you 17 at Monsanto known that one part per billion is the safe 18 level? 19 A. It is not the safe level. 20 Q. Doctor, you are aware that Dr. Paget told Dr. 21 Wilson that one part per billion in, what was1 it, in 22 Santophen? 23 A. Santophen. 24 Q. Was probably medically acceptable. You've known it 1 at least then since Dr. Paget expressed that opinion, haven't 2 you? 3 A. Yes, sir. 4 Q. That was July the 9th of 1979, wasn't it, sir? 5 A. Yes, sir. 6 Q. Now, Doctor, if you would loot to Plaintiff's 7 Exhibit 1490 that you have in your hands, it was written by V 8 George Levinskas? 9 A. Yes, sir. 10 Q. This has to do with the toxicity and the safety of 11 Monsanto's products, does it not, sir? 12 A. Yes, sir. 13 Q. And it's discussing the safety of 2,4-D, isn't 14 isn't it, sir? 15 A. Yes, sir. 16 Q. And it's talking about the level of 2,3,7,3 in 17 2,4-D in regard to the safety of Monsanto's products, isn't 19 it, sir? 19 A . No, sir, 20 Q. Doctor, look at the last paragraph in the section 21 called caveats, it's the first, second, third, fourth, fifth 22 paragraph on the page, says, it should be recognized that 23 others can and some will disagree with conclusions Monsanto 24 reaches about the safety of its products, doesn't it, sir? 1 A. Yes. 2 Q. And it's discussing the safety of what products, 3 sir? 4 A. 2,4-D in this case. 5 Q. . And it's discussing what level of dioxin 6 . specification for 2,4-D? 7 A. None at all. 8 Q. Doctor, would you look at the paragraph under 9 decisions where it is, where It says it's concluded that the 10 proposed specifications is environmentally acceptable and 11 will not pose any unreasonable risk to health or the 12 environment? Do you see that, sir? 13 A. Yes, sir. 14 Q. Aren't they talking there about risks to health? 15 A. Which one,,the -- 16 Q. The paragraph I just read to you, don't they use 17 the word risks to health, sir? 18 A. Yes, sir. 19 Q. And isn't he talking about the safety of the 2,4-D, 20 sir? 21 A. In that he is, yes. 22 Q. Yes. Now, during the particular paragraph that I * 23 want to direct your.attention to, is the one that says, 24 fourth paragraph where it says the repeat studies are more 1 comprehensive and may turn up previously undetected adverse i o Am findings. This has occurred in some of our repeat studies on 3 Monsanto products. 4 A. Yes, sir. 5 Q. What is Levinskas referring to where you have 6 determined there were adverse findings in relation to 7 Monsanto's products? That you had not -- where you did some 8 repeat studies? 9 A. Our problem with Lasso. 10 Q. With Lysol? 11 A. .Lasso. 12 Q. Lasso. And, Lasso, is it related to chlorinated, 13 phenols in any way? 14 A. No, sir. No, sir. 15 Q. Well, that's one product, and the word here is 16 products. What other product, sir? 17 A. I'm sure that's what he was referring to. 18 Q. Doctor, Lasso is one of your products? 19 A. Very important product. 20 Q. Well, it may be, and I'm not quarreling,about that, 21 but what I'm interested in is whether or not the word 22 "products" includes more than Lasso, because it is a plural 23 word. 24 A. There are other Ag products related to Lasso that 1 we have also detected adverse effects on, repeated lifetime 2 feeding studies. 3 Q. Are you -- do you have studies relating to 4 chlorinated phenols that repeat studies.have furnished up 5 previously undetected adverse findings? 6 A. No, sir. 7 Q. Doctor, I'll remind you, are you not aware of the 8 chick edema studies, didn't we talk about those? 9 A. Yes, sir. 10 Q. And, you are aware of what happened in your chick 11 edema studies that Dr. Wright asked to be performed? 12 A. Aware of what? 13 Q. The findings of the laboratory that said they were 14 borderline positive and your people told them to strike out 15 the words-borderline and just say that they were technically 16 okay, do you recall that, sir? 17 A. Yes, sir. 18 Q. Isn't that one of the products that Dr. Levinskas 19 is referring to? 20 A. No, sir. 21 Q. No? 22 A. No, sir. 23 Q. All right. Doctor, with respect to the work -that 24 is done when you dismantled -- you recall dismantling 1 Department 2,3,7, sir? 2 A. Yes, sir, 3 0. Now, when you did that, you put that out for bids 4 to certain people, did you not, sir? 5 A, I don't know, but I would suspect they did. 6 Q. Well, your department had something to do with 7 discussing the safety standards to be met by the people that 3 were going to tear the plant down or change it? 9 A. I think that's right, 10 Q. Now, you of course would have advised that worker 11 for the that company of the dangers that might be associated 12 with tearing Department 2,3,7 down, wouldn't you, sir? 13 A. Yes, sir, I would think so, I don't recall the 14 specifics. 15 Q. You know that if you didn't tell them of the 16 dangers that you knew that existed, that there could be some 17 responsibility on your part, or do you know that, sir? 18 A. Yes, sir. 19 Q. Yeah. Let me hand you a document, sir. I hand you 20 what's been marked Plaintiff's Exhibit 1494 and ask if you 21 agree that is a document prepare by a J. Lind, dated 22 September 30th, 1983 deals v/ith the dismantling of Department 23 2,3,7? I'm not asking you to read the entire document, 24 Doctor, I/just want you to agree that it- is such a document 1 so that we can move on with it? 2 A. Yes, sir. 3 MR, CARR: Offer 1494 into evidence, sir, if it 4 please the Court. 5 THE COURT: Any objections? 6 MR. HEINEMAN: Well, Your Honor, I object. There 7 is no foundation laid. Vie don't know -- I assume that J. 8 Lind is a Monsanto employee, but he hasn't asked that. 9 MR. CARR: I don't think I need to show that it's 10 in that document, but is J. Lind a Monsanto employee, Dr. 11 Roush? 12 A. I think so. 13 MR. CARR: Yes. 14 THE COURT: .Anything else? 15 MR. HEINEMAN: Same objection. Your Honor, no 16 adequate foundation laid for its admission. 17 THE COURT: Objection is overruled. It's admitted 18 over objection.* 19 Q. (by Mr. Carr) Doctor, do you recognize 1494 A 20 as being Paragraph 2 and Paragraph 3 on the second page of 21 that exhibit? 22 A, Yes, sir. 23 Q. And 1494 B as a blow-up of 1494 A? 24 A. Yes, sir. 1 Q. Offer 1494 A and B as well. Your Honor. 2 THE COURT: Same objection? 3 MR. HEINEMAN: I'm sorry, I couldn't hear Mr. Carr 4 and the witness. Which paragraphs are they? 5 MR. CARR: That one and that one. (indicating) 6 MR. HEINEMAN: Third and the fifth? 1 MR. CARR: Second and the fourth. 8 MR. HEINEMAN: Well, Your Honor, if the Court will 9 incorporate ray prior objection to the document itself. 10 THE COURT: Sure. 11 MR. HEINEMAN: And in addition to that, I think the 12 exhibit is misleading because it leaves out the part that's 13 in the middle. 14 MR. CARR: The jury has the entire exhibit, Your 15 Honor. 16 MR. HEINEMAN: Which entire exhibit? 17 MR. CARR: The entire exhibit that contains 1494 A 18 and 14 -- those paragraphs. 19 MR. HEINEMAN: 1494 was passed to the jury? 20 MR. CARR: ' It was offered and admitted into 21 evidence. 22 MR. HEINEMAN: Okay, I just didn't know that it was 23 passed. 24 xTHE COURT: Okay, objection is overruled then. 1 ~ Q. (by Mr. Carr) Doctor, under the first page shows 2 that the Hayden wrecking company was contracted to dismantle 3 this equipment, was it not, sir? 4 A. I don't know anything about the company, but 5 someone did it. 6 Q. Well, it's identified on the very first page, is it 7 not, sir? 8 A. I said yes, 9 Q. See that? 10 A. Yes, sir. 11 Q. `And this document instructs the contractor what 12 they are to do with regard to safety and hygiene, doesn't it, 13 sir? 14 A, Yes, sir. 15 Q. And you advised this contractor that there are 16 certain chlorinated dioxins that are suspected by some 17 scientists as being a cause or a contributor to certain types 18 of cancer, do you see that, sir? 13 A. Yes, sir. 20 Q. Nov/, what you are telling this contractor and those 21 others that were informed that dioxins that are associated' / 22 with Department 2,3,7 can either cause a cancer or can i\ 23 promote -- that is the words we have been using either J ,. 24 initiate the cancer, or can promote the cancer, don't you, i>^ > - T J --------^ t i ' k ' J ' ' i ' j r . ' i W J A i W . i - ^ S # < v ' * - i t t - 1 sir? 2 A. No, sir. 3 Q. You are telling them that there are scientists that 4 you consider to have some repute, otherwise you wouldn't give 5 them space in this document, that there are some scientists 6 that believe that dioxin can cause or can promote certain 7 types of cancer, aren't you telling them that, sir? 8 A. Mo, sir. 9 Q. Doctor, are you reading the same page that I'm 10 reading? 11 A. Yes, sir. 12 Q. Have you read the sentence, "In addition certain 13 chlorinated furans and chlorinated dioxins are suspected by 14 some scientists as being a cause or a contributor to certain 15 types of cancer." Did I read that correctly? 16 A. Yes, sir. 17 Q. And isn't that what you are telling this 18 contractor? 19 A. That some scientists believe that, yes. 20 G. And those scientists, you are pointing out^ -- well, 21 for instance, you would not, if there was a disreputable 22 scientist or a scientist whose views you didn't respect, ybu23 wouldn't adopt that and put that in a document of this sort, 24 would you, at Monsanto? 1 A. We didn't adopt that. 2 Q. Excuse me, Doctor, you all prepared this document, 3 you at Monsanto prepared this document, did you not, sir? 4 A. Mr. Lind did. 5 Q. He is a Monsanto employee, is he not, sir? S A. Yes, sir. 7 Q. And he would contact the necessary people? Is he a 8 toxicologist? 9 A. No, sir. 10 Q. He would contact the toxicologists and the doctors 11 at Monsanto to find out what there might be in Department 12 2,3,7 that contractors should be warned against, wouldn't he, 13 sir? Your department would be the source of his knowledge 14 and information, wouldn't it, sir? 15 A. Probably, but not necessarily. 16 Q. Well, Doctor, you are customarily -- your 17 department is customarily part of the process, it's the 18 protocol, it's the requirement that in areas like this, your 19 department be contacted, more specifically the toxicologist 20 in your department, isn't that correct, sir? 21 A. No, sir. 22 Q. Isn't that a requirement of Monsanto? 23 A. No, sir. 24 Q. Doctor, all those memos that we have had here that 1 were submitted to your department, they weren't submitted 2 because that's the company policy to do that? 3 A. I don't like to -- don't know what you are 4 referring to when you say all those. 5 Q. Doctor, this one that we just talked about where 6 Harness wrote you a memo wanting to know about the safety of 7 2,4-D in 2,3,7,8, isn't it company policy that your S department be consulted in that respect? r* A. Not all things, no, sir. 10 Q, I didn't say on all things, on things dealing with 11 safety and health? 12 A. No, sir. 13 Q. And what is thepolicy of Monsanto? 14 A. The plant has a responsibility for what they do and 15 they ask for our help v?hen they need it. 15 Q. Well, and they need it when they get into an area 17 that they have no expertise, don't they, sir? 18 A. That's a judgment you have to make. 19 Q. We will indeed. They have to determine in 20 responsible fashion whether or not they know enough about the 21 toxicity of dioxins to write this memo, if they don't have 22 that knowledge, it is the company policy that they are to 23 detect those that have, consult, contact those that have the. 24 knowledge., isn 't that right, Dr . Roush? 1 A. Yes, sir. 2 Q. And they, from whatever source in your company that 3 they got this knowledge, they stated to this representative1 4 that is going to do this work for you, that certain 5 scientists suspect that chlorinated dioxins can either cause 6 or contribute to cause certain types of cancer, don't they? 7 A. That's a statement of fact, yes, sir. 8 Q. Sir? 9 A, That's a statement of fact. 10 Q. Yes. And, those are reputable scientists? 11 A. No/ sir. 12 Q. Sir? 13 A. Doesn't say that. 14 Q, Excuse me, I'm asking are not their reputable 15 scientists that believe that, sir? 16 A. I don't know what they believe. 17 Q. Doctor, you just got through telling us that there 18 are scientists that believe this, and now you are saying you 19 don't know what they believe? 20 A., I don't know if they are -- 21 Q. ' Doctor, are there scientists, reputable scientists 22 that Monsanto has faith in, sufficient faith at least to put 23 it in a document of this sort that dioxins and furans may 24 cause or will cause cancer? 1 A No, sir 2 Q. Doctor, you have said it here in this memo, in this 3 contract, not even a memo, it's a contract. You at Monsanto 4 have so stated it, do you see that, sir? 5 A. Yes, sir. 6 MR. HEXNEMAN: I agree with his analysis of what is 7 stated there. I think it's misleading to the witness. 3 THE COURT: Objection is overruled. 9 O. Doctor, you do agree that it is so stated in this 10 memo, don 11 you? 11 A. Yes, sir. 12 Q. Sir? 13 A. Yes, sir. 14 Q. And this is a Monsanto statement, isn11 it,* sir? 15 A. Mr. Lind1s statement. 16 Q. This is a Monsanto statement, isn 11 it, sir? 17 A. Yes, sir. 18 .Q. And Monsanto has stated to this contractor those 19 things that I have just read? 20 A. Yes, sir. 21 Q. Monsanto has also stated that the chlorinated 22 dioxins are known to cause Chloracne, liver , and nerve 23 changes and possible other injury at certain concentrations, 24 you see that, sir? ' iiV f i * -ir~ * r* r-i -W i'ri i 1 A. Yes, sir. 2 Q. Now, that's Monsanto telling those people that they 3 are known to cause Chloracne, liver and nerve changes? 4 A. Yes, sir. 5 Q. And, that is something chat is known, isn't it, 6 sir, it's something that Northwestern had in its Exhibit 1267 7 and in that table, isn't it? 8 A, Yes, sir. 9 Q. Now, those nerve changes, those nerve changes are 10 changes that occur over a period of time, aren't they, sir? 11 A. Over a month, maybe, 12 Q. What chlorinated dioxins are known to cause nerve 13 changes, Dr, Roush? 14 A. 2,3,7,8. 15 Q. Any other chlorinated dioxins that are known to 16 cause nerve changes? 17 A. The only one I know. 18 Q*. And what chlorinated dioxins are known to cause 19 liver damage? 20 A. Certainly 2,3,7,3 and the liver effects in 21 pentachlorophenol has never been clarified whether those are 22. due to the dioxin content or not. That's never been worked 23 out. 24 Q Weil then, Doctor, you do acknowledge then in this 1 document, that dioxin can cause liver and nerve changes, 2 don't you, sir? 3 A. Yes, sir. i 4 Q. And from the nerve changes can come a host of 5 problems, can't there, sir? You can have peripheral 6 neuropathies, peripheral neuritis, sensory impairments, sight 7 hearing, smell. You can have psychiatric problems from those . 8 nerve changes, can't you, Doctor? 3 A. Yes, sir, 10 Q. From the liver changes, you can have a whole host IX of problems, can't you, sir? 12 A. What do you mean by a host of problems? 13 Q. Many problems. 14 A, I don't know about that, 15 Q. That relate to the liver, all of those things can, 16 the internal problems can come from liver damage, can they 17 not, sir? By all of those I mean those that are listed under 18 internal in Exhibit 1267 A? 19 A, Liver damage means hepatic enzymes. Probably fat 20 is related. That's up above the porphyria cutanea tarda, 21 maybe hyperpigmentation as well, \ >* 22 Q, Can't you have pancreatic disorders, cardiovascular 23 disorder, carbohydrate metabolism problems all indirectly 24 related to liver changes? 1 A. Not that X know of. 2 Q. Well, at least you will agree and have finally 3 agreed that dioxin can cause those things, haven't you, 4 Doctor? 5 A. Some of those things, yes. 6 Q. And, Doctor, that's a lot more than just Chloracne, 7 the liver and the nerve changes, isn't it, sir? 8 A. Those are all acute effects. 9 0. Doctor, does it say that here, that this, those are 10 just acute effects, and you don't need to worry about them, 11 they will go away shortly? Where does it say that, Doctor, 12 did I miss that? 13 A. It doesn't say that. 14 Q. No, it doesn't say that because it means to say 15 that liver changes and nerve changes and injury can come 16 about, doesn't it, sir? 17 A. Yes, sir. 18 Q. Doctor, it also tells the person there that because 19 of this possibility of exposure of those chemicals they have 20 got to wear rubber shoes, rubber gloves and disposable 21 coveralls? 22 A. Yes, sir. 23 Q. Sir? 24 A. Y e s , sir. Vi* r < 1 Q. That's in order to protect those people from this? 2 A. Yes, sir. 3 Q. From this dioxin p 4 A. No, sir. 5 Q. No? 6 A. No, sir. 1 Q. Doctor, doesn't it say -- doesn't it say due to the 8 possibility of exposure to the above chemicals, doesn't it S say that, sir? 10 A. Yes, sir. 11 Q. Did I misread that? And the above chemicals refers 12 to those things described in the -- in the second paragraph, 13 isn't that right, sir? 14 A. Yes, sir. 15 Q. So, and that is dioxins, as well as furans, isn't 16 it, sir?- 17 A, That's not the reason that they are wearing 18 protection. t 19 Q. Doctor, that's the words that's in this document 20 isn't it, sir, whether you agree with it or not, you tell 21 those people due to the possibility of being exposed to those 22 chemicals, you've got to wear this kind of clothing? 23 A. Yes, sir. 24 Q. And that's because i'f they don't wear this kind of 1 clothing, they might get injured, they might ingest those 2 chemicals, including the dioxins, isn't that right, sir? 3 A. Yes, sir. 4 Q. Mow, Doctor, along the -- continuing with your 5 program of trying to discover as much as-possible about the 6 health of your workers and your public relations program, you 7 at Monsanto in the Fall of 1979 entered upon a program to 8 acertain the health status of the Krummrich employees who had 9 worked in the pentachlorophenol and in the chlorophenol' 10 departments in the past years prior to that time, isn't that 11 correct, sir? 12 A. Yes, sir. 13 Q. And, you engaged Dr. Suskind to do that work, did 14 you not, sir? 15 A. Yes, sir. lo Q. And, this study that he was to -do was 100 percent 17 paid for by Monsanto, was it not, sir? 18 A. Yes, sir. 19 Q. And along the way, you determined that you needed 20 to get the full cooperation of your employees at the 21 Krummrich plant, didn't you, sir? 22 A. Yes, sir. 23 Q- And you engaged on a program of, for want of a 24 better word, public relations with your employees to induce 1 them, to persuade them, if you will, to participate in this 2 study by Dr. Suskind, did you not, sir? 3 A. I don't know what you mean by that, but vie did 4 invite them to participate. 5 Q. And you sent them out letters and you sent them 6 out. By you I mean at Monsanto, questions and answers to 7 give them information, did you not, sir? 8 A. Yes, sir. 9 Q. All right. I hand you now v/hat 's been marked 10 Plaintiff s Exhibit 1495, and ask you to read that and ask if 11 it is not Monsanto's document dealing with Suskind health 12 study of the Krummrich plant employees. Do you recognize it, 13 sir? 14 A. Yes, sir. 15 Q- Offer that,exhibit, if it please the Court. 16 THE COURT: Any objections? 17 MR. HEINEMAN: No objection, Judge. 13 THE COURT: Admitted without objection. 19 Q. (by Mr. Carr) Nov;, Doctor, to put this in 20 perspective, it's described as the first draft of the list of 21 questions and answers to be used as a guide in responding to, 22 respond to questions that, may come from employees and the 23 press, isn't that correct, sir? 24 A. Y e s , sir. i Q- A nd, let m e a d v i s e y o u in a d v a n c e that it w a s n o t 2 the final draft, that there was two other drafts and 1*11 1 3 work up to the final one in time, so that you will be fully 4 advised of where I am going. The letter, however, that is 5 attached there, September of '79, the second document, was 5 the letter that was ultimately sent, was it not, sir? 7 A. I don't know. 8 Q. You don't know that? 9 A . IJo.. 10 Q. Do you have any -- let me put it another way, do 11 you have any knowledge to the contrary, sir? 12 A . No, sir. 13 Q. The letter simply says that Suskind and a team of 14 independent medical experts is going to examine those plant 15 employees beginning October the 3rd, and that they are going 16 to let the employee's family physician know the results and 17 you say some things about that it involves people in IS Department 2,3,6 penta and Department 2,3,7 chlorophenol? 19 A. Yes, sir. 20 Qi And the next page gives some information that you 21 are to respond whoever has asked the question by the 22 employee, is to respond. Now, the second question is of some 23 -- I'd like to direct your attention to that. If asked the 24 question what is the skin disorder connection notice to '' 1 employees, the person answering the question is supposed to 2 say that it's Chloracne*, which is a skin condition similar in 3 appearance to acne in adolescence, is that right, sir? 4 A. Yes, sir. 5 Q. And, are you not telling -- the person is asking 6 the question that is really something like teenage acne? 7 A. No, sir. 3 Q. You are not telling him that? 9 /A. I don't think so. 10 Q. What are you saying, if the only thing you relate 11 it to or equate it with is a skin condition that is similar 12 in appearance to acne in adolescence, isn't that teenage 13 acne. Dr. Roush, that you are talking about? 14 A. Yes, sir. 15 Q. And you are saying Chloracne is similar in 16 appearance to teenage acne? 17 A. That's what the public relations man said. 18 Q. Doctor, once again, they get their information from 19 you, don't they, sir? 20 A. Yes. 21 Q- And this memo on this question and answer was sent 22 to you, wasn't it, sir? You look on the first page, you are 23 the fourth person named? 24 A. Yes, sir. 1 rv\i Did you ever correct that misstatement? 2 A. I don't think I did, I don't recall. O Q. You let the employee be told that Chloracne is a 4 disorder and they were told that, were they not, sir, that 5 it's a disorder similar to teenage acne? 6 MR. HEINEMAN: Similar in appearance, Mr. Carr. 7 Q. Weren't they told that? 3 A. Similar in appearance. 2 Q. This is what the public relations people said and 10 you went along with it, didn't you, Dr. Roush? 11 A. Yes, sir. 12 Q. Doctor, there is also questions asked whether or 13 not chlorophenol is a hazardous material, and all you say 14 there in question number, answer number 3 that it can cause 15 burns, it's a toxic product that requires worker protection 16 such as gloves and eye protection, doesn't it, sir? 17 A. Yes, sir. 18 Q. You make, no mention of any other problems that can 19 be caused by dioxin exposure such as liver-changes or nerve 20 changes or cancer, 'do you, sir? 21 A. No, sir. 22 Q. Doctor, do you not believe that your employees re 23 entitled ;o have the knowledge that Monsanto has about those 24 products, those substances that they are working with? 1 A, Yes, sir. 2 0. nd Monsanto had then and has now the knowledge -31 that dioxin can cause liver and nerve changes, did it not, 4 then and does it not now have that information? 5 A. Yes, sir. Gr" Q. Did it tell the employees that about dioxin in this 7 statement, sir? 3 MR. HEINEMAN: You mean in number 3 asks about 9 chlorophenol? 10 Q. In this document, sir? 11 A. We thought chlorophenol will do. 12 Q. Doctor, if you look at question number 12, you are 13 asked what are the symptoms of dioxin poisoning, and you say 14 significant exposure to certain isomers of dioxin can result 15 in Chloracne, a skin condition similar in appearance to that 15 of acne in adolescence, do you not, sir? 17 A. Yes, sir. 13 Q. Do you make any mention about porphyria? 19 A. No, sir . 20 Q. _ Make any mention about peripheral neuritis? 21 A. No, sir. 22 Q. Make any mention about cancer? 23 A. No, sir. 24 Q. Doctor, you knew at the time this memo was v/ritten,. 1 that all o}f those things have been attributed cc dioxin O exposure, did you not, sir? O-- > /ri Yes, sir. A Q. But, you didn't tell your employees, did you, sir? 5 ri l!o, o ir . 5 Q. Don't you believe they are entitled to that 7 information, Dr, Roush? S A. Not necessarily on this little questionnaire. 9 Q. My question is do you believe they are entitled to 10 that information? 11 A. Yes, sir. 12 Q. Did they ever get that information, Dr. Roush? 13 A. fheir supervisors would tell them that. 14 Q. Did they ever get that information, sir? 15 A. I don't know. 15 Q. Doctor, in point of fact, you know that they were 17 never tolc3 the existence of dioxin exposure other than 18 necessity could cause something that is sinilar to teenage 19 acne, isn t that a fact, sir? 20 A No, sir. 21 Q. Well, can you direct me to the document, to the 22 memo, to the nev?sletter, to the plant bulletin, to anything 23 where you told those people that are working for you that, 24 have worked for you for so many years, that they could get 1 cancer from this, or they could get porphyria from this, or 2 they could get peripheral neuropathies from this? A. The plant knew it and -- 4 0. Yeah, I knew the plant knev; it, my question is can D you direct me to the document, sir, the plant oulletin, the 6 nev;sletter, the question, answer, statement, anything at all 7 that Monsanto ever published and distributed to its v/orkers S where you told them what you knev; about dioxin? 9 A. rlo, sir. 10 Q. Doctor, you also in this document -- and I'll 11 demonstrate though, that you did not tell them finally that 12 there was found to be -- this is question number 11 that 13 there was dioxin found in the product by OSHA at 300 parts 14 per billion 2,3,7,3, you see that where the tentative answer 15 'is there, sir? 16 A. Yes, sir. 17 Q. How, what was stated in the question was from OSHA IS did find and did announce to you that they had found dioxin 19 at this level, didn't they, 2,3,7,3-TCDD at this level, 20 didn't they, sir? 21 A. Yes, sir. 22 Q. But now, in this memo, at least, you tell your 23 workers that we have analyzed it or you are going to tell 24 your workers that we have analyzed it and go down to 10 parts 1 per billion, and v/e didn't -rind, didn't indicate the presence 2 of it, isn't that right, sir. 1 UR. USIREMAN: Objection, Your Honor, that isn't A what it says. Says analysis of a recent product sample that 5 wa -- -- 6 THE COURT: Objection is overruled. 7 Q. (by Mr. Carr) Did you ever tell them or are they On told in this document, sir, that you sent it to University of 9 Nebraska and you did your own analysis of those from this 10 spill, ana you found the tetra-dioxins at the level of 2700 11 and the 487 parts per billion? You don't tell them that in 12 this document, do you, sir? 13 A. No, sir. 14 Q. You suggest to them that you did have a third test 15 that showed 18 parts per billion, don't you, sir? 15 A. Yes, sir. 17 Q. But in your ultimate -- Your Honor, I'm sorry, it's 13 four o 'clock. 13 THE COURT: Okay. Ladies and gentlemen, we will 20 break for the day. As I said we are not going to be in 21 session Monday. So we will resume Tuesday morning at nine 22 o'clock. Besides the regular admonishments that I have given 23 you during any break in proceedings during the day, I want to 24 remind you over this weekend break you are not to read, 1 listen t o f or watch anything about this case in particular, 2 or subject matter in general in any of the media, print or 3 electronic. Thank you for your attention and cooperation. 4 Have a good weekend. We will see you Tuesday. Court is 5 adjourned. 6 COURT ADJOURNED: 7 8 9 10 11 12 13 14 15 16 17 18 IS 20 21 22 23 24 1 STATE OF ILLINOIS ) 2 TWENTIETH JUDICIAL CIRCUIT ) SS ) 3 COUNTY OF ST. CLAIR 4 5 I, DEBRA M. MUSIELAK, certify the foregoing to be a 6 true and accurate transcript of the testimony and proceedings 7 in the above-entitled cause. 8 Dated this / day of July, 1985. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 STATE OP ILLINOIS 2 TWENTIETH JUDICIAL CIRCUIT ) SS ) 3 COUNTY OF ST. CLAIR ) 4 '5 I, RICHARD P. GOLDENHSRSH, one of the Judges in and 6 for the Twentieth Judicial Circuit, do hereby certify that I 7 have examined the aforesaid transcript of proceedings, and 3 certify the foregoing to be a true and accurate transcript of 9 the testimony and proceedings in the above-styled cause. 10 Dated this _____ day of July, 1935. 11 12 13 14 15 16 HON. RICHARD P. GOLDENHERSH 17 18 19 20 21 22 23 24