Document jmzObX1KMEZpwb068ooeeqGky

IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT ST. CLAIR COUNTY, ILLINOIS FRANCES E. KENNER, etal, Plaintiffs, VS. : NONSANTO CONPANY, Defendant. y J .> N O . 80 > REPORT OF PROCEEDINGS BEFORE THE HONORABLE RICHARD P. GOLDENHERSH APRIL 4, 1386 JURY TRIAL APPEARANCES: NR. REX CARR, Attorney at Lau), and NR. JERONE 5EISFREID, Attorney at Law, On Behalf of tha Plaintiffs. NR. KENNETH HEINENAN, Attorney at Law, and NR. JANES CRAUEN, Attorney at Law, and NR. JOSEPH NASSIF, Attorney at Law, On Behalf of tha Defendent. TRACY LYBARGER, C.S.R., R.P.R. Official Court Reporter INDEX PAGE IN-CHAMBERS CONFERENCE . . . . . . . . . . . . 2 CONTINUED CROSS EXAMINATION OF DR. SUSKIND by m r . Ca r r . . . . . . . ... . . . . . . 53 IN-CHAMBERS CONFERENCE . . . .. . . . . . . . 7B CONTINUED CROSS EXAMINATION OF DR. SUSKIND BY MR. CARR . . . . . . . . . . . . . . . . . . 64 IN-CHAMBERS CONFERENCE . . . .. . . . . . . . ISO INDEX OF EXHIBITS Introduced Offered Admitted Plaintiff's Exhibit 1803 Plaintiff's Exhibit 1810 Plaintiff's Exhibit 1B10A 152 171 17B 153 154 172 173 178 178 2 1 BE IT RENENBERED AND CERTIFIED, that heretofore, 2 on to-wit: April 4, 19B5, the matter as hereinbefore set 3 forth came on for hearing before the Honorable Richard P. 4 Boldenhersh, Circuit Judge in and for the Twentieth Judicial 5 Circuit, State of Illinois, and the following was had of 6 record, to wit: 7 April 4, 1986 8 CThe following proceedings were had in chambers 9 out of the hearing and presence of the Jury at 9:30 a.m.J 10 THE COURT: It is Just before trial. First of 11 all, what do each of you have that you want to bring up? 12 NR. CARR: Your Honor, I would like to-- there ware 13 certain implied charges made by Nr. Nassif last night which 14 I would like to get on the record as soon as possible the 15 circumstances surrounding the matter that he has alleged to 16 have occurred or implied occurred so there would be no 17 problems in the record at any time as to what actually 18 transpired. 19 THE COURT: That was about the Juror? 20 NR. CARR: That's correct. 21 THE COURT: And what do you have? 22 NR. CRAUEN: Same subject matter. Ule want to get 23 it clarified now, and we have several notions that we want 24 to make and-- 3 1 THE COURT: On that matter? 2 MR, CRAUEN: On that matter. And Judge, we would 3 like to do it before we resume anything. 4 THE COURT: Well, we are going to have all the 5 jurors here in just a short time. I 'll start this for a 6 while, but we may finish it up later. Go ahead. 7 MR. CARR: All right. If the Court will recall, 8 on September 27th or thereabouts a Juror gat sick, a Mrs. 9 Melton, and was taken to the hospital and had an appendec 10 tomy and a hysterectomy at that time. From that time until 11 about October 11th I believe we had no regular court ses 12 sions, but the Court was in communication with each side, 13 at least the Court advised us that he was in communication 14 with each side, as to the circumstances of this juror's 15 illness, and as a matter of fact, called-- the Court advised 16 us that he would call the surgeons and the family physicians 17 involved and find out when this lady could come back to 18 court. And I assume when the Court called me, I'm confi 19 dent, and advised me, that I'm sure the Court called one or 20 more of the opposite Counsel and advised them of that cir 21 cumstance as'well. There was never to my knowledge any con 22 ferences other than by telephone with either the plaintiff's 23 Counsel or the defense Counsel. If thBre were conferences 24 with the defense Counsel face to face, I'm not aware of them 4 1 and I was not privied to them. The telephone conversations 2 of which I am aware and which did take place, the Court 3 initially advised us by telephone that we were going to *1 resume trial the Following day or following Monday, I forget 5 which it was right now because I did not take notes on the 6 circumstances, because the Court had been advised by the -7 family physician that this juror would be out of action for '8 sight weeks or something of that sort, if my memory serves 9 me right, approximately eight weeks. The Court advised us 10 that it was going to notify the Jurors-- the bailiff to get 11 ahold of the jurors and to have them return to Court the IS fallowing day for the resumption of the trial. And I assume 13 that started taking place. Later on that, I believe that 14 very same day, the Court called again and advised us that he 15 had talked to the operating surgeon and had been informed IB that this lady could return to trial within a short period 17 of time, three to four weeks rather than six to eight weeks, 18 and that she wanted to return to the trial having expanded 19 that period of time and that the Court was going to wait in 20 view of the new information received from the operating 21 surgeon that she could return to the trial. Now, all of 22 that I believe took place by telephone-well, I do know none 23 of it took place face to face. It is possible or conceiv 24 able that there may have been a conference among all of us 5 1 in the chambers. I know there was no in chambers conference 2 in this matter of any sort without all Counsel being 3 present. My memory is is that all of this conversation took 4 place by telephone; that the Court communicated and at least 5 I was advised at the time that the Court was going to com 6 municate this information to the opposite Counsel. Now, I -77 do not know whether or not the Court advised opposite B Counsel that this Juror wanted to return. But, I am 99 9 percent sure that it was the Court that advised me that he 10 had been advised by the bailiff that when she was going out 11 to notify the jurors--or notifying them by telephone, I 12 assume; I don't know whether it was in person or not--but 13 when she was notifying them that we were going to return to 14 trial without Mrs. Melton, Mrs. Melton informed her or 15 fellow jurors-- I don't know whom it was, and.I don't have IB that accurate of a memory of it-- or fellow jurors that she 17 did not want this case to proceed without her, that she was IB more than willing to come back, and the Court. And this is 19 the information that I have. Now, whether Dr not the Court 20 communicated to opposite Counsel the exact same information 21 that was communicated to me or whether the Court communi 22 cated an anecdotal matter to the opposite Counsel that the 23 Court did not give to me, I don't know; but, this is what I 24 am aware of and know of the circumstances in question. And 6 1 that's all I know about it, your Honor. 2 THE COURT: What do you have to say? 3 MR. CRAUEN: Judge, last night Mr. Carr said that 4 either the Court or the bailiff-- 5 THE COURT: Yes. 6 MR. CRAUEN: Related to him the content of conver 7 sation with Mrs. Melton. That was the first time we had any 8 knowledge that there was a conversation with Mrs. Melton or 9 the content of it. So that one of two things is true. 10 Either the Court has communicated with Mr. Carr ax parte, 11 or the bailiff has been telling Mr. Carr what the jurors 12 are saying, or someone has had a conversation with the 13 juror of which we have no knowledge. Now, when this first 14 arose-- we have checked all the transcripts-- when this first 15 arose Mr. Carr indicated that he had no objection; he 16 wanted to go ahead with the trial; he didn't want to wait 17 for this juror. And he said specifically, "We agree with 18 the Motion then, Judge, because I don't see any prospect 19 that the lady is going to be back inside of three weeks to 20 a month." And that was September 27th. 21 THE COURT: Right. 22 MR. CRAUEN: He wasn't present on the October 11th 23 proceeding. But, we were. 24 THE COURT: UJhat was the October 11th? 7 MR. CRAUEM: This was a subsequent in chambers conversation, MR. CARR; That's when Monsanto filad a Motion--! wasn't here at that time-- but Monsanto filed a Motion to resume trial on the next day rather than wait for the juror to come back. wasn't here. THE COURT; This was a hearing on that? MR. CARR: Yas, there was a Motion there, and Mr. Seigfrsid represented the plaintiffs at that time, and so far as I know, that's the only-- there's only two sessions relating to this matter ; that's an September 27th and October 11th. I don't know of any others. MR. CRAUEN; Mow, it's clear as the record exists now that what has happened is that soma decisions have been mads by Counsel and the Court with reference to Mrs. Melton based upon information that we didn't have, and taking Mr. Carr's statement last night as the truth, us are entitled before we go forward and we do move to strike Mrs. Melton. U)e want an evidentiary hearing to determine the basis of what M r . Carr said; where he got the information; and sines Mr, Carr has implicated the Court-- and this morning proved even further-then, .Judge, we are respectfully requesting that we have an evidentiary hearing on this question with a different Judge. Because Mr. Carr is indicating that ha e 1 says that this was not a matter of substance. We think it e was a-matter' of substantial substance. And he is now '3 saying that ha got this information From the Court. We 4 didn't have that information. Uis may well have made very 5 different judgments with, reference to this juror had we had 6 that information. So, until we know what happened, what 7 . transpired, and how it transpired, ws don't want to go 8 forward with this juror in the box. Mr. Carr said he 9 didn't either, and he was willing to stop. And then all of 10 the sudden he changed his mind. And our experience is that 11 hs doesn't do that willy-nilly. And he knew things that uie 12 didn't know. And we have bean prejudiced by the fact that 13 this juror is sitting in that box. And we want to find out 14 what happened; why it happened; who knew what; when; why 15 didn't everybody know it; and since M r . Carr has implicated 16 your Honor, ws. ask that this be done by-- under the super 17 vision of a Judge other then your Honor. We need to have 18 the bailiff interrogated as to conversations with Jurors. 18 We, .I think, clearly are-- if the bailiff is involved-- are 20 entitled to have a different bailiff. We are entitled to 21 have the juror removed, and we have to find out what kind 22 of taint if any is applicable to the other jurors. And in 23 view of the-- we recognise.the serious nature of this; we 24 recognised the serious nature of it last night whsn Mr. 9 1 Carr stood up and made these observations to the Court and 2 indicated to the Court last night that we would be prepared 3 this morning after we checked the transcripts to see what 4 course of action ue should take. And, Judge, to say we are 5 in a hurry and we want to go out there and start this trial 6 with that juror in the box and with these decisions that *i* have bean made, it is just manifestly unfair, and we don't B want to do that. And we want to move expeditiously and are .9 prepared to move expeditiously upon any kind of reasonable 10 investigation with reference to this matter. 11 THE COURT: Any response? 12 MR. CARR: Your Honor, Counsel .hasn't been here 13 and wasn't here when, this matter transpired. Obviously 14 Counsel is not aware of the fact that the Court did initi IS ally decide to proceed, and there is no question.in my mind 16 but what the Court advised not this particular Counsel, but 17 by telephone some, other Counsel of the Court's decision so 18 to do, because we were gearing up to come back the nsxt 13 day. The Court was ordering us to come back on the very 20 next rtondayy There's no.question in my mind but what the 21 Court advissd one--whatever Counsel may havs bean in Court 22 that particular weak, one of half a dozen-- -of that Fact. 23 Now, it is absolutely correct that whan we were initially 24 advised that there was.an indefinite period of time when 10 1 this juror was going to bs out, there's no question but 2 what we did not want to wait an indefinite time. And I 3 think even at that time, at three to four weeks, we did not 4 want to wait that period of time. The Court, however, in 5 it's discretion ruled that we weren't going to wait the 6 eight weeks required that the family physician said. And *? the only possible way this Court could communicate in that 8 situation is by telephone, and I-- by telephcns communica 9 tion to the operating doctor and by telephone communica 10 tion to the family physician. And to suggest-- :for former 11 Judge Craven to suggest that there was any way of any 12 wrongdoing on the part of the Court in communicating that 13 by telephone to us on an administrative matter has nothing 14 to do with a juror being tainted. This Court was making up 15 it's mind as events developed whether or.not it was IS worthwhile to wait for the juror or not to wait for the , 17 juror. Tha Court did not communicate to bib that the reason 16 it was going to. wait the three or four weeks that the 18 operating surgeon said it would take was the fact, that the 20 juror wanted to return. The Court communicated to me-- and I 21 don't know what the Court told opposition Counsel by 22 telephone-- 'the Court communicated to ms that the reason 23 that the Court had changed it's mind was because the 24 operating physician said that this Juror could return 11 1 within a relatively short period of time. And the 2 implication-- the suggestion by Mr. Massif last night and 3 now this morning suggested by Mr. Craven that this Court 4 has dons something or that this juror is somehow tainted B- because she expressed to a bailiff and-- I assume it was to 6 I the bailiff-- and the bailiff expressed to the Court that *7' she wanted to continua with the case, that's a hallmark of 8 a good Juror that Monsanto should be,pleased and happy .3 with. It would be a bad situation if a juror did not want 10 to serve. This lady expressed desire to serve, and 11 certainly at least to me the Court did not communicate how 12 she felt about the merits of the case nor that she had made 13 any decisions about ths merits pro Monsanto or anti Monsan 14 to. It simply was-- it got to me at least the expression'of 15 a good citizen: who wanted to continue her duty and the ie Court had found that facts had developed in a manner that .17. would allow her to continue her duty. And to question that 18 juror or to question the bailiff about this episode is 13 absurd and for the charge to be made that the Court cannot 20 communicate to Counsel by telephone in this.situation. 21 Mow, if the Court did indeed advise Just plaintiff that we 22 were not .going to p!raceed with this casa in view of what 23 the,surgeon said, than I would suggest the Court is in 24 error and the .Court should have communicated both sides of . 12 1 his.decision.' But, 'there is no doubt in my mind the facts show that we did proceed upon the advice of the surgeon 3..' that it was not eight weeks; and there's no question in my 4 mind Out what the Court communicated to the lawyers for the 5 ' other side the very same facts that it communicated to me 6 about the availability of that juror. And we strongly 7 oppose-- well, and even the implication that this Court must 8 be itself the subject of an investigation over .e decision, 3 made to wait for a juror's recoUperation is absolutely 10 absurd, and it's another-- their wanting to excuse this 11 juror is another attempt-of Monsanto to get the mistrial 12 that it's been leaking for far many many, months.. And we 13 certainly oppose everything that Counsel has-- for Monsan 14 to-- -has suggested, IS MR. CRAMEM: Judge, this record now clearly IB indicates that back on September 7th M r . Carr didn't want 17 to go forward with the case, and hs then talked in terms-IB n o t in. terms of eight weeks, in terms of three to four IS " weeks. 20 MR. CARR: I thought I did want to go forward .... 21 with the case in September. 22 MR. CRAUEM: You said you wanted her excused. 23 MR. CARR: Yea, that's what I said; I did want to 24 go forward, You said I didn't* 13 THE COURT; Let ma interject something. My memory of it-- -and I haven't checked anything on it-- is that both sides wanted to go forward quickly with her or without her. And it was my decision, disagreeing with both of you, after talking to both of the surgeons, both of the doctors, the surgeon and the treating doctor, or supervising doctor, or whatever, that we ware going to wait, despite both of you wanting to go forward. My-- MR . CRAUEN; But, Judge-- THE COURT; Mow, wait a second. Wait a second. So, let me correct that. I don't think-- my memory of it is that no-one changed their position as far as waiting for her full time. That was my decision basically in defiance of everybody as Far as whether wa would wait or net. And so, let me correct that as far as anyone's position. Do you have anything further? Vou did make Motions, and I think you should have the last word on your own Motions. MR. CRAUEN; Well, it's clear that Mr. Carr wanted to go forward.and.then decided to wait. MR. CARR; Where's that clear? THE COURT: That's what I was trying to say. I decided that everybody would wait. MR. CRAUEN: Let me just make-- I'll check tha October 10th transcript-- but the fact of the matter is 14 1 according to M r . Carr now-- THE COURT: Yes. 3 MR. CRAUEN: He knew something that uia didn't 4 know shout this juror whan he was making a decision back in 5 September or October. And we don't know how he knew it. 6 Wsknow we didn't know it. And uia think it was relevant to 7 our decisions then as to what to do about this juror, Now, 8 it's not right for fir. Carr to know something and us not to 9 know something. It's simply not right. Now, someone has 10 talked with this juror, and ws don't know who. What did IX the juror say? What were the questions? What was the 12 basis for the questions? What was communicated to the 13 other jurors? Who. did it? Last night M r . Carr said it 14 was-- -ha thinks maybe it was a conversation of the Court 15 with the juror. 16 7 MR, CARR: No. 17 MR. CRAUEN: That's my understanding. 18 MR. CARR: That's not what I said last night. 19 MR-. CRAMEN: And he said that either the Court or 0 the bailiff told him. this, > If the bailiff has told him. 1 what jurors are saying, what els has the bailiff told him 22 the jurors are saying? If the bailiff-- .23 MR.; CARR: Let me make.it clear. My best recol 4 lection today, it was the Court and not the bailiff. IB MR. CRAVEN: All right. That's evert mors serious. MR. CARR: Well, I. don't care whether it's more serious or not, but that is the facts as I remember it. MR. CRAUEN: But, that is even more serious. And, Judge, it is simply wrong to resume this trial with that Juror in the box until we know what happened; when it happened; with whom it hsppaned; why it happened; and why we didn't know it and have the same footing as Mr, Carr, Now, that's essential to any notion of fairness and due process. Mow, how do ws make an intelligent decision as to what to do back in October when this juror was going to have surgsry when we didn't know what she said to various people. If there was a conversation with the Juror by the Court, we are unaware of it. There's no transcript of a conversation. I don't know whether, there was one or not. I don't know what the Court told M r . Carr in telephone conversations, Quite obviously there's no way for us to know that. And he doesn't know what the Court told us in telephone coversatipns. But, we are tailing this Court that this business of this juror's observations.with refer ence to her burning desire to continue her service--why? Why? Good citizenship? Well, there ought to be-- I Just don't-- I'm not persuaded that that's necessarily so. But, 15 1 why? Why would she make these observations? And to whom? a It's not right. This Juror is tainted. But, before you 3 make a judgment on that, let's find out what is happening, 4 who's talking to whom, why is there conversation, why does S one side know something and the other side doesn't, and s let's get at the root bottom of that first. "7 MR, CARR: Your Honor, I suggest Counsel doesn't 8 know what his side knows. Were any of the-- there's no 9 doubt in my mind that the Court contacted a lawyer from 10 Monsanto. Who was that, Mr. Craven? 11 MR. CRAUEN: It was not ms. 12 MR. CARR: Well, you don't know then what was 13 said to the lawyer from Monsanto; do you, sir? 14 MR. CRAUEN: No, I don't. 15 MR. CARR: What lawyer was it that was contacted 16 on more than one occasion, not just ones, about this 17 matter? 18 ME. CRAUEN: I'm tailing the Court that we heard 19 last night for the first time what that Juror said. 20 MR. CARR; Weil, but what lawyer was it that has 21 knowledge? 22 MR. CRAUEN: I don't know. 23 MR. CARR: Well, how can you sit there and make 4 some charges if you don't know what the Court told other 17 1 Counsel? 2 HR. CRAUEN: Now, 1 5m not Dr. Suakind; you don't 3 gat to use those tactics on ma. 4 HR'. CARR; Counselor, I suggest you are talking 5 from ignorance * IF'you don't know what the Court advised 6 Monsanto attorneys in this entire matter, how can you pos ,*/7 sibly say that some information was communicated about the 8 surgeon, about the time it was going to take, if you have 3 no knowledge of it? 10 MR. CRAUEN: Why don't we 1st you talk to Mr. 11 Keinaman. I believe you ware the one called. 12 MR. HEINEMAN: I 'm the one that the Judge called. 13 And the Judge told me about that it would just be a time. 14 The Judge told me that he had talked to the doctors-- 15 . MR, CARR: ..Yes. IS MR. HEINEMAN: And that there would be a parti 17 cular time when she would return, period. 18 MR, C A R R D i d n 't the Judge tell you on two 13 occasions-- first he told you we were going to go ahead with 20 this trial and was notifying the jurors? 21 MR. HEINEMAN: No, I don't recall any such 22 conversation. 23 MR. MASSIF: UJe got the transcript that says h e 's 24 going to talk to the doctors and than consider going for-: 18 1 ward. That's what ths transcript says. M R . HEINEMAN: The information I got was that we 3 wars not going forward, that's what I was told, that we 4 were not going forward. -5 MR. NA5SIF; Until ha talked to ths doctor. 6 MR. CARR; Well, until he talked to the doctor. 7 M R . HEINEMAN; Right. And then I was told when 8 we were going back. That I was told. Thoss ara the two 3 things I was told. I wasn't told about any conversation 10 with a juror. I can't imagine why the bailiff was talking 11 to the juror about the possibility, as you suggested, that 12 we would return to trial without her, 13 MR. CARR: Wall, because that's what the Court 14 advised the bailiff to tell.the jurors, that we ware going 15 to trial. 16 MR. CRAUEN: .Without her? 17 MR. CARR: Yes. 18 MR. CRAUEN: When? 13 MR. CARE: And-- whan the Court advised us that he 0 had talked to the family physician and that it was going to 1 take too long for the racouperation to take place. MR. CRAUEN: Is that on record anyplace? 3 M R . CARR; No. As I told you, Counsel, he was 4 talking to the attorneys for Monsanto and attorneys far the 19 1 plaintiff by telephone. This was the decision the Court e was making and just exactly what facts hs told. 3 MR.' CRAUENr This was in October? 4 MR. CARR: September. 's: THE COURT; Either one of you have anything more 6 to say? Okay. As I told you before when I interrupted 7 your argument, it was my decision to wait. I don't remem 8 ber there ever being any agreement on it. But, I decided 9 initially to go ahead and then decided later to wait. I, 10 except for the meetings that we had here, I contacted-- I 11 communicated with Counsel for plaintiff and Counsel for ie defendant on the same day by telephone and told both sides 13 the same thing. I remember talking to you at one time, Mr. 14 Heineman-- I'm not pointing to you*-- and I remember talking 15 to Mr. Musgrave once and I don't remember whether I talked 16 to anyone else in the time. I generally, whan I've called 17 your office, any of the four of you or five of you who are 18 there, I Just assumed is notice to everybody else. So, 19 whoever I can get, I talk to. And basically with the SO plaintiffs also as far as even Mr. Carr or Mr. Saigfraid. 21 If I talk to ana, I figure I've talked to both. And admin 22 istratively I communicated this by telephone both on the 23 decision to go ahead and then my subsequent decision to 24 wait. As I said, I've told both sides the same thing. I 20 I don't frankly remember whether 1 said anything about this 2 thing or not. IF I told one, however, I did tall another. 3 I'm careful to do that, and even to the point at times to 4 making lists of what I'm going to communicate so I do com- S municate the same substance to both sides if for admini 6 strative, reasons I have to get ahold of either of you by / telephone. It was my decision to resume, it was my 8 decision to wait, in the face, if I remember correctly, of. S a motion to Proceed towards the and that was filed, a 10 written Motion, to go ahead. I think that as Hr. Carr 11 characterized this earlier, this is anecdotal only. I 12 think that a mountain is being made out of a molehill, and 13 I think that there is no just reason under any circumstance 14 to delay the resumption of this trial this morning, and IS there is no reason in the world to strike this juror From 18 the jury panel. I think that this is making a mountain out 17 of a molehill, I'll repeat it again. And your notions are 18 entirely denied, and as far as I 'm concerned, the matter is 19 closed. So,, assuming that the jurors are here by now, we 20 will resume, yell, before we do, I 've gotten this request ei from a juror for a day off if anyone has any objection to 22 it. And I have one question I need cleared up from yester 23 day's argument. When you mentioned an affidavit by Mr. 24 Carr, you are talking about a section of one of his 21 1 responses, not a separata sheet saying this is an affida 2 vit; right? 3 MR.' MASSIF: Just th affidavit that accompanied 4 his entire list of objections, your Honor. 5 THE COURT: He signed it? S MR. NASSIF: Yes. ; 7 THE COURT: And so, you are talking about that in e the form of as an affidavit? . 9 MR. MASSIF: Yes, air, that he had attested that 10 everything in his objections were true. 11 THE COURT: Okay. Because I was looking for s 12 separata affidavit attached to it. 13 MR. MASSIF: No. 14 THE COURT: And X was wondering if I had missed 15 something. But, that's what you are talking about; there IB wasn't a separate affidavit? 17 MR. MASSIF: No, not on the Juror's attentive 18 ness or anything. It was just part of his entire 19 ! objection. 20 THE COURT: Okay. 21 MR. MASSIF: Ue'li have a separate affidavit. 22 THE COURT: I understand you will have a separ 23 ate affidavit on. that one subject. I was just wondering 24 whether I had missed something. 22 1 MR. MASSIF: No. 2 THE COURT: Okay. 3 MR, CRAUEN: I assume ws can be given leave to 4 file an affidavit by fir. Heinaman that he was the attorney 5 called with reference to the subject matter of this and 6 reciting what the conversation was. 7 THE COURT: You can recite whatever you want. 0 Both sides can file whatever they want on this. I will 9 look it over and consider it as a Motion to Reconsider if 10 you decide to file anything. But, sure, you can file 11 whatever you want. I've got no problem with that. And Mr. 12 Carr, you may, too, if you wish. Does anybody have any 13 objection to that? 14 MR.'MASSIF:' Judge, can we get back to you on 15 this-- on this letter? I 'm not saying we are going to have 16 an objection, but us need to sort of talk from a scheduling 17 standpoint. 18 THE COURT: Sure. But, I would like to tall her 19 today. 0 MR. MASSIF: Yes; w e 'll tall., you at noontime. 21 THE COURT: Fine. 22 MR. MASSIF; Just give us a few minutes to-- * 23 THE COURT: Sure. 24 MR. MASSIF: U!e won't hold you up. 3 1 <Tha following proceedings wars had in the 2 hearing and presence of the jury.) 3 THE BAILIFF: Everyone please rise. This Circuit 4 Court of the Twentieth Judicial Circuit of Illinois and St. 5 Clair County is now in session, the Honorable Richard P. 6 Gdldanhersh presiding. Please be seated. -/7 THE COURT: Good morning. Sorry we are starting 0 so. late. As you heard this refrain before, we had some, 3 matters in chambers use had to discuss outside the presence 10 of the jury. Excuse m e . W e 're.finished with those, and I 11 think now we can proceed in the courtroom. Mr* Carr, you 12 may proceed.. 13 "c o n t i n u e d c r o s s e x a m i n a t i o n 14 BY MR* CARR IS .0 Dr. Suskind, do you have your report of September IS 9, 1S80, that is, Plaintiff's Exhibit 1500, in frent of 17 you? That is the Plaintiff's Exhibit 1500, the report of IB September 23, 13B0? IS A Yes, sir, I do, sir. eo Pardon? 1 . A Yes, I have it. 22 0 All right. Would you turn to page 3, please. 3 Doctor, toward the beittom of that page there's a paragraph 4 that I would like fer you to.explain to us the meaning of. * i 24 1 It's this paragraph--I know the Jury doesn't have a copy of 2 it so I 'll read it, ''Another interesting observation concerns the levels of HDL found in relation to persons 3 4 with no history of chloracn, a history of chlaracne ad 5 those with residual chloracn (Table 23>-. There appears 6' to be less residual chioracne in the group with HBL levels of 45 or more than those in the group with levels less than 8 45. Levels of 45 or greater are known to be indicative, of 3 average to low risk for coronary heart, disease." What does 10 that mean, Doctor? 11 A Well, studies that.have been dans in lipoproteins"-' 12 in relation to coronary disease have determined that the 13 greater the HDL level, and particularly above 45, the 14 frequency of coronary disease appears to be lower; that is, I * IS in the population of the United States as a whale, sir. IS Q Well, does that mean that it's good to have HDL of ; 17 j 45 or above, and no matter how high it goes? 18 A Wo, it would be-- 'yes, that's right, it would be. 13 . ' According to those-- to the epidemiologic study results eo .relating lipoproteins like HDL to the frequency of coronary 21 disease-- levels higher than 45 have a. lower risk, or the. 22 - frequency of coronary disease is lower, sir. 23 D Wow, Doctor, does that mean no matter how high the 24 KDL gets, that's good? 25 1 A Correct. 2. Q Because there's a reference range put in this-- in 3 the METPATH laboratory of, I think, 30 to 75. And is it H still considered beneficial to have levels of HDL above 5 that topmost of this reference range? 6 A Yes, according to this. 7 0 All right. S A So, the reference range and all the reference s ranges in the 1ETFATH have to be looked at with respect to 10 is out of the reference range abnormal? And in this 11 instance the-- if you have a high KDL, let's say over 75, 1c from a health standpoint, according to the epidemiologic 13 study, it. would be in your favor with respect to heart 14 disease. 15 Q And if it's-- if it's less than 15, that mould be IB bad then? 17 A Well, not bad, but ths--na, it can't be interpret IB ted bad, it only can be xntarprsttad as--- 13 .Q Well, a greater risk, if 1 read this right. 20 A Right. 21 ' Q That you. have a greater risk for heart disease? 22 ft There may be a greater risk for hEart disease, 23 yss j sir < 2H Q Well, is it maybe or--you say here, "It's, known t SB 1 be indicative of average to low risk for coronary heart e disease." So, that would indicate--- 3 ft According to the national study, sir. 4 D All right. So, above 4S would bs considered low s risk; below 45 would b considered high risk? 6 A No, it would be a higher risk. ? Q Higher- risks': ail right. e A ..Yes, sir. a Q .So'-- and you picked the level of 4S here- .as the ID cutoff for those two kinds of risks; did you not, sir? 11 A . Ng , we didn't. IS Q Well, you're the one that wrote this document, and 13 you used that value because it was of some importance or 14 significance to you? 15 ft Right. 16 Q Is that properly stated? 17. A Yes. tie-- is Q All right. 19 A That's correct, sir. 20 Q Now, Doctor, and you did a Table 23 that apparen 1 tly, uses the-- that you can look at to show ths-- yes, you 22 have levels of-- three levels' above-- 45 'and above, and three' Wa levels-- that's ths last page of the report that I 've got, 24 Doctor; I don't know if it's the last page of yours or not. 27 1 A Yea, sir, it is. 2 '.Q You have three levels at- 45 and above and three 3 levels that are 45 and below-- I mean, below 45. Is that 4 correct, sir? .5 A .... Yes.. 6 G ! And in those two-- in the columns of those that are 7 below 45, I added up somewhere earlier, and I think there's 8 S3 that ara below-- let's see, 7 and 3S-- yas, that's 53 3 that.are-below 45; correct, sir? 10 A If your addition is accurate. 11 G Well, I think it is this morning. 12 A . That' could be that, sir, yes. 13 Q 1 just did it earlier, so I think it is. 14 A Okay. IS G Well, you'vs got 17 in the column of no history IS that are below 45; do you not? 17 A Well -- 18 G And you've got 3S in the column with a history of IS chloracns; do you not? And that adds up to a total of 53-- ec A Yes. 21 Q . -- if 17 and 35 adds up, I think, to S3; does it 22 sir? Si r? 23 A Yes. 24 Q flow, really that's 50 parcsnt of your population 29 1 tiers that has HDL levels, of below 45; isn't it, Doctor? E . You got 109 subjects-3 A Fifty percent of this particular group, sir. 4 Q Yes, that's what I 'm talking about. 5 A But it may b normal for the rest,of ths popu 6 lation, sir, 7 Q Doctor, I'm talking about the group that you 0 studied hare, as you are aware of, the group at the ? Krummrich Plant in Sauget, Illinois, those workers that 10 work there, sir, that's the group we ara talking about. 11 A That's correct, sir. is Q All right, Doctor. So that I won't need to repeat 13 that'again that that is the group we're talkingabout, been 14 talking about now for several hours; is that right? IS A I don't believe it's necessary for you to remind 16 me we are talking about this group, sir. 17 C Now, Doctor, why did you add to it ''For this 1.9 group"? 19 A ; Because I think it has to be put into perspective, eo s i r . 21 0 Doctor, let's proceed if we might. 22 A Okay, please do. 23 C Fifty percent of this group have got HDL levels 24 that are below 45; isn't that correct, sir? 29 1 ft That's correct. 2 Q ftnd, Doctor, do you have Exhibit 1507ft in front of 3 youj the chart that's bean prapsrad? n MR. CARR: Your Honor, m e have copies. I know 5 the jury had it earlier, but they had it as early as July 6 '85, and I 'd like them not to have to dig in. And I think 7 the Court needs one as wall. 8 CAt this time the documents were passed out to 9. the jurors.J 10 G Mow, Doctor, this Exhibit doesn't have entered as 11 abnormal lipids HOLs which are below 45--- 12 ft It shouldn't, sir. 13 Q Doctor, do you understand I didn't finish my 14 question whan you interrupted that? 15 ft . Yes, sir. IS G As a matter of fact, I was making a statement 17 preparatory to.a question, 18 ft Ys s . IS MR. CARR: Your Honor, would you direct the jury 20 to disregard the statement of the doctor. 21 THE COURT: The jury is so instructed. It was an 22 improper statement; it was not responsive to any question 23 before the witness. 24 MR. CARR; And instruct the doctor net to do that 30 1 again. 2 THE COURT: Doctor, please, ..we've only been in 3 court about tBn minutes. Let's try to start this day out 4 Following the Court's admonitions. 5 MR. HEINEMAN: Objection, your Honor. May E Counsel approach the bench? 7 THE COURT: Yes. 8 CThe following proceedings were had out of the 3 hearing and in the presence of the jury.} 10 MR. HEINEMAN: Okay, Judge, again, if indeed what 11 M r . Carr states to this witness is a question and not a 12 speech, then the witness is entitled to answer it. If it 13 is a speech, then it shouldn't be given by Mr. Carr, and I 14 move that it be stricken and the jury be instructed to 15 disregard it. Wa can't have it both ways, Judge. If it is 16 a question, then the witness is entitled to respond to it. 1? Because Mr . Carr makes one of these statements and then ha 18 .pauaea, and the witness-- ths Court has instructed, this 13 witness that those things are questions Just like anything 20 'that seems to be followed by ,a question mark, that it's a 21 question, and so he responds to it. And then Mr. Carr 22 says, "0h, no, wait a minute; I wasn't finished with my 23 q u e s t i o n N o w , I object to that, I object to that 24 tactic, and I object to the Court's instruction to this 31 1 witness. e MR. CARRi Your Honor, there was no pause. Any 3 time I ask a question'based upon facts that are in evidence 4 I have to state th facts to the witness so that ha can 5 understand the question. I was in the process of forming 6 the question when this witness interrupted as he has in 1 many other occasions. e THE COURT: I think that is a correct statement 3 of what happened. It was apparent to me that it was prep 10 aratory to a question. I've allowed both of you leeway in 11 bases that are preparatory to a question in both the direct 12 and the cross for both of you. The statement was not 13 proper; I properly advised the witness as far as that as 14 far as his conduct was concerned. Ula were in hare less 15 than ten minutes. Us were here nine minutes and fifty 16 seconds before we started on this again. Ha was properly 17 admonished. Maybe today we can have a reasonable opera 10 tion of the court procedurs rather then an exercise in 19 evasion. But, I think that what happened here as far as 20 making the jury to disregard this and as far as the Court's 21 admonishment to the witness was proper. It was clearly-- 22 part of it was preparatory to a question and not a finished 23 question, and the witness improperly responded. I 've 24 admonished this witness a number of times to wait until the 32' 1 question is finished 5 that one in not capable of knowing what to answer until one has heard what one is to answer. . 3 So, your objection is overruled. 4 CTha following proceedings were had in the S' hearing and presence of the jury.) e Q Now, Doctor, this lipid column does not contain :7 the HDL findings that are below 45. It does, however, a contain HDL-- check marks for HDLs that are above the refer '3 ence range set out by the laboratory. Now, is it your 10 belief that those checks-- is it your opinion that those u checks rapresenting high levels of HDL, that is, that are is above the reference, range of the laboratory, are in fact 13 not injurious to the worker but are beneficial-- is a bene-, 14 ficial thing to have? 15 A Only according to the national studies, sir, which 18 is an epidemiologic Study. 1 ? Q Yes. And that's the national study that you'vs IB relied upon for the statement that you've put in your 19 report; isn't that correct, sir? 20 .A Yea. .21 0 Now, Doctor,, if you added-- if you subtract these, 22. there are four in numbsr that were in this column that have 23 high' HDLs according to the records -that are in evidence, 24 and there ara 61 total that have abnormal lab reports for 33 1 lipids In this chart. If you've added them up it's SI. 2 So, if you subtract those 4 HDLs, that would leave 57"yet 3 remaining in that column; would it not, sir? 4 A Mo, sir. -S Q Doctor, if you subtract 4 from SI, the remainder B is .57; is it not, sir? 7 A You'ra talking about abnormal lab reports, sir? a Q Doctor, I'm talking about the chart that is in s front of you. 10 A Yes. 11 G 1507A . 12 A Yes. And it indicates abnormal lab reports, 13 Doctor, I'm talking about the chart. Do you 14 understand I'm talking about this chart? 15 A Yes, sir. 16 G All right. And, Doctor, in that chart, if you'll 17 look at Sary, for instance, you will see that there is two 18 check-- two check marks for him. There should be none for 13 him because of a DLDL level which was normal and because 20 the HDL is above the reference range. And, Doctor, if you 21 look at Harper, you'll see a check in there in that column 22 for Harper; will you not, sir? .23 A What is his name, sir? 24 Q Harper; 23 years of age, sir. On the first page, 34 i; Dr. Suskind, Harper. A Harper. Okay. 3 Q About three-quarters of the way down. That check 4 mark according to the records represents a high HDL, and S for that reasons since it is not injurious to the worker, 6 it certainly cannot be considered, if it is outside the 7 reference range, it certainly cannot be considered some e thing that is bad; can it, sir? 9 A I can't say, sir. 10 Q Doctor, didn't you just agree that a high HDL is 11 good? 12 A No. I said a high HDL according to this study has 13 along with it a lower risk For heart disease. 14 0 Doctor, I'm sure what you said to us earlier was 15 that having a high HDL is good for the person, it's bene IB ficial to him; he has a lower risk of heart disease than 17 those persons with HDLs below 45. Isn't that exactly what 18 you said, sir? 19 A Yes, that's what I'vs said. But, these-are 20 abnormal lab reports, and that's wrong, sir. 1 flH. CARR: Your Honor, .would you instruct the 22 witness to listen to my question and not go beyond it. I 3 didn't.ask him--. 4 THE COURT: Doctor, you have gone beyond it. You 35 1 weren't asked that question. 2 THE WITNESS: I 'm sorry, but-- 3 THE COURT; Keep your responses, please, to the 4 question that's asked of you. 5 Ladies and gentlemen of the jury, that remark was e not properj I 'm ordering you to disregard it. You may 7. proceed. 8 Q Doctor, you have agreed that having high HDL, that a is, above the reference range and above 45, is beneficial 10 to the person that has that HDL level; have you not? n ft No, I didn't say so. I said according to the 12 report, it may be.. 13 Q ftll right. 14 A It may be. There's a big difference, air. IS All right, Doctor. 16 A Like there's a big difference bewtaen abnormal and 17 out of range. 18 MR. CARR; Your Honor, would you instruct t h e ' 19 witness that that's improper for him to say that and 20 instruct the Jury to disregard what he said. 21 THE COURT; Doctor, please try to restrain 22 yourself to the question that's asked of you. This is 23 twice in a row that you've gone bayond the question that's 24 been asked of you. Ladies and gentlemen of the jury, you 36 , i are ordered to disregard that remark. It was not proper} a it was not responsive to any question that was before the 3 witness.. 4 G Doctor, according to this report, HDLs above 45 is 5 beneficial to the person having the HDLs; is that correct?' '8 A It might be, sir. 7 Q It may be; is thatcorrect? 8 A It might be. .9 Q It might be; is that correct, sir? 10 A ' That's correct. 11 Q Thank you, Doctor. Now, Herganroeder also, 12 according to the records, he has one check in the lipid 13 column, sir, and that also represents a high HOL. Do you 14 understand that, sir? 15 A No, I don't, Sir, but if you say so, I 'll assume IB that it is true. ' 17 G All right. And, Doctor, finally, Lester, on the IB next page, also has one check mark in his column For the 13 abnormal lab report lipids, and that represents a high HOL 0 as wall that is--- 21 A No, sir. 22 G Doctor, I didn't finish my question. Do you 23 understand I hadn't finished my question? 24 A I thought you had; I apologize. ' 37.: 1 Q And, Doctor, that representing a high-~a level of s HDL that's above 45, according to this report that you 3 referred to, it is beneficial to tha person to have a 4 high-- an HDL above 45; is it not, air? S' A I might be, sir, 6 Q That it rpight be beneficial; is that.correct? 7 A It might be. 8 Q All right. Now, Doctor, on the other; hand, Burke; 9 on the first page, Carter, S; Esmon; Bundlach, Jackson on 10 that page; Kistner; Krack; Malanoiusky; tlcQonnsllNord- 11 hause; PurkeyReeves; Rensing; Richardson; a n d Schrock IS have no check marks For lipid abnormalities in. that column; 13 d o they,.sir? 14 'A I don't believe so. 15 Q But, all of the other persons according to the 16 records have HDL levels of below 45, according to these 17 records, Doctor. Now, if that is the fact, air, according 18 to this.report, that's 17 people in number, and that 17 19 added to the 58 remaining-- `57 remaining in the abnormal eo lipid column, if indeed it is abnormal-- assuming that sir--" 21 A It is not,; sir. i es MR. CARR: Your Honor, would you direct tha 23 witness that he has again interrupted me e n d instruct the 54 jury to disregard it.  38; 1 THE COURT.' Doctor, please, that was obviously-- 2 that was obviously not the end of the question that was 3 being asked of you. I've asked you before to wait until *1 the question Is finished so you know what you are supposed 5 to answer. The remark was improper. Ladies and gentlemen 8 of the jury, you ere ordered to disregard the remark that 7 was made. 0 Q Now, Doctor, if that is a fact, 17 added to 57 3 gives us 74 with lipid levels that are either abnormal 10 according to the laboratory report or which are below the 11 level of 45-, isn't that correct, sir? 12 . A No, -sir. 13 MR. HEINEMAN: Objection, your Honor. Nay '( 14 Counsel approach the bench? 15 A It is absolutely incorrect. IB THE COURT: Doctor. Doctor. Doctor. There's an 17 objection being made, Please wait until I rule on the 18 objection before.you answer the question. 13 CThe following proceedings were had out of the 20 hearing and in the presence of the jury.) 21 MR. HEINEMAN: Your Honor, the question asked by 22 Mr. Carr assumes and said if you assume that it's abnor 23 mal to be below tha 4S level. That is incorrect. 24 MR. CARR: No, I didn't say that, 33 1 M R . HEINEMAN: Oh, yss you did, Mr, Carr. MR. CARR: I did not. 3 M R . HEXNEMAN: Yes, you did. 4 MR. CARR: Mo, I did not. 5 MR. HEINEMAN: Yas, you did. And it's absolutely 6 incorrect. Even Dr. Carnow admits that a finding below 45 7 is hot abnormal; that all the Framingham study demonstrates 8 is risk surrounding that figure, that there isn't a normal 3 or abnormal For HDL, according to the reports that Dr, 10 Garnow intarprstted in this courtroom. And.so, it is abso 11 lutely misleading end .incorrect to ask this witness or to 12 even suggest to this witness that a reading below 45 is an 13 abnormal lipid reading on an HDL. 14 HR. CARR: If you listened to my question, it did, 15 not describe the HDL as abnormal. And if you would read 16 the question back to the Court if the Court has any ques 17 tion on it. IS THE COURT: I don't have any question about it. 19 MR. CARR: All right. SO THE COURT: I didn't hear it dsscribsd as 1 abnormal either. Your objection is overruled. 22 CThe following proceedings were had in the 3, hearing and presence of the Jury.) 4 MR. CARR: Would you read that question back to 40 X th witness, please? e CAt this'time ths previous question was read back 3 by ths court reporter, as requested.) 4 A No, sir. 5 0 Doctor, are you assuming that there are 17 that 6 are below the level of 4S, according to the records? 7 A I am. ' 8 Q Are you assuming that there is 37 ..that are above 3 the laboratory reference range values given, Doctor? 10 A Above? 11 Q Outside-- either-- outside the reference ranges ie given by the laboratory? Are you assuming there are 37 13 such lipid reports for individuals, sir, that have one or .14 more such outside the reference rang values? Are you IS assuming that, sir? 16 A If you want me to assume it, I will. 17 0 That is what I am asking you to assume that the IB records show u s . 13 A Okay. 20 G Now, are you assuming that, Sir?. 1 A I am . 22 Q Now, are you assuming that there are 57 of these 23 people that have lipid values that are outside the refer 2H ence range established by ths laboratory for these lipid 41 1 values? Are you doing that, sir? 2 A ! am. 3 G And there are 17, sir, that have HBL levels of 4 below 45. Are you assuming that, sir? In addition to the 5 57, Are you assuming that, sir? B A If you want me to assume it. 7 G I 'm asking you to assume that that's what the 8 facts show. 3 A Okay, I'll assume it, sir. 10 Q Doctor, that is 74 in number; is it not, sir? 11 A It adds up to 74. 12 Q Wow, Doctor, 74 is what percentage of the 108 13 involved, sir? 14 A Seventy-four is not abnormal, sir. IB HR. CARR: Your Honor, would you direct the 16 witness to listen to my question and respond to my 17 question. IS THE COURT: Doctor, that was not responsive to 19 the question. Listen to the question and answer the ques SO tion that's before you and not something else that you want 21 to say, please. 22 G Doctor-23 THE COURT: Ladies and gentleman of the jury, you 24 are ordered to disregard that remark. It was not properly 42 i' made. 2 Q Now, Doctor, 74 is 68 percent of the total; is it -3 j not, sir? 4 A Sixty-eight percent of what, sir? 5| Q One hundred eight workers. 8 A And what do they represent, sir? 7! Q Excuse me,- 108 workers in this studythat you--- ^ 8 A And what does S7 represent, sir? 3; MR. CARR: Your Honor, direct the witness-- - 10 ' A I don't know what you are talkingabout, 11 | THE COURT: Doctor, Doctor, You are not asking 12 the questions. Listen to the questions and answer the 13 questions you are asked. 14 A I cannot answer that question, sir, because a 15 yes-- - 16 THE COURT: Doctor. Doctor, just wait for the 17 next question, please. So ahead, Counsel. 18 ; G Doctor, 74 is 88 percent of 108; is it not, sir? 13 1 A IF you are referring to straight numbers without 20 ; referring to this particular document, yes; but, it cannot i 21 rsfer to this document, sir. 22 MR, CARR: Your Honor, would you instruct the 23 witness h a 's gone beyond the scope of my question and order 24 the. .jury to disregard it. 43 1 2 3 4 5 6 / 8 3 10 11 12 13 14 15 18 17 18 13 20 21 22 23 24 ; THE COURT: Doctor, as far as percentages, over SO percent of the questions that you've been asked in the last five minutes you've answered improperly. You have gone way beyond the scape of the'question. I am admon ishing you to listen to the question, wait until tbs entire question is asked of you so that you know what you've been asked, and keep your answers within the scope of the question that's been asked of you, Ladies and gentlemen, you are ordered to disregard the last remark that was mad by the witness. It was not proper. You may proceed, Counsel 0 Now, Doctor, you do agree that it would be unusual or strange for as few as. 56 percent to have lipids outside tins established normal reference range; don't you, sir? A No, sir, absolutely not. I do not agree at all. Q You don't agree with that at all? A At all. Absolutely. Q And if you said that yesterday, you would have been lying yesterday? A No. You asked me two questions yestarday, sir, Q Doctor, listen to this question that was asked of you yestarday, A I know what the question is.. C Doctor, would you listen to the question, please. 44 1 ''Now, Doctor, do you think it unusual or Strangs that BO 2 people, that is 56 percent, Would have lipids outside the 3 established normal reference ranges?" And your answer was, 4 "If it ware absolutely true, yea.'' Wasn't that your answer 5 yesterday? B 112. HEINEMAN: Objection, your Honor, flay 7 Counsel Approach the bench? a THE COURT: Yts, you may. 3 CThs Following proceedings wars had outside the 10 hearing and in the presence of the jury.) li MR. HEINEriANs Now, the Court will recall, I 12 know, when I was cross examining Dr. Carnoui and X would 13 refer to a portion of the testimony for impeachment 14 purposes and Hr. Carr would suggest, ''Well, why don't you, 15 read in the other pages? Why don't you read on?" 16 MR. CARR: I intend to read the 'rest of It, 17 Counselor, after I establish this first. 18 MR. HEINEMAN: That is absolutely misleading 13 based upon what the doctor was asked immediately after 20 that. 21 MR. CARR: No, it's not at all misleading, and I 22 intend to read the rest of it. 23 THE COURT: Let me, sc X can rule on it, let me 24 see -it. 45 1 MR. CARR: This is th question that I just e asked. This question urns previous to these questions. 3 THE COURT: Now, wait a minute. 4 MR-, CARR: This question was asked first and then 5 these questions. 6 THE COURT: Okay. /*-T HR. CARR: This is the question I just read-- to e him and then his answer. I simply asked him so far whether 3 or not hs said that:yesterday. 10 MR. HEINEMAN: For the rcord, your Honor, so li that this will show up. The first question and answer that 12 M r . Carr just read is followed by-- 13 THE COURT; Nell, I'd rather xerox this and make 14 it part of the record rather than taka the tima at a bsnch 15 conference to do that. I've read it; you may continue with 16 your argument. 17 MR. HEXNEMAN:' Your Honor, I would like to say 18 that what the doctor continues to say.is that Mr. Carr asks 19 him, "IF 58 percent of the population to have abnormal 20 lipids." It's that which the doctor said would be strange. HI "IF they have abnormal lipids." HE MR. CARR: Didn't ha say that it were absolutely 23 true? Didn't he respond to that question? 24 NR. HEINEMAN: You noticed ha used the terms MB 1 ''normal"-- e MR. CARR j -- "reference range". Exactly. 3 MR. HINEMAN: And a rafaranca range doesn't make *4 the determination normal or abnormal, Mr. Carr. Even Or. 5 Carnow admitted that. 6 THE COURT: I 've read this matter which will be 7 xeroxed and incorporated into the record. I don't think it 8 was misleading. Your abjection is overruled. It was 3 proper impeachment. 10 CThe following proceedings ware had in the 11 hearing and presence of the jury.) 12 q Doctor, you do recall now, do you, sir, that that 13 was your answer to that question? IHt A I recall it, and it's incorrect, sir. I was .15 wrong. It was late in the day and there wars two ques 16 tions, one about whether or not abnormalvalues, 58 percent 17 abnormal values would be unusual, and I said yes. But, out 18 of range is not the same as abnormal, And you indicated-- IS MR. CARR: Your Honor, the witness has gone well eo beyond the-- 21 A I 'm sorry, I 'm sorry; that's all I have to say. .22 Q Doctor, you do now agree that you said yesterday 23 that if 56 percent would have lipids outside the estab 24 lished normal reference range, that would be unusual or 47 1 strange. Correct, sir? 2 ft I said that, and it's incorrect, air. 3 Q All right. And then, Doctor, you want on to say 4 right after that question this question was asked: 5 ''Doctor, if it's accurate, it would be indeed passing 6 strange, would it not, sir?" 7 ft Mot with respect to that, with respect to-- B THE COURT: Doctor, please. 9 Q This is what the record shows, Doctor. Let me 10 start from the top. "Mow, Doctor, do you think it unusual 11 or strange that BO people, that is 5B percent, would have 12 lipids outside the established normal reference ranges?" 13 Your answer was, "If it were absolutely true, yes." ftnd 14 than this question, "Doctor, if it's accurate, it would be 15 indeed passing strange, would it not, sir?" ''ANSWER: If 16 it were accurate, one would have to-- " "QUESTION: Let me 17 finish, please. Let me finish my question, please, sir. 18 The 36 percent of the population to have abnormal lipids?" 19 "ANSWER: If it were accurate, it would be strange, sir, 20 yss." "QUESTION: ftnd, Doctor, is that the kind of an 21 effect you would expect from exposure and other absorption 22 to toxic substances, to certain kinds of toxic substances?" 23 Your answer was, "Certain kinds of toxic substances, yes." 24 Wasn't that your answer to thosa-^ 48 1 ft This was my answers, sir. 5 0 -- questions at that time, Doctor? 3 A Indeed it was. 4 D ,. Yes. 5. ft And I stick'by it. For abnormal values. 6 MR. CARR; Your Honor, would you instruct the 7 jury to disregard the latter statement of the witness and 0 instruct the witness that his answer is improper. 9 THE COURT; Doctor, again, you've gone way beyond 10 the question. Your response was not responsive to the Il question. Ladies and gentlemen of the Jury, you are ls ordered to disregard the last response.. 13 MR. HEIMEMAH: Your Honor, may Counsel approach 14 the bench for a minute? IS THE COURT; Yes. IS CThe Following proceedings were had out of the 17 hearing and in the presence of the Jury.) 18 THE COURT: It's about 11, and although wa 13 haven't been in court for the full time,, the reporter has 20 bean, working the full time. I 'd like to take a short, break 21 now. In view of the frequencies of the improper responses 22 of this witness, I would like you again, Mr. Halneman, to 23 talk to this witness over the break and try to explain to 24 him again the court rules as Far as making answers-- .49 1 responses^-that are responsive to the question that's being 2 asked, no less and no more than the question that is being 3 asked. He's at an extramsly high Frequency of doing that *4 this morning, and it's not really a good way to start off 5 tha day. 6 HR. HE INEHAN; Your Honor, whan you were asking / us to approach the bench I was objecting at the same time 8 and asking to approach the bench. a THE COURT: Okay. 10 'MR. HEIiNEHAN: Because'. I wanted tq abject to what 11 you just did in instructing this jury to disregard the 12 witness' answer. Do you mind turning around and facing the 13 Judge as he's ordered you to do, or do you want to preen and 14 prance in front of tha jury? IS MR. CARR: Counsel, as you know, I 'm looking 16 directly at youj I 'm not even half way looking at you, 17 because you are speaking. When the Judge is speaking, I'm 18 looking at him. I'm now looking at you as you are new 13- looking at me. 20 MR, HETNEMAM: The Judge has ordered .you-, .Mr, 21 Carr, to Face him, as he has ordered me to face him, and I 22 would appreciate if you would obey the Judge's orders. 23 THE COURT: Okay, gentleman, coma on. 24 H R . HEINEHAN: Now, your Honor, to say that the1 SO 1 addition of the statement, "And I stick by it" is not 2 responsive to the question and therefore should be disre 3 garded by the jury is in my view ridiculous. It is clearly 4 responsive to the question. He is asked, "Is that your 5 'testimony?"- H said, "Ys, that's my testimony, and I 6 stick by it." Now, that is not a nonresponsiva answer, and yy I object to the Court instructing this jury that it is and 9 instructing the jury to disregard it. ' 9 MR. CARR: Counsel, he even want beyond that. 10 Apparently you didn't hear him, but ha went beyond saying, 11 "1 stick by it." He said something else, it was abnormal 12 or net normal or something of this sort in addition to 13 that. 14 MR, HE INEMAN: No, he didn't.15 MR. CARR: He most certainly did. IS THE COURT: Yes, he did. And that was the part 17 that was not responsive. Technically the "sticking by it" 18 is not something that he was asked, but it's reasonably 19 germane to the question that was asked. : But, the parts 20 about normal-- about the abnormal, rather, that he started 1 into afterwards and ware properly interrupted by Mr. Carr 22 were not responsive. And that part was properly inter 3 rupted; that part. The jury was properly admonished to 4 disregard that point. The part of the question---answer, :, ; 51 X .rather, that you noted arguably is responsive to the 2 questionj I didn't have any problem with that part. So, 3 your objection is overruled, and let's taka a break. If 4 you would do that as part of the break, I would appre S ciate it. 6 C.The following proceedings were had in the y hearing and presa-nee of the jury. 1 8 THE COURT: Ladies and gentlemen, w e 're going to 8 take a short break at this time and then we will resume it. 10 I would remind you during any of these breaks you are not 11 to discuss this matter among yourselves, with anyone 1 2 outside the Jury panel, or as of yet form any opinions or 13 conclusions about the matters on the trial. Court is in 14 short recess. 15 Cftt this time a recess was taken.'.' IS CThS following`proceedings were had in the 17 hearing and presence of the Jury following the recess.) 18 THE BAILIFF: Everyone please rise. You may be 19 seated. 20 G CSy Mr. Carr) Doctor, you are familiar, of course, 21 with-the Moses-Selikpff study, `Defendant's' Exhibit 308? 22 ft Yes, I am familiar with-it, sir, 23 Q And do you have a copy of that in front of you? 24 A Mo, I da not, sir. . ,52: ; 1 MR. CARR: Would you give Defendant's Exhibit 908 2 to the witness. , 3 And page 178 of that exhibit, Doctor. There is in 4 - that report-^-in that study-- a statement with reference to 5 heart disease or deaths from heart disease at Nifcro; is 6 therB not, sir? 7 A Yes, there is a statement about that. a Q And, Doctor, Plaintiff's Exhibit 1748 shows-- w a 've 9 discussed this earlier-- the cause of deaths of those-- of 10 the 35 that you had examined in 1953, it shows the cause of 11 death. And that exhibit shows that the heart.-disease was 1 2 ths greatest cause of death, does, it not, in. those 35?, 13 A I believe it does. Q Yes. And Doctor. Dr. Moses also points out that 15 there is a higher coronary heart disease death rats in the IB study group than is in the United States population rates. 17 Do you see that, sir? ia A ,Yes, I ss it. That's not her work, sir. 19 G Doctor, I 'm aware of that. But, my question is: 0 Doesn't Moses and Selikoff make that statement in their 21 report and they attribute it to Zack-Oaffey; do they not, .22 sir? . 23 A Yes, I believe they do, sir. 4 Q And you, of course, are familiar with the Zack- ' 53 1 Saffay study in which they found in the workers that they e studied that there was a higher mortality rata-- -that first 3 of all the S.M.R. for the diseases of the circulatory 4 system was elevated, and they said it is most likely a 5 reflection of the high mortality of heart disease that has 6 been observed for Charleston and West Uirgina, and they ./*' also found that for the total Nitre plant study popular a tion there was a statistically excess in deaths from a arteriosclerotic heart disease and a deficit in deaths from ip other circulatory diseases. You are familiar with that? ii A If they are referring to the Zack-Saffeystudy. 12 Q Yes. 13 A That's what the Zack-Baffey apparently found. 14 Q Yes. And, Doctor, the heart disease rate for 15 these workers is elevated; is it not, sir? According to 15 Zack-Baffey? 17 A The*-- according to Zack-Baffey for the whole popu10 iation, yes. 13 B And, Doctor; the Krummrich plant workers-- and 20 that's among a group of chemical workers, is it not, sir, 21 that's working with chlorinated phenols-- the group that was 22 studied by Zack-Baffey? 23 A No, they studied all of the workers, sir. They 24; studied all the workers in the whole plant. 54 1 Q No, Doctor, they studied the workers who were 2 exposed to the 2,4,5-T production, sir; they didn't study 3 the workers in the whole plant. 4 A I believe-- 5 0 You are familiar--' 6 A I believe that the total number of people in the 7 2ack~Gaffey population, the 884, are all the workers in the 8 plapt, sir. 3 Q Doctor, you are aware'-- -well, I 'll even accept 10 that, Doctor; I won't even quarrel with that, Doctor, And 11 that shows that For the workers in that plant-- in that 12 chemical plant then, doesn't it, sir, that they had this 13 higher death rats,- does it not, sir? 14 A According to that particular study, sir. 15 Q Yes. And of course, the-- use have previously 16 established the extant of the contamination of that plant 17 in which all of those workers might well be exposed, have 10 we not, sir, as shown by Plaintiff's Exhibit 15B7B, sir? IS A You have painted it out to me. 20 Q Yes-. 21 A I don *t happen to agree with it, but that's .22 besides the point, sir. 3 Q Yes, it is beside the point, Doctor. I believe it 24 is, because that's already been established. Now, the 55 / 1 higher death rate in those workers that had this kind of 2 exposure is supported, is it not, or rather it's consis 3 tent with the lipid out of reference range reports as shown 4 in Exhibit 1507A and consistent with the HDL levels in 55 5 people at the Krummrich plant that were below 45; isn't e that correct? 7 A No-, sir, i t '.s not. 9 Q Doctor, did you not say-- and one step at a time-- 3 did you not say, sir, that the S5 that had these low 10 'levels, that is below 45 HDL limits, that they were at a 11 greater risk according to the Framingham study? 12 A They may have a higher risk for heart disease. 13 Q Isn't that what you said, sir, according to the 14 Framingham study they have a higher risk? 15 A According to the study that was done, that demon IS strated that, sir, yes. 17 Q And, Doctor, 50 percent" ! think it was 53 IS actually was the number--S0 percent of the, according to 19 your report, SO percent of the population at Sauget, Illi 20 nois are at that greater risk according to the Framingham 21 study; is that correct, sir? 22 A' '"No,' sir. 23 Q Doctor, didn't we establish that 53 had HDL levels 24 of baiow 45? 56 1 A We did. 2 All right. And didn't we also establish that 3 according to the Framingham, that puts them at a greater 4 risk of heart disease? 5 A It might put them at-- 6 Q Didn't we establish that? 7 A Thera's a clifference_between it does and it might. 8 Q Well, Framingham said that according to their 9 studies the people who have HDL levels of below 45 are at 10 greater risk is what they said; isn't that correct? 11 A No, they said they might be at greater risk. 12 Because when you are dealing with statistics, there's 13 nothing absolute about it, sir. 14 Doctor, I understand that. But, they said 15 according to statistics, did they not, sir, as you stated 16 earlier this morning I thought, those that have lower 17 levels are at greater risk; those that have higher levels, 18 no matter how high it goes, are at a lesser risk. Isn't 13 that what you said? 20 A They might be at a lower risk or they might be at 21 a higher risk. 22 Q I won't quarrel with that, Doctor. We'll accept 23 that so we won't go on arguing about the might be or can be 24 cr are. According to Framingham, 50 percent of the popu 57 1 2 3 4 5 e ? S 9 10 11 12.; 13 14 IS IS 17 18 IS 20, HI 22 23 24 lation at tha Krummricb Sauget, Illinois plant may be at a greater risk of dying from heart disease than the average United Statss population; isn't that correct? A- No. - Q Sir? A Mo. No. 0: Doctor-- A They are-- , Q Didn't us establish that 53 have this risk Factor, sir? That's SO percent of the population? A That's right. But, you said dying of heart disease. It's th greater risk for having heart disease; for having. That's different, sir. Q Doctor, than it follows, does it hot, sir, that if you have heart disease, that you are at a greater.risk of dying from heart disease if you've got it? A You might be; it also depends on how you treat it. Q You might get shot before you have your heart attack, cr you might die of cancer before you have a heart attack, or something else might cause your death. But, if you have that heart disease, you are at risk from dying from it; are you not, sir? A You might be at risk, air. It ail depends on how you treat it, sir. 58 1 Q Yes, Doctor. And 50" percent of the popuiaion that 2 you studied at Sauget, Illinois had this particular risk 3 .for heart disease? 4 A No, sir, I do not agree with that. :S Q Doctor, does 50 percent have lower than 45? s A So what? 7 MR. CARR: Your Honor, would you direct the 8 witness to answer my question. a THE COURT; Doctor, that question was not 10 responsive to the question. Answer the question that's li asked of .you, sir,' 12 A Fifty percent according to your figures have a. 13 level below, an HDL level below 45. 14 G Now, Doctor, it's not my Figures; I did not take-- * 15 examine these workers; I did not conduct the HDL. Accor IS ding to the figures that you found and that you reported, 17 sir, 50 percent of these workers have HDL levels of below 18 45; isn't that correct, sir? According to what you did? 19 A I don't know; I didn't add them, sir; you did. 20 G Now, Doctor, you said you had no quarrel with that 21 fact, sir. 22 A I have no quarrel, because I believe you. 23 Q All right, Doctor, Than-- 24 A I believe your mathematics, sir.  59 1 Q You believe that the figures were taken from your e reportss don't you, sir? 3 ft I would hope so. 4 G You believe that; don't you, sir? 5 ft Yes, I have confidence that what you're saying is 8 accurate. 7 G Wall, Doctor, look at your own table, Table 23, 8 your report, sir. Don't take my word for it; taka your 9 report, sir. 10 ft Yes. 11 Q Didn't us establish that according to your report, IS sir, 53 of these people have levels below 45? Didn't we 13 establish that, Doctor, according to your report? 14: ft Yes, I believe that if you count them up, that's IS what they come to. 18 G And, Doctor, those are your figures; are they not, 17 sir? 18 A Yea, the figures that are-- . 19 -Q And that is your report; isn't.it, sir? 0 A That is in the report of September of 1980, sir. SI Q And adding up your reports, sir, it shows that 50 as percent of ths population that you studied at Sauget, Illi S3 nois, just a few milss from hare, have a greater risk of 24 heart disease than the average population; isn't that 60 1 correct,' sir? 2 ft That is not, sir. 3 Q Didn't you say, sir, that 45 is the level, sir? 4 That you have an above average risk For heart attack, sir? 5 ft ftccording to an epidemiologic study, sir. 6 Q Yes, Doctor, that's what I'm referring to. 7 ft Yes, 8 Q ftccording to this study, sir, 50 percent-- listen 9 to me, Doctor-- according to this study of yours, sir, and 10 according to the Framingham study, 50 percent of the plant 11 population that you studied and reported upon have a IS greater risk than average of heart disease; have they not, 13 .sir? 14 ft No, sir. IS Q What is inaccurate about that statement, sir? IS ft The inaccuracy, sir, is that you have to compare 17 the population of the Krummrich group to a matched, which 18 the Framingham study did, a matched in age and sex and 19 economic level with a control population. 20 Q Isn't that what Framingham did? 2 1 ft They did, but we didn't. 2 Q Yes, Doctor, according to the Framingham study 23 which had the control group which developed these figures, 24 Doctor, according to that study, if you use that study as a SI 1 guide by which to analyze the Sauget people, which you did, e sir, 50 percent of your group have levels lower than 45 3 HDL; don't they, sir? 4 A Fifty percent have levels of below 45, that's 5 true. 6 0 And if the Framingham-- and the Framingham study 7 says that people with levels lower than 45 are-- may J3 at 8 greater risk of contracting heart disease; does it not, 9 sir?' 10 A They may be, yes. 11 Q Isn't that what it says, sir? 12 A That's what it says; it may be. 13 Q And therefore* if that appliss to your Sauget, 1 ** Illinois population, then if it applies*-- Doctor, now are 15 you assuming that it applies? Are you going to assume that 16 it appliss, Doctor, so I don't have to go through this 17 again. 18 MR, HEINEMAN: Objection, your Honor. May 19 Counsel approach the bench? 20 THE COURT: Yes, you may. 21 CThe following proceedings were had out of the 22 hearing and in the presence of the jury.) 23 MR. HEINEMAN: I object to his asking the witness EH to assume that the Framingham study applies to the Sauget 52 i population. There's no evidence to support that. The fact 2 of the matter is, aa the doctor has just said, the Framing 3 ham study is an epidemiological study. And an epidemio 4 logical study was not performed at Krummrich. Krummrich 5 group was not compared to a control group. That's why the 6 'doctor says that you can't make that same conclusion; you 7 can't say that they would have a higher risk of heart 8 disease. And therefore, it's misleading and it's inac 9 curate to ask him to assume that it does apply. There's no 10 basis for such an assumption in ths record at all. 11 MR. CARR: Your Honor, the basis is the doctor 12 himself used ths Framingham study in his September 1S80 - 13 raport, and I just asked him about it. He himself referred 14 to.the 45 level and being at average or greater risk or 15 lower risk if you are above or below. He himself applied 16 it to the Sauget group. 17 THE COURT: He did. Your objection is overruled. 18 CThe Following proceedings were had in the IS hearing and presence cf the Jury.3 -. , 20 Q Now, Doctor, are you assuming that it applies to 21 the Sauget group? 22 A 1 am not. 23 Q You are not assuming? 24 A No. 4- 83 1 Q Now, Doctor, you applied it yoursalf to the e Sauget, Illinois group; did you not, sir? 3 A No, ,we mentioned the fact, sir. Ws didn't apply 4 it, sir. S Q Well, Doctor, didn't you mention it? B A We mentioned it as a-- 7 G Didn't you refer to it? And didn't you use it in B your Table 23? Didn't you use it yourself, Doctor? 9 A We mentioned it and we cited-10 D Doctor, my question is; Didn't you use it 11 yourself? 12 A No, ws didn't; we simply recorded it, sir. 13 Q You recorded it in the reports that you made to 14 the Sauget people; didn't you, sir? 15 A Right. 16 Q And used it in your report; didn't you, sir? 17 A We simply reported it. IB D Doctor, did you use it or not? Is it not there or 13 not? 20 A In what? 21 Q In your report, Doctor. 22 A What's in my report? The fact that-- 23 Q The use of the Framingham study? Do you want to 24 look at it? 64 1 ft Sura. Ws have already gone through that, Nr. e Carr. 3 Q . Yes. 4 A Ule have. It isn't a matter of use; it's a matter 5 of comment, And that's different, sir. In order to be e completely accurate and scientific, we felt it was neces 7 sary to say this, But, to apply it to this group one needs a a control,, one has to have the other people in Sauget, 3 Illinois who do not work at the plant, And it's very 10 likely, sir, that SO percent of those might have levels 11 below 45. IS Q Well, Doctor, it may be very likely that they all 13 have it below, or they all have it above, or they all have 14 it in between. And that's not what I am asking you, 15 Doctor. You did say in your report, did you not, sir, 16 ''Levels of 45 or greater era known to be indicative of 17 average to low risk for coronary heart disease." Didn't IS you say that, sir? 13 ft Ule did say that, sir. 20 Q You said that as a known fact; didn't you, sir? 21 A U)a said that because of the study. 22 D Excuse me, I didn't ask you because, I asked you: 23 You said that as a known fact; didn't you, sir? 24 A The Fact that there was a study 65 1 Q Doctor, no, you said levels of 15 or greater are 2 known to be indicative; did you not, sir? ,3 A All right, by a single study. 1 Q Didn't you say .that, sir? 5 A We did; sure we did. 6 Q Ail right. Now, Doctor, using that level which 7 you used, assuming now that.that applies, sir-- will you do 8 that, sir? 3 A I will not, sir, because it does not apply, sir, 10 MR. CARR: Your Honor, would you direct the 11 witness to assume that it applies. 12 THE COURT: Doctor, you are ordered to assume 13 that For purposes of these questions/ 11 H R . HEINEMAN: May we have a continuing IS "objection-- . 16 THE COURT: Yes, you may. 17 MR. HE INEMAN: -- to that? 18 THE COURT: You may. Proceed Mr. Carr. 19 Q Now, Doctor, are you going to follow the Court's 0 order?. ,2 1 - A I have to sir- yes, sir. 22 Q Assuming that that applies, Doctor, 50 percent of 23 the population at tbs Sauget, Illinois plant may have 2 1 greater risk of coronary heart disease; might they not, 85 1 sir? 2 A No, sir. 3 Q Are you assuming It applies? 4 A Yes, I am assuming, sir. 5 Q Are you assuming that 50 percent have levels-- 6 A I am indeed, sir. 7 Q -- have levels below that, sir? 8 A I am. ' 3 Q And it does apply, Doctor. Now, and 50 percent 10 have lower than that level; do they not, sir? 11 A I don't know what that question means, sir. 12 Q Are you assuming that lower than 45 may indicate 13 risk of heart disease greater than average? Are you assum 14 ing that? IS A I have bean asked to assume that, sir. IB Q And every parson that has below that may be at 17 greater risk; may he not, sir? 18 A No, sir, 19 G Now, Doctor, you are not assuming it; are you? 0 A I am. 51 0 Are you assuming that every person that has lower 52 than 45 HDL. lave! may be at greater risk of heart disease? S3 Are you assuming that? 54 A That's what you are asking me to assume, yes. 67 1 Q Yes. So, every person below that may be at s greater risk; correct, air? 3 A Mo, sir. 4 Q Now, Doctor, you are not assuming-- 5 MR. CARR; Your Honor, would you instruct the 6 witness to assume it. 7 THE COURT: Doctor-- 0 THE WITNESS: I m, sir. 3 THE COURT: Mo; no. If you can come up with that 10 other answer, you are not. I am ordering you to assume 11 that which has bean stated to you by Counsel to assume. 12 MR. HEINEMAN: Objection, your Honor. May 13 Counsel approach the bench? 14 THE COURT: Yes, you may, IB CThe Following proceedings were had out of the 16 hearing and in the presence of the jury.? 17 MR. HEINEMAN: Your Honor, I object to that 18 statement you just made. IF you don't mind, I*m thinking IS the Court is entering bis appearance on behalf of the 20 plaintiff here. Whan you make a statement like, "If you 21 can come up with an answer like that, you are not assuming 22 that" you can't comment like that in front of this jury, 23' and 1 object to it. I object to it. I think it is abso 24 lutely outrageous for you to make e statement like that to 60 1 this witness and in front of that jury. And I object to 2 it and I think a mistrial ought to be declared right now 3 for you to make that kind of a comment with respect to this 4 witness and in front of this Jury., 5 MR. CARR: Your Honor, I think it's completely 6 appropriate for the Court to make that comment plus more, 7 because it's perfectly obvious this man is flaunting your 8 orders. He is not assuming-- 9 THE COURT; In order For him to make those two 10 statements which are logical impossibilities, he has to be 11 either deaf, dumb, or blind. They are not possible. If he 12 can make that, he is not assuming that to which he was 13 asked to assume and which he said he would assume. I 14 ordered him to assume it. My Comment was proper; it was 15 within the scop of what I am allowed to do; and I am 16 denying your Motion for a mistrial. r would suggest that 17 in the noon break that you talk to him again about the 18 rules of Court, this time with emphasis about actually 19 accepting the assumptions that are given to him and 20 operating on them rather than saying that he accepts them 21 and then not accepting them and using them for the purpose 22 of the question with which they are asked. Your objection 23 is overruled; your Motion For s mistrial is overruled. It 24 appears to be groundless. 69 i MR. HEINEMAN: Your Honor, nobody asked this wit 2 ness why. All you got wars argumentative questions by Mr. 3 Carr and than this ruling by tha Court. You are saying-- 4 you are interposing your expertise aver that of this 5 witness. You are saying he cannot make an answer like 6 that, when nobody has asked him why. This man is an 7 expert. He is a physician. Ha has an opinion. And nobody 0 has asked him why. And yet, you make s conclusion, you say 9 as a Judge, "1 know that he can't be answering that accur 10 ately ." Well, you don't know that, Judge. You don't know 11 that. 12 THE COURT; 1 most certainly do. And it's my 13 obligation to see that rules of this Court are not 14 flaunted, evaded, as this witness is trying to do. And I 15 will continue to do that. If you want to object to it, you 16 may go ahead and object. I am going to discharge my 17 responsibilities in this trial. Again, I want you to talk, 10 to this man as part of his accepting assumptions. He is 19 obviously not doing what he said, he would do accepting 20 assumptions, and it's something that should be reviewed. 21 Your objection is overruled and your Motion is denied. 22 Let's proceed. 23 CTha fallowing proceedings were had in tha 24 hearing and presence of the jury.) 70 1 Q Now, Doctor, once again, are you assuming that 2 according to the Framingham study, sir, that everyone that 3 has an HDL level of lower than 45 may be at a risk, a 4 greeter risk than average of having coronary heart disease? 5 Are you assuming that, sir? 6 A IF you ask me to, I am assuming it, sir. ; 7 Q So, if one has a level-- -if everyone that has. a 0 level of low HDL may be at greater risk, then if ana has a 9 level lower than 45 HDL, he is according to Framingham at 10 greater than average risk? 2.1 A That's a complicated question. 12 THE WITNESS: Would you repeat it, and slowly, 13 please, because I don't understand it. 14 Q Let me explain it to you, Doctor. 15 A Wall, let me hear the question. IS Q Doctor, let me explain it to you. Ydu said you 17 are assuming that everyone, according to Framingham, that 10 everyone according to Framingham who has HDL levels of 13 below 45 may be at greater than average,risk of having 20 heart disease. You agreed to do that; didn't you? ei A Is that a new assumption or an old assumption? 22 Q No, Doctor, that's the old one. You agreed to do 23 that; didn't you? 24 A The old one said that persons, not everybody. 71 1 Q No, it said sveryon. 2 A Well, I didn't understand it that way, sir. 3 Q Well, that's what it said. Now, are you assuming 4 that everyone-- S A If you are changing your statement and I assume s it, I will have to assume it. 7 Q Doctor, I'm not changing my statement. 0 THE COURT; Doctor, please d o n 't interrupt 3 Counsel when they are asking the question. Listen to the 10 question, please. 11 MR. CARR; Okay. Read the question back to him 12 that 1 posed so that he will ba sure that I said everyone. 13 CAt this time the previous question was read back 14 by the court reporter, as requested.) 15 A That's what you are asking me now to assume? IB 0 No, that's what 1 asked you to assume before. The 17 word ''everyone" was in there, Doctor. IS . A T didn't recall it, sir. 13 Q Sir? . . . eo A I said I didn't recall that everyone was in there. 21 Q Now, are you assuming, Doctor, that everyone-- 22 A In this new assumption, I will, sir, yes. 23 0 Doctor, it's not a new assumption; you heard it in 24 there, did you not, sir? 72 1 A I heard it this time, sir. 2 Q Nouj, Doctor, are you assuming that everyone that 3. has levels of 45 HDL and below according to Framingham may 4 be at a greater risk of having coronary heart,disease? Are 5 you assuming that, sir? 8 A Yes. 7 Q And that means everyone; doa3 n `t':itr sir? Are you 8 assuming that everyone? If there is-- -are you assuming S. that, Doctor? 10 A X 'v already answered that question, sir. 11 Q All right, Doctor, If one person has HDL level of 12 lower than 45-- one person is included in the phrase every-, 13 one? 14 A According to your assumption, sir, yes, 15 Q According-- IB A According to your assumption, 17 Doctor, according to the assumption that the Court 18 has ordered you to take. 19 A According to that assumption. 20 0 Are we still going to quarrel about that, sir? 21 A- Well, no, but I think it has to be put in per 22 spective , 23 0 Doctor, it's been put in perspective. The Court 24 has done it, you know it's in perspective. Now, are you  ; 73 1 assuming, sir-- 's' A I am indeed. 3 Q -- that everyone below that ia at greater risk, 4 according to Framingham? 5 A We have already established that, yes, sir. 6 So, if there's one parson, he is at greater risk? 7 A He might be. B Q According to Framingham? 9 A According to the assumption, sir. 10 0 According to the assumption, correct. 11 A Mot according to Framingham; according to the IS assumption. 13 G Isn't that what Framingham said, Doctor? 14 A You are assuming-- 15 G Doctor, isn't that what Framingham said? IB A No. 17 Q What did Framingham say? IB A Framingham didn't say that everyone was., 19 Q What did Framingham say, sir? 20 A The Framingham study said that parsons"-- 1 G Yes. . 2 A Persons who have levels of HBL beiow 45 may be at S3 greater risk. 24 Q Yes. . . 74 i A And it didn't say that everyone was. It said that 2 persons may be at greater risk. So that tha assumption is 3 not the same as Framingham's. 4 G Is persons all-inclusive, Doctor? Is one included 5 in the phrase--is one person included in the phrase 6 persons? 7 A It might be and it might not, air. 3 Q All right. Now, Doctor, persons is greater than 9 one; is it t^ot, sir? 10 A Persons-- it might be two; it might b three; it 11 might be one hundred. 12 G Doctor, parsons is greater than one; is it not? 13 A Yes, but it doesn't mean everybody. 14 G Assume, Doctor, that persons who have HDL levels IB of lower than 45 may be at greater risk of having hsart 16 disease. Will you assume that, Doctor? 17 A If you era asking me to, I 'll assume that. IB 0 Yes, I 'm asking you to assume that. Will you 19 assume that, sir? 20 A . Yes. 21 Q These people that work at Krummrich are persons; 22 aren't they, sir? 23 A They are. 24 Q So, persons that work at Krummrich who have levels 75 1 of greater than-- less than 45 HDL according to Framingham 2 may be at greater risk; isn't that correct, air? 3 A Not necessarily. 4 G Doctor, are they persons? 5 A Yes, but-- yes, they are. 6 Q Sir? / . V' Yes. 8 0 Are you assuming that they are persons? 9 A Right. 10 G And according to Framingham, they are parsons; 11 aren't they, sir? 12 A Yes 13 G And if they have levels of 45 HDL or lower, they 14 have a greater risk of heart disease, according to Framing IS ham; don't they, sir? IS A No, not necessarily. 17 0 Doctor, isn't that what you just said? 18 A N o . IS Q Are you assuming that, sir? Are you assuming that eo persons that have lower than that may be at greater risk, 21 sir? 22 A I am. 23 Q Then, these people at Krummrich are persons; 24 aren't they, sir? 70 1 A They ars. 2 Q And if they have those levels, according to 3 Framingham they are at greater risk; aren't they, sir? H A No, sir. .S Q Are they persons? 6 A Yes, but not everybody-- 7 Q Excuse me. Are they parsons, sir? 8 A They are indeed. 3 G Do they have levels of lower than 45? 10 A Yes, they are. ^ 11 G And being persons then that have levels lower than ie 45, they come within the Framingham definition? 13 A No, they do not. 14 Q How do they not? 15 A Because persons are not specific, sir; persons 15 are-- -persons will include many kinds of people. 17 Q Yes, it includes workers-- 18 A So that they may be included or they might not be. 19 Q Doctor, the word persons includes the world; 20 doesn't it, sir; any persons in the world, sir, that have 21 levels of lower than 45 HDL are at greater risk? 22 A It doesn't say that. It said-- you said parsons. 23 That doesn't mean everybody. 24 G No, Doctor, you said persons. 77 1 A I said and you changed it from everybody; did you 2 not, sir? Vsa, you did. 3 Q Doctor, are these-- 4. A UJe are now talking about persons. 5 Q Are these people persons or not? 6 A Yes, they are. 7 Q And do they have levels, sir? 8 A They have different levels, yes. 9 Q Lower than 45 HDL; 50 percent of them? 10 A Yes. L 11 Q Do these people Fall within the Framingham 12 dsf inltion? 13 A They may. 14 Q Do they fall within the Framingham definition? 15 A They may. 16 Q Mo, Doctor, I 'm asking you do they? 17 A Yas. 18 Q They do; don't thay, Doctor? 19 A They Fall within the 45, but they don't fall HO within the risk definition, sir. 21 Q Doctor, the risk darinition is those persons that 22 have lower than 45 may be at greater risk; isn't that the 23 definition, sir? 24 A Yas, I believe it is.  " 78 1 Q Pill right, Doctor. They fall within that defini e tion; don't they, sir? They may be at greater risk, may 3 they not, sir, these people at Krummrich that have these 4 levels lower than 45? 5 A W e 've already said that in our paper. 6 Q You've said it already? Than, Doctor, why are 7 you disputing it today? 8 THE COURT: At this point in time I'd like to 3 break for lunch. Okay. W e 'll break For lunch at this 10 time. W e 'll resume at 1:15. The admonishments that I gave 11 you earlier will apply during this lunch break also. The 12 Court is in ^'recess. 13 CAt this time a lunch recess was taken.) 14 CThs following proceedings were had in chambers IS out of the hearing and presence of the Jury Following the IB lunch recess.) 17 MR. CRAUEN: Judge, we talked with fir. Carr Just 18 a minute ago, what we want to talk about now is Dr. Sus19 kind's continued appearance on the stand and the fact that 20 h e 's been on the stand for two months really, two calendar 21 months-- 22 THE COURT: Just about. 23 HR. CRAUEN: -- -IS or 20 trial days. This man is 24 73 years old. He is exhausted. He has bean living away 79 1 From home going back getting back late on Friday nighta, 2 coming hers in time for court the next day. H e 's-- several 3 times his testimony has been interrupted by reason of days H off or something, coming here on Monday and no court on 5 Tuesday. I 'm not faulting anyone for that5 I 'm just saying 6 that is a fact. 7 THE COURT: Right. 8 ' MR. CRAUEN: And we are to a situation where a S combination of two things, his health and the Fact that 10 h e 's exhausted and his own schedule. And we need to do 11 something about the rights of this witness. M r . Carr is e indicating-- he didn't give us any kind of an indication of 13 how long this is going to continue. And-- 1H MR. CARR: You didn't ask res for an indication. 15 MR. NASSIF: Ha asked you If you were close to 16 finishing. 17 ia .not'. MR. CARR; That's correct. And I told you I was 19 MR. CRAUEN: And there's no way we know this. so And in any event, we are now asking that this witness bs 21 permitted to interrupt his testimony at this stage and come ee back after some period of time when he can recover. It's 23 very obvious to anyone, I think, watching this trial that 2H this thing is-- the tension is just getting too great. Dr. 80 1 Suskind is under constant pressure dau and night. And I 2 can see Rax being quite different and he's showing the 3 tension. And frankly, your Honor, I see the Court reflect- 4 ing tension that goes on in this courtroom. And it's time 5 to take a break in that; not take a break from the trial, 6 but take a break from this witness and come back to him at 7 a later time when these tensions have abated and when h s 'a B recovered. And to continue with this witness under these 9 circumstances .just simply-- Just simply can't be endured. 10 And-- 11 THE COURT: Ulhat's your thoughts on the matter, 12 Mr. Carr? 13 M R . CARR: Your Honor, what the Counsel requests 14 is first of all in my judgment way out of line, because IS anything that is occurring relating to the length of the IB examination of this witness is the making of the witness 17 and it's not my making nor the Court's making. The witness IB is doing it; h e 's doing it deliberately; ha shows absolute IS ly no sign of tension. H e 's smiling and laughing and from 20 all appearances is,having a great time. And I certainly 21 suggest to Counsel that he's way in error if he thinks I'm 22 under any mors tension than I have been from the beginning 23 of this case. They ar certainly not affecting me nor my 24 ability to function, and he hasn't been hare very long that 81 1 ha wouldn't say that I show signs of tension. To put the e witness in context, your Honor, he started on the 10th of 3 February, and we had the 11th--- that was Monday-- -the 11th *i was off and the 12th was off because it was Lincoln's 5 birthday. So, hs worked three days that week. The follow 8 ing week we had no trial on the 17th, that was Washington's 7 birthday, and no trial on the 20th and 21st-, He worked two 8 days that week. He couldn't be hers on the 20th and 2'lst. 9 The following week we had no trial on the Monday because I 10 had to be in the Fourth District Appellate Court in.Spring-' 11 field, and we had four days of trial. 12 MR. SESBFREID: "Notrial; Judge was ill." 13 MR..CARRs That's correct. The Judge was sick 14 for-- IS THE COURT: For abGut four days, IS MR. CARR: Thrae days that week plus the Fourth 17 day we had Motions. A juror was not in the courtroom; a IB juror had problems getting there, and so we didn't have it. 19 So, actually that weak no problems at all with him being 20 here; he had a long time off. The weak of March 3rd, at 21 the request of Dr. Suskind we shut down on Wednesday. We 22 had two days at the beginning of the week and two days at 22 the end of the weak. 24 THE COURT: Right. 82 X MR. CARR: The week after that we had court on a Monday, no court on Tuesday, no court-- and court on Wednes 3 day, no court Thursday or Friday. 4 THE COURT: Right. That was when I was on the .S' faculty of the judicial conference. 6 MR. CARR: We had two days of court that week.; The following week, the week Of March 17th, we had no court 8 on the 18th and we ended court at 3 p,m. on Friday the 9 2 1 st. 3o, we had three and three quarter days of trial 10 that week. The following week, the week of March 24th, we 11 had no court on Thursday and Friday. We had three days of 12 court that week. The following weak us had no court on. 13 Tuesdayi We had four days of trial that weak. And that's 14 th week w e 're in right now. This is the longest. W e 've 15 had four days, of trial this week, your Honor. Thar has IB been nc burden. We have not had sines this witness has 17 been here a week of solid trial. Wa have had many breaks, 18 many.recesses, to accommodate this witness and because the IB- Court was sick and because of the.conferences and because 20 of holidays. This witness-- I could have 'finished with this 21 witness inside of a week if the witness had responded as a sa witness is expected to respond and as this Court directed 23 him to respond. Ha has simply refused to do so. Now, 24 Counsel apparently now is saying that they can't control 83 . i him; that he's out of control, Wall, it appears to me that 2 if ha's out of control, that certainly is his problem. And 3. he's a very experienced-- ha doesn't show the least sign of 4 fatigue nor the least sign of being concerned or upset 5 about his deliberate flaunting of the Court. I could 6 finish this cross examination of him next weak without any .7 problems whatsoever-- without a question I could finish this 8 cross examination next week if the witness were to respond. 9 We have had to go back again and again and again to re10 establish paints already established. There isn't a day 1 1 goes by that I don't have to re-sstablish points already 12 made. The bast example of what's occurred is just hers 13 right before noon. I started out trying to establish the 14 problems with the HDLs. We finally end up right before 15 noon, ''Well, I said that all the time in my report." as if IS whet do we have this dispute about. He denied it to start 17 with, and then he ends up saying, ''Well, 1 said that all the 18 time; there's no problem with that." 19 THE COURT: Let me interrupt you. All the jurors 20 are here. I want to-- w e 'll Finish this after court. I.'ll 21 announce, so this juror can make her plans, that w e 'll be 22 off Tuesday April 8 ; and at the end of court this afternoon 23 w e 'll resume this discussion so that both of you can say 24 whatever in full you wish to say. 84 1 CThe following proceedings wre had in the 2 hearing and presence of the Jury after the in-chambers 3 conference.) *i. THE BAILIFF: Everyone please rise. You may be 5 seated. 6 Q CBy Hr. Carr) Dr. Suskind, these lipid findings 7 that w e 've discussed have occurred both in the group that 8 had chloracne at Krummrich and in the group that did not 9 have chloracne at Krummrich; isn't that correct, sir? 10 A I really can't answer that, because I don't know 11 what lipids you are talking about, sir. 12 Q Doctor, you don't know the lipids that w e 've been 13 talking about? 14 A W e 've been talking about HQLs, yes. 15 Q The HDLs-- . 16 A-; Yes. 17 Q The DLDL, and LBL. All those lipids, sir. Those 18 are all lipids; aren't they, sir? 18 A Yes,: they are. 20 Q And, Doctor, 'the lipids have bean effected in both 21 the chloracne and the namchloracne group; have they not, 22 sir? 23 A In some instances, yes, sir. 24 Q Well, Doctor, for instance, in the HDL instance, - 85 1. 2 3 4 5 8 *7 8 3 10 11 12 13 14 13 16 11 16 13 20 21 22 23 24 1 ? out of 40 had lipid HDL levels of lass than 45; did they hot, sir, where they did not have a history of chloracne? Table 23, Or. Suskind. Do you have your exhibit there? Your report of 1360? A I have 23, sir, yes. Q And doesn't it reflect that of those that had no history of chloracne that 1? out of 40 had levels of less than 43 of HDL levels? A That is correct, sir. And in those that have a history of chloracne, it's 36 out of 65-- or 57 if that plus one is significant-- had levels lower than 4S of HDL; isn't that correct, sir? A That's correct, sir. 0 And, Doctor, with regard to the residuals, those that have residuals and no residuals, there's 27 out of 42 that have residual chloracne and that have levels of HDL less than 45; isn't that correct? A That's correct, sir. G But, in those with no residuals, there's 25 out of S3 that have less than 45; isn't that correct, sir? A With no residuals, sir? G Yes. A What's the number? Q Your last column an that page. 86 1 ft Yas. 2 Q Isn't that correct, sir? 3 ft Yes, what is th figure you gave, sir; I'm sorry. 4 Q Twenty-six out of sixty-three? 5 A Yes, sir. E Q Yes. And, Doctor, now, there's no question but 7 what these lipids, these Findings are laboratory effects; 8 isn't that correct, sir? Or to put it differently, the 3 lipid findings can be a laboratory affect of exposure to 10 toxic substances? 11 ft Lipid-- abnormal lipid findings, if they are 12 abnormal,- if they are abnormal, may be in some instances 13 the result of an exposure to a toxic chemical. 14 Q And it certainly can b the result of exposure to IS TCDD; can it not, sir? IS A No, sir. 17 Q Doctor, isn't that what you have stated in your IB Table 1692B as either a subacute or subchronic finding from 13 exposure to TCDD? 20 A Yes, but HDL is not listed there, sir. 21 Q Doctor, isn't it a lipid? ' 22 A Yes, i t 's a lipid, but all lipids are not the 23 same, sir. 24 Q All right, Doctor. The elevated triglycerides and- 87 1 the elevated total lipids according to your document can be 2 a result of exposure to TCDD; is it not, sir? 3 A In the subacute exposure, yas, sir. 4 Q And, Doctor, m&--- or subchronic? 5 A Or subchronic, right. 6 0 And, Doctor, wa also know that both Moses and 7 Zack-Gaffey remarked upon the correlation of mortality from 8 heart disease with working at the Mitro plant or being in 9 that particular valley; isn't that correct, sir? W e 've 10 established that this morning. 11 A No, sir, uis did not. 12 Q Ws didn't establish, sir-- would you look at the 13 Zack-Gaffey report? 14 A Zack-Gaffey, yes, but not. flosss-Selikoff. They 15 were simply quoting Zack-Gaffey. 16 Q That's what I said. Nosas-Sslikoff commented on 1 ? that; did they not? 18 A No, you said Mosas-Ssiikaff and Zack-Gaffey, and IS that's not so. It's.just Zack-Gaffey. 20 Q All right, Doctor, I'll certainly accept that. 21 Moses-5slikoff commented on what Zack-Gaffey reported; 22 isn't that correct, sir? 23 A That's correct, sir, yes. 24 Q And what they reported is that there was an S8 1 increased mortality rat from heart disease in the Nit.ro 2 workers, did they not, sir, than the general population? 3 8 I believe that's what the 2 ack-Baffey report 4 alleged. 5 G And, Doctor, there is no question but what the 6 lipid levels, not just low levels of HDL but elevated 7 levels of triglycerides or the other lipids is associated 8 with and can be a factor in causing heart disease? There's S no question about that medicallyj is there, sir? 10 A Well, there is some question about types of lipids 11 that may be related to heart disease. Not all lipids are 12 related to heart disease, sir, 13 D Doctor, is chlostarol related to heart disease? 14 A It can be. 15 G Triglycerides related to heart disease? IS A It might be in some instances. 17. G Total lipids related to heart disease? 18 A. Not necessarily, no, sir. 12 G Nay it be, Doctor? 20 A No, sir. 21 G It may not be? 22 A N o . 23 Q Are you saying that there is no association found 24 by anybody with total lipids, sir, and heart disease? ' 83 1 A Alone, no, sir. Alone, no, sir. 2 C I didn't sag alone; did I? 3 A No, but you said, "Is it?" 4 Q Doctor, there's nothing happens in the body alone. S There's life style-- 6 A It can. 7 Q -- that's involved; there's exercise that's B involved; there's whether or not you're genetically mors 9 susceptible to this kind of problem; whether or not you've 10 suffered trauma; you can get a heart attack from trauma and 11 not have a-- Doctor, there's all kinds of things to inter 12 act, and you surely didn't take me to mean that total 13 lipids alone can cause a death from a heart attack? 14 A It wouldn't cause it-- 15 Q Did you sir? You didn't understand ms to say IS that; did you? 17 A I certainly did. 19 Q All right, Doctor. 13 A Because you said total lipids, and that's what I 20 thought you said, sir. Total lipids. 21 Q Doctor, lat me preface-- Doctor, may be associated 22 with heart disease is what I said. 3 A Not alone, sir. 24 B And, Doctor, I agree; it's not alone. There are 90 1 other factors involved; aren't there, sir? 2 A But if it's just total lipids, i t 's not so. 3 Q Doctor, thare are other factors involved; aren't 4 there, sir? 5 A Thera may be, 6 Q Thank you. Now, Doctor, in addition to the lipid 7 findings that w e 've discussed this morning and the signifi a cance of the lipid findings, there were a number of 9 laboratory reports on these workers at Krummrich where they 10 had levels outside the reference range used by flETPATH; 11 isn't that correct, sir? 12 A I'm not sure I understand the question, sir. 13 Doctor, in the study you did of the Krummrich 14 people, you had more things analyzed by the laboratory than 15 just the lipids; did you not, sir? 16 A Oh, yes, sura, 17 G And there were a number of reports made by flETPATH 18 on these workers; weren't there, sir? Doctor, they have 19 bean introduced into evidence. eo A A number of reports with respect to what, sir? 21 G These workers, Doctor. Laboratory-- 22 A Different laboratory parameters? 23 G Different laboratory tests, Doctor, by FlETPATH; 24 blood-- 91 1 A Well, sure, yes, absolutely} no question. Q Doctor, you are also aware of the fact that there 3 were a large number of Krummrich plant workers that 4 according to METPATH's report had results from those 5 various laboratory tests outside the established reference 6 range? You are aware of that fact; aren't you? 7 A No, sir, not large numbers, sir. e Q Now, Doctor, I would like for you to assume, sir, 9 that it has been testified to in this Court in the column 10 ''Other" that those are-- sach cback mark represents a 11 METPATH report on a Krummrich plant worker, sir, where the 12 result was outside the reference range established by 13 METPATH. Will you assume that, please, sir? 14 A Are you referring to this, sir? IS Q Yes. IS A Ars you referring to this? 17 Q I am, Doctor. 18 A Wall, because of it's inaccuracy IS assume that. 20 MR. CARR; Judge, the witness again is doing the 21 same thing he was doing this morning. May ha bs directed-- 22 THE COURT: Doctor, your answer was not respon-' 23 save to the question that was asked of you; so, I am 24 admonishing you to stay within the question that is asked ' 92 i; of you, .sir.' S' THE WITNESS: Yes, sir. 3 THE COURT: I'm ordering the Jury to disregard 4 the remark that the witness just madsj it is improper. You S may proceed. 6 A As a physician, sir-- n/ MR. CARR: Your Honor, the witness is-- 8 THE COURT: Doctor, I don't think that-- let's try 9 the question over again. And listen to the parameters of 10 the question that's asked of you. Mr. Carr. 11 Q Doctor, I want you to assume, Doctor, that the 12 METFATH laboratory reports on these Krummrich workers who 13 are identified in 1507A have been introduced into evidence, 14 that those laboratory reports show, sir, that for each of 15 these workers they have an abnormal-- or that is. I won't IS use the word abnormal-- 17 A Better not. 18 Q -- for your benefit, sir, but they have a report of 13 the' test that is outside the established reference range of 20 that laboratory. 1 A Thank you. 22 G That each of these check marks represent such a 23 report by METPATH. Will you do that, sir? 24 A I will assume that this is accurate, air. 93 1 Q Yes. Will you please do that? 2 A That the check marks are accurate. ; 3 Q Yes. Will you do that, sir? 4 A I will assume that, sir. 5 Q All right. And, Doctor, if that is true, there 6 are a number of laboratory effects shewn for this popu *7 lation; is there not, sir? 8 A No, sir. 9 Q Now, Doctor, are you assuming that these are the 10 laboratory results that are outside the reference range? 11 A I am, sir. IS Q And are you assuming, sir, that a laboratory 13 affect is something that you've established that can be a 14 marker of an absorption of toxic substances? 15 A I a m . 16 Q Are you assuming that, sir? x*-/r A I am if you ask me to. 18 Q Well, Doctor, I am asking-- 13 A Yes, yes. SO Q -- you to do as you have so testified. SI A Yes. 22 Q Will you do that, sir? S3 A Yes. 24 Q And, Doctor, these results are outside the normal ' 91 1 reference range;, aren't they sir? A If this is accurate, they are, sir. 3 0 And that is a laboratory effect; is it not, sir? 1 A No, sir. 5 Q Doctor, are you assuming that these are test 6 results? 7 A Yes, I am. 0 Q In the laboratory? 9 ' -A Yss. 10 Q And will you assume-- ara you assuming they are 11 outside the normal range? 12 A Well, I assume they are, yes., 13 Q All right. Doctor, are you assuming that these 11 are then laboratory effects? 15 A That's a different assumption, sir. 16 Q Doctor , can toxic-- 17 A These are laboratory-- these are laboratory 18 findings. 19 G Yes, Doctor, w e 've gone through that. 20 A And it really depends upon whether they are law or 21 high or haw far outside the range, sir. 22 Doctor-- 3 A So, they ara not abnormal, sir. 2 1 Doctor, when you referred to on your chart of an - 95 1 elevated SS307, you are referring, are you not, to the s laboratory test for the SSOT? 3 A Abnormal range, sir, not just outside of-- outaide 4 of the refarer.ee range. On has to distinguish between 5 what the significance of outside-- 6 0 Doctor, would you please believe me, we have had a 7 number.of people in this case testify-- 8 A I don't care if you have, sir. It doesn't matter 3 to m e . 10 THE COURT: DoctorTM 11 A I am a physician and I can interpret. 12 THE COURT: Doctor. Doctor. 13 THE WITNESS: Yes, sir. Is! THE COURT: Now, I wanted to try to get your 15 attention. When I'm interrupting you, I'm doing it for a 16 particular reason. 17 THE WITNESS: I'm sorry, sir. 18 THE COURT: That comment was improper. You 19 answer the questions that are asked of you. I determine by 20 listening to the questions, by objections, and my awn 21 Notion whether a question is proper or not. And if I deem 22 it's proper, you have to answer it. 23 THE WITNESS: Sure. 24 THE COURT: Even if you are not personally 96 1 concerned with the subject of the question. Do you under- e stand that? 3 THE WITNESS: I do, sir. 4 THE COURT: Okay. So, that's my decision'. 5 Please follow my rulings on that. s THE WITNESS: Yes, sir. 7 Q Doctor, can a.toxic substance cause laboratory 8 results that are outside the established reference range of 8 the laboratory? 10 (V It might, 11 Q Yes. And, Doctor, that would be a laboratory ie effect of a toxic substance; would it not, sir? It would 13 be an effect that can be seen by the fact that it is out 14 side the laboratory reference range? 15 A It might, sir. IB Q Yes, Doctor, Now, if these findings here, sir, 17 represent results outside the laboratory reference range, 18 they too, may they not, be a laboratory effect From a toxic 19 substance; may they not, sir? eo A No, sir. ai G Doctor, are you assuming^-- as A I am, sir. S3 Q You haven't allowed me to tell you what I'm asking 24 yet, Doctor.  97 1 A I !m sorry. 2 Q What do you think I 'm asking you? What do you 3 believe I'm asking? 4 A Well, I believe you will be repeating your 5 previous assumptions, 6 G And what is that, Doctor? 7 A That laboratory Findings outside the reference 8 range can be due to a toxic substance, 9 Q Are you assuming that? 10 A And I said yes I assume that that can happen. 11 Q All right. Now, Doctor, if that can hsppsn-- and 12 are you assuming now that these check marks represents such 13 laboratory results? That is, that are outside the normal 14 range? 15 A Yes'. 18 G Are you assuming that? 17 A . I am, sir. 18 Q If that is true, then, Doctor, isn't it true that .19 these laboratory findings may be the result of exposure to 20 toxic substance? 21 A No, sir. 22 G Doctor, are you assuming that-:-- 23 A I am, sir. 24 D -- toxic substance can cause something outside the v \ :. 38 X normal reference range? 2 A I am, sir. 3 Q So, any given laboratory finding outside a normal 4 reference range can be the result of toxic substance; can S it not? 6 A No, sir, not any. G Now, Doctor-- @ A Not any. 3 Doctor, ere you assuming, as you have said you 10 will assume, that laboratory results outside the normal 11 reference range can ba caused by toxic substances? 12 A I am, sir. 13 And, Doctor, is there any holdback in your assump 14 tion on that? In you assuming that-- 15 A Mo, no holdback. IB D -- that any laboratory result can be caused to be 17 outside the normal reference range by exposure to toxic 10 substances? 13 A If you are referring to any or all-- is any 20 equivalent to.all-- 21 G Of course not. 22 A -- in this instance? 23 G Of course not, Doctor. 24 A No, sir. S3 1 5 3 H. 5 6 7 B 3 10 11 12 13 15 16 17 10 13 SO SI 22 S3' E'i Q Doctor, what laboratory result outside the reference range will not--- cannot possibly he the result of toxic exposure? A Do you want some examples? Q Yes, 1 want you to name some laboratory results, sir-- .. A All right. Q --that cannot be the result of toxic exposure. A If, let us say one looks? at the blood uraa nitrogen, the BUN. And the autside-- if you are looking at the range given by METPATH, it's from 6 to 25. And if 1 have a BUN of 5 or 2S, I wouldn't consider that at all as being possibly related to a toxic substance. And that's outside the reference range, sir. Q Well, Doctor, I didn't ask you that. A Wall, you-- - My question is: May it be causad by, Doctor, a toxic substance exposure? Is it passible that exposure to a toxic substance can cause such a result? ' A You said any, sir, and that's why I answered the way I did, sir. G Doctor, would you answer my question, please? A My answer is no. Q In SUM? 100 1 A Not in this instance. 2 G Doctor, I'm not talking about that instance; am I, 3 sir? 4 A I thought you wars, sir. 5 Q I'm asking you a general question, Doctor, as you 6 know I 'm asking you. Cannot the SUN example that you gave 7 us be the result of a toxic exposure? 8 A No, sir. 9 It cannot bs a toxic-- 10 A No. 11 Q A toxic substance cannot affect-" 12 A NO. 13 i; G Does toxic substances affect BUN? 14 A Oh, if it's high, yes, like 100 or 200-, then one ! 15 would consider toxic substance. IS Hold it, Doctor, I'm not asking whether or not one 17 | would consider it; I'm asking you, Doctor, if a normal BUN 18 ! can be caused to go to IOC by a toxic substance. And it 19 can; can it not?. 20 ! 21 A Yes, it can. G Then, a toxic substance of lesser potency or 22 lesser amount can cause it to go to 3S; can it not, sir? 23 A No, sir. . 24 G Can't make it go to 39? . 101 Xa A It could go to 33 even with the same level of 2 toxic substance. 3 Q find could it cause it to go to 38 with the same 4 level or lass? 5 A Yes, it could. 6 Q Could it cause it to go to 90 with the same level 7 or less? 8 A It might. 3 Q Could it cause it to go to 75 with the same level 10 or lesser? - 11 A I don't know. IB 0 Could it, Doctor? 13 A It might. 14 Q Could it cause it to go to 60 with the same-- with 15 lesser, sir? 16 A I really don't know. 17 Q Well, might it, Doctor? Could it be? If you 18 don't know, I suppose it could? 19 A I don't think so. It's my professional opinion 20 that it is not so, 21 Q Now, Doctor, what you are saying then is a toxic 22 substance can cause the BUN-- the potency of a toxic 23 substance can cause the SUN to go above SO but a less 24 potent toxic substance cannot cause it to go below 60. Is ' 102 that what you are saying? ft No, I am not. Q Doctor, that's what I 'm asking you, sir. Can a lass pctsnt toxic substanc, instead of causing it to go to 60, a lass amount of it causa it to go to S3, sir? Can it do that, sir? ft I don't know. Q Doctor, if you don't know-- ft It's impassible to-~ Q Doctor, if you don't know-- * ft It's not possible to answer your question, sir. Q Excuse me, sir. Could you please answer the question? If you don't know, sir, then it is possible that a lesser amount of a toxic substance or a less potent toxic substance can cause the BUN to go to 53? ft In my professional opinion, no, sir. Q You don't think, that's possible? ft No, in my professional opinion. 2 If i t 's passible that it would do it at SO, why isn't it possible that it would do it at S3? ft Well, you know, you can go all the way down the scale and-- C Doctor, my question is.- If it's possible that a toxic substance can cause the BUN to be at 60, why isn't it 103 1 also possible that a little bit less of that toxic 2 substance can cause it to be at 59? 3 A Because one can have a cutoff. One can have a 4 cutoff, 5 0 Doctor^-- 6 A Excuse me, air. "/7 Q Doctor, are you saying that it is possible the 8 toxic substance can causa it to be 80,' but that it is S impossible that it can cause it to be S3? 10 A No, I didn't say that. In my professional 11 opinion--- 12 Q Excuse me, Doctor. That's what I 'm asking you, 13 sir, so that we understand correctly. Are you saying that 14 it is passible that it would do it at SO, but impossible 15 that it would do it at 59? 18 A I didn't say that. X said in my professional 1? opinion-" 18 Q Doctor, I 'm asking you, sir. 19 A It might. 20 Q Yes, it might, Doctor, And, Doctor, would it do 21 it at 50? Could a toxic substance do it at the level of 22 50, sir? 23 A I don't know, sir. 24 Q Give me your opinion, Doctor. 104 1 A In my professional opinion, I don't think so. 2 D Is it possible that it could, sir? 3 A We are talking about kidneys, sir. 4 Q la it possible that it could, sir? 3 A I cannot answer that in the abstract, sir5 it's an 8 abstract question. 7 MR. CARR: Your Honor, would you direct the 8 witness to answer my question. 9 THE COURT; Doctor, answer the question. 10 A I cannot say, sir. I don't know. 11 Q I 'm not asking if you know, Doctor! I 'm asking is 12 it possible that it could do so? 13 A It's remotely possible. 14 Q All right, Doctor. Can it do it at 30? Can a 15 toxic substance cause the BUM to go to 30? 16 A I would say in my professional opinion, no. 17 Q No; is it possible, sir? i1aP A No. 19 Q Is it possible that it can make it go to 40? Is 20 that right, sir? 21 A It might. 22 Q Is it possible that it can make it go to 39, sir? 23 A I have no idea, sir. 24 Q Doctor, if you have no idea, then it's possible; 105 1 Isn't it, sir? e A No, I can't tell you, sir. 3 Q Doctor, if you have no., idea, than it is possible; 4 isn't it, sir? 5 MR. HEINEMAN: Objection, your Honor. It's 6 calling For speculation on the part of this witness. 7 THE COURT: Objection is overruled. B A Ridiculous. 9 MR. CARR: Your Honor, the witness made a 10 comment; I don't know if the Court heard it or not, 11 THE COURT: I did not. Would you repeat the 12 comment for the Court? I would like to hear the comment. 13 What did you say? 14 THE WITNESS: I said the-- it is a ridiculous set 15 of questions. 16 MR. CARR: He said ridiculous, your Honor, is 17 what be said, period. 18 THE WITNESS: Ridiculous, yes. And I was 19 referring, sir-- * 20 THE COURT: Doctor,- Doctor, I don't care what you 21 were referring to; that was an improper comment. 22 THE WITNESS: I apologize. 23 THE COURT: I told you when you made improper 24 comments like that before they ware improper* you've 106 1 apologized before when you've mad them; and you've continued to make them. Now, for a change, please follow 3 the Court's directions. You may proceed, Counsel. 4 Q Dr. Suskind, I 'd like you to assume that others 5 have testified in this case that results outside the normal 5 reference range can be the reaul-t of exposure to toxic sub 7 f' stances. Will you do that, sir? a HR. HEINEHAM: Objection, your-Honor. Hay 9 Counsel approach the bench? 10 THE COURT: Sure. 11 Cthe following proceedings were had out of the ia hearing and in the presence of the jury.} 13 HR. HEINEMAN: I object to the use of the term J :. . ' 14 ''others". What others? I think they should be identified IS to the witness. 1 object to the use of the term ''others". 16 Thera haven't been that many that Hr. Carr has put on the 17 stand that have said such a thing. 18 NR. CARR: I don't think I need to identify every 19 instance of, the witnesses. A multiple number of witnesses 0 have been hare testifying about effects of dioxin. 21 NR. HE1NEMAN: Multiple number? I can think of 22 two that have talked about outside the reference range, 23 Zahalsky and Carnow. 4 MR. CARR: I can think of Silverdale, and I can ' 107 1 think of Lafctimer. I can think of Blonsky. Well, X can 2 think of those. 3 THE COURT: Others is two or more, and ha 4 supplied two and you supplied a few more. I don't think S there's any problem with the word ''others". Objection is 6 overruled. 7 CTha following proceedings wars had in the B hearing and presence of the Jury.) 9 Q Will you assume that, Doctor? 10 A What do you want me to assume, Mr. Carr? 11 . MR. CARR: Would you read the assumption to the 12 witness, please? 13 CAt this time the previous question was read back 14 by the court reporter, as requested.) 15 A Perfectly possible that they did, and I will IB assume that they did. 17 Q It la possible that they did; isn't it, Doctor? IB A I said it's possible for them to have said this, 19 so I will gladly assume it, sir. 20 Q And it's possible that they said that because 21 that's a scientific fact; isn't it, Doctor? 2 2 A It could be in their opinion, sir. 23 Q Yes. 24 A In their opinion. 108 1 Q But, you don't share the opinion? e A As an expert in this court-- * 3 THE COURT: Doctor, Doctor, please, You were 4 intarprstting a question. Let Counsel finish the question. 5 Q Doctor, is it that you don't share the opinion B that toxic substance can cause a laboratory result to b 7 outside the normal reference range? a A Not all laboratory results, sir, no, 1 do not 3 share that opinion. 10 Q Doctor, I asked you before to identify those that 11 would not be so effected, and you went to BUN, and we went IS down to a level where you did not know. 13 A You didn't ask me that question, sir. 14 D Doctor, is there other-- 15 A You didn't ask ms that question, sir. I raised 16 the BUM myself. 17 Q Doctor, I asked you to identify-- I said, "Is it 18 true that any laboratory test result can be caused to be 18 outside the normal reference range by exposure .to--toxic 0 substance?" Do you recall that, sir? 21 A I do. 22 Q And do you agree that that's a fact, sir? 23 A For some substances, for some-- . 24 Q Doctor, that's all right; I don't care about that." 109 1 I said by toxic substances. MR, HEINEMAN: Objection, your Honor, interrupted 3 the answer. 4 THE COURT: Objection is overruled. 5 Doctor, do you agree that some toxic substances 6 can cause laboratory results to be outside the normal 7 reference range? e A For some laboratory teats and at some levels. 9 0 Doctor, what-- are you saying now that Just five 10 above the normal reference range of toxic substance can't 11 cause that? Five units above? 12 A I 'm saying that five units above a BUN may not be 13 abnormal. That's what I 'm saying. And it's listed hera, 14 .sir. IS Q Doctor, I'm not talking about abnormalities new. IB Do you understand that, Doctor? I'm talking about whether 17 or not a toxic substance can cause a test result to be out IB side the normal reference range. Do you understand that, IS Doctor? 20 A Some toxic substan-- HI MR. HEINEMAN: Excuse me, Doctor, flay Counsel 2 2 approach the bench? 23 THE COURT: Yes. 24 ! CThe following proceedings were had out of the i 110 1 hearing and in the presence of the jury,} g MR, HEINEMAN: Now ws're going with the word 3 games again. He says, "I'm not talking about abnormal" and 4 then he refers to normal reference range. A reference S range isn't normal or abnormal. It's a reference range. 6 And I object to his saying, "I 'm not talking about 7 abnormal" and then throwing the word ''normal" into the 8 question. It's misleading to the witness and to the jury. 9 M R . CARR: It's not misleading, your Honor. He 10 agreed with me this morning; h e 's had the lunch hour to 11 know whether or not he said it. He said it himself. He 12 agreed with it, even after Counsel was up hare making the 13 objection. Ha has said it time and time again; it's- not at 14 all misleading. 15 THE COURT: I don't think it's misleading either. IB I've heard it used in the context before I've heard this 17 question, too. I don't think it's misleading at all. I 18 think the questions are alaar and the context is clear. 13 Objection is overruled. 20 (The following proceedings were had in the 21 hearing and presence of the jury.} 22 MR. CARR: Would you read back the question, 23 please. 24 CAt this time tha previous question was read back 111 1 by the court reporter, as requested.) 2 A Yes, some test results, yes, sir. 3 Q Doctor, and what test results cannot be caused to 4 be outside the normal reference range by a toxic substance. 5 Doctor? 6 A Test results which are Just-- "7 Q Would you identify those for me, please? s A No--~may I finish, sir? Test results which are s just outside the reference range, low or high. And in many 10 instances if the reference range-- if the lower end of the 11 reference range has no significance whatsoever, like in a 12 BUN, than if it would be ten units below the reference 13 range, a toxic substance wouldn't cause that. That's what 14 I 'm talking about. IS Q Now, Doctor, are you saying that a toxic substance IS exposure will cause only results above the normal reference 17 range? 18 A No. No, it will cause in some instances lowering. 13 It might cause lowering. But, it really depends upon the 20 parameter or the laboratory test that you're talking about. 21 And you can't lump them altogether the way you have, sir. 22 You can't lump them altogether. The laboratory test is not 23 a laboratory test is not a laboratory test. You have to 24 distinguish between the laboratory tests. You'rs talking - 112 l about chloride; you're talking about BUN; you're talking 2 about chloracna,- you're talking about lipids; you're 3 talking about blood counts. What are you talking about? 4 And that'a why I am saying that you have to distinguish on 5 the basis of what tests and is it elevated or--- : 6 Q Now, Doctor, what I am asking--- 7 A -- or reduced. 8 G -- you to do is identify the laboratory tests that 3 will not reflect exposure absorption to a toxic substance. 10 A I think I have to qualify this by saying that it 11 all depends upon what type of out of reference rang you 12 are talking about-- way out of the reference range or on 13 the low side or on the high side. For example, I don't 14 know of any toxic substances that causes perhaps a low 15 blood sugar. 16 Q Well, then, that's one, Doctor. 17 A Okay. 18 Q Would you identify some others, please? 19 A Well, I haven't gone through these hundreds of 20 things to answer your question. It would take hours to do 21 it, sir. But, I think in principle--- 22 Q Lst ma pose it a different way, then, Doctor. 1' 23 A Please do, sir. 24 Q You require these laboratory tests to be conducted 113 1 because they are important to you in determining whether or .e not the toxic substance in question has affected the person 3 in question; do you not, sir? 4 8 In what-- -in what relationship? S Q In these studies of workers who have been exposed B to toxic substances. You set out and determine which 7 laboratory tests you want; do you not, sir? 8 A Yes, sir, 9 S And, Doctor, in this case, the laboratory tests 10 that war performed were th ones that you ordered to 11 assist you in arriving at a judgment as to whether or not ie these workers had their health status effected by working 13 with these chlorinated phenols; did you not, sir? 14 A Not altogether, sir. 1S Q Mow, Doctor, didn't you say on page 2 that you 15 wanted these-- ''Clinical laboratory tests included; blood, 17 CA, F, BUM, Creatinine, BUN-creafcinine ratio, uric acid, 1 S glucose Cfasting blood sugar), total protein, albumin, 19 globulin, total bilirubin, direct bilirubin, transaminase S0 SGO and SSF-- 2 1 H R , CARR: I 'm sorry, I know these are unfamiliar 22 terms. I'm reading from page 2 of Exhibit 1500 if you have 23 any problems. 24 G -- alkaline phosphatase, LH, cholesterol, iron, > 114 1 magnesium, sodium, potassium, chloride, B-glutamyl-trans~ 2 peptidase, trigyleerides-- triglycerides and lipoprotein 3 profiles, CBC and differential, urinalysis and urinary 4 coproporphyrin, uroporphyrins, and creatinine," 5. MR. HE INEflAN:-' Objection, your Honor, Counsel 6 approach the bench? t THE COURT: Sura. e CThe following'proceedings war had outside the 3 hearing and in the presence of the jury.l 10 MR. HE INEMAN: The words ''you wanted" do not 11 appear in that paragraph, I object to the question. 12 THE COURT: Let me read the paragraph. 13 MR. HEINEMAN: I object to the question. It 14 says, ''Didn't it say here you wanted these" . It doesn't 15 say that at all. It says, ''Clinical tests included." 16 THE COURT: Yes, I have read that. 17 MR. HEINEMAN: And what the doctor has said is 18 that not altogether. In other words, as Dr. Carnow has 19 said, you order a battery of tests and sometimes you get 20 some you didn't order and sometimes you don't. H e 's saying 21 not altogether. There's some he asked For and there's some 22 he got that perhaps he didn't ask for. 23 MR. CARR: I've read the ones he asked for, 24 MR. HE1NEMAN: No, you read the ones listed hers . 115 1 where it says, ''These are the laboratory tests,4' 2 THE COURT: Your objection Is overruled. Dr. 3 Suskind is the principle investigator. He was in charge of 4 it. The context of the question is, "In hia report" which 5 notes that it was submitted by him and it is his report, 6 and he has gone on record saying that it is his report ? whether final or not. The context of that is ''This is 8 what was ordered and the tests that you were responsible '9 for" . I don't think that is an unfair or unreasonable 10 question in the context of his report. Your objection is 11 overruled. 12 MR. HEINEMAN: All right, your Honor, maybe you 13 misunderstood my objection. Hy objection is that the 14 question says, ''Didn't this say you wanted" the following 13 tests. It doesn't say that. And so, it's a clear mis 16 representation of what it is h e 's reading to him. That's 17 what my objection is. 10 f1R. CARR: Well, I 'm not attempting to read this 13 verbatim. I simply referred to the page for ths court 20 reporter's need. I 'm asking him, ''Didn't you want these 21 tests?" 22 MR, HEINEMAN: Well, that's so specious and dis 3- ingenuous. You referred to this page for the court 54 reporter's need? v I 116 MR. CARR: Right. 2 MR. HEINEMAN: Why, that's preposterous.. 3 MR. CARR: I only referred to it, Counsel, whan I 4 aaw that she wasn 't getting it. And 1 told her the page 5 that I was reading from. 6 MR. HEINEMAN: You told the witness to look at page 2 . 8 MR. CARR: I did not. 9 THE COURT: Whether he did or not is immaterial. i 10' i The context'of this being his report, he can be asked as far as his responsibility for ordering these tests. I 12 | think that's a proper question; it was a proper question ii 13 | with Dr. Carnow; it's a proper question with Dr. Suskind; 14 i it's a proper question with any other of these medical 15 | witnesses who orders tests, period. Objection is over 16 | ruled. 17 ; CThs following proceedings were had in the IB i hasting and presence of the jury.) 13 - -Q D o c t o r a r e n 't these tssts that I've read to you 0 tests that you wanted to be done, sir? 21 A Not all of them, sir, no. One orders a battery of 22 tests from a laboratory and they have-- some of the tests 23 are really not very essential, some are more essential than 24 others, from my standpoint. 117 1 D Which of thasa tests are ones that you did not e order, sir? 3 A We ordered a battery, and it comes in a package, 4 sir . We didn't--- 5 Q Excuse me, sir. Which of these tests in this S package is it that you did not want, sir? 7 A We didn't-- it isn't that we didn't want it; it's 8 the fact that these--- some of these- tests weren't essential 8 to our objective. 10 Q All right. Doctor, now, which of these tests--- 11 A Okay. IS Q -- were not important to you that you didn't need 13 to have dona? 14 A If you look at the first page of the final set of 15 data that you have hare-- 18 G Doctor, my question to you is: Which of these 17 tests, sir-- how about the blood? Didn't you want that, 18 S iJ.<Uf*'vI IS A It is what we wanted in the blood, sir. so Q Excuse me, did you want a laboratory test that 21 would include the blood-- -blood test-- blood Ca? 22 A What kind of blood test? Blood chemistry, blood 23 calls? 24 Q Doctor-- 110 1 A M r . Carr-- e Q Excuss me, Doctor. Did you or did you not want 3 this tsst that I read off to you--- blood Ca? 4 A Blood calcium? Is that what you're talking about? 5 D No, Doctor, I'm talking about what you put in your 6 report that the laboratory tests included. y A Well, wa didn't specifically-s G On page 2 of your report, sir, of Exhibit 1500. 3 A The calcium and phosphorous were not important, 10 but they were in the battery, 11 Q Excuse me, Doctor. My question is: Which ona did 12 you not order? 13 A It isn't that urn didn't order it; we ordered a 14 battery of tests. You don't do a-- Mr. Carr, you have to be 15 reasonable. We ordered a sat of tests which are made IS available by a laboratory. 17 G Yes. 18 A And they have a battery. Now, what y o u 'rs asking 19 is which of them are not significant to our study. . 20 G -No, Doctor, what I 'm asking you-- 21 A Wa didn't say, "We don't want that test." 22 ME, CARR: Your Honor'-- 23 A Wa didn't say that. 24 G What I am asking you is which of these tests that s- 119 1 you ordered here that you did not want or need, sir? Which 2 of these tests that I 've read to you, sir, did you not want 3 or need? 4 A . Thera wars-- certain tests were not essential, and 5 that's how I'll put it; not in your terminology, sir. 6 M R . CARE: Your Honor, would you direct the 7 witness.to answer my questioh. 6 THE COURT: Doctor, Doctor, w e 've gone through 3 this before. You have to answer according to that termi 10 nology. You don't determine what questions either plain 11 tiff's Counsel or defendant's Counsel asks you. Mow*-- 12 THE WITNESS: Yes, sir. 13 THE COURT: Now, you have the question before 14 you; it's been repeated a number of times; answer the 15 question, Doctor. 16 A Of the blood chemistries, sir? 17 Q No, Doctor, I 'm talking about the-- 18 A Of the blood chemistries , 1st me list 13 things-- 20 G Mo, Doctor. 21 A -- that we didn't really need. 22 Q Mo, Doctor. 23 A You're asking me-- 24 M R . CARR: Your Honor. 120 1 Q I 'm asking you, Doctor, with reference to tha s tests that you stated, the laboratory tests included on 3 page 2 , which of those tests on that page did you not want 4 or need? 5 MK - HEINEI1AN: Objection, your Honor . I believe S that's just what the witness was saying. 7 THE COURT: Objection is overruled. a A I would put it as need. We did not need, For s example, phosphorous. 10 Q That represents the "F M? 11 A Tha "F '\ sir. 12 Q And-- but, you ordered it? 13 A We did not. 14 Q Excuse me, Doctor. IS A Let me.go ahead, sir, and answer the rest of your IS question. 17 Q Doctor, 1 st me Finish. But, you ordered it; did 10 you not. sir? 19 A What? 20 Q You ordered it; didn't you, sir? 21 A No.. We ordered a battery, sir. It comes in a 22 package. And if you-- and I believe you do know what hos 23 pitals do and laboratories do, and I submit-- 24 Q Go ahead, Doctor. 121 1 ft -- that you are attempting to confuse me. 2 Q Bo aheads Doctor, and give me-- 3 ft Or confuse the Court, sir. 4 Bo ahead, Doctor, and give me the rest of the 5 tests that you did not want? 6 ft Thank you, sir, very much. Iron, magnesium, 7 sodium-- e Q Slow down. Slow down one minute, Doctor. Iron 3 and magnesium and sodium. 10 ft Sodium. Potassium, chloride--- those that are 11 listed there. Iron. 12 0 Now, you said iron once already. 13 A Okay. 14 Q So. it was the iron, the magnesium, the sodium, 15 the potassium, and the chloride that you did not want or IE need; is that correct? 17 ft That wa didn't need them, sir. You said the want. 18 We didn't need them. IS Q All right. That you did not need; is that.right, 20 sir?' 21 ft That's correct. 22 Q And, Doctor, why would you-- excuse me. When you 23 announce, you are telling the psople here that these 24 laboratory tests included these things; are you not, sir? 122 1 A Right, toe are. 2 Q And you're tailing them that without tailing them 3 that it wasn't needed For your diagnosis for your report} 4 is that correct, sir? 5 A I don't know what you are talking about, sir. 5 Q Doctor, you are telling the reader of this docu 7 ment, your client, in this instance Hansento, the one that S ordered the test from you, this report from you, you are 3 telling them simply that the tests included these things; 10 aren't you, sir? You are not telling them what you needed 11 or whether it was essential or unessential; are you, sir? ie A We didn't state that in this document, sir; you 13 are quits right. 14 G Doctor, would you tell them in advance-- you would IS advise them what you are going to.give them for their IS money; wouldn't you sir? Wouldn't you have told them that 17 in advance that you are going to--what tests you are going 18 to need and get? 19 A I believe we said we were going to get a battery 20 of tests which included that. We didn't have to tell them HI we didn't need it, sir. We were getting tests done 22 including all those we wanted. 23 Q Doctor, didn't you tell Monsanto and the workers 24 and everybody else in Exhibit 1504 that the clinical labor-. 123 1 atcry work will include every single one of those tests s- that you read off that you say are not essential? Didn't 3 you tell them that? On the front pegs of 1504, Doctor, 4 the preliminary document that you sent out, Doctor, before 5 you ever had the study performed, Doctor? 6 ft Right. 7 0 Before you ever ordered the tests, Doctor? B ft 'Yes. 9 Q Did you not tell them, sir, that the clinical 10 laboratory work-- 11 ft Will include-- 12 Q That you told them what you were going to do; and 13 did you not tall them, sir, the clinical laboratory work is 14 going to include all these things, sir? 15 A Right, we did, sir. 16 Yes, you did; didn't you, Doctor? 17 A Sure we did. 18 Q Mow. Doctor, these laboratory effects'-- and these 18 are laboratory effects; are they not, sir? 20 ft Me, they era laboratory findings which may have no 21 significance or significance. 22 G Doctor, I won't quarrel with that at all that they 23 may have no significanca at all as far as you are con 24 cerned. They are laboratory effects; aren't they? 154 1 A They are laboratory Findings, sir. Effects s means-- 3 G Excuse me, Doctor. 4 A -- something is behind it. 5 G Haven't you agreed that laboratory findings and 6 laboratory .effects .-are equivalent? Do I need to establish 7 that again, Doctor? Didn't you testify to that? 9 A When they are abnormal, they are listed that way, 9 air, yes, we did. 10 0 U)e did establish that; didn't wa? 11 A We did in that case, but not hers, sir. IE Q Doctor, we established in this courtroom that when 13 you said laboratory Finding, you moan the same thing as 14 laboratory effect; did you not, sir? 15 A No, sir. W e 're talking-- 15 Q We didn't establish that, Doctor? 17 A If ue know what we are locking for, sir. IF we 18 know that there may be an association. 19 Q Doctor, .didn't we. establish that in this court E0 room? ei A I submit we did it for that--- that exhibit, sir, EE yes, .we did, For that exhibit; but, not for this one. S3 G And, Doctor, you limited it to that exhibit, did E4 you, sir? Did you, sir? 125 1 A We limited it to that exhibit insofar as the 2 - abnormal findings are concerned. 3 Q Now, Doctor, don't you recall us going into the 4 matter of these laboratory findings and your using the 5 words interchangeably whan you use them? 6 A Not in all instances, no. Effects must have an 7' association with something. It's an effect of what? 8 Q Of exposure to a toxic substance, Doctor. Didn't 3 you say on the 3rd of March, Doctor, that a laboratory 10 finding is equivalent to a laboratory effect? 11 A That's what you wanted me to say, sir, and I did IS it, sir. 13 Q Oh, you did it for me, Doctor? 14 A Yes, sir. 15 0 And you are going to say everything else that I IS want you to say, Doctor-- * 17 A No, sir. IB --so we can move on? IS A No, sir. 20 Q Wall, then, why did you choose to say that just SI for me, Doctor? 22 A In order to close the discussion so that we didn't S3 have an harang about it. 24 Q And, Doctor, then you didn't maan what you said? 126 1 A Oh, I did, air. 2 Q Mow, Doctor, did you mean what you said? 3 A I did, sir, in ths case of this particular thing. 4 Q No, on ths 3rd of March, which was yesterday, did 5 you mean what you said, sir? e A I did at the time, sir, yes. * 7 Q But, now have you changed your mind? e A I haven't changed my mind, sir. I haven't changed 3 roy mind. 10 Q The 3rd of April, which was yesterday. I said 3rd 11 of March . Have you changed your mind since yesterday, 12 Doctor? 13 A N o . 14 0 Sir? IB A No. sir, I haven't. IB Q You said what you meant there yesterday? 17 A Yes, I did, sir. 18 G All right. Now, Doctor, I would like to pass if 19 you will to~-and there are a number--- do you know how many eo people at Krummricb have one or more of these laboratory 21 findlngs or affects, Doctor? 22 A I 'm not altagether-- they all have laboratory S3 findings ft 24 G Excuse me, Doctor. My question is: Dc you know v 127 1 how many havs one or more, sir? 2 A All of .the 108 people utho had laboratory exami 3 nations had laboratory findings. 4 Well, Doctor, that isn't true. 5 A Yes, it is s o . B Mo, Doctor, there were 10 that did not, ? A M o . There were-- there were 115; 115. 8 Q There were 108, Doctor, that had laboratory tests. 3 A All right. So, then, there were 103 people that 10 had all of the laboratory findings that were listed in the 11 report, sir, 12 Q Well, Doctor, but they ware not outside ths normal 13 reference range, were they, sir, for ail 108? 14 A Many of them were not. 15 Q fly question to you, Doctor, is-- 16 A Many of them ware not. 17 Q Do you know how many of these workers had test 18 results that were outside the normal reference range? 19 A I do not. I can't tell you off-hand, sir. 20 D No, Doctor. Would it surprise you if you added 21 these up that it would come up to 90, sir, if you include 22 the lipids? 23 A By whose count, sir? 24 Q Sir? 128 1 A By whose count? 2 Q By METPATH's results outside the normal reference 3 range; the evidence in this case, Doctor, that you created, 4 that you prepared, that you sent away and got--- by that 5 count, Doctor? 6 A Either low or high or-"r'7 Q Yes. 8 A Or it doesn't matter how far outside the range? 3 Q That is correct, Doctor; that is absolutely 10 correct. 11 M R . HE INEMAN: Objection. Hold it, please. 12 Approach the bench? 13 THE COURT: Sure. 14 CThe following proceedings were had out of the 15 hearing and in the presence of the jury.! 16 MR. HEINEMAN: You know, Mr. Carr is trying to 17 bootstrap this manure that's listed on the top of 1507A of 18 this abnormal lab reports by calling these reference ranges 19 ''normal reference ranges" . I 've objected to this before, , 20 your: Honor. A reference range is a reference range. It's 21 not normal and it's not abnormal. And tbs.METPATH reports 22 don't say ''outside normal reference range"; they say 23 ''outside reference range", And so, that question is mis 24 leading, and I object to it. 129 1 MR. CARR: I have nothing to say on it. It's not 2 misleading. The witness knows exactly what's in the 3 METPATH reports, and it's exactly the way I am using the 4 word. And so doss everybody else. 5 THE COURT: Objection is overruled. Are you at 6 at point where we can take a break? 7 MR. CARR: Did I get an answer to that question? 8 THE COURT: No, you didn't. 9 HR. CARR; Well, just let me sum that up, and 10 then wa will take a break. 11 THE COURT: Okay. 12 CTha Fallowing proceedings were had in the 13 hearing and presence of the jury.) 14 G Doctor, For your report that you submitted, can I 15 take it then that you c!id not add up the number of these 16 Krummrich plant workers that, had results outside the estab 17 lished reference range? 18 A Us certainly did not, sir. 13 MR. CARR; Your Honor, thsn we're at a good 20 place. 21 THE COURT: Fine. W e 'll take a short break at SB this point in time and resume testimony. The admonish 23 ments that I gave you earlier will apply during this break 24 also. Court is in short recess. 130 1 CAt this time a recess was taken.) e CThe following proceedings were had in the 3 hearing and presence of the Jury following the recess.) 4 THE BAILIFF: Everyone please rise. You may be 5 seated. 6 THE COURT: Ladies and gentlemen, in keeping with .7 what we've tried to do as Far as in the days that w e 'll a have off, next Tuesday, which is April 8 th, we won't be 3 holding court, so that you can mark that down in your books 10 if you would, please. And w e 'll-- -so far as I know, those 11 are the only days-- that is the only day, rather, that we 12 won't be holding court in April. You may proceed. 13 CBy Mr. Carr) Doctor, do you have your-- the final 14 report, the Tables from your final report of your Krum- 15 mrich study? 16 A Yes, I do, sir. 17 0 I 'm sorry? 18 A Yes, I do. 19 Q Would you-- that would be Plaintiff's Exhibit 1809. 20 Would you turn to tha-- that part of your final report that 2 1 is-- the section of your final report that deals with 22 262/268 Exposure versus Demographic Information either, in 23 Department 262 or 268, 24 A I have it, sir, yes. v 131 1 Q And, Doctor, three quarters of the way-- there's a e large number of Tables that are in that particular part of 3 your contemplated final report; is there not, sir? H A Yes, there are. 5 D: Doctor, if you would turn to the Table about 6 three'-quartere of the way through that with the blood 7 reference range units. Yes, this one. B A Okay. 3 0 You've gone too far* 10 A I 'm sorry. 11 G Still too far. And you are still too far. Mow, 12 you are there at the beginning of It. I think that's-- yes. * 13 A That's sodium. l*i Q All right. Now, Doctor, there is a table without IS a number; is there not, sir? You had planned to give it a 16 number? 17 A Yes. Nona'of them have numbers yet, yes. 18 Q And, Doctor, there is in this Table, the first 19 laboratory test that you report on there is for sodium; is 20 it not, sir? 21 A It is, sir. 22 G And, Doctor, do you give ths reference range there 23 for sodium, the laboratory reference range? 2H r a Yes, there's a reference range given, sir. 1! . 1 . Q Doctor, all of the parsons that said no "Ever in Department 62" and ail of the persons that said yes had test results within the established reference range; did they not, sir, For sodium? .A Yes, I believe so. THE COURT: I'm sorry, Doctor, I couldn't hear the answer. THE WITNESS: Yes. Q What do you report in this Table for magnesium? A Yea. Q Do you report in your final report, sir, that persons are outside the normalreference range? A In the report, this^-the report thatyou have-- Q Doctor, I 'm talking about your report, 1B0B, what you said is going to be part of your final report, A No, we do not, sir. Q You don't have that? A Wall, ws don't have any refersnce to the-- G Excuse me, Doctor. My question is: Do you not have-- have I got the right document you've got? You sent me soma Tables that you said were part of your final report. A Yes; right. Q Are we at the same; Table, sir? 133 1 2 3 `i 5 6 7 S 9 10 11 12 13 1H. 15 IB 17 IB 13 20 21 22 23 24 A I believe so. Q Nou, uhat do you have in this Table, sir, for magnesium? How many persons that ware never In Depart ment 262 o r '260 do you show as having results below the established reference range for magnesium? A Who are never in the department? Q Yes A U!e have two-- two, sir, right, Q You report that two in the magnesium were below5 da you? A Ule d o . Q And haw many of above in this Table that you reported on, sir? A Well, in the-- those who were not in 282 or 2SB, we have 1 0 . Q Tan that were above?' A And three in those who were in 252 or 2S8. 0 And For the, yes, we have, for magnesium you have three above; do you not, sir?.. 'A '. Three-- 0 I 'm sorry, three above and none below? A Three outside of the reference range. Q No, that's three greater than your reference range? 134 1 A Yes, but-- on th upper side, yes. 2 Q Isn't that three you report that's above the 3 reference range, sir? 4 A Yes. S G Do you report there how much above the reference 6 range they are? 7 A U)e do not here, sir, no, B Q Do you report how much below they are of the 9 normal reference range? 10 A No, sir. 11 G All right. Nous, Doctor, the next test, let's see, 12 that you referred to was po-- 13 A Potassium. 14 D Potassium. All right, here it is. 15 A Right. 16 G And, Doctor, in that report, sir, how many are*-- ' 17 A Above the-- 18 G -- below'-- I'm sorry, above the reference range? 19 A There'a on in the group that was never in 262 or 20 268. 21 G And none in the other? 22 A And none who mere in 2S2 or 26B. 23 0 Nou, Doctor, you also calculate a "P" value for 24 the magnesium; don't you, sir? 135 1 A Yea. 2 Q Is that "P " value, that's a complicated formula 3 you use; is it not, sir? 4 A Yes, it's a formula which-- 5 Q Excuse me. My question is that it is a compli 6 cated formula that you used for this magnesium; didn't you? 7 A Right. 8 Q Doctor, chloride is also one of the tests that you 9 mentioned; is it not, sir? You report-- 10 A Right. 11 q -- in this Table on the results of the chloride: 12 don't you? 13 A We do, sir. 14 Q And how many below the established reference range 15 do you report, sir? 16 A We report two who were not in Department 2S2-- 17 G3 And in that same-- 18 A -- below the reference range. 19 Q Excuse me, Doctor. How many are above the-- 20 A One. 21 Q -- the laboratory reference range? 22 A One. 23 G For chloride. . And the ''Never in that Department", 24 you have none for each of that; do you not? 136 1 A Right, we do, sir. a Q And you also established a "P" value there; don't 3 you, sir? 4 A Yes, me do. 5 Q Of B.BSB5; don't you, sir? 6 A Right. 7 Q Doctor, was calcium one of the ones? No, you B didn't give us calcium as-- 3 A No, I don't Selisva we did. 10 D How about phosphorous? 11 A tiis did, I think, give you phosphorous. IS Q All right. Phosphorous is reported. 13 A There were none. 14 a ' Sir? 15 A Nona in either of the-- IB 0 And you also gave us iron; didyou not, sir? 17 A I believe we gave you iron. 10 0 And in iron, sir, how many werebelow the labor IS atory reference range? 0 A One. 1 Q And how many were above that? 2 A Two. 23 Q And in the other department, it's zero in each 4 instance; isn't it, sir? 137 1 ft Right, yes. 2 Q Mow, Doctor, were there any others that you said 3 were not important to you? 4 A No, I don't believe so. . 5. Q And, Doctor, in addition to relating these and 6 reporting in your final reports your findings with regard 7 to sodium, magnesium, potassium, chloride, phosphorous, and 8 iron, you reported an-- and by the way, these headed your 9 Table-, didn't they, sir? 10 ft Sorry? 11 Q These ware the ones that headed th Table you 12 created reporting on these laboratory results? 13 A That's how they were presented in the HETPATH, and 14 I think we simply followed the list. 15 Q Doctor, my question is: You headed the Table with IB that; didn't you? 17 ft I 'm not sure what you mean by headed. IB Q You lead the Table off with these results-, didn't 13 you, sir? 20 ft Ule headed the reference range results. 21 Q Doctor, would you-- 22 ft But they are presented-- there are other ways that 23 we have presented this as well. 24 Q Doctor, my question is: On this Table, you lead 13B 1 off with these results; didn't you, sir? 2 A That's how they are presented in METPftTH, sir. 3 Q Doctor, do you want to look at METPftTH's and tall 4 ms how they presented it, whether they lead off in METPftTH S with those results. They didn't; did they? 6 A No, they didn't. But, we put ail the-- 7 Q Doctor, Just please answer my questions. 8 ft Sure, I'd bs happy to, sir, any time. 9 Q They did not lead off with those resulta; did 10 they? 11 ft No, I thought they did, but we simply put'-- ie D As a mattar of fact--* 13 ft We put all fcha metals together, sir. That's what 14 wa did. IS Q Doctor, as a matter of fact, what you did, you IS went down through the METPftTH result and extracted'these to 17 lead off with that; did you not, sir? 10 A No, sir. 19 Q Did you extract these From the METPftTH report? 20 ft Oh, w sure did. 21 D And you lead off with them; did you not, air? 22 A We decided that those ware the-- 23 Q My question is specific. You lead off with them; 24 didn't you? . 133 1 A I don't know what you mean, 'sir, by lead off. D Those wars the first results you reported in the 3 Table you just went through, sir? i A Some of them are, yes. So? 5 Q Doctor, in addition to the conclusion of thasa in 6 that Table, you also included those results and put them in 7 a Table dealing with mean valas*, did you not, sir? 8 A T believe we put the mean values before we went to - 9 th--- the reference range values, yes. id Q Is that a yes to my question, that you did include 11 them in the mean values, Doctor? is A I think I've answered the question. 13 Q Doctor, for the mean values For these, you also 14 age-adjusted them; didn't you, sir? 15 A I believe they were aga-adjusted by the biostati-'16 atician yas. 17 Q Wall, would you want to check and see, Doctor, IB because I'm not asking for your belief, I'm asking for what IS you in Fact did, sir. It's the preceding half dozen pages, 0 Doctor, in that section of your final report. Do you sea. 1 that, Doctor? Do you see it, Doctor? . A I 'm not sure I do, sir. 3 Q Well, 1st me show you the one I have. Ves, you 4 have it right there. Do you sea it? That's it. 140 1 A Oh, okay. e Q That's not the First pags of it, Doctor- Let ms 3 assist you. That's tha first page of it. *4 A Thank you. 5 Now, Doctor, you havs these same laboratory 8 results reported in that section in a Tables don't you, 7 sir? 8 A Yes, we d o . 3 Q And, Doctor, you calculate a "P " value for each of 10 thoss means; do you not, sir? 11 A Correct. 12 13 Yes. Doctor, would you now taka the Table that's 13 headed ''Chloracna by Age and Education", sir. 14 A You mean the-- oh, that's another report, sir, yes. 15 Q I left my writing pen somewhere. Are you with me, 1 B Doctor, on the o?ne that you've got headed ''Chloracna by Age 17 and Education"? 18 .A Yes, sir. t 13 . Q And are you with me where you've got the Table 20 headed ''Chioracne versus Clinical Laboratory Findings"? 21 A Yes, I have it, sir. 22 Q And again, the sodium is the same for-- and this 23 time you discuss these three laboratory-- these half dozen 24 laboratory findings breaking it down in three categories; 141 1 that is, ''History Only", ''Residual Chloracne" and ''Never 2 Chloracna''; do you not, sir? 3 ft Precisely, yes, 4 Q And you also calculate a "P " value there; don't 5 you, sir? 5 A We do, yes. 7 0 Doctor, that's-- and you-- -again you calculate and 8 report to whoever is going to read this report what the 3 magnesium levels were in these workers at the Krummrich 10 plant, whether they were above the laboratory reference 11 range or whether they were below; don't you, sir? Isn't 12 that correct, sir? 13 A No, We--no, that's not-- are you looking at the 14 laboratory reference rang or mean values, sir? IS G I'm looking at the laboratory reference range. IS ft Wall, I'm sorry, I thought you said mean values at 17 first. I have it, yes. 18 Q Doctor, you report the laboratory results of above 13 and below; do you not, sir? For magnesium? 20 ft As related to the acne status, sir, as related to 21 the acne status. 22 Q Doctor, that's what I 'm asking. 23 A Not the buildings, but the acne status. 24 Q I'm sorry? 142 1 ft Yes, sir. 2 Q I 'm asking you, Doctor, you report an magnesium 3 for those workers who had levels of magnesium below the 4 established reference range, do you not, sir, as well as 5 for those above; don't you, sir? Doctor, are you looking 6 at the Table that I 'm asking you to look at? ntr ft Yes, I believe we do, sir. e Q ftnd, Doctor, in the case of magnesium, it is, for 3 ''History Only" it is-- 10 ft One. Are you talking about below reference range? 11 Q Just one moment, please. Now, Doctor, you have 12 one below, do you not, air, in the ''History Only"? 13 A Right. 14 Q And four above; don't you, sir? 15 ft In the "History Only", yes, sir. 16 Q And in the ''Residual Chloracne" for magnesium, you 17 have one below and five above; don't you, sir? 18 A Correct, sir. ' 19 Q And for the ''Never Had Chloracne" you have none 2 0 below and Four above; don't you, sir? 21 A Correct. 22 0 Doctor, without going through each of these 23 others, you make reports for both above and below in all of 24 the categories you've established in this Table; that is, 143 1 "History Only", "Residual Chloracne", and "Never Chlor 2 acne"; do you not, sir? 3 A Not always sir, It depends upon whether we 4 found-- far example, if we didn't find any across the board 5 for-- 6 0 Either above or below-- 7 A For example, in potassium, sir, if I may taka a 8 moment. Thera were none below the reference range, so we . 3 didn't include it; but, there were one above the reference 10 range, so we included tha reference-*"the reference limit 11 for the above. 12 Q Doctor, for each of these values for each of these 13 laboratory tests where there was a reported value that was 14 below the established reference range-- 15 A We included it. 16 Q You reported it; did you not, sir? 17 A Yes, we did. 18 G And analyzed it; did you not, sir? And reported 13 on your analysis; did you not, sir? 20 A Well, the--- 21 Q Would you answer that question, Doctor? 22 A I 'm not sura what you mean by analysis. You mean 23 tha analysis of tha blood or the analysis of tha data? 24 Q Your "P" value, Doctor. 14H A Oh, yes, the "P M value is a comparison. 0 Doctor, you reported a "P " value in each instance where you had values; did you not, sir? A Correct, right. Q And, Doctor, that was, with regard to the "P " value, you included the below and above reference ranges; did you not, sir? A No. The "P" values refer to the-- if thare was any difference in the frequency. The "P" value refers to frequency, sir. Q Frequency of abnormal results? A Frequency when you compare one to another, right. Q And, Doctor, that frequency included all abnormal results; did it not, sir? A No, the frequency only included the results of the particular parameter, like magnesium or potassium or chloride. 0 Doctor, it included the values both above and below th established reference range; did it not, sir? A Yes, sir. Q Yas, Doctor. The "P" values that you established that you reported and used--- and, Doctor, this wasn't just in the instance of these particular laboratory tests, that was in the instance of every single laboratory test 145 1 that you did? s A Sure. 3 You used the below results and you used the above 4 results In establishing your "P " values; did you not, sir? S A Yes. Yes, the comparison. 5 Q Yes, Doctor, for comparison, because you consi 7 dered it important to do so from a scientific basis; isn't e that right, sir? 9 A Right. 10 G So, it was important for you to consider these 11 results both above and below from a scientific basis; 12 wasn't it, sir? 13 A Yes, it was. 14 G Yss, sir. And, Doctor, you did-- and you reported 15 for each category and made a table for each category for 16 each laboratory result reporting both the above and below 17 result; did you not, sir? 18 A We did, sir. 19 D And, Doctor, in addition-20 A N o . I'm sorry, sir, may I correct that? 21 Q I 'm sorry? 22 A flay I correct that? hay I correct that? I 23 believe that the "P " values in all of these are-- -only 24 relate to the-- the line where it says above a certain 146 1 level, it's the comparison of those that ara outside the 2 range above. Now, it might be, for example, in the-- let's 3 see where we are now-- no, the "P" values only consider 4 those which era significantly abnormal outside of range, 5 like-- 6 Q Now, Doctor, where is that indicated in anyplace? 7 A Well, I think you have it right, here. 8 Q Where is that indicated in anyplace, Doctor? 3 A Here. For example, here. 10 Q Doctor, that doesn't tall you at all whether or n not they are significantly outside of the range. Ail you 12 are reporting there on are the ones that are outside the 13 range. 14 A That's right. IS Q But, you are not saying how much outside the range IS or whether they are a tenth of a point above the range$ 17 you're simply reporting on those that are outside the 18 range; isn't that correct, sir? IS A Yes. But, if it's not significant-- if the low 20 level is not significant, we didn't get a "P " value. But, 21 if the-- 22 Q Doctor-- 23 A For example-- 24 Q Doctor, you make no report for any-- you make no 147 1 MF " v a l u e f o r any low level, d o you, sir, a s a u c h ? Y o u a d o n 't p u t a n y t h i n g on a line for that; do you, a i r ? 3 A No. 4 Q But, in point of faot, Doctor, there are a number 5 of important consequences that come from certain laboratory 6 t e s t e w h e r e t h e r e is a low level $ i s n 't there, s i r ? 7 ft T h a t 's true, sir. 8 Q Now, you make no report on that} do you, air? 9 A Yes, we do, sir. 10 Q Where, air? Look at tha rad blood cell count; 11 look at the hemoglobin count, sir. You have people-- tha IS h e m a t i c count, sir. W h e t h e r y o u are a b o v e or b e l o w t h a 13 established reference range in that-- in those circum 14 s t a n c e s - -- is important; i s n 't it, air? IS ft Oh, very m u c h important. 16 Q And, Doctor, you make no finding on the "P " value 17 s e p a r a t e l y for t h o s e below; d o you, s i r ? 18 A I believe, very frankly, sir-- 19 Q Doctor, I 'd like for y o u to look at y o u r report; SO y o u a r e not l o o k i n g at y o u r report} at the Table, sir. SI A I 'm l ooking at t h e -- w h a t t h e b i o s t a t i s t i c i a n h a s S2 listed as her-- the way she has conducted the analyses, sir. S3 At this point in time I cannot tell you whether or not sha 24 h a s u s e d b o t h h i g h and low to c a l c u l a t e her "P " value, bu t 140 1 I believe she did, sir. s Q May I see your report, Doctor? 3 A Sure, by all means. The way she originally 4 estimated. s Q Now, Doctor, she clearly has reference to both 6 above and b e l o w ; does she not, Doctor? 7 A Yss, I think-- so, sir. 0 Q Yss, s h e does; d o e s n 't she, D o c t o r ? 3 A You ware right originally, sir. 1 0 Q Yes, I urns; w a s n 't I, D o c t o r ? 11 A Y s s . 18 Q Now, Doctor, t h e s e s a m e reports, sir, are- m a d s in 13 t h e r e s t o f y o u r f i n a l report; a r e n 't they, s i r ? W i t h 14 reference to the magnesium, the potassium, the phosphorous, 15 t h e chloride, y o u m a k e T a b l e s including and r e p o r t i n g on 16 the laboratory teat results for each of those; don't you, 17 sir? 16 A Yes, sir. 19 Q In e v e r y s i n g l e c o n c e i v a b l e category; d o n 't you, SO sir? 21 A If you mean every single conceivable c a t e g o r y -- 22 Q That you prepared? S3 A Yes, all of the d i f f e r e n t types of Tables. 24 Q A n d y o u r e p o r t c o n s i s t e n t l y b o t h the a b o v e r a n g e 149 1 and below range-- 8 Yes, we do. 3 Q -- valuesj d o n 't you, s i r ? 4 A I think so. 5 0 Vss. Thank you. And, Doctor, these reports that 6 the biostatistician made were done, X take it, at your 7 direction} were they not, air? a A T h e t y p e s of analyses; t h a t is, w h a t t o c o m pare. s Q And the taste to use in the comparison were done to at your direction; w e r e n 't they, s i r ? n A No, all of the tests were analyzed. xe Q E x c u s e me. W o u l d y o u a n s w e r my question, please, 13 s i r ? You instructed, if y o u w a n t e d a t e s t omitted, if y o u 14 believed that it was not important or significant to report 15 \ on a particular teat-- for instance, if the results were 16 below the established laboratory value-- you would have 17 in s t r u c t e d the b i o s t a t i s t i c i a n to not r e p o r t on s o m e t h i n g 10 that was not significant; would you not? 19 A Mo, sir, we d i d not da that. A b s o l u t e l y not. 20 Q Doctor, the-- 21 A She reported all of the teats. She analyzed for 22 all of the tests except the porphyrins. 23 Q And, Doctor, w h a t s h e a n a l y z e d for on a l l the 24 tests war-- 150 1 A She analyzed For-- a Q Excuse ma, Doctor, let me Finish my question. 3 A -- out of range values and means. 4 Q She analyzad the tests that you originally S ordered; did she not, sir? 6 A All of them, yes. 7 Q Sir? 8 A Yes. 3 Q And she analyzed the tests that you said in your 10 preliminary draft were included in the laboratory exami 11 nation j did you not, sir? ia A I b e l i e v e so. 13 Q A n d y o u r e p o r t e d to M o n s a n t o and to o t h e r s w h o 11 would raad it the differences between the ohloracn group 15 and n o n c h l o r a c n a g r o u p F o r t h e s e c i r c u m s t a n c e s ; d i d yo u 15 not, sir? 17 A A n d oth e r c i r c u m s t a n c e s . 18 Q Did yo u not, s i r ? 13 A Yes. Yes, a n d o t h e r c i r c u m s t a n c e s . 20 Q And you reported on the difference between on 21 theae tests for the workers in one department versus the 22 workers in another department; did you not, sir? 23 A Ua did Indeed, sir, yes. 21 0 Now, Doctor, I'd like to move to another subject 151 1 at this tima if we might, and I'd like to turn to the s s u b j e c t t h a t uia-- -that y o u h a v e d i s c u s s e d on d i r e c t e x a m i 3 nation dealing with the formation of dioxins, sir, and how *4 they are f o r m e d a n d w h e r e t h e y a r e formed. Now, Doctor, 15 just o n a q u e s t i o n b a f o r a g e t t o that. V o u m a a n t f o r th a S people who were reading your final report or who would read 7 it to rely upon these results that you reported; did you B not, sir? 9 A If y ou a re t a l k i n g a b o u t t h a -- 110 Q !y q u e s t i o n is, s i r -- V. 11 A Which report are you talking about? IB Q W h a t y o u h a v e c a t e g o r i z e d h e r s as y o u r f inal 13 r e p o r t w h i c h i n c l u d e s t h e s e t e a t r e s u l t s t h a t w e ' v e j u s t 14 discussed. V o u m a a n t for t h a p e o p l e r e a d i n g t h e s e r e p o r t s IS and re a d i n g t h e s e T a b l e s to r e l y u p o n the r e s u l t s thereof; IS did you not, sir? 17 A Yes, sir, sure. IB Q Yes. Now, Doctor, a m o n g o t h e r s -- a n d y o u a r e g o i n g 13 to have to h e l p me w i t h the p r o n u n c i a t i o n o f t h i s m a n -- at eq this c o n f e r e n c e t h a t you a t t e n d e d w a s s o m e o n e by t h e n a m e si of Czuczwa. How do y o u say tha n a m e of t h a t m a n ? 28 A I b e l i e v e it is Czuczwa. 83 0 All right. Let me m a r k it a s an e x h i b i t so w e -- 24 A I d o n 't k n o w h i m sir. 152 1 Q Well, ha was at that conferancaj wasn't ha? a A No, t h a t i s n ' t t h e r e s u l t of any c o n f e r e n c e I 've 3 bean at. 14 Q k n o w i t 's not, b u t t h e a u t h o r w a s a t th e S conference} w a s n 't he, s i r ? D o n 't y o u r e c o g n i z e h i m ? 6 A Which oonfsrsncs? 7 Q O n D i o x i n s in t h e E n v i r o n m e n t t h a t y o u 'v e S discussed earlier? 9 A Ks m i g h t h a v e b e e n a t t h e conference, b u t X d o n 't 10 recall his giving a paper there. And it might be that X 11 d i d n 't -- I d o n ' t r e c a l l h i s g i v i n g a paper. IS Q Doctor, ws went through that book and you said 13 they w e r e all e x p e r t s e x c e p t o n e or two. A n d w a s n 't this 14 person on that book? IS A I d o n 't recall, sir. IS Well, let me r e m i n d y o u a l i t t l e bit. See, t h a t 's 17 the caption Dioxins In The Environment, and he wrote 19 C h a p t e r 7, D o you s e e that, s i r ? 19 A Yes, sir, I see it. 20 D All right. Thank you, Doctor. Doctor, handing 21 you now what's been marked as Plaintiff's Exhibit 1809-- 22 A Thank you, sir. 23 Q T h i s is an a r t i c l e w r i t t e n by the m a n 's n a m e that 24 I c a n 't pron o u n c e . 153 1 Czucatwa and Hltas. 2 Q And they are from the-- 03 U n i v e r s i t y o f Indiana. 4 Q And this article was published in the journal 5 called-- what is that, Doctor-- Environmental Science and S T e c h n o l o p u ? Oh, i t 's by the A m e r i c a n C h e m i c a l S o c i e t y ? 7 A I t 's t h e -- the j o u r n a l is c a l l e d E n v i r o n m e n t a l 0 S,fiAao.fia,.ana J,mhmXaa,u, sir. 9 Q But, i t 's p u b l i s h e d by the A m e r i c a n C h e m i c a l 10 S o c i e t y ? 11 A It is, air. 012 W o u l d y o u c o n s i d e r it an a u t h o r i t a t i v e journal, 13 sir? 14 A For c h e m i s t s , I believe so. 15 Q A n d y o u r e c o g n i z e D o c t o r -- or I d o n 't k n o w if h e ' s 16 a d o c t o r o r not} it d o e s n 't say h e r a - ^ a s at least o n e of 17 tha a u t h o r s t h a t a p p e a r e d at the c o n f e r e n c e that y o u 'v e 10 e a r l i e r d e s c r i b e d ? 19 A Yes, sir. 20 MR. CARR: Offer this Exhibit, your Honor. 21 MR, HE INEMAN: flay Counsel a p p r o a c h the b e n c h ? 22 T H E COURT: Yea. 23 CTha following proceedings were had out of the 24 hearing and in tha presence of the jury.) 154 1 MR. H E INEMANs W h a t 's tha n u m b e r ori i t ? 2 THE COURT: 1809. 3 MR. HEINEMANi Your Honor, I object to the 4 e x h i b i t o n t h e g r o u n d s t h a t i t 's h e a r s a y . I t 'a s i m p l y n o t 5 admissible. 6 THE COURT: Do you have any comment? 7 MR. CARRt Your Honor, uie'v e g o n e all t h r o u g h 6 these things before. 9 T H E COURT: Okay. I t 's a d m i t t e d o v e r o b j e c t i o n . 10 CThe F o l l o w i n g p r o c e e d i n g s w e r e h a d in t h e 11 h e a r i n g a n d p r e s e n c e of the jury.) 12 Q D o c t o r -- 13 M R . CARR: Oh, and your Honor, I think we have, 14 yes, we do have copies to pass to the jury. IS THE COURT: All right. IS CAt t h i s time the d o c u m e n t s w e r e p a s s e d o u t t o 17 the jurors.) 18 MR, HEINEMAN: Excuse me, your Honor. May IS C o u n s e l a p p r o a c h the b e n c h ? SO THE COURT: Ours. SI CThe f o l l o w i n g p r o c e e d i n g s w e r e h a d o u t of t h e 22 hearing and in the presence of the Jury.) S3 MR. HEINEMAN: Your Honor, I would like to object 24 to any testimony or any questioning with respect to this A ' IBS . 1 s 3 4 5 8 7 8 S 10 11 IS 13 14 15 16 17 18 19 50 51 as 23 ,24. article if it is to relate to the manner in which dioxins a r e formed. (1r. C a r r r e p r e s e n t e d t h a t t h i s w i t n e s s c o v e r e d that subject in direct examination. X believe he did not. And this certainly goes beyond the scope of the direct examination of this witness. MR. CARR: This witness said in direct exami nation that dioxins are caused by municipal incineration or s o m e t h i n g of t h a t sort. T h e e x a c t q u o t a I c a n 't r e c a l l right now. But, that*! what this witness alluded to on direct examination. And in addition thereto, the scope of his direct examination is such that dioxins by his state ments are not-- not rampant in the environment, are not caused by chemicals, are not caused/by polychlorinated '* if-' phenols, and the chemical companies are not responsible for w h a t h a s h a p p e n e d to tbtf e n v i r o n m e n t . T h a t 's t h e -- as wel l as the direct reference to the formation of dioxins in the environment. MR. HEINEMANj Well, that is a preposterous m i s statement of the witness' testimony, your H o nor. I object to this document as going beyond the scops of the direct examination. T H E COURT: I t 's w i t h i n t h e scope. O b j e c t i o n is overruled. CThe following proceedings ware had in the 118 1 hearing and presence of the jury.3 a Q Now, Doctor, at the conference that you attended, 3 and for t h a t m a t t e r oth e r c o n f e r e n c e s t h a t y o u 'v e att e n d e d , *i it h a s b e e n i m p o r t a n t in d i s c u s s i n g d i o x i n s t o d i s c o v e r t h e 5 s o u r c e of dioxins; i s n 't t h a t correct, s i r ? 6 8 Yes, sir. 7 Q And it is an important subject to cover for, not 0 just for this csss, but for humanity in general; is it not, 9 sir? 10 A Oh, 1 b e l i e v e so, yes, sir. 11 Q Yea. And, Doctor, i t 's a s u b j e c t t h a t y o u h a v e is c o n s i d e r e d a n d d i s c u s s e d a n d t e s t i f i e d a b o u t in n o t j u s t 13 t h i s case, but ot h e r c a s e s in t h e past; i s n 't t h a t correct, l*i si r ? 11 A I have in at least o n e . 016 Yes. Now, Doctor, t h e h e a d i n g of t h i s r e p o r t is 17 ''E n v i r o n m e n t a l F a t a of C o m b u s t i o n - G e n e r a t e d P o l y c h l o r i 18 nat e d D i o x i n s and F u r a n s " . D o y o u s e e that, s i r ? 19 A Yes, sir. SO Now, that includes the dlbsnzo-furans as well as ei the dioxins; d o e s n 't it, s i r ? ss A Yes, 1 b e l i e v e so. 23 Q A n d w e 've e a r l i e r d i s c u s s e d the d i f f e r e n t i a t i o n 12 *i b e t w e e n those, and w o n 't a s k y o u a q u e s t i o n a b o u t that, 1S7 1 but the abstract here discusses again that-- the abstract of 2 t h e i r s t u d y shouts t h e c o n c l u s i o n t h a t they r e a c h e d by 3 studying the sediments in various places in the northern 4 p a r t of t h e c o u n t r y that, ''E m i s s i o n s of d i o x i n s a n d f u r a n s S has increased greatly since 1940, The historical increase 6 is similar to trends for the production, use, and disposal 7 of chlorinated organic compounds and suggests that chlori 8 nated precursors of dioxins and furans, present in 3 incinerator combustion fuels, may be the main source of the 10 d i o x i n s a n d f u r a n s f o u n d in t h a s e d i m e n t s f r o m the S a g i n a w 11 River a n d Bay a n d L a k e H u r o n . " I s n 't t h a t c o r r e c t l y read, 12 Doctor? 13 A T h a t 's w h a t tha a b s t r a c t reads, yes. 14 Q And, Doctor, on the next page at tha very top of IS tha p a g a w h e n t h e y g e t i n t o t h e f u n d a m e n t a l p o i n t in the IS debate, t h e say, d o they not, sir, that, "PCDQ, t h a t is, 17 p o l y c h l o r i n a t e d - d i b a n s Q - d i o x i n s , a n d PCDF, t h a t 's p o l y 18 chlorinated-dibenzo-furans, may be formed by the cycli19 zation of chlorinated precursors present in the fusl or by 20 the reaction of organic compounds with inorganic chlorine 21 b o t h p r e s e n t in the fusl. It is likely that tha f i r s t 22 m e c h a n i s m is operative; m o d e l p y r o l y s i s e x p e r i m e n t s h a v e S3 shown that PCDD and/or PCDF are formed by pyrolyzing 24 c h l o r i n a t e d p r e c u r s o r s s u c h a s c h l o r o b e n z e n e s , c h l o r o - 159 1 phenols, a n d P C B 's . " I s n 't t h a t correct, s i r ? e 9 T h a t 's w h a t t h i s r e p o r t reads, sir, yes. 3 Q Now, Doctor, in that group they included chloro4 phsnols} have they not, sir? 85 Yes, 1 b e l i e v e t h e y have, sir. 6 0 And, Doctor, we know from the evidence in this 7 case and elsewhere that chlorophenols were involved-- B Monsanto manufactured chlorophenols both at Nitro and at 59 Sauget, I l l i n o i s i s n 't t h a t c o r r e c t ? 10 A T h e y h a v e m a n u f a c t u r e d soma, air, yes. 11 Q And, Doctor, t h e y say t h e s e c h l o r i n a t e d p h e n o l s 12 are precursors to the dioxins and to the furans; do they 13 not, sir ? 14 T H E WITNESS; W o u l d y o u r e p e a t t h e question, 15 p l e a s a ? IB CAt t h i s t i m e t h e p r e v i o u s q u e s t i o n w a s r e a d bac k 17 by t h e c o u r t reporter, a s requested.]) 18 A Yes, they do, sir. 19 Q Now, Doctor, p r e c u r s o r m e a n s go b e f o r e or is t h e r e 20 firsts correct, sir? 21 A Yes. 22 Q So, what they are sayi n g is that the c h l o r o p h a n o l , 23 i t 's f i r s t c h l o r o p h s n o l and t h e n s o m e t h i n g h a p p e n s to it 24 a n d it b e c o m e s t h e d i o x i n s o r t h e furans; i s n 't tha t 153 1 correct, sir? e A No, it would be not dibenzo-furans free the 3 phenols, sir. 4 Q E x c u s e me, D o c t o r . A r e n 't they s a y i n g t h a t in 5 this*-- w h e t h e r y o u a g r e e w i t h it or n o t -- "T h e s e d i o x i n s 6 and/or furana are formed by burning chlorophenols, chloro 7 benzenes, a n d P C B 's "? T h a t 's w h a t p y r e l y z i n g m e a n s , i s n 't B it, s i r ? 3 A Pyrolyzing means to-- 10 Q H e a t u p ? 11 A K s a t up, yss. Pyrol y s i s . 13 Q Sir? 13 A Y e a . ( 14 Q A n d t h a t 's h o w y o u k n o w in t h e c h e m i c a l plant, for IS instance, it is t h e h e a t i n g up o f t h o s e c h l o r i n a t e d p h e n o l s IS that can causa in some instances, not all, in soma 17 i n s t a n c e s t h e f o r m a t i o n of d i o x i n s $ i s n 't t h a t c o r r e c t ? IS A Yes, I believe so. 13 Q And furana, too? SO 'A It d e p e n d s o n t h e level of heat, sir, yes. 21 A n d furans, as w e l l ? se A W i t h r e s p e c t to t h e P C B 's, sir. S3 Q Sir? 34 A O n l y w i t h r e s p e c t to P C B 's, sir, not phenols. 160 ( 1 Q Doctor, these chemists say, do they nbt, sir, in 2 this document that PCDD and the PCDF are farmed by pyraly- 3 zing these chlorinated precursors such as among others 4 chlorophenola? 5 ft Yea, but t h e y -- 6 Q Doctor, 1 take it that you disagree? 7 A No, I don ' t disagree, sir. I 'm o n l y d i s a g r e e i n g a with your interpretation. 8 3 E x c u s e m s , D o c t o r . D o n 't they say t h a t t h e s e 10 d i o x i n s a n d / o r t h e s e f u r a n s a r e f o r m e d by h e a t i n g u p 11 c h l o r o p h e n o l a ? 1 2 ft No, they do not, sir. 13 Q T h e y d o n 't say t h a t ? 14 ft They say that e i t h e r -- -that P C D D or P C D F a r e f o r m e d 15 by pyrolyzing chlorinated precursors such as chloi*o~ 16 benzenes. 17 W h a t 's the n e x t one, D o c t o r ? IB ft P C D D mig h t be r e l a t e d to that. C h l o r i n a t e d 19 p h e n o l s w o u l d p r o d u c e p e r h a p s -- 20 Q E x c u s e me, Doctor. 21 ft -- PCDD; but, only the P C S 'a p r o d u c e t h e P C D F 'a. 2 2 Q Doctor, you s k i p p e d a word there; d i d n 't you, s i r ? 23 In b e t w e e n c h l o r b e n z e n e s and P C B 's, t h e r e 's a n o t h e r w o r d 24 there. 161 1 A Yes, chlorinated phenol. s 0 Chlorophenols, Doctor. 3 A Sura, yes, chlorophenols. 4 Q And these authors eay, do they not, that FCDD 5 and-- 6 A And/or. 7 Yes, Doctor, and/ors d o e s n 't it, s i r ? a A But, w h a t the r e a l l y m e a n is that-'-* s Q Now, Doctor, I 'm n o t a s k i n g y o u w h a t they r e a l l y 10 means I 'm a s king y o u what t h e y say. li A They say e x a c t l y w h a t it says, sir. 12 Q All right, Doctor. 13 A But, y o u a r e m l s i n t e r p r e t t i n g its t h a t 's all. 14 Q Doctor, is the w o r d ''a n d / o r " t h e r e ? IS A Yes, sir. 16 Q And we all k n o w w h a t "and" means; d o n 't we, s i r ? 17 A Yes, sir. 16 Q And when they are talking about PCDO, they are 19 s a y i n g P C D D a n d / D r PCDP are formed} d o n 't they, a i r ? 20 A Right. Right. ei Q They are s a y i n g w h e n y o u p y r o l y z e a c h l o r i n a t e d 2 2 p r e c u r s o r such as c h l o r obenzenes, y o u F o r m P C D D 'S a n d / o r 2 3 Furans; d o n 't they, s ir? 24 A No, sir. 162 1 0 I s n 't that w h a t they a r e saying, D o c t o r ? s 8 No, they are not. 3 0 You d o n 't get t h a t f r o m t h a t sente n c e , D o c t o r ? 4 A No, I d o n 't. S 0 Wall, l e t 's p a s s o n then; I 'm s u r e t h e jur y a n d 6 Court can read it-- 7 A Yes, I think so. 0 Q -- if y o u c a n 't. Doctor, on p a g e 447. 9 A Yes, sir. 10 Q Fi r s t of all, they go t h r o u g h a s i t u a t i o n w h e r e 11 they tell you how they dated their sediments, and there are 1 2 v a r i o u s m e t h o d s that y o u 're a w a r e of, a r e n 't you, Doctor, 13 w h e r e they can tall w h e n a p a r t i c u l a r s e d i m e n t w a s l ayed 14 down in a lake or a river or a bay? 15 A Wall, not be i n g e x p e r t in this field, sir, I am 16 n o t -- I d o n 't feel q u a l i f i e d to c o m m e n t o n t h e a c c u r a c y of 17 this. I t a k a it*-- 18 Q D o c t o r , I 'm not a s k i n g you to c o m m e n t on the 19 a ccuracy of it, D o c t o r -- 20 A I take it at face value. 2 1 Q I 'm a s k i n g you: Do y o u not k n o w a n d do t h e y no t 22 describe, sir, in this document how these sediments can be 23 d a t e d ? The r e are va r i o u s techniques, Doctor, t h a t a r e 24 a v a i l a b l e to d a t e s e d i m e n t s a m p l e s , a r e t h e r e not, a c c o r - .< 163 1 ding to this document? e A Old you say date them? 3 Q Yes. 4 A Like-- 5 To tail whan they mere layad down? B A That's on page 446, sir. 7 Q Yes, it is. 8 A Yas. Yes, this is using radioactive determi 9 nants, sir, yes. 10 Q And, Doctor, on page 447, in the lower right-hand 11 c o r n e r they say that they s h o u l d a d d r e s s t h e o n g o i n g d e b a t e ie r e g a r d i n g 2 , 3 , 7 , 8 - T C D D in c o a l fly ash. D o y o u s e e that, 13 sir? 1*4 A Y e s . IS Q Because there was, has bean, at least you are IB a w a r e of a statement, I t h i n k by D o w C h e m i c a l Company, t hat 17 d i o x i n s got into the a t m o s p h e r e by the b u r n i n g of coal; IB i s n 't that right, s i r ? 19 A I thi n k there is at lea s t one p a p e r a b o u t that, E0 yes. ei Q And this d o c u m e n t a d d r e s s e s that arguments d o e s n ' t es it, sir? They call it a debate; d o n 't t h e y ? 23 A Yes. 24 Q They say that, "No ioomsr of TCDD was detected in v 164 1 these s a m p l e s w i t h a lim i t of d e t e c t i o n of a b o u t 100 p a r t s a par t r i l l i o n " ; d o n 't they, a i r ? They go on to say, "T h i a 3 r e a f f i r m s s i m i l a r f i n d i n g s "-- a n d g i v e t h e c i t a t i o n s -- "a n d 4 suggests that coal combustion is not a significant source 5 of 2,3,7,8-TCDD in the environment." 6 A T h a t 's w h a t t h i s says, air, yes. 7 Q And, Doctor, over on page 443 where they state 8 their various conclusions in their discussion section, they S s t a r t o u t by saying, d o n 't they, sir, that, "Clearly t h e 10 d i o x i n a n d f u r a n inpu t s h a v e c h a n g e d c o n s i d e r a b l y o v e r 11 time; m u c h m o r s w a s d e p o s i t e d s i n c e 1340. It s e e m s likely IS that a m a j o r s o u r c e b e g a n in the 1340s a n d i n c r e a s e d u n t i l 13 tha present time." And then thay pose the question, "What 14 is s u c h a s o u r c e ? " D o n 't they, s ir? 15 A P e r h a p s I 'm not following. Is t h i s on 443, s i r ? 15 0 443, yes. 17 A And-- 10 Q The very first paragraph on that paga. 13 A Oh, I see, yes. SO Q A n d they p o i n t out in the next p a r a g r a p h that the ei s o u r c e o f t h a t d e p o s i t of t h e s e d i o x i n a n d f u r a n s in t h a 22 e n v i r o n m e n t is n o t coal or fly ash, b e c a u s e thay say it is, 23 from thsir dating of their sedimentary dioxins that, "It is 24 obvious that coal use cannot account for the increase in IBS 1 dioxin and Furan concentration since 1340. Indeed, coal 2 u s e h a s b e e n r e l a t i v e l y c o n s t a n t s i n c e 1 3 4 0 . "' D o n 't they 3 say that, sir? 4 A Yes, sir 5 Q And they go on to say that according to the United 6 States Commission Reports that has been published since 19187 , that the c h e m i c a l i ndustry s t a r t e d g r o w i n g g r e a t l y S beginning in 1 9 4 0 s correct, sir? Is that correct, sir? 3 A You are reading again in the-- 10 Q T h e s e c o n d p a r a g r a p h -- well, a c t u a l l y the t h i r d 11 p a r a g r a p h on t h a t page, in the Fir s t column. IS A Third paragraph. 13 Q S t a r t i n g w i t h the words, ''T h e U.S. T a r r i f f C o m m i s 14 sion. " IS A Y e a , o k a y . 16 Q Now, Doctor, as a matter of Fact, the Monsanto 17 Chemical Company at Nitro began their production of these 18 chlorinated phenols and 2,4,3-T-chlorinatad phenol in 1 9 4 8 j 19 did they not, sir? SO A I r e a l l y d o n 't know, sir. 21 Q All right. 22. A I don't know. 23 Q If y o u d o n 't k n o w -- -Doctor, they go on to say 24 that, ''S t a r t i n g at t h i s t i m e " -- that is in 1 9 4 0 -- ''the 186 1 production of chlorinated organic compounds such as 2 chlorobenzenes and chlorophsnola Increased substantially 3 (see Figure 7 In the middle!). These compounds are used In 4 a variety of products, Including building supplies, herbi 5 cides, and packaging. Much of these materials eventually 6 become incorporated in solid wastes," and, "The trend for 7 the production of chloro organic compounds is vary similar 8 to the sedimentary PCBD and PC07 profiles" ; do they not, 8 sir? 10 ft T h a t 's w h a t this p a p e r says, sir. 11 Q A n d t h e y g o on to say, "From these data, w e IS conclude that the input of dioxins and furans to the 13 sedimentary environment is probably due to the combustion 14 of chlorinated organic products present in various wastes. IS These wastes may be municipal wastes from Sagniaw, Bay 18 City, or other urban areas, or they may be industrial 17 wastes from chemical manufacturing taking place in central 18 Michigan"} do they not, sir? 19 A They say that, air. SO Q ftnd they c o n c l u d e finally, " In any case, it is SI c l e a r t h a t t h e h i g h l e v e l s of d i o x i n s and f u r a n s f o u n d in se p r e s e n t l y a c c u m u l a t i n g s e d i m e n t s are not due to the a d v e n t S3 of f i r e " ; i s n 't t h a t correct, s i r ? S4 ft I'm not s u r e I u n d e r s t a n d that, sir. 187 1 Q Sir? 2 A That'a what they say, but I 'm not sura I under 3 stand that, sir. 4 Q Wall, Doctor, you do know that Dow Chemical 5 Company and Monsanto Chemical Company and other chemical 6 companies have urged or argued in public debate, if you 7 will, and in articles published at least by Dow, that the B dioxin in our environment comes not from 2,4,S-T or not 9 from the chlorinated phenols made by others, but comes 10 because of the combustion process? 11 MR. HEINEMAN: Objection, your Honor. I / ia Q You are aware of that; aren't you? 13 MR. HEINEMAN: May Counsel approach the bench? 14 THE COURT j Yea, you may. 15 (The following proceedings ware had out of the 16 hearing and in the presence of tha jury.) 17 MR. HEINEMAN: Your Honor, there is no evidence 18 in this case that Monsanto has testified or has stated that 19 dioxin comes from th combustion of coal. If this is a SO statement by Dow, it is irrelevant to th lawsuit, and I ei object to it. What Dow thinks or doesn't think is totally 22 irrelevant in this case. And there isn't any evidence in 53 this lawsuit that Monsanto has suggested that dioxin is 54 created by the combustion of coal. The advent of fire 188 1 t h e o r y is a Doui theory, a n d t h a t is i r r e l evant. 2 M2. CARR; It is a theory adopted by Dr. Wilson 3 in his testimony in this case when he testified that the 4 accounting for dioxin in the Sturgeon community cams from S fires burning by farmers, fires that they had burned. 6 T h a t 's w h a t Dr. W i l s o n t e s t i f i e d to f o r M o n s a n t o in t h i s 7 case. B THE COURT; The objection is overruled. 9 MR. MASSIF: Wait a minuts, your Honor. Wilson 10 did not t e s t i f y that fire, t h e D o w t h e o r y -- t h a t t h e D o w 11 theo r y r e g a r d i n g firs, t h a t is, b u r n i n g w o o d b u r n i n g s i n c e ie the p r e h i s t o r i c tim e s h a s g e n e r a t e d d ioxins. T h a t 's w h a t 13 t h a t last s e n t e n c e s a y s w h e r e it q u o t a s t h e a d v e n t of fire, 14 is a Dow t h e o r y . M o n s a n t o h a s n s v a r t e s t i f i e d t o t h a t 15 t h eory in t h i s case, e i t h e r W i l s o n o r Roush. I 've b e e n IS h e r s t h r o u g h all of that te s t i m o n y . N o - o n e h a s e ver 17 t e s t i f i e d t h a t we e m b r a c e D o w 's t h e o r y r e g a r d i n g t h e a d v e n t 18 of fire as b e i n g a s o u r c e of d i o x i n s a n d furans. 19 MR. CARR; The c l e a r i m p l i c a t i o n of Dr. W i l s o n 's 20 testimony that tha dioxin came about because of the fire 21 being bur n t by Farmers, a n d in addition, Dr. W i l s o n t e s 22 tifying about municipal incineration, aa did Dr. Roush, 23 bsing the c a u a e of the T C D D in t h e fat t i s s u e F o u n d in 24 v a r i o u s people. J u s t b e c a u s e they h a v e n 't s p e c i f i c a l l y 153 1 Bald, "W e agr a a w i t h D o w 'a t h e o r y " d o a s n *t m e a n t h a t s Monsanto has hot adopted and Monsanto has not argued that 3 dioxins have baan formed by municipal incineration and 4 burning of wood, bacausa that ia exactly what they have 5 said in this cass. 6 MR. MASSIF: Wilson argued that the burning of 7 wood treated with chlorophenols, your Honor. Tha advent of 8 fire means back whan prehistoric men wera burning trees 3 that ware not treated with chlorophenols; it means whan 10 f i r e was invented. W i l s o n said, "If y o u b u r n w o o d t r e a t e d 11 w i t h a c h l o r o p h s n o l " w h i c h t h i s a r t i c l e is saying, is 12 esse n t i a l l y the s a m e thing, a n d t h i s is n o t t h e a d v e n t of 13 fire. W i l s o n w a s s a y i n g if y o u t a k e a log a n d t r e a t it 14 w i t h p s nton and y o u b u r n it, y o u c o u l d g a t P C D D a and PCDFs. IS T h a t 's what W i l s o n said. It w a s not j u s t b u r n i n g a v i r g i n 16 log untreated, w h i c h is w h a t t h i s r e f e r e n c e is to the 17 advent of fira. A n d D o w h a s s a i d t h a t if y o u b u r n IS untreated wood, you c o u l d get F C D O a and PCDFs. M o M o n s a n t o 19 w i tness has e m b r a c e d that t h e o r y in t h i s c o u r t r o o m . 20 MR. CARR: Your Honor, I 'm g l a d to h e a r that. Is 21 it M o n s a n t o 's p o s i t i o n t h a t P C O D s a n d P C D F s a r e F o r m e d by 22 tha b urning of wood t h a t 's b e e n t r e a t e d w i t h c h l o r o n a t e d 23 phenols and not s i mply by b u r n i n g w o o d or m u n i c i p a l i n c i n 24 e r ation w i thout tha c h i o r i n a f a c t o r i n v o l v e d ? 170 1 2 3 H 5. 6 7 8 9 10 11 12 13 Hi IS IS 17 IB 19 20 21 22' 23 2H MR. H E 1NEMANi No. The fact of the matter is that municipal incineration, as the tests have demon strated, can causa the creation of dioxins, not necessarily just from burning treated wood, but from burning other materials, other organic compounds, that hava chlorine a t o m s in them. It d o e s n 't h a v e t o be c h l o r o p h e n o l s ; it c a n be other materials that contain chlorine atoms, that contain hydrocarbons, and that the combustion of that can create dioxins. MR. CARR; Well, wood c o n t a i n s hydrocarbons. So, you are now saying that the burning of hydrocarbons causes dioxin now? MR. MASSIF; No, i t 's not h y d r o c a r b o n s at alls i t 's c h l o r i n e atoms. A n d t h a t 's w h a t W i l s o n w a s saying. Ha did not smbracs the Dow theory. As a matter of Fact, your Honor, I think he laughed whan Mr. Carr referenced the Dow theory. MR. CARR; la t h i s M o n s a n t o 's p o s i t i o n ? MR. NASSIF: Monsanto has never taken a position that embraces this sdvsnt of fire. MR. CARR: No, my q u e s t i o n is; Is it M o n s a n t o 's position that dioxins and furans are formed by the burning of wood that has been treated with chlorinated phenols? MR, HEINEMAN: We h a v e s a i d us ace not g o i n g to > 171 1 a 3 H s' 6 7 8 S 10 11 12 13 1H IS 1b 17 18 19 20 21 22 S3 2 ! torn s u b j e c t t o y o u r e x a m i n a t i o n , Hr. Carr. W e 'v e m a d e o u r objection to your question. T H E COURT*. Y o u r o b j e c t i o n is overruled. CThe following proceedings were bad in the hearing and presence of the jury.) Q Doctor, you do know that in regard to the state ment of the advent of fire by itself and without anything else, you do know that that is the position that Dow Chemical Company has taken publiclyj do you not? A I do not know that, air. Q Y o u d o n 't k n o w t h a t ? All right, Doctor. Wall, l e t 's p a s s on to a n o t h e r e x h i b i t then if we might. Doctor, I h a n d y o u n o w w h a t 's b e e n m a r k e d as P l a i n t i f f 's E x h i b i t 1810 and ask you if you recognize that as Chapter 7 from the book ato^DStJD,..Ib^SQ.li:,!aDmaat that you have previously discussed, and that is an article by-- A The same author. Yes, the same fellow that wa mentioned before. A The same author, okay. Q Is that right, sir? A Yes. Q All right. MR. CARR: O f f e r 18*-- did I g i v e y o u one, Counselor? 172 1 MR. HEINEMAN: No. 2 CAt this time a copy of tha exhibit mas given to 3 o p p o s i n g C o u n s e l .) 4 MR. CARR: Offer 1810 into evidence, if it please 5 the Court. 6 THE COURT: Any objections? 7 8 it. MR. HEINEMAN: Yes, your Honor, if I can look at 3 THE COURT: Sure. 10 MR. HEXNEMAN: May C o u n s e l a p p r o a c h the bench, 11 J u d g e ? is T H E COURT: Yes, y o u may. 13 (The F o l l o w i n g p r o c e e d i n g s w e r e h a d o u t o f t h e 14 hearing and in the presence of tha Jury.) IS MR. HEINEMAN: Judge, me w o u l d o b j e c t to t h i s 16 d o c u m e n t a s b e i n g hearsay. T h e r e h a s b e e n -- in addition, 17 there has been no foundation layad with respect to this 18 witness, and it goes beyond the scope of the direct exami 18 n a t i o n of t h i s witness, and it has n o t h i n g to do w i t h w h a t SO t h i s w i t n e s s h a s b e e n tes t i f y i n g a b o u t on h i s t w o d a y s o f SI direct. It d o e s n 't e v e n have a n y t h i n g to do w i t h w h a t h e 's 2H been testifying about in his previous sixteen and a half S3 d a y s of c r o s s e x a m i n a t i o n by Mr. Carr., A n d i t 's hearsay, 24 u n a u t h e n t i c a t e d . We o b j s c t to it. 173 1 MR. CARR: W e 've b e a n t h r o u g h this, y o u r Honor. 2 It is a u t h e n t i c a t e d . H e ' s r e c o g n i z e d it. H e 'a a c k n o w 3 ledged it. When we went through this book, he acknowledged 4 that everything in it was authoritative with the exception 5 of t h e o n e or t w o authors. H a 's a l ready a c k n o w l e d g e d t h e 6 authenticity of the book and as to the expertise of the 7 authors. 8 MR. H E 1NEMAN: T h a t 's not true, Judge. I 3 remember where there were a number of authors that he said 10 he d i d n 't e v e n k n o w a n d t h e r e w e r e s o m e he s a i d w e r e no t 11 a u t h o r i t a t i v e . 18 T H E COURT: H e listed the o n e s that w e r e n 't 13 a u t h o r i t i e s , a n d t h e s e two w e r e n 't on there. O b j e c t i o n is 14 o v e r r u l e d . It is a d m i t t e d o v e r objection. A n d it ia 15 w i t h i n the scope. 18 (The f o l l o w i n g p r o c e e d i n g s w e r e had in th e 17 h e a r i n g a n d p r e s e n c e of the Jury,? 18 MR. CARR: We have c o p i e s for the jury. 13 T H E COURT: P a s s t h e m out. SO (At t h i s t i m e the d o c u m e n t s w e r e p a s s e d o u t to SI t h e j u r o r s . > 82 Q Doctor, t h i s a r t i c l e t h a t w e 'vs p r e v i o u s l y 583 identified, y o u of c o u r s e have read it b e f o r e h a v e y o u 24 n o t ? 174 1 8 Z have perused it before, yes, sir. 2 Q A n d a s a m a t t e r of fact, y o u usera t h e r e w h a n it 3 was presented; w e r e n 't you, s i r ? 4 A When a paper like this was presented, sir. 5 0 And, Doctor, the article discusses the same 6 subject that the article we just went through discussed, /' 7 but it is a broader field; is it not, sir? 8 A Yea, 1 b e l i e v e i t 's d i s c u s s e d m o r e t h o r o u g h l y t h a n 9 the other paper, sir, 10 Q T h e e a r l i e r paper, by t h e way, w a s p u b l i s h e d in 11 1984; was it not, Doctor? The 1803 article? 12 A 1904. 13 Q Yes. Doctor, this article reviews not just their 14 o w n work t h a t they did, t h e i r o w n o r i g i n a l r e s e a r c h work, 15 but the work of many others; does it not, sir? 15 A Yes, I b e l i e v e it does. 17 Q A n d they a l s o d i d it, d i d t h e i r work, by a n a l y z i n g 18 s e d i m e n t s in v a r i o u s p l a c e s in t h e G r e a t Lakes, S i s k i w i t 19 Lake, and in addition in Lake Zurich in Switzerland; did eo they not, s i r ? They d e s c r i b e t h a t in the t h i r d p a r a g r a p h , 21 Doctor, of t h e i r i n t r o d u c t i o n o n t h e fir s t page. 22 A Yes. Yes, sir. 23 Q A n d they g i v e in t h e i r i n t r o d u c t i o n a t l e a s t o n e 84 of their c o n c l u s i o n s w h e r e they say, "We f i n d f r o m looking-v 17S 1 at these sediment cores, we Find a post-1940 increase in 2 the sedimentary PCDD and PCDF which is related to the 3 production and subsequent incineration of chlorinated 4 a r o m a t i c c h e m i c a l s '*} d o n 't they, s i r ? S MR. HEINEMAN: I 'm sorry, w h a t p a g e ? 6 MR, CARR: Mery First page, Counselor, third 7 paragraph, last sentence. 8 MR. HEINEMAN: Thank you. 9 Q Did you acknowledge-- 10 A Yes, t h a t 's w h a t t h e a u t h o r s report, sir. 11 3 Yea. And o v a r o n p a g e 07, t h e y d i s c u s s t h e -- in 18 the last paragraph on that page, they discuss the Fact that 13 the importance of elevated temperatures For the destruction 1*4 oF P C C O a n d P C D F h a s o n l y r e c e n t l y b e e n a p p r e c i a t e d a n d 15 they go on to say that, to conclude, that incinerators that 16 are not operated under the most stringent conditions could 17 indeed release large a m o unts oF PCCO and PCDF into the 16 environment and that chemical waste incineration is an 19 Important source oF dioxins and furans; correct? S O A T h a t 's w h a t t h e r e p o r t reads. 21 And, Doctor, on the next page, the second to last 82 sentence on that page, they make the same conclusion that 23 chemical-- and well,`in this case they talk about the 2*4 b u r n i n g of c h e m i c a l p r o d u c t s as well a s m u n i c i p a l w a s t e ..176 1 incineration; don't they, sir? They make the conclusion 2 that chemical and municipal waste incineration are the 3 m a j o r c o m b u s t i o n s o u r c e s o f d i o x i n s a n d furansj d o n 't they, 4 a ir? 5 A T h a t 's o n e s e n t e n c e w h i c h is in here, yes. 5 Q And, Doctor, they stats on ths next page with 7 regard to air particulates that the highest level of QCDD-- 6 and t h a t 's a p a r t i c u l a r F o r m of dioxin; is it not, s i r ? 3 A It is indeed, sir. And I think one has to d i ffer 10 e n t i a t e it F r o m TCCD. XX Q Y e s . is A I t 's ths o c t o c h l o r . 13 Y e s . 1*4 A The octDchlor. 15 0 1 u n d e r s t a n d that, D o ctor. A n d i t 's d i f f e r e n t i IB ated F r o m -- t h a t 's f o u r r a t h e r t h a n -- t h a t 's e i g h t r a t h e r 17 than Four chlorine molecules; is it not? IB A T h a t 's true, sir. 19 Q And the highest level of that was found in SO Midland, Michigan, and t h a t su g g e s t e d , a c c o r d i n g t o the SI a r t i c l e that they are citing, t h a t c o m b u s t i o n of c h e m i c a l se w a s t e s is an i m p o r t a n t local s o u r c e of b o t h p o l y c h l o r o - S3 nated-dibsnzo-dioxins and furane$ do they not, sir? 2*1 A I 'm not s u r e t h a t I f o l l o w y o u r citation. I 'm 177 1 looking on page 89. s Q The very same sen t e n c e , D octor, on page @9. 3 A Oh, S3. Y o u a r e a h e a d o f me, sir. I 'm sorry, 1 4 was on SB. 5 Q They say u n d e r t h e p a r a g r a p h ''Air P a r t i c u l a t e s " 6 includes, the highest level of OCDD is found in Midland, 7 Michigan and that this suggests that combustion of chemical B wastes is an important local source of PCDD and PCBF; is 9 that correct, sir? 10 A That would suggest actually that-- 1 1 Q Doctor, my q u e s t i o n is: T h i s is w h a t they say; is IS it not, s i r ? 13 A That is what this report reads, yes. 14 Q And, Doctor, Midland, M i c h i g a n is t h e l o c a t i o n of 15 a Dow Chemical plant; is it not, sir? 16 A I b e l i e v e it is, sir. 17 Q Doctor, on page 81 there is a Table, a figure, in IB w h i c h they a n a l y s e t h e air p a r t i c u l a t e s for d i o x i n s in 19 v a r i o u s c o m m u n i t i e s . Do y o u s e a that, s i r ? 20 A Is it 31 or 81? ei Q I t 's 91. ee A N i n e t y - o n e . 23 Q Did I say 91? 24 A Yes. 170 1 Q I 'm sorry, I t 's d i f f i c u l t to r o a d t h a t print. a That is 91s is it not, sir? 3 ft Yes, sir. 4 Q A n d they h a v e i n c l u d e d the r e St. Louis; h a v e n 't 5 they, sir? Do you sea that, sir, on that Table? 6 ft Yes, t h e y i n c l u d e only t h e s e v e n c a r b o n and t h e 7 eight-- I mean, the seven chlorine and eight chlorine. 0 Q Doctor, my q u e s t i o n is: T h e y i n c l u d e St. Louis, 3 do they not, sir, in that table? 1 0 ft Ie t h a t St. L o u i s or E a s t St. L o u i s ? T h e n 's St. 1 1 Louis, I 'm sorry. ie ft is Chicago; S is Detroit; C is Midland; D is 13 Dow; and E is St. Louis? 14 ft Yes. IS ME. CARR: C o u l d I h a v e tha n e x t m a r k e d 1810ft, 15 please? 17 Q Now, Doctor, ie 1810ft a p r o p e r b l o w - u p of tha 10 Figure S that appears in article 1010-- Exhlbit 1810? 19 ft Yes, it is. 20 MR. CARR: D f f s r 1810A into evidence, if it 21 please the Court. 22 MR. H E I N E M A N : S a m s objection, Y o u r H o n o r -- 23 THE COURT: Same ruling. 24 MR. HEINEMAN: -- with respect to tha 1B10. 179 1 Q Now, Doctor, there is letters under, For the St. a Louis, various symbols) is there not, sir? The ones ending 3 in F standing For Furans, the ones that end in the D stands 4 For dioxin; correct, sir? 5 A Z believe so. 6 Q All right. And TCDD is one oF the categories 7 under there; is there not, sir? 8 A It is, but t h e r e 's n o t h i n g u n d e r TCDD. T h e r e 's 9 none Found. 1 0 Q I 'm s o r r y ? 11 A No TCDD is Found, sir. IS Q T h a t 's correct, sir. T h a n k you. 13 A T h a t 's important, sir. 14 Q Yes, I a g r e e w i t h you. And, Doctor, t h e n e x t 15 p a g e '-- t h a t is, no T C D D w a s F o u n d in t h e a i r in St. Louis; 18 correct, s i r ? 17 A Yes, a c c o r d i n g to t h e s e authors, sir. 18 Q Now, Doctor, the n e x t p a g e d e a l s w i t h t h e F i n d i n g 19 oF h i g h l e v e l s again of octachiorodibenzo-*P~dioxin a t SO Midland, Michigan which was close to ths chemical waste 21 source; correct, sir? 82 A I d o n 't k n o w w h e t h e r it w a s c l o s e to it. S3 Q Doctor, t h i s is w h a t they say; is it not, s i r ? 24 A Yas, I 'm sorry, t h e y do say it. 180 1 Q And they state there, sir, that, "Dioxins are also B found in rural locations such as Saylord, Michigan sug 3 gesting that atmospheric transport may carry combustion *i p a r t i c u l a t e s Cuiith the i r load of p o l y c h l o r o d l b e n z o - d i o x i n 5 and polychlorodibenao-furansJ to remote areas." Correct, e sir? 7 A Tbat-hr w h a t this--- t h a t 's t h e way t h i s r e p o r t 8 reads, sir. 9 Q And, Doctor, on the next page, 33, t h e r e is 10 another Table for sediments in Lake Huron, Lake Michigan, 1 1 S i s k l w i t Lake, and Lake Zurich; i s n 't that correct, s i r ? IS A T h a t is correct, sir. 13 Q And, Doctor, they find in there Aquatic Sediments 14 section that the average concentration of ootachlorodi- 15 b e n z o - d i o x i n in L a k e Hur o n and in L a k e M i c h i g a n a r e equal, 15 and they conclude From that that it suggests to them that 17 atmospheric transport is the common source of dioxins and 18 furans to both areas; do thsy not, sir? 13 A T h a t 's how this r e p o r t reads, sir. SO Doctor, Lake S i s k i w i t t h e y are t a l k i n g a b o u t t h e r e SI in the e a r l i e r part of that, paragraph. They a l s o h a v e a SS T a b l e t h e r e s h o w i n g the s e d i m e n t s at S i s k i w i t Lake, T h a t S 3 is a lake t h a t 's on an island in the m i d d l e o f o n e o f t h e 24 B r s a t Lakes, is it not, sir, w h e r e it has no f a r m i n g a n d no. * 181 1 way for water to get to it other than From the atmosphere? a A I really don't know, sir. 3 Q Y o u d o n 't k n o w t h a t ? 4 A No, I d o n 't. S Q Now, Doctor, it will tall you on tha next page. B A Okay. 7 Where they have a table there showing that tha 8 tatrachlorodibanzo^P-dipxin is found in Siskiwit Lakes 9 d o e s n 't it, s i r ? Do y o u s e e t h a t table, sir, t h a t the y 10 have the TCDD? 1 1 A A r e y o u r e f e r r i n g to F i g u r e 9, s i r ? 12 Q F i g u r e S, yes. 13 A T h a t 's a figure, air. Okay. 14 Q It dem o n s t r a t e s that t e t r a c h l o r o d i b e n z o - P - d i o x i n IS was found in the sediment in Siskiwit Lake? IS A H o w muoh, s i r ? I t 's very small, though, 17 Q Doctor, w h a t my q u e s t i o n is t o y o u is: It d o e s IB s h o w that it w a s f o u n d therej d o e s n 't it, s i r ? 19 A At least o n e of t h e -- I d o n 't k n o w w h e t h e r t h i s is 20 isomar specific though. ei Q Doctor, they a r e n o t t r y i n g to b e i s o m a r specific,* 22 they are describing it as tetrachlorodibenzo-P-dioxins 23 a r e n 't they, sir ? 24 A They report it as TCDD. 188 1 Q And that stands For tstrachlorDdibenzD-P-diaxin; a d o e s n 't it? 3 A Yes, sir. 4 Q And, Doctor, they go on to say that, in the body 5 of tha report, that, in the next paragraph relating to the 6 paragraph--the sentence that ended on the preceding page 7 that me just read that "The Siskiwit take sediment provides 8 useful support For this hypothesis. Siskiwit take is a 9 lake on Isle Royals, a wilderness island in take Superior." 10 Now, w i l d e r n e s s m e a n s t h e r e 's no p e o p l e there; i t 's w i l d 11 territory; correct, s i r ? IS A Well, it m i g h t m e a n t h a t p e o p l e d o n 't h a v e r e s i 13 dences there. That's what it might mean. 14 Q Well, Doctor, does wilderness mean to you that it IS is a w i l d t e r r i t o r y ? S u r e l y w e d o n 't w a n t t o g e t into a n 16 argument on the meaning of wilderness at this late hour. 17 A No, we w o n 't a r g u e a b o u t that, sir. 18 Q And, Doctor, it g o e s o n t o say, "There is no F l o w 19 of water from Lake Superior to Siskiwit Lake, so the only 80 mechanism by which dioxins and furans can reach this area 81 is by a t m o s p h e r i c t r a n s p o r t . " I s n 't t h a t correct, s i r ? 88 A T h a t 's h o w the r e p o r t reads, sir. 23 Q Now, Doctor, they go on to say than that this fact 84 that they Found these dioxins and Furans in Siskiwit Lake 183 1 suggest that atmospheric transport of combustion particu lates was the major source of dioxins end Furans found in 3 these locations of the Greet takes; correct, sir? 4 A That's how the report reads, sir. 5 Q Now, Doctor, the conclusion that goo can reach 6 f r o m t h a t is t h a t t h e s e d i m e n t t h a t 's in t h e S r e a t L a k e s 7 did not get contaminated with dioxin 2,4,5-T or 2,4-D in B any other method other than the transporting of particu 9 lates in the air; isn't that correct, sir? 10 A Presumably, yes. 11 Q And, Doctor, they g o on to, on the next page, to 12 discuss the historical record of dioxins and furans in 13 s e d i m e n t cores; d o n 't they, s i r ? 14 A T h a t 's t h e s u b j e c t t i t l e a t t h e top of the page, 15 sir, yes. IB Q And they F i n d -- t h e y p o s e the q u e s t i o n -- they p o s e 17 t h r e e q u e s tions. A n d o n e of t h e q u e s t i o n s is, "Is c o a l a IB maj o r s o u r c e ? " A n d w e 'v e a n s w e r e d t h a t -- t h e y 've a n s w e r e d 19 that e a r l i e r that i t 's n o t a m a j o r source. And t h e n t h e y 20 go on to p o s e the question, "C a n wa f i n d any e v i d e n c e t h a t 21 PCDD and PCDF are formed in significant amounts only when 22 combustion fuels contain chlorinated precursor compounds 23 p r e s e n t in c h e m i c a l and m u n i c i p a l w a s t e s ? " I s n 't t h a t a l s o 24 correct, sir ? 1B4 . 1 A That's what these authors contend, sir. s Q Doctor, do you concede that we are talking about 3 something other than the conclusions reached by these 4 authors? We are talking about conclusions reached by these 5 authors in their own studies and in the analysis of studies 6 by others; aren't we, sir? 7 A No, sir. They leave out coal studies of Professor B Rappe. S Q Doctor, don't they reference, oh, perhaps 10 or 15 10 articles written by others including Bumb, Buser, Buser, 11 Cavallaro-- IS A Yes, sir. 13 Chui, Kelts, Liberti, Liberti, Lustsnhouwer, 14 Nestrick, OliB, and Dlie, and Stalling, and Tiernan? 15 A A very incomplete reference list, sir. IB Doctor, my question is: Do they not cite these as 17 sources for their work? And, Doctor, did you say that they 10 left somebody out? 13 A Yes, I believe that they have left Otto Hutzinger 20 out. Hutzinger has made a study of TODD and-- 21 Q Doctor, Hutzinger is there. Did you say they left 22 out Rappe? 23 A Well, h e 's in there-- 24 Hutzinger's in there a couple of times; is he not? 185 1 A Yea, but they left out his-- 2 Q Excuse me, Do c t o r -- 3 A Thay left out his reference to coal, air, 4 Q Doctor, do they d i s c u s s H u t z i n g e r 's w o r k o n t h e 5 page numbered S3? Do they cite it as a reference or book 6 they edited, air? 7 A They cite it-- the cite only the incinerator B reference, b u t they d o n 't c i t e h i s coal. 3 Q Doctor, they cite the book} do they not, sir? 10 A Yea, air, they c i t e the book. 11 Q And, Doctor, the b o o k d e a l s w i t h c h l o r o n a t e d 12 dioxins and related compounds' impact on the environ 13 ment} does it not, sir? 14 A T h a t 's q u i t e true, air. IS Q And, Doctor, they a l s o h a v e on a r t i c l e w r i t t e n by IS Hutzlnger in 1983, "Formation and fate of FCDD and PCDF 17 from combustion processes" printed in Chsmosphere? 10 A They do, sir. IS Q And, Doctor, would not that-- and did not that 20 article Include a discussion of whether or not TCDOs or 81 P C D D s a r e f o r m e d in the c o m b u s t i o n of coal? 82 A T h a t ar t i c l e did, b u t they d o n 't q u o t e it, S3 A E x c u s e me, Doctor. Ply q u e s t i o n is.* Do they no t 24 review and have they not cited as references these articles 186 1 that you said a moment ago they didn't cite? s A Well, they didn't cite his-- 3 Excuse me, Doctor. Would you answer my question, 4 please? 5 A Yes, I will. 6 Q Do they not refer to these articles? 7 A The references are thers, yes. 8 Doctor, do they not also refer to articles by 9 Buser and Rappe? 10 A Yes, sir, they do, sir. 11 Q All right. Now, Doctor, back to the question I 12 was asking you, sir. -The-- 13 THE COURT: Doctor, this isn't a joke. 14 THE WITNESS: Yes, sir. 15 THE COURT: Please treat it with some respect. IB THE WITNESS: I'm sorry. 17 THE COURT: Bo ahead, Mr. Carr. IB Doctor, they conclude-- 19 MR. HEINEMAN: Excuse me. Your Honor, may 20 Counsel approach the bench? 21 THE COURT: Yes, you may. 22 CThe fallowing proceedings were had out of the 23 hearing and in the presence of the jury .3 24 MR. HEINEMAN: Your Honor, I object to that 187 1 statement you just made to the witness, IF the witness 2 wants to smile or laugh, he certainly has that right. And 3 I may disagree with you as to whether this is a joke, and 4 the witness may too, and I think that goes entirely beyond 3 the province of this Court. And again, your Honor, your B a r e g i v i n g -- y o u a r e l e n d i n g I m p o r t a n c e t o w h a t Hr. C a r r is- 7 doing-on behalf of the plaintiffs and you are influencing a the Jury in that respect. 3 THE COURT: That la completely baseless, and that 10 is c o m p l e t e l y opposite. T h i s w i t n e s s t h r o u g h o u t t h e a f t e r 11 n o o n h a s b e e n laughing a n d c h u c k l i n g a t q u e s t i o n s . H e h a s 12 b e e n lau g h i n g a n d c h u c k l i n g at ex c h a n g e s . H e h a s b e e n 13 t r e a t i n g t h i s like a j o k e w h i c h is w h a t h e 's t r y i n g t o m a k e 14 it t u r n into by his d i s o b e y a n c e o f t h i s C o u r t 's o r ders. I 15 h a v e the rig h t to see that the d e c o r of t h i s c o u r t is 16 pro p e r l y o b s e r v e d to the e x t e n t t h a t it is p o s s i b l e w i t h 17 C o unsel a n d w i t n e s s e s a n d t h i s p o i n t in time. A n d t h e w a y 16 that I c h o s e to d o it at this p o i n t in t i m e is e n t i r e l y 19 p r oper and in no way a f f e c t s e i t h e r of y o u r p a r t i e s as far eo as that is concerned. 21 MR, CARR: Y o u r Honor, may I a l s o s t a t e f o r th e 22 r e c o r d that the r e is more t h a n o n e way of c o m m u n i c a t i n g t o 23 a Jury. You can c o m m u n i c a t e by the f a c i a l e x p r e s s i o n , y o u 24 can c o m m u n i c a t e by s h aking your head, y o u c a n c o m m u n i c a t e 188 1 by laughing, none of which appears in the record, none of e which can be seen by the Appellate Court, and which can 3 c o m m u n i c a t e stron g l y . He c a n eay "y a e " w i t h h i s m o u t h tha t 4 appears in the record and shake his head no. He can give a 5 response that appears to be in ths record an appropriate 6 response but then laugh at it to the jury and communicate 7 to the Jury tha t he thinks it's ridiculous, it i a f o r m a of communication that he has undertaken a number of times, a not Just in this instance, but a number of times, to negate 10 the e f f e c t of the c r o s s e x a m i n a t i o n , to n e g a t e t h i s s w o r n li a n s w e r he gives. He is a c o m m u n i c a t e r a n d h a s b e e n c o m m u n is i c ating . A n d I b e g t h s C o u r t t o c o n t i n u e to r e s t r a i n ths 13 man f r o m i m p r o p e r l y c o m m u n i c a t i n g t o t h s J u r y o u t s i d e o f 14 the record of the courtroom. 15 MR. HEXNEMAN: Y o u r Honor, if Mr. C a r r o b s e r v e s 16 something that he disagrees with, then he can ask the 17 w i t n e s s a b o u t it. W h a t I'm o b j e c t i n g -- 18 MR. CARR: I d i d n 't o b s e r v e it; I w a s r e a d i n g the 19 d o c u m e n t . so MR. HEXNEMAN: Well, e x c u s e me, I 'm s o r r y y o u 21 w e r e not observant. W h a t I am saying, y o u r Honor, is y o u 22 took it upon yourself, Judge, to do this without any 23 question, w i t h o u t any r e q u e s t -- 24 THE COURT: I m o s t c e r t a i n l y did. laa 1 MR, HEINEMAN: And I might note for th Court e t h a t y o u s u r e d i d n 't d o t h a t w h e n Or. C a r n o w w a s b e i n g 3 e x a m i n e d . A n d I o b j e c t t o w h a t y o u 're d o i n g now. 4 THE COURT: Dr. Carnow did not do what this 5 witness did. 6 MR. HEZNEMAN: Oh, he did it all the time. 7 T H E COURT: Now, y o u d o n 't i n t e r r u p t me. Dr, e C a m o w did not do what this witness is doing in that kind 3 of a joking, that kind of a laughing. When there was 10 l a u g h t e r w h e n h e w a s o n t h e stand, it w a s b e c a u s e of a 11 m u t u a l J o k e of t h i n g s t h a t h a p p e n e d in the courtroom, a 12 couple of which were at my expense, and X laughed as well 13 as a n y o n e e l s e did. T h a t t y p e of laugh is a d i s r e s p e c t f u l 14 a n d c o m t e m p t u o u s type, a n d I d o n 't h a v e to t o l e r a t e it, IS w h e t h e r a n y o f y o u g e n t l e m e n c h o o s e to b r i n g it to my IS a t t e n t i o n or not. If I o b s e r v e it, I c a n do s o m e t h i n g 17 a b o u t it, w h e t h e r e i t h e r of y o u gentlemen, b o t h of y o u 18 g e n t lemen, o r n e i t h e r of y o u g e n t l e m e n a s k ms t o d o 13 s o m e t h i n g a b o u t it. I n o t e t h a t i t 's ab o u t e i g h t m i n u t e s 2 0 to. I t h i n k w e will b r e a k at t h i s p o i n t in time. W e 'll 21 t a k e a c o u p l e m i n u t e s ' b r e a k a n d t h e n we will f i n i s h the 22 discussion we were having before in chambers. 23 MR. CARR: Okay, fine, 24 CThe f o l l o w i n g p r o c e e d i n g s w o r e h a d in th e * 190 1 hearing and presence of the Jury.} 2 THE COURT: Ladies and gentlemen, us are going to 3 end for the dag at this point in time. 1 uould remind you 4 in this uee k e n d break that you are not to read, listen to, 5 or uatch anything about this case in particular or the B subject matter in general in any of the media, print, or 7 e l e c t r o n i c . W e 'll s t a r t a g a i n at 9 : 3 0 Mond a y morning. 8 Have a good safe ueekend. Court is adjourned. 9 CThe follouihg proceedings uere had in chambers 10 o u t of t h e h e a r i n g a n d p r e s e n c e of the jury at 5 p.m.) 11 T H E COURT: All right. 12 MR. CRAUEN: Judge, us a r e back on t h e q u e s t i o n 13 of interrupting-- 14 THE COURT: Right. Had you finished your 15 p r e s e n t a t i o n ? IB MR. CARR: Yes. I h a d finished, I thought. 17 MR. CRAUEN: I had assumed so. 10 MR. CARR: Yes. And I thought you had started 19 already. Maybe n o t . 2 0 MR. CRAUEN: No, I h a d n ' t started. Ule are 21 p r e p a r e d to f u r n i s h if the C o u r t t h i n k s it's necessary, a 22 certificate from a doctor saying that it is unuise uith 23 s o m e o n e uho is 73 y e a r s old and has a heart c o n d i t i o n to 24 undergo this kind of stress. One only has to sit and 191 1 listen to something that happened In this courtroom this a afternoon. It is Just clear stalling having this witness 3 s i t t h e r e a n d r e a d exibits, " D o e s n 't it say t h i s ? " a n d 1 ''D o e s n 't it say t h a t ? " T h a t 's b e e n goi n g on f o r d a y s t h a t 5 I 've w i t n e s s e d . T h i s is j u s t h o l d i n g a w i t n e s s h o s t a g e 6 t r y i n g to m a k e h i m c o m p l y w i t h Mr. C a r r 's a b s o l u t e p r e c o n 7 ceived notion that everyone has to use his same kind of B words. This is just more than this witness can endure, and 9 we want this witness excused from the stand, and he will 10 c o m e b a c k a n d Hr. C a r r c a n r e s u m e h i s cro s s exa m i n a t i o n . 11 But, we w a n t h i m e x c u s e d as of today and start w i t h s o m e IB thing else Monday. Us have the request for voir dire, and 13 I have some kind of confidence that it will be allowed; and 14 we could spend Monday on voir dire of witnesses, Tuesday is 15 no court, and we have a witness ready to come in on Wednes 15 day . A n d I h a v e to say I 'v e . b e e n b a c k here a lot o n 17 Mot i o n s . T h e only t i m e w e 've ever g o t t e n a n y t h i n g is w h e n 18 Mr. Carr agrees. Ue can disagree, and he wins. And, 19 Judge, I h a v e b e e n d o w n h e r e on I d o n 't k n o w how man y BO times, and I have heard one objection by Mr. Heineman or ei Mr. M u s g r a v e s u s t ained. I a l m o s t fell out of the c h a i r SB yesterday when one was sustained. And we are in that kind S 3 of a thing. But, I 'm t e l l i n g this Cou r t that t h i s w i t n e s s S4 is exh a u s t e d . I 'm t e l l i n g t h i s Cou r t that Mr. C a r r is \ 198 1 abusing this witness, and no fair reading of the transcript e or mors appropriately no fair listening to the taps mill 3 tall any f a i r - m i n d e d p e r s o n t h a t h e 's d o i n g a n y t h i n g an d 4 everything that he can to harass, intimidate, and abuse 5 this witness. And the witness has to have a break. He 6 s i m p l y has to h a v e a break. A n d I 'm a l s o s u g g e s t i n g t h a t 7 use s h o u l d n 't h a v e to go r u n n i n g up to r e v i e w i n g c o u r t s 8 asking for some kind of relief in these kind of indica 9 tions when there is a compelling nsed for this kind of 10 r e l i e f on the witness. UJe a l s o h a v e to prepare, a n d fir. 11 C a r r is a l w a y s s a y i n g he d o e s n 't have time, b u t we h a v e to IS prepare the affidavits that-- Mr. Heineman and Mr. Mus13 gravs-- with reference to the matter that developed last 14 night which we consider to be very serious. You said you 15 were going to consider it as a Motion to Re-examine that. IB I thi n k the C o u r t is g o i n g to w a n t to g i v e t h a t s o m e ver y 17 serious attention, and we need a few days to do that, so 18 d o e s Mr. Carr. T h a t 's a c o m p e l l i n g m a t t e r o f i n t e r e s t to 19 all of us, and ye t you are forc i n g us to go a h e a d w i t h a 80 trial with a juror with a situation where we think there 81 are very serious impediments to this kind of procedure. 88 THE COURT: I d o n 't w a n t to r e a r g u e t h a t Motion. S3 MR. CRAUEN: I know. I 'm J u s t s a y i n g w h a t w e a n 84 do with the time. 193 1 THE COURTs Okay. 8 MR. CRAUENs It 9sama to ms that we ara entitled 3 to a break. Ule a r e e n t i t l e d t o let t h i s w i t n e s s t a k e s o m e 4 time off and recouperate and get out from under this kind 5 of stress. Now, who wants the responsibility of this kind 6 of pounding of a witness for this-- ws would be going on-- 7 the 10th of April s t a r t s h i s t h i r d month. A n d t h a t 's j u s t 8 u nbelievable. And I c a n 't b e l i e v e t h a t Rex is o p p o s i n g it, 9 but he is o pposing it. 10 M R . CARR: B e l i e v e it. 11 MR. CRAUEN: A n d I u n d e r s t a n d h i s b a t t i n g IS average. But, I 'm s u g g e s t i n g t h i s is o n e w e w a n t t o win. 13 A n d I 'm s u g g e s t i n g we w a n t t h i s w i t n e s s t o g e t s o m e rest. 14 And I 'm s u g g e s t i n g t h a t n o t to d o s o is a c l e a r a b u s e of 15 discretion. 16 MR. CARR: If I might respond to the remarks of 17 Counsel. T h e r e 's a b o u t t h r e e s u b j e c t s t h a t he t o u c h e d u p o n IB rath e r t h a n the o n e t h e C o u r t a s k e d f o r , a n d I 'm c o n 19 strained to respond to at least one of them if not all SO three. His suggestion that this Court has bean sustaining SI my o b j e c t i o n s and o v e r r u l i n g t h e i r o b j e c t i o n s i m p l i e s t h a t ss this C o u r t is not a c t i n g in a J u d i c i a l a n d f a i r h a n d e d a n d 23 Fair manner, and q u i t e frankly, I t h i n k t h a t 's a s e r i o u s 24 charge-- implication-- on the part of Judge Craven to make 194 1 about this Court, because the clear implication Is there, a and h e 's put it t h e r e b e c a u s e h e c o n t e m p l a t e s a p p a r e n t l y 3 this record to go up on another supervised order, and he 4 put it there for a purpose something like Gobles, 1 / 5 suppose. If you make a c h a r g e o f t e n e n o u g h and s trong / 6 e n o u g h a n d loudly enough, y o u 'll f i n d p e o p l e t h a t m ill 7 b e lieve it. And t h a t 's a p p a r e n t l y w h a t h e 's o p e r a t i n g on. B r perhaps it could be because of ignorance, because he has 3 not been in a courtroom defending a lawsuit before and 10 pe r h a p s he h a s n 't t r i e d m a n y c a s e s a n d t h a t h e 's s p e a k i n g 11 f r o m ignorance. If he is, I 'll f o r g i v e him. IS MR. CRAUEN: I 'm g o i n g to i n t e r r u p t you. 13 MR. CARRs I 'll f o r g i v e y o u of that. 14 MR. CRAUEN: May I interrupt Just a minute? Just 15 a minute, please. 15 THE COURT: Y o u 'll g e t y o u r chance; j u s t a 17 m i n u t e . IB MR. CARR: A t a c t i c t h a t is d e v e l o p e d to a 19 skill-- to a fine skill-- by defense lawyers, because they ae SO interested in a r e v e r s a l -- a l w a y s a r e v e r s a l --- is to m a k e SI objections, o u t l a n d i s h o b j ections, t h a t a r e not b a s e d u p o n SS any law or any e v i d e n c e or any l o g i c o r reason, w h e r e a s the S3 plaintiffs' lawyers, who know that this record is going to 84 be scrutinized by Appellate judges and by Supreme Court 19S 1 Judges, refrained from making objections that are not e proper and cannot be sustained appropriately. And that 3 happens to be the way plaintiffs and defendants try cases. 4 Defendants try cases hoping that the Judge will erroneously 5 overrule one of their objections and thus make a record for 6 reversal. This is standard operating procedure. It has 7 been the operating procedure of Counsel in this case in my e judgment. And it would be assinine for me to spend two 9 years in a case and take positions that 1 knew would be 10 r e v e r s i b l e error. It w o u l d b e s t u p i d f o r t h i s C o u r t to 11 t a k e t w o y e a r s in t h i s c a s e - - b e c a u s e we k n o w f o r a c e r t a i n IS ty this case is going on appeal; we know that from what 13 they have said here and in the past elsewhere. We know 14 t h a t for a c a r t a i n t y . N e i t h e r t h i s C o u r t n o r p l a i n t i f f 's IS Counsel, I think, a r e of a m i n d t o do s t u p i d t h i n g s and g o 16 on for two years for no end, for it to be a reversal. 17 T h e r e 's no d o u b t in my m i n d b u t w h a t t h i s C o u r t h a s 18 o v e r r u l e d o b j e c t i o n s w h e n i t 's b e l i e v e d i t 's p r o p e r to do 19 so. T h e r e 's no d o u b t in my m i n d t h a t I k n o w t h a t I hav e SO never made an objection that I thought would be reversible SI er r o r for t h e C o u r t to sus t a i n . A n d I n e v e r o p p o s e d se o b j e c t i o n s of C o u n s e l o n t h e o t h e r s i d e w h e r e 1 b e l i e v e d to S3 do so would cause the Court to commit reversible error. S4 I 'm t r y i n g t h i s c a s e in t h e b e s t way I k n o w h o w to prevent'' 195 1 reversible error. And 1 think the charge that Judge Craven \ \ 8 h a s m a d e is either, a s I 've s a i d b e f o r e -- wall, I t h i n k i t 's 3 F r o m ig n o r a n c e . H e d o e s n 't k n o w any better. But, t h a t 's 4 the way these lawsuits are tried. Now, on the statement S a b o u t "Uell, he h a s n 't w o n any, a n d t h e r e f o r e he s u r e w a n t s 0066 to win this " , t h a t is a p l o y and I h o p e it w o n 't 7 i n f l u e n c e t h e Court, d e s i g n e d to say, "Okay, I 'll t h r o w yo u 8 s o m e t h i n g . " No, this Court should rule for the request of 8 C o u n s e l if he b e l i e v e s i t 's p r o p e r and a p p r o p r i a t e to d o 10 so. But, h e s h o u l d not r u l e f o r Counsel s i mply because, 11 "U)e h a v e n 't h a d s o m e t h i n g in a long time, p l e a s e g i v e us 18 something." This Court should in my judgment and has in my 13 judgment ruled on the merits of each Motion made and each 14 objection made, and I hops the Court will continue to do IS so. Now, on t h e m e r i t s of t h i s p a r t i c u l a r matter. They 16 have said they will furnish an affidavit signed by a doctor 17 t h a t s t r e s s is b a d for s o m e b o d y w i t h a h e a r t a t t a c k -- or a 18 h e a r t c o n d i t i o n . T h e r e 's no n e e d For s u c h an affidavits 19 everyone knows that stress is bad for people with a heart 80 co n d i t i o n i U s d o n 't k n o w t h a t this p a r t i c u l a r w i t n e s s ha s 81 a h e a r t c o n d i t i o n . I h a v e n 't hea r d From his d o c t o r tha t 88 the man is unable to sustain the cross examination. They 83 brought him forward representing to the Court that he would 84 be a b l e t o w i t h s t a n d t h i s c r o s s examination. He u n d e r w e n t '-' 197 X w e e k s of e x a m i n a t i o n in Nitro, W e s t U i r g i n i a a n d d i d n 't a a k e for a recess to mg knowledge. 3 MR. NASSIFs Two weeks. 4 FIR. CARR: Wall, two weeks. And i t 's m o r e t h a n 5 t w o wsek9, Counsel. I 'v e g o t a s t a c k of t r a n s c r i p t s f r o m 6 it. But, nevertheless, he didn't ask for any recess there, ) 7 a n d I h a v e n 't h e a r d the w i t n e s s say t h a t h e 's u n a b l e t o B take further cross examination and needs an excuse for 9 m e d i c a l r easons. I h a v e n 't s e e n an a f f i d a v i t f r o m h i s 10 t r e a t i n g d o c t o r that, s a y s he is u n a b l e to c o n t i n u e n o n d a y 11 for m e d i c a l reasons. W h i l e the i m p l i c a t i o n is t h e r e t h a t 12 they c a n g e t a n a f f i d a v i t f r o m a d o c t o r t h a t s t r e s s is b a d 13 for s o m e b o d y w i t h a h e a r t condition, w s 'll c o n c e d e t h e 14 point. But, we h a v e n 't h e a r d yet that t h a t 's any m e d i c a l IS r e a s o n to app l y to this witness. T h i s w i t n e s s h a s g o t t h e IB e n t i r e w e e k e n d to rest. He'll be b a c k o n e day n o n d a y a n d 17 t h e n h e 'll h a v e an o t h e r day to r e s t a n d t h e n h e 'll h a v e 18 three days to continue on. Certainly whatever recoupera- ^ 19 t i v s p o w e r s h e 's got can c o m e into play in the two d a y s f o r 2 0 this w e e k e n d and one day next Tuesday. If at the end of 21 next week it should appear that he needs an extra day, I 2 2 d o n 't o p p o s e r e c e s s i n g f o r a n o t h e r day if he n e e d s i t -- a n d 23 I d o n 't t h i n k he needs it. But, I a b s o l u t e l y o p p o s e t a k i n g 24 this witness off the stand and putting another witness on v 198 1 in h i s p l a c e . U)e a g r e e d to h a v e t h i s w i t n e s s g o o f f t h e 8 stand for his reasons that he had to fly here or fly there 3 or d o t h i s s e m i n a r or d o that. Ule a g reed to that. W e will 4 certainly not agree to taking another witness on in his 5 s t e a d n e x t w e e k or at any t i m e ini the future. I h a v e a B forecsrtainty that if he comes back at some later date, I 7 will have to re-establish everything that 1 have with great 8 difficulty established to date, and it would be an inordi 8 nate waste of judicial time so to do as well as probably 10 i n t e r r u p t t h e n e x t w i t n e s s on c r o s s e x a m i n a t i o n for h i m to 11 c o m e back. So, absolutely, I o p p o s e any k i n d of r e c e s s a s 18 s u g g e s t e d by C o u n s e l . 13 MR. CRAUEN: It's said that he Bod would 14 destroy they first make man; but, the analogy to Bobles is 15 n o t f i t t i n g y o u Rex; and even an a r g u m e n t of t h a t k i n d o f 16 misuse of anything is demeaning to what 1 thought you were. 17 I r e s e n t it. I re j e c t it. And I think y o u c a n h a v e it IB back. A n d f o r h i m to u s e that k i n d of t h i n g e v e n u n d e r 19 those circumstances I find absolutely unprofessional, and I SO w o u l d like it s t r i c k e n f r o m the r e c o r d and I w o u l d h o p e 81 t h a t he w o u l d apologize. T h a t 's Just outrageous, a b s o l u t e 8 8 ly o u t r a g e o u s ; but typical of w h a t h a 's d o i n g in t h i s 83 trial; t y p i c a l of the way h e 's ab u s i n g the j u d i c i a l 84 process. And for him to talk about Bobles and then sit