Document jyJq06ZM0R6avZ7gxv5Dbw7pO

1 IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS 2 ST. CLAIR COUNTY 3 4 FRANCES E. KEMNER, et al., 5 Plaintiffs 6 7 MONSANTO COMPANY 8 Defendant ) ) ) ) ) CAUSE NO. 80-L-970 ) ) ) ) 9 10 REPORT OF PROCEEDINGS 11 Before the HONORABLE RICHARD P. GOLDENHERSH 12 Testimony of Dr. Frank Dost 13 December 17, 1985 14 15 16 APPEARANCES t 17 MR. REX CARR, Attorney at Law, and MR. JEROME SEIGFREID, Attorney at Lav, 18 On behalf of the Plaintiffs; 19 MR. KENNETH HEINEMAN, Attorney at Lav, and MR. JOSEPH NASSIF, Attornay at Lav, 20 On behalf of the Defendant. 21 22 PATRICIA A. GANDY, CSR, RPR 23 Official Court Reporter 24 IN CHAMBERS CONFERENCES, Pages 2 and 52 HH-- H*-*O < X 5 0 0 ^ J 0 0 l ^ C 0 C O > --` INDEX Defendant's No 1326 H MX W M #HC#A HX K Ou OH Ml H Cu (>V 0 nrHt* O. MX Has wCA CA WGQ o aa PS O w oa. ** 50 H O Ha ort n ooCA WH Ma Ha* 0rat * W M a H 0 rat o 0 HO* cr 0 cr MX aMX O a MM u a ho a 0a o a a aa a aa *> H* O 2 1 BE IT REMEMBERED AND CERTIFIED t that heretofore, on 2 to-wit: December 17, 1985, the matter aa hereinbefore aet 3 forth came on for hearing before the Honorable Richard P. 4 Goldenherah, Circuit Judge, and the following was had of 5 record, to-wit: 6 7 (The following proceedings were held in chambers.) 8 THE COURT: I have reviewed the documente, the pleadings 9 that were filed the other day and the reply and the arguments 10 that were made aa well as the authorities cited I am denying 11 the motion, except for those parts that are agreed upon, and due 12 to the nature of this and the extent of it, in the exercise of 13 my discretion in denying it, I am going to submit a memorandum 14 which I hope I can give you tomorrow for the reasons, and make 15 those a matter of record. However, as a practical matter, I'm 16 taking care of these. I note that apparently there is agreement 17 of counsel that certain matters can be testified to by 18 Dr. Kimbrough, certain business records of the CDC, some "factual 19 matters" in the question of her participation or non-participation 20 as far as peer review of Plaintiff's Exhibit 1655. Based on the 21 past history on the track record of these things as to what 22 happens in the courtroom, I want to take a few minutes here, and 23 I mean literally a few, investigating back here what in fact is 24 going to happen if those matters go in front of the jury as far 3 1 as har testimony la eoneerned and the question of how long this 2 offer of proof would taka9 so I have some Idea of what to do with 3 this jury and when to bring them back. 4 I also want to find out what In fact these business 5 records are and what these factual matters are so that we 6 don't have to, five minutes Into testimony, come back here and 7 fight for a half hour. 1 would rather do It beforehand rather 8 than In the middle of her testimony. And I also understand as 9 a practical matter she's been told by the people at CDC that she 10 can be here Vednesday and Thursday morning and that's It, Is 11 that correct? 12 MR. HEINEMAN: All I know about Is Vednesday. 13 THE COURT: Wednesday? Okay, Wednesday, period. So I 14 think the time to take care of these things would be today. And 15 normally I wouldn't do It during jury time, but I need to be 16 able to tell the jury when to come back Wednesday, If at all. 17 So since she's your witness, 1 suppose that the question ought 18 to be directed to you. What exactly are these business records 19 and what are these matters, and first of all, how long will your20 ln view of my order, how long will your offer of proof take? 21 MR. HEINEMAN: I would say that the offer of proof would 22 take at least two hours. 23 THE COURT: Okay. It will take two hours? 24 MR. HEINEMAN: On my examination 4 1 MR. CARR: That1 baaed upon the subject natter that 2 they've mentioned. I can't envision ay cross examination taking 3 less than a day or two, because they are offering her, the proof 4 that they are offering will run the entire gamut of this lawsuit. 5 They're offering opinions on every Issue that I know of that 6 others havs already testified to In this case, health effects 7 on people, and I see no way that I could allow an offer of proof 8 like this to go In without doing what I would do In ordinary cross 9 examination of a witness and all these Issues. So It could be 10 that their offer will be meaningless, that the lady will not 11 say that which they represent, or I assume that she will say, 12 and It may be that I won't have to cross examine at all. But 13 basad on what Joe said last night, It was a very extensive shopping 14 list they had of topics that they were going to touch with this 15 lady. 16 THE COURT: Okay, next question. And of course there will 17 be redirect after that, depending upon what goes on In cross. 18 MR. HEINEMAN: Teah, I would expect so. 19 THE COURT: Okay, next question. What are these business 20 records and how long will that take? 21 MR. HEINEMAN: I haven't seen them all, and maybe Joe 22 will know better than I because he's reviewed them. 23 MR. NASSIF: I've seen them, but some of them we just 24 got which we just got sent to us by her and we are producing what 5 1 hadn't been produced, most of It had been produced already, ve 2 had gotten through the EPA. But there were a few handwritten 3 notes that ve are producing today to Mr, Carr. It la not more 4 than a stack like this, but I can't think-- the only couple of 5 Items that come directly to mind and what I'd like to do Is get 6 back to you after the noon hour. We can be a little more expeditious 7 and more specific. Someone else Is outlining that testimony while 8 I'm in Court, and it would be better If I got back to you right 9 after lunch and let you know the documents. Don't you think that 10 would be the best way to do It? And we can check with the person 11 working In there. 12 THE COURT: And If you can bring those specific documents 13 and Mr. Carr can look at them and see how quickly this la going 14 to be. 15 MR. NASSIP: But It would be more expeditious than me 16 trying to describe them to you. 1 might not even be right, 17 that's the crucial thing. 18 THE COURT: All right. What factual matters are you 19 talking about, after ve discuss what they are, how long will 20 those take? 21 MR. HEINEMAN: Well, ,I'm not sure. Judge, on the scope of 22 what the limitation Is and what has been permitted In terms of, 23 see, I haven't read-- 24 THE COURT: Well, the limitation Is basically the only 6 1 parts that wars agreed upon, and because I'm denying, I 'm 2 saying In effect If, that those other things that you want to 3 talk about or getting In by an expert by the back door, and, 4 number two, In the exercise of my discretion, I am not allowing 5 you to call her as an expert. 6 In the Plaintiff's response to your motion, or objection 7 to the motion, there were certain matters In Paragraph 3 that 8 It was agreed there was no objection to her testifying to, and 9 under those circumstances, I'm trying to flush out what those 10 are so we have some Idea of what we're doing. 11 MR. NASSIPt Can we also provide you a little list of 12 the factual matters at the same time we give you the documents? 13 I think that that will be a little more productive, too. I 14 didn't bring my papers with me. 15 THE COURT) Okay. And then while you're at It, If there 16 Is any amplification that needs to be made, any flushing out of 17 what this question of peer review status, on 1665, you can add 18 that In there also. Those were the three matters that were 19 agreed upon according to the objection, and so that would be 20 the scope of your testimony under my ruling, and I need to know 21 what those are, end we have to resolve overall differences back 22 here first, both so that we don't waste our time In there, and 23 also so I know what to do with the jury. So we will meet right 24 after lunch and do that then 7 1 MR, HASSIF: That would be the fastest way to do it. 2 Va can work on It over lunch. 3 MR. CARR: Excuse me, Judge, I'm sorry. 4 THE COURT: No, that's really all I had. 5 MR. CARR: The next witness will be this Kelly Odneal. 6 I'd Ilka to make a motion In limine consistent with the objections 7 that we made to the past depositions, material that have been read 8 by defendants to date, we do have an evidence deposition of 9 Mr. Odneal, and assuming that they are going to ask the same 10 questions or very nearly the same questions that they did In 11 this deposition, I would like to move that they be prevented 12 from asking questions relating to whether or not the Sturgeon 13 High School or school was a winner of State tournaments or 14 play-offs or the number of games they won or lost In any given 15 year, or their athletic record In any given year as not being 16 material to any of the Issues In this case, would tend to 17 prejudice the jury and might tend to make the jury think that 18 the plaintiffs in this case who may have been on the team were 19 In excellent physical condition and that nothing was wrong 20 with them simply because the team was a good team or the other 21 way around. I see no relevance, there would be no relevance if 22 It was the world's worst team. I don't think the plaintiffs 23 would be allowed to show the loss of record In the year In order 24 to have any bearing on the health of one of the plaintiffs. 6 1 The other area that I would ask the Court U n i t would be the 2 questions that the Court haa consistently prevented them from 3 asking, from reading is did Tim Bowne ever claim to you of being 4 111 during the practice of any sport? Did Tim Bowne ever appear 5 to be 111? Did Tim Bowne ever clutch or grab his abdomen? 6 Questions of that sort which are asked throughout this deposition 7 I would object to, throughout the deposition, not just with 8 Tim Bowne, but Doug Bowne and Tim Robinson and Greg Rush. Also 9 the questions about did their parents ever send any notes to 10 school, or did they hear from any physicians, the same questions 11 that we have previously objected to and the Court has previously 12 sustained objections We .would ask the Court limit the defendant 13 here with this witness to the same extent. 14 THE COURT: Has his evidence deposition been read yet? 15 HR CARR: It has not. 16 THE COURT: What's your reply to the motion in limine? 17 MR HEXNEMAN: Well, haven't heard the grounds for 18 the second aspect The first one he stated It was Irrelevant, 19 the second one he^sald questions about complaints of illness, 20 appearance of illness, clutching or grabbing abdomen, parents 21 send notes to school and hear from physicians. Those were the 22 items that he listed. 23 HR* CARR: Same objection we mads before In fifteen 24 depositions that have been gone through. 9 1 MR HEINEMAN: Excuse me if I don't remember those 2 objections et the present time since It has been quite a while 3 since we have gone over those. What are the objections to those? 4 MR CARR: Much of It was Immateriality some of It was 5 ability to be a health expert to determine whether or not 6 somebody was or was not In 111 health Much of It was It creates 7 an Issue where there Is no Issue did the parent send a note It 8 makes a suggestion that the parent should have sent a note Did 9 he clutch his stomach In pain? It suggests that perhaps he 10 should have clutched his stomach in pain all that kind of 11 objection that we've made with the same kind of--exactly the 12 same questions I might say. 13 MR. HBINEMAN: Well .your Honor first of all whether 14 or not the school team was a winner or the athletic record in 15 any particular year we believe Is relevant In terms of the 16 contribution made by particular plaintiffs to that effort not 17 in and of Itself an Important matter but the fact that two of 18 these plaintiffs have participated actively in those athletic 19 endeavors and were very dedicated athletes that's certainly 20 true of the baseball team. There were others that were Involved 21 In the basketball program and baseball, I am thinking of Mike 22 Burks and Tim Bowne, who were excellent athletes and whose 23 participation In the program was very Instrumental In the success 24 of the team 10 1 The second aspect Is ,that-- *and I am not sure of the extent 2 to which Mr. Carr Is saying, is requesting that this evidence be 3 limited-- 4 TUE COURT: Well, I think you can figure out the extent 5 from the evidence deposition, because I think it Is one of them 6 that we went through the last time. We just didn't get to it 7 as far as reading. 8 MR. HEINEMAN; What this .witness is prepared to aay has g to do with the fact that he was able to observe on a dally basis 10 each of the individual plaintiffs whom he will discuss, that he n observed them in the locker room stark naked, therefore could 12 see whether or not they had rashes, and observed them virtually 13 on a dally basis. 'He observed their demeanor, observed their-- 14 whether they were Irritable or not irritable, whether they were 15 able physically to perform the very rigorous training and exercises 16 that he put them through, whether in fact they complained, some 17 of them have testified directly as to things they told him which 18 he is able to refute. Clearly that' relevant. 19 MR. CARR: It most certainly is, if you ask that question, 20 if you single out the person that-- -and there's testimony in this t 21 case that Tim Bovne said he complained to the coach so and so 22 and such and such a day, they had bad headache or bad stomach 23 ache. I think you have every right to ask the Court did Tior` 24 Bowne make such a statement, but that's not what I am objecting to. II 1 I'm objecting to these general questions, did he ever make a 2 complaint to you of pain or did you ever see him having a 3 persistent or continuing cold? Did you observe his hands and 4 arms? Did you see blotches on his hands and arms? We've never 5 claimed that Tim Bovne had blotches on his hands and arms. 6 We never claimed that he had a-- oh, I'm sorry, Jerry reminds 7 me and I had forgotten that Tim did have a rash on his arms at 8 one time, so that would be relevant and material, but It would 9 have to be things like that that would be relevant and material. 10 MR. HEIHEMAN: Well, ,clearly, Judge, It la relevant 11 considering the closeness of the relationship between Coach 12 Odneal and these athletes and the kids he had In his physical 13 education classes day after day that he was able, first of all, 14 he was a person who had a confidential relationship with these 15 young people, he was a person who saw them virtually dally, a 16 person who was able to observe their behavior to whom they 17 complained when they had a complaint. 18 MR. CARR: let me Interrupt. I am not objecting to those 19 things that you described here. He can describe Tim Bowne as a 20 wonderful athlete, well-trained and like he is on Rage 40, that 21 he did the sprinting with the rest of the athletes and did all 22 those things, that's not the point of my objectlon, M r Helneman. 23 MR. HEINEMAH: Well, ,,what I am getting to is that In 24 the course of his observations to that nature, If he Is able 12 1 to describe what an excellent athlete the young man Is, he Is 2 also able to describe whether the young man ever complained to 3 him of having headaches* whether he ever complained to him of 4 having illnesses, whether the young man was absent from school, 5 the school records have certainly been relevant. 6 MR. CARR: We are not quarreling with that, again, 7 you miss the point. 8 THE COURT: Okay, 1 t^hinlc I've heard all this out of 9 the evidence depositions, Odneal has been one that has been 10 gone through in chambers, we just hadn't gotten to it in reading 11 in the courtroom. 12 MR. CARR: There's been other coaches that we have gone 13 through. 14 THE COURT: X thought his had been. 15 HR. CARR: But this particular one, X don't think we had. 16 MR. MASSIF: He wasn'.t on our list, Judge, as those 15. 17 THE COURT: My mistake. ,1 am granting the motion In 18 limine to the same extent, and on the same ba9ls and covering the 19 same things as my rulings have been In the-- going through the 20 evidence depositions, I think they have been consistent, I 21 think they're fairly well delineated, we have gone through about 22 12 or 12 depositions in preparation for that other day that we 23 spent reading evidence depositions, and X don't think It is 24 really hard to divine what the limits are out of those aud to 13 1 that extent 1 am granting the motion In limine and would expect 2 you to be governed accordingly. 3 HR* HEIHEMAN: All right., Now as I understand it, what 4 Hr. Carr is not objecting to Is In the case of a particular 5 plaintiff when there's been evidence offered by the plaintiffs 6 with respect to this particular person, he had this, that, and 7 the other thing, or he complained to Carnow of this, that, or 8 the other thing. 9 MR. CARR: Ho, no, no., that he complained to the rash, if 10 he had a rash on his arm. I think it la permissible or proper 11 for you to ask did you ever see him with a rash on hla arm 12 after having first shown that he had an opportunity to see it 13 during that particular point In time that he claimed he had a 14 rash on his arm, not at any time In general, but at that 15 particular time. He said the rash would come and go, and as 16 far as the other complaints are concerned, there had to be some 17 evidence that he complained to the conch about a particular problem 18 before you can ask him did he ever complain. That makes a 19 suggestion, if you were here you remember that, that makes a 20 suggestion that he should have complained. 21 MR. HEINEMAN: Well, .It seems obvious to me, Judge, 22 that rather than to the admissibility. It would certainly go to 23 the weight of the evidence, that If he was Indeed suffering from 24 these problems, that he would complain. 14 1 THE COURT: I'm going to.cut you off. All this has been 2 gone through a number of times on the argumenta of these 3 depositions. I'll incorporate both the arguments of defendants 4 and plaintiffs on it. It has been ruled on I think I'm right, 5 I think my rulings are consistent. I'm going to apply that policy 6 now, and I think it was accurately stated, so be governed accordingly 7 when you talk to your witness and Interrogate on the stand. We 8 will break now and start up at ten o'clock. 9 (The following proceedings were held in open Court.) 10 THE COURT: Good morning. 11 MR. CARR: Tour Honor,, we have no more questions of 12 Dr. Dost. 13 THE COURT: Mr. Heineman? 14 REDIRECT .^.EXAMINATION 15 BY MR. HEINEMAN 16 Q Dr. Dost, with respect to this exhibit, this Plaintiff's 17 Exhibit 1646A here, sir, referring to the Polger and Schlatter 18 exhibit which I think-- do you still have that before you? 19 A No, sir, there are none of them left here. 20 Q Let me hand you again Plaintiff's Exhibit 1646, the 21 Poiger and Schlatter abstract. And again referring to 1646A, 22 what were the circumstances or the conditions, if any, under which 23 you would agree that the half life elimination from the body 24 was at least 4.95 years? 15 1 A It would have to be a situation In which there was no 2 TCDD reservoir-- two circumstances, one in which there is no 3 TCDD in the body prior to the administration of the labeled 4 material, and then no intake of TCDD following that time. Then 5 it would provide-- the information that was provided would provide 6 a reasonable estimate. 7 Q Now, why is that, 31^? 8 A Nell, because any material that comes in after the 9 administration of the labeled material will dilute it. In other 10 words, there will be a lower--I hope I can make this understood. 11 What we*re dealing with here is TCDD in some physical amount, 12 105 nanograms. Then there is a specific amount of radioactivity 13 in that TCDD, so there are actually two things that can he 14 measured, the chemical Itself and the radioactivity that went 15 In with it. 16 Q Now, excuse me, the radioactivity, sir, id that 17 something that was added or naturally occurring? 18 A That is something-- tl\at TCDD molecule was used to label 19 is synthesized for, specifically for the purpose. In other 20 words, and I believe that! made some mention of this earlier 21 in other testimony, that organic chemists can synthesize TCDD 22 with radioactive hydrogen on the ring. 23 Q So radioactivity, would that have anything to do with 24 naturally occurring TCDD? 16 1 A Ho, sir, It would not no air. the assumption Is, and 2 it is very strongly supported that when you use a labeled molecule 3 like this It lavery vary slightly different. The mass of 4 that hydrogen Isthree instead of one, as normal hydrogen would 5 be. Nonetheless, the molecule will behave In the body precisely 6 as an unlabeled molecule so that thare Is from a biological 7 standpoint no difference between the labeled and the unlabeled 8 molecule. The difference Is that the label enables one to 9 track the molecule. 10 Now, there ie a certain amount of radioactivity and a 11 certain amount of the chemical.present. If additional TCDD Is 12 brought into the body,and that apparently is a circumstance 13 with moot of us, given that most of the fat biopsies have shown 14 that there is atleast some TCDD in our fat. If additional 15 TCDD comes in, then there would be a dilution effect and it 16 would tend, even though the material is' moving throughout the 17 body. It comes in and it is being processed and it moves out at 18 some rate, it would tend to dilute the labeled material and it 19 would tend to stay in the body because it's being diluted more 20 and more and more. It is like if you put~-lf you have a sinklfull 21 of water and you put ink into it and you can see that it has a 22 blue color. If you pull the stopper, the water and the ink all 23 go out at once. If you instead leave the stopper in and turn 24 one of the faucets on and the ink and the water all go out through 17 1 the overflow, it takea.sa very long time to get rid of the blue 2 color, ell right? The same thing occurs here If TCDD is 3 entering the body after the label has been introduced. This Is 4 why X was concerned in my remarks yesterday about the specific 5 activity of the TCDD in the fat. They took fat biopsies, it would 6 be very important to know that the amount of radioactivity 7 relative to the amount of TCDD remained the same. That would 8 indicate that there was no additional TCDD coming into this 9 Individual, 10 On the other hand, if there was a difference, then It 11 would be possible to construct a mathmatlcal model that would 12 account for this Influx and it would be a much more complex 13 process, but one could still obtain information that would be 14 indicative of a half life 15 Q What would be the effect on the calculation of a half 16 life of the dilution which you are describing? 17 A Well, it would make it seem longer. 18 Q And why is that? 19 A Well, because the labeled material that's in the body Is 20 being continually diluted and it is staying back, it is not 21 coming out, it is not coming out as rapidly. I would have to go 22 back to the analogy of the ink in the sink, where if there was 23 no dilution with incoming water, the ink and the water would leave 24 at the same rate if you pulled the plug, whereas if you left the 16 plug la and let It go out through the overflow, the sink continually 1 mixing with the Incoming water and the color becomes lighter and 2 lighter and lighter and lighter and lighter until eventually there 3 Is no Ink left But at the same time you will have processed-- 4 there will have been a much larger amount of water going out, 5 6 but you have looked at the same amount of label, in this case, 7 Ink 8 Q All right. Now, what do we know, sir, In terms of 9 whether or not there is Incoming TCDD or an equilibrium, so to 10 speak, In the population as a whole? 11 A In the population as ,,a whole, It appears that there is 12 an incoming, that Is that there Is widespread low level exposure 13 to TCDDs, exposure In the sense that we are In contact with some 14 of the material and we take it up and dispose of It, so there Is 15 TCDB coming Into the body of a very large portion of the population, 16 certainly a large enough portion of the population to make It 17 necessary to learn that piece of information In the subject. I 18 suspect that before this experiment Is through they will have 19 accomplished that 20 Q Now, what does the term "background level" have to do 21 with what you are describing? 22 A Background level is the amount, Is the level that we are 23 carrying with us on the average. If we used-- if we use the term 24 both with respect to radioactivity, we all have a very, very small 19 1 amount of this lclnd of radioactivity because It occurs naturally, 2 not as TCDD, but If you go out into the sea and take water or 3 into the Mississippi River and take water, you will find a small 4 amount of hydrogen-3 tritium, and we all have a little bit of 5 that in our bodies, very, very small, but It la there nonetheless. 6 That's a background level, probably small enough that we don't 7 have to correct for it. 8 The TCDD that we carry, If it were to amount to five 9 parts per trillion in fat, my recollection, well, If there Is 10 25 kilograms of fat in this amount of TCDD, all went into that 11 fat, the concentration of this material would be four parts 12 per trillion. And that's really-- if it was a substance that 13 could be administered-- 14 Q By "this material", you are referring to this-- 15 A X am referring to the TCDD, the total TCDD unlabeled. 16 Q In this experiment? ,, 17 A In this experiment, approximately a hundred nanogTams 18 if It went into 25 kilograms of fat would be something on the 19 order of four parts per trillion in that fat. That isn't a 20 large enough additional amount to make the body burden that's 21 already there or that may already be there negligible. You see, 22 If it were an experiment with a compound that is never found 23 in the body, then none of this would need to be taken Into 24 account, or if it was an experiment with a substance that is 20 1 found In low levels In Che body but Chat ve could give, let's 2 say, Cen or fifty times, more so that the amount already in the 3 body is just negligible. Again, the calculation would be very, 4 very straightforward* 5 Q Now, given what you have just explained with respect to 6 background level, what does that do to the accuracy of this 7 half life figure? 8 A If there was no additional material coming in, and if 9 the material that was added mixed perfectly with all of the TCDD 10 that's in the body, then it would be an accurate representation 11 of what's happening to the TCDD. But It would depend on perfect 12 mixing, which is really unlikely. It is hard to tell over 125 13 days, but TCDD as it comes in would more than likely preferentially 14 move toward the liver. How long it would take to clear the 15 liver and to go into equilibrium with all of the other TCDD In the 16 body, in other words, become completely diluted in it, we would 17 be unable to tell the difference between TCDD that was already 18 there and TCDD that we have just brought in. I don't know how 19 long that would take, but until that has taken place and unless 20 there is no additional TCDD coming in, then those are the 21 conditions that it would take In order to be certain that this 22 is a reliable figure. 23 Q But if there is additional TCDD coming in, sir, and do 24 you have an opinion as to whether there would be? 21 1 A I think there vould be, because of the eKperlence with 2 all of the samples that have been taken for determining TCDD 3 levels in fat, most such samples have been found to contain 4 detectible TCDD. 5 Q All right. Nov, that, being the case, what would that 6 fact do to the accuracy of this half life? 7 A Well, it vould make it--it vould make It too long. In 8 other vords, the apparent half life by this, with this amount of 9 Information is, vould be longer than the true half life. 10 Q Longer than the-- 11 A True half time. 12 Q All right, sir. Now,, you talked about right at the end 13 of the day, Mr. Carr was talking to you about dlatamateous earth 14 and bentonite, do you recall that? 15 A Yes, X do. 16 Q Nov, what is the difference between dlatamateous earth 17 and bentonite? 18 A I made an error when AI characterised bentonite as 19 dlatamateous earth. They are both silicate compounds, dlatamateous 20 earth is formed as the skeleton more or less of one-celled 21 organisms that live in the sea and they settle to the bottom 22 and these deposits are eventually used, and that's the material 23 that I kept in my laboratory as an adsorbent. Bentonite is 24 aluminum silicate and it io a substance that has a considerable 22 1 attraction for water and it swells when it is hydrated, when it 2 is brought into contact with water. And that would make it as 3 it was described as a sealer and It would be a sealer, it goes 4 into the crevices and then swells. 5 Q To do what to the interstitial spaces? 6 A Well, it fills them. , It would fill them, occupy all 7 of the spaces. 8 Q All right, sir. I'd ,like to direct your attention again 9 to the Moses study which Mr, Carr asked you about, Defendant's 10 Exhibit 908,. Let me hand to you, sir, Defendant's Exhibit 908. 11 And what Is the effect, in your opinion, of that study, the 12 Moses study at Nitro on the dose response principle? 13 A Nell, I see no reason, no way that it does not conform 14 to a dose response relationship. It conforms, I think, very 15 clearly 16 Q Now, there was a chart on Page 171 that Mr. Carr directed 17 your attention to, do you recall that, sir? 18 A Yes. 19 Q Now, let's make sure rthat we are talking about the same 20 chart. Yes, that's the one. Now, the chart on Page 171, does 21 that chart reflect anything with respect to the dose response 22 principle? 23 A Nell, it shows a very-- it shows a clear relationship 24 between, well, to begin with we have a description here of exposure 23 levels that are, I believe, based for this purpose on the recall 1 by the worker of the job assignment that they had, keep in mind 2 that this study was done some years after the workers had been 3 working in this process. And there is a clear relationship 4 between their recall of their job assignment and the expected 5 6 exposure to 2,4,5-T in that job assignment. There is a clear 7 relationship in terms of the chloracne incidence that was-- or, 8 excuse me-- a relationship between the people, the number of 9 people who had never had chloracne. In other words, where there 10 was no exposure, 97 percent of the people never had chloracne. 11 Minimal exposure, 64 percent. Moderate exposure, 49. Heavy 12 exposure, 24. In terms of chloracne, that makes very good 13 sense. There is a dose response with respect to current 14 chloracne, the people who were supposedly had heavy exposure 15 had 55, or 55 percent of them had chloracne. Those who had 16 moderate exposure, 24 percent had chloracne. Minimal exposure, 17 16 percent, 3 percent In those who had no exposure at least in 18 terms of this definition of exposure. 19 Q Now, sir, why do you ^say "supposedly had exposure"? 20 A Well, because they are depending on Information provided 21 by the workers as they described their job assignments when they 22 were working in the plant. 23 Q Now, I'd like to direct your attention if I may to Page 170 24 of the exhibit. Do you have it there, sir? 24 1 A Yes 2 Q The first paragraph at the top of the page, what does 3 that paragraph describe, sir? 4 A Should I read it? 5 Q If you could just tell us what it describes. 6 A Well, It says that they consider that chloracne is 7 generally considered to be a reliable indicator of heavy dioxin 8 exposure, so they decided as they did this study, they decided 9 to use chloracne as a surrogate or rather as an indicator for 10 exposure. In other words, they would use the status of these 11 individuala in terms of the presence or absence of chloracne 12 or the presence of chloracne in their history as a means of 13 saying either exposed or not exposed. And then they have a 14 parenthetical sentence here which says, "It is recognized chat 15 those without chloracne but with appropriate work exposure 16 history might also have had TCDD exposure and were not therefore 17 unexposed controls." So they recognized that there is a little 18 bit of slippage In that definition that they use. 19 Q Now, do they-- does that sentence conclude that they 20 were exposed, the last one you just read? 21 A No, it doesn't conclude that they were exposed. It 22 says that they might also have had TCDD exposure, they might have 23 had it. 24 Q And those, are those ..people that have work exposure 25 1 history might have TCDD exposure? 2 A That*s their statement, yes. 3 Q Now, in light of that paragraph, sir, does in your 4 opinion, does the Moses article disprove or disregard or negate 5 in any way the dose response relationship? 6 A No, sir. 7 Q When Mr. Carr was discussing with you yesterday, sir, 8 this study and with reference to Dr* Carnow's testimony, do you 9 recall that, sir? 10 A Yes. 11 Q Now, did you suggest^ did you ash something about needing 12 a general population for comparison? 13 A I recall something of that sort, yes. 14 Q All right. Would you explain to the jury what you 15 meant and why you made that suggestion? 16 A Well, if X were to see data such as is reported here, it 17 would also be very useful to compare it with other people who 18 live in the same general area who do not have any exposure to 19 the work exposure in this plant. In other words, are these people, 20 are the people in the plant different from the people who live 21 five miles away, but live in the same general environment. In 22 other words, Is there something unique about the plant as well as 23 is there possibly something unique about certain conditions In 24 the plant as distinguished from other conditions In the plant. 26 1 So It la really necessary In order to tell whether there is an 2 effect on the people In the plant In general It is necessary;, 3 to compare them with if we are talking about Nltro, It would 4 be very useful to compare them with people who live in the 5 Kanawha Valley but have no association with the plant or with 6 the chemical Industry, for that matter. 7 Q Now, Dr. Dost, In such a connection, If you were to 8 observe certain effects among people most heavily exposed and 9 there would not be statistical significant difference between 10 those and the people who were not heavily exposed, what would 11 that lead you to believe with respect to the dose response 12 relationship? 13 A Well, with that information, X would have to conclude 14 that a threshold had not been reached with those conditions. 15 In other words, there was not sufficient exposure In either 16 group to be responsible for those, for those effects. 17 Q Now, If you find that: among the people that are working 18 inside the plant, what does that principle tell you with respect 19 to what you would find among a group outside the plant who had 20 never been Involved in the work environment at all? 21 A Well, this information aa it stands would not tell me 22 anything about that, but if I saw that the people outside the 23 plant had the same occurrence of these conditions, that la that 24 these people were no different from the people on the outside, I 27 1 would have to conclude that there were no conditions in the 2 plant that were producing these effects. . 3 Q And In that connection sir I'd like to direct your 4 attention to Page.178, and the second to the last paragraph on 5 the page, do you see that sir? 6 A Yes, 7 Q With respect to cardiovascular disease, what does that 8 information tell you? 9 A It says that, it speaks of the mortality study that was 10 conducted at the plant and It describes-- I '11 just read "It was 11 stated as of 163 deaths In 884 workers at the plant from 1953 to 12 1977 a subgroup of 58 workers with 2,4,5-T exposure documented 13 by company records had a higher observed rate of coronary heart 14 disease mortality than expected from United States general 15 population" that's general population death rates. Now, that 16 refers to statistics that arise from across the entire nation. 17 Although the difference was not statistically significant, 18 mortality from cardiovascular disease Is known to be higher 19 than national rates in the Kanawha Valley of West Virginia 20 where the plant is located. And that's data that la referenced 21 from the study that they refer to la Zack, and I believe the 22 reference has been left out. The other, the Kanawha Valley 23 information Is derived from the State of West Virginia Department 24 of Health study. ,2'< J ' 1 Q :And in connection wifch-what ve have been talking about 2 what does that tell you with respect, to the causation of heart 3 disease cardiovascular disease? 4 A Well there is something .intrinsic in that region that 5 results, and who knows what it sight be that there is eonething 6 characteristic of that region or the way the people live In the 7 region I have no way of knowing what that characteristic might 8 be that for some reason gives rise to a higher frequency of 9 cardiovascular disease In that general region. 10 Q Now sir if It is not statistically significant within 11 the plant and within the plant It is about the same as it Is '' J 12 In the Kanawha Valley based, upon ,the dose response relationship 13 does that suggest to you that the people in the Kanawha Valley-- i 14 MR. CARR: Objection.'your Honor leading. . 15 THE COURT: Objection sustained. Please rephrase It. 16 Q What does that suggest to you sir with respect to 17 whether or not the plant is causing the increase In cardiovascular 18 disease? 19 A Well if the cardiovascular disease Incidence of the plant 20 workers la similar to that of people in the general area one 21 would have to assume that the plant Is not a causative factor. 22 Q Why is that, sir? 23 A Well because the same-- if that comparison is in fact f( 24 the same then whatever is responsible for the Increased incidence 29 X 1 in the region la affecting ell of the people, and If it is >-, 2 affecting all of the people, then It certainly isn't: going to 3 arise from the plant that most of the people are not associated 4 with or Involved with 5 Q Why 4 that? 6 A Well, it is because ,,of course, 1 have no Idea what the 7 causes are, but the people in the plant and the people who are not 8 involved with the plant have .soma similar experience that is outside 9 the plant, V '1 rt ' \ ? ., * if 10 Q If you were to assume, sir, that that similar experience 11 is exposure to what is In the plant, would, you expect the rate 12 of Incidence to be the same inside and outside? 13 A I'm hot sure X understandy because, the people outside 14 the plant that are not around the plant at all are not exposed 15 to material that the people inside the plant are, 16 Q Wow, Ifd like to hand, you Plaintiff's Exhibit 1665. Mr. Carr -- 17 do you recall Mr; Carr directed your attention to & couple of-- 18 A - T e a j * b i t . 19 Q -- excerpts from this?. Particularly Page 8~48. Do you 20 recall that, sir? 21 , A To. 22 Q Wow, do you recall Mr. Carr questioning you about kidney 23 renal disorder? 24 A Ves 'f- ' v f r- v *. W , 1 Q In connection with that? 2 A tee. 3 Q Would you toll uo wht that portion that he read, that 4 you and he read together yesterday meana and whether It has any 5 connection with the kidney renal disorder? 6 A Aa X recall what we,read was "After a aIs:-month 7 recovery period the porphyrin level in animals exposed to a 8 microgram per kilogram a week was still a hundred-fold higher g than values in the control group A similar pattern was observed io for urinary excretion of uroporphyrin" What that means Is that i l they wore in this experiment measuring porphyrin levels in the 12 liver and they were measuring the excretion of porphyrin in the 13 urine and so what they are saying is that porphyrin levels In 14 the liver aro still high and that porphyrins uroporphyrin is 15 still being excreted at a high level through the kidney. 16 Q Does that have anything to do with kidney or renal 17 disorder sir? 18 A No* sir it does not. The kidney is functioning very 19 nicely if it will take care of that material* 20 Q Now what mammalian specteo are being referred to here? 21 A This work was dono in rats 22 Q Now sir do you remember Hr. Carr questioning you about 23 the isomers the tetra Isomers of dioxin? 24 A Yes * / *' t *% * i'* .f , 31 1 Q And particularly in connection with the industrial 2 accidents,, do yon remember that sir? 3 A Yes* 4 Q And Saves was one fchathe talked about* Now, whet Is 5 the chemistry of the manufacture of 2#4,5-T? , 6 A Well It requires;the formation of the 2 ,4-Trichlorophenol 7 which is made by hydrolising tetrachlorobensenewhich means 8 taking off a chlorine and putting a hydroxyl group on And then 9 the trichlorophenol is further processed to make the trichloro-- the 10 245-TriohlrophenoxyAceitic acid 11 Q Now maybe I misunderstood you1 I thought you said 12 24-TrIchlorophenol 13 A You make 24-Trichlorophenol-- 14 HU. CARR: 2,4,5. 15 A Thank you sir* 2,4,5-Tricblorophenol in this process by 16 taking a chlorine off a tetrachlorobansone and adding a hydroxyl. 17 Q Now with respect toSeveso, or Sevese however you want 18 to pronounce It was chloreene found? 19 A Yes yes. 20 Q All right. Are any fcotra Isomers of dioxin known, to 21 cause chloraene other than 2378? 22 A X don't believe so. , 23 Q Based upon the chemistry of 2,45-7 manufacture, which-- is 24 there any particular Isomer that would bo expected of dioxin to be  ' . " ' - 32 * \ ' X ; ; ** 1 formed? 2 A Oh, yes. VI . *, . '/V ^ ** j - 3 Q And hat ia that sit?* ,, 4 A It would be the 237,8 iaomer*. - v, ;* ' ' \ ' / *,, J. , 5 Q Let me hand youDcfendant'a Exhibit 1148 which Hr. Carr 6 had asked you about yesterday. How, this documentp air if you 7 look at Page.! first of all I?m sure that the jury Is likely 8 not to retail the number of this exhibit what study Is thie* 9 1148? 10 A This is a report presented at a meeting In April of 1984 11 by Raymond Frsemnn and Jerry Schroy. It is called "Environmental 12 Mobility of Pioxlas". 13 Q And does it Identify 4the .iaoncr of dioxin at Tinea 14 Beach sir? 15 A Yea. - 16 Q And hat is that ait? 17 A It is the 2,3,,7,0 isomer.. 18 ,Q Mo X*d like to direct your attention to the questioning 19 that Hr. Carr did of you yesterday relating to the BDT versus 20 XCDD volatility question. Bo you recall that? 21- A Yes. , 22 Q And whether you used figure of one part per million 23 of dioxin in the 2*45-To 24 A Ton. ,, V>7* j* * k l' Q Do you recall that. sir? 2 A -Yes, X do. .' .";V * 3 Q Now, if in fact you were to ui@ a figure of 55 parts per 4 million of diesin in 2,4 93 , rather than one, would it make any 5 difference any appreciable differonce in the comparison between 6 TCDD and DDT In terms of worldwide distribution? 7 A No, air, I don't really think It mould. 8 Q And why not* sir? 9 A tfell, the TCDD in 2,4,S-T is subject to photodegradation both 10 while it is accompanied by the 2,4,5-2, and because 2,4,5-T n would be an effective proton donor or hydrogen donor* But also 12 when it cornea to rest on the surface of the coil* plants and so 13 forth* it continues to be subject to photodegradatlon, and the 14 amounts that might remain intact are going to reflect a vastly 15 lower quantity than the original contamination would suggest. 16 The one part per million that X used also was keeping in mind 17 the later history of 2,4 *5-T in which the contamination levels 18 ran from a tenth of a part per million down to none detectible 19 levels as well, so what X was trying to do was to pick a single 20 figure that would fall, that would represent some median 21 concentration. I recognise that one part per million is much 22 less chan 53 but there were very large amounts of material made 23 at the very low concentrations aa wall, but it la primarily .' 24 photodegradation of the TCDD that Is responsible, plus the fact t ' 34 1 that TCDD, if volatility is really a factorB is vastly less 2 volatile than DDT. 3 Q How, I 'd like to direct your attention next to the 4 questioning of you about Lysol and Santophen, whether there is 5 dioxin in a lysol spray can. Do you remember that, sir? 6 A Yes, 7 Q And the discussion of Hr. Carr asking you about the lysol 8 being used in the nursery and that sort of thing. 9 A Yes* 10 Q And particularly the ,,spray can. Do you remember that? 11 A Yes. 12 (Defendant's Exhibit.,1326 and 1327 were marked 13 for identification.) . 14 Q let me hand you what's.been marked as Defendant's Exhibit 15 1326, sir. Would you Identify that for me, please? 16 A This is a Lysol brand disinfectant spray. Xt kills 17 household germs, mold and mildew, 360 uses. 18 Q All right, sir, whatsis the active ingredient In that 19 material? 20 A Xt is,ortho-pheuylphenol, *1 percent. 21 Q Ortho-phenylphenol? t 22 A Yes. 23 Q I'd like you to assume, sir, that there is testimony in 24 the case that Santophen Is actually orthobeaso-p&ra-chlorophenol, '.*V y 35 1 ail right air? 2 A Yes o 3 Q Is there any Santoph^n t orthobenso-*para~ehloropheaol 4 In that package? 5 A Ho* This material on the label la not Santophen, la net 6 that product that you Identified, that chemical 7 Q Now, let me hand you .next what8 been marked as Defendant* 8 Exhibit 1326, Would you Identify that for me, please, sir? 9 A Well* this is a tysol brand disinfectant.bathroom cleaner 10 for cleaning basins, tubs, tiles and so forth. 11 Q Nowp that9 a spray of sorts, Is It not, sir? 12 A Yes, this is one of f;hese things that you foam oh a 13 surface end leave It for a while, I think, yeah. 14 Q All right. Now, what's the active ingredientin that 15 material? 16 A There are several quaternary compounds, quaternary 17 ammonium chlorides and.a substance that isa kelatar, EDTA, which 18 is a substance that will trap metal, atomsof metal* These are 19 quaternary ammoniums are a form of detergent. 20 Q Quaternary ammonium? ,, 21 A Yes* 22 Q I'd like you to assume, sir, that there's been testimony 23 In this case that Lehn & Fln% used another material in their 24 bysol known aa quati not mads by Monsanto Company., Would you " / V ' r 7V-; , , . . * _b*>T >**V' ' V^V.L *' 'i V ; 'V i. ' V - *' L , ':( 1 assume that, sir? 2 A Yes. - k' 3 Q la there any relationship between that term and what you 4 have juat referred to there as the active Ingredient? 5 A Well the quat is a slang term for quaternary ammonium 6 compounds It is a very, very general nickname. 7 Q Wow based upon what*you observed there sir, would it 8 be accurate that to state that there is dioxin In spray cans of 9 tysol being used all over the country In every household around 10 the country? 11 A Wot in these products,. 12 Q Now1Dr. Dost you w^re-- 13 THE COURT! Before yq,U get into another subject is 14 this a good point for a short break? 15 ME. HEXNEMAKs Oh, sure* ,,Judge* I didn't notice the 16 time* 17 THE COURT: Ladles and gentlemen, we will take a short 18 recess at this time. I forgot to mention earlier, 1 wanted'to 19 apologise for us starting so late this morning, but It has. 20 occurred many times before. There are matters that have to be 21 taken up outside the presence of the jury and we had one that took 22 up a little time. We will take a recess at this time. I would 23 remind you that you are not "to-diacuss'this matter among 24 yourselves or with anyone1outside the, jury panel or .form any i Ki 1 eencluelona or opinion* about the matter on trial. The Court 2 1* in a short races t ^, 3 (At this tine Court ,,wae ln recess,) ' 4 BY m * HEXHEMAHx 5 Q Dr Dost, I'd like to direct your attention to yesterday'a 6 anamination by Hr, Carr in connection with dioxin in the vapor 7 phase and the Schroy studies and that general subject matter, 8 all rght0 air? First of nil, In connection with dioxin itself 9 2578 XCBD, is that a solid material? s. 10 A When it la in the pure form, at room temperature, it Is 11 in aort of a crystalline form, waxy crystals, if X understand. 12 X have never seen it with my own eyes, but that's how it is 13 deaeribsdp X believe 14 Q How, in the discussions Hr Carr had with you with respect 15 to it becoming a vapor, going Into a vapor phase, X wonder if you 16 would explain to the jury what happens to molecule* when they go 17 from a solid or a liquid phase into a vapor phase and whether the 18 molecule itself changes * 19 A Yhe molecule doesn't change& the solid material is an ,, i > 20 accumulation, if you will, of the molecules* And the reason Jt 21 that It tehee on this more or leas crystalline form is because ' ta r i 22 the molecules tend to be aligned. They stack, if- you will, whan \ *, ^ \* A ^^ 23 they are together. When they volatilise away, and this is true 24 / * \ " ." of any eubstance, when thay^-rwe are really talking about single ' 3 f' J* JV ` * k'\ ;%\`> ( 38 1 molecules that emerge into the atmosphere if we have nothing 2 else for them to attach to, so that they are single molecules 3 of in this case TCDD, just as there would be single molecules of 4 oxygen, which is really two oxygen atoms bound together or nitrogen 5 in this room, two nitrogen atoms bound together* These are free, 6 separate molecules of the.substance and they behave differently 7 only in the sense that they are free to move rather than being 8 tied up either in a solution or In the solid or liquid pure 9 material* 10 Q What are the factors ,,that change the dioxin molecules 11 from a solid to a gaseous or vapor state? 12 A Well, there are a numberof factors, the tendency for the 13 molecule to separate from the body of material that it's originally 14 part of, and as 1 have pointed out a number of times, all 15 substances have at least some tendency for molecules to 16 separate and go and diffuse away* Part of it depends on the 17 capacity of the medium into which it is being lost* Dioxin, 18 TCDD, is very-- has very, very limited solubility in water, end 19 if you were to put solidVTCDD into water, ..only a very, very 20 small amount of it would go Into solution* There are things that 21 we use around the household that don't go *into solution very 22 easily, and you put too much Into the water and only part of It 23 would go Into solution, the rest of It wouldn't dissolve*. The 24 same thing applies In the,atmosphere. The atmosphere has the 1- capacity to hold.only a certain amount of a volatile material, 2 and that amount varies depending on the substance* Ton can Just 3 get only so much water vapor Into the atmosphere or so much, 4 gasoline vapor Into the atmosphere, and beyond that, It all 5 comes bach down. In the case of water, when we get more water 6 in the atmosphere athan it can hold, we get rain or fog. 7 Q Does the latter thing youfve described have anything 8 to do with vapor pressure? 9 A That la vapor;pressure, in essence. In other words, 10 vapor pressure Is the contribution that a gas can make to the 11 total atmospheric pressure. 12 Q Now, does temperature have anything to do with this 13 phenomenon? . 14 A Oh, yes. As the temperature increases, substances 15 have greater and greater ability to move into the atmosphere. 16 Vapor pressure information Is always specified in terms of the Y i <' v 17 temperature at which the measurement is made. 18 Q What Is the nature "of. the movement that goes on of these 19 molecules in terms of direcfclonandopeed and1that sort of thing? 20 A Well, they move at random. They move at random. They, 21 if nothing la there to Interfere, they can go In any direction 22 until they collide with something elao. There Is--a single molecule is 23 not very, la not affected by gravity to a great extent. 24 Q Now, if you assume, sir, l Td like you to assume the. '/ V \ ' > ,* 40. . 1 following testimony from Mr* Schroy on the 12th of September* 2 Pages 6 and 7* "QUESTION; So the movement that you were talking 3 about in the vapor phase in the material such ae TCDO moving from, 4 if you will, a dirt, small dirt particle* to a small dirt particle 5 through the air that's in between the two? ANSWER: Yes/ because 6 you are going to have a partitioning to the next particle and 7 It will keep happening like that until eventually it works its 8 way to the surface or works Its way down to whero there is an 9 even distribution through the whole soil column. Nature tries 10 to average everything and make everything the came. QUESTION: And * *t 11 this is then the uncaturated, where air la between? ANSWER; That's 12 what I depict here, because X label this "air"* X could cay 13 this was water, but then our model wouldn't fit. QUESTION; Now* Vi " 14 that's the question I had. If there ware water rather than air 15 between those dirt pa,rti'cl,es bocauee you bava r gone'\ >out and 16 spread water or some other liquid that It saturated into this, 17 there would then be the saturated type: of core that you were 18 talking about? ANSWER: hike a rice patty. QUESTION; And your 19 model doesn't deal with the saturated core? ANSWER; No, we 20 don't deal with movement in the fluid phase. If the fluid is 21 liquid. Not that we can't,, we just haven't had the time to do it* 22 We are running experiments at Times Beach to try to get some 23 understanding of that." 24, Now* If you assume that that's Mr. Schroy*s testimony, air, I 1 what la lie d&oeribing in term of movement ia relationship to 2 what you've just described t the jury? 3 A Well he ic really describing the an thinge X think. 4 He Is describing the random movement of Individual molecule of 5 XCDD in which every direction they happen to move and until 6 they trike @me other surface. 7 Q 8w ia the vaporisation .that Hr. Schroy 1 describing 8 a 1 just read it to you* air? is that like smoke going up a 9 hot chimney? 10 A Ho air not at all0:,,, 11 Q What is he describing, in terse:of-movement of the TCBB 12 molecule? -.v ^ 4' \ it' i, `\ ' 13 A What he Is describing* is, X used the word random and X 14 would use it again. The random movement^ the,random direction 1. V , .. , i . I i ,, _i ^ r * 15 that a particle a molecule of that sort would go in a space and 16 It can go in any direction until it reaches another point whore 17 it stop and eventually it will move again.. How the movement 18 of a given molecule le going to be random. Xt can go In any 19 direction. If there Is a higher concentration at one point 20 then that movement would tend to be eventually away from that 21 point because until the limit exposed by the vapor pressure 22 la reached and that probably doesn't happen except In an experimental 23 situation there will be a very slow movement of molecules away 24 from the area of high concentration some will move, back, of * 'v- * * > ' - Ia 'k t,, \ 1 course, Co the earns substance just as if water ia probably 2 volatilising away very slowly from the water in this cup but 3 It is also, a lot o it is returning Just because of that randon 4 movement because water can be an Independent molecule as well 5 as a liquid that we see here* So the net movement, the eventual 6 movement would be a very gradual movement away from the point 7 where the concentration is highest, if the material is burled 8 very, very slowly, it would by this.random movement within the 9 soil, very slowly would work-Its way upward. But a given molecule t, 10 at any time when it moves, it will moveln whichever direction 11 it moves in, and there-is no way of predicting it, it Is all-a 12 question of probability. 13 Q How, If we assume, sir, that Mr. Schroy testified that 14 if TCDD Is in dirt and then clean dirt or clean ballast Is placed 15 on top of it, and that TCOD, in -order to volatilise, would work 16 Its way through that dirt or ballast Just like at Eglln, would 17 you assume that, sir? 18 A Yes, 19 Q That he testified to,that? 20 A Ya*. 21 Q Nov, was Eglin-- what ,,material was being measured in the 22 Eglln experiments? 23 A TCDD, 24 Q ` And in what material ,,was ,it moving? t. r ? ; 43 .1 A Essentially & candy, very sandy soil in sand, say. 2 Q All right. Now, sir^ let me hand you what's been 3 previously marked and put in evidence asPlaintiff's Exhibit No 4 1415 1 wonder If you wouldidentify that for the jury, please, sir* 5 A It is a paper titled /'Modeling the Transport of 2,3,7,8 6 TCDD and Other Low Volatility Chemicals in Soils*'D Again, it f r* 7 Is by Raymond Freeman and Jerry Schroy, and according to this was 8 presented at the, Z presume this.is the American Institute of 9 Chemical Engineering national meeting In Angust of 1984. 10 Q Now, If I can direct .your attention-to Page 11 of that 11 document, sir, where it says, titled "Conclusions" do you see 12 that, sir? 13 A Tea. 14 Q Now, if you look at item number two there of the 15 Conclusions, would you read that item aloud to the jury, please? 16 A Xt says, "The rate of TCDD movement is very alow. The 17 TCDD in the Eglln Air Force Base biodegradation plots has moved 18 only about ten centimeters In twelve years." 19 Q Now, sir, is that what you said? 20 A I think in essence that's whet I wee describing, yes. 21 Q And if Hr. Schroy has testified that the movement in 22 the Sturgeon ball&st would be like Bglin, what would that lead 23 you to believe, sir, as to whether or not the--any dioxin In 24 the soil below the ballast would emerge or would have emerged or /i 44 1 volatilised 'since 1979? 2 A This would suggest that that would not have occurred 3: Q How long is ten centimeters?r 4 A Ten centimeters is W4g.ll .there le two and a half centimeters 5 per inch, so that's going<,.eo fee1about four inches. r, * 6 <J Four inches? ./ %' ' *J 1 / 7 A Yes. * , ,r `{ - i r A 8 Q So it is moved four Inches in twelve years? 9 A Roughly that, yes* 10 Q How, if you look at Fage.3, sir, of that same exhibit, 11 do you have it, sir? 12 A Yes, sir, 1 do, 13 Q What 'is Mr. Schrdy, ^hat are Mr. Schroy and Dr. Freeman 14 discussing there, sir? ^ 15 A They are discussing some experiments by someone named 16 LIfeertI, spelled with ah X rather than a Y. It was published, 17 It is a paper called "Solar and UV Fhotodecompoaition of 2,3,7,8 r 18 TODD, Tetraehlcrodibenao-pdioxln in the Environment", published 19 in The Science of the Total Environment and they were studying 20 the soil at Saveso and they used what are called here deep tray 21 tests. I am not entirely certain what that described, but they 22 shoved TODD losses from subsurface layers after exposure to the 23 sun. Their explanation at that time, that Is, the explanation 24 of Llbertl, et al., was that the loss was due to free, radical - r -f 45 1 movement in the soil column. { And Preeman and Sehroy comment jJ ; 2 that a more reasonable explanation to duo to the transport of 3' TGBD to the soil surface whore it couldLho photocheaically , . 5^ *; * ,. . r ,j / 4 destroyed or vaporised.-. }/ 5 Q Nov, what is the relationship if any between photodegradation 6 and photochemical destruction? 7 A Well, these are really synonymous terms. 8 Q Now, do you have Plaintiffs Exhibit 1148 before you 9 there, sir? 10 A Yea, X have, X have it. 11 Q And X wonder if you t?ould turn to Table 4 in that exhibit, 12 which is on Page 34. 13 A Yes, X have It here. 14 Q I'm sorry, It starts vton Page 33. 15. A Yes * 1 ^ 16 Q Now, what is the-- what's the title of that table? $?hat 17 are they showing there? 18 A The concentration profile of 2,3,7,3 TCDB measured In 19 three soil cores from Times Beach, Missouri And what they did 20 was to go down at, it appears a half Inch, and then perhaps Inch 21 and a half, half inch and, yeah, I think inch and a h a l f . l t is 22 in centimeters, anyway. The first core la 1.27 centimeters. That's 23 a half. And the second Is the ,samo. And they went down,; a total 24 of 23 centimeters and took samples at different levels in eacli of / T1 )' 46 X three spots. "t Q Now,.If we take that ,,first centimeter sir what is 'i 3 being measured specifically here sir? 1 4 A 2,3,7,8. This is an,,isomer specific measurement, 5 23#7,,8 measured In the soil 6 Q All righto And If y^u look at the measurement of 2378 7 In the first'centimeter In each of these cores how ouch is 8 there? 9 A Of the three the lowest .is a little over 20 parts per 10 billion and tha highest 34.6 parts per billion. 11 0 12 when? All right elr. Now, and this measurement was taken 13 A This measurement was ^taken In 1983 yeah. 14 Q Now, do you racall Mr* Carr asking you about the conclusion 15 of Mr. Schoy in this document on Page 22 that over 90 percent 16 of the applied TCDD volatilised from the top one centimeter of soil 17 during the first summer? 18 A Ye 19 Q Now If the measurement In 1983 were the same as it 20 had been during that first summer-- 21 A That was In 1973 when, the material was applied. 22 Q Yes sir. Uhat would be If 90 percent was gone in * 23 the first summer what would the original concentration In that 24 first centimeter of soil be? L 47 1 A X don't know, but It ,,would bo absolutely enormous 2 It would be veil up into the parts per million, the material 3 It was put on,was between 100 and 300 parts per million, this 4 was oil, this was road oil applied to an unpaved street. 5 Q Well, sir, if you have 20. parts per billion, and 6 that's ten percent of what's left, what would 100 percent he? 7 ME. CAKE: I object, ,,your Honor* There is no showing 8 that this 20 parts per billion is ten percent of what's left. 9 THE COUETi Objection is .overruled. 10 A Excuse me, could you ,,ask .me the question again, please? 11 Q All right. X might have phrased that wrong. Let me 12 try that again. The 20.5 to 34*6 that were found in the top 13 centimeter, that's parts.per billion of 2,3,7,8 TCBD, correct? 14 A Tes. 15 Q All right. If 90 percent was gone In the first summer, 16 back in 1973 or 1974, what would the orglnal concentration have 17 been? Could you just multiply the 20.5, or divide It by-- 18 ME* CAEE: Object. Leading. / 19 THE COURT: Objection sustainedB That is leading. 20 Ton will have to rephrase that. 21 Q Bow would you determine that, sir? 22 A Well, It would be very difficult. To begin with, that 23 estimate was made on the basis of a nodal, a mathmatlcal model 24 constructed tan years after the material was applied. In other ' 48 1 words, this is not Che result of a measurement made three months 2 or whatever period It is after the material was sprayed The 3 model Is derived from this information in which they determined 4 a profile and then made some mathmatlcal modeling projections 5 back to tlmeo aero, and then on the baain of that model In 6 other words they undoubtedly drew a logarithmic curve that 7 started at a very very high level and works its way down to the 8 values at the present time. Based on this whole on this whole 9 profile And given that the^material that was put on was 10 between 100 and 300 parts par million and this la applied to a 11 surface not mired in 1 would suggest that the concentration of 12 that soil at the top would have had to be up in tbe easily the 13 tens of parts per million I don't know how what the dilution 14 of the road oil in the soil might have been but it had to be 15 substantial. 16 In other words a good part of the surface was constituted 17 of that oil and so I would say just on the basis of that that 18 the concentration had to be anywhere on the order of a thousand 19 times greater than this figure that Is found ten years later in 20 that top layer. 21 Q Now the 90 percent statement on Page 22 is that based 22 on a measurement sir? 23 k Ho It is based on It Is based on the modelon a mathmatlcal 24 model that was constructed* .There were so direct measurements at i t vi 49 1 the time or-- there ware no direct measurements during the ten-year 2 period after this material van applied The first measurements of that material were made in 1983 the material was applied in 3 4 1973. So what this la is a simulation modela Undoubtedly did 5 it with a computer and arrived et conclusion of hot* much was 6 there at the beginning and how much was there three months later 7 or whatever The Initial slope of that curve is going to be 8 extremely steep the initial disappearance Is going to be very 9 fast and then it will .slow down* 10 Q How you used the term disappearance sir What do 11 you mean by that? 12 A Wells we don't really know what happened to it* It 13 isn't there and that's all that can really be said about It. 14 Dr Schroy usee the term volatilisation, but there Is no evidence 15 to say that It is or is not* It Is gone. The material that 16 was applied la no longer there or most of It. 17 Q Do you hava an opinion as to what the most probable 18 means of disappearance would be? 19 HR CARR: Objections,, your Honor The witness has been 20 examined oh this point \- 21 THB COURT: It is repetitious Objection is sustained. 22 Q Now Dr. Dost if you, look at' Page 22 of this exhibit 23 1148 in Item Ho* 3 theredo you see that? 24 A Yes. *_ S',l } ' ~'l-. i* 30- 1 Q What are the assumptions based upon which this 90 2 percent figure in determined? 3 A Well, he made the aaasurement of this concentration 4 profile and that is, I think, represented, yes, in Figure 4 which 5 is a fairly typical frequency c u m ,,1 suppose you could call It, 6 lie made en assumption shout the Initial concentration of TCDD 7 at the time of application, X don't remember what figure he 8 used, but he did not have direct Information, he made an assumption 9 that I believe was baaed on the concentration that had been 10 measured In the material on a, both in the-- one tank of that 11 residue that was measured by CSC where the concentration was 12 356 parts per million, and then a concentration of 114 parte 13 per million in an archive sample, that is e sample that had been 14 stored, and 15 Q How, what*a the fourth word In Item 3 there? 16 A Are we on Page 22 , 17 Q Twenty-two, air. 18 A Simulation, 19 Q Whet does that mean?. 20 A That means almost always a mathmatlcsl, a mathmatlcal 21 modal that Is constructed with whatever Informatlon>is available, 22 " `1* ` ' ' , and some assumption# that .can be assumed reasonable, and that 23 * * . Includes a variety of physical constants and so forth, and when 24 this Is all put togsther, usually by computer, why, it gives you <C. V 1 1 51 Information about other.components, you know something that 1 happened today and you know enough characteristics of the system, 2 perhaps you can get your model to tell you what probably was the 3 situation In this case ten years ago* 4 Q And the date of this ,,paper , 1148, is what, sir, on the 5 first page? 6 A The date Is 1984. This work was reported in a meeting 7 In April of 1984. 8 Q April, *84? 9 10 A Y e a . 11 Q And in that document* that's where the 90 percent 12 estimate appears? [ 13 A Yes 14 Q In Plaintiff's Exhibit 1415, what's the date of that 15 paper? 16 A That paper is August ,,of 1984. j 17 Q And In that paper, on Page 11, how does he describe-- 18 HR. CARR: Your Honor., this la all leading, suggestive. 19 THE COURTS Objection1sustained. Please rephrase it. 20 Q Does Mr. Schroy have ,,a description of the movement of 21 TCDD? . 22 A Yes, various conclusions. 23 Q And what Is that, sir? 24 A Is that the rate of tgovement is very slow, moves ten s/,' 'V h ,, *. * 4 it-i '* 3.Jv ;i. .:r`\ v r s 'f-.- ' ,' ii J- f'.11k ,1* _, - *i p i * ; -t i j ,,1 - ha S2 . '. `.fj; > centimeters;,in twelve`years. And it sbys the transport of i ;2 TCDD In a aoiXcolumn can be monitored by a temperature driven .g. dif ftwifvtaifwian* dyP*O*C*v*&fvtQv? '-< ? / 7;v*\.j->v'- ^' &* -h 1 .* 4 Q 'j` How* going bnck for a. ooiaant t 1XA8 ,fPage; 22 , Item 3A . ' .. / _y //-? "'* / <- T / ;,r --T,, ./ 5' would you read, that very/b ief ,`pbra graph to the Jr y a l o u d , p 1 ase? 6 A ^ "TCBP will volatility fromaoilsEioatr&pidly during {\ 7.,/ . ^ '77 * // v'V'ro"J- ) \ j ^ 7 `v . -7 77 > -* 1 ^the-summer months'. TCD0/will not volatilise from'soils' to any 8 ; appreciable extont during the: win tor." v 7' 7- ' J-. 7:`V 7 ` ` . - 9 ;j , THE GOnh^ * /Before yougotintoquestioning pf that; 10 are at noon*; Is this aTgood point to break? : ' ;l7 * <'' 1 7 ME. HEINEKAN! Oh, all right. Judge.' - ' r " 12 V` . "1` ` THE COURT: We will break for lunch at this tim. 't ' ^ *1 ^L.`t 1 1 1,1 ^ ; 13- Gentlomou, could I see-you*up.at thevbench for a minute ploaao? FO R M JL-124 R E PO R T E R S P A P E R ft M FG. CO. 8 00-626-6313 . ' *"14~' -,(0too0oJ a; ' 1If5f' /V''. r. *'1` (An off-the-record/diacuso ion was held 1 1 1 at .the`-beneh>.);';'^' _ '`- r ' 8 / ; 16 THE COURT:. LadleG n d gentlemen in order that you not lsL *a: - , 17 have to wait'around so much I* going to ask that, you come back ,j.iita<"tCu-oLc 1 -18*. from lunch;td ay :afe :30 Ins te a d o f 1:15, . We will djorn,:At f 19-: this titne for lunch. Be back at .1:30; The admonishments that I *~ ,_?3 . 20 have given'you e'arller-''wlAl\'pp7 r'idn.ring lunch break also . The 1 . 21 Court is in recess. ' ,/ v -^ /'v' v^ 22; .-23 , /. 24 v. f . '(At. this time Cb^rt recessed for the noon KburJ) (The. following proceedings were held in chambers.) MR. GARB: . On the: fact-Situation that they have/proposed,. '^ .wj - ^ \ H ^^ Ff 3 * V**l? '~'7 ^ ` ' - \ ' ' . /' . l:.. ',.,/ \ \ j p S3 1 everything Jo has given me is relating to experts# opinions 2 action of fch GDC and.this export.category le not. relevant 3 to ths issues In this case and there is nothing except what he's 4 given mo that we have agreed to other than the question did she 5 review Plaintiff's Exhibit 1665 and the date which she did or did 6 not review it 7 THE COURT: Do you h^ve a list or something? 8 HR. NASSIP: X gave him this list. 9 THE COURT: Let me take a look at it. 1133 is what? 10 HR. NASSIF; It la an exhibit in the ease your Honor 11 from the ERA Harry Gilmer of the EPA to another person in the 12 EPA which hue the fact that he contacted several experts 13 including Dr. Kimbrough. 14 THE COURT: X remember now. ^Thank you* Okay X may have 15 cut you off. Do you have anything more that you want to say? 16 HR CARR: I'd like %o go, well X could go over each 17 Individual Item if the Court wanted. 18 THE COURT: No we con xerox that and make it a part of 19 the record 20 HR. GARR: X don't understand. These are additional 21 documents that you want to get in evidence? 22 MR. NASSXF: That's the response to the business records. 23 HR. CARR: X thought this was. X don't have this- this 24 is something different than what we were given* *V .v ! f- 54 i '. MR.'MASSIF:; Youl vetc gltan ,tb0 8 i previously. If you . - ' . .V` j r; *' ,-,. 2 weren't*, you have them, they're either included In there or you: 3 were given them, previously. Between the two of thorn, you should 4 have every document. . 5 -MR, CARR: This is the first I've seen this so 1; have 6 no Idea., ` ' "J- ' 7 MR. NASSIF: I'm jusfc .telling you that you,have those 8 before. . They "have C numbers on them.' T 9 MR. CARR: Yeah. * ' ~\ ' ' * t .^ 10 MR. MASSIF: Those have been produced to you already. il \ MR. CARR: They may he* feut I. can't tell you whether 12 they are or are not business'records that we would ,or would not 13 agr to or object to. I can't make.any comment on this., Judge. 14 I haven't looked at it. . . 15 THS COURT:- Okay. I guess you're handling this, again? 6 .MR'. MASSIF: Yes,/your. Honor, I.acw In terms of this 17 list, your Honor, Mr. arr has/objected to most of what's on. 18 the list as being Immaterial. I don't think it is Immaterial,, j r- * 19 your Honor. You've`seen the list, would you like for m e 1to go 20 down and tell/you why X. think he tried them as material?' ! ' ; 21 THE COURT: Well, theyare somewhat similar. Why ,, 22' don't you make a general argument? 23 MR. MASSIF: The argument la va'rc asking basically; your Honor, vhat did,her'review of Plaintiffs 1665 consist of. 55 1 not vhat the concluded but when did you see the document 2 Doctor Kimbrough what were the circumstances that you saw It 3 what draft did you see and when did that taka place and Hr* Garr 4 has objected to anything but asking her the date and the time 5 that that took place. And ve think the circumstances under which 6 she was Invited to th meeting and the elrcuaetencee under which 7 her review took plaa where she was what that review consisted 8 of we think those are Important so the jury gets the you know 9 the whole picture. If she says yes 1 reviewed 1665 but It wasn't 10 In the form and she Is not allowed to ssy but it wasn't In 11 this form and I never sew this final draft and X sew a much 12 earlier draft that didn't look anything like this*** 13 HR* CARR: I'm not objecting to that* You didn't tell 14 me.that. 15 MR* MASSIF: You're not objecting to har saying I 16 never saw this draft It never looked anything like this? It 17 didn't have these pages In It it didn't have this In It you are 18 not objecting to this? 19 MR CARR: It goes with the question did she review 1565 20 MR. MASSIF: I asked .her what her review consisted of 21 and I meant by that la like what draft did you look at what 22 were the circumstances that you looked at it whet did they tell 23 you you were there to do in terms of this draft document Those 24 are the kinds of things Z think.ve ought to be.able to go Into. T ^* \ ' t' _^t y 56 1 I think we also ought to be able to go into what she was told 2 about Sturgeon, who contacted her, what agencies contacted her, 3 not anything as to what she told then, but to confirm that in 4 fact she was contacted by various agencies* 5 THE COURT: Ho one iq disputing that. 6 HR. NASSIF: Some of .that is not In evidence, the fact 7 that she was contacted by the Occupational Safety and Health 8 Administration is not In evidence. There Is no way we can get ' 9 that In unless we call someone from OSHA, but the SPA person 10 couldn't comment on the OSHA contact, so that's not In evidence 11 at all. 1 think what it does, your Honor, it Is relevant on the 12 point that other agencies were involved In the Sturgeon incident, 13 they were involved in reviewing the health effects of the Sturgeon 14 incident, OSHA was involved in reviewing it. There ie some 15 question about the health of the railroad workers, we have had 16 a railroad worker testify in this case, I think the fact that 17 another agency la involved in that review Is important on the 18 issue of whether the community was left to stew in the chemicals 19 as Hr. Carr has stated on aeveral occasions, and that's why I 20 think it Is relevant, and.the fact that there's been no testimony 21 to date that OSHA looked into the situation in terms of the railroad 22 workers. This is the only lady that can dp that at this point, 23 because we are not planning to have any other governmental witnesses 24 lined up 57 1 THB COURT; Z know I'ja breaking up your argument, but 2 what's your position on the relevancy? 3 ME, CARR: There aren't any railroad workers In this 4 case, your Honor, and OSHA would be responsible for looking at '5 the exposure to the railroad work end not to the plaintiffs In 6 this case. It has absolutely no. relevance whether OSBA was. or 7 was not Involved* 8 MR, HASSI?i Tour Honorf it has relevance as to level of 9 contaminants found in testimony, extensive testimony. There has 10 been testimony by a railroad worker, and what went on In this ease, 11 I think It Is relevant to the case* 12 MR* CARR; The rallrqad worker testified to what he saw 13 and did out there. 14 MR, MASSIF; Right. ,I& goes to the issue of whatever 15 Impression the jury's got regarding any health effect that ha 16 might have suffered ae a result of what he saw and what he did* 17 MR* CARR; 1 wouldn't, agree with that at all, your Honor* 18 THE COURT; Anything ,,alflq you want to say? 19 MR* HASSXF: Tee, your Honor, Why the one part per 20 billion calculation wae entered into has nothing to do with her 21 expert opinion* We're asking her why her agency, why the CDC 22 prepared the one part per billion calculation^ that has nothing 23 to do with an expert opinion on her part. It is relevant to this 24 case, the one part per billion standard' has come up several tines 4 t . / 58 V '; 1 in this ease and X think the jury's knowledge of why the CDC 2 prepared that 1 important for them, to understand the relationship 3 of that ona part per billion figure and to the facte that they're 4 trying to assess, and X think her stating ehe agency's position 5 on why the one part per billion figure was reached doesn't involve 6 any export testimony on her part. I think the fact that she did 7 certain actions in tarns of previewing railroad worker blood 8 serum analysis also goes to the same issue that the people weren't 9 left. She also did this for residents of the town of Sturgeon 10 at least one child. Thatalso goes to the issue of whether these 11 people were left to stew In their chemicals. They were not. There 12 vae a follow-up from the agencies Involved through the CDC. X 13 think that also goes to the issue of whether people were forced 14 to sit and stew on the chemicals. Her impressions of the levels 15 of dioxin as were told to. her by the CPA goes to the very issue 16 of punitive damagesf not what her expert opinion Is, but what 17 she was told were tha levels of dioxins there and the type of 18 dioxin present goes to the vary issue of the punitive damages 19 because Hr. Carr has saidwe have hidden or we hid or we did not 20 disclose what knowledge ''ye^have of the possibility of 2,3,7,8 21 being there and what position she heard and received from other 22 government agendas goes to the issue of whether that information 23 was In fact not disclosed or hidden or whatever, but X think it 24 is important to get her testimony as to what type of dioxin wee 59 1 there end the levels. 2 THE COURT: Are you saying her knowledge constitutes 3 notice? 4 HR PASSIF Tes it,does constitute notice. 5 MR. CARR: 0 what sons other government! agent told 6 her? Hearsay. 7 MR. MASSIF s Tes it^constitutes her knowledge 1 knowledge 8 of the government. She le a government employee, her knowledge 9 ie knowledge of the government if the government knows, and then 10 we have disclosed, that ig notice to the government. I mean, 11 she is not soma-- she la s .government employee, I mean, that's 12 what her job is. 13 THE COURTS There io ..no argument about that. 14 MR. MASSIF She la % government employee contacted about 15 this Incident by other government employees. 16 THE COURTS You are saying that conveyance of knowledge 17 to her constitutes proof that the world generally or the world 18 of expertise was put on notice and that Monsanto did not , 19 fall to disclose? 20 MR* MASSIFS Yes, exactly. It constitutes notice that 21 thars was no failure to disclose ^or no misrepresentation because 22 they In fact knew, the government in fact knew, and she is s 23 government employee. 24 THE COURT I can't possibly agree with that .line.of * i '7 - [- -$ V j' V t > :~7\*-r. *. i'* j v , v .j 60 i logic but go. ahead* *, . , '/ `' s^ ' 1 2 / UR* NASSXF: I think ,,her..testimony. regarding facta within 3 Defendant's 11193, the Information contained In the.documents does 4 not require expert opinion on her part to say yes, 2 had that 5 conversation with M r Kleopfer and.to the beet of my knowledge 6 It was at the time that.that document indicates, and I, recall 7 that converaatlon and those, are the questions that ho asked. -8 TEE COURT: Is the existence of her compensation an; 9 Issue?. *' ; `i 1' ' ^ r i,; v v- _ f ,, ,, * ' . ' f 1 ,, 'r " ;f;lf 10 MR.NASSIF: It Is ot)ly an issue in that Dr. Kleopfer was ; **/L"'r , -. ' , i t` 11 not able to testify aboufetbse document* 12 ' THE COURT: That'y nqtvhat T asked* la the existence 13 of the.conversation an Issue?. 14 MRc HASSIFi Perhaps jioe in.our minds, but in the Jury's 15 mind.since no one has .been able to, testify that that conversation 16 took place* They saw the document and ^tUey rcad the document 0 17 but there is no one that said yes, that conversation took place* ' - ' . ^ ' v . ',: / *r- A > r~'- v,: ^ ; .* ,, . . - 18 THE COURT: Then doe^u11.'thatv make it a ;non-issue then 19 if no. one is disputing that it took place? /. 20 ' ' - 0 / ''i\> '"} ;; k,!5 . ' ^ j- / , ' V " V * ' Vy ' MR* NASSIF: It aks4 it Ca non-*lesue" in our'mind, but 21 X am not sure that the'jury knows 'the conversation took place* 22 THE COURT: If.lt waq read to .,,them and no one Ha'/." 23 disputing, them how.could they not knoy It didn't, take place? 24 What reason would they have to, think' that.it didn't? They should 'J- | j* ^' 61 1. knot? that it took place, But her testimony, are you saying that 2 she shouldn't have to testify on it because It is redundant? 3 THE COURT: 1 haven't reached any conclusions yet. 1 am 4 just asking you the questions about them in my mind obviously. 5 MR NASSXF: Fair enough, 6 THE COURT: And I will try to make them louder I 'm 7 fighting off whatever is going around, too, 8 MR, HASSIF: We ohould be able to testify on actions 9 taken by the CDC regarding what she has personal knowledge of 10 regarding Sturgeon That's just factual steps, steps that they 11 took regarding Sturgeon once again on the issue that people were 12 not left to stew in a sea of chemicals* that actions were taken 13 by government agencies and not' since your Honor says she could 14 not do It on the basis of any. expert opinions, then what the 15 results of'those actions she cannot perhaps testify on, as you've .f ' ,1 ` , `1 ; 16 already ruled, but the:fact that actions were taken'goes to the 17 issue of whether people were.left to atew in the chemicals 18 And there Is one other, your Honor. One of those 19 actions would be whether or not this agency recommended an 20 evacuation of Sturgeon, and if they did, have they ever recommended 21 an evacuation of any dioxin cite, and I think that goes to the 22 issue of, once again, actions taken and whether they were the 23 agency that recommended to the BPA that the town of Sturgeon 24 should be evacuated. i ' r T< 62 1r 2 THE COURTS Do yets hay say thing you want to sayf 1 HR CARR: Tce0 your .Honor. H I night hay your list* Joe for a moment Her avsranaos of the apill at Sturgeon has 3 got no materiality to anything whether or not the CDC got 4 contacts from various individuals or agencies I don't think there 5 1 any suggestion that Monsanto contactad CDC, 1 there? That 6 would he the only relevance to that 7 The questions asked of CDC sra not relvent why CDC 8 was contacted would not be relevant did the CDC prepare the one 9 part par billion calculation la not relevant whether or not 10 11 they reviewed the Sturgeon spill is not relevant her agreement 12 with the one pare per billion la again not relevant and/or calling 13 for expert opinions the review of data of.analysis of railroad 14 workera and they put in'here' and people at Sturgeon all I've 15 got so fsr is that she reviewed the railroad workers I don't 16 have anybody at Sturgeon at least 17 MR NASSF: That six-year-old girl that had the-- 18 HR CARRi Hell there was no data there all there was 19 she got a report according to what you have given me but anyway 20 that would be celling for an expert opinion certainly not a 21 factual matter Her impression of levels of dioxin at Sturgeon 22 as to who told her 1 it la immaterial as to who told her and 23 levels calls for an expert opinion testimony as to 1193. Of course 24 I think I already mentioned that the jury knows all those things `tf.: : 63 < l and there is no issue as. to those contents therein, and that's 2 all X have to say; your Honor. t 3 THE COURT: New, she\& just supposed to be here Wednesdays 4 right? 5 HR. HASSIT: Tea your Honor. 6 HR. HEINEMANs That's my .understanding; 7 THE COURT: Having looked at that Hat* which X do want 8 to xerox and make a matter of record because this argument in 9 chambers X think makes more'vsonsa on the record and X think except 10 for the question of what ahe did as t o .that one Plaintiffs Exhibit 11 that what you stated that list is either Irrelevant and a non-lsoue 12 or would involve expertise, probably both, in the delivery of that 13 matter on cross examination. And X think basically it constitutes 14 again a way of getting In expertise without calling an expert, 15 without calling someone an expert hut calling them as an expert. 16 And X think the points and objections raised by the plaintiff are 17 wall taken. 18 I have been thinking about this situation with the time 19 limit that we've got with her being here and the very limited 20 amount of what she would In fact testify to In front of this jury, 21 also what would apparently be an extensive examination both direct 22 and cross on an offer of proof, and also the past history here 23 of after various examinations outside the presence of the jury 24 some objections being dropped, and also the idea that an offer * -*** V-*.O-* i'.f;Z'f\ y vv -Iri?; V + * ' "" ' ' \ j' '/ *.* ' ' ' Y '' : . ... ,i !, ** ' r- - ;*<.* >*^'r\\ll. j* --r . ` . : 64 . 1*),* ' i " * j - ," *r . " r -k, - h , s. \ .- if . fc * r ^ 1 " - \tf-* t '- , , '* :^ i**i*-1\ - * >; L *.*5. ^ r ~ _ . I ; 'of proof Is Qadc to "aome esteat In & position so the Judge can . . ;/ '2 listen to vhst is being offered, evaluate it, and I s m thinking ' ' '. t p mf *p 3 seriously about having the offer of proof.and when the offer-of < 4 proof is overp whatever at that point in tine she should testify . 5 to, she would testify t.Otherwise we could have a.situation 6 of toatinony in.front of a Jury offer of proof, and than calling 7 her baek again* And under thc'eircunetances, 'I think that we 8 night be best advised /.to spend Wdady von, an offer of proof. . -v . r. - ii ./ ' > \ . V / '" - VV'a .V,V * ,r * V `j -l ' , tf : *j *-'r" 9 ' At-the end of that tine,-vead apparently-will go on beyond Wednesday; f. i. ' j, -^ ", 10-. at the and of the offer of proof, whenever/that would b concluded, - / ; ' / . , ;* _; : ` / ` ' 11 we will heve a detsrminatioa-"bQ able to nSke e deternlnetlon of 12 whet la fact she would be allowed to testify to in front of ' 13 this Jury other than the few minutes thet would be Involved in F O R M ILi-12 4 R E P O R T E R S P A P E R a M F G . C O . > BO O -626-6313 d 2n(0 - .*, 1-4 .Oo(0 15 ' 8 16 o . 'Q*tCutL - 17- lE111 18 .ID2lCl, - 19" l J5j * 2 . 20 21 her review eetlone and, if any, with that ona Plaintiff"Exhibit What*s your poaltlOnT CAHU: Thatfof i n e withnc; Judge* ' .` THE COURT! I havohad the practice before of a vltnesa leaves the stand by asking If thera is any offer of proof to be asde, end that's one of the reasons why both for the person being thers and whether,the offer of proof lsLtpstlmOnlel, show that if some part of It.should be testified to, the person would 22 be there, and X think this would be lts accordance with that. 23 MR. NASS IP: The only issue X have with that is the i , 24 j. . .v t jury will not be here tosorrqv, froawhat you srs Indicating* t` ., ' ' * `` ' ' "r" `*' - ` \ ; *' ' 'j. ';/ . '- r ^ ,: r , *' * - V ^ ;' - . ' f'j*V*'> % rV ` V, .- V:'/" (t 65 1 THE COURT: Right. That's what I fits Indicating. If you 2 say It la going to take two hoots, with our great record on 3 estimating times. It is going to take two end a half or three. 4 If Mr. Carr says a day or two, it will take.at least two. 5 HR0 CARR: 1 really don't know how much time it will 6 take, Judge. It depends,on If' they make an offer of proof on 7 all those points. 1 see no way they can get through. This Is 8 a thick list of documents here, an interrogation of that alone would 9 take hours. 10 THE COURT: And apparently she is only allowed to he here 11 one day, anyway. It seems to an that-"it seams to me chat; you 12 know, we ere talking for sure taking up all of Wednesday on an 13 offer of proof. 14 MR. HASSIF: Judge, In.the event that she could not 15 come back and parts of her .testimony were deemed admissible In 16 front of the jury, would we be able to read that part of her 17 testimony? 18 THE COURT: I would not want to rula on that until if 19 and when that came up. I really, X would not want to take a 20 position on that tmloss I had somathlng solid in front of mo 21 upon which I would be ruling. I don't vent to be put in a 22 position of an advisory ruling. 23 MR. HEXNEMAHs Here le the situation that we are up 24 against. The government has agreed to make her available on this i ,"'v. >;' 1, 66 1 one day. I've just gotten a note, a message that tells me that 2 she has to be out of the courtroomby three o'clock tomorrow 3 afternoon to make a return.plane to Atlanta, and that's what 4 she's got. And It seems to*me to.be very, unlikely that she is 5 going to come back voluntarily. f To that end, if there is anything i 6 that we can agree that she can testify, namely this 1665, X 7 would appreciate the opportunity to have her do it now before, 8 I mean, I know that it would be inconvenient to have the jury 9 come in for a half an hour In the morning, and that would be 10 inconvenient. But the problem is If wo can at least get that in, 11 then we will have the opportunity to do that. If we don't do 12 that and we are stuck In an offer of proof situation, we may 13 never be able to get her back. Wo may be in the spot that we 14 are in with Eleopfer where wo started an offer of proof, we can't 15 finish It, and Mr, Carr agreed that If he would not eoae back that 16 1 could summarise it, which is something I'm going to have to 17 do because X have been trying to get him to come back and he 18 won't. 19 So ve are very likely going to be in the spot where 20 we're going to start the offer of proof, we're going to get part 21 of It done, oho is going to get np and leave and ve are not going 22 to be able to get her back. So my request to the Court is we be 23 permitted to at least let her testify first thing in the morning 24 on the things, the one thing, apparently, depending upon how the <*, ` T V^ >! 67 Court rules, thet wo can agree to and then excuse the Jury and 1 then go into the thing' 'Because otherwise we will never get her 2 hack to put that on 2 can see the handwriting on the vail, 3 that's been made pretty clear, ehe eays she's leaving at three 4 THE COURTS Do you have anything you want to any, Hr Carr? 5 HR CARR: Well, I would 4eey they have the right without 6 agreement from me or from the Court to put her on as a fact 7 witness to prove that one feet, If they went to, whether ehe did 8 9 or did not peer review thet article without getting into the 10 contents of it, and I can't object to it if they want to do it. And if the Court wants to call the jury back for that short 11 12 period of time, I think It la a misuse of the jury time and 13 it ie an imposition on them to bring them back for what has got 14 to be essentially a non-issue In this ease. X don't think it 15 means two hoots in hell what ehe did or did not do She wee on 16 the peer review penal, end apparently she la not going to say 17 she saw the lest document Nobody ever said she did. But if 18 they went to use up this time In that way, X personally, will 19 not object to It But X think the Court's judgment is correct, 20 but if they want to use that time In that way, it Is their nickel. 21 Sut.it ie the Court's time that we are concerned with and the 22 imposition on the jury. 23 HR REXNBMAN: As X 'v q conceded to the C o u r t t h a t ie 24 clearly, it is inconvenient for the jury There is no doubt about r- * vN/ t < -t 68 1 that and X concede that. To come In for ah hour and then go 2 back home, that la an inconvenience to then. But on the other 3 side of the coin I 'm looking at the possibility that X vlll 4 never get her back and if there is anything X can prove with 5 her X'd like to do it. 6 THE COURTt Well* let xte .ask you something. If you 7 foresee her not getting back and you have only got one day and 8 everything, how did you expect to cover all this to begin with? 9 HR; HRXHEMAH Hy expectation w&a that X wan going to be 10 able to put her on in two hours, that she would be crossed the 11 root of the day and that would be it. 12 HR* CARR* Hr. Belne&an,Tthe H a t of things that you 13 gave us that you ware proffering her for as an expert witness 14 touches on every Issue in this case. How, what your other expert 15 toxicologists have said, and you have seen the cross examination 16 on these points have taken days with these people and I submit 17 that you are not in good faith knowing that she could only give 18 us ono day, you are not in good faith in offering her so an 19 expert witness in this case. 20 HR REXBBHAHs Hell, ,,X*m^sorry that you have that view. 21 HR. CARRs Well that*a just my feeling. 22 HR. HEINEMAN: It grieves me 23 HR. CARR: It grieves you? You are not crying Kenneth. 24 HR. HEXH&HANi I know. It grieves me that you feel that ' `V iA*-*' y : ,/6 9 i. '* 1 vay. But nevertheless* the fact of the matter is that 1 think* 2 if I covered the whole gamut* that I could get her on and off 3 that stand In two hours. 4 THE COURTS There 1 *no *ay. 5 MR HEINBMAN: That 1 with my examination. 6 THE COURTS Ho* wa're going to spend whatever time we 7 have tomorrow as an offer of proof. If she has to leave at 8 three* then from thraa o'clock until five o'clock we will finish 9 up on those evidence depositions. I am not going to do this in 10 a cart before the horse* backwards type thing. You proposed 11 all this stuff* ve'ra going to cover it and we're going to do 12 it the right way* and that's the way It is going to be. 13 MR. NASSXF: Then* your Honor* va don't need to go over 14 these documents then at this point in time because we're just 15 going to have an offer of proof. 16 THE COURT: Tomorrow., 17 MR. MASSIF: Then we .,,can3 0 over the document In the course 18 of the offer of proof. 19 THE COURT: Sure* absolutely. 20 MR. CARR: Okay. 21 MR. HEINEMAH: Nov* with^respect to the remainder of today* X have no ides how long you plan to-- wait s minute* I'm not finished. I've got the witness* that's right. What's the matter with me? e 1 ,A .'iff: Y f . i ) 70 1 THE COURT: Are you 4one? 2 MR, HEINEMANc No, I ,,am t&ot, But we called, when X 3 got back to the office! X talked to Coach Odneal and he advised 4 me that he's got to coach a ball game. Hi* team la in a 5 basketball tournament and he has to go back, and it is a three 6 and a half hour drive, and he wished me a fond farewell, 7 THE COURT: Why don*t you use hie evidence deposition? 8 MR. CARR: You told us that Already, Kenneth, ` 9 THE COURT: Well, you hadn't told me. Why don't you 10 just use his evidence deposition. We will clean that up and 11 we will read 16 of them Instead of 15 of them, 12 MR, HEINEMAS: X don't know if 1 went to do that, X 13 may want to have him back later. We may end up doing that, 14 depending upon his willingness to come back. But X prefer to 15 have him in person if possible. Whet X was getting at is that 16 if Frank doesn't finish today--if Frank does finish today, and X 17 would think that he would, X don't have Odneal to put on afterwards. 18 And so what X was going to suggest, If it is all right with the 19 Court, la that at such time we go ahead end let the jury go and 20 tart on the 15 depoa, MR. CARR: No, we've ^got ^four to read. Why lose that jury time? We hava some not read as yet. THE COURT: Wc .havo four ,to read, exactly. I forgot about t* those. We had gone through theta, but.we hadn't got. to them that -v *V i 1 day. . 2 MR. CARE: Thou ..wbenye get through with them, then we 3 can recess end let the jury go and go do our work, but that's 4 some jury time we can use. 5 THE COURTS Exactly,nI forgot about those Okay, we will 6 do It that way Okay, wary good. 7 Oh, one other thing. r. When is she going to be here 8 tomorrow morning? 9 ME. HEIHEMAH* At starting time. 10 THE COURT: Okay, at ,.9:30^? Fine, start at 9:30, 11 (The following proceedings were held In 12 open Court.) v 13 THE COURT: Okay, lad.ies ,,and gentlemen, again X apologise 14 for your hawing to wait until, we had soma matters that had to 15 be taken up outside the presence of the members of the jury,' and 16 It took a little longer than I anticipated it would. 17 And also, in keeping ,,with our policy of letting you 18 know days when we are not going to have Court, we are not going 19 Co have Court tomorrow at all. ` There will be no Court for you Y' 20 tomorrow. So if you would,'after you're let loos today, if you 21 would come back Thursday at 9.s30v all right? Thursday at 9:30. 22 Mr. Heincman? 23 MR. HE IHEMAH: Yes, 9>r..; is 4' t \ "> 24 Q Sr. Post, let me direct your attention again to Defendant's >. , < J 72 1 Exhibit 1143. Do you still havo*that before you there, dir? 2 A Tee, sir. `3 Q And it is Page 22. Tou see Item 3A there, sir? 4 A Tes* 5 Q I think we had just started to look at that just before 6 we broke for lunch, isn't that correct? 7 A I believe b o * 8 0 And 1 wonder in fchat._very. brief paragraph, if you would 9 read that aloud to the jury. 10 A "TCDD will volatilise from soils most rapidly during the 11 summer months* TCDD will not volatilise from soils to any 12 appreciable extent during the winter" 13 Q Thank you, air* A n d VI would also like to ask you to 14 assume, sir, that Mr* Sehroy testified to the following in 15 Court on September the 12th, 1985 on Page 107 "QUESTION: It 16 still has th liquid in It, but no longer In what we would 17 consider a liquid form, It still has orthochlorophenol, all'of \ . * 18 this soil still has the orthochlorophenol in It, would you assume 19 that, sir? ANSWER: If the voids are filled, then there is no 20 gas space, so you can't"vaporise. That's my problem In terns of 21 liquid* QUESTION: Is what you are saying, Mr. Sehroy, that if 22 the soil is saturated with OCP, orthochlorophenol crude, TCDD, it 23 says can, I assume It means can't, escape? ANSWER: Can't 24 volatilise QUESTION.: Can't volatilise? ANSWER: Tes, sir* i s, ' V' ^ , ' t, < *V.` iv ^ ' - i 'k. V, i/V 73 1 QUESTION: Hbaa-the'. OCR. l3 \7flehod oui *ad thca that ceil dries, 2 then can It volatilise? 'ANSWER j . :it'-'ean start,* yea, sir' ' .' ' v k . V'-/ k v ^ V , '* ':; - * 3 QUESTION: All right; \So hut it deasn't do that, to any great '4 degree In very cold weather does It. sir? ANSWER:- No, sir. k ..V \ k k ' \ ; k'k'k " ' '` ' k ' ^, 5 That's oho'thing the_ study that ve have published shows# that you 6. get a peek lat h e suaaer and it drops off .to very low levels In ` ` 7 cold'weather o' QUESTION: So It starts to /do It- then when the .*8 warm season domes in the; spring? ! ANSWER: Much faster when It 9. ia warm* QUESTION: Solas'rfar as' Sturgeon la concerned, baaed ' 1 " ",-^ '`f "V ^ upen your/studies , rl we had cold weather In January and February : . 1 , '. - -;1 >' ' , L"'' ' ' -`V--1- *- v - '' A ` ' ' -i J ' ,, ., V. -11 .'Started, warning up in March, April. and May, that's when the ' 12 'VS " 11 k / "'v,=. " V,:V * ~IJr`` :TCt>I)/would^ start volatilizing , that;?s tn .> this T1 t; top layer ` of ` F O R M TL-1 2 4 .R E P O R T E R S P A P E R & M F G . C O . 8 0 0 -6 2 6 -6 3 1 3 13 soil?\ ANSWER: The rate would/ increase probably :about June 14- would he when it would really; start causing problems when it -. 15 : ^'5; .'V k'\kk> ' -l- 1 really stares 'to gat hotvHkf 'k;;; ;"//ik'k k k .*-L* ;/ - "., ` * `' - k - V- ' ;t>. j* , ^*-1.^' V' , 16; .:/ . -J-v'/ .: , 1 '* / . : ' - :r :Aasutae that's what hai testified', air. '1-7 A Tea. ' \y's - .. 'tt- , ; -v 'j sv* v. v ^ v~\ / t.' v. -... - yr5. r 1 ty : r * - -j. , -, :h " . " u- ' , .,'.18; . .... , , . ,. >. .. - -- .. - Q Now> sir,. I'd like you further to assume that beginning ;! -,t ^ '":>/- f, . "`-'V-'.i-'; ',19- *'' ^ - `v" t' i'k'k ' ' ; ; - ' in January, 1979,,all the material betwoentha tleo/ln the . 20 !' mmlu track was removed;.to ;c depth of six to eight Ihehea below 21 'k " / k ` ' k ';* /'V,Vk k ',. k k ' '! 'f..v the; bottom of the ties, ee veil as ell material between the.ends ` 22 of th passing track ties north of the railsv- In addition, .23 . assume that all material- between the passing track ties was ^ i* /24. removed te a depth of alght to ton itiehee in the western .150 to '";`'^ T.;; - L , -iVA;- 'v"A . .r . - *' X.'. ^ *>R,?.,1J-iI\k V?< 'f. ;r^;* ,1 ; > ' 74 JU < 1 200 feet of the spill ares where the surface, of the snow end 2 the ballast of the passing track had been visibly discolored V , ^L 3 by the spilled chemical X want you to further assume that by 4 March 1 1979 4,500 drums of material cribbed from the treck 5 had been removed from Sturgeon Assume further that the.cribbing 6 operation after the cribbing operation a ditch two and a half 7 feet wide and four feet deep was dug between the passing track 8 and the main'track from Ogden Street to the place where the tank 9 ear came to rest* Assume that additionally that an undercutter 10 removed the ballast and earth between the main track to a depth 11 of 46 inches In the 200 to 240 fpefc of track where the most ri 12 chemical was pilled and to adepth of two fact for the rest of 13 th* main track Assume that some dirt was removed from the 14 ditches around where the tank car came to rest. Assume that by 15 March 1 1979 2655.3.cubic yards of soil had Keen removed from 16 Sturgeon and assume that throughout January and February the -,, - , : * 17 weather was nearly always ,,below fraccing sometimes as low as 18 20 degrees below aero. Mow sir based upon the matters that i 19 X have asked you to assume and the testimony of t>r*~-or Mr, Schroy 20 that I have asked you to assume do you have an opinion sir as 21 to whether by the time the weather got warm there was any TODD 22 in the. top' layer of ballast or soil in Sturgeon its order to ; 23 volatilize? 24 A Yes X have an opinion " ' i*. 1: ' 1 y i' r'f `' 75 1 Q Hhat la that pinion^ sir? 2 A 1 believe that therewould not ha any TCBD In that gone 3 that vag cleaned. 4 Q Nov* sir, I 'd like to ask you about again Defendant's 5 Exhibit 1146 Mr. Carr was asking you about Table 3 which is 6 on Page 32. Do you see that elr? 7 A Tea X see it. , 8 Q And X'd also like you to,look at Table 2 which Is on 9 Pago 31 Do you see that sir? 10 A To . . ** fr ,, r` i ti W A V' .* i t ' ,, , '* 4 "* ' ' -w , 11 Q How Table 2 what lq the information that Is set forth 12 there according to the title? .* *- 1 V v f' 13 A MTCCC Concentration 1% Air of Nash Microcosm Experiment*11 14 Q And on Table 3 sir., ,,what Is the Information set forth 15 there according to the title? 16 A "TCDB Concentration in Air. Nash Field Plots." 17 Q Thank you. air. And I'd like to direct your attention 18 I M like to direct your attention to Page 7 of the same exhibit 19 sir* Do you see the first paragraph on that page? 20 A Tee. ,, ,21 Q I wonder if you would read aloud the statement In 22 quotation marks well, just beginning the sentence before the 23 statement In quotation marks set forth there do you see 24 beginning with "Nash"? i , > '<f V ,1 \ '*tvM i- - .i 76 <1 A Oh, yee Nash observed that, phetodegradatlon was important 2 la hie field tests "If the sir had boon sampled only during the 3 daylight or if va had continuous light probably there would 4 have been little or no labeled TCBD trapped 5 Q Now, what is that referring to, table 2 Table 3, and 6 this paragraph, what la Me. Sehroy talking about here? "7 A Be was talking about ,aa experiment that was done by 8 an investigator Ralph Nash end, a colleague ,! think that wae 9 in Nash and Beale and^theyfconstructdvhat is known as a *w 'f ; T Lj> ,' /*' . 10 mieroeoem. that is It 'is^s'n..ecosystem In a container like a 11 terrarium perhaps in which all of the components are there* J jP 12 they grew a crop la thorn. This is & small vessel but they 13 grow a crop* And In this case treated that area with an herbicide 14 called Slives which is very much like 294,5-T 9 which also is 15 contaminated with 2378 TCBD. That's the data In or part of 16 the data that they obtained that's referred to in Table 2 And 17 then In Table 3 they conducted an experiment with a rather email 18 plot out on the ground two piote one of which they shaded with 19 a piece of plywood, 1 guess 20 <J Now, what is the importance of the statement that you 21 road aloud with respect to the daylight and non-daylight? 22 A Veil, they are recognising the fact that in the light 23 ICDD la degraded, subject to photodegradation. 24 Q Would you tell me sir this microcosm that you have o; V ' 77 1 described* it la like & terrarium? 2 A Wei1* in a way It is b closed* it is a closed system. 3 It le in glass in the aystee that they are using here, the authors 4 of that of those researchers* sat it up so that they were controlling 5 the flow of air through the system and trapping material that 6 was in th air as it exited the chamber It is a growth chamber* 7 In effect* i, ; 8 Q Does It have dirt n_it7, 9 A It has dirt in it It. has plants in it t think they 10 planted grasso if 1 renembor correctly It has earthworms In 11 it* presumably the important components of a small* they call it 12 an agro-^mtcroagroecoeystsm* 13 Q A what? 14 A A microagroecodystam*, 1 ^ 15 Q Okay. ,. , 16 A A little* tiny farm in a .bottle* 17 Q All right* How then* how do they manage the air? , ' 18 A They draw air In through the outside and run it through 19 a filter which they tasted that will trap all of the herbicide a, ' 20 and the ?CI>D* any TCDD that's in that atmosphere* so they are 1: * V'" 21 i running air through this system all of the time* 'I ` 22 Q Nov* how did the TCDDget Into that system? 23 A TCDD was a contaminant in the herbicide. They used two* 24 If I remember correctly* they ueod two different products* one .ft V' :V ^ r.(. ; * ' 78 rC 1 which was contaminated to the exteat-of 44 parts per billion* 2 X believe* and the other'which was contaminated to the extent of 3 seven and a half parts per million* 4 Q The first was what*.$gain* sir? 5 A Forty-four parts per J>il3Li6n 6 Q And the second? ,, 7 A Seven and a half parts, per million. 8 Q How* in the system like this* would there be anything 9 like wind? lO- A Well, there is air movement through the system* yes. ll X do not know the velocity of the air, X do not remember what the <; i / 12 flow rate was through that system,: but there is a continuous \ j. \ 13 exchange of air. . 14 Q How* would there be %h'exchange of air comparable to t *j -I. ' y > ' _** 15 what you would find outdoors in a* for example* along the ' * 1 1* 16 Sturgeon railroad right-of-way? 17 A X doubt if it lo that rapid I 've seen information that 18 the average wind velocity in the Sturgeon area is seven* around 19 seven miles an hour. That9# 11 kilometers an hour And that 20 would be* X think* a much .higher, much higher exchange rate 21 than was taking place in this system 22 Q Hov* let me ask you further to assume the following 23 testimony by Dr. Scbroy* excuse me* Mr Schroy. "QUESTION: Sure* 24 and of course the closer you are to the ground* that la a child* if - , ,f ' 'V v '!' - mr* 'i ' 1 JJ /. ri 79 it ic a vapor in the sir the a m . likely that child la to inhale 1 that particular vapor Would that ha a lair etateaentD children 2 being smaller shorter than adultsf ANSWER; Baaed on the 3 literature9 I can't really agree with that. QUESTION: Well 4 5 whet Is It you don't agree with?+ That children are not shorter 6 than adults or that it io not vapor In the air? ANSWER: Dr. 7 Ralph Hash writes that during the daytime that the samples he's 8 collected in the air would contain no TCDD. The only samples 9 that really contain TCBD wore those that were collected after 10' dark." Would you accept that testimony from i>r*-- from Mr Sehroyf 11 1 want you to assume that he testified\t that* ./ - V * .,,.-* : ' 12 A All right. ~ , - . ' 13 Q How what is, what w^re the Wash people.able to, find? ,/ v -> ' i i 14 What did the Wash experiment find? ^ ' 15 A Well, they found In t-heir trap they had they used a labeled 16 XCDD. We've discussed tritium labeled TCDD, a radioactive 17 hydrogenand they were able to trap the label In their system* 18 And now I'm not sure what you're asking me what did they find? 19 Q What X am asking you, sir is did they find any TCDB in 20 the atmosphere? 21 A Yes ,,. Q All right. Now was ,,that TCDB in the atmosphere in a vapor state or was it on a dust particle or can you tell? A Well X have no information that would tell me* nV.V..V.a- l'.-- 'I 1 -i 80. 1 Q And in their experiments, sir, at the ad of-- -at one day 2 how such TCDD did they find fro th Silvaa? 3 A Well, they did two experiments The one that they did 4 with the high concentration ie here and the ocher one with the 5 low concentration they found that had 44 parts per billion 6 contamination and they found la the,air aonething on the order 7 of In the first few hours about 50 femtagrams,;" . A femtagram Is a 8 thousandth of a piccgran, which ie a thousandth of a nanogram tT i . v ' : > \ 9 which la a thousandth of d microgram et estera* They found 10 about 50 femtsgrams per cubic meter* +'h w* ! < `r 11 Q Do you recall what t%*7 found after a day, air?. 12 A It was down on the order .of 13 HR* CARRs What1a the, citation for this counsel? 14 HR* HEINEMAH: would bo glad to have it marked. 15 ME. CARR: No what5* the citation? 16 MR* HEINEMAN: It is ^the ,,Nash study* 17 HR. CARR: Has It bee,a marked? 18 MR* HEXNEMANs I wiX3L b Jaappy to do that. ,J; 19 MR* CARR: May we approach' tb bench, your Honor? 20 THE COURT: Sure* ^ * 21 (The following conference was held at the bench.) 22 HR* CARR: Counsel io doing by, trickery that which he 23 knows he is not allowed to do. This witness io putting In facts 24 and data fro a document that Is not in evidence, a document that '*( v , > f* 81 has not been supplied to us, and completely improper, and he 1 Unova that he cannot do it this way* 2 HR BEINEMAN: Your Honor, this document has been supplied 3 to the Plaintiffs, 4 HR CARRS Whether it/s been supplied to us or hot, I 5 1 Ji Z* 1 6 would have to go bade va'nd/,,r\esearqh t*hat X don't think it h*<as been, but the point is that he' knows he cannot :get this facts 7 8 and data Into evidence. He can cite the source, he cannot get 9 the facts and data into evidence through1 this 'witness in this 10 fashion 11 HR HEINEMAN? Your Honor, this 1 not a matter which has 12 never come up before, this particular paper* This Is a document 13 which has been quoted, discussed In the Sehroy data, which.is 14 a document that*a in evidence* It is a paper which Hr. Carr 15 hae questioned Hr* Sehroy about* 16 HR* CARR) Z have not X have never had that document 17 In my hand and X have never questioned Mr, Sehroy about It* 18 THE COURT: That la not' In evidence, Is that correct? 19 MR* HBXNEMANt To my^knowledge, this particular paper *j 20 is not* MR* CARS; Xt has never been marked, it has never been referred to by me* . MR* HEINEMANs It certainly has been referred .to*. r HR* CARR: Sehroy referred to It and he cited in his `*r 82 1 article. 2 THE COURT! Assuming^that it has been supplied to the 3 Plaintiffs1 counsel^ the objection ig sustained on the other . 4 grounds of the objectiIoJnm*, s orrf yi will*- dteal accord'ing*'lMy with It 5 MR. GARRs May X have a copy of it counsel? 6 MB. HEIHEMAH: C e r t a i n l y { , /'" 7 (The following proceedings were held In 8 open Court.) w,, 9 BY MR. HEXHEMAH: , 10 Q Dr. Dost X would likoypu to assume that it has been 11 testified to In this case by Dr. Roush of Monsanto Coupany that 12 the Center for Disease Control has established a doae which 13 compares to their one part per billion In soil of 44 piebgrasas, 14 44.6 pieogram* per day for a 70 kilogram nan, all right air? 15 How dose that figure compare to the data which appears in 16 Defendant's Exhibit 1148? 17 A Which. Table 2 Tabl% 3? . 18 Q Table 2, sir. . w v ^ 19 A Okay the initial 1% the first day they sampled four times. 20 They sampled It aero eloeo when.hc material had jeer been placed 21 in there a tenth of a day four-tenths of a day at the time the 22 materiel was-introduced, -and ^thig is ^Silver containing seven and 23 a half parts- per million of TCDD, -the concentration that' they 24 found In the air was 79,800 fdatagrams per cubic meter, which woBld ' / * rw *. ` -/ \> V 83 be 79 let'o cay 30 plcogr&ms per cubic meter at the and of a 1 2 tenth o a day, whichj'1 2,4 -hours*corncentrati'on waedown to about 15 plcograms per cubic meter At the end o four-tenth 3 j- " r Tk ' y of a day, the concentration was down to d7 plcograms. At the 4 5 end of the day of the first day,. it was down to 29 plcograms per 6 cubic meter and then It steadily drops off at 200 day It 1 7 down to 16 featagrams per cubic meter 8 Q And that's In which experiment, ir? 9 A This la an experiment In which an herbicide containing 10 seven and a half parts per million of TCDD was placed on the 11 surface In that ecosystem 12 Q Seven and a half parts per million? 13 A Yes air 14 Q And la this the microcosm now? 15 A This is in the microcosm, yes 16 Q How when you read Table ,,3, you. used a different term 17 in the title 18 A This is the experiment in which they did they vent out 19 on the ground marked off,a small plot and placed the material 20 on the plot 21 Q All right And were ,,their measurements there aa well? 22 A Measurements there yes 23 Q I'm sorry? ' <. r , 1 24 A Excuse me, I was anticipating your question. `` f V - / ,, 'f r * J , r "- : ' '` 84 '* 1 Q And what TCDD didthey find there according to this 2 exhibit? 3 A Well on the first day they found 270 fdatagrams per Y/ , 4 cubic meter. And on the second day 516. And then that was 5 In the shaded plot Xn the nonshaded plot 620 femtagrems per 6 Cubic motor and 180 per cubic meter on the second.day That's 7 out in the open. 8 Q Nov how do those level*,,compare to the 44.6 pleograms 9 that X mentioned to you before? 10 A Well the 270 eatagrasa,,would ba 27 plcograms per cubic 11 meter 12 L Q So how many times le.ee would that be? 13 A Well that would be*jL&t*'S take a higher one Thio ls 14 one at 560 one at 620 one at 180 at 27 it would be 446 15 divided by 27 which Is going to be what? Probably 150 165 16 Xn the case of the highest value they found on the non-ahaded plot 17 62 picogtame the difference would be 72 Xn other words `.that 18 is the amount per cubic meter compared- 19 Q Nov If you ware to assume that a human being inhaled 20 the TCDD from the highest one in the field plot for example 620 21 featagrame per cubic meter what would be the dose that one'would 22 get from that? 23 A Well it would be expected that an individual if ah 24 individual is working in. that area, their daily their work day fj 1 respiratory ventilation would be something on the order of ten 2 cubic meters, so that would mean a doe of 6,2 picograms, which 3 would be about one-seventh of the 1.46 picogram per day for a 4 70 kilogram person that you referenced. 5 Q Now, air, you have been to Sturgeon, have you? 6 A Tee, I have. 7Q 8 area? Are the Sturgeon railroad tracks in a shaded or an unshaded 9 A They are really out i n t h e open. There are a few 10 trees nearby, but I don't think that you could say that the area 11 is shaded at All. 12 Q Nov, 6.2 picograms, now, if that were inhaled by somebody 13 every day, how much of that dose would actually get into the body? 14 A Probably about 30 percent, 15 Q And what do you base^that on, sir? 16 A Kell, I wouldn't expect it to get very far down the, 17 respiratory tract. It would, particularly if it was attached to 18 dust particles, it would probably be moved upward, and then 19 swallowed and mixed with the contents of the digestive tract, so 20 30 percent le the figure that I recall that is used In theCDC 21 estimates as an estimate of the tract of TCDD that would be 22 absorbed from the digestive tract. 23 0 Now, I 'd like you to ,,assume further, sir, that Dr. Roush 24 testified that the TCDD-*-that's 44.,6 picograms per man was a ,' .. ,J j- ' y. 'j, > f. V \ 86 daily dose from the CBC, all right, sir? 1 2 A Tea, 3 Q Sow, In this instancy, using this 620 figure, 30 percent, 4 what would be the daily dose from Inhaling that? The highest 5 amount In th field plot? 6 A Well, the daily dose ,,would he something on the order of 7 two plcograms per day, assuming that absorption rate that X 8 already spoke to. 9 Q Now, and that two picograms a day Is based on what ' 10 concentration, sir? Applied to the soil. 11 A I do net -- 12 Q Look at Page 7, sir, ,,of the exhibit, the field site. 13 A In that particular case, they used a Sllvox that was 14 actually spiked with additional TCDQ to the extent of 15 parts 15 per million. 16 Q All right. So they used the Sllvex with 15 parts per 17 million? .^ 18 A Tes, they added TCDD to it. > 19' Q Now, if you were to assume, sir, that the soil had 3.1 20 parts per billion of dioxin in it rather than 15 parts par million 21 on the surface, could you calculate what that air concentration 22 might be If all the other circumstances were the same? " 1* ij* >* 23 A. I don't know, because-- w e 're dealing with a situation 24 here In which the TCDD has been essentially diluted and sprayed on V J, i' ^ :f 87 &p of the soli* If at 15 ppm, .if we were to assume that the 1 aaterial, now* are you referring to 3.1 parts per billion? 2 Fhat would be what we calculated as the concentration in oil, 3 V m not sure how to-- I #ta not sure how to relate that, because it 4 Ls in the soil and here we-are talking about material that* on 5 :he surface. 6 Q All right. 7 A But we have a much* much.lower, concentration In the soil 8 :hsn we would have right at the surface of this, where all of 9 ihis TCDDhaa been applied to the surface and has not been 10 entrained in the soil, so the concentration right at the interface 11 between the air and the ground would have much, much higher 12 concentration than would these, then you would find In a toll 13 chat contained 3.1 parts per billion distributed throughout the 14 loll. We can assume some Infinite thinness of the top layer and 15 some to some kind of an equivalent. 3.1 parts per billion la 16 ibout 5,000 times less than 15 parts per million. 17 j Q How, does this experiment, sir, duplicate in your opinion 18 Ln any way the situation at Sturgeon, Missouri, as It9* been 19 liven to you in the hypothetical1question? - ' - *I iF i ' A . Ho, sir, I don't think if does. j > Q Why not? (. j A Well, here we ere-* talking -shout 'material that's been spread on the surface and a surface that Includes soil, vegetation .'v\,f 'W.:'.1 P/ .i V ti. 88 1 so forth and Sturgeon we ate talking about material that was 2 In a very large volume of .chlorinated phenol and phenol that 3 spilled into the soil, went down saturated the soil penetrated 4 to some depth and then remained there aa soon as It cooled until 5 the spring when the material that in, the material that was 6 left after the cleanup that took place during the cold weather* 7 la fact you've described ,that just a short time ago so I don't 8 oee any comparison at all* 9 Q Would, you expect sl, in the way tba Sturgeon incident 10 occurred with the derailment and the material coming out of' the 11 bottom of the tank car-- ,, 12 ME* CARR: Suggestivequestion, your Honor* 13 THE COURT: Objection is ,,sustained* Please rephrase it* 14 Q Would you expect sir, that In the Sturgeon situation 15 well can you tell us whether or not any TCDD that was in the OOP 16 and phenol that camsout of the tank car would stay right 'at the top? 17 A No sir I don't think 1t would* X think it would follow - 18 the-- X think it would follow the OCP right down into the in that 19 first when it is first'spilling, it will follow it right down 20 into the ballast and so forth. ` 21 Q Now sir if it had stayed at the top if the TCDD had ? - ~: V . ' \ 22 stayed right at the surface would' it he more comparable to the 23 Nash study discussed in Plaintiff Ts-- or Defendant's Exhibit .1148? 24 A Nell it would in a way* The volume of material is very a > u* r 89 1 very large but it woisld.be comparable it would be the phenol p * * * 2 and the TCBD would be at the surface of this material. 3 Q And according to what. Hr. Schroy has testified to with 4 respect to what happened in the cold and the winter months versus 5 the warm months would any TCPD In It have volatilised during 6 January and February when the temperature was around zero? 7 A X would certainly.doubt it. 8 Q And if it were all at the top1 sir what would have 9- happened to it during the.cleanup? ' - 10 A Well it wouldrhave been carried away. 11 Q Now sir if it were ,,all.at the top, and you assume the 12 cleanup steps that I have suggested to you from the hypothetical 13 question the depths the levels the amounts that was taken away 14 and assume further sir that after that taking away was .done 15 that there was new soil and ballast put down /would you assume 16 that sir? f-' 17 A Yas ** , j. ir * ;; ( 18 Q Where would t h a t if thrc were TCDD there left where 19 would it be? , ^i .. / v 20 A It would be under the added ballast under the added 21 material. 22 Q And according to whaq 1 have asked you to assume from 23 Mr Schroys .testimony as of six years from January of 1979 24 would any of It have yet volatilized to the surface? sf 90 1 A According to Hr. Schroy, no 2 MB,. HEXNEMAN: I have, no further questions your Honor 3 TBE COURT: Mr. Carr* o j o u have any further questions? 4 KB CARR: Yes. 5 THE COURT: Before you at*re on your recross examination, 6 we will take a short recess at this tine. 7 HR. CARR: Certainly 8 THE COURT: Court i s vln Recess. 9 (At this time, Court ,was .in recess.) 10 THE COURT: Mr, Carr?,, 11 RECROSS EXAMINATION 12 .BY ifR. CARR 13 Q Dr. Dost, this morning Mr.Heinocmn was questioning you 14 and suggested that there were two things wrong with the Folget and 15 Schlatter study if you have to make an assumption that there was 16 no Intake of TCDD after the labeled material was put in,, is 17 that correct, sir? Have X fairly.and accurately stated that? 18 A Not quite. It could .bo either with none coming in or with 19 eon* already there and complete mining of the material added. But 20 then none following, at least until other measurements are made. 21 Q And you made an assumption that this study of this 22 calculation was faulty because you;assumed that this male volunteer 23 had continuous exposure to TCDD after ingesting this radioactive 24 TCDD? j;' j %-f - I. i y ' Vf - / 91 1 A Z said that's a question that has to be answered before-- 2 Q Well, you apparently ,,answered It in a fashion and said is 3 effect that that's what's .wrong with this study because there 4 was material ingested* 5 A X said because of the, frequency with which people are 6 found with an existing body burden of TCDD and the probability 7 that there Id a .continuing amount of TCDD coming Into the body 8 that needs to bo accounted for it? the calculation. 9 Q Now Doctor, It is la ,comparison to the amount that wan 10 radioactive, this volunteer' w*as cheeked after'i 35 days, and X 11 think after 120 days, something likethats was he not? 12 A Yea. rv 13 Q Would the amount that, would come in under these ordinary 14 circumstances bo caywhere close to this amount? F ' ' 1' ' * . 15 A X hav no idea. i/.* - / . ,, 16 Q Doctor, you have absolutely no Idea at all, do you, sir? 17 A That's the reason why X need the answer to the questlon 18. Q Well, Doctor, you ar^ assuming that something occurred 19 during this test period and you have^absolutely no information 20 that something did occur during this test period, isn't that 21 correct, sir? *. 22 A Yes, air. 23 Q And what you are doing is simply speculating that 24 something may have occurred-without the least factual knowledge J} V-t t-i * j 92 1 or evidence that something did occur in order to denigrate this 2 study, isn't that right, Dr Dost? 3 A No* sir, not quite* ,t ik 4 Q Well, did you make ar\ assumption that this study vas. 5 faulty because it doesn't .account for TCDD coming Into the body 6 after the date of ingestion of this radioactive TCDD? 7 A Yes. 8 Q Yes. You have absolutely no knowledge'that this male 9 volunteer was anywhere close, t.ora can of Lysol* do you, sir? 10 A No, sir, I know nothing-- 11 Q You have absolutely qp knowledge'that this volunteer 12 was anywhere near Sauget, Illinois or Nitro-, West Virginia or c- ` 13 some other chemical plant .where they make TCDD, do you, sir? 14 A No, sir, M 15 Q You have absolutely no knowledge that this person te . i 16 cattle that had been eating on rangeland that had been treated 17 with 2,4,5-T, do you, sir? 18 A No, sir. 19 Q What you have Is knowledge, no affirmative knowledge that 20 he had any kind of exposure to TCDD other than what he Ingested, 21 isn't that correct, sir? 22 A That's correct* ,,. 23 Q Yes, Now, Doctor, you made a statement that the radioactive ' , ~ * .i , 24 material would be diluted by the substance taken in after the ^ .. T. i 93 1 ingestion of the radioactiva material did you not sir? 2 A To g , air, 3 0 Now* Doctor* the only way that that could affect the-- 4 strike that for a moment,. the parson conducting this test 5 actually measured the amount of radioactivity of the TCDD 'that 6 vai being excreted In the ,,feces or urine* correct* sir? '7 A .Tea* sir. 1 'i ,, -T -' 4 8 Q And they do that with what* some kind of a Geiger counter? 9 A A related instrument* # - 1 Q Sir? ** 11 A A similar Instrument* 12 Q They truly count the .number of beeps? 13 A Yes * ^ 14 Q And they are counting the number of beeps coming from 15 that material that they put in correct sir? 16 A Yes, 17 Q And what you aro saying then is the only way that could 18 have a diluting effect is ,,if .the^body or-- strike that. Does the 19 body escroto the same amount of TCDD no matter how.much It has 20 in it? 21 A Excuse me* Z*m not at|re I understand you, 22 Q Does the body excrete the same amount of TCDD on a 23 daily basis no, matter how,much it has in it to start with?. 24 A. It .would probably excrete aom constant fraction of the * f ". r 1 *- \f'`m` / *''r ( r 1 v. `* . v^ ` 94 1 amount that's In it. 2 Q Well, the constant fraction Is not the equivalent of 3 saying it excretes the same amount. It excretes-- the more TCDD 4 it has in the body, the more it would excrete according to your , 5 judgment, isn't that right? s 6 A That* correct. 7 Q Do you have any knowledge upon 1. wyhich to i base that 8 statement, sir? 9 A All of the animal studies that deal with TCDD metabolism 10 indicate that 11 Q Kow, Doctor, did these animal studies, did they measure 12 the feces and the urine excretion? . 13 A Tea. 14 Q And thay concluded that a certain constant'amount was, 15 a certain constant psrcentage was taken out? 16 A That's the basis of the kinetic finding. 17 Q And, Doctor, all tbo%e animal studies, however, came 18 to the conclusion that there ie a thirty-day half life of TCDD 19 in the animals except for the monkey that has a year half life, 20 isn't that right, sir? 21 A Tea. / 22 Q Doesn't that suggest^thet something is in the area of 23 metabolizing, excreting this TCDD, there is something tremendously 24 different between the human body and the animal body? ' \ r^ *#_ ~ * V , .1 ^ ^ ^" FORM 1L-124 REPO RTERS PAPER ft MFG. CO. 8 0 0 -6 2 6 -6 3 1 3 ' - i--. - 1l Oh, the rata* are th sans, sir? ptiaat*p close to being* U have the calculation 6 aItmjus H3 poe <UXD 4po4 a?aaq 3T *K -r , ti *V ** i 96 1 ade by Monsanto, and we.haw this study by Poiger and Schlatter - 2 do ve not sir? a A this study la incomplete. 4 Q Excuse me. Doctor. Could you answer that question please? 5 A Yea that1* true, . 6 Q Because we ate discussing this study tight now. We also 7 have the Viet Han veterans who veto exposed to TCDD in Viet Ham 8 many many years before their fat was tested correct, six? 9 A tee ,, 10 Q And we know that they have fat the TCDD in their fat 11 tissue many many years after their exposure don't w a t sir? 12 A If their exposure sly took place then yes. 13 Q Well that's all tha^information we have. We have that 14 one veteran with nearly a hundred parts per trillion In his fat 15 tissue did we not sir? 16 A We know nothing else.,about them that's correct. 17 Q Well the scientists ,,conclude, or their judgment is that 18 It was the Viet Ham exposure ,,that caused the TCDD in these Viet 19 Ham veterans9 bodies Isn't that right sir? 20 & Some of then have made that conclusion yes. 21 Q Ton have no information to eh contrary sir? 22 A Ho_sir 23 Q Nothing' factual at all to counter what they say? 24 A That58 correct. < fT >' * ;.^*i 97 Q Ho Dr. Dost we d\have this study even with a dilution 1 that would suggest the metabolising excretion rate in humans la 2 vaetly different than that in the animal vis a vie 4*95 years 3 versus thirty days don't we, sir? 4 A If this een be accepted. 5 6 Q Tea. How, Doctor, if it can be accepted, now, the dilution factor that you talk about, the TCOD that they counted, the 7 8 radioactive TODD that they counted coming out in this person's body had a half life of 4.95 years, didn't it, slrf 9 A Yes. 10 11 Q Hot?, that took in account whatever dilution there night 12 be in this body because of pre-existing TCDD or after ingesting 13 TCDD, doesn't it, sir? 14 A Ho, sir. 15 Q Well, Doctor, didn't .they measure the TCDD, the 16 radioactive TCDD that cane put of this man's excretions? 17 A Yes. 18 Q And they neaaurad bated upon that, that 25 percent came 19 out in a particular period of time, and therefore based upon what 20 their actual counts, they said the radioactive TCDD that's in 21 this body has a half life of 4*95 years, did thay not, sir? 22 A Thay said that, yes , 23 Q How, Doctor, they are measuring, whan they measure the 24 counts, thay are not measuring that which may have diluted, are /.. *''. > -':`.,,I1 FORM IL-124 R EPO R TER S PAPER ft M FG. CO. 6 0 0 -6 2 6 -6 3 1 3 And they are Qeaeising label TCDD aren't th@y9 air? Doctor uo do bava * ^.They ''couatad-' th'blips on the j ^*t _ hey# sir? Jai of ho label * N3 H 5 a ceea* O G fi H a* e et f5r3** W S3 e &> a 0 li e? v AL *4 eo rt ft?t* f* f? s* e 7* SS* *& & *4 *G H Pt e* iH*i &pi ft 53* *t A<0 M ft 19 a * A P <f53t* i *(33* PPt. fa ss* t sr et eK> *a et * fAM-B* tO* it . 0* 5 *o MK5 M . -efit Hi A * A a1 H A A *3AAa 0 fi H v* * A A `a3* f-* &fs* B w, He A wSS pt et S3* ss* AB H A03 *** TAO ft Se3t* n3 o O G Ok 0 6 .53* AA 0 fi ft SI* P A (t* m H A SP A A Mb *-3 M 3* 1f"* , vA3 A0 a o H m & et AMB e t-3 3* A A ft ft .ss* M* 53* t* *. H =9 3* Hatflo fet t* AA A Aa p1f* W A H A * , fHtw 0A3 a* o. a& A ^'~ VD O 24 . FORM JL-1 2 4 R EP O R T ER S PA PER ft M FG . CO . B O O -626-6313 ao& V. %io and, qa ajqa/annota qa oapseoddo 0 8 -ui and qa. a*H3 aaO wq j''3tmoaw :>t3 pan9ffiOB X0ti3..,paV. ' fc '/ / ' * !`> -I/---. 100 1 Q And whatever didn't cose out 1 still there lin'tit, 2 sir of this label TCDD? 3 A Yes 4 Q this label TCDD ia this man1 body under the circumstances 5 that he is living with whether he has a lot of TCDD ia there to 6 start with or whether he ingested massive TCDD later on that 7 TCDD has the half life of 4.9 years? 8 A Teflo *. 9 Q How* Doctor that's the whole point, la this man's 10 body the TCDD has a half life of 4.95 years and it makes no 11 difference as far aa this man-la concerned if he took in e lot 12 of TCDD later on or if he had a lot of TCDD in hie body to start 13 with this is an in common situation In the human circumstance 14 everybody that gets exposed to TCDD will hsva some TCDD in his 15 body will he not sir? 16 A Yes. `'/. 17 ME. BHXHEKAftt Your Honor objection please object 18 to the speech ask that it be stricken and ask the Jury be ( F 19 Instructed to disregard it. 20 THE COURTt Objection is.overruled properly pert of the 21 question t , i4 ** 22 Q How Doctor whether ,the new TCDD that comes in is 23 diluted by the existing TCDD or Is diluted by some later TCDD 24 `t that comes in the TCDD In that person's body has the half life ' "\ i .i*,V i, ? i 101 t 1 as suggested here, ^isn't that correct Or Boot? s 2 A 1?Os Bir0 ' - , 3 Q No Or. Dost wherein is it incorrect if the label 4 TCDD, if you arc not taking hack what you said a moment ago 5 about the half life in this man's body of thia label TCDD 6 being 4.95 years? 7 A You just used the term TCDD. Now we arc trying to find 8 what tha half time of TCDD in that person is. To do that vs 9 hare.to introduce a marker of some kind that can be used to 10 follow it. 11 Q And they did that they Introduced the marker. 12 A They did that. 13 Q And they counted that, marker. 14 A That marker dilutes.-^ith all of the TCDD in the body. 15 If there is additional TCDD coming into tha body, it will further 16 dilute it and the TCDD the label TCDD that comes .out ill ' ' 1 1' 17 actually be representing a larger amount of material which will 18 give the Illusion of a longer half life. 19 Q Yas but Doctor it tgon't be representing a larger 20 amount of the label TCDD* That TCDD is still in there, It 21 has the half life of 4.95.years doesn't it, no matter how much 22 other TCDD comes out with.lt it has the half life of 4*95 years, 23 doesn't it, sir? 24 A No, sir, it doesn't* i 102 Q Didn't we just establish that you're ensuring actually 1 2 what cones out* didn't they count exactly what cane out Dr. Dost? 3 A Yes. 4 Q And what didn't come ,,out is still thsre correct sir? 5 A Yes 6 Q And what la still thgre has the half life of 4.95 years 7 by actual measurements doesn't It sir? 8 A There Is not enough information to make the calculation. 9 Q Well now Doctor you made a calculation you took away 10 from this conclusion when In point of fact what this study 11 shows Is that there la a half life. There may be variances 12 fron human to human as there is In any kind of thing. But the 13 label TGDD that was put In this person's body has a half life of 14 4.95 years doesn't It sir? 15 A The label as It is pgt In and the label as It Is counted 16 out would provide that figure. 17 Q And that figure Is 4.95 years Isn't It sir? 18 A Tor the label. 19 Q And Doctor so we Just don't get hung up on the label 20 the label Is the 2378 TCDD that was labeled with this 21 radioactive hydrogen atom correct sir? 22 A That was administered* yes. 23 Q So we are measuring the TCDD that was put In and that 24 TCDD that we took In at that point In time has that half life ')* i. ** 104, ,1 day. In that.particular paint In time, whether you label it or 2 don't label It, has got a half Ilfs of 4,95 year* according to 3 this study, doesn't it, lr? , i '* 4 A The dose vas 105 han^gra^a, which was a very snail amount 5 Q Nanogtams, all rights, my question, la whatever the dose, 6 that TCDD was ingested on that day hats a half life of 4*95 years, ,- ` ) t; / 1v r 7 doesn't It, sir? , .* \} ... ` \ v 8 A If no other TCDD went, Into the body afterward, that ^ *, ` * `i ' 9 would be. correct ..- ' ,L-' '* 1 10 Q And if more TCDD ^ont into the body afterward, It Is 11 still correct? 12 A Ho, sir* 13 Q Why not, Doctor? 14 A X have explained it several times 15 Q Oh, Doctor, but what*you ^splainsd was you counted the 16 counts that came out, it doesn't matter how many came out, how 17 much was there already, he could have swallowed barrels of It later 18 on, but the amount that came out, that he put In cane out having 19 a half life of 4*95 years, they counted the blips, did they not, 20 air? 21 A I'm trying to explain the science 22 Q Doctor, they counted jshe blips, didn't they^ sir, the 23 beeps? 24 A That's what they counted. A i' I 105: 1 Q And that materiel that had these blips had this U f a of 2 4*95 yaars regardless of however much etu^r TCDD may have bean 3 there? - 4 A The other TCDD Influences it T - i. . ,, ' 5 Q Does It make it more ^radioactive or lees radioactive, 6 more counts or lass counts? . - .' ' ._ 7 A Per unit time, it could be moye or could be less 8 Q You believe that the .other TCDD affects the radioactivity g of this label, air? 10 A I've said nothing of ,,the.sort* ii Q That's what I have asked .you, does It give It more 12 counts per minute or less? 13 A It could cause it to ,,come out faster or it could cause 14 it to come out slower. 15 Q Whether it case out slower or faster, this is the rate 16 it came out, at the rate of 4.93 years for half life, didn't 17 it, air? 18 A Yes* 19 Q So how it was influenced by the other is Immaterial 20 This TCDD had the 495 years,, didn't A>it, air? Haven't you 21 answered that already a number of times, Dr. Boat? 22 A tes, 1 have. 23 Q Wow, Doctor, Insofar^aa the various sources of the 24 TCDD that one is exposed to, you are aware of what the BPA-'says '* f* 106, 1 about the sources of theTCDD to which we are exposed don't 2 you, sir? w* ` * i +* > ^, r 3 A I don't remember their precise statement. 4 Q Could you give the exhibit 1665 to the witness? 5 A X hare that here on my desk. 6 Q You do? Fine* Turning to 4~38* 7 A Yes. * 8 Q The paragraph that begins e little past the middle 9 of the page, "The primary sources of XCDDe in the environment 10 ere industrial manufacturers of ehlorophenole or their derivatives 11 and chemical disposal sites containing the wastes from these 12 industries." 13 A Yes. 14 Q And Doctor, it also %ays, "Municipal waste consideration 15 also may produce some environments! emissions of TCDDs," does it 16 not, sir? 17 A Yea. 18 Q And do you agree with, the statement of the EPA that 19 these are the primary sources of .these TCDDs,that is the 20 industrial manufacturers of ehlorophenol or their derivatives 21 and the chemical disposal sites containing the wastes from those 22 industries? 23 A Well, those are certainly significant. 24 Q My question Is do you agree with the SPA assessment.hero? 107 1 A Yes. 2 Q Doctor one of the derivative* of those chlorophenols 3 Is Lysol, isn't it sirf 4 A Veil it depends on ifhlch product* 5 Q Nov Doctor did you understand ay question? 6 A Yes. 7 Q One of the sources o contamination of the environment 8 with polychlorinated dlbensodiozlns is Lysol isn't it sir? 9 A Veil I don't know whether it is a significant contributor 10 or not* 11 Q Doctor did I use the. word "significant contributor"? 12 A No sir. 13 Q Vhat did I say, Dr. Dost? 14 A You said one of the contributors. 15 Q Yes end could you ensver that question, please, sir? 16 A Which Lysol, of course? 17 Q Dr. Dost, you do knoif that Lysol contains dlozln, some 18 of the Lysols on the market contain dlozln, don't you, sir? 19 A If it is the chlorophenole, I've heard that, I've seen 20 none Information. 21 Q You've heard that fro* Monsanto. 22 A Yes, I've seen data.. 23 Q You've seen data. Doctor, where did you see the~-dld 24 a Monsanto official tell us that Lysol contains dlozln? ;* (' * 1 1 heve not spokcm toany Monsanto officialo. 2 Q Tfaen 1 taha lt a Montent official did. no tell you 3 that, io that correct sir? le that fche answer to my question? 4 A e. 5 Q Did orne o the attorf|eys,for Monsanto tell yon that- ` 6 Lysol eontalns dlotia? 7 A I vos provlded Information by attorneys that deserlbed 8 some f that information. g Q Lot me asfc yon agaia , Doctor did ona o tha attorneys io for Monsanto tell you that Lysol contlned diosin? h A Well X guass that vquld,,amoqnfc-- ye*. 12 Q Who was that attorney? 13 A X do7t reslly remembrer vho .it vas* 14 Q What attorneys tany yon had contact wicb that hve 15 discusseti the faces of this case with yon? 16 A Well Mr* Helneman qf course Mr<> Hyder Miss Rudolf. 17 Q Hov about Mr* Massift '' 1 -r: 18 A Mr. N&seif la an attqrney for Monsanto. X*v@jdisenssad 19 it obviouoly vlth Mr. Hasif. 20 Q So it is one of thosq four lavyera told yon that Lysol 21 eontalns dioain 1s that correct sir? Or gave you the documents 22 that told you that Lysol eontalns .dlosln, is that righe sir? 23 A Yss . **, 24 Q Hov long ego did yen,gatvthiqrinformation eir?., f; -.i . ' - j- 11 ' -s . j- . 109 1 A 1 don't know, It's been quite a long time 2 Q Now, did they also tell you that Dr. Kilgore was told 3 by a Monsanto official that Lysol contains dioxin? 4 A 1 haven't heard that, 5 Q Are you aware of t h e a c t that Dr Kilgore testified in 6 this case, air, that ha was told by an official of Monsanto'* 7 that Lysol contains 2,3,7,8 TCDD? 8 A I wasn't aware ofthat. 9 0 But you got the same ,,information from another source, 10 did you not, sir? 11 A Apparently, similar information, at least* 12 Q Now,Doctor, the fact; that theparticular can that you 13 have in front, of you orcould you get the Plaintiff's and 14 Defendant's little cans of lysol out? 1 think there may be two 15 or three of them. Yes, one is a Monsanto, that's right* Now, 16 Doctor, each of these exhibits,,that- is, 487-- 874A and 1194, you 17 recognize as Lysol that you can buy in the supermarket? 18 A Yes* ,, 19 Q And there are a lot of other Lysolo that you can-- t. r' r 20 buy in the supermarket, aren't there,'sir? t 21 A Yea. ,,' .` r 22 _`t ' Q And do you know just *vhn,, the Exhibit~1326fand 1327 wore 23 purchased or were acquired? 24 A 1 have no idea* * ft* ^ '.V '* i, i t *w* 1 ` Q X take it you weren't part of buying it? tl. .* 2 A Ho, air, *,, 3 Q You weren't told by th lawyer where they got then or 4 when they got them? 5 A So, air, , no * *a 6 Q You do know that,sometime after this, after the Sturgeon 7 spill took place that Monsanto quit making Santophen because the 8 maker of hysol went to the--what you would call the quats and 9 no longer uses Monsanto'S Santophen, you do know that, don't you, 10 air? 11 A Yeo,' 12 Q And it would be therefore likely that the tysel that you 13 would buy today from the store, it would be likely that it does 14 not contain Monsanto's base product, wouldn't it, air? 15 A I would think so, yeq,. , 16 Q But do you know how many,years the Monsanto baaed product 17 was used to manufacture bysol and old to the American public 18 prior to the time Monsanto quitmckiagSentophea? 19 A Ho, sir, I don't know, how long 1 'i . ",, 4, *J f, ` i 1 \ ( ' ' 20 Q Doctor, didn't you,discuss 1that-issue with the attorneys "T -% * *' * 21 that gave you the information,; or wasn't the information in the ^\ * s *T r` ^ /r r ^ 22 documents that you got? 23 A Yes, it was, but X don't ,,remember the time line* *' 24 Q Doctor, you know that it's been many, many years, don't l'I '. ` .* ' . vj _ ' - H i 1 you sir? 2 A For a substantial period, yes '3 Q And all during that period of time you know that tha 4 hysol contained dioxin don't you air? JSp until the time 5 they quit using the Monsanto product? 6 A Yes, w 7 Q And Doctor, all for^thoae Wany years if TCDD has A 8 half life of A,93 years as Poiger and Schlatter suggest that 9 would etan that the lysol contaminated with TCDD could be* that 10 TCDD could yet be in the bodies of the people living today, 11 couldn't lt0 dir, if they got TCDD from exposure to tysol, say, 12 in 1979? 13 A If they had exposure ,,end If it is correct yes 14 Q Now, the 1979 exposure, that Lyaol that they got in 1979 15 would, half of it would still be in there today, sir, if this 16 exhibit is correct r '- ^v 17 A If that is correct, yea,, ,/ ; *1 18 Q And a quarter of that which they got In 1974 would still 19 be there, wouldn't It, sir?* 20 A Yes, if that's correct' 21 Q And the 12 and a hall percent of that which they got in 22 1969 would still be there? 23 A Yes, - ,f ' 24 Q And six percent of th&t which they got in 19-- whatevert> ' \' 112 1 twenty years ago, 1964 or 1939, would still be there wouldn't 2 It, sir? 3 A In that event, yea. 4 Q And all those dioxinq. over that period of time would be 5 accumulating one on top of another, wouldn't they, sir? 6 A Not necessarily. 7 Q Wall, Doctor, you say hot necessarily. Could It occur 8 or not, air? 9 A Ho. u- 10 Q It cannot occur? 11 A Ho. _ 12 Q Doctor, if you cannot excrete it at a faster rat than 13 4.95 years, Isn't It still there? isn't that the definition of 14 half life. Dr. Dost? 15 A If that's the. half l^fer, then the exposures must be 16 exceedingly low, because body burdens are very low. 17 Q Now, Doctor, I am not Asking you that. My question was, 18 sir, that would add up one on top of another, wouldn't it, sir? 19 All these accumulated half lives over that period of time would 20 all still be there, wouldn't It, sir? 21 A Ho, air. ., 22 Q If this is correct, qlr,^it is not being excreted In 23 the urine or the fecee, Is It, sir? 24 A Well, the material that's going in, It la going to be 113 1 coning out at the same rate it la going in. There will be an 2 equilibrium If the Intake la conatant 3 Q Well, Doctor, If the ,,intake la conatant, but who aaya 4 the Intake la going to be conatant, air? There will be a greater 5 expoaure one day and leaa In another, wouldn't it, air? 6 A But It will average out. 7 Q Well, everything aver,agea> out. The wldeat variety of 8 expoaurea and doaea alao average out ao that you can aay It la 9 a conatant, can you not, air? If you take three thouaand flgurea 10 and add then all, varloua flgurea and divide them all by three 11 thouaand, you are going to get the conatant average, aren't you, 12 air? 13 A Yea. 14 Q All right. Nov, Doctor, thle body burden that ve have 15 in our bodlea, la It in your judgment more likely that it haa 16 come from thla kind of expoaure to Lyaol, more likely that it'a 17 come from the 2,4,3-T expoaure, or more likely that it'a come 18 from living near lnduetrlal vaatea? 19 A I really don't know. ,, 20 Q Let me auggeat to you, Doctor, that the thing that we 21 all, If we all have It In our bodlea, the moat unlveraal 22 aubatance to which ve are all expoaed one way or another la not 23 the 2,4,5-T on the rangeland, and it la not the induatrlal vaate 24 alte, but it la thla product that'a in every grocery atore and -i\rV . , J, 1\ `-TV ' ` r , 114 '* * ; - . * l - * < . 1 probably In the majority of:the homos In the community., Isn't ** * * 1 .* 2 that correct. Or* Dost? 3 A Well9 I don't know how tq quantitate the exposure* 4 Q Doctor, I 'm not coking you to quantitate the exposure* 5 I'm saying of these sources of contamination that we all have 6 In our bodies now of TCDD, which Is the moot likely source of that 7 TCDD, ehe 2,4,5-T that's on fha rangeland, the industrial waste 8 site been dumped by a chemical company, or the bysol that we 9 are all exposed to? \ ' ,, , f' IQ A I 'm having a little trouble differentiating between '/ * `l - X' ^i - * > 11 amounts and frequency Certainly the exposure, If it exists to 12 Lyeolc is very common* Bow it compares quantitatively with the 13 potential for movement ofTCDD through livestock, I 'm not certain. 14 Q Doctor, this livestock, they quit ualng 2,4,5-T on 15 rangeland many years ago, didn't they, air? 16 ..A Yes* ,, ,' 17 Q About 1970 thereabouts? , ., 18 A No, sir* ,,- 19 Q When was it, Doctor?, 20 A About '78 or '79* . w 21 Q They quit using tbateom* five, four years ago before 22 Lyool quit having Monsanto's produce in itB la that right, sir? 23 A Probably* X don't know just when they stopped using It 24 In Lyool 1X5 Q Doctor, Co your knowledge, baft Monsanto ever informed 1 the EPA or the FDA or Lehn & Fink, the manufacturer or anybody 2 else that their Lysol contains dioxin? 3 MR. HEXNEMAN: Tour Honor;, may counsel approach tbs 4 bench? 5 THE COURT! Sure. J \ 6 (The following conference was held at the bench.) t7 ; *J i - 8 MR. HEIHEMANs t-1 Y,,ourJ Honor, X have ,* been trying , not to ,, ^ \i v 1 ,; ^^ 'r Interrupt too much In the.course of this examination because 9 I'd like to get this witness; off the stand, but1this is elaarly 10 beyond the scope'of the direct examination which I have just 11 12 conducted with this witness It has absolutely nothingto do with anything I've asked him, and X object to it as going 13 beyond the scope. 14 15 Further, I object on the ground that his opinion on these 16 subjects is absolutely Irrelevant to this lawsuit 17 MR. CARR: Your Honor, I ,,see the two Lysol bottles 18 brought out by them In their redirect. They brought up the 19 subject of Lysol, they compared it with q possible accumulation 20 in the body. I submit it ,1s within the scope of what they did. 21 MR. HEINEMAN: It wasn*t ,,compared with 2,4,5-T, the question 22 was when Mr. Carr told this question and asked him to assume 23 that there was Lysol, or there was dioxin in the Lysol,spray, 24 the purpose of it was to demonstrate that there isn't Lysol V 1 dioxin in this Lyaol spray, and It's-being sold .to everybody, 2 which is what he stated In his examination of this witness. 3 It has nothing to do with comparison of '2,4,5-T or anything else. 4 ME. CARE: It has, too, it is what caused the dioxin to 5 be in our body. ' 6 MR. HEIKEMAil: That'vas not the subject.'of tbe cross 7 examination. 8 THE COURT: Objection is,overruled and I will make it a 9 continuing objection to this line. 10 (The following proceedings were held In open Court.) 11 BY ME. CARR: 12 Q Could you answer that question. Dr. Dost? 13 A You are referring to ..the time? 14 Q During the time that .they manufactured the Santophen that 15 had the dioxin in it that was the cause of the Lysol having the 16 dlosln in It. 17 A X really don't-- -you are speaking about reporting to the 18 agencies? 19 Q To responsible governmental agencies that need to be 20 told where the contaminant is. 21 A I really don't know.^ 22 Q Doctor, you do know ghet.it Is an obligation of the . 23 manufacturers to advise the appropriate governmental agencies 24 of the existence of dioxin content, do you not, sir? iV K '' ` '. . . . - ' - v' ` < \ - ' ' .} i. . / ,x <- . 11?. ' . 1 _ . \ ' i\*~ 1 A X don*t know whether^there ia any specific requirement 2 of that sort or net* , .T. 'v \ `V 1 - M . _l . t ` 3 Q Doctor you arc not fatalliar with the various regulations 4 of the SPA and FDA as to chemicals being aanufactured? 5 A At the present time, ,,yes* X do*not know what the position 6 wao at that time* *7 Q Xn '79 and f80, you 40n't knqw what the law was on the S books then, sir? 9 A That required, I do ijot know of a law that required that 10 kind of reporting. 11 Q You are not saying tljat there Is or is not, you are 12 simply saying you do not know the law on the point? ' 13 A That Is correct* 14 Q All right* Xn any event, you do know that laws do 15 exist in general that required chemical manufacturers to advise, 16 manufacturers of toxic contaminants? 17 A There are various procedures, X am not very familiar 18 with then. 19 Q X won't get into that* Doesn't that ever come up in 20 your work as a toxicologist? 21 A X am more interested vin the effect of the chemical 22 than X am with the lav as relating to reporting about it* 23 Q How, Doctor, you have, agreed or, no, you've taken it 24 back, you no longer agree that there is a, that some people,can 118 ,i 1 react la one fashion to TCDD and others not If I take your * 2 testimony correct is that r-i1g<-ht sir? 3 A Well it would be pretty Much a function of dosage. % 4 There is going to be some variability among Individuals. 5 Q Doctor you know the^e io variability. On this TCDD that 6 we have In our body is it possible Dr. Dost ss far as you know 7 that soma people can have adverse health effects from TODD 8 exposure or TCDD in their bodies and that other people- would 9 not have ouch health effects? 10 A Oh I'm sure there 1% some dose st which that might' 11 possibly happen at which,that would occur yes. 12 Q I'm not even asking relative to the dose Doctor given 13 the same dose Isn't It a fact that some people react adversely 14 and have bad effects while others may not be affected by it 15 at all? 16 A Well that's possibly. 17 Q Wow Doctor It la not just possible you know it is 18 a fact don't you sir? 19 A There is going to be ,,a level st which nothing is going to 20 happen to any individual; 21 Q Well now Doctor you have gone beyond my question 22 again. 1 said given an appropriate dose Doctor isn't It a 23 fact that some people can have adverse reactions adverse health o- 24 L effects and others will not have any adverse health effects whatsoever?-" 119 'i ' i-% 1- A Given an appropriate ^dbae,yea 2 Q And,, peetor, the tox^c substance that's In the fat -j 3' tissue* TCDD, it doesn't "act by itself, does i t , s i r , w e ere 4 exposidto other toxic substances, aren't we,-frot time to time? 5 ' `A i'm;sure*me are; yas.v ,* 6 . Q When the people smok^, ;pqctor; they are exposed to the 7 carcinogens and the toxic substances in .the. tobacco smoke*'-'' 8 aren't they, eir.t 9 A / Tes * ^ ` 10* Q Nov Doctor, isn't it possible that the TCDD that they 11 take In can cause., the,toxins -that re .already there that could 12 cause lung cancer to become more active? 13 A, Onlyif the dose is quite high, F O R M IL-124. R E P O R T E R S ^ P A P E R Br M F G . C O . 'B O O -S 2 6 -6 3 1 3 . . 14 Q Nov, Doctor, you've 4an* you're seen the ZacklGaffey- 15 reports, have you not, sir,'that the lung cancer rate wts ` 16 143 percent .higher i n .one group of Nitro workers, are you aware1 17 of' that^, sir? " '' `*'*'i'*' frV'V' \ - ` -*;,* . ' 18 - ,,L ' ,, . -' ,, * * ' 11j * *V ME* HEINEMANj May counsel approach the bench? ' . ' 1*' * 19 .THE COURT: S u -*' V . . / `xf 1') r e `-V / '-V ' 20 (The folloving cqnfereuce was held at the bench";:) 21 MR* HElNBMANs. It really^isn't fair to a witness*.'; .', "22 your Honor,' to keep dragging him, out with things that baVe nothing 23 to do with the scope of-the examination -that*s Just:been', gone into 24 with the witness. Now,;we're going^-wa're back,to Zaek/Gaffey and 1 1 4 1K ` K ' . ]' l r *# f ~I ' `' ' 1 the 143*percent* Good Lord, that was covered a month ago with 2 this witness* It vaa not.covered by me today, and I object to 3 it It goes beyond the scope. .. 4 ME. CARE: Your Honor., he la saying that this Is such a 5 little amount, and he said it throughout their case, that it 6 wouldnTt affect anybody and it wouldn't have any effect on anybody, 7 and that's exactly what tie said, 8 MR* HEXHEMAN: That's, got nothing to do with Eack/Gaffey* 9 MR* CARR: It has everything.to do, because Zack/Gaffey 10 shows that the lung cancer rate is higher among people exposed to 11 TCDD then people not exposed to TODD* / 12 MR* HEIKEMAN: Your Honor, the point is that vc will 13 never, ever finish with this witness or any other unless ve 14 require it stay within the bounds of the examination of the other 15 counsel, and this has, I've never even gone near this subject* 16 MR. CARR: You didn't., k the health effects, whether 17 or not that was enough volatility to affect anybody at Sturgeon? 18 MR, HEIHEMAN: Does that.mean that any aub^eet covered 19 at any time in this case opens up every other subject? 20 MR* CARR: When you ^ent ,,into the health effects from 21 the amount of dioxin that these people were exposed to because 22 of their volatility, you opened up the door again and again on 23 how TCDD reacts with other chemicals. You don't have the right to 7`, 24 say, well, 1 can aak about volatility and ask if that volatility `i . , .- \ " ' " Vi*/ ' ' `. * V \ ` *'1 i, - ' ri if ^ ^ ,- 1 will affect`somebody, or chat amount that's breathed in the lunge-- 2 MR. HEINEMAN: You certainly maintained that In the past 3 with my cross examination 4 THE COURT: Objection overruled* 1 think it iff within 5 the scope. 6 (The following proceedings were held in open Court) 7 BY MR. CARR: 8 Q Doctor to get a little more specific on the lung cancer, 9 you testified about the amount of TCDD being inhaled if the Worker 10 or somebody was in this microcosm or exposed to the vapor in ths 11 Nash study, do you recall Mr. Helneman just asking you about 12 that, sir? 13 A Yes. . . 14 Q And you said something to the effect, yes, it Is only 15 that which would go down into the stomach that would he poisonous, 16 only that 30 percent that .would go down there, correct', air? 17 A I said 30 percent of.what was inhaled would probably 18 be absorbed, 19 Q And you said it would be.absorbed because it would be 20 swallowed, didn't you, air? . 21 A It would be brought i>ack up but of the respiratory tract 22 Q That 30 percent would? 23 A The whole amount wou^d be brought up. 24 Q The entire amount ia.going to be brought up out of the ** t j 122 1 lunge? * 2 A If It Is on particulate material, which Is probably 3 the vay that It Is going to reach* 4 Q Now, Doctor, you are speculating You're saying on 5 particulate material. They were not measuring In the Hash study 6 particulate material, they vere measuring gaa, vapor; 7 A They didn't know if it was, vapor-- 8 Q They described it asjvapor* 9 A They didn't specify it* 10 Q They described it as ^vappr, did they not? They didn't 11 say It was dust, did they, sir? That's something that you threw 12 in there* The article says It was vapor, doesn't it, sir? 13 A The article says that it v q b airborn and they trapped 14 It, they didn't specify, they speculated that it was vaporised* 15 Q They speculated. Doctor? They said, they used the word 16 vapor, it was vaporised, did they not, sir? They said it was - 17 volatile, vaporised, did they .not," sir? i 18 A That was Dr. Schroy'e. words; sir* , . | 19 J" " ' * .'ri Q Yes, and the vapor, whether it is, on dust particulate or 20 not, the vapor that's Inhaled, into the l u n g s 30 percent may. go j - ^ ' '*. ) 21 into the stomach, but the other 70 -percent would remain in the , 22 lungs, would it not, sir? b 1 r : ( 23 A If any of it Is going to be moved into th digestive 24 trect, most all of it would* 123 1 Q Nov, Doctor* you said 30 percent would go into the 2 digestive tract? 3 Noj I said 30 percent of what went Into the digestive 4 tract would be absorbed 5 Q When they are inhaling this vapor Doctor does the vapor 6 get Into their lungs first? 7 A If it Is in fact a vapor* 8 Q Or if it is in fact dust it will still get into the 9 lungs won't it air 10 A If it is dust it will be moved back up, 12 it ia a vapor, 11 yes It will stay in the lungs. 12 Q Are you saying all of it .will be aoved back? You know 13 better than that Dr Dost. 14 A Host of the duat that, goes into the respiratory tract 15 is moved out 16 Q What you said was all of,it, and you know better than 17 that. The vapor goes into the lungs, ;the dust goes into the f- j' ( 18 lunge, some of that TCDD in that vapor could well remain In the 19 lungs, could it not, sir?. Just, like the tar, just like the 20 nicotine from the cigarette smoke, isn't that right, sir? 21 A X would aspect the TDD to be absorbed and distributed 22 If it gets into the lungs, if It gets that far. 23 Q Doctor, that's not what I have asked you. It gets in 24 the lungs, it stays in the lungs until something else happens / i t 124 1 to it, doesn't It sir? 2 A Yes, that's correct 3 Q One it gets in therq, it will stay there until something 4 happens to It won't it, sir? 5 A Yes. 6 Q And it will touch th^ various tissue within the lungs, 7 won't it, air? 8 A Yes 9 Q And that TCDD touching that various tissue may either 10 remain on that tissue or be absorbed by that tissue and go elsewhere 11 into the bloodstream, correct, sir? 12 A Yes 13 Q And in that bloodstream-- and before it gets there, however, 14 it may have some damaging effect oh the lungs, may it not, sir? 15 A So, X don't think so,.,., 16 Q Doetor, have you assumed that the lung cancer rate is 17 143 percent higher in the Hltro worker, in the exposed Nitro 18 workers to 2,3,7,8 TCDD than It is to other populstion In 19 general can you not assume. Sir, that the TCDD played some role 20 In causing that- lung cancer rate? 21 A Xf it is a fact, that that Incidence is that different 22 Q Yes, that's what I ai$ asking you to assume, that it Is 23 a fact* 24 A It would have to bo considered possible. ^ VV i. . t. isA, 125 1 Q Wow, Doctor, not just, possible, if it is a fact, It 2 occurred, didn't it, sir?,. 3 A Yes, 4 Q Sir? The TCDD in th^ lungs or in the body, however it 5 got there* caused the increased cancer rate if what I gave you 6 in a fact, correct* sir? 7 A I'a sorry, sir, that ..does not follow 8 Q Is there any other fact that I have given you* now, I'll 9 grant you, Dr Dost, as far as you're concerned you are sitting 10 right there, 1 could be misleading you, X could be tasking these 11 figures up, but I'm asking you to assume certain things. If * - v 'i J4? 12 the lung cancsr rate lo 143 ..percent higher in those people 13 exposed to TCDD, can you not^conclude that the TCDD Is having some - i,.i> * - * , . ' 14 role to play In that rate, sir? 15 *v A Well, there is an association between the two, 16 Q Doctor, X don't cere ,whether you call It an association, 17 Xt has an effect, does It not, sir? Would you answer that 18 question, please? 19 A Wei?, I'm trying to decide how to answer it. An 20 association is not necessarily cause and effect. 21 Q Well, Doctor, you used the words "not necessarily" Do 22 you want to break that down? 23 A Well, you've told me .that the cancer rate is high and 24 you have told me that they are exposed to TCDD. .X 126 1 Q Yeah and that's allcho facts that I have given you 2 right Doctor? 3 A That's correct* 4 Q And from that can yoi* not draw a conclusion air that 5 the TCDD has caused the lung cancer? 6 A Wall if theta are no other factors operating at all 7 Q If there are no other factors operating at all? What 8 it? 9A \, If there are no other, possible factors then that would 10 he a fair conclusion* *.* * t\ 11 Q How Doctor thatvo^ld indicate'the lung cancer rate 12 la affected either by the Inhalation of the TCDD or soma other 13 effect that we don't know correct sir? 14 A Again If there are no other possible factors that are 15 influencing those individuals* 16 Q Lung cancer la caused, by the toxic substances inhaled 17 Isn't it sir? Isn't that what doctors of the medical profession 18 generally believe? 19 A Yes* , 20 Q It is not because it^gets. into your blood or not because 21 it gets Into your vein or your bile or your liver or your kidney 22 It la because the toxic substance gets into your lungs sir that 23 causes the lung cancer* 24 A Seems to yea y* '> V 127 '' 1 Q And If thert lo 143 percent high? rats in lung cancer 2 with those people exposed to TCDD,, it does Indeed follow that 3 the TCDD could contribute to cause that increaae In the rate, 4 correct, sir? 5 A Yea. *[ i' 6 Q Yes All right. Now,* Doctor, the .same thing can occur 7 to others, other cancers or other sicknesses by the TCDD ,,' cr 8 that1* in our bodies, can It not, sir? ' " 9 A No, sir, I don't think so. 10 Q Doctor, is the affect.of .TCDD Just in lungs end just in 11 lung cancer? 12 A No, sir* 13 Q It is a eyatemic toxin, isn't It* sir? 14 A Yes w 15 Q It can affect every s.ingle part of the body, can't It, 16 air? 17 A Presumably, If there JLa a sufficient dose. 18 Q And, Doctor, It can affect other things in other ways, 19 can't It, sir? 20 A Only at an adequate dose. 21 Q Now, Doctor, you keep, adding that, sir, and my question 22 la assuming that the dose la there, sir* 23 A Assuming that the dogs is there* yes. 24 Q And of course we have gone all through that, and the dose '/ r /' IV; A 128 1 that is-there can be a cumulative effadfe, can't it,*. sir? Other 1 i. 2 doses added to it can add .to .the .toxic affect of that which ie 3 already there just dimple addition* correct* Doctor? 4 A It depends on the offset, air* 5 Q Zt depends upon what^health effect la being caused la 6 what you are saying. i- ' 7 A Yea,' In part. ^ ^' ' - ' . v ; -r-: U . i/ . 8 Q Soma health effects are greater and others are leas 9 then from the oatae amount of exposure, len't that correct* siri 10 A Tee. * * 11 Q How, Doctor* you mentioned that the Moses study, .12 Exhibit 908 showed there is no dose response principle* do you 13 recall that* sir? 14 A So* sir, I didn't any that. 15 0 I'm sorry* you said exact opposite* that there is a 16 dose response principle involved* is what you told Mr. Helneman. 17 A That's correct. i 18 Q And In point of fact^ Doctor* we went through `It and t 19 won't go through it again* if you acknowledge that you agreed 20 that in those symptoms that were shown by these workers* there 21 was no dose response shown except for half a dozen or so. 22 A Yo g , because there wasn't sufficient dose to cause any 23 of those things. 24 Q Kell* now* Doctor* who said there was not sufficient ' ,. .y ^ v' - `i i '-r.r;. * * Sj''/lfr 5i*'* 129 1 3o8a Co cause any of those? ^And jwh .said they weren't caused? 2 Sbo said that these worhers With*the'chloracne and without the 3 shlor&cne did not have these ayraptomo? Inhere did you get that 4 Prom Doctor? , 5 A The people with chloracne and without chloracne In that 6 group of symptoms that wo had discussed did not show a difference 7 Q How Doctor that*a not the same thing they did not 8 have symptoms which you just got through saying. 9 A You*re right. 10 Q There isn't any place in,this document that says these 11 people did not have these,,afflictions that were described here 12 isn't that right? 13 A That's correct. 14 Q As a matter of fact for as far as you know from reading 15 this document every single person there could have had joint 16 pains isn't that correct sir? 17 A That's possible, 18 Q No it is more than'ghat From all you know from.reading 19 this document every single ,person there could have had joint rf " * ,^ ,1 20 pain abdomen pain nausea vomiting diarrhea Irritability and 21 go forth isn't that correct sir? -' , '1 ' ! p \ i 22 A That would be correct, yes. 23 Q And what they found wae those symptoms showed no difference 24 -,, * between the people who had chloracne and not chloracne, correct @ir?>: Vv v..44'r' ' \, ' [ ' h \* 130 ;1 < 1 A Yes . _ 2 Q Andy Doctor evon with the exposure group there was a 3 clearly c no dose response insofar as even the chlor&cne is 4 concerned isn't that correct sir? 5 A Ho* air I don't agree. ,, 6 Q Doctor didn't you testify this morning that 55 percent 7 of the people had heavy exposure got chloracne and the others did 8 not? That's nearly 50 percent Doctor isn't it? 9 A What X described waa,thafc 55 percent of the heavy 10 exposures had chloracne. 11 Q Yes. 12 A Twaufey-four percent of the moderate exposures had chloracne. 13 Q Right. 14 A Sixteen percent of the minimal exposures had chloracne. 15 /f Q Go ahead I 'm sorry. ^ . . >' Jr > *' 16 i i' '; J* J1 A Well then of thosewfaoverc defined as not having 17 exposure there vas a threejpercent increase* 18 Q How Doctor you said that 55 percent had chlorecne* It 19 would follow that the 45 percent did not? * 20 A That's right. 21 Q Sir? ,, 22 A That's correct. 23 Q Now Doctor these people both sets of people ar in 24 the group that had heavy exposure correct sir? - FORM IL-124 R EPO RTERS PAPER & MFG, CO . 8 0 0 -6 2 6 -6 3 1 3 the other half didn't get It, isn't that correct Doctor? We have four categories 0to5 ttoo ti--o* oto HC-D* 0H-0i -O a*. OH-l* Htf-c*` 1C--O^ &0-* o* ft 0* *n* o mA a Ha*. tre n 00* ft ft a> o o 0 3 0 ft <Q *5o5 to? > si *4 0 -O 0 ft 0* *aM JO <*a4 & ?HPa* sr jO W H 00 > t-3 0a* it Cu o!r 0 ft Sfi3t* ft o ft rt M M <<3 Do {* ft ft O Q. a Jo .H|* B * a 09 O tt 0o 3* $ C < o?!* 0* a o0 fi. 0 * ft ft sr P? 0 m O ft oO o' H '- ft 'ft M 0 - '0 ft i i $ * 0 ft t.< B 4 *f 4- sr S3 ' o oto cr - Cb < - 0a na ft o VH sj ft 4* or ` ?r Q> 0 K .1* HT & o t>J4 0* O a ft c O $ c0* h 0u o a a. 0 rr '_ i . *t ft S! ft 0* ** H* <a ft a a H Q. m " HO o n * **9o 0C>U r ft npr CU O* a 0* . P* t* - 0*' t' 0* a .M m " Ha**, Q. 0.-ca " ? ^. ft rr 0* 0 ft -* '0 ` n . O- ft 0 H . H O t * fHtg \- , '* 1 `ft He*u 0 paen S.&TIZ afeqs o%z g FORM IL-124 REPO RTERS PAPER ft M FG. CO. 8 0 0 -6 2 6 -6 3 1 3 0t o to to to to h-l J--4 1--t 1--` h-i S--1 H-1 CO to I--1 CO 00 C i CJ1 iK CO to it 0* a 0. O > O a to 3 B 0O 0 * e u O *< a h P* 0 ft 0* a . n H* 0r t SB Cfe 0 p * G3 ft a 0 ft 0 HH H n 00* 0 1ft 0 cl *0i f f 9 V CD H - 0 0 ft K *10 - j <0 > B* O O ft <2 .0 ft ft* H pr ft ft a L 0 a 0 rt H* *<> 0as * 0' ** 0 ft < B* 0 ft O 0 n e H H O CL ft S&* rt c 4 O* 0 ft 00 0 P J1 H O 0 % H* O 0 rt ft 0* M. HI O '0 , * ft <3 e ft CL O a as 0 V 9 t* H tft H ft E3 0 O re * 0K ^ , B B0 0 H a tf 0 a rt 4 pc O V) ft r? B ft v* 0 0 1 O ft ft ft 0f t P * * < a0 H* *0 O 0 - ft H* 0 H* H i H} 0* , .0 ,0 rt - B0 P, CL ft O 0 ft -00 H O 9 ft* f t 0 ft 0 0 M l ft. 1w t-r 10 rt 0 ft 0 * O ft ft r t 0 00 t * 0 Or t * * M ft 0 ft 1f t 1ft * ft & 0p r 0 W H* H* H *3 r t *< ft O r ^0 0 t* O 0 a O ' *0 ft . f t - O 0 *0i - < ft "3 *: - t *- - ft w f* f ft ft 0H 0 ft *' ft H* f t 0 09 ft > - . H* -O ft pc - &. 0 ft 1ft 0' ** ft 09 ft ft 0* 0rt ' * 0* pl V.- f t ft 0P i ' ft. 9 *O ft ft H ' ft ft 0 O 0. 9 ft n o a *0 0 0 a VJ . (-` O C D O O - q O C n r f x c O lO Vj o e o 0 .0 'D> . .Oa .o. 1 to o . o 103 a a o chloracne, correct sir? ft er f&t fttr - 0 ( ft H * >o > jO Cu 0* O ft O o0 p 0c. p $W-* ft ft >0* 0* 0M Hi o M rr 0* 0 3 0* 0 ft** 0' H THO* 0* fet I0Cb fstr 0ft 0 0- > Hi a0 ft cr ta* ft c V<S B 00 0 ft 0 M _ a ft o H 0* ts On0 0 0 OT 0<& Ck O <a H* 0 H* O *8 rt C ft ft a. &> *0 ST" o o 0 pr ,0 o 0 ft 8 0ft. ft 0* r? v0i* 0* ** HH*' S0 ft 0 ft M B* 0 M fa*. 0Q a **4 op* 0. iOft ft H O0 H. 0 X H* Ha 0G* It 10* oHi 0 r? fstr 00* C Vi o 0* 0 0* ta 0 08 ft 0* 0 < 0X S 0* cu 0 <o4 td o -f0t H* o* Hi fot a It aa 0o O .Hi ft SO ft ST 0 *1 0 wft n 0 O0ft ao H *0a . ft s a 0 H* H 0} Oft. Ho. 'o a ' 3 U3 IN r ^/ - . ZZ .K . / V \ h . "" ,*' 1 A Yes 6 -1 ,,' , _ 2 Q And some did not? ' " 1 li*-f -i V 1K * .m "1 s^ '' X> ''S |1i' 133 3 A And that will be true of any dose 4 Q isn't that correct, sir? 5 A Yes. 6 Q That's exactly, the fact, isn't it, air? 7 A Yea. 8 Q The half that did not. get ehloracne did not respond to 9 the dose, did they, sit? 10 A 11 Q 12 air? 13 A Ho. J' J -, .V, '' - - ' ' ` ',_ J" there was no dose response in their instance, was there. Yes, air. , > f " t\ " ',: . .'*, 14 Q Oh, did they get chlqrecne? 15 A That is not the definition of dose response. 16 Q What la the definition of doe response, Doctor? 17 A You ar suggesting to me--. 18 Q Ho, what Is the definition of dose response, if that isn't It? 19 A As you Increase the dose you increase the response or 20 i increase the frequency of response or you Increase the degree 21 response, end In this case, as the dose was increased, the 22 froquesicy of response wee increased. 23 Q Your definition of dose simply is if you get more dose 24 ere going to hare more affect? * FO R M IL-1 2 4 R E P O R T E R S P A P E R & M F G . C O . 8 0 0 - 6 2 6 - 6 3 1 3 According fi theso categories yaa poopl* vili noto corrects sir? aq oqs 3 Saxpapstay X^si^as  .*.f " , mJ- f ** 1 dse everybody would perhaps get it0 ; - v / *.135. V 'i ** ; 2 Q Doetor0 we have got a heavy doec right here and 55 percent :" 3 of the people got t and 65 percent did not, By definition* heavy 4 done* sir. J/ 5 A 0U- 1> { *.F . j < # '' 6 Q And this la all th Information va have* isn't It* sir? r . S f 'r '' r 7 A Vaa. 8 Q Yes. Nov* Doctor* yqu also'mentioned about this 9 bentonite. Yon told us that bentonite van diatamateous earth 10 yesterday* and today you tell ua it it not* correct* air? 11 A X corrected myself* yea*. 12 Q Would you answer my question yes? 13 A ' Tee. ,,. . 14 Q Doctor* you were corrected by somebody else* weren't 15 you* sir? 16 A So* sir* X wasn't. 17 Q Who told you that it fcwas not dlatamateous earth? 18 A 1 realised after X Iqf.t the courtroom and X went immediately 19 and found a dictionary and clarified- 20 Q Did you have a conversation with your lawyers, with these 21 lawyers about that point* Doctor? 22 A No, sir, X didn't. _ 23 Q They didn't suggest to you-- ", 1 - *- 24 A So* sir* as soon as X said it* X became concerned that ! 1# *" `i '*v*f>* ' 'i 236 \ 1 had misspoken* 2 Q Bow, Doctor this misspeaking of yours that9 not? / - - 1 3 illuminous silicate does that make any difference In your ' * r. i **<**' .- , . 1 *'-\j1*, 4 opinion as to what took, place last night? Tour opinion happens 5 to be the same doesn't itair? * 6 A Veil lay overall opinion Is yes we were speaking about 7 what would be the effect of water on bentonite and that caused 8 mo to get concerned about my definition* 9 Q Doctor does the illuminpus silicate present an 10 impermeable vapor barrier? 11 A I don't know whether,,or not it is absolutely impermeable 12 but It is going to be rather .tight, v 13 Q Doctor have you had .,,an experience with illumlnous 14 silicate? ^ 15 A Ho. * 16 Q Have you done any reading about illuminous silicate? 17 A All I know is it takes up water and swells. 18 Q All you know in you havereod it in a dictionary. 19 A I have never used it correct. 20 Q The answer to my question Is that's the total experience 21 you have had with it? 22 A I have read other things, but they say essentially the 23 , same thing. t * *;e 24 Q Zs your answer to my^question i that's yes that's your. SV V X37 i "3 1 total knowledge of t Is what you has? read in the dictionary? 2 A Yes* X think ao. 3 Q So we could read a dictionary and draw our own conclusions, 4 couldn't we* air? 5 A Tes 6 Q And you have no knowledge whether it would or would not 7 keep a gas vspot from rising* would you? 8 A Not direct knowledge*, no* 9 Q Doctor* you haven't got any Indirect knowledge* you 10 haven't worked with it in the laboratory or any other place* 11 have you* air? 12 A No* / 13 Q And you haven't read .anything other than the dictionary* 14 correct* air? .i \< iL' J ' V. " J 1 ( ' ; " rh \ - 15 A Well* X have in past^fcimeo* that'o one of the reasons 16 X became concerned about my definition* because X remembered 17 things that X had read at other times* 18 Q Doctor* other things ,,that you had read in past times* 19 you had forgotten it and you had to look it up and learn It all 20 anew? ^ 21 A Certainly remind myce,l* yen* sir* 22 Q All right. Now* Doctor* you indicated earlier that 23 Dr Mosee In this 908 study* J think the words you used was that 24 there was some slippage of exposure, correct* air? ` 138 1 A X recall that* yes. 2 Q Doctor* in point offset, the Hoses/Sallhoff study 3 highlights and emphasises* In effect, underlines that the people 4 without chloracne are not .troexpoesd controls* don't they* sir? 5 A Yes* they make a statement-- 6 Q Excuse ms,, my question la* le they emphasised it* they 7 underlined it* didn't they, sir? They italicised it# 8 A X remember that someplace* Could you point it out 9 to me# - . n 10 ,Q Veil* it is on Page .170; ," , 11 A Yes* as a matter of fact* X read that earlier In the 12 day# - . v, . ,v .:- 13 Q And* Doctor* there i*j,n't * single other place in this .- - * ,! * ' \ 14 article where they emphasise or Italicise like they did in that 15 information* isn't that correct? 16 A Yee* that's correct ,, 17 Q Now* that can't hardly be called "slippage" , can It* sir* 18 when the only thing in the entire article that's emphasised is 19 the fact that the people without chloracne are not unexposed 20 controls* Isn't that correct* sir? 21 A That's correct# t 22 Q What they're telling ,,us* and what they mean to communicate 23 to us is the salient fact that there were workers that hewe a 24 i ,, ' * . y work exposure history at Vitro* they cannot he an uhexposed' control A ^" - * , , C 'T .' i Ji u '-it ) , i -9 * 1 simply because they.do not have ehloracns isn't that correct 2 Doctor? 3 A Yea* . 4 Q How Doctor Insofar . * 0 the mortality rate I'm sorry 5 before X get to that you talked bout controls. You need to have 6 a-^corapare It with a group of people who live la the same town or 7 In the same area that don't work la a chemical plant* do you V 8 recall that air? 1- 9 A tea* v ,. ; .r . 10 Q Point of fact*. Doctor don't' we hava controls already 11 for everybody that's afflicted with any disease1in every 12 community In this country? 13 A Hot really. ^ 14 Q Doctor don't wo have what's called laboratory controls 15 for each specific test? 16 A Yea. 17 Q How Doctor isn't that a control group for each specific 18 test the laboratory controls? 19 A Ht~~no* sir. ,,- . 20 Q How Doctor arc you ,,familiar with how the laboratories 21 get their values? 22 A Yes, X am. ,, 23 Q You know they do go out and take people from the community " 24 don't you, sir, and run taste on these people? ' ;* "'* f ' * `O ' - i j 1 A No, they don't do that generally, sir* . i<o t * * LyT i' , *'i * * 2 Q Now, Doctor, you.don^t know that they do that? 3 A They develop a statistical pattern of all of the analyses 4 that they do, They don't go out and recruit people to come in 5 and have blood work done, for example There may bo laboratories 6 that do that, but the general practice is for a laboratory to 7 maintain a afeatiscical background for,11 o f rthe assays that It 8 does, 9 Q Nell, Doctor, they do that, but they also run controls 10 as well, do they not, sir? 11 A They generally rely on historical controls, They rely 12 on, If you will, textbook information and ao on* 13 Q Doctor, you don't know that, for instance, Mayo's has 14 controls for its porphyrins, you don't know that, air? 15 A I wouldn't be surprised that Mayo may. 16 Q And you don't know that all the laboratories that work 17 in Immune studies also have controls? 18 A The laboratories that I am familiar with do not run, 19 the clinical laboratories the research laboratory would run 20 controls. 21 Q Well, Doctor, even aside_from that, how they get their 1 22 data, they do have a control group to compare the other data 23 with, don't they, sir? 24 A Yea-, they have their .historical controls. 1 Q the ones with historical controls nay consist of 2 thousands of people, won't It, sir?,-' : 3 A Yea _ ',i v r t* 4 Q And that lo indeed .a ,,control group, isn't it, sir? ' " /r ' ' v "* V . 1 5 A For a given test, -yoii*' . , : **. /. v; /_> 6 Q Yes Now, Doctor, Insofar as. the mortality rate, , ^ _ i.4'. 't . ' 7 you mentioned Insofar as the workers at Hltro ware concerned 8 In this valley that you have, that there Is something intrinsic 9 In that region and nobody.knows what It Is, we have no way of 10 knowing what It might bo that's causing this high cardiovascular 11 disease rate, correct, sir? 12 A It is slightly higher than the national average, yes. 13 Q la t h e answer to my question yea, we have no way of 14 knowing? 15 A Yes, sir \ 16 Q Now, Doctor, do you know^that that valley is called 17 "Chemical Alley" or "Chemical Valley" by some people, don't 18 you, air? 19 A Yes, sir* k* 20 Q There Is a lot of chemical plants there, Monsanto has a 21 very large plant there, doesn't it, sir? 22 A Yes. , 23 Q And other companies as well? 24 A Yaa 1 Q Ail<35 Doctor,, it could be that the emissions from these 2 plants, the toxic substances being emitted from, these plants `' , , , - 't .* v 3 could contribute to cause this higher mortality .rate from 4 cardiovascular disease, couldn't it, ,sir? ^r | *r * 5 A Yes, it could* ; * 6 Q And, Doctor, it could be the dioxins emitted from the 7 ISitro plant could play a role in this higher mortality rate, 8 correct sir? 9 A X would doubt It, You oay It could be if we use that 10 language. 11 Q That9a the language used,, 12 A Since we cannot say thatit does not, y@e, 13 0 And, Doctor, it is known^that chemicals can cause 14 cardiovascular heart disease, that's a known fact, isn't It, air? 15 A Well, certainly chemicals can, X think, 16 Q And, Doctor, can It not be that the higher mortality 17 rate in this valley, including the Nitro workers, is because 18 the chemical that these people are living in this valley have 19 been exposed to? 20 A Well, you say "can it. not be", I think that, yes; I can't 21 answer It in the negative, 22 Q Doctor, is there anything about the lifestyle of people T' I 23 in this valley that would be I%4iferei$t to your knowledge from ., , ` ' 24 the lifestyle of anybody else that could cause this increased ,,'>Tf > \j iC;% "* f 143, 1 mortality rate from cardiovascular disease? v' 2 A X am really not familiar .enough to sky ' * r 3&\'4 3 Q Doctor you have been there. 4 A X have bean there bu#t I ,,can't-- 5 Q You've walked the streetsB have you not sir? 6 A Tes 7 Q You testified In Court there. 8 A Yes. 1 `,, 9 Q You have eaten there you've slept there you've stayed 10 there for weeks at a time. 11 A I have been there for a few days yes* 12 Q Is It for weeks at arime? 13 A No I don't-- possibly, one week* 14 Q Dr. Dost you are familiar with their lifestyle as much 15 you can be with that limited sojourn Isn't that right sir? 16 A From that very limited sojourn X can't tell a thing 17 about them that's different. 18 Q That's correct* * ; 19 A They have a different, accent. 20 Q Sir? ,,. J 21 A They have a different accent than we have at home. 22 Q What you can tell Dr* Dost Is that they live-- their 23 lifestyle la much the same or if not esaetly the same as the 24 rest of us correct air? 1 r/ 'V " . -V . `` <, ' ' .. . i ' ! '* - V* ' , 144 i, f 1 A To the extent of my knowledge, that could be correct* 2 .Q They have McDonald's*, they have Kentucky -Fried Chicken* 3 they have Bonanzas, they have all of the same kind of eating 4 establishments that we have h o r e l a S t . Clair County, don't they, 5 sir? 6 A Yes, X presume* : 7 0 And you saw nothing about their lifestyle that you could , 8 put your finger on or even come close to saying was the cause of /. 9 this increased mortality rate, isn't that correct, sir? 10 A That's correct* 11 Q The only thing that yon do know that is different in 12 that valley from the rest of the country is the presence of 13 these chemical plants, isn't that correct, sir? H A Well, there are other parts of the country that have 15 similar, but that Is all I know about, yen* 16 Q There are other parts, of ,tbe country that have chemical 17 plants as well, isn't that right, sir? 18 A Yes* .` 19 0 The people that liveKin Rush City, Illinois have a 20 chemical plant right next door to them The people that live In 21 Bast St; Louis have a chemical plant right next door to them on 22 the sides of them, they have them in Washington Park, they have ' 23 them in Sauget. ' 24 A I know that there are any plants around* ,\r J I; . % \J*1 145 1 Q And, Doctor, there are higher cardiovascular disease / 2 rates in any place that's not a large number of chemical plants, 3 ion't that correct, sir? 4 A That I don't know, sir. - 5 Q You don't know that? ,, - 6 A No, air. ^ 7 Q Have you looked for it, Doctor? 8 A No, sir, I have not. ,, - 9 Q And, Doctor, insofar ,,as the people inside th plant and 10 the people utaide the plant if you don't know right now from 11 this study whether the people at Nitre have a higher or lower or 12' the same cardiovascular death rate as the people outside the plant 13 in that valley, do you, sir? 14 A On the basis of the Information X have, X don't know 15 what the relative rates are. 16 Q So It could be as far as what you know is that the heart 17 disease rate on the people within the plant is higher.than the 18 heart disease rate or death rate of the people outside the . 19 plant, correct, Dr. Dost? _ 20 A On the basis of the information in this paper, X don't 21 know. Xt Is interesting that they state that, the incidence of 22 heart disease In these people is slightly but not significantly, 23 /I ' * L ,, not statistically, significantly1different'from the rate.in the 24 country at large, and they.also point out 'that the Stats ,of . ' -\ * ' ' ` i^ ~ 146'- .* i f , ' / * 't 1 West Virginia has found that there is in fact a statistically i 2 different rate. 3 Q Where does it sey th^t, Doctor? Where dose It say that? 4 You are junt putting that In there, aren't you, Dr. Dost? It 5 doesn't say that at all, 6 A I don't know whether.it says "statistically different11 or not. 7 Q Wo, you said that Itjsayn it, but It doesn't say that. 8 Look on Page 178, Dr. Dost, 9 A "Mortality from cardiovascular disease Is known to be 10 higher than national rates in the Kanawha Valley where the plant 11 is located,1* ; 12 Q And it doesn't say statistically significant, doea It, sir? 13 A Ho, you're right, that's correct. 14 Q And, Doctor, whether ,,they're higher or lower, it could 15 be that the people in the plant and the people In the valley are 16 having their heart trouble from the eh&micals to which they are 17 respectively exposed. Isn't that correct, air? 18 A You say it could be, knowing nothing else-*- 19 Q Doctor-- ` 20 A That could be. ,, j r f* - .V 21 Q You cited Seveso as an-example of a does response, did 22 you not, sir? > .p i .` k M 23 A 1 don't remember*-' v*`1 4` " '' , j r tV *.\ 24 Q You don't remember M r .. Heineman asked:you about Seveso, Italy? U7 1 A He asked me, I believe, if there was chloracne at' 2 Seveso, and 1 said that yea, there was. 3 Q And you said yes, there was. How, that statement, if 4 we didn't know, have any other Information, would make us 5 believe that the people at Sevaso all had chloracne, wouldn't 6 it, air? 7 A Not necessarily, no.jtir 8 Q Doctor, in point of fact .you know that very few adults 9 got chloracne' and only sixteen percent of tha kids got chloracne, 10 you knew that? 11 A That's correct* 12 Q And when you said that--when Mr. Heineaan asked you 13 that question, you knew that there was a very low rate of incidence 14 of chloracne at Sevens, didn'^t you, qir? 15 A Yes* ... 16 Q And all those people ,,were exposed to this,, weren't they, 17 sir? Just a very small percentage got chloracne 1 - c 18 A Yes.' r., ...\ `-'J1.' 'j ; ( J * 19 q And that indicates again, sir, Just as shown In the Moses/ 20 SeIlkoff study that some people can be exposed to a substance ; ,r ` - , : V ;t1/'. 21' and react one way and other people exposed to the earnersubstance 22 an l the same doses don't react that .way, isn't that correct * sir? 23 A At a given exposure, ,,yea y ..M 24 Q Now, Doctor, talking^about Dr. Schroy'a work that you and ,.v /^ -, i . ,-* )1 J"' ' ii{ - t - f, * 1 Mr. Heineman went back Into, you still got Plaintiff V Exhibit 148 2 1413 there? 3 A fee, 1 have It. 4 Q And there vae some discussion about DDT? 5 A tea. ,, 6 Q Would you look at fche. very first, the page numbered 1 7 on Eshiblt 1413? 8 A Yes. u 9 Q Schroy says, does he .not that the vapor pressure of 10 DDT and TCDD are not Identical but they are similar? 11 A Yes. 12 Q Poes he also aay that the environmental mobility of 13 TCDD should be similar to DDT? 14 A Yes* ^ 15 Q And what did he say earlier was the cause of the, environments! 16 mobility of pDTfl Dr. Dost? 17 A He spoke about the volatility. - - 18 Q Yes. * * >::j . -* 1- 1 -s t' ..." 19 A Of TCDD. , ... 20 Q That'sexactly what hesald, didn't hop air? 21 A Yes. 22 Q And he says the same ,thlng here,.doesn't he, sir? 23 A I am not really sure ,,that he la saying the earn thing here. V. u. 24 .. ` ; Q Nov, Doctor, he testified in this case that he heli?eyas ^ , 1 the world was contaminated with DDT because it wee volatile 2 you recall that sir? i t 3 A Yes# 4 Q Ws went into chat? 5 A Yea. 6 Q And he is, testifying^here, hot testifying here his 7 study here he says the environmental mobility of TCDD should be 8 similar to DDT doesn't he sir? 9 A Yes he is saying thqt. ,, 10 Q Environmental mobility means how it moves in the environment 11 doesn't it sir? 12 A Yes. ^ 13 Q And isn't ha saying that if DDT contaminated the world 14 because of its volatility because of its particular kind of ri \ ,' 15 mobility that TCDD has the Similar or the same, similar kind of 16 mobility?' 17 A I really don't think,,he la making that'broad a comparison, 18 air. 19 Q Doctor he eays erectly that. He says "Thus the 20 environmental mobility of TCDD should be similar to DDT" end 21 of quote doesn't he sir? 22 A Yea# v. 23 Q I didn't add a word there? 44 . 24 A Ho sir. , ' 1 " ' ' -*^* i>i* * "150 v r;'-ti`, ', *' 1 1 Q He la saying that they should he similar is\n/'t' he air? 2` A Yes. H| 3 Q And he says that several^investigators shoved that DDT 4 ` is mobile in the environment because of what sir? 5' A Vaporisation. 6 Q And what is it that he is saying that is similar to 7. DDT? 8 A He is saying that the environmental mobility of TODD 9' oheuld be similar to DDT. 10 Q And he demonstrates in this study does he not sir 11. that it is? 1 i 12 A In this study he is^speaking of the transport of TCDD 13 In soils and is comparing it to DDT. t 14, Q He is talking about the transport up into the environment 15* through vaporisation isn't, he sir? , 16 A Well he is talking about how it behaves In coil. 17 Q How Doctor this three pages hare he aaystconcludes 18 "Thus TCDD should be mobile via vaporisation in the environment" 19 doesn't he sir on the next page? 20 A Yes he says that. 21 Q Nov Doctor that vaporisation In the environment is in 22 our environment isn't It sir? 23 A Presumably. ,, 24 Q And he is saying that TCDD should be mobile by the fact,. J,*. ft ', 151 1 that it is vaporised In our environment doesn't he, sir?' 2 A He is drawing a comparison, he is making a prediction* 3 Q Well and his study he coecoout and says his model 4 proves hla prediction doesn't he sir? 5 A Well in his study his model describes the movement of 6 TCDD in soil In a soil matrix* 7 Q How, Doctor, doesn'tJe conclude that this model fits 8 the volatility of DDT and TCDD?. ^ . 9 A . Yes, in the soil* . vi 10 Q Yea* Does he say-in ^any ..place here that TCDD will act ` 11 differently in the soil or in the atmosphere than DDT? 12 A Well, he is not discussing tho atmosphere, really, j *t t1 13 except as he, in fact, he isn't 'discussing the atmosphere, I 14 don't believe he Is talking really about soil* 15 Q Doctor, the whole purpose of this study, according to 16 his background notes, is to show what's going to happen to DDT 17 because it Is a vpaor, that he spends three pages discussing* 18 The only background he gives is discussing the vaporization 19 through volatility, isn't that right, sir? 20 A Yes* : r' 21 Q And ho concludes that; his model supports his theories In 22 the background, doesn't he, sir? 23 A Yes, in the soil, that's what he Is looking at* 24 Q Doctor, does he anywheresayvthat it will act differently '%i ^* ' 5` . . '/ * . * *' 'j 152 1 in the atmosphere than the DDT? 2 A Ho, sir. .. 1 3 Q Doesn't he say that TCDD.should be mobile vie vaporisation ' 4 in the environment? 5 A He g aye it should be.^ 6 ti g * Q And hasn't he said that TCDD, that Hash and Beale have 7 demonstrated that TCDD is volatile in laboratory microcosm and v' , ; 8 field experiments? s* 4 .> f f ' L - l 0 . 9 A Tea :. Vim* 10 Q And they measured the TCDD in the air. Hash and Beale?/' 11 A Tee. ,,' ; 12 Q In the form of vapor * correct, sir? 13 A Hell, they used th term vapor, yea* 14 Q How, Doctor, are you~-you made-- -your Honor, I've got 15 past ten 'til five. -- 16 THE COURT: Gentlemen, could X see you at the bench " 17 for a minute, please? 18 {An off-tho-roco^d discussion was held 19 at the bench.)* ^ , ,, 20 THE COURT: Okay. J 21 BY MR. CARRt 22 Q You've made a number,,of statements about the volatility .' 23 k 1 in the ballast or that Eglin is like Sturgeon ballast. Doctor, i *,. 24 * "si_<' 'T the material at Eglln was buried, wasn't it, air? 153 1 A Very sandy* 2 Q Did you understand my question. Dr. Dost? The material 3 st Eglln was burled? 4 A Excuse me, sir, Z did not hear your question correctly. 5 It was burled, it was placed on a dugout and covered, 6 Q And the material at Sturgeon and at Times Beach was not 7 burled, was it, sir? 8 A I do not know about Tines Beach, other than what I have 9 read 10 Q Doctor, in Times Beach, the material was sprayed on the 11 surface. So you don't know anything about Sturgeon other than 12 trhat you would have told, either? 13 A That's correct. 14 Q Now, Doctor, you were given a long hypothetical question 15 about the fact that dirt was removed In this cleanup, were you 16 told that in the passing track, sir, they found 92,000 parts per 17 nlllion of OCP right In the middle of the passing track after 18 they removed all this dirt, after they did all this removal that 19 tfr. Helneman told you about? 20 A This was after the thaw, yes, there was one pocket-- 21 Q Oh, one pocket? Is that what you were told? Did somebody 22 tell you-- 23 A I saw the data. 24 Q Doctor, are you answering questions that Mr. Helneman gave .1 1 5 4 f 1 you on vhat fee gave you ot on Independent research hare? 2 A Wall, I have seea-^ v' ' 1. 3 Q Could you anowar ny question, Doctor? 4 A Well, all of my data ,relative >,to Sturgeon 0 provided 5 through the attorneys. 6 Q I'm-- directing your attention to the hypothetical 7 question that Hit. Heineman gave you relative to the cleanup. 8 A Yeev -. 9 Q Dr Dost, you understand that If you're answering questions 10 that he's giving you that way or on other facts that are not in 11 that hypothetical question, I have no way to crons examine you 12 on It except what *s In that hypothetical. Nov, did he not tall 13 you In that hypothetical, did he, sir, that the passing track 14 still had 92,000 parte per million of OOP in It? 15 A I don't remember. X wdon't believe that was in the 16 17 Q And he didn't descritte the passing track area as a pocket, 18 did he, sir? 19 A No, sir. * 20 Q And then your understanding Is that this contamination 21 was Just In a pocket some place and is that the reason you 22 gave this answer that you did? 23 A It was a 0 ingle spot..where that concentration was observed. 24 Q And is the answer that you have given to the questions . 155 1 that you-- b nowar that you have given to Hr. Hclaenan based 2 upon your belief that it was a single spot? 3 A Well that vas what ^>he analytical data showed* 4 Q Then la the answer to ay,question yea, that it is based 5 upon your belief that it was a single spot? 6 A Yes. 7 MR* CARRs tour Honor, I ,,would move to strike'his answer-- 8 THE COURT! Gentlemen could you approach the bench 9 please? 10 (The following conference wee held at the bench*) 11 HR* CARRs He now says that he responded to Hr* Helneman's 12 hypothetical based upon hla belief that It was in a spot and 13 I subalt that I have absolutely no way of cross examining the 14 witness if he Is going to .answer questions based not on the 15 hypothetical given but on.exhibits that he's looked at and studies 16 that haven't otherwise been Identified. 17 THE COURT! Which specific answer or answers are you 18 talking about? 19 HR* CARRs That there, wouldn't be any material there to 20 volatilise. Let's see exactly what all did he ask him about? 21 Maybe rathe? than striking I just batter ask him questions 22 because the jury won't-- they will remember what he oaid but they 23 won't remember because of the lateness of the hour what It vas 24 that was stricken ~ ' 156. I* * i 1 THE COURT: Fine* 2 .(The following proceedings were held in open Court*) 3 MR* CARR: I withdraw that Motion* your Honor* 4 THE COURT: Motion iq withdrawn* 5 BY HR. CARR: 6 Q Doctor* the data that got* what was it in the fora of? 7 A Well*. seen a variety of analytical data* sampling data* 8 that was taken at different times In that area* 9 Q And it is your belief that based upon that data that 10 there was just a one sample tested that found a pocket of OCR 11 after the cleanup took place? 12 A Ho* sir* not quite* JThere was OCR found at various lovela* 13 There was only* as X recall, that one place where there was a 14 high concentration. 15 0 Doctor, didn't you read,.did you get the soil sample hook 16 where there is concentrations of 29,000, 30,000, 15,000 ports 17 per million of OCR in the phenols? You didn't see those? 18 A That was after the first cleanup and after the thaw 19 began, as X recall* , And that was, I believe, the reason why 20 the second cleanup was undertaken. 21 Q Thatfls right, Doctor* The entire passing track and other 22 areas besides had never been cleaned and they found those 23 levels of OOP and phenols there, didn't they, sir? 24 A Down in the soil, yes. 1 -J*r'.'l'rv'V', '<'r 1 '* 157 1 Q All right H Now, 3>e|or* when you answered the i hypothetical ' i V" 2 that Mr. Heineman gave you did you assume that the second cleanup ,, ; 3 had already taken place? 4 A I assumed that moat qf*-- X think 1 used the term that most 5 off the material had been removed. 6 Q My question is, did you assume that the second cleanup 7 had taken place? 8 A 1 don*t believe X had,. 9 Q And you assumed all these contaminations that veto there 10 then that you. saw on this data assumed that all that tract wee 11 thualy contaminated, didn't you sir? 12 A I 'm trying to remembqr the hypothetical. 13 Q And that's the problem, you are answering the hypothetical 14 but you have in mind other data that you saw, and we don't know 15 phat it is you are basing your answer on. Now, when you answered 16 the hypothetical question, did you have in mind that the 17 contaminated soil wae all removed or not? 18 A I.had in mind that mostof the contaminated soil was 19 removed and there was still some material remaining. 20 Q And how much was that some material that was remaining? 21 A 1 suspect five percent. 22 Q Five percent of the material remained? 23 A Mr. Gilmer of the EPA, as I recall, said that 99 percent n 24 was removed. X had assumed 95. ^'r' 1 f 1 Q Tou are talking about Mr Gilmer*a etateoenfc in March 2 of *79, correct* sir? 3 A Tea ^ 4 Q Dr Dost* that's what the CPA did say in March of '79* 5 that's what the government officials said exactly like you say* 6 but now after that* Dr. Dost* and the answer to the question that 7 you gave to Mr Heinman was based upon your belief that 99 percent 8 had been removed* 1 take It? 9 A Sir* I had-- 10 Q Hlnety-fiva percent had been removed? 11 A I had two hypotheticalo.. 12 Q Excuseme Could yoi answerthat queetion* Br Bost? 13 A Yes ,, 14 Q And*Doctor* the TCDQ thatwas in the soil InApril* 15 In April of '79 thet was not removed could volatilise* couldn't 16 it* sir? 17 A In the sense of moving in the soil slowly* yes. 18 Q Doctor* It could volatilise from the top layer of that 19 soil that had trapped it* couldn't it* sir? 20 A If there was any right at the top* that would be possible 21 Q And* Doctor* you're .tlll assuming that what Harry Gilmer 22 said was correct* that 99 percent or 95 percent had been 23 removed* right* sir? 24 A In respect to the question you're asking* that wouldn't 7 '< 159 ( , i* JfJ" 1 really matter. 2 Q Doctor, would you 11aten.to ray question and answer it, 3 please, sir? Ara you still assuming that as Mr. Gilmer stated 4 in March of 979 that 99 percent, or as you have assumed, 95 5 percent we removed? 6 A No, sir, because X had also been asked a hypothetical that 7 assumed there had been no cleanup, and my conclusion**' 8 Q I'm talking about the one where you vara giving the cleanup 9 but there van 95 percent removed? 10 A I don't recall whether I ..va using a figure. I had made 11 the assumption that moat of the material van gone end I don't 12 think that I really assigned that percentage. X just don't 13 remember It* 14 Q Now, Doctor, are you^avare of the time that after this 15 99 percent pronounced by the EPA clean bill of health took place 16 that the flak in the Kemner pond died and the fish In Sallng 17 Greek died for miles and miles around Sturgeon? 18 A ` Yea, ... 19 Q And you are aware of,the,fact that they removed tono 20 and tono of dirt after that, air? 21 A Yes. * 22 Q You are aware of the ..fact that they found the passing 23 track contaminated for 300 feet or better In the area where it 24 spilled In th ditches alongside and the area between the panning 1 track and the main track contaminated? 2 A With OCP, yes* 3 Q And, Doctor, ell of that ,,took place after Harry Gilmer 4 pronounced a clean bill of health, are you aware of that, sir? 5 A Tea, 6 Q Doctor, how can you conclude that 99 percent of it was 7 removed? The figure* that Harry Gilmer went on had nothing to 8 do with the removal of the dirt subsequently, hi* information 9 cams only in the first dirt removing He didn't any that after 10 that In 1980 when the cleanup finished. He said that before 11 the second cleanup evar started, aren't you aware of that? 12 A Yes. 13 Q And, Doctor, the bal^aat that van poured on top of the 14 contaminated dirt in the passing track, that would not prevent 15 the vapor from rising, would it, sir? 16 A According to Dr* Schroy, ,it would move about the same 17 ae it does in sand* ,,, 18 Q Where did Dr* Schroy ,,say .that? 19 A He made the statement it would move, it would behave 20 similarly to the way It behaved at Eglln* 21 Q You believe that he qaid.that, Dr* Dost? 22 A I believe that it was in his testimony* 23 Q And do you believe that it is. true, sir? 24 A 1 think that it-would move similarly. X think that 161 1 possibly there might be some difference in rate but the same ' 2 physics would apply. 3 Q How Doctor yon know the ballast is not sand you know 4 that don't you sir? 5 A It is coarse yes sir* 6 Q And Doctor you also oh* you don't know, you believe 7 that all of the TCDD would go right down with solvent? 8 A When it first spilled* it would go down with the 9 solvent. 10 Q You are not aware of ,,what the University of Missouri 11 discovered in that aspect? 12 A Oh yes I certainly ,,am.. 13 Q What did the University of Missouri say? 14 A They put TCDD in a sqlvent small amounts* 15 Q Excuse me* My question io what did they conclude? 16 A They concluded that the soil would remove TCDD from a .17 solvent but they used very small amounts of solvent and I 18 would expect the TCDD to come out very readily In the kind of 19 experiment they conducted* 20 Q How Doctor they weren't-- do you.agree with Dr* Schroy 21 where ho said that the University of Missouri study said that 22 the first inch and a half of the soil would.take up all the TCDD 23 contaminant? _4 * 24 A Well in the experiment, they did, that's true* It Is a 162 1 different situation# 2 Q Well then you disagree,with Dr Schroy's statement that 3 it is not a different situation, la that right air? 4 A I don't know whether,Dr. .Schroy said it would behave-- 5 Q Mr# Sehroy* ' , ', ' 6 A Mr# Sehroy said it vquld .,,behave exactly the same way in 7 the track aa It did in that soil column# 8 Q Doctor he testified,,that the University of Missouri 9 study showed it would go down about three centimeters a little 10 over an inch and that all the XCDD would remain in the top three 11 centimeters and the solvent would keep on going# 12 A Yes in that experiment that they did, that's true. 13 Q And, Doctor what experiment have you done to suggest 14 that In the OOP situation It would go with the solvent? 15 A I haven't done experiments on TCDD in the soil, but 16 the amount of solvent# 17 Q Dr# Dost, what I am asking you have you done any work ; 18 to say that the University of Missouri work doesn't apply to 19 Sturgeon? . 20 A Well X think that, simple, physics would ,say that it *' 21 doesn't V 22 Q Doctor would you answer my question, please, sir? l\; 23 A No, I have not. t *- ** * v` -'."'V; 24 Q Doctor, you know Dr# JSchroy has done tha work-- or Mr. Sehroy : 16$ . *" TM. y ''*'-v>*..,r < ^ y4O.', 1 and Dr. Freeman have done the work, and you know the University 2 of Miocouri has done the work and University of Missouri say 3 end Mr Schroy interpret what they say aes saying that when the 4 TCDD 1 in a solvent, the top inch and a half is going to catch 5 the TCDD, and yon differ with that based upon no work of your 6 own, is that right, Dr* Dost? T A X differ with It wittjL respect to Sturgeon, yea, air* 8 Q Baaed upon no work of. your own? 9 A That's correct 10 Q Doctor, if the University of Missouri is correct and If 11 Mr* Schroy la correct, all the TODD is there In that top layer 12 of soil aren't they, sir-- lan't it* sir? 13 A I don't think that's.,what Mr, Schroy said. If he said 14 that it would behave in exactly the same way that Missouri study, 15 then I would presume that that*would be true. 16 Q Now; Doctor, don't you recall that Mr. Halnctasn read 17 you the question, read.from the very pages, "QUESTION: So far v ** " 1* 18 aa Sturgeon is concerned; based upon your studies,, if we had 19 cold weather in January and February,smarted warming up in March, 20 April, May, that's when the TCDD would start volatilizing that's 21 in this top layer of soil," do you recall that, sir? 22 A Yes. ,, 23 Q And the answer was, "The rata would increase probably 24 about June would be when it would really start causing problems *' "i. ' a 164 ' .1 rv i' 1 when it really starts to get hot*" Do you recall that, sir?- 2 A Yea* v, 3 Q And you do recall that he agreed 'that the XCDD would he -T 4 la the top layer of soil, don't you, sir? 5 A I'm sorry, but X don^t believe that he said that the 6 XCDD at Sturgeon would stay inthe top, in the top layer* He 7 wne describing the phyaice of the situation in Missouri where 8 there was a small amount of solvent* 9 Q Doctor. whore did yoq, over say that the Missouri study 10 am* not valid for Sturgeon? 11 A I don't recall that heoaid it was not valid* It 12 Illustrated the effect of soilon TGDB in theideal situation* 13 Q And Doctor then he ,,Was ,,asked how it would act at 14 Sturgeon* Do you recall that sir? . 15 A I don't recall, what.S\e said., 1 - , ' '\ v J V *' \R' 16 ; \: ' \ hi * Q Doctor he was asked^tha question about the XCDD would 17 start volatilising In the top -layer ;of noil* . v** 18 A Yes, X recall that* ,, 19 MR* HEXMEMAH: Whatpage,, counsel? 20 MR* CARR The one that you read counsel, on Page 108 21 A I am curious what Dr Sehroy said, or Mr* Schroy, said 22 about the behavior of TCDD as it moves into the soil In a large 23 amount of OOP ns the situation was at Sturgeon* 24 Q Doctor, he agreed that theOCP was a solvent, X think ' ' 165 ; , ^ 'p ; ` f i -%i ' i.f *- 1 that'8 what he said. Does that answer your question? 2 A That describes the solvent. I am not sure what he 3 said with respect to material moving through the soil. 4 Q Doctor It will go through the soil faster if It Is ;5 a hotter solvent won't It sir? i 6 A It may but It depends on the amount of ths solvent 7 and the flow rate. 8 Q Well Dr* Dost on th*t point you have absolutely 9 nothing to counter what the University of Missouri says about 10 the OC? and the flow rate or anything else isn't that right sir? 11 A Well their experiment was .with different solvent and 12 I believe that their experiment Is correct. /, 13 Q You believe it la correct? .- 14 A Yes* r- ' - 15 Q And the top inch and .a'half would contain the TODD? 16 A I question that very,,strongly 17 Q But Doctor you just got through saying it was correct. 18 A I don't think that the Missouri experiment applies to 19 a massive amount of OCP and a very minute amount of TCDD moving 20 through a soil column. 21 Q Doctor do you have anything .at all to base that judgment on? 22 A Only some basic physics only my experience with > 23 chromatography columns* 24 Q Chromatography columns? > 166 1 A It is the same principle. 2 Q Doctors this Defendant'Exhibit 1143, do you still have 3 that sis? 4 A Too, X have 5 Q You referred to table 3 did you not, air? 6 A Yes. ,, 7 Q Doctor, they discuss ,,concentrations of TODD in the air 8 tn a shaded outside plot, don't*theysir? 9 'A Yes* . \ * 1. i 10 Q Does that indicate that it is in,the air there, sir, /,* * * Jp *r *'* 11 volatile and not degraded by. the sunlight?- ' ' 12 A Hell, that which they found, yes, I don't know. It is 13 In the air, certainly* *' J 14 Q And not degraded by tho sunlight? 15 A The amount that they^measured was not degraded* 16 Q Doctor, in this s&mejffork of Schroy's he unot frpa 17 ileure in vhichMlGure concludes on. Page 3, if you. would look* sir* 18 A Yes. J 19 Q "That measuredlosoe% of ,,1,3,6,3tCDD from soil may have 20 been due to vaporization, thereduction'in1,3,6,8 TCDD concentrations 21 In the field soil plots was not due to degradation or movement of 22 the molecule into the soil column." Do you see that, sir? ,J. 1 23 A Yes, sir. *, 24 Q And he cites with approval this statement of Mieute's, 'r 1.67 1 doesn't he, air? 2 A Yes, sir. 3 Q And what la the half-life that Mieure reported for 4 TCDD in this soil sample* sir? 5 A Well, for this TCDD?, 6 Q* Yes. . \\ ].7,, A And it would differ, they report half times of 131 and 8 321 days. 9 Q How, Doctor, that 'is Just slightly more than the 36 hours 10 postulated earlier, is it not,, sir, and by slightly more, Z mean 11 a heck of a lot more, isn't it, sir? 12 A Yes. 13 Q And, Doctor, there is not 24 hours of daylight, Is there, 14 sir? 15 A Ho, air. 16 Q And the TCDD that comes up In the shady time or when It / 17 1 under the ballast and rises through the ballast In the gaseous 18 form or the vapor form, it Is not subject to degradation by any 19 theory that you know of, is It, sir? 20 A No, sir. 21 Q And the 24-hour a day volatilisation or vaporisation 22 would be subject to inhalation by people living in that Community., 23 would it not, sir? 24 A If it could get intojih atmosphere, yes ,< * -' -V. .168 1 Q Doctor,; la there anything to prevent It front getting 2 Into the atmosphere other th^nloooG.porouaiballast and wouldn't ) .`J * . *' 1 ' ' 1 **j. i J A S ` ** ' " . L* 3 gas .rise through'loose, porous hallest? 4 A Gas will move randomly *initthat-ballast .and esm*ail amounts < . 1 ' . - <i. j `i.'>-v;> -`vu./1 - ' 5 >f it will emerge-. . . J`/ k `6 Q It will all ultimately emerge,wwon't it; sir,< according 7 to Sehroy'o ``theory? '\ 8 A .According to Schroy's, theory. "1 .j ' /' . ^ 9 ,Q ndccordlng to Mieuro'a calculation? \ 10 A It will take A very^very long time, yes*. ' II Q _ Doctor, do you think^that the 90 percent that he .said 12 volatilised In the top one centimeter soil during the first summer 13 was .long, long time? 14 ... A That was TCDD In oil,.that was sprayed oh the surface. , ' *j 1> J fc * 15 Q Tes. ' 1 ' t ' 1r ` ,J r. J _i *': ` - _y , * s" <16 '.A And he didn't h e `said that it vaporized? but the fact 17 Is that hie model simply shows, disappearance and.I think. It Is 18 very highly likely that moat*of it simply, degraded; in the sunlight. 19 Q Doctor you have never done any work-in this regard, 20 have-you, sir? , f^ 21 .A No, sir. : ... " " 22 Q Mr. Schroy has, has he not, -git,? 23 A " Tea 24 And he says it volatilized, didn't he, air? .-`.v * '** < 11 - , j." ;* '"fjv-. 1.. v ,, ,, ", f ' * T' , --fevc.- ,,'**1te* ' *rv . -i- * ^  ./ ''M - * M. . L ' \ v . fr ,, - 'V-` 1- . ;< '* -t l ISr*.(''J-y'rSi- ':-i ..:'1 y 169 '- A He said that, yes.-TO* r. . ' ' .--M . , ^ '-v " . yyf> k/ * -2 Q And ha oaid 90. percent pX jit, volt tilised frotj the: top 3 centimeter, didn't ha; sir? y. M s ^ ' ` . ' y y -' y y - j y - v t ! . v p r r.yv-M . L4 A Yes* he v&s projecting back* , 5 Q / Excuse me, .Doctor, didn't he say that's what occurred? 6; A.``- Yes,' he aid that. 7 , Q That!. not a .very*' very. slow rate, is itv'airV v .J ' L'8 .A . He said that, well, he said volatilization, ., 1 9 Q Doctor, that1a. not.a^very, very slow rate, As it, sir? ' M O A* Ho.. , ,', ; . * M 11 / . Q.' It1istexceedingly faqt rate,-isn't it, sir?,. 12 . A Yes, if t la cortecn* . y J. .. . 13 / Q Doctor,'do you have %ny study at all to suggest that'1 it ia incorrect? " '-.y , SoO 15 * A. No,, air *': ;^ \ ,r 1 ' \ ' Q And when' 'you said 'earlier that-'according to Schroy., ,. 0L. as aUJ 17 it. wouldn' t volatilize, you were.'incorrect, weren't, you, air? 5VKL)IM -18 ,_t A We have had a problem with a matter of degree. (C jA t m: ->'1<9 never denied that TCDD would not volatilize. I have'. TM .20. ; j Q ,1 wpnder if you could direct your attention .to my ^ - 1 , , question, Dr. Dost. .You testified just a few minutes agothat ' 22. *r according to ! Schroy, * the TCDD would 1 1 not volatilize* : That - ' statement ij `23 io incorrect, ,isn't it, "' air', according " to Schroy it would \ ! ` , t \ M t.-M,.M" 24 volatilise, wouldnlt it,:oir7 \ .CO. 6313 -HO-il twfx. - .y *. v; r '' ^ m ^' -,' .' u >J.C l'-'y -y / - * * * ^ i_ y.*>I - -. :' < i- (>\ ' - V 1*-,, 1 ^ *''* ' * -r . f ,, K - ''* * ' . . if * 1. /> y ! . . * . i * 5-' - { P * V'A : ' i O V ' . i. r ' ^ \\ . -'V' '. 'J ' ' V" A Vl' \-J 'V-V /' if.:A-. '- *v' ' * 170 ~i' : 1 A I*m ttryIng to remember-' t h e c ontext iof::my original anawe v . 2 Schroy-states^that. that material volatilized at'Times Beach, 3 Q And Is the answer to^ay question yes A it is -correct 4 according to Schroy, it does volatilize? , -' ' 5 A According to Sohroy, JLt does volatilize, ; 1- 6 -, I '7 ' MS* CARR: That's al^ the questions I have, - MR. HEtHEMAM: , Mo questions', /Judge. > AV 8 .THE COURT: Doctor, .you may,step'down. Thank yqu. 9 Gentlemen, could I see you at1the bench for a moment? io; * , y ,(An offr-the-recor;d discussion was held . ' 1 11 at the bench.)/. 'V ' * ip ' 12 . THE COURT: Okay,, lamias ,,and -gentlemen, we are going 13 to break for the day at this time and ns I remind you that, you F O R M IL -1 2 4 . R E P O R T E R S P A P E R M F G . C O . 0 0 0 -6 2 6 -6 3 1 3& <2 14 nt<o0 sO O .15 r' CD J 8 '16 o r' ' IL * 'C `-,, 17 'Ill k . L 1 '-Sttit-nru 18 ' !tKil' . V19 5u 20 won't be^coming in .tomorrow, we will see you Thursday morning at 9:30. Thank you foryour attention and cooperation.; Court is adjourned.-' (At.this time, Cqurt^was,.adjourned for the day.) t/ __ 1\ , ''' * '* ^ " L ( 'r, ( ' * 11 " 1_ ^ * / a / /r * .* *i. `4 , , 'Vik ' 'k?* *` - '` ' -- ' - o[L 21H % ^^ ''*U * '' , 22 23 . 24 .' ,' \. 1 / r r- .^ ,' ' 1 L ^ T" ' ^ ^ ? ' 1 - ' '*.*' ' < s . .. ' ", ` . ^ ,,/ 1 S tJ ` ' ,' 1j \ ,i * , , .--Vl 1 ^ r.'jV : ^ \ + '' ` rf 1 " i \ .* *<* >^ ^ r. * 1 STATE OF ILLINOIS ) ) SS 2 COUNTY OF ST* CLAIR ) 3 4 5 6 7 I, Patricia A. Gandy, CSR, RPR, Official Court Reportar 8 In and for the Twentieth Judicial Circuit, and the Official Court 9 Reporter who transcribed the above-styled cause had on December 17, 10 1985, do hereby certify that the foregoing transcript of proceedings 11 Is a true, correct and complete transcript of the proceedings had 12 on said date. 13 DATED this 31st day of December, 1985 14 15 16 17 Official Court Reporter 18 19 20 21 22 23 24 L 1 STATS OP ILLINOIS ) ) 2 COUNTY OP ST. CLXR ) SS 3 4 5 6 7 8 Xf RICHARD F. GOLDENHERSH, Circuit Judge In and for 9 the Twentieth JudicialCircuit * hereby certify that the above 1 a true and correct transcript/of the proceeding^had in the 10 11 case captioned: PRANCES E. KBMNER, et al., v. MONSANTO COMPANY 12 Cause No. 80-1-970 heard on Deceaber 17 1985. 13 DATED this 6th day of January 1986. 14 15 ENTER: 16 17 Richard P. Goldenherah, Circuit Judge 18 19 20 21 22 23 24