Document jyoYKKKoL55Y70VozkvZOM0MQ

STATE OF WISCONSIN COUNTY CIRCUIT COURT BRANCH 8 MILWAUKEE STROH DIE CASTING COMPANY, (p.m.) Plaintiff, v MONSANTO COMPANY, Defendant. VOLUME XXI Case No. 639-887 May 14, 1991 Honorable Michael J. Barron Circuit Judge Presiding A-P-P-E-A-R-A-N-C-E-S RIORDAN, DRIVELLO, CARLSON, MENTKOWSKI, STEEVES by DONALD CARLSON AND JOHN PENDERGAST, appeared on behalf of the Plaintiff. BORGELT, POWELL, PETERSON, FRAUEN by JOSEPH McDEVITT and KIRKLAND AND ELLIS by ANDREW RUNNING appeared on behalf of the Defendant. *** Brown & Jones Reporting, Inc. 312 East Wisconsin Avenue Suite 400 Milwaukee, WI 53202 PHONE (414) 224-9533 WATER PCB-SD0000048150 1 2 3 PAGE 4 3614 5 3698 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 INDEX WITNESS Robert Emmet Kelly EXAMINATION Direct (Mr. McDevitt) Cross (Mr. Carlson) P-R-O-C-E-E-D-I-N-G-S WATER PCB-SD0000048151 2 THE COURT: In talking with the lawyers 3 over lunch hour, it looks like we are going to 4 finish the evidence today which means the lawyers 5 and I will be here for long hours tonight. 6 And after when we find out what time we 7 are going to be finishing the evidence today, 8 we'll tell you about what time you're going to come 9 back in for final argument and instructions 10 tomorrow. And then finally the case can get to you 11 for your decision. 12 All right, Counsel. 13 MR. McDEVITT: Our next witness is Dr. 14 Emmet Kelly. 15 ROBERT EMMET KELLY, called as a witness 16 herein, being first duly sworn, was examined and 17 testified as follows: 18 THE CLERK: Would you state your name for 19 the record. 20 THE WITNESS: "R" for Robert; Emmet, 21 E-m-m-e-t; Kelly, K-e-l-l-y. 22 THE CLERK: Thanks very much. Have a 23 seat. 24 THE COURT: Two T's in Emmet? 25 THE WITNESS: One "T". 1 DIRECT EXAMINATION 2 BY MR. McDEVITT: 3Q Dr. Kelly, move the mike up a little closer to you, 4 please. WATER PCB-SD0000048152 5A 6 7 8Q 9A 10 11 Q 12 A 13 Q 14 A 15 16 Q 17 A 18 19 Q 20 A 21 22 23 Q 24 A 25 1 2 3Q 4 5A 6 7 How's that? THE COURT: Works better when it's on. MR. McDEVITT: Where do you live, Dr. Kelly? 665 South Skinker, S-k-i-n-k-e-r, St. Louis, Missouri. And what is your age, sir? Eighty-one. And you're retired from Monsanto? I've been retired from Monsanto since December of '74 . And for how long did you work for Monsanto? From 1936, January 1936 until November the 30th of 1974 . Was there any break in that employment? Yes. I was in the service from, oh, about 36 months from -- 38 months -- 42 months frankly. From March of '42 until the beginning of '46. What is your educational background, Doctor? Well, I went to high school in St. Louis. I received a bachelor of science in medicine from St. Louis University in 1930, and I received the M.D. degree in 1932 also from St. Louis University. After receiving your M.D. degree, did you have any additional training? Yes. I had three years of ---- at St. Louis City Hospital. One, as rotating intern. That means you go through the various services: medical, WATER PCB-SD0000048153 dermatology, surgery. Second year as rotating senior intern. And the third year as a resident of medicine. And are you board certified in any specialties? Yes. I'm board certified in internal medicine. I've been recertified in that. I'm board certified in preventive medicine under the specialty of occupational medicine. And how long have you been board certified in the latter field? Well, internal medicine was '55, and I was recertified in '74. And I was certificated in occupational medicine I believe in '55 or '56. What does it mean to be board certified. Doctor? It means you're recognized as a specialty in that particular field by your peers, by a governing body of the various medical associations. In this particular -- These two boards are recognized by the American Medical Association, by the American College of physicians, and the American College of Preventive Medicine. What is occupational medicine? That's that branch of medicine that takes care or relates to a worker and his working environment. It's both preventive and therapeutic. Do you belong to any organizations, Doctor? Quite a few. WATER PCB-SD0000048154 11 Q 12 13 A 14 Q 15 16 A 17 18 19 20 21 22 23 24 25 Q 1 2A 3 4 5 6Q 7 8 9 10 11 12 A 13 Could you just give us some representative samples -- The usual. -- of the organizations that you belonged to while employed at Monsanto? Well, the usual ones of the professional medical associations: St. Louis, Missouri, AMA, American Medical Association. Then there are the specialties in internal medicine, the College of Physicians, the American Heart Association. Then the occupational medical organizations: the Occupational Medical Association, the American Academy of Occupational Science. A couple of others. Have you held any positions elected or otherwise with any of those organizations? Yes. I've been a counselor for the Occupational Medical Association. I've been a member of the counsel of the American Society for Therapeutics and Pharmacology. I think that's it. From -- If we can look at your employment from Monsanto in 1936 when you initially were employed, can you explain to us what type of relationship you had at that time with Monsanto? And if you just tell us that relationship from then up until you went to the service. Yes. I started with Monsanto as a physician in charge of the medical department at the Queeny, WATER PCB-SD0000048155 14 Q-u-e-e-n-y, plant in St. Louis. It's also -- At 15 that time it was called Plant A. So I think I'll 16 refer to it as the St. Louis plant. 17 At that time the duties entailed the 18 examination and treatment of occupational conditions 19 in nonsurgical -- Obviously, the broken legs if they 20 had any or severe lacerations they were sent out. 21 But in addition to the therapy, the treatment of 22 occupational conditions -- I was responsible for the 23 preventive medicine program. 24 In other words, that meant I would examine 25 employees to find out the state of their health to 1 see if they had any early illnesses or any 2 conditions that were related to their occupation. 3 In addition to that, I would go through 4 the plant to try to familiarize myself with the way 5 the men worked and how they were exposed to whatever 6 chemicals they were working with. 7 Following that the company started 8 expanding and I think went into other areas. In 9 other words, they went into the development of 10 elementary phosphors. 11 They brought back a process from the 12 Germans and that was supposed to dig up phosphate 13 ore in Tennessee and make phosphorus which was then 14 sold to detergent makers and fertilizer people, 15 et cetera. 16 Well, when they came back from -- with the WATER PCB-SD0000048156 17 18 19 20 21 22 23 Q 24 A 25 1 2 3 4 5 6 7 8Q 9 10 A 11 12 13 14 15 16 17 18 Q 19 details with the contract with the Germans, they had quite a bit of medical information in their medical examinations. So they were at a loss. There was no central medical department. So somebody said, "We got a doctor at the St. Louis plant. Let's ask him. " What time frame is this? Probably '37 -- Late '30 -- Around '37 -- Late '37. So then I sort of became a medical director without portfolio as it were because when any problem would come up they would refer to me. And so by '38 I was going around to the various plants. Although I had no official title or official authority. Although they knew I was in St. Louis. "He's pretty close to the big bosses there." Did you continue with that type of job duties until the time you went into the service? Yes. It became just a little bit more formalized. In other words, I didn't wait until there was a problem surfaced or somebody called up about something. I made a point to go to all our plants. We didn't have very much at that time. It was about ten I believe. I did that on a fairly regular basis until I went to the service. When did you go into the service and when were you discharged? WATER PCB-SD0000048157 20 21 22 23 24 Q 25 1A 2 3 4 5 6 7 8 9 10 11 12 13 14 Q 15 16 17 A 18 19 20 21 22 THE COURT: He already testified -- THE WITNESS: I think March of '42 and came out in March of '46. Something like that. MR. McDEVITT: What was your position at Monsanto when you returned after the war? Well, at that time then they made a formal medical department. In other words, Monsanto at that time was divided into organizations, manufacturing organizations and supportive organizations. In other words, the line operation -- the manufacturing ones were called divisions. Like the organic division, plastics -- not plastic. But organic -- organic and inorganic divisions and various -- There were about four other divisions. Then there were the departments which were the staff departments: the legal, the treasury, the patent, the purchasing, engineering, research. And they made medical one of them. Did you implement, Doctor, in your capacity as medical director any policies relating to worker safety? Well, yes. From the standpoint of safety from chemicals, not from fire or explosions or unguarded gear materials or something like that. I mean I didn't check to be sure the elevators were safe. They had a safety department that handled the trauma part of safety. WATER PCB-SD0000048158 23 Q 24 25 A 1 2 3 4 5 6 7 8 9 10 11 12 Q 13 A 14 15 Q 16 17 18 A 19 20 21 22 Q 23 24 25 A What policies in that regard that you were involved in did you implement? One, of course, I implemented a medical program of a preventive nature at all of our plants. We had acquired some plants. Some plants had no doctor at all except the doctor on referral on the plant manager's desk. Some had a part-time doctor. So I insured that we had adequate medical staffing at all of our plants. Number two, I set up a program of examinations at all of our plants. Number three, I developed the toxicological information with our raw materials, things that the workers were working with as well as the finished products. Did you actually visit the plants? Oh, yes. I would say '39, '40 and '41 I went to every plant at least once a year. How many plants did Monsanto have in either the time just before you went into the service and when you came out? Probably eight to ten before I went in and 15 when I came out. They built a couple of plants for the war effort, and they bought an organization with four or five plants. Did you review the medical and scientific articles relating to Monsanto products after starting work for Monsanto at any time? Yes, I did. Whatever there was. WATER PCB-SD0000048159 1Q 2 3A 4Q 5 6 7A 8Q 9A 10 11 12 13 14 15 16 17 18 19 20 21 Q 22 23 A 24 25 1 2 3 When did you start doing that if you could tell us, Doctor? First month. And what did you review? If you just give us examples of the types of literature that you reviewed. First I reviewed what they had. In other words -- You mean what the company had? What the company had. And secondly, I reviewed what was present in the literature, the current literature. At that particular time there were only two magazines in the United States, two scientific magazines, dealing with occupational conditions and chemical toxicology and one in Great Britain. So I subscribed to those and reviewed them. And then I was on the mailing list of the Department of Labor, the Department of Mines. They put out bulletins at times. So I tried to keep up with the English literature. Did you also subscribe to such journals such as the New England Journal of Medicine? Oh, well, that is for the -- Occasionally they would -- Purely medical journals like the Journal of the American Medical Association, New England Journal of Medicine, the College of Physicians Journal, the Annals of Internal Medicine would have reviews of specific illnesses due to or WATER PCB-SD0000048160 4 5 6 7Q 8 9A 10 Q 11 A 12 13 14 15 16 17 18 19 20 Q 21 A 22 23 24 25 1 2 3 4 5Q 6A alleged due to chemicals or the working environment. And I reviewed those. Certainly, we subscribed to them. Did you review anything in particular, Doctor, about PCBs? Yes, I did. And what was that? Well, there was -- When I came there in 1936, I received most of the files dealing with the various plants that had any medical connotation. The people were only too happy to unload them onto the physician at the plant. I mean -- Even though at the central office. So in that file from Anniston was the history of what had happened at the Swann Chemical -- S-w-a-n-n, Chemical Company. What was the relationship again of Swann to PCBs? Swann was the original manufacturer of PCBs. They started it in 1930 to the best of my recollection. They were bought by Monsanto I think in 1935, and I learned about this probably in '36 or early '37. In early '37 we had a customer -- Well, let me go back to Swann first. Swann had about - They manufactured PCBs. I presume the manufacturing details have been discussed in the last three weeks. We don't need that. Okay. So they manufactured this. They had this WATER PCB-SD0000048161 7 episode at one time. They had benzene, which was 8 the primary raw material for the diphenyl which was 9 chlorinated to the polychlorinated biphenyls. 10 Sometimes I use diphenyl, sometimes 11 biphenyl. The diphenyl was the original term when I 12 came, and it was changed to biphenyl. So biphenyl 13 is the accurate term. Pardon me if I lapse sometime 14 into diphenyl. 15 Anyway they had this biphenyl. They had 16 changed the benzene from one supplier to another, 17 and they got some off-specification benzene. When 18 they manufactured the chlorinated biphenyl, they 19 got something that had different electric 20 properties, different dielectric properties. It was 21 even a different color. The Swann people sold it 22 anyway. 23 Well, after they were -- After they used 24 this biphenyl for about six months, about 20 of 25 their employees developed chloracne. This all 1 occurred before I came to Monsanto and before 2 Monsanto ever bought Swann. 3 They were treated by a doctor in Atlanta, 4 Georgia, or Birmingham -- one of those. I think 5 Atlanta if I'm not mistaken. And after I came with 6 Monsanto and went down to Anniston, I was interested 7 in having read all about it. 8 I asked to see some of the people if 9 still working. So I saw some of them. They were -- WATER PCB-SD0000048162 10 11 12 13 Q 14 15 A 16 Q 17 18 19 20 A 21 Q 22 23 A 24 25 1 2 3 4 5 6Q 7 8 9A 10 11 12 Not all of them, but I saw half a dozen or so. And they were -- By that time the chloracne had cleared up. When was that in relation to the incident that you actually saw these people? I didn't understand you, Mr. McDevitt. When was this that you actually saw those people that had been exposed to that and had presented chloracne in relation to when the incident happened that they had gotten the disease? Three years afterwards. And as of that date, did they from your examination of them have any adverse effects remaining? Well, I didn't really examine them. I looked at them. I mean I went to see them because they were examined by the doctor down there, and I looked at the examination report that he had done on his yearly exams. So they had no adverse effect. In fact, the dermatologist that took care of them in Atlanta I believe did not report any ill effects outside of the chloracne. You've mentioned that you made periodic visits to the Monsanto plants. What was the purposes of that, Doctor? The purpose was -- oh, several fold. First to see that the doctor was -- the medical organization was functioning. Number two, to check over the dispensary reports, talk to the nurses to see if WATER PCB-SD0000048163 13 14 15 16 17 18 Q 19 20 A 21 Q 22 A 23 24 25 Q 1 2 3 4A 5 6 7 8 9 10 Q 11 12 A 13 14 15 there was any grouping of illnesses that might be attributable to any one particular department. Three, to check over the history and physical examinations to see if the employees were staying healthy. Did those visits include the plants that manufactured PCBs? Yes, they did. How many such plants were there? There were two in the United States I visited, one in England. But I did not go to that one for quite a number of years. Now, you just mentioned periodic physical examinations. Was there a policy at Monsanto with regard to physical examinations for the workers? Yes. It was -- It had been instituted in some plants and then it became universal. It was a compulsory examination program, but it was voluntarily. But it was I would say 90 to 95 percent of the workers acquiesced to being examined. What was the purposes of those examinations, Doctor? Well, to find out if they were getting diabetes, to find out if they were getting high blood pressure, to find out if they were getting chronic bronchitis, to see if there was any occupational conditions they WATER PCB-SD0000048164 16 17 Q 18 19 20 21 A 22 23 24 25 1 2 3 4 5 6Q 7 8A 9 10 11 12 13 14 Q 15 A 16 17 Q 18 may have had. Did Monsanto have a policy on inquiries that may have been made to the company regarding the toxicological properties or health concerns of its products? Yes. They had a definite policy after I came back from the service that the executive committee at my bequest -- at my request issued a policy that all toxicological questions would be answered by the medical department, that all inquiries to a salesman or to the general office or telephone calls concerning the alleged or possible or actual harm to one of their customers, one of their employees from contact with a Monsanto product would be referred to the medical department. From your experience, Doctor, was that policy followed through by Monsanto? Oh, I think so because -- Well, if they would call up a salesman and ask him about a particular problem they'd be very, very happy to, say, pass the buck to the people in St. Louis. "Call the medical department in St. Louis." Oh, we had dozens of -- I mean lots. What was the purpose of that policy, Doctor? Well, we were the experts. I mean we knew about it more than anybody else in the company. For our own workers did Monsanto have a policy regarding the toxicity and safety handling WATER PCB-SD0000048165 19 20 A 21 Q 22 A 23 24 25 1 2 3 4 5Q 6 7 8 9A 10 Q 11 12 A 13 14 15 16 Q 17 A 18 19 20 21 practices? Yes. What was that policy? That policy was to insure that our workers could use -- could manufacture our products, use our products and not be harmed by either the raw materials or the finished product. Some of the products that Monsanto made were used in other places than Monsanto so all of the products that Monsanto made did not go out to the customers. With regard to the toxicity and safe handling information which would be intended for our customers, did we have a policy on that type of information? Yes. That policy started after I came back. You said, "Came back." You mean from the service? From the service. That was sort of informal before that. In '41, '40, era it was sort of informal; but after -- It was ironclad after I came back in 1946 and then -- What was that policy that you instituted then? That policy was that any safety handling information, any toxicological information on labels or on bulletins or on Monsanto literature would be either reviewed by the medical department or originate in the medical department. WATER PCB-SD0000048166 22 Q 23 A 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Q 16 17 18 19 20 A 21 Q 22 A 23 24 How is that implemented, Doctor, the policy? Well, let's take bulletins. Bulletins were -- There were two types of bulletins if I can remember. One a development bulletin. In other words, when a product was being first manufactured, it would be sent out to the potential customers. And say -- "This is a product we've got. Here are its properties. Can you use it?" A bunch of suggested uses. And the sales bulletin was -- After a definite market has been established, the salesman would go out with the sales bulletin which showed how it could be used in a particular customer's operation and that would have -- Both of those bulletins would have information as to either the toxicity of the information or -- always safe handling features. How to use it without getting harmed. Now, Doctor, you've mentioned the medical department and some changes after you got back from the service. Did the department size change from your return, the time you returned until the time you retired? Oh, yes. Can you explain to us how it changed? Well, it changed numerically; and it changed in the area of specialization. In other words, when I started, there was myself and a secretary. Well, WATER PCB-SD0000048167 the first thing after I went around to these plants and looked over the operations, I realized that I was not a chemical engineer. So I hired a chemical engineer to do industrial hygiene. Who was that? Albert Wheeler. What is industrial hygiene? Industrial hygiene is a science that observes the working environment, whether that be noise or inadequate lighting or dust or fumes, and makes analytical determinations to find out if there is a safe level for the worker to exist in. And did you add any other additional specialties? Yes. After another two -- one or two years, we added another industrial hygienist. And when I left we had four. When did Mr. Wheeler initially start, Doctor? Beg your pardon? When, Doctor, did Mr. Wheeler start as the first industrial hygienist? I think the latter part of '47. When I retired there were four. The next scientist we got was a toxicologist. At that particular time there was myself -- There were no -- not a great number of toxicologists in industry at that time. Some -- There were quite a few in pharmaceutical companies, obviously. But there wasn't a special list of toxicologists. There were usually WATER PCB-SD0000048168 physiologists or pharmacologists or a rare doctor who had done a lot of studying on animal -- the animal reaction to various compounds. So we hired a toxicologist from a pharmaceutical outfit -- I think Johnson & Johnson. I'm not sure -- To do the work, you know, more extensively than I had. And when was it that you added a toxicologist? Oh, I think around -- around '60 I believe or late '55 or '60. I'm not exactly sure. Now, you mentioned the industrial hygienist. Have industrial hygiene practices improved since the early 50's from your experience, Doctor? Oh, enormously. That's the difference between the Wright Brothers and the 747. Are you aware of any Monsanto PCB workers since that time being injured at all whether it be chloracne, liver problems, or anything? No, sir. At no time has any Monsanto employee ever showed any adverse effect to contact with PCBs. Are you aware of any non-Monsanto PCB workers experiencing health effects since that time? Yes, I have. And what experience have you had in that regard, Doctor? Well, sometime in the late 40's, I believe I was called by a thermometer company in New England. They were making these bellows which is a little WATER PCB-SD0000048169 6 thing about the size of an onion. They were dipping 7 this -- I don't know what it was made of, leather I 8 believe. 9 They were dipping in the -- these in 10 Aroclor, but one of the liquid Aroclors. They were 11 dipping this to fill it -- And I don't know if they 12 were thermometers on ovens or industrial or what 13 kind of thermometer. 14 They developed chloracne, and I was very 15 interested because I hadn't seen an active 16 chloracne. I saw about three ladies that did have 17 chloracne, not too severe. And I did -- 18 When you said they had it, can you tell us what you 19 observed? 20 Yes. I observed an acneform eruption on their 21 forearms. This is sort of similar to teenage acne. 22 It was -- To the best of my recollection, it was not 23 on their face or anyplace else. 24 So I said to the manufacturer - 25 superintendent taking me around, "Can't you come up 1 with some gadget that they don't have to put their 2 hands in this stuff?" They did. That was the last 3 we followed up -- that was the last we heard of it. 4 That was one case. 5 There was a case in Brazil, Indiana; and a 6 Dr. Spelyar called me about it. He had had two 7 individuals or three who were using a heat transfer 8 jerry-rigged apparatus that was -- I didn't go to WATER PCB-SD0000048170 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9Q 10 11 A this place -- that worked for three days at elevated temperatures and they developed chemical hepatitis. That's jaundice due to chemicals. And I followed that up with him. He wrote these two or three cases up in some relatively obscure journal. I saw it, but I've never been able to run it down anymore. I don't know who the leading author was. But anyway, I did follow up with a support letter because he was in the Department of Health at Indiana. They got well. Then there was Crown Chemical Company in New York. The man called me and I -- wrote me a letter, and I called him back. And he said he had people who were nauseated from -- again a heat transfer unit that leaked. So I said, "Well, watch them. Watch out for signs of chemical hepatitis." He wrote me back about a week late. Well, yes, these people did start getting a little jaundiced. "We hospitalized them. They are now well and there's no problem." Two acute cases of acute poisoning -- two instances, and there was a -- one case of chloracne. That's the only three that I can recall in my 38 years with Monsanto from our customers who were using PCBs. Were there any lasting effects to your knowledge, Doctor, from any of those incidents? Not on those three instances no, sir. WATER PCB-SD0000048171 12 Q 13 14 A 15 Q 16 17 18 19 20 21 22 23 24 25 1A 2 3 4 5 6Q 7 8 9A 10 11 12 13 14 When was the last of those three instances if you can tell us timewise? 1960's. Now, you mention the toxicity instructions and safe handling instructions. I think to your right, Dr. Kelly, there are some documents that are in evidence, Selector -- Excuse me. I'll get them. A couple of Selector, Selector 1 and Selector 2. I would just call your attention to the information, for example, on handling in Exhibit 112, Selector 1. Is that the type of information that would have been submitted to your -- or prepared by your department for that brochure? Yes. That's the type. Sometime -- It may not be quite this extensive. As we gathered industrial experience with the various products -- We may not use a whole page. We may have used one or two paragraphs. But that's the type. With regard to the information contained in that exhibit, what type -- or what safe handling instructions are given relative to the product? It says, "Animal toxicity studies and human experience indicate that the Pydraul hydraulic fluids may be used safely if a few reasonable precautions are taken. "Repeated or prolonged skin contact should be avoided not only to prevent absorption of the WATER PCB-SD0000048172 15 material and possible systemic effect, but also 16 because the fluids are excellent solvents for the 17 oils normally present in the skin. Thus, drying and 18 irritation could occur." 19 Then there's a paragraph saying if you get 20 it in the eyes what to do about it. I'll go down to 21 the third one. "When Pydraul is kept at room 22 temperature, it does not constitute a vapor 23 inhalation hazard except in a confined unventilated 24 space. 25 "Respiratory protection or mechanical 1 exhaust ventilation should be provided if there is 2 repeated and prolonged contact of the fluid with 3 heated surfaces with resulting volatilization or 4 possible decomposition of the fluid." 5 Then it says, "When a ruptured oil 6 hydraulic line near a white hot surface means a 7 fire, a ruptured hydraulic line containing Pydraul 8 causes a vapor with unpleasant odor that can help 9 you locate the trouble. 10 "For short periods, such as turning off 11 the equipment following the rupture of a hydraulic 12 line or other mechanical failure, no protection is 13 necessary." 14 Now, that type of information was directed at what 15 type of industry, Dr. Kelly? 16 Well, this particular one at any industry using 17 hydraulic fluids that needed to have a fire WATER PCB-SD0000048173 18 19 Q 20 21 A 22 23 24 25 1Q 2 3 4A 5 6 7 8 9Q 10 11 12 13 A 14 15 16 17 18 Q 19 20 resistant hydraulic fluid. Have you ever been to a die casting plant yourself, Doctor? No, I have not. But I've been in quite of number of places where they used hydraulic fluids. I've been in the aircraft industry, in the airplane industries, in aluminum industry. But I have not been in a die casting plant. When would your department have initially been providing that type of safe handling information for various brochures? Whenever they got around to publishing a bulletin we provided. They could not publish a bulletin on any Monsanto product unless we reviewed it to see if it were necessary to have safe handling and toxicological information in it. Did the information that was provided with regard to safety handling, information such as is in that exhibit, change from year to year relative to handling the PCB based products? As far as the influence on humans is concerned, it -- and the safe handling as far as humans is concerned, it did not change. There have been -- At the time when the environmental aspect became very prominent, there were additions made. Were you also involved, Doctor, in the preparation of labels in the instructions that appeared on various Monsanto labels including Pydrauls? WATER PCB-SD0000048174 Well, there are two questions there, Mr. McDevitt. I was not. I was involved in providing the information as far as safety handling and precautions is concerned. I was not provided with -- I was not responsible for providing the labels or making up the label and all that sort of stuff. With regard to the information you did provide; that is the safe handling information, what goals did you have in mind? To keep people from getting hurt from using it. I would show you, Dr. Kelly, initially Exhibit 1 -- or 1013.1 and ask you whether you can identify that? Oh, yes. This is a label for Pydraul 312. It's Exhibit 1013.1. And I'm going to show you 1004.1 and ask you whether or not you can identify that document? Yes. This is a label for Pydraul F-9. Both of these contain information with regard to handling and caution; is that correct? That is correct. ,, And was your department prepared -- or involved in the preparation of that safe handling information? We wrote it. MR. McDEVITT: I would move for the admission of those two exhibits. WATER PCB-SD0000048175 24 MR. CARLSON: No objection. 25 THE COURT: So received, both of them. 1 (Exhibits Nos. 1004.1 and 1013.1, 2 previously marked for identification, were received 3 into evidence.) 4 MR. McDEVITT: 5 I'm going to show you, Doctor, also 1004.1 and ask 6 you whether you can identify that as an actual size 7 of a Pydraul F-9? 8 Yes, I can. 9 MR. McDEVITT: I move for administration 10 of this exhibit. 11 MR. CARLSON: No objection. 12 THE COURT: So received. 13 MR. McDEVITT: 14 With regards to the information relative to the 15 Pydraul that is contained on those labels -- I think 16 there's one you have right next to you, Doctor. If 17 you could tell us what again was the information you 18 said that you wanted to provide to keep people from 19 getting injured. 20 Well, the first one was caution. That means take 21 care. Then I said, "Avoid prolonged breathing of 22 vapors or mist. Avoid contact with eyes or 23 prolonged contact with skin. If skin contact 24 occurs, remove by washing with soap and water. 25 Following eye contact flush with water. If clothing 1 becomes soaked with fluid, launder before wearing WATER PCB-SD0000048176 2 3Q 4 5A 6Q 7 8 9A 10 11 12 Q 13 14 15 16 17 18 A 19 20 21 22 23 Q 24 25 1 2 3A 4 again." For how long have we been putting those instructions on PCB products? As long as I can recall. Was there any substantial change in those instructions or directions with regard to those products? I don't think so. I don't know if we always put on, "If clothing became soaked with fluid." I'm not sure. All right. Other than doing that on the Selectors -- providing the information on Selectors that you've referred to and on the labels that were on our products, did we provide that same information in any other manner to customers of Monsanto? Well, we answered all of their inquiries. We also sent out safety data sheets in response to inquiries that they would send in a form that required -- that required quite a bit of information of a toxicological nature. You mentioned brochures earlier with regard to products that had been developed and products that were in the process of being developed. Was there information with regard to the safe handling contained in those documents also? Yes. Any information that went out with any Monsanto product that had a possibility of harm had WATER PCB-SD0000048177 5 6 7Q 8 9 10 11 12 13 A 14 Q 15 A 16 17 Q 18 A 19 20 21 22 23 24 Q 25 1A 2 3 4 5 6 7 safe handling information on it and information as to how to avoid any problem. If the instructions, Doctor, that are on the exhibit that is in front of the jury, the Pydraul 312 or similar to the Pydraul F-9 are followed, do you have an opinion to a reasonable degree of medical probability whether or not the product can be handled safely without any ill health effects? Yes, I do. What is that opinion? I think it can be handled, and it was was handled safely without any ill effects to the workers. What is toxicity, Doctor? Toxicity is the potential of a product to harm an organism, an animal or bird or human. Toxicity is a relative thing. Everything has toxicity. Water -- you could get toxicity from too much water obviously. So toxicity is that potential that a chemical has or to cause harm to a person. How did Monsanto go about getting toxicity information? There are several ways, and it all depends on the product. Suppose a product is a me too product. That means it was manufactured by DuPont or Dow. We decided to get in the business of manufacturing the product XYZ. I would call them. They would tell me, "We are going to be manufacturing this product." I WATER PCB-SD0000048178 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3Q 4A 5Q 6A 7Q 8 9 10 A would call up Dow or DuPont -- who'se making it. They say -- whoever is making it. So I would call up Dow or the other DuPont or whoever was making it, and we had a very free exchange of information. I would talk to their medical director and say, "Well, what's going on with this? Any problems with it?" And he would lay it on the line to me and tell me whether they had -- what particular irritation or any problems they had. Simultaneous with that, I would be looking up in the literature to see if there were any reports in the literature of case histories of individuals being bothered or harmed rather by this contact with the product. I would also look at toxicological literature and see if there was any toxicological studies that were reported on this particular product. If it were a new product then and nothing were in the literature, we would then investigate toxicologically from our own point of view. By testing, Doctor - By testing animals. Did we do in-house testing? We did not. We used various laboratories. I'm going to show you, Dr. Kelly, Exhibits 1061, 1062, and 1063. If you can just look at those, Doctor. Yes, sir. WATER PCB-SD0000048179 11 Q 12 A 13 Q 14 15 A 16 17 18 19 Q 20 A 21 Q 22 A 23 24 25 1 2 3 4 5 6 7 8* 9* 10 * 11 * 12 * 13 * Did we -- Are these three exhibits test reports? I'm sorry. I didn't hear the last -- Are these three exhibits results from toxicity testing that was done? Yes. These three results are studies carried out at the Kettering, K-e-t-t-e-r-i-n-g, Laboratory of the University of Cincinnati Medical School by Dr. Joseph Treon, T-r-e-o-n. Did we; that is Monsanto, request these tests? We requested them and funded them. What type of -- What was the Kettering Laboratory? Kettering Laboratory was an academic toxicological laboratory that was started at the University of Cincinnati -- oh, early -- long before I came with Monsanto. It was originally started to do the work on lead poisoning where tetraethyl lead was introduced in the automobile fuel field. So it was a very well well-known renowned academic institution. (Whereupon, there was a change of reporters.) WATER PCB-SD0000048180 14 * 15 * 16 * 17 * 18 * 19 * 20 * 21 * 22 * 23 * 24 * 25 * 1Q 2 3A 4 5 6 7 8Q 9 10 A 11 Q 12 A 13 14 15 16 What time frame are we talking about with regard to these three exhibits, Doctor? June, '55. That's when we received the report. So obviously it was something in the time -- This is a three months or something test, so it was sometime in either early -- first weeks of '55 or the fourth quarter '54 that we decided to start doing it. What products were being tested as reflected by these exhibits? Aroclor 1254 and 1242. What types of tests were done? There were two tests. One was the testing of these two Aroclors when they were dropped on a hot surface. At this particular time we were thinking of expanding -- Not thinking. The uses of Aroclor 1254 and 1242 were being expanded from the dielectric WATER PCB-SD0000048181 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 Q 11 12 A 13 Q 14 15 A 16 17 Q 18 A 19 Q field that they had been used in for so long. The question came up in these particular uses what if there are leaks or something that gets onto hot metal, what is going to happen to the worker who is exposed to this. So we ran these tests to find out. That was done by repeated -- by putting a mix -- an array of animals into a cage and exposing them for seven hours a day to varying concentrations of the vapors that were generated by dropping it on the hot plate at varying temperatures. The other one was a mist. That was a question of if there were a pinhole opening in a hydraulic line that would come out that would be aerosollike, spraying stuff up your nose, and what would happen to you if you were being sprayed with this, would you have time to get up and turn the dials off before you got out of there. With regard to the mist, what was the actual product that was being tested? Probably it was -- Look at Exhibit 1062, if you would, on the front page of that, Doctor. Yes, Pydraul. But I was looking to see if they have a number. But which Pydraul it was, I'm not sure. But in any event, it was Pydraul? Yes, it was a PCB Pydraul. And what were the results as reflected by those three WATER PCB-SD0000048182 20 21 A 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Q 15 16 A 17 18 19 20 21 22 test reports? Well, this was really supposed to go into a catapult on an aircraft carrier, as I remember. That's where they were more worrying about this mist being generated. But, of course, it could be used for any type of a mist where a small -- any type of operation where a small leak would occur that would be small enough so that it could aerosolize itself with air. Well, they gave three hours of exposure to a mist that got up to 26 milligrams per cubic meter, .26 milligrams per liter, or in a cubic meter it's a hundred times that much, a thousand times that much, and they survived. The cats, rabbits and rats survived, but a couple of guinea pigs died. But there were some degenerative changes in the livers and kidneys of the cats and rabbits, but none in the rats. But this was three days that we did this. Can't imagine taking three days to stop the leak, but we wanted to find out under the worst conditions. Did those test results change your opinion about the toxicity or safe handling of PCBs? No, it did not. And may I make another suggestion? I mean a -- I -- This was also done in connection to a non-PCB hydraulic fluid which was already being used in aircraft carriers, and we used several times higher concentration. This was Pydraul F-9 I see. Several times higher than the other non-PCB fluid. I do not recall what the other PCB fluid was. WATER PCB-SD0000048183 23 Now, to get back to your question, it did 24 not change my mind. 25 MR. McDEVITT: I move for admission of 1 Exhibits 1061, 62 and 63. 2 MR. CARLSON: Object. It's hearsay. I 3 don't think it's a learned treatise. 4 BY MR. McDEVITT: 5Q Can you identify those as documents received in the 6 regular course of business at Monsanto? 7A Yes. 8Q And were they maintained by Monsanto as business 9 records? 10 A Yes. They were maintained also in the Medical 11 Department. 12 MR. McDEVITT: Move for the admission of 13 Exhibits 1061, 62 and 63, Your Honor. 14 MR. CARLSON: I don't think that 15 testimony overcomes the hearsay objection, Your 16 Honor. 17 THE COURT: Well, in the last 15 years, 18 of course, they have expanded what was the old 19 business records exception to the hearsay rule to 20 encompass a regularly conducted activity. But 21 from -- from my perception, business records are 22 included within the new expanded version -- when I 23 say "new," we're talking about 1976 -- of the old 24 business records to include more than just business 25 records. That is, regularly conducted activity. But WATER PCB-SD0000048184 1 2 3 4Q 5 6 7A 8 9 10 11 12 Q 13 14 15 16 A 17 18 19 20 Q 21 A 22 23 24 Q 25 1A 2 3 since they have been maintained as business records by Monsanto, they are received over objection. MR. McDEVITT: I show you what's been marked for identification as Exhibit No. 1243, Dr. Kelly, and ask you if you can examine that exhibit? Defendant's Exhibit 1243 is a publication, a reprint from the "American Industrial Hygiene Association Quarterly" by Dr. Treon, which is just a publication as a result of his experimental work on these two Pydrauls. All right. Did that publication, that is, Exhibit 1243, relate back to the earlier test -- the three earlier exhibits that we had referred to as Exhibits 1061, 62 and 63? It certainly refers back to the dropping of the -- of the Pydraul -- of the 12 -- 1242 and 1254 on hot metals. I don't know if we talked about the -- I don't think the mist experiment was reported in this. Okay. And what is reported in Exhibit 1243? The testing of Aroclor 1242 and Aroclor 1254 at elevated temperatures over a period of quite a few weeks. And what were the results of those -- of that testing, Dr. Kelly? Well, the results were that after -- if you had real high -- had real high levels, you could cause fatalities in animals. But it came out he was able WATER PCB-SD0000048185 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Q 18 19 20 A 21 22 Q 23 24 A 25 Q 1 2A 3 4 5 6 to find a safe limit for both Aroclor 1254 and 1242 and these reports -- these findings were accepted as valid and as the standard by the American Governmental Industrial Hygiene Association. MR. McDEVITT: I would move for the admission of that exhibit, Your Honor. MR. CARLSON: Is that a learned treatise? MR. McDEVITT: I think it is. I think it's one of our listed learned treatises. We can reserve on it if you want to wait. MR. CARLSON: Okay. Why don't we wait on that. MR. McDEVITT: I am going to show you, Doctor, Exhibits 1055, 1056, 1060, 1065, 1066, 1184 and 1185 and ask you if you can just take a look at that group of exhibits? Mr. McDevitt, you want me to go over these one by one? No. If you could just initially look through them, and I am going to ask you some questions. Okay. First of all, can you identify Scientific Associates for us? There are two laboratories in here. One is Scientific Associates, and the other is Younger Laboratories. They were both in St. Louis. Scientific Associates was the parent company, and one of the proprietors, or one of the scientists, split WATER PCB-SD0000048186 7 off and started his own laboratory, and we had done 8 most of our contact with him, that was a Mr. Younger, 9 so after he established his own, we went with the 10 Younger Laboratories. These laboratories were not 11 the sophisticated ones that the University of 12 Cincinnati was, the Kettering Laboratory, but they 13 were certainly excellent for doing what is called 14 acute testing. 15 What is acute testing? 16 Acute testing means you take a product and see. A, if 17 it will -- what it will do to the eye if dropped 18 in -- neat into the eye, two, if you generate a 19 saturated air atmosphere of a material, that may take 20 elevation of temperature to get it up there, to see 21 what happens to the animals, three, you apply it on 22 the skin or -- if it's a liquid, or a solvent if it's 23 a solid, to see if it's absorbed through the skin, 24 and, four, you feed it by mouth to see how much it 25 takes to kill the animal in a -- in one dose. 1 That's a rough benchmark of toxicology. 2 And it used to be called the minimum lethal dose. 3 Then as the science of toxicology advanced, it 4 changed to the LD50, which means lethal dose 50, 5 which means you kill half the animals. So that's the 6 terminology. I don't know, in -- in '51 we used the 7 term MLD. The first one, 1055, was a test of Pydraul 8 F-9 fed to rabbits. We found out that rabbits were 9 the most sensitive of the animals. Then -- WATER PCB-SD0000048187 10 Q 11 12 A 13 14 Q 15 16 A 17 Q 18 19 20 A 21 22 Q 23 24 A 25 Q 1 2A 3 4 5 6 7 8 9 10 11 12 Q Can you just tell us the time frame from the first two exhibits, for example? February and April, '51. Then we go to the LD50. That time frame -- that's Exhibit 1060 up to 1065. And what time is that that we were talking about on the LD50 for the acute toxicity testing? February, '55, to November of '66. Are all of these reports from each one of these exhibits for reports on tests conducted of Pydraul F-9? If you can just look at them. Well, one is Aroclor 1242, and the other is Pydraul 312. And are the remaining, with those two exceptions, either for Aroclor 1242 or for Pydraul F-9? That's correct. And what were the results? If you can just summarize for us, Doctor, the results of these test reports? Well, they varied quite a little bit depending on the species, but it showed that this was a mild to moderate toxic chemical when you're talking about an industrial chemical. It proved that you could absorb the stuff through your skin and get -- animals could absorb it through their skin, and if they swallowed enough of it, it could cause a fatality. But that's a property of most any -- every industrial chemical has, and in the spectrum of industrial chemicals, this falls into mild to moderate acute doses. Did those test reports change your opinions with WATER PCB-SD0000048188 13 regard to the toxicity or safe handling information 14 that your department had provided relative to PCBs? 15 No, they did not. 16 MR. CARLSON: I'll move for the admission 17 of Exhibits 1055, 56, 1060, 1065, 1066, 1184 and 18 1185, Your Honor. 19 MR. CARLSON: On the assumption that if 20 they asked the questions, he would testify that they 21 were in the ordinary -- received in the ordinary 22 course of business, I would maintain my -- 23 MR. McDEVITT: Do you want me to lay -- 24 MR. CARLSON: No. I would maintain my 25 objection for the record, but I accept the Court's 1 ruling. He doesn't have to lay further foundation. 2 I don't know if that makes sense to you. 3 THE COURT: Okay. I haven't heard that 4 question yet. 5 MR. CARLSON: No, he doesn't have to lay 6 it. He doesn't have to lay that foundation. I would 7 stipulate to the foundation that they're kept in the 8 ordinary course of business and received by the 9 company. 10 THE COURT: Okay. So received over 11 obj ection. 12 MR. McDEVITT: For the record, Exhibit 13 1243 was 103 in our learned treatise list, and I'll, 14 therefore, move for admission. 15 MR. CARLSON: No objection. WATER PCB-SD0000048189 16 17 18 Q 19 20 A 21 22 23 24 25 1 2 3 4 5 6 7 8 9Q 10 A 11 Q 12 13 14 A 15 16 17 18 Q THE COURT: So received. MR. McDEVITT: I would ask you to look at, Dr. Kelly, Exhibits 1070 and 1071. Can you identify those reports, Dr. Kelly? Yes. These are -- 1070 is a report of a subacute dermal toxicity of Aroclor 1248. Subacute dermal toxicity means you are using smaller amounts over a longer period of time. The three levels of toxicity testing are acute, subacute and chronic. So this is subacute. And dermal toxicity means toxicity derived from skin contact. And you test that -- Of course you don't put it on and wipe it off. You put a certain amount on and leave it on for 24 hours and come back the next day and put another dose on. So that was -- That was done in -- The report was received in March of 1963 for Aroclor 1248. The same date, March, '63, for Aroclor 1242. And those tests were done by what organization? Industrial Biotest Laboratories of Chicago. And you for some time as of that date, or thereafter, had other testing performed by Industrial Biotest Laboratory? Oh, yes, we -- I am sure we have had some before, and I know we have had about 50 on -- 50 tests on various Aroclors and PCB-containing compounds, that they have had them tested on rats, rabbits, dogs, chickens. Did other organizations to your knowledge, and other WATER PCB-SD0000048190 19 companies, use Industrial Biotest Laboratories for 20 similar purposes? 21 Oh, quite a few. I mean, all the large companies did 22 have toxicological laboratories, did not or were not 23 able to handle all their own testing. And sometimes 24 they didn't have a specialist available for it. So 25 Dow used them, DuPont used them, Carbide used them. 1 Even though Dow had their own laboratory, they used 2 them. Agencies of the United States government used 3 them. They were used very extensively. 4 With regards to these two test reports, 1070 and 5 1071, you described the type of testing that was 6 done. What were the results as recorded by 7 Industrial Biotest? 8 Well, they took rabbits and used varying doses and 9 put them on -- put the material on every day for 20 10 days. The material was used as a 4 percent solution 11 in corn oil. The control rabbits they just treated 12 with the corn oil. They used various levels. At ten 13 milligrams per kilo -- That means -- Well, I suppose 14 we've explained milligrams of kilos before. Kilo is , 15 2.2 pounds. A milligram is a thousandth of a gram. 16 So that's a dose -- That's a -- That's a way the 17 toxicological testing is described. 18 Well, they put this on the back of each 19 rabbit. They shaved using electric clippers, and 20 they put the material on 10 percent of the rabbit's 21 body. So then -- Let's see what they found. They WATER PCB-SD0000048191 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Q 15 A 16 Q 17 A 18 19 20 21 22 23 24 found that the minimum lethal dose -- that's the dose that killed half the rabbits -- for 1248 was 50 milligrams per kilo per day. They found that the urinalysis and the blood testing was the same for both. They didn't find any microscopic pathology after slides were taken from the tissues of the animals receiving ten milligram per kilo per day, but they did notice -- they did report problems -- hepatic necrosis. That means some of the cells were dead in the female at 50 milligrams per day per dose. All the other tissues and organs were normal. That's 48. 54 was used the same way. Let's see how the dose was. THE COURT: Excuse me. Did you say 54? THE WITNESS: Yes. First was 48, Your Honor, and the second was 1254. MR. McDEVITT: I think if you look -- 42. I am sorry. 42? 42. I am sorry. THE COURT: That's why I asked. THE WITNESS: Thank you. They found that -- 1242 to have an LD50 of 75 milligrams per kilo. It was a little less toxic than the 54. And they didn't find any pathological tissue alterations among any of the surviving animals. MR. McDEVITT: WATER PCB-SD0000048192 25 Just for clarification, Doctor, is Exhibit 1071 1 attached to Aroclor 1248? 2 I am sorry. 1071 is Aroclor 1242. 3 Okay. 4 And 1070 is 48. 5 (Switch in reporters.) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 Were those documents received and kept in the routine 2 course of business of Monsanto's Medical Department? WATER PCB-SD0000048193 MR. McDEVITT: I'll move for the admission of Exhibits 1070 and 1071. MR. CARLSON: To these I have no objection, Your Honor. THE COURT: So received on both. MR. McDEVITT: Did the results of those tests change your opinions about the toxicity or safe handling information that had been provided for PCB-containing products? No, they didn't. It showed that they had a mild or moderate toxicity on the skin and should be kept off the skin. I'm going to show you, Dr. Kelly, to try and speed this along a little bit, a couple of group exhibits. First of all, Group Exhibit 1263, and the second group would be Exhibit 1264. Can you just take a look, first of all, at Exhibit 1263? Yes, sir. And tell me whether or not that is a group of toxicity test reports regarding various Aroclor products? That is correct. Are can you identify those products as either Pydraul 312 or Aroclor 1242? Yes, sir. And can you tell us just generally what types of toxicity testing was done with regard to these reports WATER PCB-SD0000048194 5 in Exhibit, first of all, 1263? 6 A Well, yes, the first one was LD50 acute test for rats. 7 You want the results or do you want -- 8 Q Well, why don't you just tell us generally, if you 9 could, Doctor, what types of tests were done for each of 10 these reports and then generalize the results. 11 A Yes. The first one was the acute test to find out what 12 the LD50 was of Aroclor 1242 at Younger Laboratories, 13 Y-O-U-N-G-E-R. The second one was done on Pydraul 312 14 in 1969. This included the eye irritation, the skin 15 absorption, also at Younger Laboratories. The third one 16 was done at Industrial Bio-Test in September, 1971 on 17 Aroclor 1242 to determine if Aroclor 1242 was a 18 teratogenic compound, T-E-R-A-T-O-G-E-N-I-C. That meant 19 does this cause deformities in the offspring of the 20 rats. That was done at Bio-Test in '71. 21 The next one was a three-generation reproduction 22 study with Aroclor 1242 in albino rats, also done at 23 Bio-Test in November of 1971. A three-generation study 24 means you feed the male and female rats, you mate them, 25 then you mate the descendants, not the first cousins, 1 but you keep on feeding them, then you take their 2 descedants and try to mate them again for the third 3 generation. 4 The fourth was a mutagenic study in mice. 5 Mutagenic study is a test that you use to see if you can WATER PCB-SD0000048195 6 determine whether the material will cause changes in the 7 genes and presumably cause cancer. 8 Then the next one was a fish toxicity study on 9 1242, as well as 1254 and 1260, to see the, find out 10 what the mortality was to fish. 11 Q Were, again, all of those tests reports that are 12 contained within Exhibit 1263 received and maintained in 13 the regular course of business at the Medical Department 14 of Monsanto? 15 A Yes. 16 MR. McDEVITT: I'll move for the admission of 17 Exhibit 1263, Your Honor. 18 MR. CARLSON: Subject to my prior objection, I 19 have no further objections, Your Honor. 20 THE COURT: All right. 1263 is received over 21 objection. 22 MR. McDEVITT: 23 Q Did the results of those tests, Doctor, that you have 24 just summarized, change your opinion with regards to the 25 toxicity or safe handling information that we had been 1 providing with regard to these products? 2 A Well, it didn't as far as safe handling is concerned. I 3 don't know when we had gotten information about the 4 toxicity to fish before. And the three-generation study WATER PCB-SD0000048196 on rats left the question a little up in the air. If you could look at Exhibit 1264. Again, if you could just go through and identify the three reports that are contained within that group exhibit. These are toxicity, reproduction, and residue studies on three various Aroclors, 42, 54 and 60 in chickens reported in June, 1970 done at Industrial Bio-Test. Also in there is a second report on a test just with Aroclor 1242 in chickens at a lower level. The third is a third test on Aroclor 1242 in chickens with other varying levels. All three of them are chicken studies done at Industrial Bio-Test. What timeframe were those done within. Dr. Kelly? From '70 to '73. Okay. And what were the results generally of those tests, if you can summarize them without going through each one individually? Well, they found a level of three parts per million of the diet did not affect the weight gain, eggshell thickness, egg production, but -- the one and three parts per million did not -- at ten parts per million did effect the egg thickness and the hatchability of chicks. Did the results of those tests again change your opinions about the toxicity or safe handling information WATER PCB-SD0000048197 5 that Monsanto would have been providing relative to 6 PCBs? 7 A No, I think it expanded it some, but it didn't change my 8 idea. 9 Q In Group Exhibit 1263, which you had just gone through, 10 the studies of Aroclor 1242 and then the fish toxicity 11 studies of 1242, 54 and 60, the Aroclor study with 12 regard to the rats, 1242 study, and the albino rat study 13 of 1242 were dated, I believe, in either 1970, late '71 14 or '72. If you'd look at those. Are you aware of the 15 fact, Doctor, that all of those reports were received 16 after Pydraul had been reformulated to remove the PCBs? 17 A Yes. 18 MR. McDEVITT: I'll move for the admission of 19 Exhibit 1264, Your Honor. 20 MR. CARLSON: Subject to the same objection. 21 Your Honor. 22 THE COURT: So received. 23 MR. McDEVITT: 24 Q Lastly I'm going to show you, Doctor, Exhibit 1186 and 25 Exhibit 1187 and ask you whether you can identify 1 initially 1186? 2 A Yes, sir, 1186 is a report from Industrial Bio-Test on 3 the chronic oral toxicity of albino rats with 1242 dated 4 November 12, 1971. Did I say it was a two-year feeding 5 study. WATER PCB-SD0000048198 6 Q Yes. What is a two-year chronic oral toxicity test? 7 A That means you feed the experimental animal a certain 8 amount of the subject chemical in varying doses. You 9 try to feed one dose and you'll get an effect, one dose 10 that you hope will be safe, and the third one in the 11 middle, it may be safe, or it may show some signs of 12 illness that do not result in death. 13 Q Now, the report, Exhibit 1186, was received or is dated 14 November 12, 1971? 15 A Yes, sir. 16 Q How long does it take to complete two-year chronic oral 17 toxicity tests? 18 A Obviously you feed the animal for two years. That's two 19 years. Before you feed the animal you have to decide 20 what is the protocol, what is the test pattern. That 21 takes a little bit of talking back and forth with your 22 varying consultants. In this particular case we went to 23 the government, talked with the Food and Drug people and 24 said, "Look, this is what we're going to do." 25 Q When did you do that, Doctor? 1 A Gosh, some time in '68, early part of '68, around there. 2 Q I'm going to show you, Dr. Kelly, Exhibit, Defense 3 Exhibit 1262 and ask you to look at that letter, if you 4 would. 5 A Okay. Do I come back to this later then? 6 Q I'm just going to ask you some questions initially about WATER PCB-SD0000048199 7 that that letter, Doctor. Is that a letter from Elmer 8 Wheeler? 9 A Yes, it is. 10 Q Did Elmer Wheeler work for you? 11 A Yes, he did. 12 Q And who was that letter written to, if you can tell us? 13 A Well, I'll read the whole letter. 14 Q Just who was it addressed to, Doctor? 15 A Dr. Joseph Calandra, Industrial Bio-Test laboratories in 16 Chicago. He was the president. C-A-L-A-N-D-R-A. 17 Q And what timeframe, or what what was the date of the 18 letter? 19 A July 29, 1968. 20 Q Okay. And what was the subject discussed in the letter? 21 A The subject discussed proposed toxicological testing on 22 our PCBs. 23 Q And is this a letter that was maintained in the regular 24 course of Monsanto business? 25 A Yes, it was. 1 MR. McDEVITT: I'll move for the admission of 2 Exhibit 1262, Your Honor. 3 MR. CARLSON: No objection. 4 THE COURT: So received. 5 MR. McDEVITT: 6 Q If you could just read that letter from Mr. Wheeler to 7 Mr. Calandra of July 9, 1968, Doctor. 8 A "Dr. Joseph Calandra. Dear Joe: I have enclosed two WATER PCB-SD0000048200 9 articles, one from the Swedish press and one from the 10 British Technical Press covering the subject that I wish 11 to talk to you about on Thursday. Dr. Tucker and I will 12 be arriving on American Airlines flight 204 at 8:10 13 A.M." Dr. Tucker was an analytical chemist. "Sincerely 14 yours, Elmer P. Wheeler, Manager, Enviornmental Health." 15 Q Did the subject that they wanted to talk about, did that 16 have to do with the chronic oral toxicity testing? 17 A Yes, it did. 18 Q And when was this letter and this appointment that they 19 had -- Strike that. With relation to the discussion you 20 indicated that you had with the federal authorities 21 relative to these tests, was it before or after this 22 meeting that was discussed in the letter, do you recall 23 that? 24 A Well, yes. We talked to the federal people after -- we 25 went up to Calandra's office, myself, Elmer Wheeler and 1 Tucker did, and said, "Here is what we've got. What do 2 you think we ought to do?" And he gave us some ideas. 3 And then I believe, to the best of my recollection, he 4 sent us a protocol, which is a plan on what he was going 5 to do. 6 Q What is a protocol? 7 A A protocol is a proposed plan for an experiment. So WATER PCB-SD0000048201 8 then we said, "Well, that's fine, if that's what you 9 think, let's go down and see if this is satisfactory to 10 the" -- 11 MR. CARLSON: I object, because at this point 12 I can't tell who's talking, and it may be hearsay or may 13 not be. 14 THE COURT: Sounds like it. 15 THE WITNESS: Beg your pardon? 16 THE COURT: It sounds like hearsay. 17 MR. McDEVITT: 18 Q When you say you talked, was that -- you were having 19 that discussion yourself, Doctor? 20 A Yes, I had talked to Joe, to Calandra. I said, "I'm 21 going to take this protocol up to the Food & Drug 22 Administration and talk to them. Will you come along?" 23 Q And did you, in fact, do that? 24 A Yes, I did. 25 Q And did you and Dr. Calandra go to the Food & Drug 1 Administration with respect to the protocol? 2 A Yes, I did, and I believe Elmer Wheeler went also. 3 Q What was the result of that meeting that you had with 4 the Federal Food & Drug Administration relative to the 5 testing that you wanted to do? 6 A They agreed, I would say. 7 MR. CARLSON: I have to ask that he not 8 testify with regards to what they said. 9 THE COURT: Yeah. The witness doesn't WATER PCB-SD0000048202 10 understand this, but it happens to every witness. We're 11 not singling you out. Every witness that gets up here 12 does it. 13 You can testify, Doctor, as to what you did in 14 response to that meeting, but not what happened at the 15 meeting. Okay. 16 MR. McDEVITT: 17 Q What was done as a result of that meeting, Dr. Kelly? 18 A As a result of that meeting Calandra made a few changes 19 in his protocol, which were in response to the advice we 20 received from the FDA, and then he submitted it to us, 21 and we approved it. 22 Q And then did the test results that are shown in Exhibit 23 1186 and Exhibit 1187 result in those tests that were 24 conducted after that protocol had been approved? 25 A Yes, sir. 1 Q And, first of all,taking Exhibit1186, the two-year 2 chronic oral toxicity tests with Aroclor 1242. Can you 3 tell us the results of those tests, Dr. Kelly? 4 A Yes, well, there was thatquestionhanging -- 5 Q Okay. 6 A -- how long it takes to run a two-year test. Do I 7 answer that first or what? 8 Q Sure. How long did it take after you had the protocol 9 approved and the testing was started before you actually 10 received the results? WATER PCB-SD0000048203 11 All right. When we had the protocol approved and all 12 the finances taken care of, they go out and buy the dogs 13 and rats. We're doing two species, dogs and rats. 14 Then they have to keep these in incubation for 15 awhile to see that they have healthy dogs and healthy 16 rats, because we don't want to have distemper in the 17 middle of the experiment. Then they run what is called 18 range finding tests. They try to give a dose of the 19 material to see what the dog can take without getting 20 sick. Then when they find that out, they get a little 21 lower dose, then a higher dose, because they want to 22 find some actual ill effects. That takes three, four, 23 five months. Then they run the two-year tests. That's 24 twenty-four more months. Then you've got to wait to 25 get, for the pathologist. That is the bottleneck, 1 because when you finish with this bunch of dogs and 2 rats, you have to have a pathologist, you've got to 3 slice, make these specimens, put them on slides, fix 4 them and get the pathologist to read it. And that seems 5 always the bottleneck in running toxicological 6 experiments. Then you get the reports back from the 7 toxicologist, then you write the report. So a two-year 8 test is very close to three years. 9 Can you tell us what the results -- or strike that. 10 I'll move for the admission -- Strike that. 11 Were these reports received in the normal course 12 of, and maintained in the business of the Medical WATER PCB-SD0000048204 13 Department at Monsanto? 14 A Yes, sir. 15 MR. McDEVITT: Move for the admission of 16 Exhibits 1186 and 87, Your Honor. 17 MR. CARLSON: Subject to the same objection, 18 Your Honor. 19 THE COURT: Both received over objection. 20 MR. McDEVITT: 21 Q With regard to the test on the albino rats, that is 22 Exhibit 1186, the two-year chronic toxicity test, can 23 you tell us what the results were, Dr. Kelly? 24 A Yes. It took 400 rats and four different levels, one 25 control taking nothing, then three different levels 1 taking 1, 10 and 100 parts per million in the diet. 2 Pardon me. It's been a little while since I looked 3 at this. He found -- you're talking about Aroclor 1242. 4 He found no change in the amount of food they ate, no 5 change in their body weight. Blood chemistry and blood 6 studies were normal, urinalysis was normal. There were 7 no confirmed dose related-response to Aroclor 1242. 8 In some of the Aroclors that was 100 parts per 9 million there were a few animals with some vaculization. 10 That means there were areas of the liver where there 11 were small areas of the cells that didn't have all the 12 cellular features that you would expect. Sort of like 13 fatty degeneration in a person with obesity or diabetes. WATER PCB-SD0000048205 14 He had also some enlargement of the liver in the 1242s. 15 There were no tumor formation -- no incidence of tumor 16 formation attributed to the test. 17 So I can summarize it by saying that 10 parts per 18 million was normal, he had a little change in the 100 19 parties per million, but no clinical changes such as 20 showed up on the pathology after he sacrificed the 21 animals. 22 Q With regard to the two-year chronic oral toxicity 23 testing with Aroclor 1242 in beagle dogs, Exhibit 1187. 24 Can you just summarize the results of that testing 25 reported on November 1, 1971? 1 A That was entirely negative in all perimeters. I mean, 2 the body weights, the food consumption, the 3 hematological studies, the blood chemistry, urinalysis 4 and pathology after sacrificing the animals was normal. 5 Q Again, Doctor, did these two-year chronic oral toxicity 6 test results change your opinions with regard to the 7 toxicity or safe handling of PCBs? 8 A No, sir, it did not. 9 Q When did you first learn that there might be a problem 10 with PCBs not biodegrading? 11 A In December of 1966. 12 Q And how did you learn of that, Doctor? 13 A I received a report from either our Brussls office or 14 our London office that there was some information in a 15 newspaper referring to a Swedish story. I don't know if WATER PCB-SD0000048206 16 that was an English newspaper or a Belgian newspaper in 17 Brussls or a Swedish newspaper that somebody translated, 18 but anyway, a Dr. Jensen or Widmark had reported the 19 findings of PCBs in the environment. 20 Q Now, you indicated that you had heard about this or 21 learned about it from your Brussls office. Was that Mr. 22 Dave Wood? 23 A Yes, sir. 24 Q Okay. And what did the Medical Department do, or what 25 did you do in response to that report from Mr. Wood? 1 A I said, "Dave, can you go over to wherever Dr. Jensen is 2 and find out what he is talking about so we know a 3 little more than we know in the newspaper?" 4 Q Did, to your knowledge, Mr. Wood, in fact, meet with 5 Mr. Jensen? 6 A He met him the first half of January of 1967. 7 Q And at that meeting was there an exchange of 8 information, to your knowledge, between your department 9 and Mr. Jensen? 10 MR. CARLSON: Objection. Hearsay. 11 THE COURT: Sustained. 12 MR. McDEVITT: 13 Q Do you have any knowledge, personal knowledge, with 14 regard to anything that took place at that meeting? 15 A Oh, yes. WATER PCB-SD0000048207 16 THE COURT: Well -- 17 MR. McDEVITT: 18 Q Let's put it this way. As a result of that meeting, 19 what, if anything, did your department do thereafter? 20 A In what timeframe? In the next week? . 21 Q No, within the next few months, if you could, Doctor. 22 A Well, we arranged for communication with Mr. -- I 23 believe it's Mr. Widmark -- or Dr. Jensen. We had Wood 24 go back, we had a Dr. Hardy from our London research 25 department go over and talk to him. We had our 1 scientists write to him. We were engaged in quite a 2 dialogue with him to find out what he really found, what 3 he was talking about. 4 Q And did we, in fact, provide Aroclor to Dr. Jensen? 5 A We provided it to an awful lot of people. I believe we 6 did, but I'm not positive of that. 7 Q When were your -- Strike that. When were you first 8 aware of the potential ill effects from this 9 environmental presence? 10 A Some time in the latter part of 1968. 11 Q Was that some time after -- Strike that. How did you 12 learn about that, Doctor? 13 A Well, there was a Dr. Risebrough out in California. He 14 had talked, made contact with us some time in December 15 of 1967, saying that he was doing some work on PCBs in 16 animals, in birds. He wanted a - 17 MR. CARLSON: Your Honor, I don't know how to WATER PCB-SD0000048208 18 inject myself. I'm going to object to hearsay comments. 19 THE COURT: Sounds like it. 20 THE WITNESS: We sent him -- 21 THE COURT: You're getting smart. 22 THE WITNESS: Give me time. . 23 THE COURT: Okay. 24 THE WITNESS: We sent him a specimen sample of 25 our Aroclors. 1 MR. McDEVITT: 2 Q When was to that, generally, if you can tell us the 3 time? 4 A I know it very well, because it was received on 5 Christmas Eve -- January -- Christmas Eve, 1967. 6 Q How long after that was it that Dr. Risebrough's article 7 appeared, do you recall? 8 A It appeared a year later, although he had sent us a 9 prepublication copy one or some weeks before. I don't 10 know how long before. I think it was just a couple 11 weeks. That's when I learned. 12 Q I believe the record reflects that the publication was 13 in December of 1968. Does that sound correct? 14 A That is correct, December of '68. 15 Q And was it about five months prior to that that you had 16 been in contact with IBT to order the two-year chronic 17 oral toxicity test? 18 A Yes, we had started the ball rolling. 19 Q I'm going to show you, Dr. Kelly, Exhibit 1082, which is WATER PCB-SD0000048209 20 in evidence. Your Honor, as November 17, 1969 minutes of 21 the Corporate Development Committee for Monsanto, and 22 ask you to look at that document. 23 A Yes, sir, I have looked at it. 24 Q And were you -- is that the minutes of that meeting? 25 A Yes, it is. 1 Q Do those minutes reflect that you were actually present 2 at that meeting, Dr. Kelly? 3 A I didn't understand you. 4 Q Were you present at that meeting? 5 A Oh, yes, I was. 6 Q And was that -- there has been a reference to a Monsanto 7 12-point plan being adopted at that meeting. Do you 8 recall that that was, in fact, adopted at that meeting? 9 A Well, we made the presentation to them, and it was 10 adopted as a result of that meeting. I don't think they 11 gave us the stamp right then, but it was adopted as a 12 result of that meeting. 13 Q From that meeting that you attended, what was your 14 impression, if any, relative to the company's position 15 regarding the environment? 16 A My impression was very definite that the top management 17 of the company, as represented by these people, was 18 completely in sympathy with our plan to minimize any 19 further environmental damage, and if that could not be WATER PCB-SD0000048210 20 handled successfully, and if it were shown that there 21 was serious damage to the environment, that they would 22 discontinue the product. In fact, those are the very 23 words that the president and CEO, Mr. Bock said we'll 24 walk away from it, whether it's --. 25 MR. CARLSON: I object to what someone else 1 said, Your Honor. 2 THE COURT: That's hearsay. 3 THE WITNESS: Oh, sorry. 4 MR. McDEVITT: 5 Q Shortly after that meeting, I think the first point was 6 to, 12-point plan was to create a position to coordinate 7 company response. Do you recall shortly thereafter 8 Mr. Papageorge assumed his position? 9 A Yes, on January l, six weeks later. 10 (Change in reporters.) 11 12 13 14 15 16 17 18 19 20 21 WATER PCB-SD0000048211 22 23 24 25 1Q 2 3 4A 5Q 6A 7 8Q 9A 10 Q 11 12 13 A 14 15 16 17 Q 18 A 19 20 21 22 23 24 Did you in your capacity as the Medical Director of Monsanto perform physical exams on your workers, specifically who worked with PCBs? On one occasion I did. And when was that done? '72 or '73, I believe. I am not sure. In the first part of 1970. Okay. The first part of the '70s? Yes. And what type of exam -- Or, strike that. Where were those workers at that point in time located that were actually working with PCBs? They were at the Sauget, S-A-U-G-E-T, plant or the Krummrich plant, K-R-U-M-M-R-I-C-H. They're the same plant, two different names, which was right across the Mississippi River from our office in St. Louis. And what type of exam did you perform at that time? Well, there were 23 or 25 people who were working in the department, the PCB department, and we gave them as thorough an examination as possible. We gave them a Mayo Clinic type examination, which is history -- history of any illnesses, I questioned them about any medical treatment, we gave them a complete physical examination with electrocardiogram, with chest WATER PCB-SD0000048212 25 x-rays, we did complete blood counts, we did what was 1 called the laboratory test, the typical SMA test that 2 you get when you go to a doctor. At that time I 3 think there were 12 out of 23. But it includes 4 cholesterol, thyroid, the whole business of 5 laboratory tests. Plus we also ran for blood PCBs, 6 although we were not very happy that our analytical 7 technique for PCBs in the blood was very good. 8 What were the results generally of those exams? 9 MR. CARLSON: I object, Your Honor. It's 10 hearsay, and I am afraid I would have to argue that 11 outside the presence of the jury. 12 THE COURT: It's time for a break anyway. 13 (Recess had.) 14 (Whereupon, the following proceedings 15 were had outside the presence of the jury.) 16 THE COURT: All right. The record should 17 reflect we are in the courtroom, but the jury is not 18 present, relative to the objection made by Mr. 19 Carlson concerning the test results on the Monsanto 20 employees. 21 MR. CARLSON: May it please the Court, 22 the reason for the objection is that there are 23 available, apparently, some results of the work that 24 was done; however, the medical records are not 25 available to cross-examine the witness. 1 Secondly, the information here is in May 2 of 1972, which it would not have any bearing on WATER PCB-SD0000048213 3 testimony by Monsanto one way or the other with 4 regard to its product since it had previously, the 5 testimony would indicate, removed the product from 6 the market. 7 But the biggest problem is there is no 8 opportunity at all to examine the witness with 9 regards to the information supporting these 10 conclusions, and for that reason we object to its 11 use. 12 MR. McDEVITT: We have -- The document 13 that Mr. Carlson is referring to, Judge, is a letter 14 of May 10, 1972, that I intend to show the witness 15 and ask the witness about. It's a letter to a senior 16 staff member. Council on Environmental Quality of the 17 United States government in Washington, with doctor 18 Kelly's report of his findings from his personal 19 examination that he conducted of the workers that 20 he's testified to. Obviously it isn't hearsay in the 21 sense that he did it himself and this is the sum - 22 summarizes the reports of those exams. 23 MR. CARLSON: I think it would also be 24 one of those rare instances where the best evidence 25 rule would have to be applied. 1 THE COURT: Well, as you're well aware, 2 Mr. Carlson, and you date yourself, there is no such 3 rule as best evidence anymore. 4 MR. CARLSON: As such, I understand that. 5 But there is -- has been a requirement that under WATER PCB-SD0000048214 6 circumstances where conclusions are being presented, 7 the underlying data should be available for 8 cross-examination. And that's not available. Or if 9 it is available, I'm not aware of it. 10 THE COURT: I'm trying to see where that 11 is. I don't see that in Chapter 909 or 910. 12 MR. CARLSON: I can't believe they have 13 changed the Rules of Evidence on me that much, 14 although I wouldn't -- 15 THE COURT: Well, 909.015 gives 16 illustrations about authentication, and paren one of 17 that says, "Testimony of a witness with knowledge 18 that a matter is what it claims to be." We don't 19 have the originals or even copies of those records. 20 In Section 910.04 it provides, "The originals are all 21 lost or have been destroyed unless the proponent lost 22 or destroyed them in bad faith." 23 MR. CARLSON: Look under 910.06 for 24 summaries. 25 THE COURT: Well -- 1 MR. CARLSON: The procedure is pretty 2 well set out, and this is a summary of his findings. 3 THE COURT: That's assuming they're 4 available. 5 MR. CARLSON: That's right. And I don't 6 know if they're available. I don't know if they're 7 not available. My suspicion is that -- Mr. McDevitt 8 tells me they're not. WATER PCB-SD0000048215 9 THE COURT: He was there back in 1971, 10 you know. 11 MR. CARLSON: I understand that. 12 MR. McDEVITT: He did the examination, 13 Your Honor. We are asking him to summarize what his 14 conclusions and opinions were as a result of these. 15 THE COURT: I don't find anything -- 16 MR. McDEVITT: That prevents -- 17 THE COURT: -- in the Rules of Evidence 18 that would prohibit him from doing so. 19 MR. CARLSON: Well -- Well, let me just 20 start out with under 910 -- 21 THE COURT: That takes care of one 22 objection. There are others, I realize. I believe 23 the others -- One of them concerned a guestion about 24 the fact that the Pydraul product had already been 25 discontinued by the time of the results of the exam. 1 And what was the other objection? 2 MR. CARLSON: Well, we had hearsay, which 3 perhaps is overcome by the representations made. I 4 think it's irrelevant at this point what 27 workers 5 in this particular report have or don't have. It's 6 no different than if I bring in some of my folks that 7 have cancer right now. Any potential probative value 8 is certainly going to be outweighed by whatever -- 9 the problems or the confusion that they create. 10 And I really think that under 910.06 for 11 summaries the contents can be summarized either WATER PCB-SD0000048216 12 orally, as the witness would like to do, or in 13 writing, which is also in existence, if the originals 14 are available. But the statute says the originals or 15 duplicates shall be made available, and to my 16 understanding they can't be made available here. 17 Which would dictate that they not be admissible. 18 MR. McDEVITT: If you will recall, Your 19 Honor, in the cross-examination of Dr. Shindell they 20 used the results of epidemiological studies of these 21 workers, and those reports, I think, were 1977. And 22 they cross-examined Dr. Shindell about some 23 epidemiological information with regards to these 24 same workers, and to now say that we can't get into 25 what this witness found as a result of his own 1 examination of those workers, the same workers that 2 they've already asked Dr. Shindell about, just does 3 not seem to make any sense to me. 4 THE COURT: I agree with Mr. McDevitt. 5 The -- One of the issues for the jury to determine is 6 whether or not this product was defective and 7 unreasonably dangerous to a prospective user. To 8 rebut that issue the defense has an opportunity to 9 show the people who were exposed to PCBs in the plant 10 that manufactured them showed negative test results 11 from a health standpoint within a number of years 12 after the PCBs were detected in the environment as 13 being somewhat of a contaminant. So I think that 14 this tends to rebut that issue about whether or not, WATER PCB-SD0000048217 15 at least for humans, it would be unreasonably 16 dangerous and defective. 17 Whether or not that's going to have any 18 effect on the jury, of course, that's another issue. 19 But I certainly think it's relevant. It is not in my 20 judgment subject to what Mr. Carlson terms the best 21 evidence rule. Usually the best evidence rule -- As 22 I recall, it was to produce the originals as opposed 23 to copies. Well, with copy machines and all sorts of 24 things like that that are available, unless certain 25 things are intentional, the formulators of the code 1 of evidence felt that that was no longer a viable 2 type rule for the Rules of Evidence. 3 We have been working with these, as both 4 counsel are aware, since January of 1974. I realize 5 that Mr. Carlson has been out of law school longer 6 than that, he learned the best evidence rule, as I 7 did, when we got out of school, but that's no longer 8 an issue. 9 So the objections are overruled, and I 10 think the doctor can testify. Certainly Mr. Carlson 11 can ask him questions on cross-examination whether or 12 not these are available and what happened to them, to 13 give the idea to the jury that he would like to see 14 the individual test results of each employee. And 15 whether or not the Defendant should have retained 16 these records -- I think the doctor certainly can 17 testify as to what this letter shows. We're WATER PCB-SD0000048218 18 assuming, of course, that Mr. McDevitt is going to 19 get over the hearsay objection. 20 MR. CARLSON: Just one other point, and I 21 need to check one thing. 22 In our discovery we had asked for medical 23 records of their plant workers -- and I am going on 24 the representations made to me right now, because I 25 don't recall specifically, and I would have to go 1 into our discovery -- and those documents were 2 refused to us. To now let the witness testify as to 3 the results after having not let us have access to 4 those documents it seems to me -- I don't know 5 exactly what rule of evidence is applicable, but it 6 sure does sound to me to be unfair, and under these 7 circumstances it does prevent cross-examination of 8 the doctor. 9 We don't have any information here at all 10 as to what follow-up work was done, what cancer -- 11 you know, how many of these folks developed cancer, 12 how much anything. In the absence of those medical 13 records, it effectively tied our hands, and 14 Monsanto's refusing to produce those records has done 15 that. 16 THE COURT: Okay. Looks like Mr. Running 17 is going to respond to this one. 18 MR. RUNNING: Your Honor, we had so many 19 discovery disputes, I don't know if this was resolved 20 by agreement or Judge Lampone's order. But we did in WATER PCB-SD0000048219 21 fact search the records for any information on 22 adverse health effects associated with PCB exposure, 23 and you have seen some of those documents that were 24 produced. 25 Two of them were used with Dr. Shindell, 1 and others were produced. I don't know if it was 2 pursuant to an agreement or a compromise worked out 3 by Judge Lampone. But they had -- You know, if they 4 wanted to bring a motion on precluding us to 5 introduce evidence on this subject, they have had 6 that opportunity. It would have been baseless. We 7 did have an extensive production. I don't recall if 8 it was pursuant to agreement or Judge Lampone's 9 order, but that dispute was resolved, and there is no 10 basis for any limiting instruction at this point. 11 MR. PENDERGAST: Just so it's clear, we 12 specifically requested the employee health records of 13 Monsanto's employees, and Monsanto refused to produce 14 them to us. 15 MR. RUNNING: Are you representing that 16 Judge Lampone -- 17 MR. PENDERGAST: No, you objected to them 18 and said it was privileged information, you weren't 19 going to produce them. 20 MR. RUNNING: Well, I don't -- I don't 21 remember the circumstances, Your Honor. We have -- 22 We had seven document productions to the plaintiffs. 23 We had five sets of interrogatories. Five or six. I WATER PCB-SD0000048220 24 don't know if Mr. Pendergast is right on that. I do 25 know this, that the proper procedure, if they thought 1 our discovery responses were in any way incomplete, 2 was to get either a motion to compel -- My 3 recollection is that Judge Lampone sorted out this 4 dispute and decided how to provide the plaintiff with 5 discovery in this matter. But it may have been 6 pursuant to an agreement because we worked out a lot 7 of agreements. 8 But I do know this. If they were going 9 to try to preclude us from offering evidence on this 10 point, they should have -- they should have either 11 sought an order in the form of a motion for 12 sanctions, which is the proper way to do it, or we 13 should have had a motion in limine argument. But to 14 come on the last day of trial and have Mr. 15 Pendergast's representations about what happened in 16 discovery two years ago is, I think, improper. There 17 clearly was extensive discovery produced on this 18 subject, and the plaintiff has already had the 19 benefit of that cross-examining one of our experts. 20 (Switch in reporters.) 21 22 23 24 25 1 MR. PENDERGAST: All we can do is look at the WATER PCB-SD0000048221 2 particular document or discovery request to see if they 3 were requested. If we requested them, and they refused, 4 it seems to me that's a whole different matter. 5 THE COURT: I don't think Mr. Running is 6 disputing that they were requested and refused. The 7 question really is what happened after that. 8 MR. RUNNING: Well, Your Honor, my memory is 9 clear enough to know if the records are in existence or 10 not. I do know that we, I'm sure we asserted the 11 privacy interests of Monsanto's employees as an 12 objection, and I do know that either Mr. Pendergast and 13 I worked out an agreement, as happened about half the 14 time, or Judge Lampone made a ruling, which happened 15 about the other half of the time, then both parties 16 lived with it. And there was certainly no request for 17 conclusive rulings saying that because we hadn't 18 produced Y, X and Z in discovery we were in any way 19 limited at the trial. No request by Stroh for that, and 20 there had been no basis for it, because we produced a 21 large volume of materials on this very subject. 22 THE COURT: Well, it puts me in a difficult 23 position, since I wasn't here to determine whether or 24 not Judge Lampone made a ruling on a motion to compel or 25 not. It's impossible for me to know that. 1 MR. RUNNING: Well, it is hard for me to 2 respond too. Mr. Pendergast makes a statement not WATER PCB-SD0000048222 3 having given us notice that they thought they'd be any 4 way impaired in discovery. 5 There was -- I can say this. There was never any 6 motion for sanctions for limiting orders because we 7 hadn't complied with discovery requests. We complied 8 with every discovery matter, that we either made 9 objections, and the objections were ruled on, and we 10 complied with every single order of Judge Lampone, or 11 there was an agreement worked out between counsel. And 12 there was never any agreement that we wouldn't get into 13 this matter. I'm certain of that. 14 So for Mr. Pendergast and Mr. Carlson to say at 15 four o'clock in the afternoon, hopefully, the day before 16 we have closing arguments, that we have done something 17 wrong on some discovery dispute two years ago and, 18 therefore, we shouldn't be allowed to get into a 19 relevant area of testimony that they've addressed in 20 their cross examinations is -- I think it puts us in an 21 impossible position as well as The Court. 22 THE COURT: I don't think that they're saying 23 you did something wrong. 24 MR. PENDERGAST: If I can be quite candid, 25 Judge. We requested the information concerning the 1 examinations of their employees. They did not produce 2 them claiming they're privileged. And there was no 3 motion to compel, and no motion for sanctions on those 4 interrogatories. We lived with the answer. WATER PCB-SD0000048223 5 But it seems to me now that they've chosen what 6 information that they feel, based on their claim of 7 privilege, is the boundaries of our inquiry here, and 8 now what they're doing is bringing a document and we 9 are, in essence, limited by their objection. 10 It seems if they chose not, if it was their 11 decision not to bring that information into the case 12 based on their claim of privilege, that they should be 13 precluded from getting into a document here today where 14 we have no right to cross-examine based on their 15 obj ection. 16 MR. RUNNING: Well, Your Honor, if The Court 17 is at all troubled by this point, I think we ought to -- 18 I'm not sure Mr. Pendergast is right at all. He's been 19 wrong in the past in representing facts about the 20 discovery dispute, and I think we ought to have the 21 actual request and look at it if that's going to be the 22 real basis for a ruling. 23 THE COURT: No, I think I'm ready to rule. I 24 notice on the document that there is an STR number, 25 which means that the plaintiffs have had a copy of 1 Exhibit 1242. 2 MR. RUNNING: That's true. 3 THE COURT: And as long as they had a copy 4 there has to be an assumption that the defendant was 5 going to use this exhibit. If that is a correct 6 assumption, and I think it is, then the remedy would WATER PCB-SD0000048224 7 have been to exclude this document because of not having 8 the underlying medical examinations. 9 MR. CARLSON: Well, is The Court saying -- put 10 it a different way. We object and they objected through 11 the course of the trial for a number of different 12 reasons that weren't brought up in the motion in limine, 13 which I don't think we should be estopped from raising 14 the issue now simply because we didn't raise it in the 15 motion in limine. 16 If our position has no merit, so be it, but the 17 fact we didn't raise it by motion in limine earlier, I 18 don't think would preclude the resolution of the issue 19 at this stage. 20 THE COURT: No, I didn't say that. What I'm 21 saying is that it should have been a motion to compel 22 rather than a motion in limine is what I'm saying. 23 In effect, you are raising a motion in limine right 24 now, and I have no problem with that, but if you thought 25 that they were going to use this document, you should 1 have said, "Well, we move to compel that," or in the 2 alternative to refuse to allow the defendants to use 3 1242, then Judge Lampone or me would have been faced 4 with the decision. And, quite frankly, had I been faced 5 with it, I would have told the defendant the same thing, WATER PCB-SD0000048225 you don't use 1242 unless you give him the medical exams. But that was never brought up, and, therefore, we will allow him to use 1242. Are we ready now? Is this your copy? MR. McDEVITT: That's his copy. Could you give that one to the witness? MR. RUNNING: Judge, should we let our TV guy go? Is the equipment safe? THE COURT: Sure. (Whereupon, the jury returned to the courtroom.) THE COURT: We are ready to resume the direct testimony of Mr. Kelly. MR. McDEVITT: Dr. Kelly, we were talking about the examinations that that you conducted on the Monsanto PCB work. Do you recall that? Yes, I do. Did you personally conduct those examinations yourself? Yes, I did. And after those examinations did you report the results of those to an official of the United States government? Yes, I did. And I would ask you to look at Exhibit 1242, which is in front of you, and ask you if you can identify that exhibit as a copy of that report? Yes, this is a letter of mine dated May 10, 1972, which WATER PCB-SD0000048226 8 I reported to a Dr. Davies, Senior Staff Member of the 9 Counsel for Environmental Quality about the results of 10 the examinations I carried out myself on the hourly and 11 salaried workers at a PCB manufacturing installation 12 Sauget, Illinois. 13 MR. McDEVITT: I would move for the admission 14 of Exhibit 1242, Your Honor. 15 MR. CARLSON: Same objection. 16 THE COURT: Received over objection. 17 MR. McDEVITT: 18 Q Can you read that letter of May 10, 1972 regarding those 19 exams? 20 A Yes. "Dear Dr. Davies." Dr. Davies is the senior staff 21 member of the CEQ. 22 "During the last two months our medical staff 23 completed examinations on 27 hourly and salaried workers 24 engaged in the manufacture of polychlorinated biphenyl 25 plant and our Sauget, Illinois plant." That has been 1 referred to as the Krummrich plant at times. That 2 wasn't in the letter. That's an aside. 3 "These 27 workers had varying lenths of service in 4 the department. The shortest time was six months, and 5 the longest was twelve years. The average time in the 6 department was slightly over five years. Of these" - 7 new paragraph. 8 "Of these 27 individuals, 16 had no detectible PCBs WATER PCB-SD0000048227 9 in the blood (using a method sensitive to 0.1 ppm, parts 10 per million. Five had one-tenth ppm) two had two-tenths 11 ppm, three had three-tenths of a part per million, and 12 one had four-tenths of a part per million, and one had 13 five-tenths of a part per million. 14 "Clinical examinations were entirely negative. 15 Laboratory examinations, including blood counts and 16 hematocrit, H-E-M-A-T-O-C-R-I-T, and clinical 17 chemistries, including glucose, urea nitrogen, 18 creatinine, C-R-E-A-T-I-N-I-N-E, uric, U-R-I-C acid, 19 calcium phosphorus" -- these are caps now -- SGOT, 20 SGPT -- those are liver enzymes, LDH, another liver 21 enzyme, "alkaline phosphatase, bilirubin, cholesterol 22 and total protein, showed no pattern of illness. There 23 were some random high cholesterols, one high hemoglobin, 24 and one low hemoglobin. In only one case was the SGOT 25 and SGPT elevated, but this individual showed no 1 detectible PCB in his blood. 2 "In summary, I can say that these workers were as 3 healthy as any cross-section of our plant workers of the 4 same age. Sincerely R. Emmet Kelly." 5 Q Did Monsanto ever have a worker's comp claim because of 6 PCB exposure by its own workers?. 7 MR. CARLSON: Objected to as irrelevant and 8 immaterial, Your Honor. 9 THE COURT: Sustained. WATER PCB-SD0000048228 10 MR. McDEVITT: 11 Q Are you aware of any reports in any literature where a 12 die cast worker complained of injury or disease because 13 of exposure to PCB? 14 A No, I have not seen any such report. 15 Q Based upon the examinations you conducted, the testing 16 that was done, and the information that you learned in 17 your capacity as the medical director of Monsanto from 18 right after the war until your retirement in 1974, do 19 you have an opinion whether or not, if the safe handling 20 instructions that you have referred to on our labels are 21 followed, whether Pydraul could be used without any 22 adverse health effects? 23 A Yes, I do have such a report -- opinion. 24 Q What is that opinion, Doctor? 25 A That my opinion is, and it is bolstered by my 1 examinations of the medical records of our workers at 2 our Anniston and our Sauget plant who worked with PCB 3 that I have examined on my visits to these plants, that 4 the workers can safely use PCB and with no ill effects 5 if they follow the simple two directions of avoid 6 repeated or continuous skin contact, do not breath the 7 fumes at elevated temperatures, or in confined spaces. 8 MR. McDEVITT: That's all I have, Your Honor. 9 THE COURT: Cross examination. 10 CROSS EXAMINATION 11 MR. CARLSON: WATER PCB-SD0000048229 12 Q Why were PCBs banned? What were the properties that 13 PCBs resulted -- 14 A Would you speak a little louder, please? 15 Q Sure. Why were PCBs banned in this country? What were 16 the properties of. the chemical that made them banned? 17 A They were found to thin, the eggs of aviant species, 18 that's birds. 19 Q Anything else? 20 A They were also found to be present in the higher levels 21 of the food chain, but I do not know if that was as 22 important as the thinning of the eggshells and the 23 limitation of the hatchability of birds that were 24 fisheaters. 25 Q Anything else? 1 A No, they were not banned when I was there, and that's 2 all I remember. 3 Q Okay. Do PCBs bio-accumulate? 4 A What do you mean by "bioaccumulate," Mr. Carlson, just 5 so we're talking about the same thing? 6 Q You define "bioaccumulation" for me then. 7 A Well, I would define bioaccumulation as 8 biomagnification. 9 Now, bioaccumulation may be it gets in your body 10 and stays there. If you get more and more, it stays 11 until you reach a solid state where you don't get 12 anymore. That's what I would define as bioaccumulation. 13 Biomagnification means that if an algae or a WATER PCB-SD0000048230 14 plankton at the bottom of a stream eats something, and a 15 minnow eats the plankton, there is a possibility that 16 the chemical can be found in the minnow's body at a 17 higher level than it was in the algae. Then if a larger 18 fish eats that, the process may repeat, and if an eagle 19 eats the fish, he may get more. 20 Q And if a human eats the fish? 21 A He get some, but he doesn't -- his diet is not 22 completely fish. Humans do not bioaccumulate to 23 anything like the level that the falcons and the eagles 24 do. 25 Q What is the latest study that you've read on 1 concentrations of PCBs in human fat? 2 A Oh, I would say '87 or '88. I don't know the name of 3 it. 4 Q Whose work did you read? 5 A Well, I don't recall it. I think there's some Japanese 6 work on it. I can't recall it. 7 Q What happened to the children of the mothers that 8 ingested the rice oil in the Yusho incident? 9 A They developed changes in their skin, they developed 10 changes in their nails, they had early dentitian, that 11 means some of the teeth came out earlier, some of them 12 had smaller birth weights. 13 Q Are you aware also that those reports have lowered or 14 less muscle tone? 15 A I'm not -- I do not recall that. WATER PCB-SD0000048231 16 Q Or less activity? 17 A Now, this is the Japanese PCB you're talking about? 18 Q Yeah. 19 A The Kanechlor, K-A-N-E-C-H-L-O-R, which had 20 contaminants, were not present in the Monsanto PCBs, and 21 were the result of excess heat applied in several 22 places. 23 Q Are you talking about furans? 24 A What about furans? 25 Q That was a contaminant? 1 A In the Japanese PCBs? 2 Q Yes. 3 A Yes, there was. 4 Q And are you aware of testimony in this case that 5 Monsanto's PCBs also have furans as a contaminant? 6 A At the time I retired in 1974 I saw no Monsanto report 7 that there were PCB, benzofurns present in the Monsanto 8 PCBs. In fact. Dr. Voss, who is in Amsterdam, I 9 believe, ran a study on a German PCB, French PCB and a 10 Monsanto PCB, and he found bensofurans in the two 11 Europeans, and he did not by his technique find them in 12 the Monsanto PCBs. May I finish? This was -13 Q Do you remember my question? 14 A This was a study of the Monsanto PCBs. It was then 15 repeated by our chemists, and according to our methods 16 that, the technology at that particular time, we did not 17 find any PCBs in benzofurans. WATER PCB-SD0000048232 18 Q What detection level? 19 A I don't recall. 20 Q Would you disagree today that dibenzofurans have been 21 found in all of your Aroclors? 22 A I can't say all of the Aroclors. They have been found 23 in some. 24 Q There was, as I understand your testimony, that there 25 was the potential for PCBs to cause liver damage in the 1 1930s? 2 A In the 1930s? 3 Q Yes. 4 A No, that isn't true, because the compound that 5 Dr. Drinker used was a diphenylbenzine, which was not a 6 PCB. There was no liver damage found in the swan 7 workers who developed chloracne from PCBs. 8 Q Now, your company has, a part of it's work procedures, 9 provided that people that had prior evidence of liver 10 disease or damage should not be employed to manufacture 11 PCBs, isn't that true? 12 A No, it isn't true. I don't remember that at all. 13 Q Let me go back for a second and ask you, Monsanto knew 14 its PCBs were being discharged into the environment, 15 didn't it? That's when you were employed there. 16 A Yes, sir. 17 Q And you knew that going back to what year? 18 A Well, I don't believe it was a very prominant thought on 19 the part of industry until around 1966, if any WATER PCB-SD0000048233 significance was laid to it, but I'm sure they knew that there was a, there may have been discharge into the environment in certain amounts prior to that. And it is true, sir, is it not, that was the kind of chronic testing that was being done by IBT? What, sir? The long-term testing. Yes. Done by IBT starting in about 1969? Yes, sir. Could have been done going back into the 1950s if your company had so chosen? Well, certainly so chosen. There was no reason at all for it to be done in the 1950s. For example, your company was discharging amounts of PCBs into the Mississippi River, wasn't it? I don't know the amount. I don't know. I heard that there was, but it wasn't -- when they discharged this, the concept of biodegradability was not a prominant factor in industry. The company thought, and most scientists at that time thought, that here we have an industrial chemical that is non-reactive, is non-soluble in water that would be, if it gets into the environment, it would lay at the bottom of a stream like a lump of coal or piece of gravel. It was only when the phenomenon of biodegradability became widespread there WATER PCB-SD0000048234 21 was that different point of view occurred. 22 Q Well, it was known by 1960 that certain chlorinated 23 hydrocarbons would bioaccumulate or biomagnify, wasn't 24 it? 25 A Yes, certainly. Are you talking about DDT? 1 Q Sure. 2 A Well, we have here a poison. DDT is a poison. It's 3 supposed to kill insects, roaches, ticks. By the very 4 nature of a poison it's supposed to be metabolized. 5 Over here we have an industrial chemical, which is 6 not a poison, it's not believed to be metabolized, it's 7 insoluble in water, and we do not believe, did not 8 recognize the fact this may have biomagnification. 9 Q But at the point in time that DDT became known to be a 10 contaminant of the environment, your company could have 11 done environmental testing. That's true, isn't it? 12 That's yes or no. 13 A Yes, they could, but -- ' 14 Q That's fine. That's fine. 15 A May I explain my answer. 16 THE COURT: Mr. Running or Mr. McDevitt will 17 give you an opportunity to do it. 18 THE WITNESS: Okay. 19 THE COURT: It's one at a time. 20 MR. CARLSON: 21 Q And the kinds of studies that you could have done would 22 have included, for example, the fish studies that were 23 done by, I believe it was by IBT, correct? WATER PCB-SD0000048235 24 A Not correct, but because I do not know the levels that 25 we could detect PCB in water or in marine life at that 1 time. I don't know that. 2 Q Well, but you don't have to work that way. You can take 3 a control situation and add PCBs and add fish and see 4 what happens. 5 A Well, certainly you can drop them in 100 percent PCB, 6 but what will that show you if you don't know how much 7 PCB is in the water? How will that aid you to reach a 8 sensible decision as to what your effluent from a plant 9 should be. 10 Q Dr. Kelly, the fact -- have you read Silent pring? 11 A Pardon? 12 Q Have you read Silent Spring, thebook? 13 A Yes, I have. 14 Q Okay. 15 A Are you aware of the factthat it was possible to 16 determine the concentrations of DTT simply by comparing 17 volumes of water with the amount of the chemical that 18 was introduced, true? 19 A Wait a minute. Say that over. 20 Q Sure. If you have a volume of water in a controlled 21 situation, you can add a specified amount of a compound 22 and create parts per million, parts per billion, parts 23 per thousand, whatever it is that you want to create by 24 controlling the amount that you put into your water? 25 A No, that's not true, because what if it isn't soluble? WATER PCB-SD0000048236 1 Q But if you put your compound in, and you put your fish 2 in, and you develop an adverse reaction like you did 3 with Industrial Bio-Test, you know there's a problem, 4 don't you? 5 A Yes, but you don't know how much concentration there is 6 in this water. 7 Q So you might have to do it twice? 8 A No, you might have to do it 500 times and have a method 9 for analyzing the water to see how much PCB got into the 10 water. And at that particular time of Silent Spring 11 there was no method to develop, to find out small 12 amounts of PCB in the water. 13 Q There was for DDT, wasn't there? 14 A Yes, but it's entirely different. 15 Q Why was there -- 16 A May I -- 17 Q No. Why was there for DDT, sir? 18 A Why? Because DDT is a one-molecule type. It has -- it 19 was tested by a chlormetric method in which you use a 20 reagent that can be sensitive to the DDT. It shows up 21 in the color, much as you test your swimming pool for 22 chlorine. In PCBs we've got 200 isomers of congeners, 23 C-O-N-G-E-N-E-R-S, and you cannot take just one and say 24 this is what will happen. It doesn't work that way. 25 Q But you will find that the PCBs are present, will you 1 not? 2 A No, you won't. WATER PCB-SD0000048237 3 Q Well, let me do it this way then. If you take your fish 4 that have been subjected to, or have lived in the PCB 5 environment, all right, if you take those fish and you 6 do salvage either the fat or the liver of the fish, that 7 concentrated substance can be concentrated to see if it 8 has a subtoxic effect without any kind of analytical 9 instrumentation? 10 A Like what toxic effect? Would you explain that? 11 Q Well, any kind of toxic use, the rabbit ears the rabbit 12 eye test. 13 A The rabbit ear test for chloracne is not a test that is 14 universally accepted by scientists. It was formulated 15 by the Dow scientists. They believed it, but that has 16 not received universal acclimation or acceptance. 17 Q But it was used for years to test for the presence of 18 dioxin, wasn't it? 19 A I don't know that. 20 Q Well, you do know that the chloracne test was used by 21 scientists to determine the presence of certain 22 chlorinated hydrocarbons? 23 A It was used by the Dow people and some other 24 toxicologists, but it was not universally accepted by 25 the majority, to my way of thinking, of scientists who 1 were dealing in this field. 2 Q But your company didn't try to do that, did it, didn't 3 try to do that work? 4 A Yes, with what? With PCB we tried to do other things WATER PCB-SD0000048238 5 and couldn't do it. 6 Q You didn't do with it PCB, did you, sir? 7 A No, but -- 8 Q That's all. That is the question I have for you. Did 9 you do it with PCBs? Did you attempt to do it with 10 PCBs? 11 A I do not recall that I recommended any such test. I 12 don't know. 13 Q All right. You knew that your product was being used as 14 an insecticide extender, did you not? 15 A No, I did not know that. That use as an insecticide 16 extender came from a footnote in a Department of 17 Agriculture bulletin, and I personally called the 18 Department of Agriculture to find out where did you get 19 this information. I don't want to go back on hearsay, 20 but it was his own idea to use it. So as far as we were 21 concerned anybody that bought it for extenders did it on 22 their own volition. I never had a question from anybody 23 asking me about the use of this as an extender. 24 Q Dr. Kelly, I'd like to have you look at Plaintiff's 25 Exhibit 2035. You may want to mark the page, 36, but 1 certainly, sir, feel free to familiarize yourself with 2 the document. 3 A Yes, sir, I read it. 4 Q Have you seen this particular document before? 5 A I can't recall. I don't know the date of this document. WATER PCB-SD0000048239 6 I find it hard to put a date on it. 7 Q If we look at Page 36 we find reference to "Dust 8 Prevention and Dust Catching?" 9 A Yes, sir. . 10 Q "Aroclor 1254 is a low-cost dedusting agent that holds 11 down the dusting of a variety of chemical materials?" 12 A Yes, sir. 13 Q And then the next information is "Vapor Suppression (for 14 Longer Insecticide Kill Life)?" 15 A Yes, sir, I see. 16 Q Does that reference Aroclor 12 -- I'm sorry 5460? 17 A Yes, sir. 18 Q And at the bottom of that section it references, Aroclor 19 5460 is also recommended for non-crop insect 20 formulations containing chlordane, aldrin and dieldrin. 21 The other resinous Aroclor products (1254, 1260, 1262, 22 4465 and a 5442) also nonvolatile and sticky or tacky, 23 likewise merit evaluation as insecticide extenders? 24 A Well, yes, but Aroclor 5406 is not a PCB. 25 Q 1254 is? 1 A Well, 5460 is the one that's recommended. They said 2 others. 3 Q Well, sir, is -- 4 A I'll read this. 5 Q Is 1254 listed as one of the products that can be used WATER PCB-SD0000048240 6 in that application? 7 A No, it is not. It said "merit evaluation" to see 8 whether it works or not. 9 Q I see. And did your company make that reference to the 10 1254 because you thought it could have that application? 11 A I don't know why they made such a recommendation. 12 Q In your estimation was that an inappropriate 13 recommendation? 14 A Yes, I don't believe it ought to be. I don't even know 15 if it works. 16 Q Do you think your company would make recommendations for 17 use of its products in its brochures like that without 18 having some belief that it would work? 19 A Well, remember, they did not recommend it for use. They 20 21 22 23 24 25 1Q 2 3 4A 5 6 7 recommended it to be evaluated. The one that was not used was not a PCB, it was a terphenyl, so that's the only one they recommended. (Change in reporters.) With regards to the terphenyl -- By the way, did your company do some environmental testing for the terphenyl prior to making this recommendation? I do not recall any, but I believe the terphenyls were recommended because of the analysis of the product and the diminution of the use of the product, lesser amount of the material used in the Pydraul. WATER PCB-SD0000048241 8Q 9 10 A 11 Q 12 13 14 A 15 Q 16 17 18 A 19 Q 20 A 21 22 Q 23 A 24 Q 25 A 1Q 2A 3 4Q 5 6 7A 8Q 9A 10 Q Did your company ever do any environmental testing for the terphenyl? I don't know if they did or not. It is true, sir, that as of 1969 your company understood that your customers perceived PCBs to be harmless? Oh, I don't think so. And do you believe that your company believed -- understood that the PCBs would be sprayed into drains? I don't ever recall -- Or washed down the sewer? I -- I said I do not -- I have never heard of PCBs being sprayed into grain. No, I am sorry, drains. Drains with a D. Drains? Yes. Sprayed into a sewer, you mean? Yes. I don't ever recall seeing that recommendation, that you spray PCBs into drains. Not the recommendation but that your company was aware that that happened, that was one of the things that was happening with its product? I do not know anything about that. How about that it was being washed down sewers? I do not know -- How about -- WATER PCB-SD0000048242 11 A 12 13 14 15 16 17 Q 18 19 20 A 21 Q 22 23 24 A 25 Q 1 2 3 4 5 6Q 7 8A 9Q 10 A 11 12 13 -- how much -- You have to quantify something. I mean, obviously somebody who sells a product that there is a possibility -- If there is a leak, it's liable it's going to be washed out or picked up by kitty litter, or something else. I myself, of my own knowledge, do not know anything about that. Do you know anything about your PCB fluids being used as a constituent which was dumped on dirt roads as a dedusting agent? No, sir, I do not. I would like to show you, sir, what has been -- By the way, so the jury understands, I'm talking loud because -- I have a small hearing -- Okay. It's not that I'm mad at you. Would you be kind enough to turn to Page 7 of this exhibit. THE COURT: What number? MR. CARLSON: I am sorry. It's Exhibit 24 . MR. CARLSON: And at the bottom, Item No. 4 for "Industrial," you'll see the section that I'm making reference to. Yes, sir. And were you aware of this information before? This is a rough draft, and I do not -- rough draft dated 11-10-59. I am still referring to Plaintiff's Exhibit 24. And I do not know what showed up in the final draft. So I do not know the veracity of this WATER PCB-SD0000048243 14 15 16 17 18 19 20 21 22 23 24 25 Q 1 2 3A 4Q 5 6 7A 8Q 9A 10 Q 11 A 12 13 14 15 Q 16 particular statement. I am looking to see who wrote it even. MR. McDEVITT: For the record, it's '69. MR. CARLSON: It's 1969 not 1959. We all agree on that. THE WITNESS: Okay. It's 69. It looks to me more like '59, but I will agree it's '69, yes, sir. MR. CARLSON: I think we have had this discussion before. With another witness. MR. CARLSON: In any event, whether or not it's a final draft or a rough draft, someone at Monsanto believed that that information was valid information? Yes, someone. But I don't know who it was. I see. But -- And if this information was valid information, your company knew that PCBs were getting out into the environment? If this -- Let me find the page again. Sure. What page did you refer me to? Page 7? 7? If this is true, that these fluids were generally being sprayed into drains, washed down sewers and generally regarded as harmless -- What was your question now? Your company was aware that PCBs were out in the environment? WATER PCB-SD0000048244 17 A 18 19 Q 20 21 A 22 23 Q 24 A 25 Q 1 2A 3Q 4 5 6A 7 8 9 10 11 12 Q 13 A 14 15 Q 16 A 17 Q 18 19 Yes. I never said that we did not accept the fact that PCBs were in the environment. Okay. When was the first time Monsanto attempted a biodegradation study of PCBs? I do npt recall that because at the time we spoke to Dr. Risebrough, and we were -- I am going to have to ask you to limit your response. I don't know. Do you recall a biodegradation study being done by Monsanto while you were still employed there? I don't recall that either. You do know that a biodegradation study could have been done as early as the early 1960s using the detergent protocol, though; do you not? No, because I do not -- You are comparing a product -- You are using a product that you could -- that is water soluble that you are looking for a phosphorous atom. In PCBs I do not believe that the technology was such in the year you've mentioned, '61, early '60s - Early '60s. -- that we could find PCBs in the limits that would -- might be present. Present where? In the environment. I understand. I don't want to address that. What I want to know is could you do your own biodegradation study, a controlled study? WATER PCB-SD0000048245 20 A 21 22 Q 23 24 25 A 1 2Q 3 4 5A 6 7Q 8A 9Q 10 A 11 12 Q 13 14 A 15 16 17 18 19 Q 20 21 A 22 Q But to biodegrade, to do biodegradation studies, you have to be able to find out how much it biodegrades. Understood. Are you aware that Mr. Papageorge has testified in this case that your company by the early '60s could have done such studies? Well, that is outside my expertise. expert in biodegradation. I am not an I see. Have you read the studies which discuss the effects of PCBs on the nervous system of test animals? May I see the study? I don't know what study you're referring to. Do you recall reading any such studies? No, I don't. I don't recall it but -- All right. -- if you show it to me, I'll be happy to tell you if I read it. Are you aware of any studies that have found that PCBs accumulate in brain tissue? I have read studies that show that there is PCB present in the brain as well as the tongue and intestine, but it is not at a very high level. The high levels are the liver, the intestine, the bladder. Are you aware of studies which say PCBs are present in mother's milk? Yes. Human milk? Are you aware of studies that have WATER PCB-SD0000048246 23 24 25 A 1 2Q 3 4 5A 6 7Q 8A 9Q 10 11 A 12 Q 13 A 14 Q 15 A 16 Q 17 A 18 Q 19 20 21 A 22 Q 23 A 24 Q 25 A addressed the effects of PCBs on the offspring of mothers that have been exposed? If you show me the study, sir, I will be happy to comment on it. I do not recall them right now. Do you recall the studies looking at the subject of the birth weight of children born to mothers who have been exposed to PCBs? Yes, sir. You mean the Japanese PCB with the contaminants they have? No. No, I am sorry, U.S. studies. Would you repeat that sentence. U.S. -- United States studies that have looked at the effect of PCBs on birth weight? Birth weight? Yes. Yes, sir, I recall some studies like that. Do you recall reading the Jacobson work? I am sorry. I didn't hear you. Do you recall reading any work by Jacobson? No, sir, I don't recall that. Do you have a recollection of reading studies about the effects of PCBs on the ability of primates, monkeys, to reproduce? Yes, sir. And whose work do you recall reading? Well, Monsanto did some work on that. Was that published? I don't know. That happened after I left. I -- It WATER PCB-SD0000048247 1 2Q 3A 4Q 5A 6Q 7 8 9 10 A 11 12 Q 13 14 15 A 16 Q 17 18 A 19 Q 20 A 21 22 Q 23 24 25 1A 2Q 3A didn't happen during my time. I just do not know. Who did that work? I don't know. I heard anecdotically that they did. None of us have heard about it. Maybe I'm wrong. Well, let me just probe this a little bit because it's of some interest. Dr. Harbison, I believe, was asked to look at some monkey reproduction studies. Was he involved in that? I don't know. As I told you, I never saw a paper. All I know is something -- hearsay. Okay. Have you seen or read studies on the effects of PCBs and their interfering with the ability of pheasants to reproduce? No, I have -- But that would not be surprising. Have you read studies about the effects of PCBs on mink? Yes, sir, I have. Do you recall - I do not I have not read the studies. I have heard about it. Okay. With regards to the people that you examined at Monsanto that you and Mr. McDevitt talked about, do you have a follow-up on the incidence of cancer for that group? That individual group? Yes. Well, no, sir. I have not been connected with WATER PCB-SD0000048248 4 5 6 7Q 8A 9Q 10 A 11 12 13 14 Q 15 A 16 Q 17 A 18 Q 19 A 20 Q 21 A 22 Q 23 A 24 Q 25 A 1Q 2 3A 4Q 5 6 Monsanto since the two years afterwards, but there have been cancer studies at that plant after I left, and these individuals were included in it. Okay. But you haven't seen the results of that? Beg your pardon? You have not seen the results of that? Yes, I have seen the results of the exact epidemiological study that included those PCB workers, and there was no increased incidence of cancer. The exact work was the dioxin study; was it not? No, it was not a dioxin study. Did Zack do a dioxin study as well? I do not know. Zack occurred after my time. Okay. But I do not recall seeing any dioxin study. How are PCBs classified by the EPA? Potential or possible human carcinogen. Are they classified as a B2? Beg your pardon? As a B2 carcinogen? I do not know what the B2 is. Okay. You don't know if that's a probable carcinogen? I don't know. Okay. With regard to the information that your company had about -- Strike that. Were you aware of a study that was done WATER PCB-SD0000048249 7 8 9A 10 Q 11 A 12 Q 13 A 14 15 Q 16 17 18 19 A 20 Q 21 22 23 A 24 25 Q 1 2 3 4A 5 6 7Q 8 9A in 1961 on the effects of Aroclor 1242 on baby chicks? May I see it, please. First of all, I want to know if you remember it. I remember it vaguely. Okay. But I would be happy to refresh my memory by reading it over. Well, Exhibit 210 has eluded me again. I would like to show you what's been marked as Plaintiff's Exhibit 210 and see if that's the same study that you were making reference to. Yes, it is. And, as a matter of fact, your company had correspondence from the Food & Drug Administration after this study was published; didn't it? Well, I don't recall that, but this has nothing to do with the Food & Drug Administration. This study. I didn't say it did. I am just saying you got -- you received a call -- or, if you don't remember, you don't remember -- about receiving a contact with the Food & Drug Administration as a result of this study? No, I don't -- certainly don't recall any -- This is a study in 19 -- I don't see the date but sometime in the '60s. I don't recall that at all. You'll see the date, I believe -- It's on the top. It's May 3rd, 1961. Mr. Carlson, it isn't on mine. WATER PCB-SD0000048250 10 Q 11 A 12 Q 13 A 14 15 16 Q 17 18 A 19 20 21 Q 22 23 A 24 25 1Q 2 3A 4 5 6Q 7 8 9A 10 Q 11 A 12 Q It's fairly small print. Oh, I see. Sorry. Okay. That's another problem. Yes, it's received for publication May the 3rd, '60 -- I'll take your word. '61? That's right. And you do recall that the Aroclor 1242 was found toxic to the chicks? Let me read it. It was found moderately toxic at 200 parts per million and highly toxic at 400 parts per million, yes, sir. Okay. Was your company aware of that information when it was published? I wasn't aware of it. I don't know if anybody else was. This is a poultry science -- poultry magazine. It was certainly not one that I read over. Okay. At what temperatures are furans formed in the heating of PCBs? There is a window between roughly 600 and 800 degrees centigrade, and after that is exceeded, the furans are destroyed. So that if you're in that window of 600 to 800 degrees centigrade, there is the potential for the creation of furans? Yes. And if the fire stays just at that temperature. And furans are significantly more toxic than PCBs? Yes, they are. Did your company do studies of the toxicity of furans WATER PCB-SD0000048251 13 14 A 15 16 17 Q 18 19 20 21 A 22 23 24 Q 25 1A 2Q 3 4 5 6 7A 8 9Q 10 11 12 A 13 Q 14 A 15 as a separate study? No. By that time -- By the time furans were discovered to be a contaminant of some industrial chemicals, the toxicity was pretty well established. Did your company at any time advise the people that had Pydraul fluids with PCBs that they couldcreate furans if the temperature was within this window that you mentioned? We told them not to breathe them at elevated temperature. We didn't want them to breathe them whether there was furans in there or not. I understand that. Did you ever tell them that there were furans present? I do not recall whether we did or not. With regards to the handlingmessage that was on that Pydraul selector bulletin, there were specific guidelines available by a standards association for PCBs -- strike that -- that were applicable to workers exposed to PCBs in the workplace? I don't know, and I don't know what date such standards were. I'll happy to look at them. But you're not aware of an industrial hygienist's association that had promulgated or had made up standards for PCB exposure? You mean industrial hygiene? Yes. Oh, certainly they took our data -- The American Conference Of Government Industrial Hygienists took WATER PCB-SD0000048252 16 17 Q 18 A 19 Q 20 21 22 A 23 Q 24 A 25 Q 1 2 3 4A 5 6Q 7 8 9 10 11 12 13 A 14 Q 15 16 17 18 A our data and used them as their standard, yes, sir. And that was for PCBs? Yes, sir, that was for 1242 and 1254. But your Pydraul fluids, the labels, at least to May of 1970, did not advise your customer that they had PCBs, did it? No, but that was -- we did not -- That's -- The answer is no. Thank you. It is true, sir, is it not that if one reaches a concentration of PCBs that there is a development of this dermatitis or chloracne, that there is also systemic poisoning? You have two questions. Please will you break it down. Let me ask you this way -- Or, let me make this statement to you and see if you agree. "Aroclors can give rise to dermatitis when contacted with the skin. Inhalation of vapors is usually followed by systemic poisoning." You're right, it is two separate things. Do you agree with the statement that inhalation of vapors is usually followed by systemic poisoning? No, of course not. I would like to show you what has been marked as Plaintiff's Exhibit 731. Would you be kind enough to review that so you can familiarize yourself with the document. Yes, sir, I read it. WATER PCB-SD0000048253 19 Q 20 21 A 22 Q 23 24 A 25 Q 1 2A 3 4Q 5 6A 7 8Q 9A 10 11 12 13 14 15 16 Q 17 18 19 A 20 Q 21 A On the bottom of Page 5 is a reference to chlorinated biphenyl or Aroclors? Yes, sir. And the second sentence references, "Inhalation of vapors is usually followed by systemic poisoning"? Yes, sir. "The liver is affected by serious exposure to vapors"? Yes. This is an article -- This is an article written by a couple of chemists who have -- These are Monsanto people? This is a Monsanto document; is it not? Yes. But they are not experts. This is completely wrong. Your Monsanto people were completely wrong? These two were. Certainly. MR. CARLSON: Your Honor, I offer Exhibit 731 into evidence. MR. McDEVITT: That's fine, Your Honor. No objection. THE COURT: So received. MR. CARLSON: It also references that the "toxicity increases with increasing degrees of chlorination." Do you agree with that? It all depends what you are talking about. All right. The toxicity of vapors increases from 1242 to 54. WATER PCB-SD0000048254 22 23 24 25 1 2 3 4 5Q 6 7 8A 9Q 10 11 A 12 Q 13 14 A 15 16 Q 17 18 A 19 Q 20 21 A 22 Q 23 A 24 Q The toxicity of oral increases to -- with -- increasing concentrations of chlorine up to 1260, but the question of exposure has to come in. You cannot look at toxicity by itself. If you have 1268, which is a solid, the exposure of that is much more limited than exposure of a different PCB with lower chlorination. So you have to equate the toxicity with the exposure. The document provides that, "The proper protective clothing should be worn when handling Aroclors," correct? Well, yes. It depends how you're handling it. And, "Respiratory equipment should be used when vapor contact is anticipated"? Well, again -- I do not accept this -- Is that what the document -- Is that what your Monsanto's document -- No, it is not Monsanto's document. This is this chemist's document. This is not a Monsanto document. Would you turn to the second page of the document before you. Second page? Yes. Yes. It looks to me that it says, "St. Louis Research Report P-688." Does yours say that? We're on Page 2? Second page. Yes, sir. "March 23, 1956"? WATER PCB-SD0000048255 25 A 1Q 2 3A 4Q 5A 6Q 7 8A 9Q 10 11 A 12 Q 13 A 14 Q 15 A 16 17 18 19 Q 20 21 22 A 23 24 25 Q 1A 2Q Yes, sir. And about -- And it says, "Tentative Process For Continuous Chlorination Of Biphenyl"? Yes, sir. There is a job number? Yes, sir. Then it says, "Monsanto Chemical Company, Organic Chemicals Division, St. Louis Research Department"? Yes, sir. And the work was done by a Mr. Ellenburg -- or, an Ellenburg, a Simone, and it's written by R.A. Simone? Yes. Were they Monsanto employees? They were research chemists. Thank you. Who were making up a tentative process for continuous chlorination of biphenyl, and they put in information in here that they didn't know what they were talking about. Thank you. Well, in the plant you had, in areas where there was a potential for vapor, positive exhaust venting; did you not? Not in all places, no. We had exhaust ventilation over the filling area. We didn't have it over the pumps. Why did you have it over the filling area? Because the material was coming out hot into it. There was a potential for vaporization? WATER PCB-SD0000048256 3A 4Q 5 6 7A 8Q 9 10 11 12 13 A 14 15 Q 16 17 18 A 19 20 Q 21 22 23 A 24 Q 25 1 2 3 4A 5 Yes, it was vaporizing. And in order to keep your workers from being exposed to the vapors, you had the vapors drawn away by an air duct? Yes, sir. . When the die cast companies are using your fluids and pouring it into drums -- or, pouring it into containers, there is a potential for some vaporization or is the vapor pressure such that it won't occur? There is -- At room temperature there is no problem at all with vaporization. If the product comes in contact with the hot areas of the die cast machine, you do have that potential, though; do you not? I have never been in a die cast operation, so I cannot tell the extent ofexposure. What studies are you aware of that your company did with regards to how die cast companies would be using the 312 fluid before it was put on the market? I don't know. You do agree with me that a chemical company that is going to manufacture a chemical should determine how that fluid is going to be used or the environment that it's going to beused in before selling it; do you not? No. They are not telling a person how to run his plant. They are offering a product, and they are WATER PCB-SD0000048257 6 7 8 9 10 11 12 13 14 Q 15 A 16 17 18 Q 19 20 21 22 23 24 25 1 2 3 4 5 6 7Q 8 telling the customer what the safe handling procedure should be. And if a safe handling -- And they expect the customer, the manufacturer, to use the safe handling precautions that we told them about, which is do not breathe the fumes at elevated temperature or in confined spaces, do not get it bn your skin. And that works, because there have not been any reports of any ill effects from the uses of PCBs. You're talking about acute ill effects, are you not? With the exception of the ones I said. There have been no chronic effects by -- as reported by Dr. Kimbrough. PCBs by the EPA are probable carcinogens. We have agreed on that. Or, I guess, there is testimony in this case already to that effect. If we have someone who has cancer today in our plant, you can't tell me that the PCBs did not contribute to the formation of that cancer, can you? MR. McDEVITT: I am going to object to the form of that question, Your Honor. speculative. It's totally THE COURT: I am going to allow it. THE WITNESS: You cannot prove a negative. I cannot tell a typist if she developed a cancer due to the cleaning fluid on her typewriter. MR. CARLSON: Then you have to go back and take a look at the best evidence available, and in this case the EPA has WATER PCB-SD0000048258 9 10 A 11 Q 12 A 13 14 15 16 IV Q 18 19 A 20 Q 21 A 22 23 24 25 1Q 2 3A 4 5 6 7 8 9 I 10 found it to be a probable carcinogen? No, that is not the best evidence. I see. The best evidence is by Dr. Renate Kimbrough of the U.S. government who has stated repeatedly in the last two years that there have been -- aside from occasional cases of chloracne, there have been no chronic illness caused by PCBs. Mr. -- Dr. Kelly, is Renate Kimbrough an epidemiologist? I think she's accepted by the government as one. As an epidemiologist? I think so. She's been working with it for a long time. (Switch in reporters.) Have you seen epidemiological studies by Dr. Kimbrough on PCB ever? I have not. MR. CARLSON: Thank you. THE COURT: May I see the lawyers in chambers? MR. CARLSON: (Whereupon, a brief recess was taken.) THE COURT: We're going to let you go home. Be back at nine o'clock. We're going to be here until don't know how long tonight. WATER PCB-SD0000048259 11 I think you ought to be aware that we're going to 12 make every attempt possible to get the final arguments 13 in tomorrow. I'm not sure how long that's going to 14 take. Then I will instruct you on Thursday morning. 15 That shouldn't take very long. That is the shortest, 16 half hour, forty-five minutes maybe, and then you begin 17 deliberating on Thursday morning some time. That is the 18 best up-to-date guestimate we've got. In fact, that's 19 the way it's going to be. 20 (Whereupon, the jury was excused.) 21 (Whereupon, The Court stood recessed until 22 May 15, 1991 at 9:00 A.M.) 20 CROSS EXAMINATION 21 MR. CARLSON: 22 Q Good morning, sir. 23 A Good morning, Mr. Carlson. Is this on? Can you hear 24 me? 25 Q Yes, it is. Can you hear me? 1 A Yes, indeed, very well. 2 Q Did your company have some dialogue with the Food & Drug 3 Administration when tolerance for PCBs in some foods 4 were set? 5 A They may have, but I was not -6 Q A participant? 7 A --a participant in that. 8 Q Do you recall that in 1973 temporary limits were set for WATER PCB-SD0000048260 9 PCBs in milk of 2.5 parts per million? 10 A Yes, sir. 11 Q Do you recall that in manufactured dairy products it was 12 also 2.5 parts per million? 13 A Yes, sir. 14 Q Do you recall that in poultry it was five parts per 15 million? 16 A Yes, sir. 17 Q Do you recall in eggs it was .5 parts per million? 18 A Yes, sir. 19 Q Do you recall also that in animal feed for 20 food-processed animals it was 0.2 parts per million? 21 A Well, I'll sure you're reading it correctly, sir. I 22 don't remember all those figures, but I recall that 23 limits were set, tolerances were set. 24 Q Just one other one then, and that is do you recall that 25 for infant or junior foods the tolerance was 0.2 parts 1 per million? Do you recall that? 2 A Well, as I said, I'm sure that's what it was, but I do 3 not recall the exact figures. 4 Q Do you recall that at a later time the allowable 5 concentrations were decreased by the Food & Drug 6 Administration from the originals that were set? 7 A I believe that's correct. I do not know the details. 8 Q Dr. Kelly, would you be kind enough to look over Exhibit 9 979 just to familiarize yourself with it, please. 10 A Yes, sir, I've familiarized myself with it. WATER PCB-SD0000048261 11 MR. CARLSON: Your Honor, we would offer 12 Exhibit 979 into evidence as one of Monsanto's 13 documents. 14 MR. McDEVITT: No objection. Your Honor. 15 THE COURT: So received. 16 MR. CARLSON: 17 Q And this particular document, sir, is dated November 18 14th of 1955? 19 A Yes, sir. 20 Q And it's from Jack Garrett? 21 THE COURT: Jack who? 22 MR. CARLSON: Jack Garrett, G-A-R-R-E-T-T. 23 Q Do you recall who Mr. Garrett was? 24 A Yes, Mr. Garrett was a member of the Medical Department. 25 He was our second industrial hygenist that was engaged. 1 Q And this particular memorandum had to do with Department 2 246, or the Aroclor Department, did it not? 3 A That is correct. 4 Q And it provided that, "It is the opinion of the Medical 5 Department that the eating of lunches should not be 6 allowed in this department for a number of reasons." 7 A Yes, sir, that's what it says. 8 Q And would you be kind enough just to read us the reasons 9 that were indicated? 10 A I'm sorry. 11 Q Would you be kind enough just to read us the information WATER PCB-SD0000048262 there? Yes. He says, M(1) Aroclor vapors and other process vapors could contaminate the lunches unless they were properly protected. (2) When working with this material, the chances of contaminating hands and subsequently contaminating the food is a definite possibility. (3) It has long had been the opinion of the Medical Department that eating in process departments is a potentially hazardous procedure that could lead to serious difficulties. While Aroclors are not particularly hazardous from our experience, this is a difficult problem to define, because early literature work claimed that chlorinated biphenyls were quite toxic materials by ingestion or inhalation. In any case, where a workman claimed physical harm from any contaminated food, it would be extremely difficult on the basis of past literature reports to counter such claims." And this was in 1955, sir? Yes, sir. And that particular memo is drafted after the work that was done by Scientific Associates in 1951, do you recall that? Well, yes, this was '55. Okay. Thank you. Would you be kind enough, sir, to look at Plaintiff's Exhibit 737 for me? Yes, sir. WATER PCB-SD0000048263 14 Q This particular subject is epidemiology of people at the 15 Kummrich plant? 16 A Yes, sir. 17 Q And it is dated August 27th of 1976? 18 A Yes, sir. 19 MR. CARLSON: We'd offer Exhibit 737, Your 20 Honor. 21 MR. McDEVITT: It may be in evidence. 22 MR. CARLSON: It may be. 23 MR. RUNNING: It is in evidence. 24 MR. CARLSON: Oh, you're right. 25 Q Have you seen this particular memo before, sir? 1 A I can't answer that, because I'm not sure this was 2 written in 1976, but I believe I've seen it. Two years 3 after I retired. 4 Q How many times have you testified, sir? 5 A Testified you meanincourt or bydeposition? 6 Q Both. 7 A Less than ten. 8 Q Okay. Do you think -- well, do you remember how it 9 happened to be that you saw this particular memorandum a 10 couple of years after you retired? 11 A Well, it was more than a couple years. This was written 12 two years after I retired. It was the first -- I don't 13 know which one of the depositions I saw it in, but this 14 is really only half the study, because the other part WATER PCB-SD0000048264 15 when -- 16 Q The question was, did you see it a couple of years after 17 you retired? 18 A Not a couple years. I don't know how long after I 19 retired. 20 Q All right. That's fine. This particular memorandum 21 indicates that the experience of lung cancers for the 22 group was higher than that which was expected. That's 23 what this memorandum says, does it not? 24 A That's what it says. As I said before -- 25 Q That's fine. 1 A -- that's not the wholetruth. 2 Q There's other information about that, and we've got 3 other witnesses. 4 A All right. 5 Q Would you be kind enough to look at Exhibit 767 for us. 6 A Yes, sir. 7 Q You'll note that is a June 30, 1971 Industrial Bio-Test 8 statement on Aroclor products? 9 A Yes, sir. 10 MR. CARLSON: We would offer Exhibit 767 into 11 evidence, Your Honor. 12 MR. McDEVITT: Excuse me just a minute. 13 MR. CARLSON: Sure. 14 MR. McDEVITT: No objection, Your Honor. 15 THE COURT: So received. 16 MR. CARLSON: WATER PCB-SD0000048265 17 Q Dr. Kelly, there were a number of studies that were 18 canceled, were there not? 19 A Yes, sir. 20 Q This particular document indicates that there were four 21 subacute fish studies that were canceled? 22 A Yes, sir. 23 Q Were those studies canceled before or after you had the 24 results of the fish studies that were presented 25 yesterday? 1 A Well, I don't know. 2 Q Did you participate in the decision to have those 3 studies canceled? 4 A I can't recall that I did or not. 5 Q There are also two chicken reproduction studies that 6 were canceled, correct? 7 A Yes, sir. 8 Q Did you participate in the decision not to have -- or 9 strike that. Did you participate in the decision to 10 have those studies canceled? 11 A Well, I participated in the decision to do chicken 12 hatchability studies, and I do not recall what a chicken 13 reproduction study is, or whether they have eggs, but we 14 did do a chicken reproduction study in 1970, and we did 15 another one in 1973, so I do not know, recall why these 16 were canceled, but that doesn't mean we stopped doing 17 chicken reproduction studies. 18 Q The chicken reproduction studies that were canceled WATER PCB-SD0000048266 19 here, do you recall were those after you had gotten the 20 results of the effects of 1242 on the hatchability of 21 eggs? 22 A It must have been, because our first one, the first 23 study was in 1970 and our second study where we did the 24 chicken study again was in 1973. 25 Q Do you recall that when the second study was done the 1 Aroclor that was sent over to Industrial Bio-Test was 2 cleaned up? 3 A No, sir, I don't know that at all. I think it was 4 run-of-the-mill Aroclor. 5 Q Would you be kind enough to look at Plaintiff's Exhibit 6 766 for me? 7 MR. McDEVITT: What is the date of that, Don? 8 MR. CARLSON: That I don't know. Okay. 9 Q Dr. Kelly, have you had a chance to look at Exhibit 766? 10 A Yes, I have. 11 MR. McDEVITT: With regard to that exhibit, 12 Your Honor, I've tried to determine the date. It's an 13 undated document. I don't know what was around it with 14 the regard to the other numbers, but until we know what 15 the date is, it's hard to determine if it has any 16 relevance. 17 THE COURT: Let's me see once, Doctor. Thank 18 you. 19 Well, I suppose the easiest way to find out is to 20 ask the witness when the last chicken studies were done. 21 MR. CARLSON: Your Honor, I can represent to WATER PCB-SD0000048267 22 The Court that fell in a group of documents -- that is 23 7982 -- and it fell in a group of documents produced by 24 Monsanto from 7937 to 8157, which are the IB test 25 reports dated November 12, 1971. So I don't know if 1 that helps. 2 THE COURT: That's true. Then I would agree 3 with plaintiff that this is relevant. 4 MR. CARLSON: 5 Q Dr. Kelly, were you aware that the FDA had done chick 6 embryo studies? 7 A Well, I'm not familiar with the details. I don't know 8 what the details of this were. I'd like to see the 9 paper that they did. 10 Q The question was, are you aware of whether or not they 11 did check embryo studies at the FDA? 12 A I recall at some time they did some studies. I'm not 13 aware of the details. I do not recollect the details. 14 MR. CARLSON: Your Honor, I would offer 15 Exhibit 766 as one of the Monsanto documents. 16 MR. McDEVITT: Your Honor, it's not one of our 17 documents. It's from another company. Could we just 18 see the document, where it came from? 19 MR. CARLSON: It came from the Industrial 20 Bio-Test. 21 MR. McDEVITT: To us? 22 MR. CARLSON: Yes. 23 MR. McDEVITT: All right. Your Honor, I have WATER PCB-SD0000048268 24 no objection. 25 THE COURT: So received. 1 MR. CARLSON: 2 Q Dr. Kelly, this particular report from Industrial 3 Bio-Test indicates that the FDA had run a chick embryo 4 study on the Aroclor 1242. 5 A Yes, sir. 6 Q And at two parts per million it was 90 percent 7 mortality? 8 A But I don't know the details of it. I don't know 9 whether they injected it into the embryo or they fed it 10 for months. I just don't know. 11 Q I understand, but for this particular study there was a 12 90 percent mortality at two parts per million, that's 13 what was reported? 14 A That is what they've written down here. As I said, I 15 don't know. 16 Q The details of that you don't know? 17 A No, and I cannot comment on whether it's accurate or 18 not. , 19 Q But this was information that came to you from your own 20 testing company, Industrial Bio-Test. You see that, do 21 you not? 22 A I don't know. I don't know if I ever saw it before. 23 Q Do you see the top of the page, it says "Industrial 24 Bio-Test," their letterhead? 25 A Yes. 1 Q That's the same letterhead they used in sending their WATER PCB-SD0000048269 2 reports to you? 3 A Yes, but that doesn't mean -- 4 Q That's fine. 5 A -- they sent it to us. I don't know. I never saw it 6 before. Maybe they did. 7 Q Okay. 8 Q Did you become aware of studies that were done by a 9 company to determine if PCBs were in the waterways of 10 the country? 11 A By Monsanto? 12 Q Yes, or by others for Monsanto, or by others. Were you 13 aware of such work being done? 14 A Well, I know that we are -- will you give me the time 15 frame of this? 16 Q Prior to February of'71. 17 A I can't be sureabout the time frame. I know at some 18 time they investigated the outflows of some of our 19 plants and determined the presence of PCBs in those 20 waterways, but I do not recall whether they went 21 cross-country looking at all the rivers. 22 Q Do you recall that 1242 was found in the water outside 23 your Krummrich plant? 24 A Yes, sir. 25 Q And do you recall that the 1242 was found in the water 1 outside your Queeny plant? 2 A Yes, sir. 3 Q Do you recall that 1242 was found in the water outside 4 your Anniston plant? WATER PCB-SD0000048270 5 A Yes, sir. 6 THE COURT: What was the first one, Krummrich. 7 MR. CARLSON: Pardon me. Krummrich. 8 THE COURT: How do you spell that? 9 MR. CARLSON: K-R-U-M-M-R-I-C-H. 10 Q And do you also recall that 1242 was found in water 11 outside die casting facilities that were looked at? 12 A I do not recall that at all. 13 Q Do you recall that they looked, for example, outside of 14 the General Motors die cast facility in Bedford, 15 Indiana? 16 A I do not recall that. 17 Q Would you be kind enough to look at Exhibit 887 for me? 18 A Yes, sir, I've read it. 19 Q Had you seen this particular document before today? 20 A I must have in 1961. I don't recall getting it, but I'm 21 on the list of the carbons. 22 Q This document relates to the question of the Food & Drug 23 Administration doing some investigation regarding 24 Aroclors as a result of a chick edema study that was 25 done? 1 A Yes, sir, it describes that Dr. Horwitz believed "that 2 Aroclor 1242 used in painted chicken coups caused chick 3 edema. At that time we transmitted a sample of 1242 to 4 Horwitz, who was unable to find compound X in the 5 sample, and this seemed to give the Aroclors a clean 6 bill of health." WATER PCB-SD0000048271 7 Q But then the study itself, when we went through it, it 8 showed that 1242 was reported to be the agent that 9 caused chick edema in the study itself, did it not? 10 A You mean is this the one where the chickens were -- 11 chicken coups were painted with a paint? 12 Q That's right. 13 A And the chickens ate the paint before it got dry? 14 Q I don't know how they ate the paint, but they got 1242. 15 A Yes, they ate thepaint. 16 Q The bottom of this particular document references 17 Aroclors as extenders in insecticides, does it not? 18 A Yes, it does. 19 Q Would you be kind enough to read that for us? 20 A "What is our experience on the use of Aroclors as 21 extenders in insecticides? I am aware that Beltsville 22 in 1959 indicated one to two percent Aroclors in 23 insecticidal formulation such as Lindane for non-crop 24 use seemed to be quite effective. Do we have any later 25 data in this area? I will be in touch when the 1 situation gels here." 2 Q So that in 1961, it is fair to say, that your company 3 was aware that people were looking at your Aroclors for 4 use as insecticide extenders? 5 A Well, as I said yesterday, there was an article by the 6 Department of Agriculture suggesting such a use, but we 7 had no knowledge of that. We did not have any actual 8 experience in the use of Aroclors as an extender. 9 Q Although it is true, fair to say that you have found WATER PCB-SD0000048272 10 that the Aroclors were, in fact, used as extenders? 11 A Well, Aroclors, the one they used was a terphenyl, it 12 was not a PCB. It was 54, not a PCB. 13 (Change in reporters.) 14 15 16 17 18 19 20 21 22 23 24 25 1Q 2 Well, it also referenced 1242 as being a potential candidate as the extender? 3A Well, we just had to evaluate it to see if it 4 worked. 5Q Before your company listed 1242 as a product in your 6 sales literature to use, did you do environmental 7 testing to see what the effect of it may be? 8A Would you repeat the question, please? 9Q Sure. Before your company listed 1242 as a 10 potential candidate to use as an insecticide 11 extender in your sales literature, did you do 12 environmental testing? WATER PCB-SD0000048273 13 A 14 15 16 Q 17 18 A 19 Q 20 21 A 22 Q 23 24 A 25 1 2 3 4 5 6 7 8Q 9 10 11 A 12 Q 13 14 A 15 No, I believe we followed the lead with the government. They were the ones that first recommended it. So the answer is your company did not do any environmental testing? That's correct. Would yoube kindenough to look at Plaintiff's Exhibit 865 for me, sir? Yes, sir. I'veread it. Exhibit 865 is a letter to Otis Fancher from Elmer Wheeler? Yes, sir. MR. CARLSON: Your Honor, we would offer Exhibit No. 865 into evidence. MR. MCDEVITT: I'm just reading it. No objection. THE COURT: So received. What is the date on there? THE WITNESS: May 25th, 1970. MR. CARLSON: This particular letter has to do with 1242 that had been sent over to Industrial Bio-Test to run the chicken studies? Yes, sir. And then after the results of the chicken studies came back, it was requested that they be rerun? Well, we did some others in 1973 at different levels. WATER PCB-SD0000048274 16 Q 17 18 19 20 21 A 22 Q 23 24 A 25 1 2 3 4Q 5 6 7A 8 9 10 11 Q 12 13 A 14 Q 15 A 16 17 Q 18 In this letter, it references in the second paragraph, "This sample of Aroclor represents our current regular production which involves some cleanup instituted since the previous sample was made available to you," does it not? Yes, sir. And cleanup in that regard meant action that was taken to minimize the presence of furans? It was a manufacturing process. They were always striving for improvement, so in 1970, wewere improving our Aroclor over 1955. That is a natural progression in any organization. I don't know the details of what the cleanup was. In this particular case, the Aroclor that had been submitted to Industrial Biotest came from your production in 1969, did it not? I can't answer that, because I said on this letter, May 25th, this represents our current regular production. That soundslike the production in May of 1970. Right, but the previous study came from what production year? At the time we would send it to them, certainly. So that study was started when? I don't recall the exact date. It was obviously prior to this letter sometime. Can we agree that the word cleanup in that sentence means removing contaminants orattempting to remove WATER PCB-SD0000048275 19 20 A 21 22 Q 23 A 24 Q 25 A 1 2 3 4 5Q 6A 7Q 8 9 10 11 A 12 Q 13 14 15 16 A 17 Q 18 19 20 21 A contaminants? Well, it means to try to get as close to a hundred percent pure Aroclor as you could manufacture. Which is removable ofcontaminants? Yes, sir. Okay. However, thecontaminants, we were unable to look for furans. I do not -- we were unable to look for furans in 1970. We could not analyze for furans. There are other contaminants. Theremay be hydrochloric acids in there. We'll talk about furans in a little bit. , I'm just clearing that point up about contaminants. The second sentence of thisparagraph reads, "We would hope that we might find a higher no effect level with this sample as compared to the previous work," correct? Yes. And with this particular work that you were submitting, you were asking that they do a study with dietary levels of 2, 4, and 8 parts per million? Yes, sir. Thank you. You were aware when you were with the company thatthere werecertain strategiesthat were being utilized by Monsanto to stay in the Aroclor business? You're putting aconnotation on strategy, as though WATER PCB-SD0000048276 22 23 24 25 Q 1 2 3 4 5A 6Q 7A 8 9 10 Q 11 12 A 13 14 15 16 17 Q 18 19 20 21 22 23 24 that is something evil. Obviously there were plans to see that Aroclors were used in a responsible manner, and that would save the business. And one of the strategies that was employed was not to tell the Aroclor 312 -- strike that. -- the Pydraul 312 users that the Aroclor 1242 in that product damaged the environment? That was one of the strategies, wasn't it? No, it wasn't at all. Well, your company didn't tell the Pydraul 312 user? There were lots of telephone calls about various Aroclors from various people. We told the truth about it. But you didn't publicize it to your customer, did you? I don't know what you mean by publicizing. I'm sure that we have had sales representatives talk to the people about it. I don't know if they wrote bulletins about it. I don't know that. It certainly was no secret as far as I was concerned. Were you still at the company when a decision was made not to continue in the Aroclor business? MR. MCDEVITT: What document are you reading from? Why don't you just give him the timeframe? MR. CARLSON: 1975. MR. MCDEVITT: He was obviously - MR. CARLSON: WATER PCB-SD0000048277 25 Q 1 2 3A 4 5 6 7 8 9 10 11 12 13 14 15 A 16 Q 17 A 18 Q 19 20 A 21 22 23 24 Q 25 1 2 Time out. What I want to know is whether or not he participated in coming to that conclusion with the company when he was still there. No. I didn't participate in that. MR. CARLSON: Your Honor, we have a technical difficulty. Exhibit 2027 is in evidence. Exhibit 2027 does not appear to be in the papers before us. I have no explanation at this point. The court reporters are using them for transcribing and all sorts of things. I would just ask that we be allowed to use this copy. It was introduced for Mr. Papageorge. It's all right. We got it. Dr. Kelly, I'd like to show you a copy of Exhibit 2027 which is in evidence. Would you be kind enough to review that for me, please? Yes, sir. The date of that memorandum is what, sir? October 26, 1970. Would you be kind enough just to read us the first paragraph? "Recent data from Dr. J.P. Mieure's work indicates the presence of naphthalene in biphenyl and anthracene or phenanthrene and dibenzofuran in Santowax R used in the manufacture of Aroclors." Thank you. Would you also be kind enough to -- I'd like to have you also look at Exhibit 705. Just very briefly, sir, this is a document that is in evidence. It's a letter to Mr. Jenkins at Sprague WATER PCB-SD0000048278 Electric from Mr. Papageorge, and all I'd like to-do is to address your attention to the middle of the disposal section, where I've highlighted. Well, I don't want to pick one sentence out of the paragraph. Do you want me to read the entire paragraph? You can read it and familiarize yourself with it. I do want to ask you a particular question. That's fine. Yes, sir. Your company was aware in July of 1970 that incineration of PCBs at temperatures lower than 1600 degrees Centigrade could cause furans? Yes, sir. Above 1500, they were destroyed. I'm sorry. Is that Centigrade or Fahrenheit? Fahrenheit. And temperatures below 1600 degrees Fahrenheit occur in die cast companies? I don't know. Would you be kind enough to look at Exhibit 757 for me. Your Honor, while the witness is looking at the document, I would offer Exhibit 757 as one of the Monsanto documents. MR. MCDEVITT: No objection. THE COURT: So received. THE WITNESS: Yes, sir. MR. CARLSON: Dr. Kelly, it is true that in 1974, it was found that furans were present in the Aroclor 1242? WATER PCB-SD0000048279 Well, this is an analytical paper that I'm not qualified to comment on, especially since presuming the publication occurred after I left the company. It's a qualitative type. It doesn't mention how much is in there. I cannot comment on this, analytical wise. Dr. Kelly, it does read in the beginning of the second paragraph, according to Mr. Roach, he and his co-workers have isolated and identified CDF, which are chlorinated dibenzofurans, correct? Yes. In Aroclors 1016, 1242, and 1254, but not in Aroclor 1221, correct? It says the concentrations were low, one to ten parts per million. Furans are not something you want in your product, though, are they? That's correct. Would you be kind enough to look at Exhibit 752? We are just about done. Is this all of the paper? Is there a second page on this? I'm sorry. Did I just give you the second page? No, sir. Just the first page. You can have my second page. THE COURT: What is the number? THE WITNESS: 752. THE WITNESS: Yes. WATER PCB-SD0000048280 9 10 11 12 13 14' 15 Q 16 17 18 A 19 Q 20 A 21 Q 22 23 24 A 25 1 2Q 3A 4Q 5 6A 7 8 9Q 10 11 MR. CARLSON: Your Honor, I would offer Exhibit 752 as one of the Monsanto documents that were produced. MR. MCDEVITT: No objection, Your Honor. THE COURT: So received. MR. CARLSON: It is true, sir, is it not, that in May of 1975, it was found that dibenzofurans by chlorine number were found in the 1242 Aroclors at 2, 3, and 4? Two, 3, and 4. What was the rest of the question? Well, you see the table in the center? Yes, sir. Why don't you just go through and explain to us what that table represents with regard to the Aroclor 1242? Well, frankly, I don't know what the first one means. Aroclor 1221, dibenzofuran by chlorine number. Zero. Right. I don't know that. I understand. I asked you to address yourself to the Aroclor 1242. I'd have to make a presumption. I do not know, frankly, what he is talking about. That is an analytical situation. It's outside my depth. I see. Thank you. Were you aware that the presence of furans in PCBs were looked at for your Aroclors coming from the Anniston, Newport, and Krummrich WATER PCB-SD0000048281 12 13 A 14 Q 15 A 16 17 Q 18 19 20 21 22 23 24 25 1 2Q 3 4 5 6 7 8 9A 10 Q 11 A 12 Q 13 14 plant? When? At any time. I saw no reports of any such studies before I retired. I didn't see any since I retired. Are you aware of the -- never mind. I'm trying to get through this. With regard to the fish studies that Industrial Bio-Test did for you that you and Mr. McDevitt referenced, do you happen to have those before you, the four-day fish toxicity studies? MR. MCDEVITT: Which one are you referring to? THE WITNESS: I didn't touch any of these since yesterday. I don't know if I have it or not. MR. CARLSON: Okay. Would you be kind enough to turn to the third page and I believe the study was -- one of the studies in a group that was marked during your deposition, but quite frankly, I can't tell you what group it came from right now, but it is the IBT study of BTL-72-103 of November 17, 1972, for the record. Yes, sir. On the third page there is a summary? Yes, sir. And can you tell me, there is a reference on the table to the four-day TL50, in parentheses, (ppm). Can you tell us what that means? WATER PCB-SD0000048282 15 16 17 18 19 Q 20 21 22 A 23 Q 24 A 25 Q 1 2 3 4 5 6 7 8 9Q 10 11 A 12 Q 13 14 15 A 16 Q 17 A Yes, sir. What it means is the amount of parts per million that it took to kill half the bluegills or channel catfish after they were emersed in it for four days. And would you be kind enough to provide us with the. information as to the parts per million of the Aroclor 1242 that killed half of those fish? Point 24 -- 0.24 parts per million? For bluegills and 0.13 for channel catfish. Without going through all of the tables -- THE COURT: What is the exhibit number on that? Is there an exhibit number on it? THE WITNESS: I can't see it. MR. MCDEVITT: It's a group exhibit, Your Honor, if you want to know. I believe it's from Exhibit No. 1263. THE COURT: Okay, thank you. MR. CARLSON: Dr. Kelly, you recall, you've read the chicken studies that were done by IBT, have you not? Yes, I have. Generally, the IBT study demonstrates that at particular levels the 1242 Aroclor can affect the reproduction abilities of chickens? The hatchability of them. Yes. Yes. WATER PCB-SD0000048283 18 Q 19 20 21 22 A 23 Q 24 25 A 1Q 2A 3 4Q 5 6 7A 8 9Q 10 11 A 12 13 Q 14 15 16 A 17 Q 18 19 A 20 Q In this particular study, do you know how the concentration of Aroclor in the feed was made up? Do they do that by weight or by volume, or how do they do that? I don't know. This is a study, however, that could have been done in 1965, is it not? Yes, sir. There was an attempt to redo the study in 1973? There was an attempt -- we did the studyover at lower levels. And that was the study that you had done with the cleaned up material that we had referenced on that other document? That was a study that we did with the regular production run that we manufactured in 1973. Which the memorandum shows was cleaned up from the previous year or previous years? Well, it was an approved product, as we approve all our products. By 1970, were you selling 1242 in Pydraul at the time that you sent this material overtoIndustrial Bio-Test? Yes, sir. Do you remember when you stopped using the PCBs and went to PCTs? I don't recall the exact date, no, sir. Dr. Kelly, you made reference also to a 1248 study WATER PCB-SD0000048284 regarding the subdermal -- subacute dermal toxicity of 1248. Do you recall that? Yes, sir. And do you also recall that the work was done for the 1242, as well? Yes, sir. And do you recall that in those studies there were only two animals per group that were used, six total? Well, I'd have to look at the article that is here. Yes, sir, that is true. With regard to the work that was done in 1955 by the Kettering Laboratory, do you recall that work? Yes, sir. It is true, sir, is it not, that the animals involved in that study, most of them died of pneumonia? Yes, sir. And that same group of animals was then used for the follow-up study? Will you repeat that? Sure. That same group of animals that was shown to be sick in the first study was used in the follow-up study? I don't know. May I see the report? Sure. I'll have to go through this entire report. I can see the first statements say that the lesions, the WATER PCB-SD0000048285 disease of the animals were those of frank pneumonia, the ones that died. Now, I'd have to go through here and see if he's got the ones -- the rest of the animals that got well, he used them over. I don't know. Do you want me to go through and see that? If Mr. McDevitt wants you to do that, I'm sure he will ask you. The disease was not related to the Aroclors. But sick animals were being -- there was a group of animals that were showing signs of disease that were being used in the study. That was the population of those animals? Well, no. You don't start with sick animals, obviously. That's right. But animals can get sick during the course of a study. Now, the recommendation about not eating in the workplace came before or after the work at Kettering? Well, the work at Kettering was in '54, and I don't know when Jack's letter was. I suppose you have a date. That is in '55. It came after. Now, that information about not eating in the workplace where the Aroclors was present was WATER PCB-SD0000048286 2 3A 4 5 6 8 9 10 11 Q 12 13 A 14 15 Q 16 17 18 A 19 Q 20 21 A 22 23 24 25 1 2 3Q 4A important information for your employees? No, it really wasn't. That was the result of a union hassle, who wanted the people to eat at their place of -- at their work station, so Jack Garrett sort of formulated this letter saying it's not a good idea to eat where chemicals are, and that is the basis for this letter, so it was not to warn these people in my opinion, of any particular contamination of lunches. Is that the same reason you put hoods over a drum because of a union hassle? Oh, no. That was a spot place where it could be controlled. Dr. Kelly, unless Dr. Pendergast tells me I have something else for you, I have no further questions. Can you hold on? I'm sorry. I couldn't hear you. Just hold on. One second. You don't think it's a good idea for people to ingest Aroclors, do you? Oh, of course not. MR. CARLSON: That's all. Thank you very much. THE COURT: Just a second. THE COURT: Redirect. REDIRECT EXAMINATION: MR. MCDEVITT: Dr. Kelly, you were shown yesterday Exhibit 731? Yes, sir. WATER PCB-SD0000048287 5Q 6A 7Q 8 9 10 A 11 Q 12 13 14 A 15 Q 16 17 18 A 19 20 Q 21 22 23 A 24 Q 25 A 1 2 3Q 4 5 6A 7Q Do you have that in front of you? Yes, I do. You were asked various questions about that, what appears to be a tentative process for continuous chlorination of biphenyl. Do you recall that? Yes, sir. And you were asked to read some quotes from the second page of that exhibit, which is really Page 5, apparently, of a document? Yes, sir. And the things that you quoted, where did those materials come from as indicated on that page of the exhibit? They came from a publication by Sax, which is entitled, "Handbook of Dangerous Chemicals." And then if you would look at the last page of that document, Dr. Kelly, would you just read the material on the last page, verbatim. Yes, sir. Would you dothat out loud? "These materials have been handled for many years in Monsanto, so no difficulty is expected in the operation of this process." You were asked some questions this morning regarding Exhibit 737, which was an epidemiology report dated August 27, 1976. Could you get that out, Dr. Kelly? Yes, 737. Do you recall thosequestions? WATER PCB-SD0000048288 8A 9Q 10 11 A 12 Q 13 A 14 Q 15 A 16 Q 17 A 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 Oh, yes. Now, was there at some point in time a paper or a study, a report of a study of workers from Monsanto? Yes, sir. And when was that in relation to that exhibit? Somewhat afterwards. Are you familiar with the results of that study? Yes, I am. What were the results of that study? Well, the results were that -- let me start at the beginning. The first study showed that death attributable to lung cancer were four, and according to the United States male population, this group would be expected to have 1.24, one and a quarter cases, so that was a little over twice as many, but that was using people all over the country. When they used the people at St. Clare County, Madison County, which are the two counties contiguous to the plant, right next to the plant, they found that there was not the disparity, that there was no increase in lung cancer relative to the population -of the counties surrounding the plant. (Switch in Reporters.) WATER PCB-SD0000048289 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 The exhibit you referred from today was 737. I'm going 3 to show you Plaintiff's Exhibit 738, which is, I 4 believe, in evidence, which was the document used 5 earlier, and ask you if you can look at that exhibit. 6 Yes, sir. 7 And relative to the comments of James E. McKee on that 8 document, if you'd look at the comments it says, Number 9 3, with regard to the analysis of the death certificate. 10 Could you read Numbers 3 and 4, Dr. Kelly? 11 Yes, sir. 3 says "Analysis of their death certificates 12 shows a higher than national average of lung cancer." WATER PCB-SD0000048290 13 Q Number 4? 14 A Number 4, "Based on information available, the 15 epidemiolgoist believes the lung cancer cases were not 16 caused by PCB exposure or even by the plant 17 environment." 18 Q And if you could continue and read the next portion of 19 that document. 20 A "The following quotation is useful. 'The results of 21 this study do not indicate dose-response relationships, 22 either for all causes of death or for lung cancer.'" 23 That bears out just what I said earlier. 24 MR. McDEVITT: That's all I have, Dr. Kelly. 25 Thank you. 1 RECROSS EXAMINATION 2 MR. CARLSON: 3 Q Dr. Kelly, Sax has done more than PCB work for Monsanto, 4 hasn't he -- or she? She. 5 A Well, I presume she has. She was not employed when I 6 was there, she was employed afterwards. She did a 7 mortality study to see if there was a relationship 8 between the benzene we used in the plant and leukemia. 9 I believe she did that study. 10 Q And Sax' credibility has been challenged with regards to 11 the way she's put groups together to form opinions, 12 hasn't it? 13 A I don't know. WATER PCB-SD0000048291 14 Q Are you aware of challenges to Sax' manipulation of data 15 that have been made? 16 MR. McDEVITT: Well, the witness just answered 17 that question? 18 THE WITNESS: No, sir, I am not. 19 MR. CARLSON: 20 Q Are you aware of work that Sax did on dioxin? 21 A No, sir, I'm not. 22 Q Just one other thing on credibility. With regards to 23 the IBT work, did your company work closely with IBT? 24 A I don't know what you mean by "closely." We used them a 25 great deal. We used other laboratories. We used 1 Hazelton laboratory, we used Saranec Laboratory, we used 2 Woodward Laboratory. 3 Q Did you do the analysis for the presence of PCBs that 4 were in or shown on tissue slides at Monsanto? 5 A We did residue studies of PCBs, yes. 6 Q And you and IBT worked together on those projects? 7 A I don't know what you mean "worked together." They sent 8 us the tissue, they fed the material, they did the 9 histology or the pathology, they looked at the slides, 10 and they sent us other things -- not the slides, of 11 course, but they sent us the fat and the muscle for us 12 to find out how much residue there was in there. 13 Q You're aware, are you not, that within IBT -- WATER PCB-SD0000048292 14 MR. McDEVITT: Your Honor, this has nothing to 15 do with anything we just did on my guestions on 16 redirect. 17 THE COURT: I agree, but that's not -- you 18 remember. 19 MR. McDEVITT: Okay. 20 THE COURT: I don't cut lawyers off too much, 21 Mr. McDevitt. 22 MR. MCDEVITT: Okay. 23 THE COURT: I probably should, but I don't. 24 MR. CARLSON: For our own good as well, I'm 25 afraid. 1 MR. CARLSON: 2 Q You're aware that internally at IBT there was 3 dissatisfaction with the way the company did some of 4 your Aroclor work? 5 MR. McDEVITT: Your Honor, I'll object. I 6 think we maybe ought to discuss this in chambers. 7 MR. CARLSON: I can rephrase the question. 8 MR. McDEVITT: No, I think we ought to discuss 9 the issue. 10 MR. CARLSON: All right. 11 THE COURT: Okay. 12 (Whereupon, the following was had in chambers 13 outside the presence of the jury.) 14 THE COURT: The record should reflect The 15 Court is in chambers with counsel for both sides WATER PCB-SD0000048293 16 relative to the objection made by Mr. McDevitt. 17 MR. MeDEVITT: Your Honor, they asked 18 Dr. Kelly a few minutes ago on recross whether or not we 19 used IBT. He said, "Yes, we used IBT along with a 20 number of other laboratories." That was the one 21 question you said if he admitted they used them and 22 relied on them they couldn't go any further. He 23 answered that question that way. We're now getting into 24 internal IBT memos again, which we went through 25 yesterday, and that's why we're here. 1 THE COURT: Does this relate to the issue 2 about the falsified tests? 3 MR. McDEVITT: Yes. 4 MR. CARLSON: No, this doesn't. This only 5 relates to the IBT, the Otis Fancher letter, which 6 references specifically the Aroclors. And I think it's 7 in 1970, 1970 or 1971, in which Otis Fancher expressed 8 his displeasure with the way his own laboratory did the 9 work. I want to ask him whether or not he's aware of 10 that. I want to ask him whether or not -- and, quite 11 frankly, with the documents now being available, I would 12 seek to introduce them in evidence regardless of what 13 his answer is, because I think at this point the 14 credibility of Monsanto with regards to IBT is at issue. 15 THE COURT: I haven't heard any evidence of 16 that. WATER PCB-SD0000048294 17 MR. McDEVITT: No, I haven't either, plus in 18 response, Judge, that was yesterday. That's that 19 Otis -- the Fancher memo was that internal memo from IBT 20 that was produced in Bloomington, the trial down there. 21 Never reached Monsanto until some litigation in Indiana 22 a year ago, wasn't it? We didn't have it. It wasn't 23 anything that we would have even known about until 1988 24 or 1990. 25 MR. PENDERGAST: Wrong. 1 MR. McDEVITT: '88, '89. John, it's when the 2 record shows we got it. It was an internal IBT memo 3 that we don't have. You know, you wouldn't admit that 4 yesterday. There's certainly no predicate that's been 5 laid, since there was an offer of proof yesterday with 6 regard to that and another document. 7 MR. CARLSON: With regards to that, you know, 8 the letter going to IBT telling them we're sending them 9 a cleaned-up material, we would like to send, you know, 10 going to rerun the studies with, hopefully, a higher 11 no-effect level. These people are working together. 12 It seems to me -- and the only thing I can say with 13 regards to the authenticity, I've got a certificate from 14 the clerk from the court in Bloomington that this came 15 from a trial that's at issue. But with regards to 16 whether or not the IBT work is credible work, it seems 17 to me that certainly has a bearing on that issue. WATER PCB-SD0000048295 18 THE COURT: I think we talked about this 19 yesterday. Whether or not their work is credible is 20 certainly an issue, but the real question is what 21 knowledge, if any, does Monsanto have of that. 22 MR. CARLSON: That's one issue, I will grant 23 you that. 24 THE COURT: But you can't get into whether 25 there are bad tests or whatever until Monsanto is aware 1 that this work isn't so hot. 2 MR. McDEVITT: That is the problem. 3 MR. CARLSON: On the negligence case against 4 Monsanto I would absolutely agree, but another situation 5 exists and that is the pitting of the IBT work against 6 work that's been done by, that's been introduced in 7 evidence through learned treatises. And now the 8 credibility of that work, of course, is peer review. 9 Now we've got work from IBT, which you don't have. And 10 the question is what is the credibility of that work? 11 This certainly has a bearing on that credibility. 12 THE COURT: But you are not going to get it 13 out of this witness, that's the problem. If you had 14 some IBT person, that's something different, but he's 15 already said he's not aware of that. That is the 16 problem. 17 MR. CARLSON: I'm just going to - 18 MR. McDEVITT: Make an offer of proof. Let's 19 close this down in front of the jury. WATER PCB-SD0000048296 20 MR. CARLSON: The only thing I am going to ask 21 him whether or not Monsanto went over and inspected the 22 facilities and participated in developing protocols. If 23 he backs me off of that and says no -- 24 MR. McDEVITT: He already said we did. 25 There's a letter in evidence that we met with him in -- 1 MR. RUNNING: 1988. 2 MR. CARLSON: No. 3 MR. PENDERGAST: '68. 4 MR. McDEVITT: '68. 5 MR. PENDERGAST: The facts are -- 6 MR. McDEVITT: 1968 to set up that protocol. 7 That's in evidence. Elmer went to a meeting to set up 8 protocol, came back, and Dr. Kelly went to Washington to 9 talk -- I mean, that's it. That's in evidence. 10 THE COURT: If you read over what you just 11 said, you'd be amazed. 12 MR. McDEVITT: I know, he knows, and you know, 13 Judge, that's in evidence already, so I don't know why 14 we need to go into that again. 15 MR. CARLSON: If they went over and witnessed 16 how these tests were being done, then that's another 17 issue. That is the only question I'm going to ask him 18 on this. If he says he never went over there and 19 watched how the tests were done, "I'm not aware how they WATER PCB-SD0000048297 20 gathered the data," then I'm done. 21 THE COURT: I think you are. 22 MR. McDEVITT: Is he done now? Are you going 23 to let him answer that? Okay. 24 THE COURT: He can ask that question, 25 certainly. 1 (Whereupon, the following was had in open 2 court, in the presence of the jury.) 3 MR. CARLSON: One question on this subject, 4 couple questions on another subject that were brought up 5 by Mr. McDevitt on redirect, then we're done. 6 Q Dr. Kelly, did your company send people over to witness 7 how ITB was doing in the chicken studies? 8 A No, sir, they did not. 9 Q They did not. All right. Now, one other thing, and 10 that was the work that was done by Sax. After the 11 results came in showing a higher incidence of lung 12 cancer in your plant workers she changed the base and 13 went to a U.S. base rather than a county -- Strike 14 that -- to a county base rather than United States base? 15 A Yes, sir. 16 Q And when she did that, that was the county where your 17 company had been discharging PCBs into the waterways? 18 THE COURT: Excuse me. So there's no 19 misunderstanding, he did mention two counties rather 20 than one. 21 MR. CARLSON: WATER PCB-SD0000048298 22 Q That's right. 23 THE COURT: Madison and St. Clair. 24 MR. CARLSON: That's right. 25 THE WITNESS: The plant is located in 1 St. Clair County, yes, sir. 2 MR. CARLSON: 3 Q And what other chemicals were being manufactured in that 4 plant? 5 A About forty different organic chemicals from phenyl to 6 chloranils, to any number of them. 7 Q And it is true that there was vaporization of chemicals 8 from your plant in that area? 9 A There's always some vaporization, but not particularly 10 PCBs. 11 Q I understand that, but when the county -- Strike that. 12 When the people in your plant were looked at in 13 comparison with the United States, there was a 14 significantly higher incidence of lung cancer for those 15 exposed, wasn't there? 16 A Yes, more lung cancer in an urban city than there are on 17 farms in Indiana. 18 Q And Madison County is across the river from - 19 A St. Louis. 20 Q -- St. Louis? 21 A Yes, sir. 22 MR. CARLSON: That's all. Thank you very WATER PCB-SD0000048299 23 much. 24 MR. McDEVITT: No questions. Your Honor. WATER PCB-SD0000048300