Document jyovbY2xeRaVmwzM8qdQJqrek

1 IN THE CIRCUIT COURT FOR THE TWENTIETH JUDICIAL CIRCUIT 2 ST* CLAIR COUNTY, ILLINOIS 3 4 FRANCES E. KEMNER, et al., > ) 5 Plaintiffs, ) 6 vs. ) ) No. 80-L-970 7 MONSANTO COMPANY, ) ) ) 8 Defendant. ) 9 IO 11 REPORT OF PROCEEDINGS 12 JURY TRIAL 13 Before the HONORABLE RICHARD P. GOLDENHERSH 14 April 15, 1985 15 Afternoon Session 16 17 APPEARANCES: 18 MR. REX CARR and MR. JEROME SEIGFREID, Attorneys at Law 19 On Behalf of the Plaintiffs; 20 MR. JOHN R. MUSGRAVE, MR. KENNETH R. HEINEMAN and MR. JOSEPH NASSIF, Attorneys at Law 21 On Behalf of the Defendant. 22 23 24 DONNA F. BREWER, CSR, RPR Official Court Reporter  Ay"/.' j y y -- <', ,,v ,, / 1 ..v, * ?V*V'rJ - ' . y ti. *r 'v ...... , . >* V' .* -, S ' h V t; . ^ - '-y :, .- ; ' y~l "; i V . 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P L A I N T I F F S* ' 71^<' E X H I B I T S : *\ J W * MARKED ADMITTED ' 3 :'~vV,-No'.;'i298 .2 3 V - i *1 .< - : ,. il 1 14 . .'$p-;'<1299 ./.'"' . 1 . . . ."V,. 11 33 . 13 V**` Ji 9 A - O CM F O R M IL 2B4 15 `Nf: o. 1300 21 l ; > . ' .- 16 No'. '.13 01 m % .1 24 . .. i. 1 17 1**/ . ' j. i s : _r ^ A -V-' A 19 ` i Tf-.'1 3 0 1 A ........ :/ . . . . . . . v S3S 3 . .. ^s ' .1.1-.'y. >- 20 i VJ 21 . '22 1. -' V i 23.j " . r: i 4 Ti 24, r J- J\ ,` / // \H 'm tv . ** - -i- -v-V r ; 1 ... - A >A ,1s. , / ,>J k. h BE IT REMEMBERED AND CERTIFIED that heretofore> on -****, r * '\ * ' T* ^ *`0 i .2 to-wifc:. Monday, April 15j 1985 ,;'.beiiicj one;of. the regular t A ..- -^ J . . 3 . judicial days of this Court, the matter as' hereinbefore set 4 forth.came on for hearing before the HONORABLE RICHARD P. ** `i ** Vi i 1* 5 GOLDENHERSH, Circuit Judge in and for the Twentieth .Judicial 6 Circuit, State of Illinois, in St. Clair County Building, 7 Belleville, St. Clair, County, Illinois, and the following was 8 had of record, to-wit: 9 # ' 1> , ^ ***** * ^ ib' cq. 10 ; - 1 (The following proceedings were held in the ' 11 12 ' 13 ', 14 ** presence and hearing of t*Vhe jury.) (Plaintiffs' ExAfhibitA No. 1298 was marked for identification.) PHOCION PARK e 15 resumed the stand, having been previously duly sworn, further testified as follows under Section 2-1102 of the soro* 17 !Illinois Code of Civil Procedure: 2 18 CROSS EXAMINATION I<<D f.* i9 *'** ' BY MR. CARR: l uO* " 20 * ;21 r ' ,i Q. Mr. Park, I will now hand you what's been marked as Plaintiffs1, Exhibit 1298 and ask you to look at that if - . 22 you (would.' >This is a memorandum to the file relating to 1 23 another TSCA 8(e) signed by you, is it not, sir? 24 .. ir A. Yes. BAYONNE.N.J, FORMH St * -2- . 1 i *. > ** * st t ft * h : i **/* \ - i . ' \a - i ( Q. And it has attached to it certain notes that came . ; - 2 ` with the exhibit, does it not, sir? , .3 -i1 4 * \ > . 'A,* . Yes/- * . `m , t ' * \ 1. p ' . * i i i ' r * ** Q.*' And those are your handwritten notes. / At least the 5 first two pages, attached to that are your handwritten notes, 6 aren't they, sir? ** i 7 A. Yes. 8 Q. And the next page is a memo that is addressed to you, 9 is it not, sir? 10 A. Yes. 11 * MR. CARR: X offer that e*xhibit into evidence. 12 *- THE COURT: Okay. Any ob*jections? 13 MR. MUSGRAVE: , Yes, your Honor. Again this deals 14 with the 2, 4 Dichlorophenol. PENGAD CO.', BAVON NE. N,J. 07002 FORM IL 24 & is . THE COURT:" Okay. I will incorporate your prior d ** *eow 16 arguments on that point and it will be admitted over objection. j Voor* 17/; t ^ a * h r t ,, * i ,, r*. MR. CARR: And leave to pass it to the jury? t2 18 . , *- uz2 f J , ;/1 - * *. THE COURT: Yes, you may. It's been"admitted. ca 19 yo ' (Plaintiffs' Exhibit ip No. *1298 was received'into U0:4O2.'' 2 0 21 evidence,and pa^ ssed * among -ff the jury.) MR. CARR: Q. The exhibit discusses the fact that 1 '2 2 , . dibenzofurans had been detected in 2, 4 dichlorophenol, isn't ? J. 23{ that correct, sir? * 24'. - A. Yes. * -3- . \i-<*" L-" L 1V , * 1 ^ Q.' And*the level of furans that had been detected, 2 dibenzofuranfe was one to two;parts per'million, is that correct 3 sir? * 1 ; ^. T Jr-fc 4 X. Yes, * \^ ,. w 5 Q. And.the question that you were there to1discuss was 6 whether (or not 'that leyel of furans in 2, 4 dichlorophenol 7 represented a substantial risk of injury to health or the ' 8 environment, isn't that correct, sir? 9 A- Yes. ** 10 . v Q. And y o u r `note indicates -- the third page of the * -< 4 i* *i 11 exhibit, your notes, someone said' at that meeting and you 12 *j. f" ^ * wrote, it that dibenzofurans present should have toxicity not gr aater 13 J 14 15 than .01.that o f ,2,3,7,8 diberizodioxin. i i 1 Vr ;' I* ,* ` A. That is my note, yes.i- Is that correct, sir? Q. And .01 is one percent, is it not, sir? 16 A. (No response.) 17 Q. It should have the toxicity of one -- one percent <r 18 of the toxicity of 2,3,7,8? 19 A. Yes, one-one-hundredth in other words. 20 , 21 Q. Yes, one onerhundredth is one percent. A. Yes. ; 22 > Q. And then to determine -- to relate the two million BAYONNE. N.J, to that one percent, you take one percent of two million and 24 you would get two hundred parts per billion of 2,3,7,8 -4- ; >J X *\ t- Ia r s^ i 1 equivalent.-toxicity, would you not, sir? 2 J i tf > , A. I 'm sorry, Mr. Carr. I didn't follow you there. 3 Q. You have two parts per billion of tetrachlorodibenzoftj 4 in the product, do you not, sir? Two parts per, million of 5 TCDF in the product, don't you, sir? ' 6 A. One to two, yes. 7 1 Q. And if you take'one percent of two million, one 8 percent of two million is two hundred parts per billion, isn't 9 it, sir? 10 A. (No response.) t*- 11 Q. It', s a simple mathematical ** computation, Mr. Park. 12 A. This is not the way the one one-hundredth was 13 intended to apply. 14 Q. Mr. Park, I am not asking you to tell me that. I 15 am simply asking you whether or not one percent of two million 16 is four hundred parts per billion -- two hundred parts per 17 billion. One perdent is one hundred. Two percent is two 18 hundred, is it not, sir? 19 A. Yeah, so that would be -- 20 Q. Sir? t- 1 21 A. Excuse me just a moment; Let me use my pad here, 22 Mr. Carr. Yes, I would say that one percent of two parts 23 per million would be 20 parts per billion. 24 Q. Twenty parts per billiit on? -5- 1 1 A. V7as that your question? 2 Q. Yes. And is that your calculation, sir? Yes, that's V 3 right/., 20 parts per billion. 1 f * *< 4 A. Yes* 5 Q. Correct, sir? 6 A. Yes, m T Q. Yes. And your committee has equated the toxicity 8 of this to 20 parts per billion of 2,3,7,8 TCDD, is that corree:, 9 sir? 10 A. It doesn't really say quite that, Mr. Carr. It says 11 have the toxicity not greater than, say, one one-hundredth 12 that of the 2,3,7,8. 1 3 Q. Yes. * 1 4 A. Dioxin. Now, whether that applies, on a concentration 15 basis, I am not qualified to say. 1 6 Q. Well, that's what you are actually being asked to 1 7 discuss. And that's what you are doing. You are relating -- 1 8 you are determining, are you not^ whether or not this 19 2, 4 dichlorophenol has enough toxic substances in it that 20 you should notify the E.P.A., isn't that correct, sir? 21 Ay Whether it would amount to a substantial risk of 22 injury to the health or the environment. 23 Q. Whether or not that toxicity represents such a risk r* 24 Of^health to the environment, isn't that correct, sir? -6- BAYONNE, N.J. 07001 FORM IL 24 B 1 1 A. Well, specifically whether the level of the ,, 2 tetrachlorodibenzofurans presented'a substantial risk of 3 injury to the health or the1environment. 4 Q. And in arriving- at that, you are comparing -- and 5 these are your notes, sir. You are comparing the toxicity 6 of these furans to the toxicity of 2,3,7,8 dioxin, aren't 7 you, sir? L 8 A. That is correct. 9 Q. And calculating it that way, you are equating the 10 two million -- two parts per million of TCDF to 20 parts per 11 billion of 2,3,7,8 dioxin, aren't you, sir? 12 A. We should point out , t'i*his is acute toxicity -- 13 Q. Excuse me. Would you answer that question first, . 14 please, Mr. Park? 15 A. We are equating acute toxicity, yes. 16 Q. And it was based upon the -- and that -- now that 17 TCDF content has its own toxicity along with the content of 18 other toxic substances such as dioxin, doesn't it, sir? 19 A. (No response.) 20 Q. To put it a different way, when you consider whether 21 or not a..chemical going in commerce is toxic, you consider all 22 the toxic constituents of that chemical, don't you, sir? 23 A. Yes, to the extent we have that information. ?4 '' Q. And so <you when you decide whether or not the -7- v> i 4v; 1 2, 4-di is required to have a notice, to the E.P.A., you considi 2. the toxicity of the 2 , 4 dichlorophenol in pure state 3 without dioxins, don't you, sir? '> 4 A. Mr# Carr, I would assume we would consider the 5 product as it goes into commerce# 6 Q, And as it goes into commerce it has dioxins that has 7 toxicity associated-with dioxins, total dioxins# It has 8 toxicity connected with 2,3,7,8 dioxins. And now it has 9 toxicity for the furans/ doesn't it, sir? 10 A. Yes# 11 Q. And so when you consider whether or not a substance cr 12 presents a substantial risk to the health of the people that 13 are going to be playing on this lawn that is sprayed with 14 2,4 D, you have to consider the toxicity of the 2,3,7,8 dioxin 15 plus the toxicity of the total dioxins plus the toxicity of 16 the tetrafurans, don't you, sir? 17 A- I would not have been part of any consideration of 18 the toxicity of the product sprayed on the yard, 19 J t j f, 1 /'MR.' '.CARR:/ Your Honor, would you direct the witness f2*0' to answer that.question? 21. THE COURT: That's not responsive, Mr. Park. You ` IV 22 'hi 1 , 1-t K t' ' .have to answer the question that is posed to you. THE WITNESS: I don't know, Mr# Carr, as to what was considered by the manufacturer of the herbicide sprayed on the -8- -t 1 MR. CARR: Q. I am.not asking you to tell me that, i& 2 Mr. Park. And you know I am not asking you to tell me that. 3 X am asking you to tell me, do you not have to consider 4 ,when you are sending the 2,4 dichlorophenol out that the 5 persons -- and when you are considering whether or not there 6 is an 8 (e) section notification needed, you have to consider, 7 you have to add the toxicity of the 2,4 dichlorophenol 8 to the toxicity of the 2,3,7,8 dioxin to the toxicity of the , 9 . total-dioxins and to the toxicity of the furans, do you not, 1i --'hi \ ^ 1 0 sir?' . - ' " ','V 1 1 . A. '.I would assume that ail that toxicity would be 12 j/ - * * 1 r considered. 13 Q. I.didn't ask you whether or not you assume that. 14 Don't you know that is your boundenOidUty under the law to 15 consider not just in isolation the toxicity of one of the 16 contaminants that go into your product, but the total 17 toxicity of the total contaminants that go into your product? , 18 A. That's correct. 19 Q. So the 20 parts per billion, the toxicity of the 20 furans in that product must be added to the toxicity of 21 whatever 2,3,7,8 dioxin is in that product and that also must 22 be added to the toxicity of whatever the dioxins that might 23 be in that product, isn't that right, sir? 24 A. Yes? -9- 1 Q. So you could -- if your toxicologist Nair considered 2 that 250 parts per billion of total dioxins without any 3 consideration to 2,3,7,8 being in that product sample, each 4 250 parts per billion of total dioxin would be equated, 5 according to her, to one part per billion of 2,3,7,8, isn't 6 that correct, sir? 7 A. ` No, it isn't, Mr. Carr. 8 Q. It isn't correct? 9 A. No, for a couple of reasons. 10 Q. Well, let me -- before we get to the couple of 11 reasons -- I didn't have yesterday the -- or we did have 12 Nair's --- we have that exhibit number. Do you have the 13 January 25th memo by Dr. Nair in front of you, sir -- 14 January 14th, I'm sorry, Plaintiffs' Exhibit 1296? 15 A. No, I do not. 16 Q. Isn't Dr. Nair making an equation between 250 parts 17 per billion of total dioxins and the effeOt of 2,3,7,8? 18 A. Well, she is -- 19 MR. MUSGRAVE: Just a second, Mr. Park. May my 20 record continue -- may the record, your Honor, continue to 21 show my continuing objection? I want to be sure this is clear 22 to this witness being required to not only interpret documents 'hose people that he -- documents that he did not author, but technical documents when there hasn't been a foundation -10- .t 1 laid to establish his expertise in interpreting documents 2 as to -- of this nature deal with analytical chemistry and 3 those types of things. 4 THE COURT: I rhave rVfu* ledV on all of those points 5 before., I will note your objection as a continuing objection 6 for the record. 7 MR. MUSGRAVE: Thank you. 8 MR. CARR: Q. Now, 1^ DoctoVr r -- I'm sorry. Mr. Park, 1 9 didn't we establish last Friday that this was her report and 10 it related to 250 parts per billion and that she said that 11 because it has 250 parts per billion of total dioxins and 12 no 2,3,7,8 in it in the sample that she felt it should be 13 reported to the E.P.A.? Didn't we establish that last week? 14 A. Well, she does say that, yes. IS Q. So, should you not then if you follow this recommendat: 16 of this toxicologist, should you not take the total dioxins 17 in a product and compare it whether it's greater or smaller 18 than 250 parts per billion? If this document has any validity 19 at all, Mr. Park. 20 A. Well, she is one of o'ur r toxicologists. 21 Q. I understand that, Mr. Park. But I am not asking you that now. I am asking you1whether or not if this document has any validity at all that you should not consider that 250 parts per billion of total dioxins has toxicity that should be taken -11- 1 into consideration. 2 A. Mr. Carr, may I, just say that there are two problems 3 in that. 4 Q. What you can do, Mr. Park, you can say, no, you shouldn 5 consider that, that it's, not an element to consider. Or you 6 can say, yes, you should consider it. And I tell you again, 7 Mr. Musgrave will have ample opportunity. When he asks you 8 . questions, you can sit here for 30 minutes and say what you 9 want to say in response to his question. But the questioner 10 is entitled to have you respond to the question. Otherwise, 11 we will never get,out the points that we want to get out 12 if you get to say anything you want to say. Now, my question 13 is, does not -- if Dr. Nair1s document has any validity that f 14 you must consider the toxicity of 250 parts per billion of 15 total dioxins in the products. 16 A. I would say yes to that question. 17 Q. And you consider that along with the toxicity of the 18 furans and along with the toxicity of the 2,3,7,8 dioxin, 19 'doii'.t you, .sir, if .you are doing your job on this committee : 20 properly? ;; v 2 1 1,A. -'Yes:*1. 2 2 ,T'MR.v CARR: Your Honor, we had not had offered into 23 evidence -- we had referred to it, but I only had the one copy, 24 the memo of Dr. Levinskas of January 16, 1985. ,I would now -12- 1 like to have it marked. 2 {Plaintiffs1 Exhibit No. 1299 was marked for +i* p -p 3 identification.) 4 THE COURT: January 16, 1985? **f f# i 5 MR. CARR: Thatrs correct, your Honor. r- 6 Q. I am handing you now what's been marked `V 7 i Plaintiffs' Exhibit 1299. You recognize that as Dr. Levinskas1 8 memo directed to Dr. Roush and you got a copy along with 9 attachments? 10 A. Yes. 11 .. MR. CARR: And offer that into evidence, please. n MR. MUSGRAVE: ', Same **objec*tion that would apply to 13 the other documents in connection with that January, 1985, 14 meeting that I believe I made, your Honor, with regard to 15 Plaintiffs* Exhibit 1297 -- Mf i 17 ' 18 - ,;*i /T, HE,, Cf OURT :.vOkay. I^ willv incorporate those. MR'. MUSGRAVE: Incorporate all of those, yes. ' *' J' 4 r > .'THE COURTV It's admitted over objection. Your 19 . 20 21 22 23 24 arguments are'incorporated. ' t v t| i ' , * MR,. CARR: And leave to pass that exhibit to the jury? THE COURT: Yes, you may. V? *> (Plaintiffs' Exhibit No. 1299 was received into v * * evidence and passed among the jury.) FORM 1L 24 B -13- 1 MR. CARR: Q. We have discussed this 1299 last 2 Friday. And I won't get into it in detail other than to 3 ask you as a fact that Dr . Levinskas made his comments relative 4 > `to the ,report of ./Dr; Nair`which was attached in its original 5' form-at least to the memo of January 16, 1985. And apparently 6 something else was attached to it, isn't that correct, sir? 7 ' 8 , * A. * ,Yes.*. * *' *, i 1 \ \ - ,, . t ,to ' Q. And whether you believe that Dr. Nair exaggerated 9 the risk, in any event, you must give as we have demonstrated 10 some level of toxicity value to the total dioxins, do you not, 11 sir? 12 A. Whatever would be appropriate, yes. 13 ' Q. And what you have as appropriate -- what you had at 14 that time in January, '85, was the mathematical computations 15 by Dr. Nair in the January 14, 1985, memo and her conclusions 16 drawn from those mathematical computations, isn't that correct, 17 sir? 18 J MR. MUSGRAVE: I object to the question as being `ft- 19 multiple questions. I believe it's got two or three questions 20 in there. He is characterizing the document in part of the 21 question. And I think it's unfairly stated. 22 THE COURT: Overruled. 23 THE WITNESS: That was one of the items for consideration. -14- I 2 sir? MR. CARR: Q. And you did consider that, didn't you, j -Q 3 A * Yes A t^ \ ^ 4- ; ' 'Q; iJowJ, at the time of considering these toxicities of , 5 . , .these various substances, you also had Plaintiffs1 Exhibit 1289, i., , ' ' % tJ 6 And do you have that exhibit in front of you? It is the memo ' tt V i / .> ` ' * . . , 1 7 dealing with the toxicity of furans, the handwritten memo. 8 You are getting so many exhibits now. That's the 1290. Well, i 9 I have another copy of it. So I will just hand that one to you, 10 Now, Plaintiffs' Exhibit 1289, handwritten notes, discusses 11 ! the subject matter that was raised in the memo of December 14, 12 1981; that is, the furans, doesn't it, sir? | 13 A. Mr. Carr, this is that memorandum that is neither 14 dated nor authored, 15 Q. Mr. Park, my question is -- '' 16 A. Idon't know. I don't know. i i 1 SAVONNE. N.J. 07001 FORM IL 1* 0 17 Q. All right. If you look at December 14, *81, memo, you. 18 will see that it discusses 2,4-dichlorophenol 93 percent, 19 doesn't it, sir? , 20 A. Yes. * | 21 Q. And it talks about two parts per million of the furans, 22 doesn't it, sir? 23 f A. Yes. i 24 Q. And Plaintiffs' Exhibit 1289 also talks about 93 percent -15- 1 dichlorophenol, doesn't it, sir? 2 A. Yes. - *9 3 Q. 93 percent 2,4-dichlorophenol. | II I' 4 A, Yes. * r 5 Q. And it also says that it has a consistent one to two 6 parts per million total of chlorodibenzofurans, doesn't it, 7 sir? ' 8 A. Yes. 1 [ i 9 Q. So whether they are contemporaneous or not^ they are 10 discussing exactly the same subject, aren't they, sir? 11 A. It would appear to, yes.' j l 12 Q. And this document the*n, this 1289 document, goes on i 13 to pose the question whether or not the two partsper million 14 1constituted imminent hazard and goes on to answer that 15 particular question, doesn't it, sir? ; ! 16 A. Let me read it here, Mr. Carr. Are you referring to 17 this item No. 4 of these notes? i 18 Q. All four items are dealing with dibenzofurans and the 19 toxicity of dibenzofurans. "i 20 A. Well, item No. 3 says, "No toxicological daI ta are * J i 21 available forthese chemicals." j '22 ; ` '` '/ /'r ... / ! -Q ; Yes.1 And item 4 then considers the toxicity by ,, ! i,; * * ! 23 analogy,doesn't it, sir? - ** "* " J i ;J ; 24 , A. ` Yes; it does appear to. ; iii' .1 . , ' -16- |1 1 Q. Arid it states that the structure-activity relations 2 among the chlorodibenzodioxins suggest that these furans that 3 are identified here are ten to one hundred times less toxic 4 than 2,3,7,8 tetrachlorodibenzofuran, isn't that correct, sir, 5 TCDF? , 6 A. Yes. -^ 7 Q. Now, you do know or yTPo* u are familiar with the fact 8 that the furans have been identified in this case as having 9 the 2,3,7,8 TCDF as toxicity very near or percentage of at 10 least, if not near, the toxicity of 2,3,7,8 TCDD. You know 11 that, don't you, sir? ' 12 A. I do not know that, Mr. Carr. 13 Q. All right. 14 MR. MUSGRAVE: I object to counsel's use of the term T' 15 "very near." I think the testimony speaks for itself as to 16 what it has been. And that may be his interpretation -- 17 THE COURT: Overruled. 18 MRi CARR: Q. This document itself states-that these 19 furans that are identified as,being in 2,4-dichlorophenol -- the 20 analogy implies, that they have "1/50.to 1/1000 the activity of , \ ~ ', V 2/3,7,8 TCDD/". isn't that correct, sir? 22 t ,A. ( R* "iw gh t' '. t There * is the implication there, yes.' 23 Q. And 1/56' of two million parts per -- two parts per 24 ^ - - i- 1 ,1 ^ million would end up with a factor of 40 parts per billion, -17- 4 1 would it not, sir, rather than 1/100? 2 A. Mr. Carr, I'm sorry. I didn't follow that last 3 equation of yours. 4 Q. In your notes you had that the TCDF in question is 5 1/100, that is one percent, of the toxicity of the 2,3,7,8, 6 didn't you,1sir? 7 A. Mr. Carr -- S . Q. Sir? , i ' * l> / , * ' * * 9 ;.' i 1 i A. Not greater,than 1/100 based on acute toxicity. That 10 i s knot chronic toxicity which I assume is being spoken of in J t 1 *4 ( il * tr ' *' ir ^ these handwritten notes. It's two entirely different things. 12 Q. Mr. Park,'you are digressing from the question that 13 I am asking you. Your notes related the toxicity of 2,3,7,8 TC] 14 and the furans, did they not, sir? 15 A. But it expressly says acute toxicity. 16 Q. I am not quarreling and I don't care whether it's 17 acute or chronic at this point in time. Because you don't 18 care. You are going to report to the E.P.A. based upon the 19 toxicity whether it's acute or chronic. You want to report 20 the toxicity. That's your obligation, isn't that correct? 21 A. Whatever is appropriate. 22 Q. You are not obligated to report just acute toxic 23 substances as opposed.to chronic toxic substances or chronic 24 as opposed to acute, are you, sir? You are obligated to report -18- f)' 4 I toxic substances whether they have acute effects or chronic 2 effects or both,.isn't"that correct, sir? 3 ' ; If reporting is required in a given situation. 4 Q. Isn't'that correct?, * ' 5 r A. Yes; I f Lth .reporting is required. . ^ S 6' t>\ *\ " ?i f 1 .J ''s.-v'Qi, ;So+the point yo.u are bringing up for acute toxicity, U (.. iV ' rt 5. . * 1 1- i. . ; 7 - ; ' 7 as I suggested to you,.is`irrelevant. And.could ybu direct you 8' , ' , 4. 1, > , , ,i ( It r t' * l' '> *IT,.J' ; ' ' i J , ' ', attention ,to thequestion I .asked? , ' 1' - `- , ` ' . r. v VV ("a . i Ail; rlg&t; It is not at all irrelevant,; Mr. Carr. ; 10 1 ..V : . ' ^ 7- ?;1\ ` " ` ; ' . ' Q. Mr.:Park,' did not your, memo point out that the content 1 *, t ** ;r r 11 in the 2,4-dichlorophenol of furans should bef,equated with the 12 toxicity of one percent 2,3,7#,8 TCDD? If you refer ,to the . 13 Ex1 hibit 1, 29V8 a gain, th* ird ; p*- a"gef** oA f * t'!*hat:i r e-*xhibit,;'"Dibenz>-ofurans 14 present should have toxicitynot greater than .01 that of * 15 2>3',7,8 dibenzodioxin (based on acute toxicity)." Didn't yous.^ 16 say that, sir? ., ;, 17 .A. Yes. ' ' . ,' 18 Q.* And,you,'also point out there that Canada has establish 3 19 a limit of ten parts per billion of total dioxins, don't you, 20 ' '" , *>.> k,. t sir? In .2.,4vdichlorophenol. ,* 1r . .. . 21 A.' It looks like there is a blank here; And at this. 1 r l' r ^ 4 * 22 moment I canVt recall if-there was something else.v I, don't, ^ 23 know what the, frankly looking at these notes, ten parts per 24 billion Canadian limit would apply.to. ' ** t `V ' .1 ' -19- " . ' 1 .. Q . ' And .you don't recall discussing with Diamond Shamrock ' ' , r ... i 1' , *` rLi - , -* ' , . 2 the Lfact tiiat they are going to sell their 2,4-D in Canada n y and they"have to comply with the Canadian limit and they had a 4 number of. discussions with you, Mr. Park, and your company 5 about whether or ,not you can get your 2,4-dichlorophenol 6 down to total dioxin content of ten parts per billion? 7 MR. MUSGRAVE: Object. That is an improper 8 characterization of the evidence. It hasn't even been put 9 into evidence yet. t 10 MR, CARR; Q. Well, the evidence is it's down to 11 one pairt per billion. I .will be glad to put that in now if 12 the witness doesn't have any memory of it at this time* I 13 was saving this for Ms. Wente because this witness's name 1 4 is not on it. But there is a lot of other people on it. And is I will be glad to put it in. Would you mark that, please? 16 (Plaintiffs' Exhibit No. 1300 was marked for 'r<l 1 7 identification.) * '-*,r 18 MR, CARR: Q. I am handing you now what has been **,r 19 marked as Plaintiffs& Exhibit 1300. I ask you to look at that, 20 please, sir. You recognize the names of the various persons tb 21 whom this memo was sent, don't you, sir, and the signature, 22 the initials J.D.W. being O VD. Wilson? 23 A. I recognize the name James D. Wilson. I recognize a i' * * * 9 t 24 few of*-'the other names, but not all. -20- * A* 1 , MR. CARR:,' I .offer this Exhibit 1300 into evidence if it please -the Court? /' r "* '* . + m* MtR,* MUSGRAVE : 'May XV ha' ve a moment^ your Honor? \ r ' "- \ i* i THE. CPURT; ^ Sxi^e.V- '* ' r - : -/* , ,, *. ' - r ' m - w* . ' MR. MUS GRAVE: 'We would object because it1does deal with 2,4-dichlorophenol,^same basis we have previously objected to#' the documents that deal,with products other than, -* orthochlorophenol or .prthodhlorophenol crude, , ' 1 J* 1, THE COURT:' Fine. rIt's admitted over objection. , k. F , * - r . 1> ' - t t ( ._ , j_ MR.'CARR: " -And1 leave -*# to p a1ss it to the jury. . r !t t - 1 k-. v THE COURT: Yes'/ you may. ' r\ jJ m ,, 7r 1 '' * -* * ;. , i _* T> r t (Plaintiffs'.Exhibit No. 1300 was received into ' *1 ; .i j L / 1 > evidence, and passed among'the' jury;),i 7 .'to,, .CARR: 1 *. , -* your Honor.1'/ , i '* i I tou nd L ,,. ^ ther ' *.*1 o1 rT3 iginal of -V ,1 , /- ,1'!> / ,r - r; - ` - / *. Vr ? , . , M ^ ` J that d*oc* ument' L, "V * r r , ' '* , ' "r - THE COURT: Okay! \ \ ; : , MR. p CARR;- * Q.' VM' r.' f Park, -*t' his1 I memo of Mr", .'' Wilson's ' refers to a' conversation ,- - that i he had with ^ a customer that cal1 led wanting to know about the1dioxin content of 2,4-dichlorophenol produced by Monsanto, isn't that /correct, sir?: j1 - r ^ r, * A. .Mr. Carr, I know nothing of this conversation or this incident. -X `art/really:hot V- \ ;i/` Q. Mr.. Park, you can read, pan you npt, sir? , A. It `does say in here " ' 1 i (>' ' i { ,r , V jfi. i-f :v // ; . ' -21-, Q. And isn't the-subject of this memo that a Harwell 1 . 'V ` I*** ' r` from. Diamond-Shamrock calle.wanting'informtion on dioxin? - * ^ . /; - - :..w. " / i. . . Yes. ' , \ . *\. T, -, _ !" , 1 . **,_' - r Q.. Now; up to the time that you -- from 1979 up to the point in time that .this,customer called wanting/this information, do you haveany.knowledge as to whether or not Monsanto passed dioxin-information on to any customer from January 10,1979, or -- `yeah, to any customer,from that date * ^* " -" "L A' ' * Jit ^ 1 * 'up to September 17, 198.1?. . A. I guess I cannot-reca^ll specifics of c- ustomer contacts. But I a m n o t normally involved in that, Mr. Carr. ' Q. I i understand ^ that/ t 't MrV.' * Par k. *" You said that before. But you don't know of any of your own,knowledge,, do you? ' ' ' ./' A. . No^; -I do. not. r "V*, *e * J * y - i "- `' * 1 . 'r Q.` Now, this discusses the fact tkat Diamond-Shamrock -- `well, it points out that Canada is going t o require a one' \|jfL j'--* v -' * `*" j' j * 5, J ,*parti per vbillion;of dioxins in 2,4-D.sold there ,after 1982, .'i *f ij ' V'*y ;*riv'*1 i r- :> . correct, sir? v i; s i,` -!'r i. -. *,,*-l.1/&: /.-Yesi- '; -S <S 1 . < 1( , s .^t ... * .- f 1J'r]*rQ ; f'Andvj that ji s a -limit for a 11 itdioxins and- it '.does n 11 , * / '- ' f' * refer to 2,3,7,8 TCDD., does it, sir? r L. A. - No,.^ it. does not. ,- . ' , . - Q.~ Now, Mr.. Park,-;does it. suggest to you a!s'being a \ ' *i . iJ , ,k member pf a .committee that has had responsibility of reporting 22- i 1 dioxin -- or toxic substance content to theE.P.A., does it 2 suggest to you that Canada believes; that dioxin at one part 3 per billion in 2,4-D would.be injurious to Canadians? 4 MR. MUSGRAVE: Object to that. It is calling for 5 conclusion and speculations as to why any government set any 6 particular limit. And there is no evidence that this is, in 7 fact, a limit that was set, your Honor. It's the statement 8 of Mr. Wilson. It is not evidence that Canada did set this 9 limit or any limit. 10 THE COURT: OverruleCd*- . Y* II THE WITNESS: I really don't know, Mr. 'Carr. ! I1 Li**II T - '' '"* , J.* -' *v j, i ,, ,. -.J :MRw'CARR:,- Q. . Well, now I have given you an earlier A -w- 13 :memo in which it was pointed .out that Canada was. going to > -> ' l 4< 1 14 t . ti ' 'l ` '-r r J, set a limit of ten parts per billion. Do you recall that, sir? 15 ;. `,1 4 f'Vy ' `!,l`,, . But this talks'about one part per billion. That's what got 16 us on to this memo, your own notes. Do you recall that, sir? 17 A. Yes. 18 Q. And that's the.reason I gave you this memo because you 1? indeed were aware of the fact that Canada was going to make a 20 limit on dioxins, weren't you, sir? 21 A. Yes, although my note is hot clear as to what the 22 ten parts per billion was to apply to. 23 r Q.. . And I agree it is not clear. .But you were talking 24 about dioxins and furans, weren't you, sir? -23- ' - ,^ j -f ^ 'r*\ 'V; ^ 1>, jL ' . 1 i L ' * \ ' ' : ,i,, ' 1 ' r ^ ' *L . jV ' _^ ' \ * 1 * \ \ ^ ' . `1 `'' / * , ' - ' ` ' . * '' *" ,( , 1 ,i J: i.i'f i-\ *v / (1* ^,;iA. ,Z."Y1es.f./'/1,^' -ii~;'./z1., ' ' . -*>.". ' ' yt: - i' "i> i f^ J i1V - ` ' J- 1 * ' ,* ?^v/ '4<Qvy *And the nieirio dat^ e'd:Se'Vp'tember t1* 7, 1981,*> is talking about ** * /%`i '- '' r ^ I * d i o x i n s i s n l t kit) sir? l-,";> L-^T-\,>*'}_J}/\: \^Tvm'.,- >TrC%* **^, ^ ' r i .:! f; 1. . 4 s , v A . . .;Y e s . . . t J \ , '. j '4-^1 i.'i Lf-,V ' `' '. " 5 Q* All right. . Now,. M1r. ^ P a r k , , w i i t h that J iin m_ ind< , do you, ` 6 agree, sir, that the toxicity of 2 , 4-dichlorophenol as it leaves 7 the plant at Monsanto should be measured by t h e 1, not just the 8 toxicity of the chemical .itself, `but the toxicity of the furans 9 arid the various dioxins, that are therein? 1,, 10 A. The entire p r o d u c t i n other words? 1 1 Q. -The entire p r o d u c t plus i t a contaminants^' 1- '" . 12 13 A. r Yes.'' ; 1 * ` . 1 ' / ` , 1 . Q. A n d - t h a t 's what you did on your committee, isn't that; 1 4 . correct ) sir? ' 'j : ; '` T J' * Ji ^ c Ou. 3Ofo*' - ; U !0<) J 1 0 <1OhIi. r ' 15 16 *' 17 A. ' I . would think so, yes.- ' > t . ' * * r , ' ' '' ' .. 'Q. '"Now, M would, like .to : :-- ' ^ "J r ' ' -P 1 ' \. (Plaintiffs.' Exhibit No. 1301 was marked for 18 > , 19 >r> f * *. 20 , kV 21 . , . ;rf j . . identififccation.). ' \ ^1 -. t tj - -, MR. CARR: Q, I "hand y o u now what's been mark e d as " Plaintiffs 1- Exhibit 13 01..' And, Mr., Park, I intend to ask you ti , - . V' ' - ^ >, ' 1 * to point o u t `certain exhibits to you: and ask y o u V ^ et^ r or not. 22 these exhibits show the tridioxiri'and the tetradioxiri that is r v* , 23 * described1in this 24 \ u . A *" is. MB541-, is that , '' exhibit1 v And the 4v ^^ correct, sir?1 ,i * first 1 product, , first p- t number d ` ` " ` -24- . ` ft* .: \ c <, /<i K 1 . A.' Yes. 1 * ., 1 Ts' .'1".. - 2 * ` Q. And the exhibit'shows'that J3B541 has no detectable 3 tfichlorodihenzo-p-digxin,. no detectable tetradioxin, but 4 5000 par.ts per billion of the heptadioxin, isn*t that-correct, ",, ' 1 ps i 5 sir? . '- ` ! 'V * v i, ; , >< ' ' - -; :k,'1 ,1JJ 6 A. There are no designations given here. This just says 7 five thousand -- ^ , 8 Q.: Here, i( ^ rlet me`:1her lp you wi1 th an exhibit.You can't '" 9 - read that exhibit from'where, you are.. I will hand you 13.35B. JO to help you:to refer tb-it.; And you see 113 5Bi:describes ] Jr f*L ' 'i * f J T ^ ,1 i' , 11 541--- ;MB541, do you,' sir? * ' * * ^^ ^ l *' -1 i \ / t , 12 *A. 'Yes; I do. L. 13 Q. . Well, I will' represent to-you that there, is evidence - -1 ** 14 in this case- that this-was van*orthochlorophenol crude that 15 was manufactured In February of. 1978 and that it was listed; as 16 batch!number in iExhibit 1135 as KI128 003y which would mean a' 17 -*77 production, been tested;iri February of '78. You see that, 18 \ sir? . 1 ; }'./ `W - / ' 1 9 A. No, I don't,.'Mr/ Carr. <9v ' -" '.` ' 20 ,` Q. You see the KI128 003, under the heading Bateli Number ' ' h;- J ;' ` 'r, r i `~ _ 21 ,bn 1135? *_ ' -, - ,, , . 22' , 23 s' A.* Is that- il35? '( \ . ^ , Q.^'Yes:. -The, date 1is1not important/ Mr. Park.- . So don,'t ` 24 worry about that. But it .does show that this particular v 1r';-iAf^; V* i p-i M .- Lf /J J . ( f ' f- * I% /* ; r: V i _.* --'i.1/- t t$'J- P j'; `V-' : !/-.'i - t . , r r 1*. ti ** 5 L - -25- " ' - f o r m i l * b2 b * t o n n e . n . j . o o o i7 Lproduct, this orthochlbrophenol 'crude, had 5,250 parts per j billion of total dioxin* is that'/correct, sir? . ^ ' .* " * ` J iN*. o1 w,'f y- o,u a* re -r" e. f. errin>tf.g- to 1301'? -^ " * ^ ' *r i ' t. - / -* 1 . , t ' ' i t " .* \ Q. And 1135B that you have in front of you, sir. ' A. I, have difficulty reading this information. Are you _ - / i" k>,v-/ ^` ^ ' , ,, adding it.-all together? , ' i, j. 1' 1 J ^f ;j> That's correct. / ^ 'i 1. - ... 1J r r , , . . 1 * i * ` 111 t A.J I just don't know, Mr. ., Carr,. 1 * This ir 11 ' is.something j I just | don't do as a'general rule. ,7 y ; p " 1 ;Q. * , Well, m* if you look i . * % '< at Oil j 'i for v*' MB41, 'do/you 'see j ' Tu-1 nd*er* \that column,you have got 200?, , '^ A.< I have got-2Q0> yes .!- j. ' ` ' -i '. , v ,<_1 , - > "V, `\ ' ." ['` '' ' Q. And do you see.50 'under'CI2? ` / , 1 -' y 7 A. I see that. 'Vv - v, 11' < > y rK - 1 . iV ; i . if - -"' 11 y .. t, , .y - . ,; Q. 1 A_nd!< d1o" yo*u see, \ 5,000 ic r ^ undr er Cl7' ? -- ` . r . _ ' \ - * -J * A; ' Yes, 'I do, t **'t.,7. j1y L,J 1 ' V ' ''/'^ ,r *. * 1 i . /. 11 * 1 '1 % ** , v '( \ ' ^ ' Q.' And do those three numbersadd up to 5,250, Mr. Park?, *. - r " " r ^ * * t T <' .J ," ', ' ,V. ; -"m /'/ , r A. Yes, "I see. that. -' ' ` , ... , , i. 1 Qp.<* 1And r. that/is I total'dioxin f d"etec' ted in this ortrhochlb' ropheno^l / crude that was manufactured, a year 'or so before ,the accident in i"i?-7 ' ^ ^ yquestioni/ Yofr recognize that,'' don*t you, sir? =f lfs'v V'.'!*f j jv i ** r ' ", ' * *..v . f r>-- ti-- '*,>r t ' . `J- 1 j , ,l . ^ 1 *L \ 1' ^ , .1 .A. rI, 'j g-u,* ess,'tpha,t is *' W- ha't w e 'can infer, Mr. Carr. V^ fy ./"v^-,// ' ` `- L*' , ` VI am^ at;a tbtaiVloss here on these documents; 1 'I. ju st - -y'. - , ,t' ^ W Ki;\Q. Mry! Park> all I am askirig you to do, is to acknowledge1 'J -26- 1 that these exhibits show that MB541, which I am representing to you is orthochlorophenol crude it1s 'in" evidence1to that .1 . effect. And it was manufactured a year or so before the V ) accident in question. I am representing that to you. You gan - *' g - '-, i havo^ii c: tL.r-:;e. yy rr\& assume that to be a fact. Would you, sir? 'roun j"- 1,.jjo' ~ ** ^-I i * f'^ >.. . ... . i Si'! A. .1 will assume that, yes. '//, 'L 1 rarhor t :c._, t'-.rou: ^ ' -y -> ' Q. Then Exhibit 13 01 accurately reflects that it lias . V* ' - *. ' . i t I t ir -- 0 , v :: t h e n g - ^ W r / , in it 5,250 parts per billion of total dioxin, doesn't it, 7/1 ^ w '- ' 'jury ha.irg L, , sir? ' '-r = j G J .101 t C * f c o j u r y a i . t t . i r ^ A. I gess so. l Q. Do you have to guess, sir? ` 'J ''-5J...'J1j Vf7 t l; '-/ A. M *r **.> Carr, * ** t y ' I** (1 am a1(t a, --> this has a number of different *- ^ '' ' '*- ** . r JZ . OI" ; \\O 7/1 Vi m columns. It has dates on it. <j - C \ ' 'i 'i'::- (o .h1"""i. V> Q. Yes. " o n . - T o n e r , a u b j e e v - o i,y *.r * A. Product acronyms here. I am just totally unfamiliar ; t V . - . . . . '7 i n P K : t. b ' r . with this kind of thing. j ' m*\ m / i * m ~ , ' * * ? y , 1 i *, i ^ . F 7, J . , ^ ^^ ^ ,, Q. Well, I am representing to you that OCP stands for v - r i c Vo o.:' y..-; Vi - / :on o y : rr o non:-;. V op.v O - u l J tortho,chlorophenol crude. A. Q. ' ' y<.' pi fOkay . r l r . . 3^1 ; V 3t t o ' - h r . - Now, would that representation -- o.. `O;;- .r *' l -4 : A. I can add /'' p up numbers for :i :: j bi y>o4u0,. but if you are 1301 -C ,v:. asking ^ me to go beyond these documents, I am simply in no position ' ** i"'i* * to do so. v'r. o p ;i;rj 1"f l r. try Q. I am not asking you to go beyond other than what I V'-V- - .-t o o ::, ^ .v :'r -27- 1 A. Yes, all right. 2 Q. And before I pass on from that point, do you actually 3 think that the burden'put upon you chemical companies to tell i 4 the E.P.A. about the toxic substance was just for academic 5 reasons and not because the E.P.A. is obligated to do something 6 about it if they find levels of toxic substances coming into 7 the environment? Do you actually believe.that, Mr. Park? 8 A. Not at all. *** 9 Q. Then is it possible, sir, in your judgment that if the 10 ! E.P.A. had been, notified by Monsanto that it was shipping out 11 in 1978 orthochlorophenol that contained 5,250 parts per 12 billion of dioxin, do you think -- that is over five parts per 13 million. Even the level that you set, it's over that level. 14 Don't you think that it's possible that they would have told 15 Monsanto, "No, don't ship that out until you clean it up"? 16 A. I don't know, Mr. Carr. 17 MR. MUSGRAVE: .Objection. Same question has been 18 asked and answered previously. 19 THE COURT: Overruled. 20 21 22 .'. MR. CARR: Q. Do you know -- f r *> THE COURT: I didn't hear the answer. << THE WITNESS: ;The answer was I don't knc-w, your 23 Honor. 24 !; V L r 1' 1.1 k }MR.- CARR: ` Q. Do you know of any reason why Monsanto -35- i 1 could not have undertaken the elimination of caustic in making 2 its chlor&hted phenols in the year 1978 rather than undertakir 3 that in the year:1979? 4 A. I don't know, 5. Q, Do you recognize and this -- th entry at the bottom 6 of the page of Exhibit 1301 is for a batch of orthochloropheno 7 that was tested, in 1983. And it shows and contrast to the 8 batch they tested four or five years before only 18 parts kT 9 per billion of total dioxin. You see that, don't you, sir? 10 A. I do see that. * 1 1 Q-.r .For the recor.d, tha1 tF ips Plaintiffs' Exhibit 1192 12 that shows that. . Do you know of any reason why the product ' 13 they manufactured in 1978 could npt have been cleaned up to 14 contain less than 250, parts per billion of total dioxins? IS A. .Mr, Carr, I don't know. -< t ' * *1 1 / [ 16 .. Q. The next entry in the Exhibit 1301 I will represent 17 to you ,is orthochlorophenol crude that is in question in this 18 case. . 19 THE COURT.: _ Mr. Carr, before you get into that one, 20 is this a good point for a short break? , 21 MR. CARR: Yes, your Honor. ' * -T* tin 22 THE COURT: Ladies and gentlemen, we will take a 23 short break-at this time. The admonishments that I gave you 24 earlier will apply in this break also.. Court is in recess. -36 1 and'65 and that adds up to 20,000 parts per billion, does 2 fit not, sir?* *, i V ," * -1 '' > - ti *' Ti 3 A. Well,,if you are asking me to add them, I will, Mr. 4 Carr. 5 Q. To save time, 1 will represent to you that I have 6 added them up and that appears to be in the ballpark, doesn't 7 it, sir? 8 A. I guess. 9 Q. Well, don't -- ` -E>* 10 A. Well, let me add them up, Mr. Carr. I will be happy -- 11 Q. When you see 7,000 and 10,000, that is 17,000 right *+ Ky 12 there, isn't it, sir? 13 A. That's right. / 14 Q. And then you get 3,000 more for the tri- and that is 15 20,000, isn't it, sir? 16 A. Appears so, yes. 17 Q. And, of course, since you don't know the use to which 18 or do you know the use to which Santophen is put? 19 A. I 'm sorry. Not off the top of my head, no. 20 Q. Well, IJ.11 represent to you that it's been known to 21 1 go into Lysol. And this is Monsanto Exhibit 847A. So you know it is a Monsanto exhibit and they brought this bottle in and they showed -- that they testified -- that they had their witness testify that this is what Santophen goes in to make up -38- 1 Lysol. Nov, would you accept it, sir? 2 A. Yes, I will accept it 3 Q. Now, do you know whether or not the E.P, A. was ever 4 notified that the Santophen that was being manufactured S in February of 1979 contained 20,000 parts per billion of 6 dioxins? 7 A, Off the top of my head, I cannot recall 8 Q. Did you ever have a Section 8 (TSCA meeting to discuss 9 whether or not you should notifyythe E.PA*- that the material 10 you are producing and sending out contains 20,000 parts per II billion? That is 20 parts per million, Mr Park, 20 parts 12 per million of total dioxins* Did you ever have a Section 8 (a) 13 meeting to discuss that? 14 A. A Section 8 (a) meeting on Santophen? 15 Q. On Santophen. 16 A* Mr. Carr, I just -- we have held a number of Section 8 17 meetings And frankly, X just cannot recall* 18 Q* Well, I have never gotten one. So can we either assum 19 that you didn't have one or the attorneys from Monsanto have 20 not obeyed the rules of this Court and have not given me those? 21 A* I don't know, Mr. Carr. 22 Q. You don't know of any you held, do you, sir? 23 A. I would prefer .to look at my list that X have. 24 Q. If you have a list, please look at it. -39- I A. I don't have it with me now. It's back in my 2 office, Mr. Carr. 3 Q. You have a list of -- 4' A. Of 8 (e) meetings that have been held. 5 Q. And X represent to you again that the only ones that 6 we got dealing with chlorinated phenols were the ones you said 7 this morning, four such meetings. 8 A. Is Santophen a fchlorinated phenol? I am not a chemist, 9 I am not a toxicologist, Mr. Carr. 10 Q, Mr. Park, you related that before you worked for a 11 chemical company and you had toxicologists tell you time and 12 time again, you have had chemists tell you time and time again, 13 and are you sitting here and telling us that 20 years at 14 Monsanto, or whatever the number of years, and all the meetings IS you had dealing with their products and you don't know that 16 Monsanto makes Santophen which is a chlorinated phenol? 17 A. I know Santophen is one of our products. I do not 18 know what it is composed of. 19 0^. Have you ever had, to your knowledge, a meeting, a 20 Section 8 meeting on Santophen that is being shipped out, sentJ 21 .into^commerce .by.yourcompany? 22 i` ; r... V -*t.N ` `l *A.` Mr.' Carr, i would have to check my list. There have 23 \ <*7- been1a number of meetings. And it's conceivable there may have 24 been one on Santophen.- I am not prepared to just say yes or no, -40- 1 Q. Well, although your attorneys say that we have got 2 them all, past experience shows that every week.we g$t more 3 things coming in that weren't given us before. So when we 4 recess today, would you, please, go and check your files again 5 because you were asked to produce -- and I thought Mr. Massif 6 represented to the Court here -- was it Friday or Thursday, 7 Mr. Nassif -- that you had furnished all of your files dealing 8 with dioxin and TSCA meetings dealing with chlorinated phenols. 9 But if you think that, you may have more files, at the close 10 of businessvtoday I would sure like you to check, sir. Would 11 you do that? 12 A. Yes. I will certainly check. 13 `'O'. So ,as far-as your present knowledge is concerned, - * \ -v,* -_ ` 14 "you have no present knowledge of ever having notified the 1" p *t , 15 E.P.A..hat.you-were sending out Santophen, sending into .' *ir,* ' ' - \ 16 commerce Santophen Which'^contains 20,000 parts per billion of 1 17 total dioxin, isn't that correct, sir? 18 A. X cannot remember having done so, ..that's correct. 19 Q. Now, did you ever discuss with Dr. Pagpfct about the -- 20 what he considered an acceptable level medically speaking of 21 2,3,7,8 content of Santophen? A. I can't recall, Mr! Carr. Q. And would you consider a statement that one part per billion .`.is probably acceptable medically for Santophen, would -41- 1 you consider that that one part per billion would be the limit 2 above which you should not go? 3 MR* MUSGRAVE ; Object. It calls for the witness to 4 Btate conclusions as to the state of mind of the speaker of 5- ,that. And also it is again Dr. Wilson saying what Ur. Pagefct i ", ; vi , ,f', 6 .said. - And now he is asking him to take what Dr. Wilson said 7 .as what*Dr. Pagett said1and to speculate as to what the 8 original speaker had in mind when he said whatever he said. ; v':*, ; ' 9 I object to it. 10 THE COURT: Overruled. 11 THE WITNESS: Mr. CaiWrr, I just don't feel I am 12 qualified. I don't know; 13 MR. CARR; Q. Well,K- I am asking you as a lawyer 14 who is trained in the use of words and to understand what words 15 mean and precisely what words mean arid to read documents 16 and discover the meaning that might be hidden in those document*; 17 through the use of the English language to tell me whether or 18 not you would agree that this document states that one part 19 per billion of 2,3,7,8 TCDD is the level above which you should 20 not go for that content in Santophen. 21 MR. MUS GRAVE : Saine *objection. 22 THE COURT: `Same ruling. is, *- 23 THE WITNESS: I don''ftt seev that statement in there. 24 MR. CARR: Q. You si%eetha^t it says that he estimates '* -42- f* * l' 1 -^ ! y '1 -'1 .s that one part1per billion is probably acceptable? 2 ; {S y. ` 7 ' * a ; Yes;1 * - ' 3 Q, And you don't have any quarrel with the word "probably. 4 You know what probably means, don't you, sir? 5 A, Yes, 6 Q. It means that it may be, it may not be, correct, sir? Ti' 7 A. Yes. 8 Q. And "acceptable," you know what "acceptable*' means? 9 A. Yes. 10 Q. And you know what "merd- ically" means, don't you, sir? 11 A. i think so. 12 Q. Mecically means it has to do with health effects. 13 You understand that, don't you? 14 A. Right* 15 Q* And if one part per billion is probably acceptable . 16 medically, the -- that statement isn' t all together sure that 17 that is acceptable, isn't that correct, sir? 18 HR. MUSGRAVE j May ray objection run to this entire 19 line of questioning about what Dr. Pageti may have had in mind, 20 with regard to what Dr. Pagetc may or may not have said? 21 THE COURT: My ruling is the same. It doesn't call 22 for that. I will note your objection as a continuing objection 23 to this line of questioning. 24 MR. MUSGRAVE: Thank** yo* u,r -43- iV. ' ' S ;, f , .. t-* '. i 1; 'THE WITNESS: I donM: have deep familiarity with '2 . Dr. Paget's vocabulary. -I have n o `idea what he meant other 3 -than what is just quoted apparently or, stated by Jim. Wilson 4 here. .It could well have/been .that. Dr. Paget would have, said five 5 parts per billion, ten, .twenty or anything, was -medically 6 acceptable. I don't.know'. ,^ ' ?J 1* aMR. CARR: ,h " , r * 1- ' . * i# ,, ` ^f Q v-.Well^, but-did he say that according . ' ,V _ ^ ! L. ' > 8 - to this memo?*' . -V 9 A. It says, "One part per billion is probably acceptable. 10 Q. And do you :get. from .that that 20,000 parts per 11 billion`Of total dioxihcls-acceptable? v ! \ 12 A;.--It doesn't say that. 3 13 r * i. * 'i i` j " 1 Q. It doesn't, does it? And'do you get from that that, 1 4 medically acceptable? 15i.!i'* would not be 'acceptable. 1 6 > ^ItVdoesn't say t h a t it would be. 17 '* ;iO-'Vs - Q-, ** ; j\ ` - , Why do you conceive that Dr. Wilson asks Dr. Paget 18 * V- *-*tI-'7,'*1Y*P!vft,Y*,? r-;ji!,*--r - -*>'*fr--JM,'- ; ' * ' -" ,1 , I ' ` '- whether or not one part per-billion would be acceptable or 1 9 what was medically acceptable? " - `` 20 , A. i.. 'don't knofw'.- 1 r * ij* ' ^ \, '. 21 MR., ,MUSGRAVE: Just a moment. I object now to a. 22 witness testifying ,a n d fbeing called to -speculate, and pass- 23 conjecture as to why he'might .Conceive that Dr. Wilson might 24 . have asked Dr*,Paget a, question. Again, it's just sheer 1 .; * -44- . 1 -' - *1 PENGAD CO.. BAYONNE. N .J. 07001 FO"N IL H B . 1 speculation and conjecture and conclusions as to the state of 2 mind of others and totally improper. And I object. 3 THE COURT: Overruled. 4 THE WITNESS: I don'Jt know, Mr. Carr. 5 MR. CARR: Q. Well, wasn't Dr. Pagett and Dr. Wilson 6 both on your committee meeting in June of 1979 when you were 7 discussing toxic substances? 8 A; I would have to.check. But,. Mr. Carr, they have both 9 been here to testify. .They would be better sources*of that 10 information. 11 Q. Well, we have asked them already, Mr. Park. But now 12 I am asking you because you have to evaluate what they tell 13 you. You are sitting on this committee in June of 1979. 14 And you areLnot a toxicologist and you are not a chemist and 15 you are not an M.D. You are, however, charged with the one 16 to preparing the memo to interpret what they say and put it 17 down on paper to accurately reflect what they say, isn't that 18 correct, sir? , , .. 19 ; "A./ That's- correct. \ 20 .r,, Qv And you, therefore, have to know what they mean when t rtf i* i* >k- r ( |L 21 they use words, "don't you, sir? * ... -7 L.,1 <'.' t i' ` `1 `'` 22 A. J When they use them before me when I can ask them what 23 they mean if it's unclear to me. 24 Q. And you have to know what Dr. Pagett says. ,He gave yor BAONNE. n.j , -45- tr 1 a memo as of what he said about this 2,4,6 trichlorophenol, 2 didn't he, sir? 3 A. What number is that, Mr. Carr? 4 Q. Exhi1bit 1275, Plaintiffs* Exhibit 1275 dated June 6, S 1979. 6 A. I'm sorry. I don't seem to see it here* 7 Q. Well, 1 will give you another copy. 8 A. Wait a minute. Here is 1275. 9 Q. It's a direct quote from Dr. Pegefct there, isn't 10 there, sir? 11 A. Yes, there is* " * T1" \ I. 12 ,* r Q.- ,And it's at the same subject that we had the notes of ; ; / i: ,^ t IV, 1 , ' * </ * - * ^ " - Vr ' 13 somebody at that meeting that equated the carcinogen!ty 14 o f 2 ,4> 6, trichlorophenol .to one part per billion of 2,3,7,8, 15 isn't that correct, sir,? 16 MR. MUSGRAVE; Same objection as before as to the 17 interpretation of what, that means, your Honor, and object 18 to this as being repetitious. We have been through this now 19 I think Friday several times. And we are back to it again. 20 I think we even touched on it again this morning. Object to 21 the repetitive nature of these questions. 22 THE COURT: Different context. Overruled. 23 MR. CARR; Q. Could you answer that question? 24 A. I*m sorry. -- 46-- 1 Q. At that meeting on May* 22, 1979, this memo 1290 2 equates one part per billion of TCDD with the carcinogenicity 3 pf the 2,4,6 trichlorophenol, does it not, sir? 4 MR. MUSGRAVE: Object. That is mischaracterization. "t*1 l*7J 5. 6 - - THE COURT; `-'Overruled. , 7 ' , .THE WITNESS:, Mr. Carr, are you asking me about what i v ; / i'v /. 8 the second line in Item No. 2 of these handwritten notes? 9 MR. CARR; Q. That's correct. 10 A. It says, "One ppb 2,3,7,8 TCDD in 2,4,6 TCP would 11 cause effects described." 12 Q. And we went through it. Effects described was these 13 cancers. You recall that, sir, to the best of your recollectie 14 MR. MUSGRAVE: Objecitt* . Ia*t- 's been asked and answered 15 several times. 16 THE COURT: Overruled. 17 MR. CARR: Q. You recall that, sir? 18 A. I recall you showing mo that board there, yes. 19 Q. And that's the same one part per billion of 2,3,7,8 TC 20 that is being mentioned here in this memo just one month and 21 a couple of weeks later again with Dr. Wilson's signature 22 July 9, 1979, isn't that correct, sir? 23 A. It appears to be. 24 Q. And you apparently had no problems understanding what -47- A,' f . ! . > -{ "i *, .'t; ,v'1', 1*^i; . / *r !iJ . *> *I*. ~. . 1ih "/ ji ,' '`i- -i -. v l V w " :v- b ' A . 'A *r L r;;'1;;*/} / \ i v a is ;' '' i{V.<-*'<-'~p \*'i*f$* >vi ' '.f'i ,. . , 1 1 ''he was saying'about""one"part per billion of 2,3,7,8 TCDD in t'f*\ r` : r.'i , V?-*? - { -!1/. I j' ',,-aj 2` May., of j "* 7k 9, were you, sir?* , ^ :-1 1 * ^r L 3 A. Mr. Carr, I-don't, know if. this was -- I don't recall , 4 if this was'`even mentioned-;, , "; > .. 5, * Q; .I'am not'asking if 'you recall, it, :sir, because you 6 have no recollection of the meeting. This memo that was 7 , given to us by Monsanto as,notes.taken at the. May 22, 1979, > meeting -T and1we have been' through all of this/1Mr?1.Park -- 1 J 1' li ,* , 9 does describe and does, discuss the effect of one part per, ., 10 billion of 2;3,7,8,. doesn't it, sir? . . 11 t J '^ MR., '* M 0S G RAV E: T' Object ,-r - to the question. It's been 12 ,,asked'and answered. And I object to counsel'sLstating that , % * \ t; J 4 13 '* * " ' i' now he is not asking that when that's, in fact, what he just 14 did ask him about whether.he, recalled that being discussed ' , * i* ", 15 and he said he didnit and you'said ypu are not asking him _ Xi , r * ' 1 * * * ' 71 r * 1' [ 16 whether he recalled what ^was said. I object to coixnsel's -- 17' * MR. -CARR: Well, if I did say that -- I think you are 18 right, counsel. And. I ,apologize to the witness.' _ 19 _ Q., And you'have'said that you can't recall,, right, s:.r? _' r ., b * v 20 , *A. Yes. ', .4 ^* T 21 I Q. r, B u' t's,th' i1 s memo * does fl* ` dist?ncu. s. s 7i' t, f doesn't it,' ' sir? p 22 - ' ' \ . .MR. -MUSGRAVE: ,It is not a* memo. It is someone's j |J' #f- ISi* 23 handwritten notes, Mr.-Carr. ' w ' 24 MR., CARR: Q.' The-notes of Dr. Wilson does discuss BAYONNE; N .J. 07002 . FORM IL 14 B , -48- 1T w 1 it," doesn't it, sir? *'* 5. 2 A. Well, whoever rwrote .these notes do mention. 1, ' F r t ,* 'k 3 1 Q; Arid the Exhibit 1239A does mention one part per billior '<, -- i.- ,4 of 2,3',7,8* also/ doesn't Jitj ,1\ sir? mj ^ J l(i j 5 , p " A., .It'doesr . * " 1 ta*... ` , -, 1J . , ** * l '>. ' .- ,6 \ , , Q. f- Novr, ' do ' you J thinkj ,, *' i Mr .` Park, - J1f vV) ' ( , * or > do you have any : ` 1. i i , v. _j*1 ^ * hi ' `X reasons, do you know -r-.here, you have discussed in 1S8I, 8/, January, 1981, your TSCA`committee rdiscussed the-Veffects of -- 4 ,, and whether or-not you should report'a carload or a product that IQ had 9.5..parts per billion of :tetra in it and -- did you not,, ^/*' I! , sir? .You had -aimeeting/to determine whether or not there should 12 be a Section .8(^1 notice to the E.P.A. because of the presence, 13 of,'9.5 parts'1per billion of tetra in that^ isn't that correct,' k " * ,.r Jp 14 sir? - 'r' '*) ` `' '-*`i ,r. ` . 1 15 J MR." MDSGRAVE: -- O1bjec[ tV-.- ,, \lHtf-'.' s1 been asked /and. i answere` d* 16 " ' He has r , been through , -;' J 1[ thisalready, , J your Honor. It is just i 1? , repetition -and the same thing. -* . :r .v ' , *. /: ' 18' . THE COURT:' Objection is, sustained. 'That has been 1 , ,, r ` ' < , - i^ 19 asked-'and answered. ' *,< ` - t ' 1 ' 20 ' 1 .1 1t L `i ' 1 ^ 'i * MR.;' CARR: Q.- /Mrv 'Park, ifJyou discussed at that ,F * r ^1 '/ )% *'* rp j/` ' 21 ' time in.1981 whether or not'-- and according to the memo of 22 December :30,. 1980, Dr..,,Mieure said there was a potential 23: 7s c1 *3 T _ i f ^ I / I /j-*V::/* !J i*\ y :t !- .' , problem ofv.reporting' this' to the. E.P.A, * ' -1 And all you had -- you ^ '.l* i 1- . 1 ; ' i . - 1' ' , v j - * - 1 24 didn't-even have 1,000/parts.per,million -- per billion of total /f*'n(\ '-*r:0'>f*t\ .7 t . -49- BAYONNE. N .J. OIOOJ FORM 1L 1 4 0 r. * > f. ''A <; 1 dioxins and only had 915- of the tetra,'why wouldnVt someone 2 at Monsanto have a rSection 8 (e) meeting1when you have got a' 3 *j . *p ^ l it % * , r '^ , Santophen product that has 20,000 parts per billion'.total 4 /dioxin in it, 65 of^which is tetra:and 3,000 of'which is tfi- `5 which is nearly as toxic'asrtetra? 6 A. We hold an 8 (e) meeting whenever anyone .requests it, 7" ,Q. Thr en I take it what y-Jor u are `saying is that no one 8 /r ,- ' r 1 fc . -, ; requested a, meeting in '79. to discuss -this finding of these ' 1 iL(; L ; + V j J ,j !'' ' ' 9J levels of dioxin content in'this Santophen,. is that'correct,' 10 sir? 1 -lf ; V / 1-^ ' ' r * *` ' n/ ^ J :i ,\/rr\ \ /* \ 'o , - AV- i Sant^ophen now' ar,he'1 yo- iu*lc tal* kinr g f about1? * * - .. 12 T Q. That's what I am talking about. 'J -, -' i ^i * W> _1 h .` ; r * J 13.; ,; ,ij T* A7 ''Mr./Carr,:' we/.touched onthis earlier. - And -T 'said it s t m i -T n; . - ^ ' h H ; \ fJ'V f ; \ `frankly would V V- . n \ "" * have. torcheck my , file. We have.had a number is :: 16 -> of; 8'(e)Vmeetings, total 0 (e) meetings. J 1: - ''' " ( r Mr. Park,-X-am going `-to. represent to you because we 17 . cani.t stop this examination at this.joint, that, your lawyers 18 1 have sworn:,under.-oath and they represented to this Court as 19 ' late as last week that we. have got -everything'you have got 20 dealing with TSCA meetings Section 8 (e) dealing with dioxins' 21 . or other chlorinated phenols. Now., if they have said this, 22. , if they have represented this')to-the -Courtwould you accept 23 that and we can. pass on? . ' 24 A.. I will accept that. " `^ - -50- > ' ; BAYONNET N.J, 4 1 Q. Do you know of any reason, sir, if the presence of 2 nine and a half parts per billion of tetra in the 2,4-dichloro- 3 phenol product in 1981 -- 1980/ rather, would cause this 4 Section 8 (e)t why 65 parts per billion and 3,000 parts per 5 billion and 20,000 parts per billion wouldn't cause a similar 6 meeting in *79? 7 A. I just don't know. I am not a toxicologist. I don't 8`; know-1 * ' . , - . .^ 9 / Q. And. you- have .-- as other things being equal so far as 10 - > ' ` t -,-r^ you know, Mr. Park, would it be a correct conclusion to reach 11 '* l ,i i1 that if you held such a meeting in 1981 to discuss the nine 12 and a half parts per billion of tetra that a meeting surely 13 should have been held in '79 to discuss 65 parts per billion 14 of tetra? 15 MR. MUSGRAVE: Obj<ecIVtion'. The question, is vague as , 16 other things being equal. Again object to this witness being 17 asked questions that require him to have toxicological and 18 medical knowledge to be able to answer. And it's been 19 established and Mr. Carr has even admitted that he doesn't O u a <o 20 have that knowledge and yet he continues to ask him questions. 21 MR. CARR: Your Honor, I haven't admitted that he 22 doesn't. I believe the man has the knowledge. X believe he is 23 simulating is what I believe. X believe he has the knowledge. 24 MR. MUSGRAVE: I believe the record will show -- -51- 6 AVON NE* N,J, *r* l THE COURT: ' Whether he has it or not, I don't think 2 that question calls `for that kind of knowledge and to the 3 degree of expertise that you are suggesting in your objection. 4 Therefore, whether he has it or not, your objection is 5 overruled on the basis of the question that has been asked. 6 THE WITNESS: The answer is, no, I wouldn't agree 7 with that at all. 8 MR. CARR: Q. And why wouldn't you, Mr. Park? 9 A. I am not the one that calls' the meetings. The meetings 10 are called by people with' greater knowledge of toxicology, 11 greater familiarity of the product. 12 Q. Mr. Park, I gave you -*aa- n assumption -- and you know I 13 gave you -- other things being equal, is there any reason that 14 you know ofif you are going to have a Section 8 () meeting IS for nine and a half parts per billion of tetra in 2,4-dichloro16 phenol, is there any reason that you know of why you would not 17 have a meeting for the Santophen that has the content as I 18 have suggested to you it has? 19 A. Yes, Mr. Carr. From my perspective we hold a meeting 20 when someone requests it.. Someone requested here for the 21 dichlorophenol 22 Q. To put it another way,do you know of any reason 23 why someone would not request a meeting on the Santophen 24 content in as much someone had requested a meeting for the -52- ,< * 1A m, li 1 '. *Mar ft nine and a half parts per billion Content in the 2,4-dichloropho 2 A. I don't know. 3 Q. Do you know of any reason, sir? 4 A. No, I don't know of any reason. 5 Q. Other things, being ec^ual then, should a meeting have 6 been requested for the Santophen as it was requested for the 7 2,4-dichlorophenol? 8 MR, MUSGRAVE: Object. It's been asked and answered, 9 repetitive. 10 THE COURT: Overruled. -`-*i* 11 THE WITNESS: I have no idea, it depends on 12 whether or not someone feels that a given product would present 13 a substantial risk of injury to healthvorrthe environment. 14 Apparently, no one felt that if a meeting was not requested. 15 MR; CARR: Q. And someone felt that the nine and 16 a half in the 2,4-dichlorophenol does represent a hazard? 17 A. I don't know if it was nine and a- half, Mr. Carr. 18 Q,. You .don't know it was nine and a half? 19 A. But for some reason someone felt that there should-be 20 an 8(e)-meeting to consider the dichlorophenol. 21 Q. Now,. Mr. Bark,,you do know it was nine and a half. 22 You do know that they reconfirmed it. They examined that and 23 confirmed it. There is a September 15, 1981, memo which 24 confirms that. And you know that, don't you, sir? -53- 1 A. I don't know that that was the cause of the meeting 2 being called, Mr. Carr. 3 Q. Well, now you are changing the subject again. You do 4 know that they confirmed'the presence of that in a subsequent 5 test, the nine and a half parts per billion. You do know that 6 don't you, sir-; as shown in Exhibit 1282A? 7 MR. MUSGRAVE: Well, X object, your Honor. That's -- 8 there is no evidence that that was a subsequent test, whether 9 it's the same data. 10 THE COURT: OverruleHd. -V11 MR. CARR: Q. See there nine and a half, same 12 thing, better written? 13 A. Yes, X dor. see that. 14 Q. Mow, having called a meeting for nine and a half 15 parts per billion, is there any reason that you know of, 16 having been a functioning member of this committee, knowing 17 the people involved, knowing the ones that make the request, 18 is 'there any-reason that* you know of why a meeting should not 19 *'. ,', * * '. ,- -v , have'been requested and held for the Santophen that was 20 c. ; :? V * manufactured in'* *79?. 21 A*. ,,Yes. . 22 MR. MUSGRAVE: Object, it's been asked and answered. 23 THE COURT: OverruleTdt . wr 24 THE WITNESS: No one felt that there was a substantial -54- 1 risk of injury to health or the environment. 2 MR. CARR: Q. Mr. Park, someone felt that nine and 3 a half in the 2,4-dichlorophenol represented a health risk 4 and you held a meeting. 5 MR. MUSGRAVE: Objection. / 6 MR. CARR: Q. I am ^asking you why didn't someone 7 feel, so far as you know, that 65 parts per billion in the 8 Santophen posed a greated health risk. 9 A. I don't know, Mr. Carr. 10 ,' ' 7, MR. MUSGRAVE:, Just a moment. Just a moment. 11 1* ! MR. 'CARR: Q. ' Six times greater than the nine and 12 a \half in the 2,4-dichlorophenol. j. > t* ' 13 , r' MR. ^MUSGRAVE: Just a moment now. I object, your :. , - m u f ; i; , *- 14 Honor. Because now he i3 asking him why someone else, some 15 unidentified someone else didn't feel that there was some 16 reason to report this. That is speculating and requiring 17 conjecture as to the state of the mind of an unidentified 18 person who we don't even know what his qualifications were, 19 whether he could or couldn't make a determination. It's the 20 wildest speculation in the world for this person to speculate 21 on that. It's totally improper. And the question in other 22 forms as to this witness's knowledge as to why someone didn't, 23 though objected to previously, has already been asked and 24 answered. PENG AO CO. -55s 1 THE COURT: Do you have anything you want to say on 2 that? 3 MR, CARR: No, your Honor, ft * j f <' / . f. * 1THE COURT: S Objection is sustained. * + **' * '' ' V* 5 k 1 MR. CARR:1 Q.' Is th' e* re avny reason that -- you know 6 , t " t *^ - T that Dr. Wilson `is* this organic chemist that is in charge of 7 'v \ *: 'r a lot of things out there and you know he is on your committee, 8 don't you, sir? 9 A. He is not on the committee. 10 Q. Has been on your committee. 11 A. He has attended at least one meeting, perhaps others. 12 Q. Do you know of any reason, knowing Dr. Wilson, why 13 he didn't call or request a meeting for the Santophen that 14 has 20,000 parts per billion of total dioxin? 15 A. I have no idea, Mr. Carr. 16 Q. Someone requested a meeting in January, 1985, with 17 Tetrathal that contained 250 parts per billion of total 18 dioxin. You recall that, sir? 19 A. Tetrathal? 20 Q. Yes, Tetrathal that had 250 parts per billion in 21 January, 1985. Do you recall that? sir? 22 A. Yes. 23 Q. Now, and that product didn't have any 2,3,7,8 in it. 24 Only the waste, the residue had the 2,3,7,8. And it had only .,-'-56- 1 an average of 250 parts per billion. And this is a hundred *2 times more than that, nearly a hundred times ifiore than that, 3 of total dioxins, isn't that correct, sir, in the Santophen? \1 4 And no one called a meeting. Do you know of any reason why 5 someone would call a meeting for something that had 250 parts . 6 per billion of total dioxins in it and yet a meeting wasn't 7 called in 1979 where something had 20,000 parts per billion 8 of total dioxin in it? 9 MR. MUSGRAVE: Your ?H* onor_ v,) this is the' same question. 10 It, asks it in the same fashion, just relating it to a different 11 meeting. Mr. Carr knows very well that he is going over the 12 same ground again and again and again. It's repetitious. 13 And I object to it. 14 THE COURT: Objection is overruled. IS THE WITNESS: I would say a meeting was not called 16 earlier because no one felt there was a substantial risk of 17 injury to health or the environment. 18 MR. CARR: Q. And someone felt that 250 parts per 19 billion did represent a substantial risk to the health and the 20 environment then? 21 A. At least sufficiently so to ask for a meeting, 22 Q. And nobody felt that 20,000 pafts per billion represen 23 a substantial risk then. Is that what you are saying then, Mr. 24 Park, apparently? -57- 1 A. X am saying that no meeting was called, Mr. Carr, 2 that apparently no one felt that the situation was such that it 3 presented a substantial risk of injury to health or the 4 environment. 5 Q. Now, do you know of aCnt y reason why 250 parts petv 6 billion in Tetrathal might present a substantial risk to 7 somebody and 20,000 parts per billion of dioxin in Lysol used 8 in everybody's house does not represent a substantial risk? 9 Do you know of any reason, sir? 10 MR. MUSGRAVE: Object, your Honor. Now, counsel is 11 assuming that because there might be 20,000 parts in Santophan 12 that there are 20,000 parts in Lysol. And we have been through 13 that many times, Mr. Carr. And.that's an improper assumption 14 and improper hypothetical. Again I object to the question 15 also -- 16 MR. CARR: Q. It is. a* An*d I certainly will amend it 17 that the 20,000 parts per billion of dioxin goes out and it will, 18 ultimately end up in the Santophen at some level. 19 MR. MUSGRAVE: And I also object to it again because 20 it is also asking the witness again to speculate and made 21 conclusions and .conjecture as to why someone else, an r 'I ` 22 unidentified someone else, without any indication as to their 23 knowledge or^their ^background and training may or may not have 24 made a decision as. to whether there was or wasn't a potential BAYONNE. N.J. 0 7 0 0 1 FORM IL I4 B -58- * *- 1 substantial risk of injury, in a situation to take a look at 2 this under 8 (e) . Pure speculation and conjecture for this 3 witness to testify to that. 4 '1THECCOURT: Overruled. 5 THE WITNESS: Could someone repeat the question, . i' i- 6 please? 7 MR, CARR: Would you read the question to him, please' 8 (At this time, the Court Reporter read back the 9 following question: Question: Now, do you know 10 of any reason why 250 parts per billion in */ 11 -Tetrathal might*** present a J7* substantial risk to 12 somebody and 20,000 parts per billion of dioxin 1 V 1ST / *' 13 j in Lysol used i InV everybod**y's house * does not 14 represent a substantial risk? Do you know of r- .V- * 15 any reason, sir?) p , * t, j* 16 THE WITNESS:YFirst, I assume' you meant to say , i< L i V h. i ' rI . '*: ' / i- 17 Tetrathal? i:.J (, i C< ` a . > (.- , 18 .'MR1.' CARR:'`Q;. Yes. ^ 19 A. / Secondly, X have no idea what goes on in the minds of 20 others. So I don't know. 21 Q. Mr. Park, I can't accept that. I would like to to pasi 22 on. But you do know because you meet with these people. You 23 know these people. They are people you work with in your 24 company. They work for the same company. They have the same -59- 1 end, the same goal* So you do know* And I dm not going to 2 accept that* 3 MR. MUSGRAVE: Object* He is arguing with the 4 witness. 5 THE COURT; Overruled. I don't think the answer was 6 responsive in the context this witness works. And'so I think 7 that the non-acceptance of it as responsive to the question 8 is proper. 9 10 MR. MUSGRAVE; Your osrulins g is that it was not . " '' j r " / ' 7 * ji- , - t` < V' ^responsive to^the question that he doesn't know, what is in . 11 '.' '* :v '-i > .*' -J the minds of others, your Honor? 12 r . ^ h'p , rt >' ,*,1 T' HEl COU1RT- : s*, 'My rulin>g is ->that yourare^objecting to 13 V,Mr. ,Carr not [accepting that answer. And I think his 14 non-acceptance is correct under:the circumstances. Under 15 t the circumstances it's not responsive. Overruled. 16 MR. MUSGRAVE; Well, may my objection to' the Court's 17 ruling without an objection that it was responsive be noted? 18 I didn't think^that^anybody objected that it was not 19 responsive. 20 THE COURT; You know, I don't have to go by labels 21 What you ruled in effect was that it was -- what you were 22 arguing in effect was that it was responsive. And I am,saying 23 it was not. That was the sum and substance of your objection. 24 Because your quarrel was with Mr. Carr not accepting it as -60- I responsive. The/objection is overruled. 2 MR. CARR: Q,. Mr. Park, you do know these 3 gentlemen you are.working with, d o n 't you, sir? 4 A., I know the gentlemen that I ,work with and have contact 5 with. ' - 6 Q. Do you believe- that there is anything that you know 7 of about their expertise and their knowledge of dioxin that 8 `would lead them to believe that 250 parts per billion in A 9 the Tetrathal is going to have less of an injurious effect 1 . . L *r.', j s >*-/**. . 10 " upon* the.health and the environment than the 20,000 parts per 11 billion iniSantoph'en?; 12 MR. MUSGRAVS: Object to counsel now asking this 13 witness to go to the minds of others and have knowledge of 14 their knowledge and expertise and make a decision on that. 15 '.THE COURT: Overruled. ~ 16 THE WITNESS: The people you are talking about did 17 not call the 8(e) meeting about the 250 parts per. billion. 18 Secondly, X have no idea why in a given context would feel an 19 8(e) meeting should be called and in another context others 20 would not feel that the situation'did not present a substantial 21 risk of injury to the health or the environment. 22 MR. CARR: Q. Mr. Park, do.you k n o w whether or not any customer was -- whether Lehn and -Fink was ever told that th were buying Santophen that contained 20,000 parts per billion d -61- i t* * . .V/, -V v 1 r A. X just have no idea, Mr. Carr. .t 2 Q. And would it be fair to say so far as what you know 3 about the toxicity of various substances that 65 parts per 4 billion in tetra will have a more injurious effect thann. 9.5 5 parts per billion of tetra? 6 A. I wouldn't want to, say, Mr. Carr. Because the 7 context could be entirely different. 8 Q. Could be. But X am asking you so far as what you know 9 Mr. Park. 10 A. I don't know. i 11 Q. ' Do you understand? I!?* said as far as what you know. ' 12 A. Yes, X do. -I dan.l't know. I just don't know how they 13 would compare. 14 Q. My question, Mr. Park, so far as you know, is there 15 any reason that you know of that 65 parts per billion of 16 tetradioxin would have a less toxic effect than 9.5 parts 17 .per billion of dioxin? 18 A. I guess I can think of hypothetical factors that just 19 ' f~ ' v 1 come* to mindv* But i`just do not know what factors would be in 20 the minds of" people that do make -- 21 : Q. ' I ,am ,,riot asking you that, Mr. Park. I left that 22 question. , : !* 23 A. -- toxicological decisions. 24 Q. Do you understand I left that question? I am asking -62- 1 you another question and you are back on that question. I 2 left that question. Answer this question, please, that I 3 have asked you, sir. V. ,, 4 A. Okay. Would you ask it again, please? 5 ^ 6 (At this time the court, reporter read back the following question: Question: My question, 7 Mr. Park; so far as you know, is there any reason 8 that you know o-vf tha^t 65 parts per billion of 9 tetradioxin would have a less toxic effect than 10 9.5 parts per billion of dioxin?) Mf 11 '* ';MRU CARR: Q. Tetrad>*> ioxiyn. 12 A. I just don't know. 13 Q. Now, Mr. Park, the next entry there is 654 is 14 parachlOrophenol.' You.recognize that as PCP. Do you see that, 15 sir, again in Exhibit.1135? It had 3,800 parts per billion of * 1 1 f / ` 's 16 ^ `S ' ' trichlorodibeiizo-p-dioxin, did it not, sir7 according to that 17 ^ * * . t * * * *1 i* ' ^ ff -i , i h* '- \ exhibit? 1 18 A. 654? 19 Q- 654. About five various tests in the same product. 20 Q. There is 6,100 21 Q. I am referring to the top one, MB654, the very lead <*r 22 one. Do you see that, sir? 3,800 parts per billion of the 23 trichlorodibenzo-p-dioxin? 24 A. Yes. -63- 1 Q. And 130 * parts per bilwlion of the tetrachlorodibenzo-p- 2 dioxin? 3 A. Yes. 4 Q. And I will represent toa^ou that it adds up to 5 22,000 parts per billion of total dioxin. You see that, sir? 6 A. Yes, I do. 7' j ' * ii t*. . *.*.y r , t/Q* And the next one is March 1, '79, It contains 8 significantly less quantities. This is 662 if you could see 9 is ' \% .* `* that down Here'. '' * 10 UhT huh 11 Q. It contains significantly less quantities of the 12 trichlorodibenzo-p-dioxin, doesn't it, sir? 13 A. Yes. *J * 14 Q. Now, this is something that was manufactured according 15 to the records just a few days or within 30 days at the very 16 least of the sample 654 where there were 3,800 parts per 17 billion of trichlorodibenzo-p-dioxin. 18 MR. MUSGRAVE: .Mr. Carr, 654 -- are you getting that tv 19 date from Plaintiffs' Exhibit 1135? 654 doesn't show a date 20 for the sample. 21 t 22 MR. CARR: That date is f^rom -- if you would look at the code for that 1135, it givesthe batch number. If you 23 look over to the left there, it says KL025021. Do you see 24 that? -64- *F1 J 1 i >, ' t *l W :1 / " ` '*''*? i, T ^ j ' ' "+ r a ^, i # f' ' ' 1 t Ji - ' 1 All sight.* $ see it. it- . **, 2 ,l ,> MR) /CARR': '*iQ. Now, sir, the fact that the trichloro- 3 phenol in one batch of PCP is so much higher than the trichloro 4 phenol in the other batch of PCP indicates that something is 5 at variance or something different is going on in the 6 manufacturing process, doesn't it, sir? 7 A. I don't know, Mr. Carr. 8 Q. Well^ what other explanation could there be, sir? 9 A. X have no idea frankly. 10 Q. You have no i1 dea? ''n 11 A. No, not being familia-ttr- with the -- 12 Q, Mr. Park, please explore that. Because we want to 13 finish this case some day. The product is being manufactured 14 at the same plant* is. it not, sir? 15 A. I don't know. 16 Q. The Krummrich plant in Sauget, Illinois? 17 A. I don't know, Mr. Carr. I am sure there are others 18 better qualified. 19 Q. Well, I am representing to you that it is, sir. 20 MR. MUSGRAVE: May I agairn- interpose an objection 21 to now trying to qualify this man as some kind of a process 22 chemist and. give explanations to why things happen when, he has 23 no expertise in the field? May my objection to the continued 24 questioning of this man about questions that call for him -65- 1 to express ,'Opinipns, even conjecture and speculation if he 2 were experienced and had the knowledge -- may this be a 3 continuing objection, your Honor? 4 THE COURT: It will be aJcontinuing objection. I 5 don't think it calls for that. My ruling would be the same 6 under the continuing objection. 7 MR. MUSG*RAVE`: Thank h you.Mi 8 THE COURT: Please answer the question. is. r* 9 THE WITNESS: I d o n 't know. 10 MR. CARR: Q. Is th-'4e- re anything else that you know < 11 Mr. Park, that could account for the extreme differences in 12 tridioxin content in these samples manufactured within 30 days 13 from one another other than the manufacturing process? 14 A. I have no idea, Mr. Carr. 15 Q. My question is, is there anything else that you do 16 have an idea of, sir, that you have knowledge of? You think 17 somebody slipped out there in the middle of the night and put 18 in 3,800 parts per billion of tridioxin? 19 MR. MUSGRAVE: And I object to -- 20 1 ** MR. CARR: Q. What other explanation? Could there 21 be some vandalism going on there? Can you give me in your 22 mind, sir, what other variances you could.think of other than 23 the manufacturing process varying? 24 t p . j M R . .M U S G R A V E : Object to the question. I t 's already -66- 1 been asked and,answered. `The man says he does not know why i 2 there are differences, 3 THE COURT: Objection sustained. It has been asked 4 and answered. 1 ` 5 v MR. CARR: Q. Mr. Park, the reason I am asking this 6 particular question and questions like it is because you stated 7 yesterday or last week or this morning that E.P.A. knows the 8 contents, knows these products that you are manufacturing, 9 that they have experts that test things. You recall that, sir? 10 A. 'Mr. Carr, what I said is -- 11 Q. Do 1 you recall' that, sir? 12 A. Mot quite'that way. 13 MR, MUSGRAVE: Well, now you are asking him what 14 he recalls and he is going to tell you, Mr. Carr. 1 /` ; i;-y 15 , *** \ t\'MR".'45`CARRs.-*Q. ^LYou don't recall it quite that way? 16 A. No. . i recall it slightly differently. That the E.P.A, 17 V ?. does understand that certain processes are likely to generate V 18 i ; '* j % .* ,7 :' i ', j1 dioxins'." *^ - 1 ` 19 Q. And you also testifieObd' that they come in a plant and 20 take samples. But, of course, you couldn't specify any time 21 that they did, ' And they do know that it generates-chlorinated ! 22 phenols can have dioxin. But they also know that a 23 manufacturing process exists whereby you can ^-rperhaps a little greater cost, a little more care -- but it exists where you -67- 1 can manufacture chlorinated phenols without having levels of 2 dioxin. They know that too, don't they, sir? 3 A. I donft know. 4 Q. You don't know that? Well, you do know that Dow 5 does it without dioxin contend, don't you? 6I A. I am not sure that I do. 7 Q. Well, you do know that there is a big variance 8 between 3,800 and 180, don't you, sir? 9 A. I don't understand your question. 10 Q. Big difference between 3,800 parts per billion and * 11 180 parts per billion, isn't there? 12 A. Yes, there is a difference between them. 13 Q. And unless one tested the sample, one would not 14 ever catch the difference, would they, sir? Unless you know 15 that varying the manufacturing process can vary the content, 16 isn't that correct, sir? 17 A. Mr. Carr, I am not familiar with manufacturing process- 18 I don't know. 19 Q. Well, you do know, Mr. Park, that if you don't test, 20 you can't find the content. You do know that, don't you? 21 A. I guess in the absence Of an analysis, one will not 22 be aware of the content. 23 Q. And if one isn't aware of the content, of course, 24 then they never have to notify the E.P.A. of knowledge they don' -68- 11 \ i, have, isn't that-correct,; sir? "-i -" 1 i r'A. *' I d o n 1t rknow, j'V & Q V `.And 'i'f |you, donVt have knowledge, then obviously you d o n * t rihaye to report toxic substances, isn't that correct, sir? A. Well, one would report whenever there is evidence of y` a substantial risk of injury. Q. Yes. But you w on^t even know that unless you test I your product, will you, sir? 1 A. There are many ways. As I mentioned, Mr; Carr, w e have held a number of Section 8(e) meetings. Q. Now, Mr. Park, you have given us the 8(e) meetings you have held and it's four in number. A. Well, that's relating to the chlorophenols. Q. And that's what this case is about, Mr. Park. We are talking about chlcrihhted phenols. A. ' Right. Q. That's what we a r e 'talking' about. If y o u don't test * theija, you will never know they have toxic substances, isn't that correct, sir? A. The chlorophenol itself I understand is quite toxic. Q. Could you answer that question, please, Mr. Park? A. Well, the answer w o u l d have to be no. Y o u do k n o w it's toxic, Mr. Carr. Q. I didn't ask you that, Mr. Park. And you know that I -6 9- (* 1 am talking about the dioxin content of the chlorinated phenols. 2 You know that as certainly as I am asking you as you know 3 anything, don't you, Mr. Park? But you feel that you can 4 obscure the issue by throwing this in, don't you, Mr. Park? 5 A. No. * . 6 MR. MUSGRAVE: Object, your Honor. He is arguing 7 with the witness. He is badgering the witness. 8 THE COURT: Overruled. I t 's proper cross examination T' 0. 9 under the circumstances. 10 II know. MR. CARR: Q. Mr. Park, if you don't test, you don't 12 MR. MUS G R A V E : Object. It's been asked and answered. 13 MR. CARR: Q. And if you do know and somebody 14 doesn't request a meeting, you don't have a TSCA meeting, 15 isn't that right, sir? And if you do have a TSCA meeting 16 and if you decide there is no substantial risk or there is 17 no exposure or you are not going to get in commerce, then you 18 don't repqrt to the E.P.A. That follows too, doesn't it, sir? 19 MR. M U S G R A V E : ObjecMt. iTf hat's about four questions, 20 multiple questions. 21 THE COURT: Overruled. 22 THE WITNESS: Could we read them back one by one, 23 please? 24 c (At this time the court reporter read back the - 70- 1 following question: Question: And if you do 2 know and somebody doesn't request a meeting, yoit 3 don't have a TSCA meeting, isn't that right, sis? 4 And if you do have a TSCA meeting and if you decdde 5 there i s 'no substantial risk o r 'there is' no 6 exposure or you are not going to get in commercd, 7 then you don't report <9* to -v`the E.P..A. Tha' t follow" s 8 too, doesn't' it, sir?) r' 9 THE WITNESS: Okay* We do not hold an 8(e) meeting/ 10 unless there is a request for one* And if during the meeting * 11 i, it's concluded there is no substantial risk to the health of i 12 the environment, then there' is ,no report to the E.P.A. 13 MR. CARR: Q. Mr. Park, my question was simply 14 this. The ElP.A. will never know if you either don't test or" 15 you don't.request a meeting or you don't decide at the meeting' 16 that they should be noti'fied. All of those three things' h a v e j 17 to be met before the E.P.A. is informed, isn't that right, sit?, 18 . r You have to test for the dioxin and find it. And then somebody 19 t'that/tested'for it,has,to say, "Hey, w e better call a T S C A 8(e) 20 m e e t i n g , - a n d request'i,t. And then you have to meet. And 21 `after looking at that 20,000 parts per billion or 22,000 parts 22 ,'!>j ` ` ' i per billion, you have to decide that that represents a 23 substantial risk to the health or environment, don't you, sir? * 1 24 All o f 'those three things have to be met before youro PENGAD CO.. BAYONNE, N.J. -71- 1 obligation's 'called upon, isn't that correct, sir, and 2 before the E.P.A. knows of it? 3 A, I don't think testing would be a prerequisite, Mr. 4 Carr. -. 5 Q. How would you know if you don't test, sir? 6 A. The great majority o f ,8(e) situations, do not come , . 7 out of testing constituents of products. 8 ,t Q. I understand, Mr. Park, that none of the ones or only 9 three of the ones that Monsanto come out of testing the product 10 * mf 1 All of,the meetings you,are talking about that.you held of ,11 ,..-.1* ' ?'i'1 *,4 *. *,,T ' ''' i - the dioxin, content;; ail, of the meetings dealt with testing 12 /the product"and discovering dioxin content, isn't that correct, 13 i sir? r 'r' '. ir ! ^ ^ t '' j * 14 hi Let's see. v Is that three? I think the one dealing - 15 with the Sturgeon spill as I recall simply did not deal with 16 the composition of the product, but the fact that it had been 17 spilled' into the environment./,"As Xcrecall, that was the reasor 18 Q. 'That's correct. You didn't know dioxin was in it 19 then, did you, sir? 20 21 A. i,believe that's corr-eft* ct. * Q. Because that was before your February 9 meeting, 22 wasn't it, sir? 1^ 23 A.1 Yeah, I think t'hat's right. 24 Q. But in any evL ent, Mr.** Park, the point I am making is -72- f' :* 1 if.theoperson that tested; the*'Santophen,or the PGP arid found 2 " theJ20,000 partsjper,,billion, `if it were never tested, he ' > \ 1` >' - V ' ` '' , . 3 :would-'never know, it,\wod hey sir? / `, 4 () A/- That|s `correct!*.*'/' s \\ / 5: 1 L 1Q. A,_n**'d> ,if1 *h1 ''does> n^ J t' :-I k- n' o**>wJit` y / h >>** j can \t "r' eqt emstJ *a . 6 , ,1 .V.. ;7jr for that purpose,' that reason* i 4' s * . '8 . ,l '> L, f, ( Q. .And-uif->a> meeting is never held or if you do hold a ^ . * , ' , a - ' i , **F ' a - , J : ,- L " >. : 11 /`+V / l\.-X//-, : . . '/ ' ' /; '? "i -'meet!rig/ndfyoir decid^pot !to -report to the E. P ..,.the E.P.A.; v ,`jf" , f ``,;r ,1 J 1'_r t ,. , 1 ?n jJ io- ^never !iknowsV:ffdo *th'yiy sir? So you have to have .three things, ll donft 'you, sir? - You" haye \to have1th test that discovers -the 1" 12. dioxin content, you have to'have the,request after that 'L 13 discovery takes place and you have'to have your committee 14 ^ .at' such, a meeting to decide the E.P.A. should be notified. i1 . 15, tYou have, to have all of those tftree things,, don't you, sir? 16 ' j* ( 17 , A. Well, I guess these three that you^were- talking about/ 4, * ,f m -f '~ ( '* t* *' ( '. L.> * but not for >the'major!t^- th* vst. majority.1' ` ,r ,18 Q. for these three; that ,`am talking about.;/Before the1 : '' ' Jj ^ .A r ,H ' L 1` 1 T 19 E.P.A. knows> there has to be the test,., th request'and there > 20 has to be the conclusion- that they-should be .notified. Isn!t - 21 that -correct,Jsir? ` v ' ' ' 22. 23 A. / I would guess ,so. >.Those three were based upon dioxin 1 ` '' , 1 :/V * f r c r, v- content. - ,/\ ` ; r-/ ,r* .-; / '. v 24 ' / Q, And, one simple. way of avoiding"notification to the r5 ' 1 ` .* ' I PC NGAO CO.', B A YO N N E. N ,J. -O O O FORM IC 4 B ' V ;..It .. i . * 'L ` , i C- k I I ' `i r li-v '' s ' - A ' s ;^;V` j - ",- .v ' 1j* :V' *'V Itv 1 .1 | V :i' ' i * -, V ' J- -rtk I!/, *.. t: . - v ' '.V , " ` 'r i f. ,V. ' t ,, r, . M '?'/ -' - r J . 1' E .PVA ,,Vis-- -c`one way is>then not to test ' '1 .r _. *\ , for- dioxin, ' ' isn't ,, , **.:v*. ''.1 f a ;j;i\v"r'Oik7 a `pf.r?,'!.;./>vtj''1-.: -1 l * .,- -'i,.'- - ! - v;.r . ' 3 . 0?rriiM Mrijfcaxr-ji 'as','I- have mentioned' -- ' 4;,: '" ' - Q; W' ould you answer,* th^ a*tit* questioi:n, p. lease?1 . t * r * ' * 'j ' f 1 , f. *' 1 L i 1 ,,r .;,S \ V L !a .-`.No , .-that -- n> . - ; . 's-/" ' ^ 6 . Q.; If yoii1don't test,., you won't know. (And ifyou don't -/ 7" know, you don't have to- notify., isn'tthat correct? ' rJ- `l!' ' ' ; ; N ;-V* *. _ ` ' ./* ' ' / V ' 8r 7 I1 19" ' ^ , .A-'' We know, a great '-deal of other .things;without testing,. ^ . ' tp * -ll 1 i ' J - .. i- -/-" i i- `* r - - ., i. - ^ 1 f, 1 ,r - - <*, .j <t - i* . ., without, analyzing p r o d u c t s W e have informed the E.P.A. in :M;:. ,1 * r* > 1r k ' i h,i j ^ 1b i ' 'i J -* y f 10 " *1 ' > o . . 1 * k ` lk, r i ' r . T 1 . 1 1 T , *i li ' other situations- ' , . ,,.rr' . 1 "" ^v' vU r 1 .Q-. ;You have never-'informed the1E.P.A.' about'1the dioxin- 12 "content of. any of your products- subsequent to ar-TSCA 8 (e) r / 13 meeting'according- to your testimony,yesterday morning,'Mr. 14 - Park. 1Isn't.1that* correct*, sir-?*' ; ,J ' '* s V' \ 15 'Ai * You said -dioxin content?, ' lv - ' n. - - " r` ' 16 J- Q. -That's exactly what''I -said,Vs if. V ; 1'' : ' b`'* f 17 1* r' JA. / Tol:the best of,Uny`recollection; we .have not. '. ' r , '' , I 'j ' . , ,1 ` V"-^ t1 is; {, Q- .. 1And1-.if you^ don- 't 1 test 2 yorur ' c>hlv orinatted1-,,phCei nols for , 19 ' "'dioxin, you.will never know.whether Vor'not they -contain . 20 dioxin, isn't that "correct, sir?1' ^ ! ' !.. 21 22 MR1.-. rMUSGRAVE: 'j You' 1ri 'HonorV,, 1 i don't know ""how many-^ -` , times, this .has been asked, but it's probably about six.' .And 23 I object, to ,the repetitive nature of the^question* It has I' 24 been asked "and answered., - , . .: ' PENGAD C O .. B A Y O N N E , N j . 0 7 0 0 1 - j FORM^ IL .2 4 B \ T\ 1 THE COURT: I think it has been asked and answered. 2 MR. CARR: Q. Mr. Park, can you not avoid notifying 3 the E.P.A. by not testing for dioxin content? 4 A. That would not avoid our obligation. 5 Q. Oh, I know that. I know that so well, Mr. Park. I 6 understand that perfectly. That doesn't avoid your obligation. 7 But if you don't test, you d o n 't perform your obligation. 8 Isn't that correct as well, Mr. Park? 9 A. Mr. Carr, I have tried to say there are any number 10 of ways that someone might -- 11 Q. The obligation, Mr. Park, that we are talking about 12 now is dioxin content of yout chlorinated phenols. And you knc 13 it. And, please, do not lead me down another path. We are 14 talking about the chlorinated phenols and the dioxin content. 15 A. I would not go so far, Mr. Carr, as to say that by i 16 avoiding testing one would avoid an obligation of notifying 17 the E.P.A. 18 Q. You can't avoid the obligation ever. There is no 19 way you can avoid the obligation. You simply don't perform 20 in the way you are obliged to perform. Isn't there a duty 21 Mr. Park, to report hazardous levels of dioxin in your 22 chlorinated phenols? 23 A. To whom, Mr. Carr? 24 .Q. To the E.P.A., Mr. Park. -75- i `'fe ir f ,1 - ''>, \j*"'1` , .,"J , '* j L. ` '` < ' ' '<'' "`'.`1`*.! ' A.'V N o t as-suchL, nov V. 1 ' 1 / . ; `V -; ,,. . ,` a Q. And you believe the law permits you not to report 3 ^ ;\\hazardous! 'levels/pfv dioxin as such t the E.P.., is that ' 1 . 4, V! J!rtifR i j .what* your -S ar - Vr'T'-irtV- '*, skying-, lift Park? '' ( >s ' ; ,V ; . ' 5 ', ( ---,* 1 - ' \. V '> |,7 i . * f !/-,-i> U` i `.. . ' 'r1 '*A` V ' M n ! .iV- V 4./ .i V !> h[ ` t it -* f " " > . . . t ! V.'i ' - ( , 11 ,, - 'L , * r :. l - '` . 1 " +' . '' ' , _ t 12 6 ~;>VvvVQ*1!vis. that;whatSVyou-are1saying-, 'Mr. Park?" 1'*rV ' if;1 .'' I* J`- . ' 3 'i - I " *' f V .- \ * ; ^ **- ? ' ' . - f ' i v J. 1 7 ' - ',J A. No. - ,i- . ;c '' (i ,4 1 * ( ,v. r - ~ * _ 'i- V),ii\ - ' fc* -r ' 1 1. `"'j; * * 'i , v8 t - ,-Q.^l thought thaf^s.1just what you said.' I asked you - " , 1 . - V T >^ " V ' r ' r. . i - . -i ^ 9 ,, -there ,:is`a`-duty upon:you1'to report "hazardous' levels of dioxin" 1 10 - in your chlorinated phenolsr.,to the, EvP.A., isn*t there, sir? ' 1!V And -you' said\ho. j'/ i,- " 'n'1 ,12 ' A.'J,.Arid,I said not as such, Mr;TCarr.' We take very -' n ' 13 . 14 P !\ < /-Iri;1:, ' t % ` J' " seriously our obligation under Section 8 (e) -rr ! , ' - . ., 1/ - ' V'*' t s ' ` 'Tr m T. -j if ' ' - . -J h :7 Li (1 Q. Mr.1Park; I am/asking you' whether of not1there, is 15V r a duty for you to report i t ,and you say not as such. ,` 16 J " v A v ' Mr. Carr, whether'or not the "composition is hazardous 17 \ or not.is 'up to our toxicologists. I' rely on them.; '; -., 'r' _^ y/ \ L. 1j 8 S ,Q'; I am* talk1ing *ab? routr .MonsantVo. ./, Mr. Parkr '; not" you.` A* n4i d1 ; - 19 , - you know fI am talking.'about Monsanto; Arid the toxicologist -. 20 ` '21 22 . is part of-Monsanto. My question is Monsanto has the-duty- s' * * " KL 1 il ' ' ' ^ ' *4 ^ < t L' \ J( 11 ^l i"1 fJ > ' t ' 4 , i " ' J1 1 , f rr 1 to report ,to the E.P.A.-hazardous levels of,dioxin;in its .-14" '' ' ' - }` - J , r`1' ' ' ' , chlorinated-phenols,/does it not; sir?, ** 23 1 ' A. 'There is no^obligation as such that i am aware f. < - *' ' *\ 1 f hh , ,1 - . 24 Q. 'Therefore, Monsanto;-in your judgment, is not obliged 1' + Ty * , f'i* * '* *\wf '-76-- BftVOHNE, N .J. 07002 FORM IL 24 B 1 to report the hazardousyievels of dioxin content in its ,,2 1product, isn't that.correct/ sir? ,That^s your view f -it, ,, . ,3 Monsanto's view, of it?.1' ' .. 1 - . -, 4- .P IA.-' . Yo' u* 1/chr anged' the q> ,uestion a* *lis ttle.bit> Mr; " Carr., 5;J' ' And I would " * ' ,J - ' l*_\ ^ SL T say at any time'there .was a conclusion,that1the ,6.' product would ^preserityaf substantial, risk of `injury'to' the ' * " \ 'J-; *- 1 '*/,*r,* ^ v , .. V : i>~ health of-.'the environment; .then there -Would'be ,,a report filed, y ! w t* *1 ' 1 *' * 8 ... 1, Jb with'th' EiT.A, - , *f. - ;>' st Jt _y * , t *^ -, Y . * l* ll 9 . i ,Q. That's not what .1 afeked you at all. Because that. 10 ' rrequires vyou to reach! a ,conclusion. You can'reach-*a " 1.:-;,f ' L*t V* ' K U'y; ^ * ,y , 1i v-conclusion.,,fraudulently!,. .can't you, sir? You can'reach a y ? ; > - y^ j} L^ 1;^ tl , ^ ^I ft Sr * ;'1 - l ^ i` T _* v \t * ' A! 12 ^bonclusidn'by never '-testing the product. You can'say, 'nOur ' 13 r !v~?"i >;-i ?!]Ki ,r* y-r y . . , . , ' - jV'' '* Santophen 'is*;safe.'- '-Wevhave never been found, to be unsafe."- 4 .You can say/to the worldly?Our Santophen has never been found *, ,15' t o :contain hazardous levels of dioxin that we are sending you.-"' 16 ,,17 ' You can say'that truthfully ,'-can'11 you, sir, if you-never1test , `J ii , * ' *'>- r` ' * x i ' 1f > 1 ' r. for dioxin content/ isn't ..that correct,/ sir? .'!y.' y 18 A* A.Y ;7 ' T^haAAt1 'rsl. r'a totally''hypo*it\' hetica1l t4 hi. ng because *.< I cannotr;1 19 imagine: the;company not ^testing products. 'y ; 20 H >1 >J . 1 .' . o `. r. , ' *, .' * Q; Well, you do know!that they tested .only seven batches ; *A I> ' * * ^ ^ r .1 21 ; -v'e 1 J -i :j ' ` ' k of Santophen,Tin, all of' *77. and *78 or something like' that;. You 22 ..know .that/ don't'you,- sir?- ` 1 ; * , . - ^ > 23 4 24 .A.- I, am not familiar with that','Mr'.' Carr; 'J, ` Q. ;Well',, the evidence'is there, - ` -w ' the exact. .amofu-nt. You Jj^ B A YO N N E,'N .J. 07002 ^ -77- . *1 \ -, l' f \ ' **Si, , ;iv ` do know that it's never.been reported to:the E.P^A. *and It *s ` 2 /nver been told to a Customer. You know-that too/ don't you, 3 sir? ` 4 A- X don* t ji1 know tha+t. ! ' 5 / yQ.- '.But back" t the^pbint, Mr; Park;, that i'am asking t, 4 ,, ** S '- JN , , 1' J A? ' 1 %* 4. , ` 6 :you about;< if you don't best, you don't know.r Isn't that, , \ 7 correct? ,\v ' '* 1'j . / 1 -- ., 1 '8 .1 f . . ' t" 'A.'- Mr, Carr, I \ -- ./y'" * ( ' *" xm *' * ` , >^ r,, -1 *. 1 ^ 1- ' ' ^p_. 1 1 j 1 ` -n ' , ,. tr 4 / ( 9,' MR, "MUSGRAVE;: Object. It's asked and ^answered. n - ' , ''.' <* !^r-f. " * , ,,*' 10 , jk- ;: .,ti *',,r fV y4; n',y. ` ''4f `^ 1'- THEs COURT:'*It'has-been -asked/; and answered. . , , , < y y , . /* . ^ ..... - _,J r, _ <L* 1 11 , .' ' . M5R*f ,m C' ARR: .,Q'.A , u* * "iM, r; PV*ark, *do you- co,, ncei9 ve thenthat * 12 Monsanto does -not `have duty-, an. obligation to rport ` - *M i,' r, 1 ^ ' ,' 3 ^ * r r , ( TF " ' '^ 1( ^- X 1' S ' 1 ' U ^ 'f - l ', i 1 4A ,* 13 hazardous well, .you; have- answered; :that as wellthat Monsantc 14 doesn11 .asvsuch have duty to report to the E ,P .A./rhazardous . 15 levis of dibxin content, think/you* said that, didn`rt you,-' 16 ^ '"sir?. ^ n y .t - 'r, * -f . 1 n ' - *Kr 1 17 V r v ! . !E- *. . ' -/ y^ 1" 1 .-cj I ,I!. l1 .*' S1 y** ji i } J. . Y < J A. V. I?*t -* i Av.*/ N<oyyco1m*p*any7*,- dss.j%fiA t* hat :I' am aware ' of. ^t / '18 *, t 19 VAT/*' .qV./^No company .reports it or. no 1'i>*1 > , /. !1(1j f if aV. i"- ^,1 . a -' .A-lVf> tH f \r4. i , - ''i * i // " * " */ 1 1 ^ , J . ,' i* company, has the 4j ' 1* ; ,\ , " obligation? - Which is "it, sir? - -7 \ y ` ': 20 21 5 'l-i "Vn-t -.ii - ' V* 1 ..M I V, ,1 ". . ' ' ''- / ' * .'"' ' A'. tNo, company has thejobligation as such. 1*- '^ , ", . ' * * 1 ^"1-i ' r. ' { 1 '", * * ' , * .. -J * \ Q4A .No. 'comp' any h<-as' the-' ob<*l i* ga. tion' to repor1t- ' j t" o4' the E.P.A. 22 . F. ' *. ' ' " - , \ J (-` ' ' " 'i" ^ Vt whether or hot ,'its1products contain hazardous levels/of dioxin '23 In your judgment, is that correct?/ - 1 24 \1 / A., r `Now^- 'I ,am ;,not *'. ^1 sV peakin<?g* of *PI?FRA keep, in min^di. I-`am ,t -78^- V\' BAYO NN E. N .J, OOOZ FORM IL 24 B 1 thinking in terms of TSCA, the Toxic Substances Control Act.. 1 . 2 I am not familiar with the obligations under FIFRA. 3 Q. So far as you know, since you are not familiar with 4 FIFRA -- so far as you know, Monsanto does not have the 5 obligation to report and neither does any other company in 6 your judgment have the obligation to report to the E.P.A. 7 the existence of hazardous levels of dioxin in your chlorinatec. 8 products. Isn't that what you are saying, Mr. Park? 9 A. If they present a substantial risk of injury, to 10 the health of the environment, then there would be an 11 obligation. 12 * MR. CARR: Your Honor, would you direct the witness 13 to answer that question? 14 THE COURT: Mr. Park, you have to answer that - .'S* 15 question directly as posed to you. 16 THE WITNESS: Could you clarify what you mean by that? 17 MR. CARR: Q. No, Mr. *t PaRrk, because you have answered 18 it once already and I am trying to be more precise. You said 19 not as such. You don't have the obligation, no company has 20 the obligation. I just want to make sure that is your opinion. 21 MR. MUSGRAVE: Object to fti he question. That is being 22 vague, your Honor. If he is not going to specify whether it's 23 under the statute or-as a general policy or whatever, I object '* *; '' "*. / , - . 24 ;T r 1 .-i'li to it as vague, making incapable the witness to answer it in -79-  ,'*'V * - ` . / . I` t' < .I the eontext^that it is .given because it is vague. ,v.. THE ,COURT:.* it's not at all vague. Overruled. MR. CARR; Q. Mr. Park, is it because that you at Monsanto -- that Monsanto believes that it is not under a legal obligation to report hazardous levels of dioxin in its t- chlorinated phenols, is that the reason the E.P.A. has never been notified that hazardous levels of dioxin have existed in the past1in'your chlorinated phenol products? t MR. MUSGRAVE:. Objeciiti , yo\wur Honor. not in evidence. Assumes facts THE COURT; Overruled. THE WITNE<SS: I guesrvs off the top of my head I am not aware of the hazardous levels that were in the products. ' MB. CARR; Your Honor, would you direct the witness THE COURT; Mr. Park, you have to answer that question as it is posed to you. MR. MUSGRAVE; Is that a hypothetical, your Honor! that he .is being required to assume? THE COURT; It is a prope-mr question. Ovferruled. MR. MUSGRAVE; Then I do object to the hypothetical. , 1 MR. CARR: Q. Is that the reason, sir? A. Mr.'Carr, your question assumed that there were hazardous levels of dioxins in Monsanto's product. I guess tha t -80- ,* L / -M; < v. * / * * ~v--ff-vJ*1':v.1;/- ' " v ;*-' -'(>- I -.1 can test that assumption. j ~' f \ t '(' !- " ,- -2 " . Q'._ ..But'first of'all..before you do, please answer the 3 question I posed to you, sir. You can say, no, that's hot 4 ( the. reason,* You can say,/yes, that is the reason.' And then 5 you can-respond, when,I askr you the next question,i.sir* ; 6`A \*';'* ''Ai^ -i'm. ' s o r r y . . a m trying, to .recollect, . *i f .'( v ; * 'i , :i ; '`i f >. . '*' r , f.j -. /, , \ ` . ; 7*' , v *y * 1 MR. CARR':*' W o u l d :y o u Jread the1 question .back to him, ^ y > - j f i f *r -> -, , 8 1^please?, v \-'-/v . &* s tN - r *"* 4 - * . 9^ .v'- r- :v(At; this .time Ji . r 7 v* the co7ur-t reporter *' read ' back t 10/ '* " the f oi., l' l o wi * ng , questir on:' r UQuesti4 on: t Mr, Bark, * ' ' ; ;v ^^ 1 J ,11 \/r / i , is it because, that you at Monsanto -- that ' .% 12 Monsanto,believes that it is n o t under a legal 13 obligation to'report hazardous *levels of,*dioxin 14 if. * 15 ', in its chlorinated phenols, is that the reason \ )# , tr Tm - . the E.P.A.-has never been notified that hazardouls 16 ' '' .levels of/dioxin have e x i s t e d 1in the past iiv . 17 " 18 L ' your chlorinat*ed phe*nol-p,*r* oduc-ts?, ) > T H E 'W I T N E S S : ; I- respond that to m y knowledge there A9 have been no;hazardous^levels -- 20 ,*M- R , ''CARR: k Y4o, u 1r 1H t o n ot4r' , 'w o>u^l| d y o u, .d,ire1ct' t * h,, e witne' ss 21 to answer' the question, v * l; 22 THE COURT: Mr. Park, I am ordering you .to'answer the 23 _ question as posed to you. Now, answer that question and ,no 24 other. ' ,- . PEN G .O C O .. BAYONNE. N.J, -81- THE WITNESS: And secondly, that is not the reason -- A* Ji k MR* CARR: Your Honor, the witness is ignoring you now. He is saying, "And secondly-- " THE COURT: Mr. Park, I am going to warn you only one last time. Answer the question as it is posed to you. THE WITNESS: Okay. No. 1; 1 MR. CARR: Q. And the reason, I take it from your answer, that you have never notified the E.P'.A. is that you at Monsanto don't believe that these levels of dioxin are hazardous, is that correct, Mr. Park? A. I do not know. I am not a toxicologist, Mr. Carr. ; Q*v I,am asking,you about the reasons you know. So far as1-you. know,* is the reason that Monsanto has never notified heEi.P.A. of hazardous levels of dioxin in the chlorinated 1' * '*> 1 *f *7 1 .phenols -r is that reason that which you tried to say in !,; ; Jv': ` t:< ^ 1r - response to my question -- is that reason'that you don't believe that these levels are hazardous? You at Monsanto do nbt believe these levels are hazardous? Is that correct, sir? A. I really think that is a question for our toxicologist, At Mr. Carr. Q. Would you, please,answers that question? So far as you know, based upon your limited knowledge, based upon what you know about everything, about what I am asking you -- I am asking as far as you know, Mr. Park. i I A. Mr, Carr, I would answer then yes in the context 2 of each part, 3 Q, All right. We can pass on then, Mr, Park. 4 THE COURT: Mr. Carr, is this a good point for a 5 short break? 6 MR. CARR: Ye' s, you`ris* Honor. - 7 THE COURT: Ladies and gentlemen, we will take a very S short recess at this time and then resume the testimony in the 9 case. Court is in recess. The admonishments I have given you 10 earlier will apply in this break also. 11 (A short recess was taken.) 12 (Plaintiffs' Exhibit No. 130lA(:wasifmarked:'or 13 identification.) ^ 14 MR. CARR: Q. Mr. Park, you recognize what has been 15 marked as 1301A as a blow-up of Exhibit 1301 that you have in 16 front of you? 17 A. Yes. 18 MR. CARR: Offer, 1301A, your Honor. Counsel, you 19 'need; to see it? 'w` 1: 20 ` ` .j ; -t, 1 ,--r v v*. .* *- 1(1 MR, MUSGRAVE: Well, I will take your word it's the 21 r 1r( , *` ' * l same, *But l^*thought w e 'had -- he was going to -- he hasn't 22 offered1?this before> He requested permission to pass it 23 to the jury as I understand it. 24 MR. CARR; I think you are probably right. I will -83- u iJ :'.// \\ - ft /!// ,J r, 't' t> it' A. *';', .\ '* i;"i y w . j` : 'J* ''"/V if ;i:Vtrv ?] j^; . * V' " 1 v just ask then cleave,vto display this to the jury, your' Honor*. .''f 2V tt ''-v.;',"'', ci-j'J .. . >> . - . ' MR., M*USGiRAVE :ri AS" a- me basis ^ jas:* b1ef'or' e.^ J ,r# ' ' 't L 3, THE COURT.: \ !Fn. * s f WJAit^h tfht e,j reservation on 4 : corrections. Sanie ruling .on that. 5 MR. CARR: ,Q. '' Now; Mr.;. Pta' rk, will . 1yo. u re'' fer to 6 ` the/next entry for th,-.--.next three, entries for1the Santophen 7' and check those entries.,against Exhibit 1195 and 113 5B that 8 you have in .front of you and:see. if those numbers; entered 9 there for.the Santopheh. for .those three Samples of Santophen 10 are.not correct? ,, .` ' 1 ^ , i- - *' ' ' ,, t .11 ` t, A. Mr; i`Carr,! is the-first bne.MB730? .' y' "-r ' : . e.-': ^ . '<'rJ 12' * > ?- f4 1 ^ ' Q: That* correct.., There are two places that it is 13 referred to, 730 on the exhibit,,you have, 113SB, and also s, 14 . . * * ,i T , in.Exhibit 1195 and 1195A.that you can check,if you wish.-' * 15 You see. that; sir? There is 150.parts per billion of the'> . 16 tri- Cl^, 48 of the Cl^ rin'th sample...fKl 06124. *' It *s also' i' ^ L f *" 1 .' 17. shown in the Exhibit'135B. The total' dioxins there, are/ 1 18 420. . *' .*/:'* ;. , ` `` ' 19 " A. Mr'./Carr, wherevis it? 1 ^ ^ v ' 1 >1^. I`don't (, seet it on 1 1135B;' *, 20 Q. Because you haven/.t:turned the page. ' 21 1' A. A1 right.. ' 22 Q. Okay. And the next entry you see for the Santophen 23 has 560 parts per billion of trichlordibenzo-p-dioxin and 24 .33 parts per,billion 'bf ,the ttra.with a total of 10,500.parts B A Y O N N E . M .J. ` 0 7 0 0 2 _ FO RM . IL 2 * 0 ' -, v - < >, -S-J.^ ] per billion of dioxin? MB699 or^KLl-Q^. i 2 MR. MUSGRAVE; Mr. C-<*a rr-- i ^ 3 MR. CARR: Q. Do you have it or can I help you. 4 A. I found it. I am trying to add them up. 5 MR. MUSGRAVE: Isn't KI76 KL79? 6 MR. CARR: The exhibit 1195 -- I thought so. But 7 Exhibit 1195 described all of those as 1977 production of 8 Santophens. There is ambiguity in your records as to just 9 when they were made, just when they were made. Exhibit 1195 10 says seven batches from January to March of ,'77. 11 MR. MUSGRAVE: Well,'Of* I twhink the testimony las previa 12 established the sequences of numbers. And we would object 13 to the representation on the chart of KI6-122 as June of '77, 14 your Honor. 15 MR. CARR: KI6-122, ^ I do*n't have any such -- ' 16 MR. MUSGRAVE: 124, I'm sorry. 17 THE COURT: 124, okay. Well, if there is ambiguity, i 'ns 18 I will let the record stand showing both situations on the reo 19 and will go from there. 20 THE WITNESS: Mr. Canrr, ffed' or MB699 I get 10,193, 21 total dioxin. 1 22, MR; CARR: Q. You get what, sir? 23 A. I get 10,193 rather than 10,500. 24 % /, -Q.' 'On' MB699? -85- 1 ' A. 1 Yes. irv:~:C fL* -V- 2 MR, MUSGRAVE: We alVso ob ject to MB699, your Honor. 3 Mr. Carr is apparently counting the Cl^ which are shown as 4 an interference at less than 5,000. And prior testimony has 5 established that that means it could be zero, it could be 6 4,999. But because of interference they can't say. And it's 7 an incorrect representation of that of a total of 10,500. 8 THE COURT: Over1ruled. 9 MR. CARR: Q. Let me refer you to 1195. There is 10 an ambiguity there in the MB. Look now at 1195. And you are 11 correct as far as the 1135 is concerned. But if you' direct 12 your attention to the original exhibit that was made dated 13 June 19, 1979, Plaintiffs1 Exhibit 1195, the sample KL0106, 14 would you, sir, and add those up in here and you will find 15 my figure is correct. 16 A. I believe it would still be -- you have got a less 17 than 50 there. 18 Q. But this is 350 here and you add 350 to 660 -- 19 A. All of these -- well, now these are all less than this 20 *.* . 1 number . ' - i; / v 1 21 * i Q.*' i'` /,,,,T'ht-a1t'** ws c-orre.ct, '' sir. At that level or less than that 22 !levels That's-what that means. You understand that, don't you * ^ * 23 ` 1 A. Yes', sir. Okay. I thought it meant just less than 24 that number. -86- 1 Q. It means it can't be higher than that value. 2 MR. MUSGRAVE: Object* . T* h a t 's incorrect. 3 THE COURT: Overruled. '> 4 MR. CARR: Q. And you see right here on the very 5 exhibit itself it has a star. It says, "Cannot be higher than 6 value reported." You see that, don't you, sir? 7 A. I see that, but now some of the other less thans > 8 don't have the star. I don't know, Mr. Carr. This is not 9 my area. 10 Q. Mr. Park, these numbers add up to 10,500, do they 11 not, sir? 12 A. I d o n 't know. 13 Q. Well, add them up, please. 14 A. All right. 15 Q. A little over 10,500?* 16 A. Well, they do, but that doesn't take into account the 17 less than symbols there. 18 Q. Mr. Park, I understanfrd that. And the exhibit is clear 19 It has the symbol on it not more than or less than 5,000, isn't 20 that correct, sir? 21 ' i A. And fifty and one hunad* red. 22 Q. Yes. I s n 't that correct, sir? 23 MR. MUSGRAVE: Object to counsel requiring the 24 witness to interpret documents that he is not qualified to -87- 1 interpret and when there is contrary testimony to the meaning 2 of the indicated characters. 3 THE COURT: Overruled on both. ' & v# 4 MR. CARR: Q. The next sample of Santophen MB698 5 or KL3-43; You want -to-add those figures up there in that 6 V ' ' column, sir? . 1;. \JJ *r . `T f '7 -> A. All rights . 8 i'? `Q .*ioWhat.does itfadd up to, sir? 9 A. If I added directly here, it would be less than 6,330. 10 Q. And I have entered on the column 5,930. 11 MR. MUSGRAVE: Again, your Honor. I object. Counsel 12 is adding interference limit as positive numbers. And that 13 is totally contrary to evidence. 14 THE COURT: Overruled. I don't believe that is 15 correct. 16 MR. CARR: Q. Well, eliminating even those, if you 17 look at the exhibit, the No. 1135, and you add up the sample 698 18 I think that is what we are referring to at this time, are we 19 not? You come up with 5,930 parts per billion. Do you, sir? 20 A. Yes, 5,930 is what I have. 21 Q. Directing your attention to, MB686, the next item there, **> 22 you see that adds up to 16,070 parts per billion of dioxin, 23 does it not, sir? 24 A. Let me do this. Is that first number under the Cli -88- 1 s\ign, "is' thaft1- 2 Q. 810. ' '', ; ^t 3 A. 810. I get 16,070. 4 Q. Of which 3,900 is thein trichlorodibenzo-p-dioxin and 5 360 is the tetra, isn't that correct, sir? 6 A._ That would appear to be the case. 7 Q. Now -- 8 MR. MUSGRAVE: There is no chloro in it, Mr. Carr. 9 It's not a chlorinated dioxin. Never mind. Go ahead. 10 .MR. CARR: Q. These*> are v chlorinated dioxins, counsel 11 The next entry there, 697, will you refer"to that? 12 A. All right. 13 Q. You see the second MB697. column, a line referred to 1* 14 Cl^, 12,000 Cl2, 4,400 CI3, 450 Cl4? That adds up to 18,250 15 parts per billion of dioxin, does it not, sir? 16 A. I guess 18,250. 17 CK And I want you to know, Mr. Park, and for the record 18 as well that 686 and 697 are two different tests of the same 19 batch of 24DCP; These are not two separate batches. And I 20 don't want you to be mislesfi on that. .I don't want the jury 21 to be mislead on that. They are simply renumbered, the same 22 sample and tested it on different occasions. MB758 is a 23 Santophen sample. And it shows 310 parts per billion. And 24 I don't want to do this unless you are with me. Are you at -89- 1 1135? I'm sorry. You don't have it. it's 1131. You don't 2 have that exhibit. 3 A. No. 4 Q. Handing you what's been marked Plaintiffsi Exhibit 113!. 5 there are five samples of Santophen referred to in that exhibit, 6 are there not, 754, 755, 756, 757? 7 A. Well, it's got six listed here, 740 -- 8 Q. Direct your attention to MB758, please, Mr. Park, 9 so we can move on. You see that Santophen 310 parts per billion 10 of trichlorodibenzo-p-dioxin, 20 parts per billion of tetra- 11 chloro-p-dioxin, for a total of 635 total dioxins. That was 75f 12 A. 758. I notice it has a a less than sign in front 13 of all of these numbers. 14 MR. MUSGRAVE: We make the same objection with -r 15 regard to this representation, your Honor, as being misleading 16 and improper characterization^of the testimony with regard to 17 what the numbers represent. 18 THE COURT: Overrule`dlit . 19 MR. CARR: Q. Does the Xsaxet sign on there in that 20 exhibit say no more than? 21 \ ! * \` * 22 > ,.* f*A''. *l*Mr'._ Carr, .. il '. ,' .don't \' kno>w. Q. Excuse* m*e*'. * CoAuhld you^ read the words at the bottom of 23 ' ' 4 f ^' 'i '- , ' 1" that Table II and'doe's it have the 'caret sign equals, "No more 24 than"? -90- 1 A. Yes. 2 Q. Mr. Park, please move on and give me, if you will, AW, 3 the total not more than dioxin content for sample 754. 4 A. 754? ' m- -- 5 Q. I'm sorry. 758 was the first I asked you about. 6 A. X* adde, d those up to 6'-P3f 5. 7 Q. Thank you. The next X;o< ne is 754. Please add those 8 up. The second sample referred to there is 1,395, is it not, 9 sir? 10 A. I 'm sorry. I was adding the first line. That comes o 11 to 600. 12 Q. The second line, 754 -- 13 MR. MUSGRAVE: Same objection to this representation 14 /iintentionally misleading and mischaracterizing the evidence. .i. ` , j,t't >' ,' V 15 L THE C O U R T : {Overruled on both. 16 \ *. ' - THE WITNESS:`[ ,1 get 600, 1,395. ' 1v 1 'J ` V" \ 17 , . MR. CARR:,,Q., That's what I have got. Next one, 755 i> ` * 18 adds up to be eight hundred twenty -- first of all, the 754 19 sample has ,not more than 325 parts per billion of tridioxin, 20 isn't that correct, sir? 21 A. That's what appears to be indicated on this exhibit. 22 Q. And 755 shows for San t*> ophen not more than 275 parts pe 23 billion for the tridioxin, isn't that correct, sir? And total 24 dioxin of not more than ,or 825 parts per billion? -91- 1 MR..MUSGRAVE: Same vjobjection with regard to 2 representation on this one, your Honor. He is 'doing the same 3 thing. 4 THE COURT: Same ruling. Overruled. 5 THE WITNESS: Yes, I add those numbers up to be 825. 6 * -^ L'f . * >M1R..;-'-CARR:** `,Q.* ** And ME656 has for the tridioxin not 7 .more-than 1220 parts per billion, doesn't-it, sir? I 'm sorry. 8 756 in'the second .sample" test. 9 ^ . . . MR. MUSGRAVE: Same objection on this one, your 10 Honor. Same mischaracterization. 11 THE COURT: ,Overruled. 12 THE WITNESS: I add Itthosent, numbers up to 1,920. 13 MR. CARR: Q. And the tridioxin is not more than Y. 14 220 for that sample, is it not, parts per billion? 15 A. That's what the exhibit says. 16 Q. And 757 has not more than 85 parts per billion of the 17 trichlorodibenzo-p-dioxon? 18 A. That's what it says. 19 Q. And it has a total of not more than 665 dioxin, does 20 it not, sir? 21 A. I add them up to that number. 22 MR. MUSGRAVE: Same objection with regard to 757, 23 your Honor. 24 THE COURT: Sam- e ruling. -92- i1 1 * , MR., GARR:". * - Qi .-l' DirecJtit` ing your attention now to 2 Plaintiffs1 Exhibit 1276, Table I on 1276- That reports, does , ,l r - ' I 3 it not, 2,100 parts per billion of tridioxins and 2>7p0:cpartsrper 4 billion of tetra dioxin? Isln't that correct, sir? 5 A. I don't know, Mr. Car^r. This is a different-- format 6 than the other ones. I am not sure I understand it. 7 MR. MUSGRAVE: \What page of 1276? 8 THE WITNESS: Table I. 9 MR, CARR: Q; Table I on it. Look at Table I. 10 It has at the top of it analysis of CI4. Table II has the 11 analysis for Cl^ dibenzo-p-dioxin. Do you see that, sir? 12 And I misdirected you to Table I for both findings. 13 A. Yes, I see that. * 14 Q. Table I shows 2;700 parts per billion, does it not, 15 sir? 16 A. This number?', 17 Q. That's correct. 18 A. I see that number on there. 19 Q. And Table II shows for the Ci. dibenzo-p-dioxin it shcws *3 20 2,100 parts per b i l l i o n , 'does it not, sir? 21 A. I see thati That's number three, that's right. 22 Q. Sample number three? 23 ) 24 A. Sample number three. THE COURT: Mr. Carr, is this a good point at which Tii -93- BAYONNE, N.J, 1 to break? . 2 MR. CARR: Sure. 3 THE COURT: Ladies and gentlemen, we will break for 4 the day at this time. I will remind you as I do on any other 5 overnight break, you are not to read or watch' anything about 6 this case in particular or subject matter in general in the medi 7 Gentlemen/ can X see you in chambers, please? 8 (The following proceedings were held in chambers 9 with Court and counsel present.) 10 THE COURT: Let the record indicate that we are in a- 11 chambers outside the presence of the jury for a motion filed 12 today, I guess. 13 MR. CARR: Yes, your Honor, this morning. 14 THE COURT: Motion for sanctions and further 15 production. Anything you want to add to your motion? 16 MR. CARR: Just that as =+ tvhe Court knows, we spent a 17 great deal of time trying' to get from Monsanto for a period of 18 months now all. the documents that deal with dioxin. And X let 19 this witness who is presently on the stand know either the firsi 20 or second day I was examining him that I was going to refer to 21 a January, 1985, TSCA meeting that they held and was going to 22 refer to the 250 parts per billion that that memo referred to 23 as being the level at which the E.P2A. should be notified. The . next -- and, of course, that is an important point supporting -94-r 1 our position in this case that dioxin, not just 2,3,7,8, but 2 all dioxin is toxic and hazardous and that Monsanto has known 3 for a number of years that and yet has taken the position that 4 it is not toxic. And so that 250 parts per billion finding by 5 their toxicologist was important. And the very next morning tb 6 was delivered to my -- once I- let them know I was going to use 7 and rely upon that 250 parts per billion finding of that 8 toxicologist Nair, the very next morning they produced in my 9 office at 9:15 A.M. a document prepared by another toxicologist 10 Levinskas who up to the point of time the witness identified 11 Levinskas as a toxicologist, X was not aware he was a toxicolog 12 I saw his name on any number of documents that he received 13 copies along the time documents have been produced. Levinskas* 14 name appears with some frequency. But I had not known he was a 15 ,toxicologist' until the, witness Park said in effect that -- said ,. , ; .**. ' ','i<' 16 he was and that'his memo that had been delivered to me that *1 - *' f t , 1"f 17 morning at ;9:15 A M ,took away from the impact of Nair's 18 Lrecommendation'and that it, in effect, overruled*Nair 19 because Levinskas was Nair's boss. 20 ' Mow, it's obvious th. a. t afMfct-. er X let them know, 21 telegraphed that I was going to use and rely on that 250 parts 22 per billion memo they went back and did some digging to see 23 what they could discover/to counter that finding. And lo and 24 behold, they discovered a document written by Toxicologist -95- 1 Levinskas that says that document exaggerates -- that Nair is 2 exaggerating the toxicity of dioxin. Well, I find it 3 absolutely incredible that they could have just accidentally 4 come upon Levinskas*s memo that deals with this subject. And 5 it is incredible that Levinskas would have written only one 6 document and they find it accidentally on the night of the lltl 7 of April, 1985. 8 The records also s h oi*w- that ']iY Roush has been on this 9 committee since 1979, has served on these committees. And 10 when the original files of Roush's, which I asked to be 11 produced and Mr. Nassif produced them and represented to me 12 that I was seeing the original files, not a single document 13 to my memory deals ith the findings of this TSCA committee. 14 And there is nothing that Roush wrote either in hand or had 15 typed dealing with these findings where he gives advice. 16 So I am absolutely convinced that there is important material 17 in Levinskas*s files which they have not produced and 18 important materials in Roush's files which they have not produced. 19 And there is also files of Dr. Nair. I don't know how long 20 Dr. Nair has been with them. But I would suppose that she was 21 there prior to January 14, 1985. And we have gotten no files 22 from her other than Park's file. And Park, of course, says 23 today for the first time there may be other TSCA files dealing 24 with dioxin. That's all I wanted to add to that motion, your PENGAO CO.. BAYONNE. N.J. -96- 1 Honor, ' 'y / * ; <y . . '2 '. 3 ' THE .COURT: '-'WhoMs going t- -- 1 / ' : ^ t* .' Ut ' ' ' MR. NASSIF.: We may have to handle this together. ..r 4 But I want to address Mr. Carr's comment about the.-- it's 5 /.obvious after he'telegraphed what he vwas going to ^do^ that we rj . . - <. , 6, /went back digging to counter Nair's memo. X was the one that; 7 , 'found*Nair's memo and the Levinskas memo, your Honor. I ' L t\ i . *r ;s - , found them in a most unlikely place while T was going throughy t 9 tPhocion Park's.Tetrathal1TSCA. It was the Tetrathal section' ir,,* V- `\ ,.; ili / > s )j.%'.. . .' V :; yof, PhOcionVPark's'file.* \ I found documents and I informed ' 11 rMr.iCarr/first of*.all,r that we did not have, the final draft 12 ybf1 the Tetrathal meeting which was not .finalized. The finalizes y M i y y y y y / y y y - - y y y v!- ^ // - \ V - ' ' y 1^ ' 13 meeting' bfLthe'Tetrathal was not finalized until March 26, 14 "' ' J " . V ' . - ^ ' y' / 1985. That was not in the, file. In the course while .I was 15 looking fpr all the final minutes,, I found these t w o <documentsr j 1 li' 16 the. Nair memo* and the Levinskas memo. .-if you read the Levinska^ 1 r ' t4 - *' 1 i 17 . memo, your Honor, it references that the Nair/memo'is " 1 ^ -11 v ,* " -j ' '` ; ` 18 . attached. There was ho telegraphing on our parti- ,1 .didn't 9 know it referenced that' bease*I found them separate in the H 20 file. The Levinskas memoi-is directed- trGeorge`Roush. And, I .` 21 J said,!' told -- 1 gave th Roush memo r ~ ,the-Levinskas to Roush 22 memo to oiir/staff n d T said-^fche same dy I found the -Nair memo 23 we produced the Nair memo-/- And I said,- "Confirm that this Levihskas 24 to Roush memo was in the material Mr. Carr reviewed." , I don't PCNGAD CO. B A Y O N N E .'M .J. -97 I*'ci > 1 recall the Nair memo and the Nair memo did not list Roush. _2 I was sure he got the memo. But I couldn't peg the Nair memo, 3 we went ahead and produced the Nair memo right away. And I 4 said, "This Levinskas to Nair memo should have been produced. 5 I think I have seen it. Check on it." This was before I even 6 knew Mr. Carr was going to use the Nair memo. And, in fact, Mr 7 Carr used the Nair memo the same afternoon we handed it to him. 8 MR. CARR: Why ,did he hand me the Levinskas memo? 9 MR. NASSIF: Because the memo was addressed to it* 10 Roush and it was not addressed at the time. In all honesty, 11 I believe that we have given you* everything in his original 12 file, Rex, and that's why I didn't hand it to you. 13 MR. CARR: Why did you bring it in the next morning?. 14 MR. NASSiF: Because I went back to Levinskas's file. t 15 First we checked all your orders that evening. We found we 16 had no C number for that memo. And I asked George Roush 17 and Ken and they left and went back to Levinskas's office at 18 7:30 that night and pulled Levinskas*s files because Levinskas >C 19 told me he had three files in his drawer in his own office that 20 we might not have gotten when we pulled the original files 21 under 8(e). 22 And by the way, we did take his general 6fficei8 (e) 23 ,file. And that was included in the material you looked at 24; and is on the microfilm I have been informed. But I want you -98- to know, your Honor, I was not sure that Levinskas's memo -- I said, "George, we haven1t found it. I want to look in all of your files including the ones in your desk." Ken and George left at 7:30 that night, went to his office, pulled the materials, met me the next morning at Roush's office, pulled those files where Roush said they may not have been pulled in the search. I reviewed them and still did not find the Levins):as to Roush memo that morning. As soon as X realised it hadn't been given to Mr. Carrytthat morning I told Carol -- Sheila , was not there. I said, "You put a number on this and get it up to Mr. Carr." She left at ten minutes to nine. Mow, he claims he got it at 9:15. I do know it was within that morning. But I was convinced from the day I saw it in Phocion Park's memo -- but I didn't stop there. I wanted to confirm he got it. I had no idea he,was going to use it that afternoon against ,-Mr. Park. ,As..a matter of fact, Mr. Carr indicated to me when I told him"we didn't have the final version of the Tetrathal minutes*, he said to me, "I am not worried about Tetrathal." MR. CARR: Because I w a s n 't aware that y o u had dioxin minutes relating to Tetrathal. MR. NASSIF: We prod Tu* ced to your office, well, before this in the Roush materials and earlier when you asked for documents having to do with dioxin and Monsanto products, a number of reports, I think a proposed press release having -99- 1 to do with dioxin and Tetrathal. So you were quite aware that 2 there were dioxins in Tetrathal, that we had found them. The 3 only thing I told you was X didn't have this final draft'of the 4 Park memo that had been circulated and finalized on March 26, S your Honor. It wasn't even in Park's file. It was on its?, 6 way being prepared. And I said, "I am going to get that'to 7 you." Now, I had -- there was no way -- I am representing to 8 this Court it was not accidental that we came upon the Levinskas 9 memo after finding the Nair memo. It was not accidental at 10 all. I can attest I have not found the Levinskas memo in any o( 11 George Roush's materials either that we gave to Rex or pulled. 12 The memo was addressed toMiim. I.have questioned Dr. Roush 13 Vfhy he ".doesn't have' this' memo and he doesn't have an answer. 14 ` - _* *. TheLevinskas'-- I believe I found the Nair memo 15 in'Levinskas's' original files in what you looked at or what we i ';` l ^ | **'jf/rf .i*'. J' 16 to p r o d u c e / t o ,you. I-am not sure about that. 11 i 14 17 MR. CARR: I haven't seen Kevinskas's original files. 18 MR. NASSIF: In idle Roush original files. But I 19 didn't find the Levinskas cover memo. 20 MR. CARR: I didn't see it. 21 MR. NASSIF: I am not going to say for sure. But I 22 do know, your Honor, the only time I found those two documents 23 in one file together was when I was pulling those last Tetratha .24 minutes that Phocion Park had in his 8(e) files. They weren't -100- 1 attached. They are attached now. They weren't attached. 2 I said, "I am sure Rex got this Levinskas to Roush thing.n 3 It's a good memo for us. I wouldn't have -- I wasn't trying 4 to trap you in any way. I had no idea you were going to talk 5 about. Tetrathal. But I ;was sure we had given Rex all of 6 Roush's original files. This memo was addressed to him, a 7 - ** fL ' ** r recent memo. ` As a;matter of fact, X thought I recognized it 8 and-told them to go back and just confirm iti, When3wevcouldh't 9 confirm it, we checked it that night, had Ken go back $.nd 10 look in his 8 (e) files. We confirmed it hadn't been produced 11 a ' and I produced it that morning. It is true admit this to 12 the Court when he said 250 parts per billion the night before, 13 it was true it rang a bell. I suddenly realized he was going to 14 use the Nair-materials. And you are right. I did make every 15 effort tdiat evening to make "sure we had produced that document * 16 But I was making that effort before he made any reference to 17 that. And we were making that effort, your Honor. And we 18 confirmed it and I produced it the next morning to him. X 19 produced it to him as soon as we confirmed it hadn't been in 20 Rough's original materials. 21 Now, let me -- there is one other point, the Roush files, whether Rex has gotten all of the Roush files. On the 8 (e) files there was a general 8(e) file that Roush's secretary said was the 8(e) file. And Mr. Carr had 'an -101- i. 1 opportunity to. see. that, file when he was in my"office 2' There are also two other >8(ej- files that I; have personally 3 reviewed that I did not'know, about, at the time Mr. Carr.' sat A 4 in my officer two or three.' I can't remember-. But they were 5 very small.- They.were-folders he had .in his desk pr Office 6 area.r They were not included in the'materials that Mr. Carr ?.. lookd at. X admit that, your Honors I .`personally looked ; ; 8 at these three files and produced every document in there that % 9 had the.word "dioxin" ;.iri it that had not been previously ,-^ _ , ' : 1.> V.' ;_ . ' '!> : 10 produced.- r make that representation to the, Court. X did that, 11 Well >"within the middle -or late -last',week when Ken got those ^ -p "',, ,* * r t t ' . 1 '^ 12' files.;, Thursday night you got them. .1 reviewed those files tha * ` i 1L - , l: 13 morning, confirmed that/ in fact,' everything in-there. There 14 were no handwritten nots by the way^ . 15 ,1 MK^ CARR: I want to see those original-files. I - .A' 16 insisted upon seeing it to,start with because .T did.not 17 believe I-would, get the contents of th file'because we have beet 18 getting these files day-after1day, that you supposedly reviewed-- 19 in-February and January to pull'out everything-dealing with, 20 dioxin.- I am still getting them. . X want to see the origirial;, A 21 files. I want,to'.see Levinskas1s ,original files and -Roush1s ` 22 original files; *I can't believe he would have gotten a memo 23 it n Jr anuary o' f '85,.dealing with d.io* xin. an, d' he doesn^1 tt , have 'it' in 24 his.files somewhere. . 1 1 MR. NASSIF: If you want to see Roush's original 2 files,again, you can look at them again plus the ones -- 3 MR. CARR: But I apparently did not see his files. \ "-Jr >1 4 MR. MASSIF: If you want to see all the original 5 files you did hot see the first time, that is fine. 6 MR. CARR: That's what I want to see, all the files 7 I have not seen. 8 THE COURT: Anything else? ^ I-* 9 i * */ MR. NASSIF: Yes, your Honor. I do want to say one 10 thing. To my knowledge, I don't have any problem if he wants 11 to see Levinskas's original dioxin files. Keeping in mind, 12 your Honor -- 13 THE COURT: What about Na-it r's? 14 MR. NASSIF: I don't have any problem with Nair. -i* I? 15 Keep in mind,.your Honor, we do not produce Nair and Levinskas 16 files on the basis of just the mere word dioxin as we did with 17 the Paget file and Mr. Mahoney's file. X am not saying that 18 other than to say they might have reference to the word dioxin, 19 but it might not have anything to do with toxicity of chlorophen 20 or toxicity of dioxin or the presence of it in any of our produc 21 MR. CARR: It's incredible that you can have two 22 toxicologists -- from 1979 I have seen!Levinskas's name on a 23 memo as far back as '79. I know I have seen a number of 24 memos referenca'to Levinskas. And I haven't got--the-document -103- ', Z*^ ?.f/- tf i '* i. v ,, \- , . V, 'A>-r" '"I 1 that you brought in 9:15 the other morning is the first 2 . document I recollect, having been, signed or prepared by." 3 Levinskas. , ' -, 1,To me ' it b<oggles the iPs-magi4nation you. could have 4 a toxicologist in dioxin, ;>all the. mmos I have gotten from 5 you all --- dioxin is the big problem. ! You are fighting it 6 here and there. You could have a toxicologist who has not 7 got anything-iii his files dealing with dioxin'. 8 MR. HEINEMAN: I would like to .respond to that, ,- . o- L ^2 9 your Honor. .I.have been through piles of documents myself; 10 I have seen a ;number of documents authored b y M r . Levinskas. ir 1 12 13 that have C numbers on them. I know there have.been documents, produced to. Mr. Carr authored by Dr. Levinskas * ' L .*, ". because T have seen them. This isn't the only one. 1 ' 14 don't know if these"came.out of George Levinskas*s files. 15 ._ 16 MS. CARR: I will- check. my, ;files again.'j a \ i l* ,, , * , f. \ ` J MR. HEINEMAN:vv T have^thenTwitn C numbers on them. 17 18 1? 20 21 ''22 .. them. MR. CARR:. You may have them.. Maybe -1 don' t have "- J ` ` ' r * - ^ .>" * v A, MR. NASSIF: .1 would'add we produced microfilm to Mr., Carr and my understanding -- and I am not saying there - are Levinskas memos on,that. ^ My understanding is, however, that his files were included in- their search and in. the '* 23 .materials that were ultimately put on the microfilm. *24' J. THE COURT: They were included in the search but -104Vx %u B YO N N . N^J.- * 0 7 0 0 1 FORM IL 2* 1 you are not sure they were included on the microfirm? 2 MR. NASSIF: I haven1t confirmed that they are on. 3 ' the microfilm., X hav been, told they would be at least 4 early on in the early materials. l, r ' L - ..i , ^ i - *- >' s - 11 ' 5 THE COURT: Do}you havVany. fep? -;/, 6 ' MR. CARR: Nothing, further, 1your'-Honorv ^ ' ''L >!,,i'/-i ' . 1V >. .* -A `' C- ^ f-' lF i` ^ ,"_ ' . ' 7 , ' '/ THE' COURT: I.anC going tp-order the production of ,, ,8 th original, files, of Levinskas> ,Nair anil Roushs* IAnd I -, 9 gather that it* s by agreement. And I ,want these, files 10 produced as described in the motiony - X am also going to M order, as far as the Affidavits that the president of Monsanto 12 file the affidavit, as requested. And you, Mr. Hineman, 1 F * -J Y . *- . , r 1 3 you file the affidavit that has'been requested of you. And ' 14 I will reserve until a future time any. question of sanctions. 15 When can you get these original fiies? 16 MR. NASSIF: "X will tell you in the morning, 17 : your Honor, if that would be okay. 18 ; \ THE CpURTr, Fine. And if you could aiso tell me 19 /then, I guess; when the `affidavits can come. in. 1 -* v J I .L A 20 MRv NASSIF: - Your Honor, I don't know If tills needs . - ', , - 21 to be on the record. W are trying to, get con>lte -- the 22 last outstanding in terms of Monsanto documents:, that is the^ 2 3 board request and all of that together, ,and as supplemented 24 by. Mr. Carr. And X mentioned to him the time table on that PENGAD C O .i BAYONNE, NI,!. 0 T 0 0 I FORM IL 24 B -105- *3 ' 1 on Friday* '/ 2 THE COURT:' Okay. 1 ` 3:. MR. NASS IF: We were trying to wrap everything up 4 to do the affidavit. And we have continued, however, your , 5 Honor, to search for producable files. 1 As a matter of fact, 6 I produced this morning as it turns out a document which - 7 had'been previously produced*: But we are still; in the *> `i ^ X ; V.1 ;i> ,.(I 8 process of trying to chSdk'every nook'and cranny before ;;C" " . r.. . - " 1 9 we do perform the affidavit. "'And. we',werel.waiting \td complete ;' \ >' . ' / ^ 10 the board materials which I .did over the- weekend before we 11 1. ' 'V ^ *, 1 ^1 1 ' t ^I , j <i p ,, , .file the affidavit of total compliance. ' ' 12 THE COURT: Okay. `- t think that covers everything 13 -in your motion. * 14 MR; CARR: Your Honor , there, is one other thing 15 I would like to bring up. I haven't gone through a l l ;of. .16 these materials that have been produced to me just today. . 17 The raw data has been supplied. I want to:make sure there 18 are n o ;cracks in the discovery motions by which you could 19 say that there are some .things I didn' t precisely ask for. .20 Because just the-brief looking that I have right now -- what 21 - I saw was something that appeared to be -taken from other 22 examinations.' .The document that I had. said,, if I can 23 remember it correctly,, taken from examination and put down 24-. on this, in this place. So that indicates ,to me that there -106- BAYONNE. N .JL.' 0T001 / FORM IL 1 * 8 l. ' . /. < 1 must be some other records that are in existence. I aim not' 2 saying, that you have .them., Suskind may have them that served 3 as.a source for these documents thatyou have given me. And 4 I wanted all the documents, not just his conclusions from 5 the examination. And that's much of what 1 have got are 6 conclusions. I want all the documents that he has dealing . 7 with his examinations and findings., and laboratory tests on 8 . these people. 1 .v 9 .. MR. NASSIP s I will respond only to say, your J JO 'iH - Honorf.that I know for; a\'fact there "arereports o \.hlab L^ i^\/^, . 'i>' V- \.. ^ >J " * J* r 1 . " V. < k,.F .11 tests in those documents. At least one on each individual. . ' t ; '' . 12 v` .1r t J- ` ; J V . , - ' ,-i,, i That is raw material. Those are-the lab tests. * T have 13 not -- I have reviewed that>material and-to the best of . 1 -' fj.*-!1 * ! '* i( ' '^ '',v- _: - ' 1 14 my knowledge, your Honor, it seemed .complete to me. It is, 15 in fact -- and I will confirm, Mr." Carr^ everything that we 16 have that --- you know we have searched around -- r..and try to 17 .compare, it to whatever:information we may have. That is -18 more than we had within Monsanto/; It includes any and 19 everything that we had.. 20 MR. CARR: *Well,' just for one thing. There .is a 21 listingof abnormals, listing of normals and listing of 22 abhormals and values for the normals. There are no values 23 given for the porphyrins , no normal values given for the 24 porphyrins. There are porphyrin results given, but no normals. -107" P e 'n CAD C O i. B A Y O N N E . N .J . 07 0 0 1 FORM IL 2*B 1 I haven1t gone through everything. There may be somewhere 2 in that stack," may be a reference range for the'porphyrins. 3 But. it's not on each individual report. There are normal, 4 findings, normal ranges for all the other lab tests. But - 5 there are not normal ranges for the porphyrins on what I 6 have looked t thus far., 7. MR. HEINEMAN: Let me make sure that-1 understand 8 the first thing that you were, describing. Because I will 9 call them back up and see'. You said that you saw something 10 that refers to'another examination? * II MR. CARR: 'Refers to the examination taken from the 12 examination., I can be more-.-:-1 will have more:-,tiiimre to look ' ;`` **/ '"* ,,^ 1i';v /i' - ^r = i"tf 13 a34t- i4+t thiso eivernainnign,. AAnnrdi;JTI Khavaenn1itgi.orrnAne-t1hrvo/muigVhK ^'4it- all. I j 14 r * N : * ' It didni.t want to give you ia. final 'request^forV,additional t _* *>1 ** ^ s t 15 without being sure of what I am speaking. But I am just 16 . {- * s -s : '-.i J telling you this as a preliminary; 4 As far' as rir can see, 17 there have, been other, findings of some* sort written down 18 somewhere that we haven't got. And there are no values- 19 given for the normal^porphyrins. -'There is a finding that 20 the porphyrins are abnormal. But there is nothing to check ' 21 it with to ,see that the report is correct as to what is the normal reference range/ . MR... HEINEMAN:. 'Okay. : THE COURT: rOkay. Anything else? -108- / ] MH. HEINEMAN: Your Honor, could I ask this, for 2 the Court to explain to me -- obviously, or it seems 3 obvious to me that the president of Monsanto Company doesn't 4 have the vaguest notion about the productions of documents 5 that have occurred. What is the purpose, if the Court would 6 be so kind to explain it to me, of having an affidavit from 7 the president "of the-compahy? S THE COURT: Let me ask you. You knew that we were 9 discussing this motion and you knew that was part of the 10 motion* And I didn't hear any objection to it so 1 assumed 11 there was no objection to it. And I don't think that is an 12 unreasonable assumption. What objection might you have to it? 13 MR. HEINEMAN: My objection to it would be how in 14 the world would -- everybody in the room knows that the 1 jy 15 president of the company doesn't have1the slightest connection 16 with the production of documents. And1we would object to 17 having to have any kind of affidavit from him. What in the 18 world would he know about it? 19 MR. CARR: Let me give an analogy for that. In 20 practically all of the jury cases that I have handled, the 21 defendant requires that the plaintiff sign personally the 22 affidavit that production is completed and sign personally 23 the interrogatories that the answers are true. In most of 24 those instances, the plaintiff doesn't have much of an idea -109- 1 at all as to whether that, is all the production or whether ,2 these documents are. matrial. He relies upon the attorney. ' 3 to tell him those things; But he can,hold the attorney 4 responsible if he signed an affidavit that is incorrect 5 because I am telling my client, "Sign this* We have 6 -produced." And invariably the defendants require that it 7 --be signed by the client and not just by the attorney because * 8 it's the client .that is in the case. 9 Well, in. this instance, I have, asked that the' 10 president sign it because he will make damn sure if he is 11 putting his signature on the line. He will make damn sure ' 12 that the people working for him have produced to you the . 13 -proper materials. You have to rely upon the people at,,- 14 Monsanto. You cannot'go through all of these files yourself 15 and. neither-can Joe Massif. ^You'have ^to"';rely'upon Wilson and 16 o.i i.;; . V- \Y V ', Metcalf and Roush tiiat he hasn't stashed away some file. y y* r-\y '- 17 You have, to rely uponthe' integrity".of tiepeople reporting 18 to you. Monsanto's president, Mahoney, is the person that. 19 -- , .r r -:1\* ct 1* , J --^ - ' " iv* ' . can put their feetJto the file. You can't, and neither-can 20 Joe. But Mahoney can. 'And this is the .only way i can be 21 sure to have Mahoney see to it that the production is complete 22 just as the plaintiff is required to in;ah ordinary lawsuit, * 23 just as our plaintiffs, have signed .answers and affidavits 24 that production has been complete and that the interrogatory -110- 1 answers are true. 2 . MR. HEINEMAN: \ Well, your Honor, I think.that 3 obviously-he is not going to be giving an affidavit1based ' 4 upon personal knowledge'..- And all he can do is give an 5 -affidavit on what he knows. . If that is what the,Court orders, 6 that's'what .we will ask him to do. .. - 7 MR. NSSIF: As a possible alternative, your Honor, - 8 perhaps, having/it signed by the head of the law department, 9 ` senior vice president of Monsanto, would be'someone who would " 10 have a' little more understanding of, why1this is going on and 11 would also have *the power ,to bring to bear the proper-pressures: 12 as Mr. <^rr is. indicating would be a little more having 13 it si^ied by someone with, a better understanding ,of the. 14 process and what needs ..to be done^and all oftthat. 15 MR. CARR: .I object to that,-your. Honor. :The 16 plaintiffs don't have understanding of all the process. But 17 /yet they are required to sign' the/ affidavits. Mahoney can ' 18 be made to understand.'. And,1 therefore, I want him to be ^L 19 made' to understand. Because .then.he- can bring the1pressures 20 ? '7 i ^ 4" J -- 1 Lf* '1 ?V . 1 to bear that he is not going to b e vsigning'an affidavit 21 `" ft,*,". P - * , ' T' ' ' , that is false. Your lawyerdoe sir*t have>the sam: clout that - ,'i v 'A :;'v 22 Mahoney has.- .J .< ... 23 - - - *K:"; : ./ MR. NASSIF: . I argue* that*this individual is in 24 much the same shoes as Mr. Mahoney'as an officer of the -111- 1 company. He is senior1vice president. ' He is similar to the `2' analogy that Mr* Carr is making. He has that kind of power ' 3 and presence in the corporation. It1 is not necessary for 4 us to go to Mr. Mahoney and explain to him this process as 5 a .non-lawyer and help him try to understand what is being/ 6 required. - L- s \ . .7 THE COURT: He may be similar, but not the same. ' 8 I think it's a good idea; X have in .the past before this j _ ( r: ' ' r ** 11 ' i 9 case ordered the chief executive1officers of companies' 10 involved in litigation to .execute things as. well as requiring 11 ,plaintiffs to execute matters in discovery' as opposed to 1 ' 12 their attorneys. X think it's a good idea.` And I will 13 grant it over objection since itlhas how been brought up and " 14 argued. I think your analogy is correct. I think it's aV 15 'good idea. , have done it in the past. So-I see no reason,, 16 frankly, hot to do it now. And I think your language Is 17 correct. r He is in-a somewhat same-'position as far as the .. 18 senior; vice^ president. ..But he is5hot in !the same position. 19 Mr. .Mahoney or anyone else who would occupy the chair of* 20 Monsanto chief xective officer, there is no exactly 21 , f* .j * V , -4 'f ^^ r * f * / r- i comparable chair.'. So I will' grant i t ove r.objection. now:\ - 22 -, - '--: --*-r \ `/ that it*s been brought'up and argue/d.S Okay? 4 73 MR. NASSIF: One poink,v'your. Honor, of clarification! I am to produce R-oush's orti,gina;l..>.fi!lhes o'as::n'jot previously -112- < r \ u y - ' '.V A l /'^ i . . y * ' -v *, -t-i v; , */ < ' '- - 1; ^ \ 2' reviewed, isn't that our'understanding? * i.- ' MR. CARR: Yes. . ,r 3 MR; NASSIF: Are we to produce' these in triplicate 4 as we did or duplicate? ; :. 5 - THE COURT? That was your idea. -j \ 6ri 11 - MR. CARR; It's up to you. .i 7' THE COURT: It's a good idea. That's what you did 8' with Roush's other files. , 9 . MR. JJASS1F:' It only!lgoes to show how soon we can 10 ir have them available. 11 }. v MR. CARR: I'want them available sooner than an 12 . hour before I examine him. 13 THE COURT: Why don't you skip the triplicate on 14 . Roush's? '' ,, * 15. |jj j i 16 , te o ^\ So 17 *fo* i \ - `18-i Jz , t r 19 j- MR. NASSIF: Fine. THE COURT: Let me khow tomorrow morning how quickly y o u .can have the others. Because if there is a great time difference, we may skip the triplicate on all of them. , V l ' 20 i 5 -| *. , * -2i ':r 22 i '23 L k 'j \ * T\ -1 ~~ i MR. NASSIF: Fine. I will let you know. THE COURT: Okay. '^ COURT ADJOURNED: L v .-i * *** * * * * ^ . .` * *** ' ? * ^ V* 4| ^ *i ^ ^ '" 1*- 1 ".. % 'r t - 4- ^ ' " , -113- ... - fEN G AO C O .. BAYO NN E. N.J. - .i, 2 * ' 3 4 IN THE CIRCUIT COURT FOR THE TWENTIETH JUDICIAL CIRCUIT ST. CLAIR COUNTY, ILLINOIS 7 I* DONNA F. BREWER, an Official Court Reporter for 8 the Circuit Court of St. Clair County, Twentieth Judicial 9 Circuit of Illinois, do hereby certify that I reported in 10 shorthand the proceedings had on the hearing in the above 11 entitled 'cause; that I thereafter caused the foregoing to be 12 transcribed into typewriting, which I hereby certify to be a 13 true and accurate transcript of the proceedings had before 14 the Honorable Richard P. Goldenhersh, Judge of said court. 15 16 .Official Court Reporte 17 is ; 19 20 21 : 22 23 Dated this 19th day 24 of April, 1985. *f BAYONNE, K.J. .r<" V t- .... \ 1 { 2, 3. 4 IN THE CIRCUIT COURT; FORrTHE TWENTIETH JUDICIAL CIRCUIT ' t '/*' - ST. CLA.IR CO*UN TY, * ILLIN- OI4 S: ''t y/ i5 6 V .r . r - , 7 '!, RICHARD P.^GOLDENHERSH, Circuit Judge'jin and/ , 1i #* i^r 8 for .the Twentieth Judicial Circuit of the State of; Illinois, ri ,, 1 /i 9 and ,the sole; presiding^Judge* in the aforesaid cause on the 10 15th day of April, 1935, do hereby certify that I have 11 /examined the" aforesaid'transcript of the proceedings and 12 / 1 3 1( further'certify that the same is a true and correct transcript 1 ' i ,r/; -.. ` , of saidiprdceedings had in said cause. 14 JCi DiiTED: 1 This 22 2i2^* s .ay of April, 1985. 15 16 r :t i? 1 * ** . 18 r* ' 19 1 If 20 , 21. * ** * v *' ' - . V. ' t v, \" `"i CIRCUIT JUDGE f. iv\. ) a, ' ; 22' 23 A 24 *3 iI , '` *i 1 s , ,, ; Jl , ,l