Document mBejL2D4M7kVNLmNVo1oxbm5B

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA 2 PENNSYLVANIA DEPARTMENT OF GENERAL : 3 SERVICES, PENNSYLVANIA DEPARTMENT : 4 OF TRANSPORTATION, PENNSYLVANIA PUBLIC: 5 UTILITY COMMISSION, PENNSYLVANIA : 6 EMERGENCY MANAGEMENT AGENCY and : 7 PENNSYLVANIA DEPARTMENT OF STATE, : 8 Plaintiffs, : 9 -vs- : NO. 284 10 UNITED STATE MINERAL PRODUCTS : M.D. 1990 11 COMPANY, CERTAINTEED CORPORATION, : 12 COURTAULDS AEROSPACE, INC., : 13 CHEMREX, INC., PHILIPS ELECTRONICS : 14 NORTH AMERICA CORPORATION, ADVANCE : 15 TRANSFORMER COMPANY and MONSANTO, : 16 Defendants. : 17 CONTINUED DEPOSITION OF CUMMING PATON, PH.D. 18 Friday, June 5, 1998 19 * * * 20 ESQUIRE DEPOSITION SERVICES 21 1880 John F. Kennedy Boulevard 22 15th Floor 23 Philadelphia, Pennsylvania 19103 24 (215) 988-9191 ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47268 1 kkk 2 Continued oral deposition of GUMMING 3 BATON, PH.D. , held in the law offices of WHITE AND 4 WILLIAMS, L.L.P., One Liberty Place, 1650 Market 5 Street, Suite 1800, Philadelphia, Pennsylvania 6 1910 3 , on Friday, June 5, 19 9 8, beginning at 9:15 7 a.m., before Dianne Naulty, a Shorthand Reporter and 8 Notary Public in and for the Commonwealth of 9 Pennsylvania. 10 * * * 11 12 APPEARANCES: 13 14 HUMPHREY, FARRINGTON & MC CLAIN, P.C. 15 BY: RALPH PHALEN, ESQUIRE 16 221 West Lexington, Suite 400 17 Independence, Missouri 64051 18 (816) 836-5050 19 Attorneys for Plaintiffs 20 21 22 23 24 ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47269 109 1 2 APPEARANCES: (Cont'd) 3 4 WHITE AND WILLIAMS, L.L.P. 5 BY: THOMAS M. GOUTMAN, ESQUIRE 6 One Liberty Place, 18 th Floor 7 1650 Market Street 8 Philadelphia, Pennsylvania 19103 9 (215) 864-7000 10 Attorneys for Defendant, 11 Monsanto Company 12 13 14 MONTGOMERY, MC CRACKEN, WALKER 15 & RHOADS, L.L.P. 16 BY: JOYCE S. MEYERS, ESQUIRE 17 123 South Broad Street 18 Philadelphia, Pennsylvania 19109 19 (215) 772-7452 20 Attorneys for Defendant, 21 Courtaulds Aerospace 22 23 24 ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47270 110 1 APPEARANCES: (Cont'd) 2 3 SMITH HELMS MULLISS & MOORE L . L . P . 4 BY: GERARD H. DAVIDSON, JR , ESQUIRE 5 Suite 1400 6 300 North Greene Street 7 Greensboro, North Carolina 24720 8 (910) 378-5267 9 Attorneys for Defendant, 10 Monsanto Company 11 12 13 CRIVELLO CARLSON MENTKOWSKI & STEEVES 14 BY: JOHN R. PENDERGAST, JR. , ESQUIRE 15 The Empire Building 16 710 North Plankinton Avenue 17 Milwaukee, Wisconsin 53203 18 (414) 271-7722 19 Attorneys for Defendant, 20 Chemrex, Inc. 21 22 23 24 ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47271 111 1 APPEARANCES: (Cont'd) 2 3 HOYLE, MORRIS & KERR, L.L.P. 4 BY: SUSAN K. HERSCHEL, ESQUIRE 5 One Liberty Place 6 Suite 4900 7 1650 Market Street 8 Philadelphia, Pennsylvania 19103-7379 9 (215) 981-5770 10 Attorneys for Defendant, 11 Certainteed Corporation 12 13 14 CONRAD O'BRIEN GELLMAN & ROHN, P.C. 15 BY: JOHN A. GUERNSEY, ESQUIRE 16 1515 Market Street 17 16th Floor 18 Philadelphia, Pennsylvania 19102-1916 19 (215) 864-8066 20 Attorney for Defendant, 21 U.S. Mineral Products Company 22 23 24 ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47272 112 1 INDEX 2 3 WITNESS PAGE 4 Gumming Paton, Ph.D. 5 By Mr . Phalen 114 6 By Mr . Pendergas t 154 7 By Ms . Meyers 179, 187 8 By Ms . Herschel 184, 186 9 By Mr . Goutman 185 10 E X H I B I T S 11 NUMBER DESCRIPTION PAGE 12 Paton-9 Memo dated 6/18/68 from the..............121 13 U.S. Bureau of Commercial Fisheries 14 Paton-10 Memo dated 10/14/71 regarding...134 15 the status of PCBs 16 Paton-11 Memo dated 4/27/72 regarding....143 17 PCB labeling and warnings 18 Paton-12 Letter dated 9/11/7 3 to........................ .15 2 19 Mr. Blacklock from Mr. Papageorge 20 Paton-13 Letter dated 2/19/70 to.................... . .180 21 Dear Sir from Mr. Schalk 22 Paton-14 Letter dated 6/1/7 0 to............................182 23 Dear Customer from Mr. Schalk 24 * * * ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47273 113 1 DEPOSITION SUPPORT INDEX 2 3 Direction to Witness Not to Answer 4 Page Line Page Line Page Line 5 NONE 6 7 Request for Production of Documents 8 Page Line Page Line Page Line 9 NONE 10 11 12 Stipulations 13 Page Line Page Line Page Line 14 114 1-6 15 16 17 Question Marked 18 Page Line Page Line Page Line 19 NONE 20 21 22 23 24 ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47274 GUMMING PATON, PH.D. 114 1 (It is hereby stipulated and agreed by 2 and among counsel that sealing, certification 3 and filing are waived; and that all 4 obj ections, except as to the form of the 5 question, are reserved until the time of 6 trial.) 7 kkk 8 CUMMING PATON, PH.D., after having been 9 duly sworn, was examined and testified as 10 follows: 11 k k k 12 EXAMINATION 13 k k k 14 BY MR. PHALEN: 15 Q. Mr. Paton, my name is Ralph Phalen. I 16 represent the Commonwealth of Pennsylvania in this 17 suit. You're here today to answer a few questions 18 for us. You've been deposed before, so you're 19 probably familiar with the rules, but remember to 20 answer out loud and wait until I get done asking my 21 question before you answer so we're not both 22 speaking at the same time. If you have any 23 questions about my question and it's unclear, let me 24 know; otherwise, I will assume that you understood ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47275 GUMMING PATON, PH.D 115 1 the question. 2 Okay? 3 A. Okay. 4 Q. Would you state your name and address for the 5 record? 6 A. Yes. My name is Cumming, C-U-M-M-I-N-G, 7 Paton, P-A-T-O-N. My address is 13300 Fairfield, 8 all one word, Circle Drive, Town and Country, three 9 words, Missouri 63017. 10 Q. Mr. Paton, would you j ust briefly give me 11 your educational background? 12 A. Yes. I got a Bachelor of Science Degree in 13 Chemistry from the University of Aberdeen in 14 Scotland in 1955 and then I proceeded to do a Ph.D. 15 in Chemistry at the same university and graduated 16 with that in 1959, I recall. 17 Q. Have you done any formal education since 18 1959? 19 A. I think I started to do an M.B.A. at Ace 20 Western Reserve in Cleveland but I discontinued 21 that, when I was 1iving and working in Cleveland at 22 the time, and when I moved to Saint Louis, I choose 23 not to pursue it anymore. 24 Q. Would you briefly give me your work history ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47276 GUMMING PATON, PH.D. 116 1 starting from your Ph.D.? 2 A. I j oined Monsanto and Wales and the U.K. and 3 stayed with them for - - 4 Q. What year was that? '59? 5 A. That would have been '59. And I stayed with 6 them until the latter part of 1962. Then I went to 7 work for the Geigy Company, that's G-E-I-G-Y, in 8 Manchester, England. I worked with them until 1964 9 when I came to the United States. 10 Q. Where did you go in 1964? 11 A. In 1964 I came to the United States working 12 for a company in Ohio called Diamond Alkali, 13 D-I-A-M-O-N-D, A-L-K-A-L-I. 14 Q. If you just work up until the time you 15 retired. 16 MR. PENDERGAST: I'm going to object. 17 This was summarized in Pages 9 through 11 in 18 Mr. Paton's prior deposition. 19 MR. GOUTMAN: I'm aware of that and I 20 assume this will be brief and, therefore, I 21 won't interpose an obj ec tion. 22 MR. PHALEN: Yes. 23 THE WITNESS: What did I say, in 1964 I 24 came to the States? Is that what I said? ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47277 CUMMING PATON, PH.D. 117 1 MR. GOUTMAN: Yes. 2 THE WITNESS: Then in 1966 I rej oined 3 Monsanto Company in Saint Louis and I was 4 with them until I retired at the end of 5 1991. 6 BY MR. PHALEN: 7 Q. Did you remain in Saint Louis the whole time? 8 A. No. I spent six years in Brazil from 1979 9 until 1985 . I was in Korea from 19 87 until the end 10 of 1990 . 11 Q. You were in Saint Louis from 1966 through 12 1979? 13 A. Yes. 14 Q. And thenwhen did you retire? 15 A. I retired the end of 1991. 16 Q. Mr. Paton, today's deposition is going to 17 focus on your work or contact with PCBs while you 18 were employed by Monsanto. 19 A. Yes. 20 Q. When did you first begin to work with PCBs ? 21 MR. GOUTMAN: Obj ection to the form. 22 You may answer. 23 THE WITNESS: I would have become 24 involved with PCBs when I was with Monsanto, ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47278 GUMMING PATON, PH. D . 118 1 and I think it probably would have been the 2 beginning of 1968. 3 BY MR. PHALEN: 4 Q. What was your first contact or relation with 5 PCBs? 6 A. At the beginning of 1968 I was appointed 7 market manager in a group of products known as 8 plasticizers and a group of products for which I had 9 business responsibility PCBs for plasticizer use was 10 one of them. 11 Q. How are PCBs used in plasticizers? 12 A. They were used as additives to modify various 13 plastics and give the formulation of certain 14 characteristics that the customers were looking for. 15 Q. Do you recall any of the customers that 16 purchased PCBs for plasticizer use? 17 MR. GOUTMAN: Objection. Overly 18 broad. You can answer it if you can. 19 THE WITNESS: Yes, that is a very broad 20 question because plasticizers - - the group 21 was really - - the term was an umbre11a for 22 most of the products and sometimes products 23 were used where they weren't actually 24 plasticizing anything and I think that ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47279 GUMMING PATON, PH.D 119 1 certainly applied to PCBs. 2 BY MR. PHALEN: 3 Q. Were you aware of how the customers used the 4 PCBs? 5 A. In general terms. 6 MR. GOUTMAN: Excuse me. Obj ec tion 7 Overly broad. Answer it if you can. I think 8 you just did, in general terms. 9 BY MR. PHALEN: 10 Q. Do you recall when you first heard of 11 potential problems with PCBs? 12 MR. GOUTMAN: Objection. Overly 13 broad. You can answer. 14 THE WITNESS: No. I don't understand 15 the question because I have a problem since 16 it's a very vague word. 17 BY MR. PHALEN: 18 Q. Environmental concerns. 19 A. Again, environmental concerns is somewhat 20 broad. 21 Q. What is it about the term environmental 22 concerns that you don't understand or that seems 23 broad to you? 24 A. Well, the word 11 concerns, 11 again, it's ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47280 CUMMING PATON, PH.D. 120 1 vague. 2 Q. Okay. How about environmental problems? 3 A. That's also vague, "problems." 4 Q. How about pollution problems relating to 5 PCBs ? 6 A. That's a phrase that I can't recall. 7 Q. When was the first time that you learned of 8 PCBs being found in animals? 9 A. I'm not sure I ever heard of them being found 10 in animals. 11 Q. You're not aware of pollution problems 12 relating to PCBs? 13 MR. GOUTMAN: Objection. Overly 14 broad. 15 THE WITNESS: This is covering a long 16 period of time. 17 MR. GOUTMAN: Are you referring to 18 Yensin and Winmark (ph)? 19 MR. PHALEN: That's part of it, yes. 20 MR. GOUTMAN: Why don't you ask him 21 that besides, quote, pollution. 22 MR. PHALEN: Well, pollutants and 23 pollutions are the terms used in these 24 documents. That's why I'm asking him those ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47281 GUMMING PATON, PH.D. 121 1 terms. 2 MR GOUTMAN: Maybe you should show him 3 the document. If you show him the document, 4 perhaps he'll know what you're referring to. 5 MR. PHALEN: I'11 get to that. 6 BY MR. PHALEN: 7 Q. You're not aware of the term pollution 8 problems? Pollution concerns is too broad for you 9 to understand or answer? 10 A. It's too broad in relating it to PCBs. 11 MR. PHALEN: Let's mark this as 12 Paton-9. 13 * * * 14 (Letter was marked as Paton-9 for 15 identification by the court reporter.) 16 * * * 17 BY MR. PHALEN: 18 Q. Mr. Paton, Paton-9 is Bates stamped MONS 19 097094 . 20 MR. GOUTMAN: Take a second and read 21 i t. 22 BY MR. PHALEN: 23 Q. Mr. Paton, have you ever seen this document 24 before? ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47282 CUMMING PATON, PH.D. 122 1 A. I don't dispute that I probably wrote it back 2 in, what, 1968. 3 Q. 11 appears to be a letter or a memo from you 4 dated June 18, 1968 to Dr. R. Emmett Kelly. Is that 5 correct? 6 A. Well, it's to W.R. Richard. 7 Q. Okay. Is it cc'd to Dr. R. Emmett Kelly? 8 A. Yes. 9 Q. It says they are studying pollutants in Lake 10 Michigan and believe they have found PCBs. Do you 11 see that? 12 A. Yes. 13 Q. Is 1968 thefirst time that you became aware 14 of PCBs being discovered or being referred to as 15 pollutants or being found in the environment? 16 MR. GOUTMAN: Obj ection. Compound. Do 17 you want to break that down? 18 BY MR. PHALEN: 19 Q. When is the first time that you were aware of 20 PCBs being found in the environment? 21 A. Sometime in 1968 itwas alleged tobe found 22 at that time. 23 Q. Subsequently it was confirmed that they were 24 found in the environment, correct? ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47283 GUMMING PATON, PH.D. 123 1 A. I think so, but, you know, I'm not an expert 2 to say yes or no definitely. 3 Q. Did you not ever see any documentation that 4 would have supported that? 5 A. I've seen - - 6 MR. GOUTMAN: Excuse me. Supported 7 what? 8 MR. PHALEN: Supported that PCBs were 9 found in the environment. 10 THE WITNESS: I've seen papers that 11 have been written, allegations made. I'm not 12 the person who can say I'm absolutely sure if 13 they were or were not. 14 BY MR. PHALEN: 15 Q. So you're not trying to dispute the documents 16 or papers that were written? 17 A. No. Well, it depends on what's in them. 18 MR. GOUTMAN: Obj ection. What 19 documents or papers that were written? 20 MR. PHALEN: Documents or papers 21 concerning pollution or PCBs in the 22 environment. 23 THE WITNESS: I'm not sure that I've 24 seen all of them or I'm aware of all that ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47284 CUMMING PATON, PH.D. 124 1 were written. 2 BY MR. PHALEN: 3 Q. I understand you're probably not aware of all 4 of them that were written, but there were numerous 5 documents discussing PCBs in the environment, 6 correct? 7 MR. GOUTMAN: Monsanto is not 8 contending that PCBs were not found in the 9 environment. 10 MR. PHALEN: I'm trying to es tablish 11 what he knew and when he knew them. 12 THE WITNESS: I'm not disputing that I 13 didn't get a call from this lady in the 14 Bureau of Commercial Fisheries in Michigan 15 saying she's studying pollutants and that 16 they found PCBs in Lake Michigan, but I think 17 it is a bit of a leap from what's in here to 18 say that, therefore, PCBs are pollutants. 19 BY MR . PHALEN J 20 Q. I was just trying to find out when you first 21 became aware that there was a concern. 22 A. I was aware that the se things were being 23 alleged sometime in 1968. 24 Q. Are you aware of studies being conducted by ESQUIRE DEPOSITION SERVICES TOWOLDMON0047285 GUMMING PATON, PH.D. 125 1 Monsanto regarding the toxicity or possible toxicity 2 of PCBs ? 3 A. I think they had done some work on that or 4 did some work on it. I was not the person who was 5 responsible for doing the work. 6 Q. Were you aware that work was being done? 7 A. I was aware that work was being done, yes. 8 Q. What work was being done? 9 A. At this point in time we're going back 3 0 10 years. It would be impossible for me I cannot 11 recall exactly what was being done. 12 Q. Can you recall what the results of the 13 studies were? 14 A. I would not be in a position to give you any 15 accurate description of the results. 16 Q. Do you recall whether PCBs were considered to 17 be a health hazard? 18 MR. GOUTMAN: Obj ection. By whom? 19 MR. PHALEN: By Monsanto. 20 MR. GOUTMAN: When? 21 MR. PHALEN: In 1968 . 22 THE WITNESS: My recollection is that 23 if people got exposed to large quantities of 24 them, got PCBs all over their skin for ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47286 GUMMING PATON, PH.D. 126 1 extended periods of time, there was a 2 possibly they could get, as I recall, 3 chloracne. That, I think, is the extent of 4 my knowledge of what the problems with PCBs 5 would be. 6 BY MR. PHALEN: 7 Q. How about breathing PCBs fumes? 8 A. Breathing PCBs fumes ? Where? When? 9 Q. Was breathing PCBs fumes considered a 10 possible health hazard? 11 A. I don't know. Again, I think that would 12 depend on the concentration, the length of exposure 13 and a whole lot of other factors. 14 Q. So you said you don't recall any of the 15 toxicity testing or any of the results of the 16 toxicity testing? 17 A. I was aware that it was being done. We're 18 talking things that happened 30 years ago. You 19 know, I'm not trying to be difficult or evasive. I 20 just cannot recall, and I think rather than hazard 21 guesses, I better just say I can't recall. 22 Q. Do you recall when Monsanto first began to 23 consider phasing out the sale of PCBs? 24 MR. GOUTMAN: You mean anyone at ESQUIRE DEPOSITION SERVICES TOWOLDMON0047287 GUMMING PATON, PH.D. 127 1 Monsanto? 2 MR. PHALEN: I mean when he became 3 aware of discussions inside Monsanto about 4 phasing out PCBs. 5 MR. GOUTMAN: Okay. You can answer. 6 THE WITNESS: I think - - I don't think 7 I was in the plasticizer group when I became 8 aware that that was being actively 9 considered. I may be wrong, but my best 10 recollection is that it was probably sometime 11 in 1970. 12 BY MR. PHALEN: 13 Q. When did you leave the plasticizer group? 14 A. I left the plasticizer division I think in 15 early 1970 to the best of my recollection and 16 knowledge. 17 Q. Where did you go from there? 18 A. I was promoted as a market manager for 19 responsibility for organic chemicals, sales, in 20 Latin America, for Latin America. 21 Q. Do you recall why Monsanto began considering 22 phasing out the sale of PCBs? 23 MR. GOUTMAN: Same obj ec tion. You can 24 answer. ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47288 CUMMING PATON, PH.D. 128 1 THE WITNESS: Since I was in a new job 2 in 1970, I would not have been privy or part 3 of the decision or discussion process 4 regarding that. 5 BY MR. PHALEN: 6 Q. So you were not aware of why they began to 7 consider phasing out PCBs? 8 A. I was not a direct party to these 9 discussions. I probably did hear things second or 10 third hand or communicated with things in connection 11 with my new job, but at this late stage I cannot 12 remember what these factors were. 13 Q. You can't recall any reason why they 14 eventually completely stopped selling PCBs ? 15 MR. GOUTMAN: That wasn't your 16 question. 17 THE WITNESS: That's a later situation, 18 I think. 19 BY MR. PHALEN: 20 Q. When did you become aware of why they were 21 going to stop selling PCBs? 22 A. I think in the first stage, which I believe 23 it was plasticizers they stopped first, I would have 24 heard it after I moved out of the plasticizer ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47289 GUMMING PATON, PH.D. 129 1 division and had been told we're planning to do this 2 and I can't remember if that applied to Latin 3 America or not, immediately. I can't recall that. 4 Q. What were you told about why they were 5 planning to do that? 6 A. I can't at this stage recall what exact 7 reason I was given back then. 8 Q. Do you know now why they stopped selling 9 PCBs? 10 A. You mean PCBs totally or PCBs in 11 plasticizers? 12 Q. Let's do totally first. 13 MR. GOUTMAN: That's overly broad. You 14 can answer it if you can. Obj ection. 15 THE WITNESS: Well, the discontinuation 16 of products I think took place in several 17 stages. I think plasticizers, if I recall, 18 were first and I think they moved to heat 19 transfer fluids, which I was involved in, 20 hydraulic fluids, and I can't recall if I was 21 - - I think - - I can't recall if I had 22 responsibility for hydraulic fluids when they 23 began to phase them out or totally phased 24 them out. Again, I would have to see some ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47290 GUMMING PATON, PH.D. 130 1 documents to check them. Then there was 2 dielectrics which I was involved in. No. 3 Wait a minute Dielectrics, I think I - - I'm 4 not sure I was actually responsible for PCBs 5 at that time because I think that came in 6 1977 or some sort of time. Again, I'm a 7 little fuzzy on dates. 8 BY MR. PHALEN: 9 Q. I'm asking you the reason for why they began 10 phasing them out as opposed to when. 11 A. I can't speak to the exact reasons that led 12 to their decision on plasticizers. I can on heat 13 transfer fluids. 14 Q. Do you believe there was a difference? 15 MR. GOUTMAN: Obj ection. He said he 16 couldn't as to plasticizers, so how could he 17 say if they're different? 18 BY MR. PHALEN: 19 Q. Do you know if there was a different reason 20 for phasing out plasticizers versus phasing out 21 dielec trie fluids? 22 MR. PENDERGAST: Obj ection. He said 23 heat transfer fluids. 24 THE WITNESS: The applications are so ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47291 GUMMING PATON, PH.D. 131 1 different that there could be different 2 reasons. 3 BY MR. PHALEN: 4 Q. What reasons were you given for the phasing 5 out of PCBs in dielectric fluids? 6 MR. GOUTMAN: I think he said he knew 7 about heat transfer fluids. 8 MR. PHALEN: Heat transfer fluids. 9 THE WITNESS: In the case of heat 10 transfer fluids they were considered closed 11 systems because you use them to heat up tanks 12 or heat equipment or heat other materials, 13 and the idea of using them is obviously to 14 keep them contained so they circulate in some 15 fashion. I think one incident that took 16 place sometime, I'm guessing, in 1971 17 involved some company that was making chicken 18 feed, I believe, and was heating it and there 19 was a leak and it got into the chicken feed. 20 That, therefore, called into question whether 21 or not heat transfer systems were truly 22 closed. They were closed in the context that 23 they were designed to be closed, but whether 24 operators, the maintenance, was not carried ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47292 GUMMING PATON, PH.D. 132 1 out or whatnot, I don't know, but it clearly 2 proves that leaks can occur. Then they 3 weren't open anymore, and I think - - you 4 know, you wouldn't want to contaminate food 5 with any chemical, PCBs or anything else, 6 and, therefore, if you have a situation where 7 people are alleging that this kind of 8 contamination is unacceptable, et cetera, et 9 cetera, then you got to see, well, can you 10 ensure that it can't happen again, and since 11 the responsibility for keeping systems closed 12 laid totally outside of Monsanto's 13 responsibility, you have to s tart questioning 14 how long you could, you know, have this sort 15 of a situation where you'd be getting adverse 16 publicity of your product that leaked. The 17 focus was more on that than it was more of a 18 problem as to why it occurred. I think for 19 some time we tried to differentiate between 20 things that would be considered food related 21 and those that weren't, but you would have a 22 difficult time policing that because you 23 don't know necessarily what your customers 24 are doing with these products. ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47293 CUMMING PATON, PH.D. 133 1 BY MR. PHALEN: 2 Q. Okay. You said you left the plasticizer 3 group in early 1970. Were there discussions about 4 phasing out PCBs use in plasticizers prior to the 5 time that you left? 6 A. I cannot recall specifically. 11 could have 7 been, but it would be the early stages of saying 8 what do we do about certain things. I cannot recall 9 specifics. I'm not denying there weren't. I 10 honestly cannot recall. 11 Q. Do you recall if one of the reasons they 12 phased out PCBs was because of the failure of PCBs 13 to degrade in the environment? 14 MR. GOUTMAN: Obj ection to the form. 15 You can answer it. 16 THE WITNESS: I don't know if that 17 would have been at that point in time, how 18 much work would have been done at that point 19 in time in that issue. 20 BY MR. PHALEN: 21 Q. The issue of biodegradability? 22 A. Yes, the issue of biodegradability. I think 23 clearly the reason that the PCBs were used in many 24 applications was because it had fire resistance ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47294 GUMMING PATON, PH.D. 134 1 which was used to protect property and people and 2 the advantage of a particular product that had fire 3 resistant attributes was that it was s table and it 4 didn't breakdown. There's a positive side of that 5 degrading and that was a reason that customers 6 evaluated and chose to use it. 7 Q. But you don't recall if that was one of the 8 reasons for phasing out PCBs? 9 MR. GOUTMAN: Obj ection. Again, overly 10 broad as to which PCB product at what time. 11 You can answer it if you can. 12 THE WITNESS: Yes. Again, I think that 13 PCBs refers to a family of products. You 14 can't take one polychlorinated by-product and 15 say they're all the same. You'11 get further 16 muddy later when government agencies and 17 other agencies that got active in the 18 situation even said a monochlorified family 19 was a polychlorified family. A lot of people 20 aren't accurate in what they describe. 21 MR. PHALEN: Let's mark this as the 22 next exhibit. 23 * * * 24 (Memo was marked as Paton-10 for ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47295 GUMMING BATON, PH.D. 135 1 identification by the court reporter.) 2 *** 3 BY MR. PHALEN: 4 Q. Mr. Paton, Exhibit Paton-10 is dated October 5 14, 1971. It appears to be from Gumming Paton to 6 numerous individuals. It's Bates stamped MONS 7 0 9 8 5 5 8 through 098561 . Look at that and tell me if 8 you've ever seen it before. 9 A. Again, I don't deny that I was the author of 10 this memo. 11 Q. If you go down towards the bottom of the 12 first page where it says customer notification, do 13 you see that? 14 A. Yes. 15 Q. Earlier I asked you about PCBs causing 16 pollution and you told me that was too broad for you 17 to answer. 18 A. I think what you asked me had to do with a 19 date when I became aware of it. I think we were 20 talking about sometime in 1968 at that point in 21 time. This memo I think is several years beyond 22 that. 23 Q. Right. It says, a letter on the pollution 24 aspects of PCBs will be sent to customers. Do you ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47296 GUMMING PATON, PH.D. 136 1 see that? 2 A. Yes. 3 Q. Do you recall sending a letter to customers 4 on the pollution aspects of PCBs? 5 A. I can't recall if a letter went out over my 6 name or not. 7 Q. Do you recall if a letter went out over 8 anyone's name concerning the pollution aspects of 9 PCBs? 10 A. Certainly on October 14th the intention was 11 to do it, and I think it may well have gone out, 12 but, again, I can't say for sure. 13 Q. Do you recall what you meant when you said 14 the pollution aspects of PCBs? 15 A. Not all that would have been involved in it, 16 I'm sure. 17 Q. How about any of the pollution aspects of 18 PCBs? 19 A. I think I would have referred to 20 allegations. Again, as I've been giving depositions 21 it helps to refresh my memory. I don't know if by 22 then the EPA got involved and there was any federal 23 register mention made of the products. I cannot 24 recall if there had been. I think that would have ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47297 GUMMING PATON, PH.D. 137 1 been some of the things that might have been 2 included in such a letter 3 Q. Do you recall what the pollution concerns 4 were at this time that you needed to notify 5 customers? 6 A. I cannot at this point in time recall 7 specifically what they were, whether they were 8 allegations, that buildup of articles and the media, 9 or what else there was. And, again, I'm not trying 10 to evade answering your question. 11 Q. Do you recall what the inability to 12 biodegrade was of the pollution concerns regarding 13 PCBs ? 14 MR. GOUTMAN: Obj ection. 15 THE WITNESS: At some point, and I 16 don't know if it was at this point in time or 17 not, there were discussions about if PCBs got 18 into the environment what happened and what 19 would be the results of that, and the term, I 20 think, bioaccumulation is one that I recall 21 started coming into our vocabulary, and if 22 things broke down very readily, then I think 23 it's fair to say that they would not be able 24 to build up to a great extent over a long ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47298 GUMMING PATON, PH.D. 138 1 period of time, and so then I think that's 2 when the issue of the fact that PCBs consist 3 of different products or different PCBs, 4 different degrees of chlorination, that 5 related to the extent, the rate, of 6 biodegradation, then this would be a factor. 7 BY MR. PHALEN: 8 Q. So you don't know what any letter would have 9 said that would have gone out? 10 A. I cannot remember. If you showed me a copy 11 of the letter, it would probably refresh my memory, 12 but I cannot recall the specifics of what this 13 letter said. 14 MR. GOUTMAN: Mr. Phalen, we produced 15 those letters, as you know, in discovery. 16 Perhaps you can show the witness to refresh 17 his recollection. 18 BY MR. PHALEN: 19 Q. Do you know if this letter went out to all 20 current customers who were buying PCBs at that time? 21 A. I cannot say for sure. The way I've written 22 this memo I'm talking about dielectrics, and this is 23 one part of that, and I go onto heat transfer fluids 24 and I go onto something else. We said if we didn't ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47299 GUMMING PATON, PH.D. 139 1 plan notification of process fluids here, I see, so 2 I'm piecing together from what I wrote 27 years ago 3 that the customer notification here on Page 1 refers 4 specifically to dielectrics, but, again, I could 5 stand corrected if I saw the letter. 6 Q. Do you recall if at this time, October 14, 7 1971, Monsanto had stopped selling PCBs for any uses 8 at that point? 9 A. Possibly plasticizers. I think they probably 10 had for plasticizers. 11 Q. Do you know if this letter on pollution 12 aspects of PCBs would have been sent to former 13 plasticizer customers? 14 A. I can't say for sure if this particular 15 letter that you're referring to on Page 1 had been 16 sent. If we had discontinued plasticizers, which I 17 think we had by October 14th of '71, then I feel 18 sure that some communication had been given to all 19 customers at that time, but, again, I was not in the 20 plasticizer group at that point in time. In fact, I 21 obviously had just come back into product areas 22 using PCBs. I thought it was early '72 but it looks 23 like it was the latter part of '71 from this memo. 24 Q. So you don't know if any letter concerning ESQUIRE DEPOSITION SERVICES TOWOLDMON00473QO GUMMING PATON, PH.D. 140 1 pollution aspects of PCBs would have been sent to 2 plasticizer customers? 3 MR. GOUTMAN: Obj ection. Those letters 4 have been provided. You have copies of those 5 letters. 6 MS MEYERS: There is detailed 7 testimony about the letters and the dates 8 when they were sent in the deposition of Mr. 9 Papageorge and the dates are on the letters 10 and I have copies of the letters with me. 11 MR. PHALEN: Let Mr. Paton answer the 12 questions. 13 MR. GOUTMAN: You want his recollection 14 as to whether the plasticizer companies, 15 companies using PCBs as plasticizers, 16 received the kinds of letters referred to 17 under dielectrics in this document? 18 MR. PHALEN: Any letters concerning the 19 pollution aspects of PCBs. 20 THE WITNESS: I cannot say for sure 21 because for a period of almost two years I 22 was involved in plasticizers. PCBs were part 23 of the product group that I was working in 24 from early '6 8 until sometime in early 197 0 ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47301 GUMMING PATON, PH.D. 141 1 and then there was a gap and I came back and 2 got involved in PCBs again in the latter part 3 of 1971. Between leaving the plasticizer 4 group in the early '70s and coming back, I 5 think the products were discontinued. I 6 cannot say what letters went out when I 7 wasn't there or what they said. 8 BY MR. PHALEN: 9 Q. All I wanted to know is what you knew. 10 A. Okay. 11 Q. Mr. Paton, do you recall when Monsanto began 12 putting warning labels or issuing warning labels 13 with their PCB products? 14 A. What kind of warning labels are you talking 15 about? 16 Q. Any warning labels. Let's s tart there. 17 A. On the products? You mean on the 18 containers ? 19 Q. On the containers that they sold PCBs or 20 literature or anything. 21 A. Well, I think that in our bulletins there had 22 been statements referring to what I said earlier 23 about chloracne and so on. I think we're getting 24 bulletins that I would have seen when I j oined the ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47302 GUMMING PATON, PH.D. 142 1 plasticizer group in 1968 . I don't know - - I can't 2 remember if that statement would have gone on a 3 label on a drum or not. I think it may well have, 4 but I can't say for sure. I do recall at some point 5 in time, and I think it was probably after 1971, 6 that there was a discussion, and I think it was 7 carried out, that there should be additional 8 statements made and put on labels, and I recall 9 working with someone in distribution whose job it 10 was to be aware of what governmental requirements 11 were on labeling. I think by then the European 12 union was starting. They had some requirements on 13 labeling and I seem to remember discussions and me 14 being involved in trying to determine what was 15 required to satisfy U.S. regulations and satisfy the 16 regulations of other countries and to try to get 17 some degree of coordination to gather that. Yes, 18 there were new labels added or new messages added. 19 The details now escape me. Does that answer your 20 question? 21 Q. Kind of. 22 MR. PHALEN: Let's mark this as the 23 next exhibit. 24 * * * ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47303 GUMMING PATON, PH.D. 143 1 (Memo was marked as Paton-11 for 2 identification by the court reporter.) 3 *** 4 BY MR. PHALEN: 5 Q. Mr. Paton, Paton-11 is a document dated April 6 27, 1972 f rom Cumming Paton. The subj ect is PCB 7 labeling and warnings. It's Bates stamped MONS 8 0 9 8 318 through 0 9 8 3 2 3 . Mr. Paton, did you review 9 any documents in preparation for this deposition? 10 A. Yes. Some. Yes. 11 Q. Some? 12 A. Yes. Obviously I can't answer that I seen 13 all that you're going to show me, but I saw some. 14 Q. Have you seen the ones that we looked at so 15 far? 16 A. I think, yes. This one I'm not sure. I 17 think we talked about this though. 18 MR. GOUTMANs You're not allowed to 19 talk about what we talked about. It's what 20 you call attorney/client privilege. 21 THE WITNESS: Let me look at this. 22 MR. GOUTMAN: Do you want him to read 23 this stuff? 24 MR. PHALEN: You can read it all. ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47304 GUMMING PATON, PH.D. 144 1 MR. PENDERGAST: There's a pending 2 question as to whether he reviewed this 3 yesterday. 4 THE WITNESS: I don't think that I 5 actually looked at this particular memo 6 yesterday. 7 BY MR. PHALEN: 8 Q. I'm going to ask you about Attachment A. It 9 says bill of lading notice - drum shipments. Do you 10 see that? 11 A. Yes. 12 Q. The second sentencesays, extreme care should 13 be taken to prevent any entry to the environment 14 through spills, leakage, disposal, vaporization or 15 otherwise. Do you see that? 16 A. Yes. 17 Q. Can you explain to me what vaporization is? 18 A. It would mean that if you would have heated 19 the product up to such an extent that it was no 20 longer a solid or a liquid, that you were forming 21 the vapor like if you did water. You get steam. 22 This would be the case with PCBs at very high 23 temperatures. 24 Q. What's the differencebetweenvaporization ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47305 CUMMING PATON, PH.D. 145 1 and volatilization, if any? 2 A. Oh, God. You're looking at someone who is 3 forgetting more than he remembers. Volatilization 4 can occur sometimes at normal temperatures. It can 5 occur if you're blowing air or strong winds can 6 volatilize. Vaporization is usually, in my mind at 7 least, associated with heating it up to deliberately 8 drive off, convert it, from a liquid to a solid into 9 a vapor for some reason. 10 Q. So to you volatilization would be something 11 that happens without heat and - - 12 A. It would need some heat, but, you know, the 13 high vaporization in my mind is a deliberate 14 application of heat to drive it in that direction. 15 Q. So here it says disposable, vaporization or 16 otherwise. To you that would mean it would have to 17 be a deliberate application of heat? 18 A. Vaporization, yes, I think. 19 Q. Do you know if Monsanto contacted or sent in 20 any letters or warnings to plasticizer customers 21 warning them that vaporization or volatilization 22 could result in PCBs entering the environment? 23 MS. MEYERS: Obj ection to the form of 24 the question. ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47306 GUMMING PATON, PH.D. 146 1 MR. GOUTMAN: Objection. It's compound 2 and it assumes a scientific fact that has not 3 been established and there's no foundation 4 that has been laid with this witness to 5 answer that question. You can answer it if 6 you can, if you remember what it is. 7 THE WITNESS: I can't really answer 8 i t. 9 MR. GOUTMAN: If you remember what the 10 question was. 11 THE WITNESS: Well, maybe we should 12 read it just to refresh my memory, the 13 question again. 14 * * * 15 (Whereupon, the reporter readback 16 from the last record.) 17 * * * 18 THE WITNESS: I can'tsay for sure if 19 they did or didn't, but at the same time I 20 would say that customers using products would 21 be aware of that fact on their own. I think 22 that was a fairly basic thing that they would 23 know. 24 MS. HERSCHEL: Mr. Phalen, I'm a ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47307 GUMMING PATON, PH.D. 147 1 newcomer. Is there an agreement that an 2 obj ec tion by one defendant is an obj ection by 3 all? 4 MR. GOUTMAN: I think that's an 5 agreement that we had throughout this 6 litigation. 7 MR. PHALEN: That would be fine. 8 MS. HERSCHEL: Thank you. Sorry to 9 waste your time. 10 MR. PHALEN: That's all right. 11 BY MR. PHALEN: 12 Q. If you then turn to Attachment C where it 13 says precautions, and it says avoid breathing 14 vapors, mists or fumes. Do you see that? 15 A. Oh, yes, precautions. 16 Q. It says vapors, mists or fumes. Would that 17 be the vapors that would be given off during 18 vaporization? 19 A. During vaporization orheating. 20 Q. Or volatilization? 21 MR. GOUTMAN: Obj ection. 22 THE WITNESS: I think vapors, mists, 23 fumes, however these were. 24 BY MR. PHALEN: ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47308 CUMMING PATON, PH.D. 148 1 Q. So whether they were created by vaporization 2 or volatilization or some other method, would it be 3 the same warning? 4 MR. GOUTMAN: Obj ec tion. Overly 5 broad. This document doesn't say anything 6 about volatilization. 7 MR. PHALEN: It says vapors, mists or 8 fumes. 9 MR. GOUTMAN: Does that refer to 10 volatilizing? 11 MR. PHALEN: If a vapor, mist or fume 12 could be produced by vaporization or 13 volatilization. 14 MR. GOUTMAN: That hasn't been 15 established. 16 MR. PHALEN: I'm asking if you're to 17 avoid breathing a vapor, mist or fume if that 18 would apply in any way that a vapor, mist or 19 fume would be created - - 20 THE WITNESS: Probably, but I'm not 21 sure . 22 BY MR. PHALEN: 23 Q. Is there some method that a vapor, mist or 24 fume would be created where this warning wouldn't ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47309 GUMMING PATON, PH.D. 149 1 apply? 2 A I can't answer that. That would be people 3 more technically involved then I am. 4 Q. Do you recall at some point Monsanto set up a 5 disposal facility to handle the disposal of PCBs? 6 A. If you're referring to - - are you referring 7 to an incineration facility? 8 Q. If that's a disposal facility, yes. 9 A. I recall there was an incineration facility 10 established at some point. 11 Q. Do you recall why it was established? 12 A. I think it had to do with the time when we 13 ceased selling PCBs for any heat transfer 14 applications and when we were encouraging customers 15 to change them to non-PCB heat transfer materials we 16 said that for a specific period of time they could 17 send those PCBs back to us and we would incinerate 18 them. I think for a certain time we wouldn't charge 19 and after a certain time we would charge for a cost 20 of the incineration. 21 Q. Do you recall when they stopped selling PCBs 22 for heat transfer? 23 A. I think it was early 1972. I can't say I'm 24 100 percent sure. That's my recollection. ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47310 GUMMING PATON, PH.D. 150 1 Q. Were these offers to dispose the PCBs only- 2 made to heat transfer customers? 3 A. I can't recall. I think I was made aware of 4 it and I accepted it from others. You know, I'm a 5 little hazy on that note. 6 Q. Do you recall if it was only for PCBs' oils 7 or PCBs' fluids? 8 A. It was primarily for PCBs, but if customers 9 were cleaning out systems such as you would get in 10 heat transfer systems or hydraulic systems, they 11 might have flushed, you know, with non-PCB fluid 12 before they put in the new fill and some of that 13 flushing fluid came back and contaminated the PCBs. 14 Q. How about a product that contained PCBs? 15 MS. HERSCHEL: Obj ection to the form. 16 THE WITNESS: Well, I thought that I 17 indicated that the incinerator was set up 18 primarily to use PCBs. The PCBs are most 19 difficult to incinerate because you need a 20 higher temperature to break down. If you put 21 other oils in them, they would burn them much 22 more easily. 23 BY MR. PHALEN: 24 Q. So a customer who manufactured a product that ESQUIRE DEPOSITION SERVICES TOWOLDMON0047311 GUMMING PATON, PH.D. 151 1 contained PCBs could send it to Monsanto for 2 disposal? 3 A. What kind of product are you talking about? 4 Q. A plasticizer product, for instance. 5 MS. HERSCHEL: Objection to the form. 6 MR. PHALEN: Like caulk, duet work, 7 something like that. 8 MS. HERSCHEL: Same obj ection. I don't 9 think that the incinerator would be able to 10 handle that. I think the incinerator was 11 dealing more with, you know, liquids and 12 inj ec ting that into the incinerator to try to 13 burn it as quickly as possible. So I 14 don't - - I'm almost certain that it wasn't 15 set up to handle some materials. 16 BY MR. PHALEN: 17 Q. So the offer to customers to dispose of PCBs 18 was for PCBs' oils versus a product containing PCBs? 19 A. Now that you pursue this question further and 20 I think about it, I think almost certainly, yes . 21 Q. Do you know if - - 22 A. That's my recollection anyway. 23 Q. Do you know if Monsanto made offers to any of 24 their other customers to help them dispose of the ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47312 GUMMING PATON, PH.D. 152 1 products containing PCBs? 2 A. I can't recall any specifics because I don' t 3 think we were in a position to get specifics. I 4 think the letters that I recall talk about the need 5 for them to dispose of it and the way that they did 6 it and how to do it. 7 MR. PHALEN: Let's mark this as the 8 next exhibit. 9 *** 10 (Letter was marked as Paton-12 for 11 identification by the court reporter.) 12 * * * 13 BY MR. PHALEN: 14 Q. Mr. Paton, Exhibit 12 is a letter dated 15 September 11, 1973. It appears to be from Mr. 16 Papageorge to Mr. George Blacklock. It's Bates 17 stamped MONS 0 9442 8 and 094429 . 11 says that you 18 got a carbon copy of this letter. 19 A. Yes. 20 Q. Do you recall having seen this letter before? 21 A. No. 22 Q. Do you have any reason to believe that you 23 wouldn't have gotten a copy of this? 24 A. No, I'm not disputing that at all. ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47313 GUMMING PATON, PH.D. 153 1 Q. If you go to the last paragraph of the first 2 page it says, the program which Monsanto voluntarily 3 implemented worldwide consisted of a planned 4 termination of sales to those applications in which 5 control of escape to the environment was 6 impractical. Do you see that? 7 A. Yes. 8 Q. Do you know what that means, control of 9 escape to the environment was impractical? 10 A. I cannot speak to what Mr. Papageorge meant 11 exactly by that. 12 Q. What would that mean to you? 13 A. To me it would say that it was impractical 14 because of, as I indicated earlier, how the product 15 was used and what steps were taken to make sure that 16 it didn't escape the environment. It was really 17 outside of our control. 18 Q. Is that because Monsanto really didn't have 19 any way to know how all their customers used the 20 PCBs? 21 A. That would be part of it, but the other part, 22 as I indicated earlier, is where it went into the 23 equipment and that would be the maintenance of that 24 equipment to make sure that no leaks and so on were ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47314 GUMMING PATON, PH.D. 154 1 occurring It was something in which we were not in 2 any way involved in and in many cases customers did 3 not tell us what they were doing with the product. 4 MR. PHALEN: That'a all I have. 5 *** 6 BY MR. PENDERGAST: 7 Q. Mr. Paton, my name is John Pendergast. I 8 represent Chemrex in this lawsuit and I have some 9 questions for you which are follow-ups to some of 10 the questions that you were asked near the end of 11 your prior deposition. 12 First I'd like to ask you, have you had 13 a chance to review your prior deposition? 14 A. Yes. I reviewed it when it came from the 15 court reporter. 16 Q. Have you reviewed it more recently in 17 preparation for your deposition today? 18 A. No, I didn't. 19 Q. Now, as I understand it, you were head of the 20 plasticizer division between 1968 and sometime in 21 early 1970. Is that right? 22 A. I was a market manager in that division. 23 Q. Who headed that division? 24 A. There was a product manager called Walter ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47315 CUMMING PATON, PH.D. 155 1 Wakeoff (ph), and I can't recall who the general 2 manager was. I can't now recall the actual 3 reporting relationship beyond that. 4 Q. As marketing manager was it part of your duty 5 to understand the uses of the plasticizer products? 6 MR. GOUTMAN: Objection to the form. 7 You may answer. 8 THE WITNESS: Well, it depended. In 9 some cases I did know what they were being 10 used for and others I didn't. I would have a 11 general idea in what applications they might 12 be used for. It was a case of maybe having a 13 broader knowledge but then not being able to 14 know exactly what the specifics were because 15 some customers choose not to divulge what 16 they were doing with it and others would ask 17 for help, and when they did that, then we had 18 an opportunity to know more of what they were 19 doing. 20 BY MR. PENDERGAST: 21 Q. Did Monsanto have product 1iterature they 22 used to advertise the various uses of its 23 plasticizer products? 24 A. They had product literature which would ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47316 GUMMING PATON, PH.D. 156 1 probably give in general terms the kind of uses for 2 the products. They gave properties and from that 3 they might say. 4 Q. Were you aware while you were head of 5 marketing with the plasticizer division of Monsanto 6 that Aroclor was being used in polysulfide sealants? 7 A. By coincidence I knew of that from the work I 8 did with Diamond Shamrock which predated my j oining 9 Monsanto in Saint Louis. 10 Q. What was your relationship with Diamond 11 Shamrock - - 12 A. They had developed a type of polysulfide 13 produc t by the time I j oined them and I was -- I 14 j oined them as head of the technical service for 15 those new products, and in trying to formulate them 16 I recall that we tried to incorporate some articles. 17 Q. What property of Aroclors was perceived as 18 useful in incorporating them into polysulfide 19 sealants? 20 MR. GOUTMAN: Objection. By whom? 21 MR. PENDERGAST: By Diamond Shamrock. 22 THE WITNESS: They were used - - they 23 thought that polysulfides would find a use in 24 the general adhesive and sealants and, ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47317 CUMMING PATON, PH.D. 157 1 therefore, they were finding ways. I think 2 one way was to see if you had a polysulfide 3 it might be tougher and more brittle than 4 plasticizers that would have an effect in 5 making it more flexible and also improving 6 its adhesion to other materials. 7 BY MR. PENDERGAST: 8 Q. So the properties were to enhance flexibi1ity 9 and adhesion? 10 A. That's my recollection. 11 Q. Was the same true when you went over to 12 Monsanto? Was it still your understanding that PCBs 13 or Aroclors were being incorporated by some of 14 Monsanto's customers into polysulfide sealants to 15 enhance flexibility and adhesion? 16 A. I seem to recall one company in particular. 17 I think that it was Sonneborn that comes to mind. 18 When I was with Diamond Shamrock, they were still 19 trying to develop that product and they were not 20 being very successful at it, and so I'm not sure to 21 what extent they continued with that endeavor and 22 for how long they continued it. I can't recall. 23 After I came to Monsanto they were a very big 24 customer. Again, they were making the polysulfide ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47318 CUMMING PATON, PH.D. 158 1 resin, so they would have been buying additives and 2 I don't know who their customers were. 3 Q. Can you tell us whether Aroclor 4465 was used 4 as a plasticizer? First off, the prefix 44, is that 5 a PCB product to your knowledge? 6 A. A polychlorinated terphenyl and a 7 polychlorinated biphenyl. 8 Q. Do you know what the use of that product was? 9 A. I think it was used in certain types of 10 adhesives, but, again, I'm getting a bit hazy. It 11 wasn't a product that was used in huge quantities 12 that I recall. It would have been a smaller 13 bottling product. 14 Q. How about Montar 1 or I? 15 A. Okay. Yes. Oh, dear. Now, what were they? 16 I'm not even sure - - I'm not sure if they were even 17 chlorinated. You're dredging up memories from the 18 long-distance past. Montar, I'm not sure that we 19 ever developed much of a market for that and ever 20 sold very much of it. It was there. 21 Q. Do you know if it was used as a plasticizer? 22 A. I would rather doubt it because it would have 23 been a very hard, difficult to melt, solid sort of a 24 thing. So my guess is it wouldn't be much use, but ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47319 CUMMING PATON, PH.D. 159 1 I hope I'm not degrading some of the companies you 2 represent in the process. If I do, I don't mean to 3 do it. It's too ignorant. 4 Q. Your recollection is that that was a 5 by-product manufacture of the biphenyl, terphenyl 6 products and it's intended to be a hard material? 7 A. That's my recollection. If you talk to some 8 of my colleagues, they would say that fool Paton 9 doesn't know what he's talking about. 10 Q. Were the Santicizer products products within 11 the group of plasticizers? 12 A. Yes. 13 Q. Were the Santicizer products, based on their 14 name, non-Arocloric containing products? 15 A. I think in general, yes, but there may have 16 been cases when there might have been blends and 17 then they might have been sold under a Santicizer 18 name, but they would not be in a lot of them, but I 19 think there may have been some. 20 Q. I'm going to try to test your memory here for 21 a second, and if you don't recall, that's fine. 22 Santicizer 278, do you know if that contained 23 Aroclor? 24 A. I don't think it did. ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47320 CUMMING PATON, PH.D. 160 1 Q. Santicizer 140. 2 A. No, I'm sure it did not. 3 Q. Santicizer 148. 4 A. No. 5 Q. Santicizer 679. 6 A. I think it was a blend, but I don't recall it 7 being a blend with PCBs. I don't think so, but I'm 8 not sure of that. 9 Q. Santicizer 160. 10 A. No. 11 Q. Santicizer 261. 12 A. No. 13 Q. Would you agree with me that the Aroclors 14 with the prefix starting with the number 54 were 15 Therminol products? 16 A. Yes. 17 Q. Therminol FR-1 was not a plasticizer product, 18 correct? 19 A. No. 20 Q. You agree with my statement? 21 A. I agree with your statement. 22 Q. It's a heat transfer fluid? 23 A. Yes. 24 Q. And so that would not be a product that would ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47321 CUMMING PATON, PH.D. 161 1 be incorporated into sealants, correct? 2 A. I would not have expected it to be used in 3 sealants. 4 Q. I want to show you what was marked as Exhibit 5 Number 5 at your prior deposition and I'm going to 6 apologize for looking over your shoulder as you look 7 at it. It's a January 20th, 1972 memo from the 8 witness to W.S. Clark. 9 A. Okay. 10 Q. Would you agree with me that the memo 11 concerns Sonneborn's use of Therminol FR-1 in 12 general? 13 A. In general he's referring to the heat 14 transfer fluids based on PCBs in the Chicago plant, 15 yes . 16 Q. And there was some reference that Sonneborn 17 had considered using Kaneclors as a heat transfer 18 fluid which was a trade name of - - 19 A. Kanegafuchi. It's a Japanese company. 20 Q. And you express under action that the 21 conversion team had some concern about that. What 22 was the concern of the Kaneclors under the heat 23 transfer system? 24 A. At the time we were announcing that we were ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47322 CUMMING PATON, PH.D. 162 1 going to stop selling PCBs in the use of heat 2 transfer fluids. I think a lot of the focus of the 3 publicity concerning PCBs in the United States gave 4 the impression that Monsanto was the only user. 5 Q. Seller? 6 A. Only seller. Sorry. You're right, seller. 7 And we were trying to set in the industry that we're 8 not going to sell anymore. We're also trying to 9 help customers, if they wanted that help, to convert 10 away. We certainly couldn't stop them, stop 11 Sonneborn from using Kaneclor if they wanted to, but 12 clearly if there were problems, we did not want to, 13 therefore, be implicated in that situation, nor did 14 we particularly want to be taking PCBs back for 15 incineration. As far as we knew, that had not been 16 produced by us. 17 Q. And that was at a time when you were offering 18 to incinerate heat transfer fluids at a price to 19 some of your customers, correct? 20 A. Possibly. It might even have been for free, 21 but the fact of the matter was we didn't want to be 22 accepting responsibility for more than we had to. 23 Q. Were you involved at all in any 24 investigation, study, to determine whether Kaneclors ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47323 GUMMING PATON, PH.D. 163 1 could be chemically identified separate and apart 2 from Monsanto Aroclors; in other words, through some 3 form of chemical analysis and say that's a Kaneclor 4 and this is an Aroclor? 5 A. I don't know for sure that you could be that 6 precise, but analytical chemists would be the better 7 people to answer that. 8 Q. Have you ever heard that Kaneclors differed 9 from the Monsanto Kaneclors, contained higher levels 10 of contaminants? 11 A. Back in 1972 I don't think I would. Would I 12 think so since I got into this deposition situation 13 in the last few years? I've heard this brought up 14 by plaintiffs' lawyers and the inference made. I 15 don't know to what extent that's right or wrong. 16 Q. One thing apparently from follow-up for W.S. 17 Clark was that, to my understanding in paragraph sub 18 2, Clark was to follow-up to see whether PCBs were 19 getting into the country from Europe and Japan. 20 A. Yes. 21 Q. Do you know if Clark ever did follow-up on 22 that? 23 A. I don't know. I have no reason to believe 24 that he didn't, but I don't know. ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47324 GUMMING PATON, PH.D. 164 1 Q. Do you recall whether he was able to 2 determine whether Kaneclors were getting into the 3 country? 4 A. I can't recall that. 5 Q. Do you recall if at any point you were 6 advised that Monsanto was fairly confident that PCBs 7 were not coming into the country from other sources? @ MR. GOUTMAN: Obj ection to the form. 9 BY MR. PENDERGAST: 10 Q. I just want to know whether at some point in 11 time Monsanto did have these concerns about its 12 public relations, its imagine, and given the fact 13 that Monsanto was doing so much to control the use 14 of PCBs and was, therefore, interested as to whether 15 PCBs were imported into the country. Do you recall 16 a time occurring where someone said we are fairly 17 confident now that Kaneclors from Europe, PCBs, are 18 not coming into the country? 19 MR. GOUTMAN: Obj ection to the form. 20 THE WITNESS: I can't recall that. 21 BY MR. PENDERGAST: 22 Q. Have you ever done any work with 23 urethane-based sealants? 24 A. You mean me personally? ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47325 GUMMING PATON, PH.D. 165 1 Q. Yes. 2 A. Not directly. 3 Q. Do you understandwhere urethane-based 4 sealants get their adhesive and elastic properties 5 from? 6 A. I probably wouldhaveat one time. 7 Q. Would you at least agree with me that as 8 marketing director for Monsanto plasticizers that 9 you understood that urethane-based sealants were not 10 an area where Aroclors would be useful in enhancing 11 either elasticity or adhesive? 12 A. I don't know if it was or wasn't - - I can't 13 agree with you. I don't know. 14 Q. You don't have a recollection of ever selling 15 Aroclors for use with urethane-based sealants? 16 A. I can't think of specifics now, but that's 17 not to say that people bought them and used them in 18 that area. I just cannot remember. 19 Q. You have a Ph.D. in chemistry. correct? 20 A. Yes . 21 Q. You would not be able to offer us testimony 22 one way or another as to whether the use of Aroclors 23 with a polyurethane-based sealant would be 24 consistent or inconsistent or would even work? ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47326 GUMMING PATON, PH.D 166 1 A. I wouldn't want to speculate on that. 2 Q. I want to show you what was marked as Exhibit 3 Number 8 which was marked at your lastdeposition. 4 It's a March 25th, 1969memo from yourself to Bill 5 Richard. 6 A. Yes. 7 Q. This represents the summary of the use of 8 chlorinated biphenyls as plasticizers with a date of 9 1968. Correct? 10 A. The date of '69. 11 Q. I'm sorry. But looking at 1968 figures. 12 A. Okay. 13 Q. Correct? 14 A. Okay. 15 Q. Would you agree with me that the memo 16 generally outlines the uses of PCBs as plasticizers 17 and includes some sales figures for the year 1968? 18 A. Yes. 19 Q. Would you agree with me that Monsanto's use 20 of PCBs as plasticizers would not have become more 21 diverse? In other words, your market for 22 plasticizers did not become more diverse after 23 1968 . 24 A. I'm not sure of that. I think it's somewhat ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47327 GUMMING PATON, PH.D. 167 1 unlikely, but I wouldn't draw that inference from 2 this particular memo. 3 Q. Okay. Now, under sealants you indicate 4 Aroclors are used in polysulfide sealants, correct? 5 A. Yes. 6 Q. And under that paragraph, subparagraph you 7 make no mention of the use of Aroclors in 8 urethane-based sealants, correct? 9 A. Correct. 10 Q. But your information as marketing manager of 11 Monsanto Company, your information as of March 25, 12 1969, is that Aroclors were being used in 13 polysulfide sealants, correct? 14 A. Yes. 15 Q. And you agree with me that if Aroclors were 16 being used in urethane-based sealants that you would 17 have included that in your memo had you been aware 18 of that at the time? 19 A. If I had been aware of it, but you also got 20 this distributor group here with four and a half 21 million pounds and with the nature of their market 22 it's very difficult to pinpoint that. 23 Q. Right. I'm asking you for your knowledge, 24 your knowledge as of March 2 5, 1969 as far as ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47328 CUMMING PATON, PH.D. 168 1 sealants were concerned. Aroclors were being used 2 in polysulfide sealants, correct, and you had no 3 knowledge then and you have no knowledge today that 4 Aroclors were ever used in urethane-based sealants? 5 A. It never stood up. I never put - - 6 Q. You had no knowledge in March of 1969 nor do 7 you have any knowledge today that Aroclors were ever 8 used in a urethane-based sealant. Is that correct? 9 MR. GOUTMAN: Obj ection. He just 10 answered that question. He can answer it 11 again if he wants. 12 THE WITNESS: I don't mention it here. 13 It was impossible to say where they were 14 used. It didn't stand up as a big use in its 15 own right. 16 BY MR . PENDERGASTs 17 Q. I'm going to ask you though for your 18 knowledge. 19 A. This is my knowledge. 20 Q. All right. Sitting here today - - 21 A. I have - - I mean, I would have no reason - - 22 I'd be less certain today than I was then. 23 Q. In the same exhibit, Exhibit 8, you refer to 24 miscellaneous uses including miscellaneous ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47329 GUMMING PATON, PH.D. 169 1 applications as fire retardant additives, et 2 cetera. Realizing again that this was authored 3 many, many years ago, do you know what the wax 4 compounds were and what they were being used for? 5 A. No. 6 Q. How about the et cetera? Do you recall what 7 the other miscellaneous uses were? 8 A. Those were the customers to whom either I or 9 anybody else in my sales floor might have asked and 10 they said they don't know. So they would have gone 11 on the miscellaneous category. 12 Q. Are you aware of any instances in which a 13 product manufactured using an Aroclor plasticizer 14 leached Aroclors or PCBs into any materials? 15 MS. MEYERS: Obj ection to the form of 16 the question. 17 MR. GOUTMAN: Objection. It's overly 18 broad. 19 THE WITNESS: It's very broad. I don't 20 think I'm aware of - - at this point in time I 21 can't think of any specifics. 22 BY MR. PENDERGAST: 23 Q. There was a point in time where there was 24 some concern with feed being contaminated with ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47330 GUMMING PATON, PH.D. 170 1 PCBs. Do you recall that? 2 MR. GOUTMAN: Objection to the form. 3 THE WITNESS: I vaguely remember that. 4 BY MR. PENDERGAST: 5 Q. Do you know if the problem there was leaching 6 of the material to the coating? 7 A. I really can't say for sure. 8 Q. As marketing manager for Monsanto's 9 plasticizer division during the time that you held 10 that position did Monsanto do any research itself to 11 determine the compatibility with Aroclors with 12 various sealants that were being marketed at the 13 time? 14 A. I'm not sure that that would have been done. 15 When you say sealants being marketed, you mean 16 sealants being marketed by other people? 17 Q. By others, yes. 18 A. I wouldn't have thought we would have done 19 tha t unless we've been specifically reques ted or 20 customers would have supplied us their products. So 21 I can't recall that sort of thing happening. 22 Q. Would you agree with me from a marketing 23 standpoint that you would have been looking for new 24 markets to get into with your plasticizer products? ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47331 GUMMING PATON, PH.D. 171 1 MR. GOUTMAN: Obj ection to the form. 2 What period of time? 3 MR. PENDERGAST: While he was the 4 manager. 5 THE WITNESS: We would have been 6 looking for new markets for our products. We 7 certainly would have potential customers 8 coming to us and saying, look, we're trying 9 to develop this, that or the other and we 10 would like to use an Aroclor, do you have it, 11 and we would have said yes. But customers 12 often did their own development work. We 13 would have had work done in some cases where 14 we would have checked to see if plasticizers 15 were compatible with some common resins like 16 PCBs . 17 BY MR. PENDERGAST: 18 Q. And so Monsanto did do some of that type of 19 research? 20 A. Yes, but it would be what I call screening 21 information to give them some basic information so 22 they didn't waste their time trying something that 23 we said the chance of it working are slim to none. 24 Q. Do you recall Monsanto doing any work to see ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47332 GUMMING PATON, PH.D 172 1 whether Aroclors were useful to incorporate into 2 urethane-based products? 3 A. I can't recall. I can't recall that in my 4 tenure, but I would not be the right person to ask. 5 Q. Who would be the person to ask? 6 A. The people in the application technical 7 service type of department would have a better or 8 might have a better recollection then I do. 9 Q. Who would that be for the period of, let's 10 say, '68 through '71? 11 A. Somebody 1ike a Bill Cocker. Who else? 12 Possibly a Norm Tushal (ph), Jim Renshal (ph), 13 possibly, maybe not. I'm not too sure. 14 Q. In the early 1970s you changed positions 15 within the company? 16 A. Yes. 17 Q. And what was your position after 1970? 18 A. I was marketing manager for organic chemicals 19 for Latin America. 20 Q. And that included the sale of Aroclors? 21 A. Yes, it did. It encompassed a fairly broad 22 range of products. 23 Q. When did you change positions again? 24 A. Sometime in the latter part of 1971 as best ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47333 CUMMING PATON, PH.D. 173 1 as I recall and that was refreshed a little bit by 2 Mr. Phalen. 3 Q. And in that latter part of 1971 your position 4 was what again? 5 A. I think I became a product manager in heat 6 transfer fluids and dielectrics. Again, there's a 7 memo here that helped refresh my memory, and 8 something called process. I don't know if I was 9 involved in process fluids or I had a very close 10 coordination role. I can't remember. Heat transfer 11 fluids and dielectric fluids for sure. 12 Q. Processed fluids, were they Aroclor 13 containing? 14 A. No, I don't think so at that time. 15 Q. What were the process fluids used for? 16 A. They weren't really used as plasticizers, but 17 I think in the miscellaneous category they were 18 used. 19 Q. Do you recall that the heat transfer fluids 20 were completely discontinued, the Aroclor containing 21 heat transfer fluids? 22 A. Yes. It was on my watch and I can't recall 23 the exact date, but I think it was probably early 24 '72. I remember the planning leading up to it. I ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47334 GUMMING PATON, PH.D. 174 1 remember the announcement and so on, but the date 2 escapes me, but I think it's early '12. 3 Q. Then after early 1972 was the only Aroclor 4 containing product or products being sold by 5 Monsanto being sold for use in the electrical 6 industry? 7 A. I think so. It wouldn't have been far off 8 the heat transfer fluid period time frame. 9 Q. Were you involved at all in obtaining 10 indemnity agreements from your electrical customers 11 in order to continue selling them Aroclors? 12 A. Was I involved? 13 Q. Yes . 14 A. Yes . 15 Q. Did there come a point in time where Monsanto 16 insisted that if it was going to sell Aroclors to 17 its customers that it insisted on obtaining an 18 indemnity agreement from them? 19 A. Yes. 20 Q. It became a policy of Monsanto that if such 21 an agreement was not signed, Monsanto would flat out 22 not sell the product? Is that right? 23 A. That's right. 24 Q. Do you recall the approximate date when that ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47335 CUMMING PATON, PH.D. 175 1 occurred? 2 A. I know that it was after the end of - - it was 3 after I came back into being involved with PCBs. I 4 can't pin it down, but there were certainly 5 practical reasons why such a document was vital. 6 Q. Were companies other than Westinghouse and 7 General Electric signing those agreements? 8 A. I think there were other companies. 9 Q. Do you recall who the other companies were? 10 A. They would probably be the makers of 11 capacitors and there were a number of those. 12 Q. Was it a provision of the indemnity agreement 13 that the Aroclors not be resold? 14 A. I think it probably was, and I can't say for 15 sure, but I think almost certainly because the main 16 driving force in terms of considering such a plan 17 and implementing it here were we stop selling 18 plasticizers. We told the heat transfer people - - 19 well, initially we said once they admitted they were 20 using it in food or food-related systems they could 21 not get it, and then we went further and said there 22 can't be any system because systems can leak or they 23 can be maintained. We have no control of that. 24 That incident where we said no more heat transfer ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47336 GUMMING PATON, PH.D. 176 1 fluids with PCBs raised every ruckus. I mean, 2 people would call me and say, look, are you aware 3 that you're going to shut us down and you're 4 everything and so on and so forth. Then there were, 5 well, we'11 try to find them somewhere else, and 6 you've seen reference here to finding imports. So 7 it would - - we had been - - at the same time the EPA 8 was saying that there's no suitable replacement in 9 the dielectric area and safety is a primary 10 concern. The products were used because of the fire 11 retardants and the fact that they wouldn't break 12 down. So we were caught in the horns of a dilemma 13 and there were also a great number of customers who 14 ran repair shops where transformers were being 15 repaired and they would be emptied out and refilled 16 and we were worried, I was worried, and my 17 colleagues as well, about that situation, but 18 certainly if an incident occurred and it appeared in 19 the press, I guarantee that Monsanto's name would 20 have been put there in an adverse light. So that 21 was the reason and it had some teeth in it. I've 22 been asked before, well, was it done just because we 23 wanted to be covered financially and to be nasty 24 people, but, no, if you're going to make something ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47337 GUMMING PATON, PH.D. 177 1 stick, you're going to make it strong. 2 Q. And the intent was that the company 3 understood and the manufacturers felt, and so did 4 the EPA, that PCBs continued to be a useful product 5 for use in these dielectric uses but Monsanto was 6 concerned that, among other things, you might sell 7 to one of these people and there was a big market 8 for the PCBs and they turn around and resell them to 9 someone who is using it in open use and Monsanto's 10 name ends up in the paper? 11 A. Yes. 12 Q. We can probably get the documents, but it was 13 important that Monsanto, at least in its agreement 14 with customers after 1972, say that the customers 15 agree not to resell the Aroclors? 16 A. Yes, and we policed that as best we could. I 17 mean that would have been considered. If any 18 employee had been caught trying to do that, there 19 would be serious repercussions. 20 Q. As well as one of your customers, your 21 dielectric customers, if you found out that they 22 were reselling the material, that would have serious 23 repercussions as well? 24 A. Exactly. ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47338 GUMMING PATON, PH.D. 178 1 Q. Was Aroclor 1242 used as a plasticizer? 2 A. I can't say Aroclor 1242 was used as a 3 plasticizer I don't think so and not to any great 4 extent, but I wouldn't say absolutely no. 5 Q. Were there Aroclors that were specifically 6 marketed as plasticizers? 7 A. To the extent that you're thinking of PCBs 8 and using plasticizers in means to making the 9 plastics flexible, Aroclors weren't the first 10 product that jumped to mind because they weren't 11 particularly efficient in that regard They were 12 used usually where other properties were being 13 looked for, such as, an inability to break down 14 under heat or give an element to fire resistance or 15 something like that. 16 Q. Am I to infer from that answer then that 17 there were no specific Aroclors that were considered 18 to be marketed as plasticizers? 19 A. I think we're talking about something 20 different. If you want to use a product with the 21 most fire retardant, you want higher chlorination. 22 This tended to be more viscous or being solid. So 23 from the use of plasticizers that was usually the 24 opposite direction in which you wanted to go and so ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47339 CUMMING PATON, PH.D. 179 1 also - - as I think of it, the word plasticizers for 2 the division probably is a name that caused more 3 confusion than it's worth. I think now we use the 4 term polymorphously. I think of plasticizers if I'm 5 adding something because I want to make something 6 soft and flexible, and to that extent, if somebody 7 asks me what to use, the plasticizer material would 8 be pretty far down my list. 9 Q. With respect to the non-PCBs containing 10 plasticizers that were sold by Monsanto, what was 11 the basic chemical composition of those 12 plasticizers? 13 MR. GOUTMAN: Obj ection to the form and 14 also relevancy in this litigation. In any 15 event, you can answer it. 16 THE WITNESS: I think there are several 17 categories that we use. One is phthalate and 18 the other is phosphate. These were two of 19 the other categories. 20 MR. PENDERGAST: That's all the 21 questions I have. Thank you. 22 * * * 23 BY MS. MEYERS: 24 Q. Dr. Paton, my name is Joyce Meyers and I ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47340 GUMMING PATON, PH.D. 180 1 represent Courtaulds Aerospace in this case. I have 2 a couple of questions for you. 3 I'd like you to clarify your 4 chronology, if you can. You said you left the 5 plasticizer division in early 1970. 6 A. Yes. 7 Q. Can you be any more specific than that? 8 A. You mean a date? 9 Q. Were you there for the first couple of months 10 of 1970? 11 A. Possibly. I think likely, but, I mean, it's 12 so far back that I just cannot remember. 13 Q. I would like to show you a document that 14 we'11 mark as the next exhibit. 15 * * * 16 (Letter was marked as Paton-13 for 17 identification by the court reporter.) 18 * * * 19 BY MS. MEYERS: 20 Q. For the record this is a document that was 21 produced by Monsanto with Bates numbers PDT 013615 22 through PDT 013619 . The first two pages are a 23 letter dated February 19th, 19 7 0 with some 24 attachments. ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47341 GUMMING PATON, PH.D. 1 A. Yes. 181 2 Q. Would you take a moment to look through these 3 pages and tell me if you have any recollec tion of 4 seeing them before? 5 A. I don't really recall having seen it. I 6 think from the date there's a very good possibility 7 that I did see it, but it doesn't stick out as 8 something I'm familiar with. 9 Q. The signature on the letter is W.E. Schalk 10 A. Yes 11 Q. Did you know Mr. Schalk? 12 A. Yes 13 Q. Did he report to you? 14 A. No . I would have reported - - I'm not sure 15 I would have reported directly to him, but he would 16 have been one level above me but in the plasticizer 17 group and he would have been responsible for sales 18 and the sales offices would have been his 19 responsibility. 20 Q. Do you have any recollection of discussions 21 with Mr. Schalk about sending such a letter? 22 A. I don't - - I think it's highly likely that I 23 did. I cannot recall specifics now. 24 Q. The letter says in Paragraph 2, Monsanto has ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47342 CUMMING PATON, PH.D. 182 1 decided to notify all its customers of Aroclor 2 products of the publicity surrounding PCBs. Are you 3 aware at any time before February 19th, 1970 when 4 Monsanto sent such a notice to its customers? 5 A . I can't. 6 Q. On the second page in the second paragraph it 7 says, we intend to mail the attached letter to all 8 our Aroclor customers around February 27. And 9 starting at page Bates numbered PDT 013618 there is 10 a letter, a form letter, addressed dear cus tomer. 11 Do you know whether that letter was, in fact, sent 12 to all customers on February 27th, 1970? 13 A. I don't know for sure. 14 MS. MEYERS: Let's mark this as the 15 next exhibit. 16 * * * 17 (Letter was marked as Paton-14 for 18 identification by the court reporter.) 19 * * * 20 BY MS. MEYERS: 21 Q. We've marked as Exhibit 14 a document 22 produced by Monsanto with Bates numbers PDT 013 6 5 0 23 through PDT 013655. It's a letter dated June 1, 24 1970. It appears to be a form letter to Dear ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47343 GUMMING PATON, PH.D. 183 1 Customer and signed by W.E. Schalk with some 2 attachments. Are you familiar with this document? 3 A. No. I may have gotten a copy of it in my 4 role as a marketing person in the new position that 5 I took over in 1970, but I almost certainly wouldn't 6 have had a hand in putting this together. 7 Q. The first sentence of it says, you have 8 received our letter mailed February 27, 1970 9 notifying you of the allegations that certain 10 polychlorinated biphenyls had been found in the 11 environment and were contaminants. And on the 12 second page of the letter in the first paragraph it 13 says, we have come to a decision to discontinue the 14 sale of PCB-containing products for modifier and 15 plasticizer applications effective August 30, 1970. 16 Does this letter refresh your 17 recollection as to when the sales were discontinued? 18 A. No, because clearly this was happening after 19 - - I'm almost 100 percent certain this was 20 happening after I moved to my other position. 21 Q. Did you at any time see these documents after 22 you returned? 23 A. Possibly. I wouldn't say I didn't. If it 24 had been, it would have been - - it might have been a ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47344 GUMMING PATON, PH.D. 184 1 file where I had all the letters that I sent out 2 just for reference purposes, but I can't recall. By 3 the way, if I can clarify, I indicated earlier in 4 response to this gentleman that Montar was not 5 chlorinated. I see, and I stand corrected, but they 6 do say they contain PCBs. That certainly, once 7 again, we sold very, very little of it, at least 8 when I was involved we sold very, very little. 9 Q. Before leaving the plasticizer division in 10 early 1970 did you participate in discussions with 11 other people about the decision to send letters of 12 this type to customers? 13 A. I can't recall any. I think that was my 14 answer to Mr. Phalen. I can't recall specific 15 discussions. 16 MS. MEYERS: Thank you. That's all I 17 have . 18 k k k 19 BY MS. HERSCHEL: 20 Q. Mr. Paton, my name is Susan Herschel. I 21 represent Certainteed. Would you look again at 22 Paton-13 ? It's the February 19 th, 1970 letter . In 23 the third paragraph on the first page it begins by 24 saying. We feel it's very desirable that you, as a ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47345 GUMMING PATON, PH.D. 185 1 reseller of Monsanto's Aroclor plasticizers, alert 2 your customers, et cetera. At Monsanto, if there 3 was such a thing, to what type of customer does a 4 reseller refer? 5 A. The reseller would be a distributor. 6 MS. HERSCHEL: No further questions. 7 MR. GOUTMAN: I have a follow-up 8 question. 9 10 * * * 11 BY MR. GOUTMAN: 12 Q. Dr. Paton, you were questioned by plaintiff's 13 counsel about a document marked Paton-11 concerning 14 precautions on avoiding breathing vapors, mists or 15 fumes. To your knowledge did Monsanto ever warn 16 about volatilization of PCBs as a potential health 17 hazard? 18 A. For volatilization? 19 Q. Volatilization. 20 A. I can't recall specifically coming out with 21 that. 22 Q. Sir, avoid breathing vapors, mists or fumes, 23 would that relate to volatilization? 24 A. In my way of thinking, probably not, probably ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47346 GUMMING PATON, PH.D. 186 1 more in the vaporization, going back to the 2 discussion that I had with Mr. Phalen, because 3 fumes, in my mind, vapors, you get when you 4 deliberately heat the product. 5 MR. GOUTMAN: That's all I have. 6 *** 7 BY MS. HERSCHEL: 8 Q. Mr. Paton, may I ask a second question? 9 Would you look at Paton-14, the June 1, 1970 10 letter? 11 A. Right. 12 Q. First there's a salutation. Dear Customer, 13 you have received our letter mailed February 27, 14 1970 notifying you of the allegations that certain 15 PCBs have been found in the environment. Do you or 16 do you not, sir, infer from that that this form 17 letter was sent to the same group of people as the 18 February 27, 1970 form letter? 19 A. I can't say for sure or not. The only person 20 that presumedly could answer that would be Mr. 21 Schalk. 22 Q. And you don't infer that from the context of 23 the first sentence? Is that correct? 24 A. You could infer it, but I don't know that my ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47347 GUMMING PATON, PH.D. 187 1 inferring it would mean very much because I had 2 nothing to do with sending it out. 3 MS. HERSCHEL: Thank you. 4 MS. MEYERS: May I ask a clarifying 5 question? 6 *** 7 BY MS. MEYERS: 8 Q. Dr. Paton, in responding to Mr. Phalen's 9 questions about distinguishing vaporization from 10 volatilization you gave a description of the process 11 of vaporization. In your answer were you describing 12 a general process or were you referring specifically 13 to PCBs? 14 A. I was probably referring to a more general 15 process. Vaporization is where you normally have to 16 heat something up, heat it up to quite high 17 temperatures to bring about it going into a 18 different physical state, solid, liquid and then 19 vapor. 20 Q. Were you also describing a general process 21 when you were talking about volatilization? 22 A. Volatilization I was more vague about it 23 because it's something that can happen under a 24 variety of different circumstances. It's maybe not ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47348 CUMMING PATON, PH.D. 188 1 such a precise process as is vaporization. 2 Q. When you say it can happen under certain 3 kinds of conditions, are you speaking generally or 4 are you speaking - - 5 A. I'm speaking generally. 6 Q. So you're not speaking about volatilization 7 of PCBs? 8 A. In general, PCBs tend not to be volatile. 9 MS. MEYERS: Thank you. That's all I 10 have. 11 * * * 12 (Whereupon, the deposition was 13 concluded at 11:30 a.m.) 14 15 16 17 18 19 20 21 22 23 24 ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47349 189 1 INSTRUCTIONS TO WITNESS 2 Read your deposition over carefully. It is 3 your right to read your deposition and make changes 4 in form or subs tanc e. You should assign a reason in 5 the appropriate column on the errata sheet for any 6 change made. 7 After making any change in form or substance 8 which has been noted on the following errata sheet 9 along with the reason for any change, sign your name 10 on the errata sheet and date it. 11 Then sign your deposition at the end of your 12 testimony in the space provided. You are signing it 13 subj ec t to the changes you have made in the errata 14 sheet, which will be attached to the deposition 15 before filing. You must sign it in front of a 16 witness. Have the witness sign in the space 17 provided. The witness need not be a notary public. 18 Any competent adult may witness your signature. 19 Return the original errata sheet and 20 transcript to the deposing attorney (attorney asking 21 questions) promptly! Court rules require filing 22 within 30 days after you receive the deposition. 23 Thank you. 24 ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47350 191 1 SIGNATURE PAGE 2 OF 3 GUMMING PATON, PH.D. 4 5 6 I hereby acknowledge that I have read 7 the aforegoing deposition, and that the same is a 8 true and correct transcription of the answers given 9 by me to the questions propounded, except for the 10 changes, if any, noted on the attached errata sheet. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47351 190 -- / 1 ERRATA SHEET 2 PAGE LINE # CHANGE REASON THEREFOR //fT_________^<5-chose.S/i&u'/d petit dense, 3 //6____________________________jn h!a les y\<yh^ 4 "ad Ud/e___________________________________________^(ifi^crij>hon 5 _______________________________"} n " 6 ____________________________>)________ 7 !pPL________________________X&n 8 (Lnb M< d MQ,rk!_______ 111 ^ C f6 f !%}______IS 9 Jot ' intfaA 4 Vibnhj&t'(jroLm^fjhhi<L /Sl( 10 11 !?ossidi!i ty u S^llinCj rco( /XL______LL W?T /^/W Jorf 11 13-7 /S &ZQ ~Rt urnt* A> V 0 iTOl^ t'T) 0 f 12 j-: /c_f Saler-_ot -erfj(\n)c chem'ic&k /ki____________CoyjUf^______ 13 / a-Ar? Pmer/ca * 14 it7 15 ikJjJt "A* Uh A^e^/o__1 UJoJ&1A / 16 LSI_____ ILt___ _________________________________________________ /l3--2d._______PctS* sw.Qtboub S) <b._________^ CP-nPy_____ 17 13 4- d________________________Mihca} P 18 f'fx&t________die<Ly t (1 CCdCi'/ " ( u , / r 1 '/ j > \ /" ' 19 /3if_________J4 product inS/zA /) fry-prAi^cf_________TtCCUCacy /3jJ____t~ fJm&Ad "/dis. " 20 '<&/' _____________________cud "JorPAtr M_________________________________ddxdld-- 21 )34 /b____"nwJCeh" /)6,f "Mod/y"______________CttSu_________ 22 /j 4__ljl_________mono cA/o^ldjzJ-C______________________'/ 23 UCiJlJL*'^ 134 !5_______W, rA A C/naPe.}dUxvi cr/^>Pc ^ 6 rrc f 24 ESQUIRE DEPOSITION SERVICES a TOWOLDMONOQ47352 190 1 ERRATA SHEET 2 PAGE LINE # 3 /3- CHANGE U n/'<o h REASON THEREFOR !J_/ 9- ^e.fb " Uvr " 4 5 _______ / Ct44v m4V\ 6 <2_________________vv AiyW. Qccurragce </ Jk7 ''cunvifb* 8 9 tv-l 10 $ &>kcjL Vo"^/^ "<jy" accuracy J . n a h\ > Jricz+f' /qv_________________________ ~' a*} " '/ftofiSc 11 /6r____ _________________h__/_'Q___u__if_C___h_o__M______*___________________________________________________ /5/*________3~__________lZr?c''//_ oVa /L !\ /' )'OV,-^. 12 13 A. " &Je.re ifcLrt.ori]>fn -error; /S? 1 ZTrScr/' not" a-______ 14 __ ________ (, fraM$c4yb'iidn error 15 16 17 J/'ct^xS'Cr/y/y'Af frp-i 18 19 "aJr/A/<ve^ ' rrro r 20 /S2 /3j^ 21 'A&l AA/t <-\</ /O/JJ yfcunc rrjyf/or rtaro r /JJ_ /<$* 22 "Ao cy? - AcsAart h "S?----^- '/[fo /W^ n_Jj__________/?7/&0riders fool 23 QuesJ&r / 24 ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47353 190 -3 1 ERRATA SHEET 2 PAGE LINE # CHANGE REASON THEREFOR /_}}________/S^-/6 /g_p hrkSJL horeaP'-____________________ 3 Aghitn hhody as due& r ode. k.h&uJjZZ?^ 4 /ax. Ct s} erp rij?f) o n 5 ha} nbt pj/enj)ee}rcjp} by US _______________ [hi___________f___________JsrcQ-noh___ef/pJJLerror 6 7 ill____ !b____ "Wes" rAA^hoa^ top___ A^x cy^ Z'(3r? 8 9 /_7>__ ff "faun " Q>h "fht-n "____ SpeJ/;nj 10 tlQ- H ho/ce.r j^pe//;^ 11 !7>___ /*- ~77ucAehhsr > Jim ___ fTZZZZZZ/ 12 13 /7h________10_______y/ie/r' " PvPhaJV V/^ " hfa^rrr^h'^ 14 15 16 I7L.JL a r$L}~ f~d < 1u (?-rrO r S>p / hiA 17 m kp- ' *01/ ' in $&.} <9/ m <J r/ynrvia. r 18 nJ~P 19 t/ dr r means p -jto&ncsnjLhi* ^r/d/^ 20 /7^ ^1_______/ {thirdwee. "__________________ ___________________ 21 22 ) 7$ 0-023 (TnPrt r_____ipJfrf# -ZTii______7y^K^c-/^)Z?11 r / 7}f_ 24 _______pt/^mer md 7ji _________________dfcunsor* P & < /^httrt) //pohmmp>hoLpyi ter*'^ - ESQUIRE DEPOSITION SERVICES cP TOWOLDMONOQ47354 192 1 CERTIFICATE 2 3 4 5 I, DIANNE NAULTY, a Shorthand Reporter 6 in and for Commonwealth of Pennsylvania, hereby 7 certify that the foregoing is a true and accurate 8 transcript of the deposition of said witness who was 9 first duly sworn by me on the date and place 10 hereinbefore set forth. 11 I FURTHER CERTIFY that I am neither 12 attorney nor counsel for, nor related to or employed 13 by, any of the parties to the action in which this 14 deposition was taken, and further that I am not a 15 relative or employee of any attorney or counsel 16 employed in this action, nor am I financially 17 interested in this case. 18 19 20 21 DIANNE NAULTY 22 Shorthand Reporter 23 24 ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ47355 1 2 PAGE LINE 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 LAWYER'S NOTES ESQUIRE DEPOSITION SERVICES 193 TOWOLDMONOQ47356