Document n981V42e96Z9oVgmoYLVOj0pw

-i * -1: - ' J \ - *- ,, , \- , 1 Q And that would be in parts per billion how much? 2 A -44. ' 3 Q 44 parts per billion? 4 A Yes. ' '> 5 Q All right. So less .than one part per billion? 6 A Yes. ,," 7 . Q And again that would be below the detection limits 8 of Monsanto in July of 1979? 9 A That's correct. 10 - Q Now* with regard to .the other September* 1979 11 Nebraska report# I believe that's Plaintiffs' 1277 or-- 'let me 12 be sure 13 A 76 .* .14 Q 1276. Now* Mr. Carr, referenced you to a number on 15 that Nebraska report which he then# this number right here of 16 2*700, the one of 2*700. " 17 A Yes, that's corrects 18 Q Now* do you know if .this .University of Nebraska report 19 September 11* 1979* that was done* or at least was reported, at 20 .the same time as the samples you took up there? Do you know 21 if that's in parts per trillion* sir? 22 A Okay, on their data .table they give their detection 23 limits or their concentrations in nanograms per milliliter* 24 which is parts per billion. " 1 Q Uh-huh. Well, do you know why they would have 2, reported parts per trillion in one and parts per billion on 3 another? 4 A X assume it would have had something to do with the 5 experts at detection limits ^that were experienced on the 6 particular samples. , 7 Q So they may have been on ,,one particular sample if 8 they get down to parts per .trillion, on another particular 9 sample they were reporting parts per billion? 10 A As detection limits.. 11 Q As detection limits. And is this something that is, 12 should I say, not unusual when you are talking about analytical 13 chemistry and the ability to achieve detection limits in 14 different matrixes, different mixtures of those chemicals? 15 A That's absolutely correct, detection limit is an 16 experimentally termed performance characteristic. It is very 17 highly matrix dependent.. , 18 G In any event, we have just established that 19 September of 1979 by their own report they were not isomer 20 specific for 2,3,7,8, isn't that correct? 21 A That's correct. 22 Q So obviously this report .that was issued at the 23 same time when those same-- -^different samples were taken up 24 there by Dr. Ward does not reflect 2,600 parts per billion of 1 2,3,7,8, isn't that correct? ,. . 2 - A Yes, that's corrects . . . i 3 Q As a matter of fact,,-the table itself states that, .4 does it not, in Plaintiffs'. -Exhibit >1276? 5 A Okay, there is a statement that samples showed 6 previously peaks with isomers other than 2,3,7,8, that's ,, 7 correct* 8 Q So there is a statement on the table from the 9 Nebraska report that reported this -2,600 that says, "Many 10 samples -showed previously allowing peaks which may be isomers 11 others than 2,3,7,8 TCDDf*.,... 12 A Right* 13 Q So there is no way of knowing whether-1-- how much of 14 that 2,600 for instance-r-is.2,3,7,8, if any of it is? 15 A That's correct. 16 Q And, Dr. Kaley, any representation that may have 17 been made in this Courtroom or other places that the Nebraska 18 report showed 2,600 parts per billion of 2,3,7,8 would be 19 incorrect, wouldn't it? . . . . . . 20 A Based on the evidence that 1 have, yes, that's 21 incorrect. 22 Q And that's the evidence that Mr*' Carr just put into 23 evidence, isn't it? You were here when he put it into 24 evidence, isn't that correct? . 1 A 1 don't recall him telling me whether it was 2,3,7,8, 2 but yes, the evidence that he has shown me says that there is 3 tetrachlorodibenzo, but not 2,3,7,8 necessarily* 4 Q The evidence upon which you rely in answer to my 5 question that a representation that there was a Nebraska report 6 saying there were 2,600 parts per billion of 2,3,7,8 in the 7 sample given*us upon what you relied, saying that that's not 8 so because Nebraska was not isomer specific is the very 9 document that you saw here today? 10 A Those documents and ,,the fact that X had visited II Nebraska* 12 Q Of course those aredocuments that Hr. Carr showed 13 you and put into evidence -in this case? 14 A That's correct* 15 Q Now, Plaintiffs' 11Z0, sir, .the January 11, 1981 16 memo of Dr* Hileman. 17 A Okay, I don't have that in front of me anymore. 18 HR* MtJSGRAVEi Did you take that back, Hr. Carr? 19 HR. CARR; Not to my Jcnowledge. . It's here, though. 20 Q Now, Mr. Carr kept asking you if .this table attached 21 to Plaintiffs* Exhibit 1120 didn't say that there was a finding 22 in spill sample number three of 120 parts per billion of 23 2,3,7,8* Do you remember those questions? 24 A Yes. ...... [ 1 Q And you kept saying* .that's not what it says, it says 2 it coelutes, isn't that correct? 3 A That's correct 4 Q Well, now, and you referred to the first page of the 5 Exhibit, Dr Kaley, does, it .expressly state on the first page 6 iof this Exhibit exactly what you kept telling Mr Carr? 7 A Yes, it does ,. 8 Q And would you read that to the jury? 9 A Okay. It says, in this memo, "The isomeric configura 10 tion associated with that peak indicates the particular TCDD 11 isomer which coeluted with the peak .in question. It does not 12 serve as a positive Identification of that particular peakR 13 Q And that information .on the table is footnoted and 14 referred to right here and .says the same thing, doesn't it? 15 A That's correct 16 Q And is it plain English? Can you understand it very 17 clearly. Dr* Kaley, when you read the body of the report that 18 is clearly saying that this is not isomer specificity, but 19 simply coelution? 20 A Yes. - *' 21 Q It's fairly easy to .understand, isn't it? 22 A ' Yes. I * 23 MR MOSGRAVEs That'.s all I have, your Honor. 24 Doctor, thank you* ] MR* CARR: .NothingH your Honor* I'd like to call 2 Dr. Mieure back to the stand again. 3 THE COURT: Okay. ^ * r. * 4 DR. JAMBS MIEURE, 5 (being recalled, as an adverse witness under 6 Section 2^-1102 .of the Civil Practice Act, 7 having previously been duly sworn, on oath 8 testified, as fallows:) 9 CROSS EXAMINATION 10 BY MR. CARR ^ 11 Q Doctor, you understand that your oath taken 12 previously still binds you at this time? 13 A Yes, I do. . . . . 14 (Plaintiffs' Exhibit 127R was marked for 15 identification 16 Q Handing you now what's been marked Plaintiffs' 17 Exhibit 1279. 18 MR. CARR: And that JLs the Exhibit which has been 19 previously identified as Monsanto Exhibit 839, your Honor. 20 No, I'm sorry, that's not correct, referred at that time but 21 I don't believe that's been marked before. 22 Q Dr. Mieure, you recognize .that-- -- 23 MR. MUSGRAVE: What'>s the number on this? 24 MR. CARR: You've forgotten already? 1 THE COURT: Plaintiffs1 1279. 2 Q You recognize that as a memo created by Mr. Ivory of 3 the Dayton Laboratory referring to some testing that took place 4 for various products including orthochlorophenol and dichloro- 5 phenol? 6 A The subject says analysis of chlorophenols, yes, sir. 7 Q And parachlorophenola as ..well* You recognize that,: 8 don't you. Dr. Mieure? - - -- * 9 A Yes, I do. 10 MR. CARR: I offer that Exhibit into evidence and 11 ask leave to pass copies, to .the .jury,. 12 (Plaintiffs1 Exhibit 127% was offered into 13 evidence.) 14 MR, MUSGRAVE: .Let me just have a moment, your IS Honor. .. . , 16 THE COURT: Sure, gQ. ahead. 17 (Plaintiffs' Exhibit 1279A was marked for 18 identification^) 19 Q You recognize 1279A,,as one of the tables. Table 2 20 that's in that Exhibit, Dr. Mieure? 21 A Yes, sir, 22 MR. CARR: I offer 1279 and 1279A. 23 (Plaintiffs' Exhibit 1279A was offered 24 into evidence.}. 1 MR. MUSGRAVE: Have .you not previously marked the 2 September 15, 1981 document? 3 MR. CARR: Yes, it is previously marked, but this is 4 not that document. .-- 5 MR. MUSGRAVE: .But It emhodies the same data, and we 6 need to get that to make, sure of the references, your Honor, 7 with regard to Plaintiffs', -1279. It refers to analysis of 8 products other than orthchlorophenol or orthchlorophenol crude 9 and for the same reason we have previously objected, we contim 10 to object to it being irrelevant and immaterial. 11 THE COURT: Same argument for 1279A? 12 MR. MUSGRAVE: Yes, JLn that it does refer to OCP and 13 OCP crude, we do not objects , 14 THE COURT: They are both admitted over objection. 15 (Plaintiffs' Exhibits 1279 and 1279A were 16 admitted into evidence.) . J7 MR. CARR: And. ask leave .to pass copies to the jury? 18 THE COURT: Leave is granted. 19 BY MR. CARR: ......... 20 Q Doctor, direct your attention to Table 2 of that 21 Exhibit, if I might. Table 2 refers to the dichlorophenols. 22 A Yes, sir, that's the heading. 23 Q Yes. And sample 70Q3 has dichlorophenol in that 24 sample, reports to have two .particular quantities of tetras, 1 does it not, sir? 2 A There are two figures given there in the footnote* 3 It is not clear to me why there are two figures there. 4 Q Well, the footnote tells .you, Footnote A tells you 5 that the 4.5 is quantitation that was carried out on an isomer 6 other than that in question, doeB it not, sir? 7 A That's what the footnote .says. 8 Q Yes. And the body of the report then tells you the 9 standard that was being used, doesn't it, sir? 10 A I will have to read ,it to see. ,, I don't see where it 11 does say what standard was being used. 12 Q I think you're right. A JLater report will refer to 13 the standard when we get to the September '81 report which is 14 a repeat of this report, we will identify it. But in any IS event, this Exhibit does show that there were 9.5 parts, per 16 billion of a tetra, one or .more tetra isomers detected in 17 sample 7003, isn't that correct, sir? 18 A Apparently so. Again, I .am not sure why, there are 19 two notations there. 20 Q Dr. Mieure, you wrote a memo on it. We will get to 21 it very shortly. You actually .wrote a memo, and I think it is 22 the-- yes, it is the next .Exhibit as a matter of fact in which 23 you discuss the shortcomings of this particular report. And 24 all I ask you really right now is that it is identified here 1 as 9.5 parts per billion of tetra isomers in the 2,4 dichloro- 2 phenol that's been analysed, and X will now hand you-- - 3 (Plaintiffs' Exhibit 128Q was marked for 4 identification.) 5 Q --- handing you what'js been marked Plaintiffs' 6 Exhibit 1280, and see if.,you can recognize that as a memo that- 7 you wrote on December the 30th,. 1980? 8 A Yes, sir, it is. .. 1 - 9 Q And it relates to this Exhibit that we were just 10 referring to, does it not, sir? 11 A Yes, it does* . ' 12 Q And you make a number of .constructive, critical 13 comments regarding that Exhibit, that report, don't you, sir? 14 .A Yes, sir* ..... IS Q And you sent that memo dated-- - 16 HR* CARRi Did X offer that into evidence? 1.7 THE COURTS Not yet. 18 HR* CARRs X offer that Exhibit into evidence* 19 (Plaintiffs' Exhibit 1 2 8 0 was offered into 20 evidence*) . ... 21 HR* MUSGRAVE: This J.3 the December 30 memo? 22 HR. CARR: That's correct* 23 HR* MUSGRAVE: To the extent it refers to orthchloro24 phenol and orthochlorophenol crude, we have no objection* To 1 the extent that it refers to other products, we object on the 2 basis of relevance and materiality and no probative value of 3 the issues. 4 THE COURT: It is admitted over objection to the 5 extent that objection has been raised. 6 (Plaintiffs* Exhibit. 12801 was admitted into 7 evidence.) , 8 BY MR. CARR: 9 Q Dr. Mieure, let me hand you another Exhibit. 10 (Plaintiffs' Exhibit 1281 was marked for 11 identification^) 12 Q Handing you now what's been marked Plaintiffs' 13 Exhibit 1281, do you recognize that as the same Exhibit but 14 this time with handwriting on it, do you not, sir? 15 A Yes, sir, that: is correct. 16 MR. CARR: I offer that Exhibit into evidence, if it 17 please the Court. 18 (Plaintiffs' Exhibit 1281 was offered into 19 evidence.) ... 20 MR. MUSGRAVE: .Same .objection, and also object with 21 regard to the handwritten portions unless they are identified, 22 your Honor. 23 MR. CARR: I'll stand by .it as given to me, your 24 Honor. This is the way it was given to me. 1 THE COURTt I will admit over objection. 2 (Plaintiffs' Exhibit 1281, was admitted into 3 evidence.) . * 4 HR. CARR* Let- me see if ,,the witness can identify the 5 handwriting. 6 Q Do you know whose handwriting that is? 7 A No, sir, I am not sure whose that is. 8 Q It's somebody that commented on the---or was replying 9 to your various critiques, isn't that correct, sir? 10 A Apparently so, yes. ,,- ,, ., - II Q And in Borne places discusses and states in effect 12 that some of the things that you were criticizing have already 13 been done and the retesting has been done and reported to you. 14 MR. MUSGRAVE: .Justus moment. Hr. Carr. Your Honor, 15 I don't know whether the Court has ruled on that. 16 THE COURTS X did. *1 may have not said it loud 17 enough. 18; HR. MUSGRAVE: .Fine,, you .overruled my objection? 19 THE COURT: I'm sorry if JC didn't say it loud enough. 20 HR. CARR: And can we pass this Exhibit? 21 THE COURT: Yes, yon may-. 22 BY HR. CARR: ........ 23 Q Dr. Mieure, the first paragraph of this report you 24 state that the methodology appears to be flawed and the report 1 ing format is so .ambiguous that you can't understand or use the 2 data, is that correct, sir? 3 A That's what it- says*-yes*. 4 Q And in point of fact, you caused that to be reanalyzed 5 didn't you, sir? . ... .. .. 6 A I don't know, sir. _ 7 Q You don't know? 8 A Uh-huh. .. * 9 Q Well, I will give you another Exhibit then. 10 (Plaintiffs' Exhibit 1282, was marked for 11 identification.,) ` 12 Q Handing you now what's been marked Plaintiffs' 13 Exhibit 1282 and ask you- if .you can recognize that as a memo 14 dated September the 5th,.1981, and .this is, counsel, also 15 Monsanto Exhibit 839. Do you recognize that, sir, as involving 16 the same samples? ........ 17 MR. MUSGRAVE: Also marked as what? 18 MR. CARR: 839, September the 15th, 1981. 19 MR. MUSGRAVE: ,September J.5th? 20 MR. CARR: That's what I .said. . 21 MR. MUSGRAVE: You said 5th. 22 MR. CARR: And. offer whatever the number of this one 23 is,1282, into evidence as well, your Honor, along with the 24 Exhibit that I just handed the .witness.. . ] (Plaintiffs' Exhibit 1282 was offered into 2 evidence) , 3 THE COURT: toy objection? 4 MR. MUSGRAVE: I would only object to it# your Honor, 5 again on the same grounds to the extent that it involves 6 references to items other than .orthchlorophenol and orthchloro- 7 phenol crude. ......... 8 THE COURT: Fine. Xt is ^admitted over the objection 9 to the extent that it's objected to . 10 (Plaintiffs' Exhibit 1282 was admitted into 11 evidence) ^ 12 MR. CARR: tod leave, to pass-- 13 THE COURT: Yes. 14 MR. CARR: --- 1282 to the .jury also 15 THE COURT: Okay. Xeave J.s granted* 16 Q Dr. Mieure, I want to. direct your attention back to 17 the memo written by you dated December 30, 1980, that is 18 Plaintiffs' Exhibit 1281. - 19 A Okay-. ,. ... .- 20 Q All right. Row you Joy now have had the opportunity 21 to compare Exhibit 1282 with Exhibit 1280, have you not-- 22 1279 it would be. .... 23 A I'm sorry, sir. Hhat was-the question? 24 Q You have had an opportunity to compare 1279 and 1282, 1 that is the memo dated October the 10thr 1980 and the memo 2 dated September 15th, 1981, -directing your attention to Table 2 3 on both Exhibits. . .. 4 A Please, sir, I believe you said a chance to compare 5 Table 2 out of the two documents? . 6 Q Table 3 out of-the September 15th, '81 Exhibit, it 7 would be Table 3. 8 MR. MUSGRAVE. What *are you asking him to compare, 9 Mr. Carr? 10 MR. CARR: Table 2 in the October 10, 1980 to 11 Table 3 in the September. 15, .1981 Exhibit. 12 (Plaintiffs' Exhibit 1282A was marked for 13 identification.) 14 BY MR. CARR: ... -w* .,,. IS Q And Dr. Mieure, Plaintiffs' Exhibit 1282 is an 16 accurate blowup of Table 3 in Exhibit 1282, is it not, sir? 17 A Yes, sir. 18 MR. CARR: 1 offer 1282A ,into evidence if it please 19 the Court. 20 (Plaintiffs' Exhibit 1282A was offered into 21 evidence.) . . ... 22 MR. MUSGRAVE: Same ^objection. 23 THE COURT: Same ruling. ,,,, 24 (Plaintiffs' Exhibit 1282A was admitted into I evidence) 2 BY MR, CARR* . 3 0 Now, Doctor, once again this Exhibit 1282A, Table 3 4 refers to 9.5 parts per billion of a tetra, doesn't it, sir? 5 A In one sample, apparently,, yes, uh-huh. 6 Q Apparently, yes, it *does,. does it not? 7 A In one sample*. 8 Q And in this report, vthat .is the September 15th, 1981 9 report, the standards used are .identified, aren't they, sir? 10 A I don't know. 11 Q Well, would you look, at the report on the second page r 12 Page No 2, and see if they do not identify the standard used 13 in identification process, the tetra standard being the 2,3,7,8 14 tetrachlorodibenzo-p-dioxin. ...... 15 A Yes, sir* That's what Table .1 says. 16 Q So that deficiency that you pointed out existed in 17 the October 10th, 1980 memo has been satisfied and he is now 18 identifying the standard, used, is he not, sir? 19 A Apparently the, standard, .1 haven't read this in 20 detail, sir, but according to what you asked me to read it 21 would appear that a standard has been identified. 22 Q Well, read it and make sure that I am not misleading 23 you. Dr. Mieure, that the standard table one describes the 24 standards used to identify the various isomers in this Exhibit-- i 1 MR. MUSGRAVE: He answered that, Mr. Carr. 2 MR. CARR: He said apparently. I don't want any 3 apparently. I want him to say yes or no. X want him to be 4 firm on it. X don't want any apparently business. 5 A It says that these are the standards used in the 6 spiking solution and you, are using the terms to identify, and 7 X testified previously that we weren't able to identify the 8 2,3,7,8 isomer. 9 Q X didn't ask you that question. What you said was 10 these were the standards, used in the identification process or n in identifying the tetras that had existed.. You had the 12 standard, the 2,3,7r8 standard, and that's what you used to 13 identify. 14 A No, sir. That<'s what was used to quantitate. 15 \ 16 Q A And what standard did you use to identify? The mass spectral pattern was used. 17 Q You didn't use. any standard to identify. You compared 18 the peaks that you got on this standard, the 2,3,7,8 peak on 19 this standard when you put in your spiking solution in the 20 chromatogram with the peak that you got in the sample tested, 21 did you not, sir? 22 A You compare the masa spectral characteristics, sir. 23 Q And isn't that.what .you did, sir? 24 A That' s not what X did, no. This was work done in 1 Dayton* 2 Q Dr* Mieure, when Z say you, when you know that you 3 were not personally involved, you understand that X was talking 4 about Monsanto and its personnel?. 5 MR* MUSGRAVE: Mr* Carr, that's not always true, sir, 6 and I think the witness is entitled to have you specify when 7 you are talking about him or Monsanto. You flip-flop back and 8 forth like night and day* .. 9 Q Dr. Mieure, is the tetra .standard that was used in 10 this report the 2,3,7,8 TCDD standard? 11 A Yes, sir. `, 12 Q And does he so identify it as that standard? 13 A Yes, sir. ^ 14 Q And the 9.5 per billion quantities in the tetra 15 column, he used the 2,3,7,8 standard to quantify that amount of 16 tetra, did he not, sir? 17 A He used the tetra standard to quantitate the tetra. 18 Q He used the 2,3,7,8 .standard to quantify the amount 19 of tetra that was in that material, that is 9.5, he quantified 20 that using the 2,3,7,8 standard, did he not, sir? 21 A Apparently so, yes. ~ 22 Q And so he said there are J).5 parts per billion of 23 something in this material that coelutes with the standard that 24 we have, the 2,3,7,8, isn't that correct, sir? 1 A I don't see where it says that something coeluted 2 here/ sir, 3 Q Well then, don't use the .word coeluted. That it was 4 2,3,7,8 then? .... 5 A No, sir, I don ft see where he says that either, 6 Q Now, Dr, Mieure, what does he say with regard to the-: 7 identification? 8 A He is reporting 9.5 .parts per billion of tetra. 9 Q And the only standard he .used to quantify that was 10 what standard? 11 A It was 2,3,7,8, 12 Q All right. And in using^the 2,3,7,8 standard, he 13 quantified that sample as having 9,5 of the tetra isomer, 14 did he not? ., IS A Of the tetra isomer ..yes* 16 Q Now, Doctor, that ia exactly what he reported but 17 without identifying the standard that he. used to quantify it 18 in the October 10th, 1981 sport, isn't it, sir? 9.5 parts per 19 billion tetras? 20 A Yes, sir. 21 Q Now, Doctor, referring if you will to your memo 22 dated December30th, 1980, 23 A Yes, sir, % ... . i 24 Q The second paragraph .of that, that is an Exhibit 1 1281 You say, do you not, "possible presence of chloro2 dibenzo-p-dioxin or chlorodibenzofuran impurities products and 3 processes of critical concern to MIC, that's Monsanto, a 4 subsidiary of Monsanto? ...... S A Monsanto IndustrialChemicals. 6 Q And to all Monsanto,- "Because of their concern, we 7 considered reporting your data to BPA as a potential substantia 8 risk, TSCA Section 8 (e) until we recognize the uncertainties 9 in your report," do you say that, sir? 10 A That's what the words say, yes. 11 Q Now, the level of tetra that-was found in 2,4 di12 chlorophenol in the October 10 ,.1980 report was 9.5, was it 13 not, sir? 14 A One sample, yes. ,, . . . . 15 Q And it was because of that finding, that report that 16 you considered reporting the data to the EPA as a potential 17 substantial risk, isn't that .correct, sir? 18 A I will have to look n t the other data tables, sir. 19 Q Look at them, please, sir. 20 A Well, I don't recall exactly what prompted us to, 21 but that appears to be the highest value of a tetra reported 22 in this report. 23 Q And it is the highest value of the most toxic sub 24 stance that could be in this material, isn't it, sir? 1 A Well, the 2,3,7#8 would be the most toxic material. 2 Q And that's in the tetra column, is it not, sir? 3 A No, sir, all that's ,,in the tetra column are tetras* 4 Q Doctor, what was reported to you in October of 1980 5 was there was 9.5 of something in the tetra column, parts per 6 billion, is that correct, sir? : 7 A In what time period,, sir? . 8 Q On October the 10th,* 1980. 9 A Yes, sir* Except it wasn't reported to me but it 10 was reported--- ., 11 Q It was reported to Monsanto and you pointed it out 12 in your memo of December. 30th that you at Monsanto considered 13 reporting that data to the EPA .as a potential substantial risk, 14 didn't you, sir? ..... IS A Yes, sir* *. 16 Q And that was until you recognized the uncertainties 17 in the report, correct, sir? 18 A That's what it says*. 19 Q Sir? 20 A That's what it. says yes* 21 Q Now, the September 15th, .1981 report eliminated those 22 uncertainties, didn't it, sir? 23 A I really don't know,, sir. 24 Q Look at it and. see. Did .you write another memo 1 criticizing it? ___ 2 A I was not in this area doing this sort of work. 3 Q Look at the September 15th memo and see if you 4 recognize it and see if there were any uncertainties in there. 5 A Sir, it was not my job responsibility to be reviewing 6 this information. .... 7 Q I am not saying it was. , 8 A You're asking me what I did at this time and my job. 9 Q I'm asking you now. Dr. Hieure,. to look at the 10 September 15th, 1981 report and tell me whether or not the 11 uncertainties, the questionable methodology, the ambiguous 12 reports, the equivocal data .was eliminated. Now, Dr. Hileman 13 testified that he worked, on this one. 14 A Uh-huh. IS MR. MUSGRAVEt .Well*, your Honor, I would object to 16 the question. It now calls for .this witness to take one 17 document and to critique, it as though he were doing it back at 18 the time he would have received it in '81 based upon a prior 19 critique. If the Court is going to permit the witness or 20 require the witness to answer that question, then Z would 21 request that the Court give the witness ample time to fully 22 review those documents if Mr. .Carr is going to ask him that he 23 critique these things after some four or five years since they 24 have been generated, and. he authored them having in mind what I his criticisms were at the time. 2 THE COURT: Objection is ..overruled. The witness is 3 being given time right now to review them. 4 A Okay, sir, and what .was your .question again, please? 5 Q Did the report of September 15th, 1981 meet and 6 correct the flaws you found in the report on the same samples 7 on October 10th, 1980? 8 A It appears to, yes. ... 9 Q How, Doctor, did you, or did anyone else know that the 10 uncertainties were resolved now that the data is no longer 11 equivocal, now that the methodology is not questionable, now 12 that the ambiguous report was eliminated, did you report it to 13 the EPA that you got 2,4 ,dichlorophenol that has 9.5 parts per 14 billion of something in it .that coelutes with 2,3,7,8 TCDD? 15 A Sir, as I've explained previously, I was not in any 16 job capacity with Monsanto where this would be my function to 17 make such a report. Futhermore, I was working under such a 18 different area that I wouldn't know what Monsanto personnel 19 would have done at that time. 20 Q If it was reported, .you believed, I take it, that 21 9.5 tetras, if true, was a .potential substantial risk, did you 22 not, sir? 23 A Not necessarily, sir* 24 Q Did you say that in .your December 30, 1980 memo? ] A I believe I used the terra--- let's see. 2 Q You used the term, "because of this concern we 3 considered reporting your .data .to the EPA as a potential sub 4 stantial risk until we recognize the .uncertainties in your 5 report," isn't that correct, sir? 6-: A Yes, that's what it says., 7 ` Q And if the report was not uncertain, you would have 8 reported it, I take it, to -the EPA? .. 9 A No, sir. 10 Q No, sir? 11 A I don't .know whether .he .would or not, are you 12 familiar with the TSCA 8 (el .procedure? 13 Q Yes, indeed. You stated .that you considered it to 14 be a potential substantial .risk. 15 A Potential is the key, .word, sir. 16 Q And that's what you .are supposed to report, isn't it, 17 sir? Potential substantial risk? 18 A TSCA 8(e) stipulates that any time an employee of a 19 company that manufactures a material comes into possession of 20 information which might even be suggestive that a risk exists, 21 that that company or that individual then has the obligation 22 to go through an internal .reporting procedure and an assess 23 ment to determine if a substantial risk exists, so it would 24 have been my responsibility to report this to our Director of 1 Environmental Operations who would then convene a committee 2 which would consist primarily of representatives from our 3 Medical Department to determine -if a substantial risk existed* 4 Q Doctor, doesn't your reference to TSCA Section 8(e) 5 refer to a notice to the Administrator of the EPA and not any 6 house business but report .to the EPA? 7 A No, sir* 8 Q Would you mind-, looking at it? 9 (Plaintiffs' Exhibit 12831 was marked for 10 identification.) 11 Q . Handing you Exhibit ^1283^ asking if you recognize 12 that as the TSCA act that you referred to in Section 8(e) 13 thereof. You recognize it, Dr. Mieure? 14 MR. MUSGRAVE r Well,, may.I see it, Mr. Carr? 15 MR. CARR: Sure. * . 16 MR. MUSGRAVE: Is this just a statute, Mr. Carr? 17 Do you have the regulations that deal with this particular 18 section, Mr. Carr? 19 MR. CARR: No,-I don't, counsel. 20 MR. MUSGRAVE: Well,. I think you ought to get them 21 and then if you are going to cross-examine this man with 22 regard to what Section 8(e). means, you ought to see if there 23 is any relation-- 24 MR. CARR: I am cross-examining this man with 1 what he referred to in this Exhibit and what he said was 2 requiredTM 3 MR* MUSGRAVE: The regulations# if there are regula 4 tions, are part of the statute* 5 MR. CARR: --- and bring them forth, if you want to 6 exculpate Monsanto from their failure to report this. Your 7 Honor, it is a dereliction of d u t y TM 8 MR. MUSGRAVE: ,I object to that comment by counsel, 9 your Honor, and I request that you instruct the jury to 10 disregard the comment* 11 THE COURT: Let me see the Exhibit first. 12 MR. MUSGRAVE: The comment X have specific reference 13 to is his accusation to Monsanto's dereliction of duty. It 14 was totally improper* ............. IS THE COURT: Just a second. . Your objection is 16 overruled. Would you give .this back to Mr. Carr, please? 17 BY MR. CARR: 18 Q Does your memo, refer to TSCA Section 8(e), Dr. Mieuri 19 A The memo, sir,.refers to .a potential substantial 20 risk. 21 Q Could you answer that question, please? 22 A X just did, sir. 23 Q Does it refer to TSCA Section 8(e)? 24 A Yes, it does* I just told you that. 1 Q And do you have in front of you a copy of TSCA 2 Section 8(e)? 3 A The Act# yes. Not the regulations* 4 Q You refer to regulations .or do you refer to the Act 5 in your memo, Dr* Mieure? - - 6 A it doesn1t say which* 7 Q Well, Dr. Mieure, it refers specifically to TSCA, 8 which is your shorthand for the Act, Section 8(e), does it not, 9 sir? 10 A But I don't deal-- ^ . 11 - Q Excuse me. Doctor. JC didn't ask you whether you 12 dealt: with or what you dealt with* 13 A X don't refer to either one here* X refer to TSCA 14 8(e)* It doesn't say whether it is the Act or the regulation* 15 Q T-S-C-A stands, for Toxic Substances Control Act, 16 does it not, sir? 17 A Yes, it does. 18 Q And you refer to TSCA, Toxic Substances Control Act 19 Section 8(e), don't you, sir, in your memo of October the 10th, 20 1980? 21 A The memo as you are well aware X'm sure is an 22 abbreviation* 23 0 Excuse me* Would you answer that question, please? 24 MR. MUSGRAVEx He is trying to, if you let him finish 1 object 2 THE COURTS Overruled 3 Q Do you refer to TSCA, T-S-C-A 8(e)? 4 A I make a reference to TSCA 8 (e) 5 Q And have I given you a copy of TSCA Section 8 (e) ? 6 A You have given, me a jcopy .of the Act, but not the 7 regulations. ....... ... 8 Q Do you refer to regulations in your memo or to the 9 Act, T-S-C-A stands for Act, Dr. Mieure? 10 A I refer to TSCA 8(e)., but it is the regulations that 11 we deal with in every day life. 12 Q Doctor, I'm not asking you what you deal with. I'm 13 asking you what you refer .to .in this memo, and you refer to 14 TSCA Section 8 ( e ) TM IS MR. MUSGRAVE: .Object. It's been asked and answered. 16 THE COURT: Objection overruled. 17 A Yes, it has been answered. 18 THE COURT: Dr. Mieure, X will rule on the objections. 19 You have no status to quarrel with my ruling on an objection. 20 You are not the judge here find you are not a licensed attorney 21 in the State of Illinois. . When I rule, you follow the ruling. 22 Dor. you understand that,- Dr. Mieure? 23 A Yes, sir. 24 THE COURT: Now answer the question. 1 A Again? 2 THE COURTt Answer the question. 3 Q It refers to TSCA Section 8 (e) 4 A TSCA 8(e), yes. 5 Q And TSCA 8(e), I've .given you a copy of it, have I 6 not, sir? 7 A You've given me a copy of the Act but not of the 8 regulations. 9 Q Or. Mieure, would you answer the question. 10 A I did. 11 Q Did I ask you whether or not I had given you a copy 12 of the regulations? Now, Mr. Musgrave is going to have all 13 day tomorrow to ask you those questions. I'm asking you this 14 question. Did I give you .a copy of TSCA Section 8(e)? 15 A No, X think you gave me a copy out of TSCA 8 (e), the 16 Table of Contents and one page. 17 Q Did I give you a copy of TSCA Section 8(e)? 18 A Let's see, does it complete all of 8(e)? 19 Q D o y o u see the Subparagraph (e) there? 20 A This appears to include all of 8(e), yes. 21 Q And I gave you a copy of .that? 22 A Yes, sir. 23 Q And does it say notice of administrator of substan 24 tial risk? 1 A Those sure the words*, yes ,, sir. 2 Q And the administrator referred to is the Administra 3 tor of the EPA, is it not, sir? 4 A I would assume so, yes. . 5 Q Doctor, at the. time .you wrote this memo, you 6 considered"that--- we considered reporting your data to the EPA, 7 and by EPA you mean the Environmental Protection Agency, do 8 you not, sir? 9 A That's the reference, yes. 10 Q And you were talking: about reporting the data as a 11 potential substantial risk under this particular Act, isn't 12 that correct, sir? 13 A That's the reference* 14 Q Is the answer to my .question yes, that is correct? 15 A Yes. ,,* 16 Q And, Doctor, you didn't report it because, nwe 17 recognize the uncertainties in your report," isn't that 18 correct? 19 A That's only a small part .of why it wasn't reported. 20 Q I 'm asking you, isn*.t that what you said, Dr. Mieure, 21 in this memo of October 30, 1980? 22 MR. MUSGRAVE: You want to clarify that? You want 23 the exact words as they read in the memo or you want him to 24 tell you what the memo says, Mr. Carr? 1 BY MR. CARR: 2 Q Dr. Mieure, did you 3 ay we considered reporting it 3 until we recognize the uncertainties in your report? 4 A The memo says because of .this concern we consider--- " 5 Q Excuse me. Dr*. Mieure. Would you answer that 6 question, please, sir? 7 A I told you there wexp several reasons. 8 MR. CARR: Your Honor, would you direct the witness 9 to answer that question?- -I think he can say yes he said that JO or no he didn't say that. 11 THE COURT: Answer the question. - 12 MR. MUSGRAVE: Your -Honor., if I may, Mr. Carr is 13 wanting him to interpret- the .memo on one hand, and when he 14 doesn't like the interpretationr he wants him to read what the IS words say, and the witness can't do both. 16 THE COURT: Well, I .don't think he is being asked to 17 do them at the same time, and I think the question posed to him 18 is crystal clear, and he has to answer it yes or no. It is a 19 question that can only be answered in that manner. Your objec 20 tion is overruled} Dr. Mieure, answer -the question. 21 A The question again, vSir, is? 22 Q Did you not say in this memo that you considered 23 reporting the data, "until we recognize the uncertainties in 24 your report,"? 1 1 A That's a quote right-out of here, yes, sir. 2 Q You said that,, didn't you? 3 A Yes, sir. 4 Q Now, the memo of September the 15th, 1981, you have 5 acknowledged no longer contains these uncertainties, isn't that 6 correct, sir? 7 A I don't know whether it contains all, whether it's 8 taking care of all my concerns or not, but in just the few 9 minutes that I had to read this, it certainly has taken care 10 of many of those concerns, yes. 11 Q And, Doctor, you have no .knowledge or do you have, 12 that the SPA was then reported the potential substantial risk 13 that would be involved with users of this shipment of 2,4 14 dichlorophenol in Weed-B^Gon .or 2,4 D or something else that 15 it might be used in, or in the oil well workers working with 16 it, putting their hands in it if it is used in an additive of 17 that sort* Do you have any knowledge whether or not that level 18 of 2,4 dichlorophenol was ever reported to the EPA? 19 A I don't know whether, it was or not, sir* 20 THE COURT: Mr. Carr, is .this a good point at which 21 to quit? - 22 HR. CARR: Yes, your Honor. 23 THE COURT: Ladies and gentlemen, we will break for 24 the day at this time. X would remind you on any overnight i ] breaks that you are not to read, listen to, or watch anything 2 about this case in particular or subject matter in general in 3 any of the media. Thank you for your attention and cooperation 4 We will resume at 9*30 tomorrow morning. The Court is 5 adjourned. 6 J (At this time Court .was adjourned for the day.) 7 8 9 10 11 12 13 14 IS 16 17 18 19 20 21 22 23 24 I STATE OF ILLINOIS | ) ) ss. 2 COUNTY OF ST. CLAIR ) 3 4 5 6 7 1/ Patricia A. Gandy., C.SUR., Official Court 8 Reporter in and for the Twentieth Judicial Circuit, and the 9 Official Court Reporter who.transcribed the above-styled cause 10 had on April 9, 19S5, do hereby certify that the foregoing 11 transcript of proceedings is a true, correct and complete 12 transcript of the proceedings had on said date. 13 DATED this^ ^ / M .day of April, 1985. 14 15 16 17 PATRICIA A. 18 Official Court Reporter 19 20 21 22 23 24 I STATE OF ILLINOIS ) ) SS. 2 COUNTY OF ST. CLAIR ) 3 4 5 6 I, RICHARD P.-GOLDENHERSH, Circuit Judge in and for 7 the Twentieth Judicial Circuit, hereby certify that the above 8 is a true and correct transcript of the proceedings had in the 9 case captioned: FRANCES E., .KEMNER, et al., v. MONSANTO 10 COMPANY, et al., Cause No. 80-L-970, heard bn April 9, 1985. 11 DATED this lay of April, 1985. 12 13 E N T E R : * 14 15 16 17 18 19 20 21 22 23 24