Document n9ggNp8aVnanQxNnjDR36OLXm

\ 1 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT 2 ST* CLAIR COUNTY, ILLINOIS 3 FRANCES E, KENNER, ET AL., , 4 Plaintiffs, 'i 5 vs Case No, 80-L-970 6 MONSANTO COMPANY, 7 Defendant. 8 9 10 REPORT OF PROCEEDINGS 11 August 2, 1985 12 13 Before the HONORABLE RICHARD P. GOLDENHERSH, Circuit Judge 14 ' ' ' . . 15 16 APPEARANCES 17 Mr. Rex Carr and Mr. Jerome Seigfreid, Attorneys at Law, on behalf of the Plaintiffsi and 18 Mr. Kenneth Heineman, Mr. John R. Musgrave and Mr. 19 Joseph Nassif on behalf of the Defendant, Monsanto 20 Company. 21 22 Kathleen Watson Bruasmann 23 Official Court Reporter 24 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION FILED FEB 25 B94 IN RE: TRANSFER OF CASES ) ) ) U. S. DISTRICT. COURT E* DISTRICT OK MO ORDER IT IS HEREBY ORDERED that the following cases, current- ly assigned to the undersigned, are TRANSFERRED to the Honorable Charles A. Shaw: 4:88CV1270 SELLERS v. ST. LOUIS POLICE DEPARTMENT 4:91CV488 SCHWARTZ v. AMERICAN RIVER TRANSPORTATION 4:91CV713 AEROTRONICS V. PNUEMO 4:91CV973 ADDISON V. DELO (consolidated with 4:91CV1162, 4:91CV1735, 4:91CV 1930 and 4:92CV697) 4:91CV1938 GAFFEY V. MONTAGUE 4:92CV519 BARNES HOSPITAL V. SANUS PASSPORT 4:92CV1788 KAYSER V. CASPARI 4:92CV2126 BUNYARD V. RONES 4:92CV2419 SALAMON v. MALLINCKRODT, INC. 4:93CV293 HOLBROOK v. APEX R.E. & T. 4:93CV324 GEROWIN V. FORD MOTOR COMPANY 4:93CV326 BRELAND V. CONTINENTAL CASUALTY COMPANY 4:93CV500 WILSON V. McDONNELL-DOUGLAS CORPORATION 4:93CV547 LUEBBERS V. McDONNELL-DOUGLAS CORPORATION 4:93CV695 BLACK v. ST. LOUIS OFFSET 4:93CV855 STOTLER v. DELEVAN INDUSTRIES I INDEX OF WITNESSES 2 Called on behalf of the Plaintiffs: 3 JOSEPH METCALF 4 Clarification Examination 5 (By Mr. Heineman)...... .......... 2 6 PHOCION PARK - 7 Cross Examination Under Section 2-1102 8 (By Mr. Carri... ......... 22 9 Clarification Examination 10 (By Mr Musgrave)................. 147 11 12 INDEX OF EXHIBITS 13 Defendant's Ex. No. Marked for I.D. 14 931 5 3 Admitted into Evidence 5' 16 Plaintiff's Ex. No. 17 18 1542 19 1542-A 1543 20 1543-A 21 1544 22 1545 1546 23 1147 1548 24 1549 Marked for I.D, 31 31 51 51 64 64 65 69 113 117 Admitted into Evidence 31 32 51 52 65 65 66 114 148 1 BE IT REMEMBERED AND CERTIFIED, that heretofore, 2 on to-wit, August 2, 1985, the matter as hereinbefore sot 3 forth came on for hearing before the Honorable Richard P* 4 Goldenhersh, circuit Judge in and for the Twentieth Judicial 5 Circuit, and the following was had of record, to-wit* 6 7 8 JOSEPH METCALF, 9 having previously been called as a witness under 10 Section 2-1102, having previously been sworn, 11 continued clarification examination as follows: 12 13 CLARIFICATION EXAMINATION (Continued) 14 THE COURTS Okay, gentlemen 15 BY MR HEIMEMANx 16 Q Mr. Metcalf, when we broke yesterday afternoon 17 we were talking about this meeting at EPA Headquarters in 18 Kansas City, Kansas on January 26, 1979 Do you recall that, 19 sir? 20 A Yes* 21 Q And subsequent to the meeting, sir, were there 22 some minutes prepared of the meeting? 23 A Yes. 24 0 And by whomwerethey prepared? 1 A By Region 7 ERA* 2 Q All right. And were they sent out to the people 3 who were in attendance at the meeting? 4 ' A .Yes. 5 Q And did you receive a copy of them? 6 A :; : Yea.;. 7 Q And did yog review them? 8 A 1 ..Yes* 9 Q And did you approve them? 10 ; .A'' 'Yes.' 11 MR. HBINEMANt Would you mark that please. 12 13 (Defendant Monsanto Exxhibit 931 was marked 14 for identification by thecourt reporter.) 15 16 q (by Mr. Heineman) Sir, let me hand you what1s 17 been marked as Defendants Exhibit 931, and ask you to examin* 18 that and identify it for me, please. 19 A This is the ERA report with a cover letter of min< 20 to Inside Monsanto Distribution, and with the Attachment 21 that were a part o f t h e ERA report. 22 Q All right. By the ERA report, are you referring 23 to the minutes that you talked about a moment ago? 24 '".A . Yes*' Q And the second page of Exhibit 931 is what, sir? A Are you speaking -- referring to the page that has January 25, 1979 at the top? Q No, sir To the second page of the exhibit itself. A Oh, Z*ib sorry. That is ray cover letter to the file regarding the minutes of this meeting. Q And the first page is what, sir? A I beg your pardon? Q The first page of the exhibit is what, sir? A The Internal Monsanto Distribution Q That you had made -- a ires, Q *-* of this report? a That's correct, Q Now if I could direct your attention to the first page, or excuse me# the second page of the exhibit, which is your memo, dated January 31, *79, and the second paragraph of that mem MR. CARRt Excuse me, Counsel. Do you have a copy? MR. HEINEMAN: Oh, certainly I'm sorry As a matter of fact, your Honor, if Mr, Carr has no objection, once he has read the exhibit, x would ask the Court's permission 4' to have it admitted as a Defendant's Exhibit and passed to 1 the jury so that they could follow along when the witness 2 is testifying about it* 3 HR. CARR: Z have no objections, your Honor* 4 THE COURT: Fine. Then it will be admitted at 5 this time by agreement. 6 MR. CARR: I think portions of it are already in 7 evidence as Plaintiff's exhibit, if not the entire document, 8 your Honor. 9 MR. HEINEMAN: I can't reach you. Judge* 10 11 THE COURT: Thank you. Okay, Mr. Heineman. 12 MR. HEINEMAN: X was just giving the jury a chance to look it over for a minute, Tour Honor* 13 14 THE co u r t s why don't you proceed now. 15 MR. HEINEMAN: All right. Thank you. 0 (By Mr. Heineman) Now,Mr. Metcalf, the second 16 page of the exhibit which contains your ememorandum to the 17 file, are there some additional comments that you made 18 19 there, sir? 20 A Yes, sir. 21 Q And why did you add those comments? 22 A I didn't feel that they were reflected in the 23 EPA minutes# and I thought it would be information that our 24 people would like to have* 1 Q All right. And other than those comments, was it your feeling that the report was accurate and substantially 2 complete? 3 4 A Yes. Q All right, sir. Now* the very first paragraph of 5 the added comments that you made relates to some conversations) 6 or apparently comments by Roland Millerj is that right, sir? 7 8 A Yes. 9 Q And he was the vice president -- was he the vice 10 president and general manager of western Environmental 11 Services, the clean-up contractor? 12 A Yes. 13 Q I*d like you to -- to refer you to the last 14 sentence in that paragraph, sir, where it states, "They did 15 not receive it and,in fact, didn't learn of the 200 parts per 16 million cutoff on excavation until the day before the meeting/ 17 over two weeks after cleanup was started.* Did 1 read that 18 accurately, sir? 19 A Yes. 20 Q What is it that you are specifically referring to 21 there? 22 A The decision that EPA said they would have to 23 remove all material that contained over 200 parts per million 24 of phenols. 0 And was there -- do l understand it to be correct 1 that Western didn't learn of that until the day before the 2 January 26 meeting? 3 A That's what they said at this meeting. 4 Q All right. Now had clean-up been going on out 5 there as reported at this meeting prior to the time when 6 western learned of this 200 parts per million level? 7 A Yes. About two weeks. 8 Q All right. Now let me directyour attention to 9 the next page of the exhibit, sir, which has the date January 10 11 26, 1079 typed at the top. There's a purpose stated there! is that right? 12 A Yes* 13 14 Q whose purpose was that? A 1 believe that's the EPA's purpose. 15 Q The purpose of the meeting? 16 A Yes. 17 Q And this meeting was called bythe SPA? 18 19 A Yes, 20 Q In Item 2 it says "Presentation of Analytical 21 Data, SPA, Western Environmental Services and Discussion." 22 Was that item of the agenda performed at the meeting? 23 A Yes. 24 Q Okay, what was presented by the SPA and western 1 Environmental Services? 2 A Analytical data on total phenols, on samples that 3 had been taken in a specific series, I think of six series, 4 I think that had been taken sometime before the meeting* 5 Q How, the fourth item on the agenda, on that same 6 page states "Approach For Continuation of Monitoring," does 7 it not, sir? 8 A Yes. 9 Q Was it discussed in the meeting as to whether or 10 not monitoring had already been going on at the clean-up site 11 A Yes. 12 Q Who had beendoing it? 13 A Monitoring, EPA had been monitoring the efforts 14 of western Environmental Services, >5 Q And what sort of monitoring -- well, under that 16 paragraph it says "Approach for Continuation of Monitoring, \17 Air, and Soil at the Spill Site." Had there been air and 18 soil monitoring going on by EPA prior to that time? 19 A I believe so. I'm not a hundred percent sure 20 about air monitoring, but certainly soil monitoring. 21 Q Now, if you go to the next page of the exhibit, 22 there1s an EPA Press Statement, is there not? 23 A Yes. 24 Q And I*d like to direct your attention to the thi.r 1 paragraph of that Press Statement# and the second sentence# 2 where it says# *!he air will fee monitored on a 24-hour basis 3 and analysed daily*" Do you see that# sir? 4 A Yes i Q All right* Now what's that -- had that been goin 5 6 on according to what was said in the meeting by the EPA? 7 A I'm not sure* It says that there will -- they 8 will begin on the 29th and will continue until clean-up is 9 completed* 10 Q All right* 11 A There had been air monitoring that Monsanto did, 12 I'm not really sure how much EPA had done* 13 Q All right* But according to this, was the EPA 14 going to be doing it -- who was going to be doing the moni 15 toring on a 24-hour basis and analyzing it daily, according 16 to your understanding at the meeting? 17 A EPA. 18 Q All right* And Harry Gilmer, the EPA chemical 19 engineer, was the on-scene coordinator; is that right? 20 A That's correct* 21 Q Now, what does that mean,sir? 22 A Well, it's my understanding that he is the one 23 who was given the responsibility of saying the work was 24 progressing satisfactorily# and that when it was finished# it I would be clean. The state of Missouri had deferred to EPA 2 on this, and apparently western Environmental Services and 3 the railroad had also* 4 Q Wow, the next paragraph on that same page states 5 "EPA will continue to analyte samples of the soil as it is 6 removed by western Environmental Services." To your knowledg|e 7 sir, as it was reported in the meeting, w a s t h e EPA doing 8 that? 9 A Yes* 10 Q Was that the split sampling thing we talked about 11 yesterday? 12 A Yes. 13 Q And the last paragraph of this EPA Press Statemen 14 says, "The cooperative effort by the railroad, its cleanup 15 contractor and the government agencies will help mitigate 16 this unfortunate environmental accident as quickly as 17 possible, said Gilmer." Correct? 18 A Yes. 19 Q Was any discussion of that sort had in the 20 meeting itself on January 26th? 21 A Yes* 22 q All right. Now, if I can direct your attention 23 to the next page of this -- of these minutes, specifically 24 to paragraph three of the next page, where it says, "All 1 cleanup operations including analytical monitoring are the 2 responsibility of the spillerj" correct, sir? 3 A Yes, sir* 4 Q What was discussed at the meeting on the 26th 5 with respect to that subject, if anything? 6 A I am not sure X understand your question* I'm 7 not sure I understand your question* I'm sorry* 8 Q All right* Let me rephrase it* was there any 9 discussion at the meeting with respect to who the spiller 10 was, and who was assuming responsibility for the clean-up 11 operations and the analytical monitoring? 12 A Yes, there was discussions. 13 Q All right* Now what was that discussion? 14 A Well, it was generally agreed that the prime 15 responsibility for clean-up of the spill was the railroad, 16 and that Western Environmental Services was retained by the 17 railroad to clean up the spill* And that EPA and the 18 Missouri Department of Natural Resources had to agree with 19 the clean-up method, and that they would work with the others 20 in developing the proper clean-up method. 21 Q All right* NOw the next sentence there says, 22 "EPA will restrict its monitoring activities to those areas 23 it believes to be necessary to protect the environment during 24 cleanup operations and to insure that the cleanup Is complete 1 in a satisfactory manner." Do you see that, sir? 2 A Yes. 3 Q Was there any discussion at the meeting about 4 that subject? 5 A I think it w a s -- I don't remember specifically 6 what was said. But the gist of it was that the basic respon 7 sibility for collection of samples and of analysis would be 8 Western Environmental Services. The EPA would moniter enough 9 of those analyses to convince themselves that the work done 10 by Environmental Services was sufficiently accurate, and 11 that they would concentrate in areas where they were concern 12 ed about possible public health effects. 13 Q All right* I'm interested inthat lastphrase, 14 "that they would concentrate in areas where they were 15 concerned about public health effects." Is that what the 16 EPA said at the time? 17 A I believe so. IS Q Now who was the spokeman? Was that Harry Gilmer? 19 A I believe so. I'm not sure, but I think so. 20 Q Now, if you turn to the next page, where the 21 minutes themselves actually begin, right under the heading 22 "Background" there, there's a paragraph where it introduces 23 someone named Bill Rice. Do you see that, sir? 24 A Yes, sir. 1 Now# how many people were at this meeting on 2 behalf of the Environmental Protection Agency? 3 A I believe 13 4 Q All right* Now* how did that relate to the 5 number of people representing other organisations all put 6 together? 7 A I think there were 12 others* 8 Q All right* 9 A All total. 10 Q Now -- 11 A Twenty-five at the meeting* 12 Q If I can direct your attention to two paragraphs 13 after that* sir, there's a paragraph that begins with the 14 name Steve Sisk* Now he* I guess* was another BPA man that 15 was there. 16 A Yes* 17 Q They talk about their samples being collected froi 18 shallow holes between the rails and between the ties* The 19 collection holes were approximately 12 inches deep. Eight 20 samples were collected* one was collected east of where the 21 spill began and seven were collected in the spill zone itself 22 And it talks about them being collected by EPA and Western 23 and being split. Right? 24 ;A Yes* 1 Q Wow there is a map here, sir. which is Attachment 2 3 to this exhibit. It's the last page* Do you see that, 3 sir? 4 A Yes. 5 Q Does that, according to what was discussed at 6 the meeting, show the locations where the collection holes 7 described in that paragraph we just read were done -- 8 A Yes. 9 Q -- were made? 10 A Yes* 11 Q Wow they're talking about -- farther down on that 12 page, the following chart shows the results of the analyses 13 of EPA and of Western Environmental Services; correct sir? 14 A Yes* 15 Q Wow what do thesenumbers have to doESO101, 16 102, 103? What do those sample numbers have to do with the 17 location reflected on the map? 18 A Well, ESO101 is Sample 1. ESO102 is Sample 2, 19 and so forth* 20 Q All right. So that they -- if the numbers on the 21 map are 01 02 through 08 -- 22 A Yes. > 23 Q -- those correspond totheseresults that are 24 stated on pages 1 and 2? 1 A That's correct* 2 Q All right* Now I'd like to direct your attention 3 to page numbered 2 of the exhibit# sir* 4 A Of the exhibit? 5 Q I'm sorry* Page numbered two of the minutes* t A Oh# I'm sorry. 7 Q I misspoke* That page right there* It's the 8 one that's got the drawing of the railroad track* 9 A Yes* 10 Q About here* Right below that drawing it states# 11 "Problem - not having puddle or frozen substance but a liguic 12 on ground#" does it not# sir? 13 A Yes* 14 Q Now what was discussed at this meeting on January 15 the 26th, 1979 with respect to there being a liquid as 16 opposed to frozen material? 17 MR. CARRs Your Honor# I object to any such 18 discussion* It's hearsay* He can report what's in this 19 memo* But I object to anything this witness might say as to 20 what was said at that meeting. 21 MR* HSINEMANt Well# your Honor, we've been 22 talking for the last 10 minutes about what the discussions 23 were at the meeting. 24 MR. CARR* I'm objecting at this point in time because of the nature of the comments, It's hearsay, 1 THE COURTs Objection is sustained. It is hearsa 2 Q (By Mr. Heineman) Sir,wa3 it apparent from 3 the meeting itself that Western and the EPA were aware 4 MR. CARR: Your Honor, I object to that. That's 5 another way of doing that which he may not do directly# and 6 I object to it. 7 THE COURTt Objection is sustained. It is the 8 9 Q (By Mr. Heineman) Who was the one -- ? was there 10 anyone at the meeting who discussed the statement set forth 11 as a problem there? 12 A One of theWestern Environmental Services people, 13 Q All right. And the minutes here reflect that 14 there was a problem because it was a liquid on the grond? 15 A Yes. 16 Q All right. Did that Western Environmental 17 Services person who mentioned the problem of there being a 18 liquid on the ground -- 19 MR* CARR: Your Honor, I object. 20 Q (By Mr. Heineman) -- know that there was a 21 liquid on the ground? 22 MR* CARR: Would you wait until I finish my 23 objection. He is now saying the same thing indirectly again 24 that he cannot do directly* 1 THE COURT* Objection is sustained. 2 Mr. Heineman, I'm admonishing you not to do that. 3 Q (By Mr. Heineman) All right. Let's look at two 4 paragraphs down from there, sir. There's another problem 5 listed there, is there not? 6 A Yes. - 7 Q It says, "running into large volume of material," 8 correct, sir? 9 A Yes. 10 Q If this is in the minutes, can we assume that 11 there was a discussion 12 MR. CARR: Your Honor, I object to that. The 13 minutes speak for themselves* Counsel persists in doing 14 that which he knows is improper. 15 THE COURT: Objection is sustained. 16 Q (By Mr. Heineman) Who was it, sir, that was 17 making a determination of what the clean-up methods would be? 18 v A There were several methods that were considered 19 by western -- that were proposed, I think, by Western 20 Environmental Services, and one of those methods was agreed 21 to between EPA and the Department of Natural Resources of 22 Missouri, and the railroad. Ifm sorry, EPA, MR and the 23 tailroad. 24 Q And western? 1 A Well, Western proposed them* 2 Q I see Wow which method was that, sir? 3 A A method that involved drumming all of the 4 5 material that was picked up, that contained more than two 6 hundred parts.. per million of phenol* And shipping it to a landfill In Wichita, Kansas* 7 8 Q Now, let me direct your attention, sir, to the 9 next page of the exhibit, which has the number three at the 10 top of it* Do you see that? 11 A Yes, 12 Q In that first incomplete paragraph at the top 13 of the page, the last sentence says, "After they started 14 dealing with 200 pars per million figures, they went back 15 to the beginning and started over;" is that correct, sir? 16 A Yes. 17 Q Whose activity isbeingreferred to there? 18 A The clean-up crew, western Environmental Services 19 Q And did they have to go back and start over 20 again once that level was set? 21 A Yes* Becausethey didn't knowwhat the level 22 was. They had not confirmed at thatppoint in time that they 23 had reached that level* 24 Q If I can direct your attention to the page . 1 numbered five in those minutes the numbers at the top. I 2 direct your attention to the fifth paragraph of that page 3 where it says, "western Environmental Services asks could 4 the level be 200 to 300 - they would have to go back to begir 5 beginning to reduce level to 200." Do you see that, sir? 6 a yes, 7 Q Did Western dispute this 20Olevel in some way? 8 A well, X Don't know whether dispute is the word* 9 Apparently some of their areas where they sailed were, you 10 know, close to 200 but below 200. fhey thought maybe they 11 could save some time on the clean-up if they were given a 12 little more leeway* 13 Q All right* Did the EPA hold firm, however? 14 A .Yes* 15 Q And demanded 200? 16 A Yes* 17 Q How, sir, I'd like to hand you, if I may, sir, a 18 document that Mr* Carr had marked, called Plaintiff's 1S36, 19 yesterday* Do you recall discussing that document with Mr* 20 21 ''A- " .Yes*:. 22 Q how, does this document, sir, reflect the 23 g^alitative core analysis results that were done by Monsanto? 24 - A Yes* 1 Q And the date of this document is January 16* 2 1979, is it not, sir? 3 A Yes. 4 Q Ten daysbefore tihemeeting in Kansas City with 5 the EPA? 6 A Yes* H.. 7 Q Bid theEPA and WesternEnvironmental Services. 8 know that not all of the phenol and OCF had been removed from 9 the track as of January 26, 1979? 10 A Did they know that not all of i t -- 11 Q Yes* 12 A Yes, they knew. 13 Q As a matter of fact, they lowered the level to 14 which it would have to be done; isn't that right? 15 A Apparently. 16 Q And Western would have to go back and start over 17 again? 18 ME* CARRs Objection to that, your HOnor* 19 Leading form of the question* 20 THE COURTS Objection is sustained. Would you 21 rephrase the question. 22 q (By Mr. Heineman)Would Western have to go back 23 and start it over again? 7 24 A They indicated that at the meeting. 1 Q So clearly -- 2 MR. CARR: Object to the leading form of the 3 question. 4 THE COURTS Rephrase it please. 5 Q (By MR. Heineman) whether or not -- may I ask 6 you, sir, this, were these six samples, these qualitative 7 results, discussed at the meeting on January 26, 1979? 8 A I don't recall* 9 Q At that meeting, did Western and the e p a have 10 quanitative sample results? 11 A . Yes* 12 Q Of the material that remained in the track? 13 A Weil, of samples that had been taken during the 14 clean-up, yes* 15 Q Bid they need qualitative sample results as to 16 whether there was a smell? 17 A No* ,- 18 MR* HEINEMAN: I have no other questions, your 19 Honor* 20 THE COURT4 MR* Carr, do you have anything 21 further? 22 MR* CARR: Nothing, your Honor. 23 THE COURT; You may step down* Thank you,sir* 24 THE WITNESS: Thank you. witness* MR. CARR* I call Phocion Park as an adverse (At this point a short recess was taken*) 5 PHOCION PARK , having previously been called under Section 2-1102, having previously been sworn, testified further as follows* 10 CROSS EXAMINATION 11 BY MR. CARR* 12 Q Mr* Park, you understand --your Honor, for the 13 record, this is a recall of Mr. Park, as an adverse witness 14 under that section of the rule that 1 keep forgetting# 15 1102, is it*; ' 16 THE COURT* 1102* 17 MR# CARR* 1102, formerly known as Section 60. 18 I can remember that. 19 THE COURT* Always to be known as Section 60* 20 MR* CARR* Having used it for about 38 years, 21 or 35, whatever. > 'V 22 q (By MR* Carr) Mr* Park, of course you understand 23 that you are still under bath# A Tes* 22 PLNUU CU.. BArUNNL, 1 Q I'd like to hand you some exhibits that I want 2 to get your agreement on. I hand you what's been marked 3 Plaintiff's Exhibit 1149, and ask you to look at that and 4 confirm that that was dated April the 5th, 1979, It has attached to it tables that show the presence of TCDD in the 5 products produced at Monsanto, and specifically the third 6 page of that exhibit shows that of the 2,3,7,8 -- in the 7 2,3,7,8 column, in parts per billion that there are 8 respectively, 23 parts per billion, 25 parts per billion, 9 180 parts per billion, and 240 parts per billion of products 10 identified in the Chlorinated Phenol Department, Santophen 11 and Chlorinated Phenol. 12 MR.'MUSGRAVE: Objection to the question as repetitious. He's been through this exhibit before. 13 MR. CARR: I know Ive been through this exhibit, 14 your Honor, and not with this witness. And this is a 15 predicate to another point that I wish to establish. 16 THE COURT: You may proceed. Go ahead. 17 THE WITNESS: I didn't follow you, Mr. Carr. I 18 don't see that column here. 19 Q (By Mr. Carr) The last page attached to the 20 document* Do you see the column 2,3,7,8 -- Cl4 2,3,7,8? A Yes, I do see that. 21 22 Q All right. Now the figures that I read appear in that column, do they not, sir? It was values on the 2,3,7,8 23 isomer. 24 A I don't recall the figures you read, Mr. Carr* 1 Q Well, I'll read it again* That column shows that in the chemicals produced in the Santophen and 2 Chlorinated Phenol Department, 23 parts per billion in the 3 2,3,7,8 column, 25 parts per billion in that column, 180 4 parts per billion in that column, 240 parts per billion in 5 that column Isn't that correct, sir? 6 A Mr. Carr, I'll have -- this is the first time 7 I've seen this exhibit. I'll have to study it a moment. 8 I see the numbers that you read. They are in that column 9 headed Cl^ 2,3,7,8. I cannot make out the wording over on the left-hand side of this chart. 10 Q Well, Mr. Park, you don't need to, because those 11 are batch numbers that have previously been identified as 12 products in the Chlorinated Phenol Department, in Plaintiff*1 13 Exhibit 1135. I don't know whether I went through it with 14 you, but I went through it with other witnesses. The 15 Monsanto Numbers 654, Monsanto Numbers 697, two of them that 16 are 697 there, all have been identified as chlorinated 17 phenols. And specifically Santophen in the one instance, I believe, and I know 2,4-Dichlorophenol in the Number 697. 18 So at any rate, what I'm asking you to agree, sir, is that 19 this exhibit reports on the 2,3,7,8 isomer as identified in 20 the Santophen 1 and chlorophenols as I've related it to you, 21 as I've read to you. 22 A Mr. Carr, looking at the heading which says, 23 Environmental Sciences Data on Santophen 1 and Chlorophenols 24 Q Yes* 1 A -- I can then look down the column and read those 2 numbers that you had Thatfs as much as I can tell about this document 3 Q Wei}, that9s all that I want you to tell about 4 this document* / 5 A All right. 6 Q That I have correctly read the figures that appeax 7 in that column under the 2,3,7,8 heading. 8 A Yes, there are other figures. But these four 9 do appear in the column. 10 Q The other figures that appear there are all non 11 protected; is that right, sir? A Yes. 12 Q The only affirmative figures inthe batch 13 entitled 654, you have 23, and 25 parts per billion of 14 2,3,7,8 respectively, and in the batch enumerated 697 you 15 have 180 and 240 parts per billion respectively. 16 MR, MUSGRAVI: Object to the question, which 17 misinterprets the document and misstates prior testimony 18 with regard to the document, with regard to what the column 19 means, in connection with labeling of this 2,3,7,8 and what 20 the document itself says down at the bottom. 21 THE COURT: Objection is overruled. That objec tion has been made and denied before. 22 Q (By Mr. Carr) Do you see -- Sthis is a later 23 i table taken from Exhibit 1135, and, Mr. Park, 1 don't want 24 to make a big thing of it* but do you see the 6S4 there, one of the batches described? 1 A Yes. 2 Q All right. And you see the Cl^ numbers over 3 there? 4 A Yes, I do* 5 Q That are all joined in one column? 6 A Yes. 7 Q The Cl4 that you have in that exhibit are in two 8 columns, 1,3,6,8 et al., and 2,3,7,8; isn't that correct, sit A Yes. 9 Q And if you add those two columns together, you 10 get these figures, do you not, sir? 11 A Let me see, Mr. Carr. 12 Q Could you get 1135 out. 13 A They don't appear to be identical. But I suppose 14 they'd be in the same ballpark, 15 Q And if you will -* and to help you, so you don't 16 have to strain your eyes, youcan look at 1135-B, 17 MR, MUSGRAVE: I'm sorry, what did you say, 1135-B? 18 MR. CARR: That's correct. 19 . . ; ' '. A (By Mr. Carr) Also look at 1135*C, because it 20 goes to those same two values. 21. A These two columns in this first document -- 22 Q Mr. Park, I haven't asked you a question yet, and 23 1 appreciate if you wouldn't mark the court's exhibits, 24 A I'm sorry. 1 Q Could you erase your marks, please. A Sorry. My eyes are not what they were years ago* 2 Q Now, if you look at 1135-C, it breaks those -- 3 it is a typed duplicate of the exhibit that's attached to 4 1149, or at least part of it. Now on 1135-C, in the typed 5 portion, do you see related to MB 654, the findings of 23 6 and 25 parts per billion in the 2,3,7,8 TCDD column? Right 7 here, Mr. Parks. Did you see the same figures appear in 8 the April document that appear in this later June document, 9 Exhibit 1135? 10 A I do see these numbers. Q All right. You also see the other numbers that 11 are in the 1,3,8 -- 1,3,6,8 column, et al., don't you, sir? 12 For that MB -- 13 A Only in these two cases. 14 Q That's all I'm asking, Dr. Parks. 15 A Yes, I do see those numbers. 16 Q And it is repeated in the June 26, 1979 document, 17 those handwritten figures that appear on the April 5th, 1979 18 document with relation to the batch that I just described 19 to you, and for your information, the batch MB 654 has been previously described as parachlorophenol. Now, the next 20 I want to direct your attention to the batch 697, sir. 21 22 You see 697? A I see that. 23 Q Has the figures of 180 and 140 parts per billion 24 in the 2,3,7,8 TCDD column? 1 A Yes. Q And those are the same figures that appear in 2 the handwritten exhibit of April 5th, 1979 in that same 3 column; isn't that correct, sir? 4 A That does appear to be, yes. 5 Q Yes. Again for your information, MB 697 is 6 2,4-Dichlorophenol. Now, M r . Park, you, of course, recognize 7 that 2,4-Dichlorophenol and parachlorophenol are products 8 manufactured by Monsanto, do you not, sir? 9 A If you say they are I accept it Mr. Carr, I'm 10 not that familiar Q Mr, Park, I am not a witness in this case* II A Yes. 12 Q The only knowledge that I have is from witnesses 13 and exhibits that have come to my attention in this case. 14 You are an employee of Monsanto* I'm not going to be put 15 in the position of telling you anything in that regard. If 16 you don't know that 2,4?Dichlorephenol and parachlorophenol 17 is a product of Monsanto and was a product in 1978, '79 18 please say so, sir. A Mr. Carr, I believe I recall that 2 -- I'm just 19 not that certain. Can I check on this? 20 Q Mr. Park, don't you recall that wespent 21 days cross examining youabout 2,4-Dichlorophenol and whether 22 or not you're going to report to TSCA,, under the TSCA Act, 23 report to IPA that your 2,4-Dichlorophenol had 2,3,7,8 -24 A I do. Q Bon*t you recall we spent -- 1 A Yes. 2 3 Q -- just this spring, a few months ago -- 4 A We did manufacture 2,4-Dichlorophenol. 5 Q You recall that, d o n 't you, sir? 6 A I recall that, yes. 7 Q And 8 A The other was para? 9 Q Parachlorophenol. 10 A I 'm sorry, I Just d o n 't remember. 11 Q Parachlorophenol is what you use to make Santo- 12 phen. You know that, d o n 't you, Mr. Park? 13 A Mr. Carr, I'm sorry, but I d o n 't. 14 Q Well, Mr. P a r k -- 15 A That's not womething I keep up with. 16 Mr. Park, you will accept the exhibit that 17 describes these chemical as chemicals in the Santophen and 18 chlorophenol? Do you accept that Monsanto Document? 19 Won't you, M r . Park? 20 A Which document are you speaking of? 21 Q The April 5, 1979 document that I handed you et 22 the outset, sir. 23 A Well, it speaks of chlorophenols. 24 Q Y e s , t h a t * s what I ' m a s k l n g y o u , sir. 1 I'm sorry --- 2 Q Do you recognise parachlorophenol as one of the 3 chlorophenols? D o n 't you sir? 4. I don't recognize it but I guess I can assume 5 that it la one. 6 Q Now, Mr, Park, you in your position, at least 7 in your position in 1979 as one of the attorneys for 8 Monsanto, you had responsibilities with regard to what the 9 public was to be told and what the public was not to be 10 told about:Monsanto *s products, did you not, sir? 11 A I would ba asked to submit comments on proposed 12 released on occasion. 13 Q Mr, Park. This exhibit dated June 6, 1979 is 14 in evidence, and you recognize that it talks about dioxin 15 concentration in PCP and OPC crude. Do you see that, sir? 'I 16 A Yes. 17 MR;, MPSGRAVEJ Give me the exhibit number, 18 please-, - 19 MR, CARRt I*m sorry, Mr. Musgrave, i t 's 1249, 20 and I can give your witness the court's exhibit. Would you 21 mark that as another exhibit? 22 Q (By Mr. Carr) You recognise, Mr. Park, do you 23 not that that fable 2 -- have you got it, Counsel? 24 MR, MCSGRAVE I have it * fhank yo u , Oi Q ( By Mr. Carr) All right. 1249 reports the 2 dioxin concentration in parts per million in PCP, OCP and 3 2,4-Dichlorophenol* 4 A Yes. 5 6 i (Plaintiff's Exhibit 1542 was marked " 7 for identification by the court reporter.) 8 9 Q (By Hr. Carr) I hand you now what's been 10 marked Plaintiff's Exhibit 1542, and ask you if you reeog- 11 nize that you are listed there as one of the recipients of 12 that Monsanto document? 13 A Yea, I am. 14 MR. CARR: I offer 1242 and what will be marked Ul FORM IL 24 B ' 1242-A into evidence, if it please the Court. ^ 16 oe o u. MR. MUSGRAVE: Object to the document, relevance, BAYONNE. N.J. 07002 S' 17 o o materiality, no probative value. 2 18 z ! 19 CD THE COURT: Objection is overruled. 1542 is admitted over objection. 20o <: v 19 Z' bi 0. 21 (Plaintiff 's Exhibit 1542*-A was marked 22 for identification by the court reporter.) 23 Q (By Mr. Carr) 1542- is a blow up of -- 1542-A is a blow up of 1542, is it not, sir? A I believe it is, yes. MR. CARR: I offer 1542-A into evidence, your Honor. MR. MUSGRAVE: Same objection. THE COURT: Same ruling. I'll incorporate your argument; Q (By Mr. Carr) Mr. Park, this is a memo prepared by someone in your press or public relations department, is it not, R... Neunreiter? A Yea* Someone in M o n s a n t o ' s -- yes, he's in Monsanto's Public Relations Department. Q And a number of people, according to this list, received copies of this response to th Post Dispatch reporter, did they not, sir? A Yes, they did. Q You were one of those recipients, were you not, sir? / A ' Yes. Q Mr. Park, according to this exhibit there had been, and the jury knows about it, and I don't think you've been interrogated about it except in passing by Mr. Musgtave about the OSHA detection of dioxin in the chlorophenol unit at Krummrich. Do you recall that press release that you 1 11 put out in June? 2 MR. MUSGRAVE: Object * relevancy, materiality, 3 and also repetitive. 4 THE COURT: Objection is overruled, 5 Q C By Mr. Carr) Nov, this press -- it says that 6 the reporter was told, and that reporter is Roy Malone of 7 the Post Dispatch -- do you know Roy Malone? 8 A No, I do not. 9 Q Never met him? 10 A Not that I can recall. 11 Q All right. In any event, it says hare that he 12 as told on June 9, 1979 specifically that our analysis 13 of a recent product sample did not indicate the presence 14 of 2,.1,7,8 dioxin. Do you see that, Air? 15 A Tea, I do. 16 Q Now in point of fact, that isn't the truth, 17 is it, sir? 18 A I don't know, Mr. Carr. I would assume that it 19 is. 20 Q If the exhibit that you have, that was dated 21 April the 5th, 1979, two months before this press release, 22 that exhibit indicates the presence of 23,7,8 TCDD in your product sample, does it not, sir? MR* MUSGRAVE: Object, your Honor, Mr, Carr is 'r"~YW 11 2 3 ; 4 5 6 7 8 9 10 11 O 12 13 14 15 * y. 16 X o 3 o o 2 ui 1 . o' : < & 5 17 18 19 20 ,, 22 23 j ';''". S 24 referring to samples that have dates that ate not resent. The document talks about recent produst samples, which is June, not the dates of the products that h e 's Identified. THE COURTi Do you have anything you want to s a y 1 MR. MUSGRAVE: Misleading the witness and misleading the jury as to what the document says. MR. CARR: No, your Honor. THE COURT: We have plenty of exhibits that show as 1135 shows produet samples in June and thereafter that had TCBD. MR. MUSGRAVE: Then why did you identify -- THE COURT: Let him finish, Mr. Musgrave* MR, MUSGRAVE: February, March exhibit. THE COURT: Mr. Musgrave, i said let him finish, .Mr;:.Carr, you may proceed. Q (By Mr. Carr) Now, the -- THE COURT: The objection is overruled. Q ( By Mr. Carr) the sentence of what the reporter would want to knew, because the OSHA release deals with sampling that was conducted in February of *79, where there was a spill that took place in the plant. You recall that? I w o n 't get into details with you. MR. MUSGRAVE: Object to the question as suggest ing a s t o what the sentence of what the reporter wanted to 1 know, which requires the state of mind as to others, as 2 to that they did or didn't do, or want -- 3 THE COURT: Objection is overruled* I don't 4 think it calls for the state of mind. 5 Q (By Mr. Carr) Mr. Park, the information that 6 you at Monsanto gave to the public at large through Roy 7 Malone and the Post Dispatch, was that your product sample 8 did not indicate the presence of 2,3,7,8 dioxin* 9 MR. MUSGRAVE: Object to It. It's a misstatement 10 of what the document says. It says a recent product sample. 11 THE COURT: Objection is overruled. 12 Q (By Mr. Carr) Isn't that correct, Mr. Parkf 13 A As the question was phrased, I'd have to say no* 14 Q You'd have to say no? wasn't the reporter told 15 that, exactly what it says here, that the analysis of the 16 recent product sample did not indicate the presence of 17 2,3,7,8 dioxin? 18 A That is correct. 19 Q And is there any statement there that any 20 analysis did indicate the presence of 2,3,7,8 dioxin? 21 A There is no statement on this paper that so 22 states. 23 Q Would you as a reasonable person, if you read 24 that, wouldn't you be lead to believe Chat Monsanto has 1 che c k e d i t s materiel and this GSHA release talking about 2 dioxin in the products is somehow at fault* faulty, or false 3 and that, in fact, Monsanto d o e s n 't have any products that 4 has 2,3,7,8 dioxin in it, wouldn't you read that as a rea S sonable person, Mr. Park? 6 MR. MUSGRAVEs Object to the question as calling 7 for speculation, conjecture, and vague and indefinite, 8 using a legal term, or potential legal term of reasonable 9 person. 10 THE COURT: Objection is overruled. 11 Q (By Mr. Carr) How would you read that, Mr* 12 Park, if you wouldn't read it that way? 13 A Just simply that a recent analysis of a product 14 sample did not Indicate, the presence of 2,3,7,8. I would 15 not read it hore broadly to go any farther. 16 Q If I understand you correctly, if you had one 17 recent product that was sampled, and if that one sample 18 didn't show 2,3,7,8 in it, that that's all youre really 19 saying there. Is that the way you Interpret that? 20 A It doesn't say only one has been done. All it 21 says is that an analysis of a recent product sample did not 22 Indicate the presence of 2,3,7,8 dioxin. 23 Q Then if, in fact, you had a recent product 24 sample that'did hot indicate the presence of 2,3,7,3 TCDD in 1 that sample, this statement would be technically correct, 2 wouldn't it, sir? 3 A Yes. 4 Q Even though you might have a thousand other pro 5 duct samples tested that all of which showed the presence of 6 2,3,7,3 TCDD; isn't that correct, sir? 7 A The statement would still be correct. 8 Q All right* And when you read that press 9 release, did you have in mind that well, what he was told, 10 if we have a single sample that shows no 2,3,7,8 TCDD, then 11 what the ptess was told, and what the public is ultimately 12 told was correct, and w e 're not misleading anyone? Was that 13 your view at the time you saw that, sir? 14 A It's certainly possible that I might not have 15 ever, seen this, even though I'm named as one to whom it 16 would have been seat, Mr. Carr. I don't -- I'm not in a 17 position to read everything that comes into me. 18 Q Mr* Park, I'm not asking you whether you speci 19 fically remember or don't remember reading this. I'm asking 20 you whethe* or not you would Interpret that, and I admit 21 there's no conceivable way at this point in time you could 22 remember whether you did or did not get this presss release 23 that occurred some six years ago* You would have a fantasti 24 memory if you could remember it. I'm not asking you whether 1 you do or do not remember. I'm asking you, sir, would you 2 interpret that press release as being correct if you had a 3 produet sampling that shoved no 2,3,78 TCDD, although you 4 had one hundred others or one thousand other produet sampling 5 that shoved the presence of 23,7,8 TCDD? 6 MR. MUSGRAVEt Object to the question. It assume* 7 facts not in evidence for the witness to speculate with 8 regard to. 9 THE COURT: Objection is overruled. 10 THE WITNESS: Recognising that this may not 11 describe everything covered in the conversation between 12 Neunrelter and Malone, I would think this sentence, just 13 as it says, and I would feel it would be technically correct 14 if there were a number of analyses that found dioxin, and 15 yet as he says, a recent product sample did not indicate 16 the presence of 2,3,7,8 dioxin. That may have been the 17 question. 18 Q (By Mr. Carr) I 'm sorry? 19 A That may have been the question. 20 Q I take it then that you agree that this would 21 be appropriate response to make if you knew that you had 22 99 tests that showed 2,3,7,8 TCDD was there and you had 23 one test that Shoved it wa s n 't there? 24 Same objection# PENGAD CO.. BAYONNE. N.J. 07002 /' 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 A2* K Q (By M r ` Carr) to that correct, sir? THE COURT: Same ruling. THE WITNESS: I'm not saying that, Mr. Carr, no. Q (By Mr. Carr) Well, isn't that really what yon are saying, Mr. Park, because you know, and we have ample documentation here to show that 2,3,7,8 TCBD, or that which coelutes with ,3,7,8 TCDD, has been in your products and remains in your products up until, oh, '82, at least, if my memory serves me correctly, that you at Monsanto knew that all during this unbroken period of time? You knew that. V ' '"MR*''MUSGRAVB* Object to the question, your Honor, he's asking the question about what he would have i r' done in June of '79, and then he challenges his answer by talking about analysis and events that occurred after June of '79. It's an improper question to challenge the witness with. I object to it. THE COURT: Objection is overruled. It's a proper question. You may proceed, Mr. Carr. Q (By Mr. Carr) Assuming that Monsanto tested its products, Its Santophen, recent Santophen, and we have those going down from *78 and '79, and those exhibits I don't need to show you, but they're here in evidence, and showing the presence of 2,3,7,8 TCDD, or that which coelutes With it ah8 -that you had all that knowledge, teat after t e s t 39 1 indicated that, do you consider that this is being fair and 2 honest with the public? -- 3 MR. MUSGRAVE: Object to the question -- 4 MR. CARR: May I finish it, Counsel? 5 MR. MUSGRAVE: I thought you were* Excuse me. 6 THE COURT: Go ahead, M r Carr. 7 Q (By Mr. Carr) -- by saying to them, making no 8 mention of the numerous tests that you had, including this 9 one that we're just discussed in April of '79, making no 10 mention of the numerous tests that you conducted showing 11 2,3,7,8 TCDD, or that which looks like it, and you had 12 other tests that showed there w a s n 't any? Do you think this 13 is fair and honest when you say that there wasn't any in thi 14 sample?. 15 MR. MUSGRAVE: Object to the question, a multi 16 ple question. Object to the question as assuming facts not 17 in evidence, making references to analysis in '78, which 18 there's no evidence showing detectible: TCDD in these 19 products, and object to the use of the term "numberous tests 20 of product showing this prior to Jun of *79," which is 21 totally incorrect. 22 THE COURT: Objection is overruled. It's a 23 proper question and based on matters in evidence. Answer 24 the questi o n , 'please.. / ^ ;1 2 3 4 5 6 7 8 9 1 11 / , 12 .'. 13 14 15 16 17 18 19 20 21 22 23 24 THE WITNESS: Mr. Carr, this paper here was not provided to the public. This is an Internal communication. It does not purport to deserlhe everything that vent on in the conversation between Heunreitar and the reporter. I have no way of knowing any reason that this is not correct* The reporter may well have asked the question, "Have you made a recent product sample analysis that did not indicate the presence of 2,3,7,8 dioxin." Neunrelter could have answered, if that was the case, "Yes, we have made such a recent product analysis,"and then so stated here. Q (By Mr. Carr) Mr. Hark, to refresh your memory as to the June 8 news release O S H A 's finding, what it said, was that OSHA had detected 300 parts per billion in the 2,4-Diehlorophenol of what they thought was 2,3,7,8 TCDD, or half of which they thought was 2,3,7,8 TCDD, and also discussed findings in a wipe sample finding TCDD there. Monsanto put out a press release saying that they have checked these products down to 10 parts per billion,at a detection level of 10 parts per billion and haven*t found it. That's the press release that was put out. Mow the-- MR. MDSGRAVBj Object, your Honor. Counsel speaks-- * because it is a mischaracterlzation of the evidence. The news riease he has reference t o s p e a k s to, quote, a recent pro^uft Sample, close quotes. That is a deliberate 41 . BAYONNE. N.J. 07002 AO . 00 W V 1. ' '2 3 4 5 6^ 7' 8 9 10 11 i ' 12 13 14 * is I 16 O O waOoz<.' 20 21 22 _ ; 23 ' "-y v;::'24 misrepresentation by Mr. Carr. I t 's totally inconsistent with this document. THE COURT! Objection la overruled. Q (By Mr. Carr) How, the reporter In this cir cumstance la getting more specific. He wants more informa tion than the press release gives, does he not, sir? MR. MUSGRAVE! Object, speculation and conjectur as to what the reporter is doing or not doing. THE COURT: Objection is overruled. Q (By Mr. Carr) Isn't that correct* Mr. Park? A I don't know* Mr* Carr. He may have Just felt that this question was not answered by the press release and wanted to raise it. Q Well, Heunreiter says all these questions were ' ' f answered from the prepared question and answer form. This 'is* he kept to the prepared question and answer that was supplied or prepared by him to answer these questions. But in this instance he deviated from it somewhat. He went 'more precisely and said a recent product sample did not indicate the presence of 23?8 TCDD, of dioxin* How, Mr. Park, the thrust of my question here -- MR. MUSGRAVEi I object to Counsel's speech. He just made an affirmative statement Of fact. That was SS anot posed Ouestioa. And i t 's testimony by Counsel as 1 to what Mr* Neunreiter was doing or not doing with regards 2 to the queatlone and answers* It** totally Improper for 3 Counsel to testify and make conclusionary statements* 1 4 object to it and request It be stricken* 5 THE COURT: Hr* Carr* please finish your ques~ 6 tion and then t'll rule. 7 Q (By Mr. Carr) In that framework, Hr. Park, do 8 you not agree that this reporter, wanting more specific 9 Informatlon,vae given information that would be totally 10 misleading? 11 MR, MBSORAVRs Object to the question because it 12 assumes a framework that Mr. Carr has testified to rather 13 than any witness and Mr. Carr is, therefore, testifying as 14 to what this reporter was doing or not doing, or what Mr, 15 Heunreiter was doing or not doing. There's no evidence of 16 that* 17 THE COURT! Objection is overruled. Properly 18 preparatory to the question, and the question as a whole. 19 Answer the question, please, Mr* Park. 20 THE WITNESS! Ho, I d o n 't agree with that, Mr. 21 Carr. 22 Q (By Mr* Carr) Pro this document, does it 23 indicate that the public and the press were told the entire 24 facts, that is that you did sample and you did have samples 1 analyses that showed the presence -- indicated the presence 2 of 2,3*7,8 TCDD? 3 MR. MUSGRAVE: Object to the question. It calls 4 for speculation and conjecture as to what the other question 5 were that were responded to as set out in this, and there's 6 no foundation laid that this witness knows what the other 7 questions were that were asked, what the responses were that 8 were given, and so it's pure speculation and conjecture to 9 try and answer that question. 10 THE COURT: Objection is overruled . Answer 11 the question please. 12 THE WITNESS: The document indicates that there 13 was a lengthy conversation between Neumreiter and the 14 reporter, and that a number of other questions were asked 15 and answered. 16 Q (By Mr. Carr) Well, that really isn't what I've 17 asked you, sir. I've asked you doesn't this document 18 suggest that, from what you see there, unless you have some 19 additional facts that you haven't told us about, or some 20 additional knowledge of what went on at this press conferene 21 he answered questions based upon the prepared question and 22 answer, which didn't talk about 2,3,7,8 TCDD being there as 23 found by Monsanto, and then he was told specifically that 24 the recent product sample did not indicate the presence of 1 2,3,7,8, Don* t you consider ...that','Sir, misleading la view ]2 of the knowledge that Monsanto had that It did have evidence ;'3 r indications of 2,3,7,8 being in its product? 4 MR, MUSGRAVE: Object to th question as calling 5, for conclusion, speculation, vague as to what the document 6 suggests, improper question for this witness, 7 THE COURT: Objection is overruled. 8 THE WITNESS: Mr. Carr, as you phrased it, I'll 9 have to answer that question no. 10 Q (By Mr. Carr) All right* That's your judgment, 11 and if you got this document and read it, you, Mr. Park, 12 would not have called Mr. Neuoreiter and said, "Look, you're 13 not being candid, and you're misleading the public and th 14 press, you better call up the Post Dispatch, call up Roy 15 Malone and tell him that while we did have recent product 16 sample analyses that indicate no 2,3,7*8' CDD, we've got 17 other analyses that do indicate th presence of 2,3,7,8 TCDPT 18 Since you have the frame of ind that you just answered to, 19 you, of course, would not tell Neunreiter to do that, would 20 you, sir? 21 A If his conversation had been totally correct 22 with the reporter and he informed there p o r t e r and aaswefd 23 all of his questions properly, there would be no reason to. 24 Well, but if he doesn't tell the reporter that : 1 you did -- if he tells the reporter one tenth of the story, 2 y o u 've got 9 tests that show 2,3,7,8 and one that doesn't 3 show it, h e 's not telling the whole story, is he, sir? 4 A He may have told him the rest. 5 Q Now yi u're speculating I gave you -- 6 MR. MUSGRAVE: Y o u 're asking for the speculation 7 Mr. Carr. 8 THE COURT: Objection is overruled. 9 Q (By Mr. Carr) I gave you the hypothesis, Mr. 10 Park, based on what we know was in the press release, and 11 what we know is here, and there is no mention of 2,3,7,8 12 found by Monsanto. That's the hypothesis I 'm asking you to 13 accept, sir. 14 MR. MUSGRAVE: Now I object, your Honor, 15 because he's changing horses. On the one hand h e 's talking 16 about a number of questions that Roy Malone posed, and now 17 be talks about a press release. H e 's changing horses. 18 THE COURT: Objection is overruled. 19 MR. MUSCRAVE: I object to the question as being 20 an improper question and that it be stricken. 21 THE COURT: Objection is overruled. The 22 question is proper. Answer the question, please. 23 THE WITNESS: I don't see that there's anything 24 in he* that is improper. 1 Q (By Mr. Carr) In vi*w of the knowledge that 2 ' Monsanto had as to the presence of 2,3,7,3 TCDD, you believe ,3. that it is proper to give the impression that itspr o d u c t s -4;', do not contain 2,3,7,8 TCDD; is that correct, sir? Could 5 you answer that question specifically so that we could pass 6 on,-:Mr> Park.: 7 A I 'm trying to now reconstruct your question. 8 You're asking do I f eel It is proper or improper? 9 Q In view of the knowledge that Monsanto had that 10 its product did, indeed, have 2,3,7,8 TCDD in it. il MR. MUSGRAVE: Object to the question as 12 improper assumption of facts with regard to this point in 13 time, June of '79. 14 THE COURTS Objection ia overruled. 15 THE WITHESS: Based o n t h e knowledge I have, thai 16 this was an appropriate information document here. 17 0 (By Mr. Carr) And baaed upon the knowledge that 18 Monsanto had as well; is that correct, M r . Park, in your 19 judgment? 20 A For him to prepare this internal memorandum, 21 communicative, whatever? 22 Q Ho. For him to tell the press and the public 23 at large that 2,3,7,$ TCDD was not found in a recent product 24 ample, Mr. Park. You know exactly what I* asking. 1 A I see nothing Improper in that. 2 Q Is that correct, sir? 3 A I see nothing improper. 4 Q All right. Now, Mr. Park, let me hand you a 5 document marked Plaintiff's Exhibit 1233. Would you look 6 at that, please. Do you recognize Plaintiff *s Exhibit 1233 7 as a meno written by Dallas Armstrong? 8 A Yes. 9 Q And that indicates -- have you had a chance 10 to look at the tables -- 11 A No. 12 Q -- behind it? 13 THE COURTt What is that exhibit number? H MR. CARR? 1233, your Honor. 15 THE COURT? Thank you. 16 Q (By Mr. Carr) Have you had an opportunity to 17 look at that, plus the tables attached to it? 18 A Y e s . 19 Q Now, that shows, does it not, in the wipe tests 20 there were tetra dioxins detected In the one exhibit,the 21 control room, and Building 237 on the Control Room Table, 22 and in other places according to the exhibit? 23 A I 'm sorry now, Mr* Carr, you're back at the 24 tables? 1 Q Yes, that's where I am. 2 A Okay. 3 Q You see here CI4 in theDepartment 236,found 4 Cl^ tetra dioxins. 5 A Yes, 6 Q And in another one in 236, found 3.2 micrograms 7 or nanograms of the tetra dioxins. 8 A It says CI4, 9 Q CI4 you know is the tetras, do you not# sir? 10 A I suppose that's what hemeans. 11 Q All right. And the next table shows for the -- 12 in the pentaGhlorophenol and the support girder for the CI4, 13 it shows 7.3 nanograms, 14 A I'm not familiar with thesedesignations, Mr, 15 Carr. I s e e t h e 7,3, and then something. 16 Q On Building 237, theControl Boom Table. 17 A Yes. 18 Q CI4 ;175 aanograms. 19 A Yes. 20 Q Or the u.g. 21 A whatever, yes. I see the numbers. 22 Q And you see Mr. Malloy describes those wipe tests 23 that they*re higher than those reported by OSBA. 24 MR, MOSGRAVEt Mr. Armstrong. 1 Q (By Mr. Carr) I'm sorry, you're correct. Mr. 2 Armstrong reports to Mr. Malloy in June of '79 that these are 3 higher than reported by OSHA. Do you see that, sir? 4 A I see the statement there, yes. 5 Q Yes. And you do remember that OSHA said there was; 6 642 nanograms and these tests are something like -- well, one 7 of them is twice that. .175 nanograms or u.g.'s is signifi 8 cantly higher than -- it's twice as high as 642 nanograms. 9 MR. MUSGRAVE* Your Honor, I object to this line 10 of questioning. It's all repetitive. Its been gone into. 11 This witness is not the author of any of these documents that 12 have been introduced, nor is there any evidence that he ever 13 saw them. I object to it* 14 THE COURTx Mr* Carr, do you have anything you 15 wish to say to the objection? 16 MR. CARRi Yes, I wish to establish this point 17 as being in the knowledge of Monsanto prior to going on to 18 the next point. 19 THE COURTS You may proceed* Objection is over 20 ruled. 21 Q (By Mr. Carr) Do you see, sir, that it is talking 22 about tetra dioxins in various places found in your plant? 23 A if we take the Cl^ to refer to the tetra dioxins, 24 than that would be OOrrect* 1 Q Yes. Would you mark this as Plaintiff's exhibit 2 3 (Plaintiff's Exhibit 1543 was narked 4 for identification by the court reporter.) . 5 6 Q (By Mr* Carr) Handing you now Plaintiff's 7 Exhibit 1543 and ask you if you recognize that as a question 8 and answer sheet prepared by Sarah Collins and you received 9 a copy of it dated November 15 1983* 10 A Yes* 11 Q Do you seethat sir? 12 A Yes I do* 13 MB* CARR: Z offer 1543 into evidence if it 14 please the court* 15 MR* MUSGRAVE: I object to it your Honor, as 16 being irrelevant and immaterial* too remote in time to have 17 any probative value. That ought to cover it. 18 THE COURT: Okay* It's admitted over objection* 19 MR. CARR: Could I have 1543-A please* 20 21 (Plaintiff's Exxhbit 1543-A was marked 22 for identification by the court reporter*) 23 24 Q (By Mr. Carr) Mr. Park, do you recognize 1543-A 1 as the page numbered 2 at the top on Exhibit 1543? 2 A Yes, I do* 3 Q MR. CARR* 2 offer 1543-A, your Honor* 4 MR* MUSGRAVEs Same objection* 5 THE COURT* Same ruling* 6 Q (By Mr* Carr) Mr* Park, putting 1543 in a 7 context have you read enough of it to recognize that it was 8 prepared because of the certain soil sampling that had taken 9 place at the Krummrich Plant? 10 A Ms. Collins indicates that it was prepared for -- 11 in connection with the Krummrich Plant soil sampling program* 12 Q You and a number of others received copies of 13 this question and answer prepared by Mrs* Collins, did you 14 not? 15 A Yes* She was seeking review and comments on it* 16 Q Now, the question and answers are to be used 17 when representatives of Monsanto meet with the press, aren't 18 they, sir? Just as we saw earlier, Neunreiter referred to a 19 question and answer, a prepared question and answer when talk 20 ing about OSHA's findings* That's what the question and 21 answer is for, isn't it, sir, to be used by Monsanto repre 22 sentatives to present Monsanto's official position taken 23 with the publici isn't that correct, sir? 24 A I would not state it quite that way. 1 Q Well, state it the way you would state it, sir. 2 A I would say this is information which the Public 3 Relations Department tries to gather in order to respond to 4 press inquiries* 5 Q Well, that's fair enough* Isn't the purpose of it 6 so that all of Monsanto's persons that meet with the public 7 will be saying the same things, have the full knowledge, full 8 information and be able to respond in the same and consistent 9 fashion? JO A I think the purpose is so that whoever is 11 contacted by the press will be in a position to provide 12 accurate information to the press. 13 Q Wow, among other things, it discusses the finding! 14 in the soil samples of.point - - a n d I'm now directing your 15 attention to the top of page 2, the page numbered 2* It 16 talks about the result of soil samples that were taken in 17 the Krummrich, Sauget, Illinois Plant, and it gives the 18 numerical results as ranging from *5 to *10 parts per billion 19 in two samples. Wow -- and in one area the sample was 2*4 20 parts per billion* So what this is showing here, you have 21 from 500 -- from 100 parts per trillion to 500 parts per 22 trillion in two samples, and 2*4 parts per billion in another 23 sample. Isn't that so? 24 A That isn't the way she stated it, but -- 1 Q She said the numbers range from .5, that's 500 2 parts per trillion, isn't it, sir? 3 A Y es. 4 Q And .1 0 i s 1 0 0 parts per trillion, isn't it, sir. 5 A ; Yes. 6 Q And "2>4 is 2.4 parts per trillion, isn't it? 7 Isn't that correst, sir? 8 A Sure, one can make that conversion. 9 Q They suggest there that it's a couple of inches IO below the surface, and you're going to pave the area that 11 has this dioxin in it ranging from 100 parts per trillion 12 to 2*4 parts per billion* that you're going to pave that 13 parking lot, and that will eliminate any exposure. Do you 14 see that, sir? 15 A That's what she states. 16 Q Now farther on down I want to direct your atten 17 tion to the Question Number 10 where it says "Had you ever 18 tested for TCDD before now." Do you see that, sir? 19 A Yes. 20 Q Now we know that Monsanto had tested for t c d d 21 before 1983, don't we, sir? 22 A You're referring back to 23 Q The June of '79 24 A .. Yes, / ) ' ki- - | latrr- 1 q -- finding, where you had tested and where you had found TCDD. ;y: r .4 5\ 6 ,7 8 9 10 11 O' 13 14 * 15 J j 16 Xo A Mr* Carr-- Q I mean we know that# don't we# sir? A No. All we have is this document here. Q Yes. And that June 12th document is a Monsanto document# isn't it# sir? A Yes. But one ~ Q And it is discussing testing done by Monsanto# isn't it# sir? A That's correct. Q And it dia find TCDD# didn't it# sir? A The document indicates that there was -- that they did find, whatever it is, a quantity of Cl4. Q which is TCDD# isn*t it# sir? A Yes. That is the numbers written on this document. Q You tell the public here *we had tested for TCDD PENGAD CO. 2 ui ! a o <o z Ul * 18 19 20 21 22 ;/ 23 24 by taking wipe samples and found it not to be present. In taking the wipe samples# we tested the surface of equipment and furniture in the chlorophenol units and their control areast* isn't that what you say# Mr. Park? A Some of what you said is expressed in 810. Q Didn't 1 read it exactly as it was said in the answer to number 1 0 ? 1 700/0 ''. ' ; . . is 1 A You did&'t read the whole answer, I thought* I'm 2 sorry, Mr. Carr, maybe I was looking over it* 3 Q Let me read it again* The answer to the question 4 "Bad you ever tested for TCDD before now?" was, "We had 5 tested for TCDD by taking wipe samples and found it not to be 6 present* In taking the wipe samples, we tested the surface 7 of equipment and furniture in the chlorophenol units and 8 their control areas." Isn't that what if says, sir? 9 A That is correct* 10 Q And we know in the control areas you found TCDD 11 on the control room table* We know that, don't we, sir? 12 A Mr* Carr, I don't know that* 13 Q The document shows that,doesn't it, sir? 14 A is what you have there taken from a fable -- 15 Q Why don't you answer the question yourself, by 16 lookihg at the table that's attached to it* 17 A I 'm frying to find it* 18 Q The control room table. Do you see that, sir? 19 The words Control Boom Table, 237 and the .175 and the CI4 ? 20 A .yes, I see it* 21 Q And you see that this says Control Boom Table* 22 Do you see there it says Control Boom Table? 23 A .yes* 24 Q And 175 on the Control, Boom floor* Do you see 1 A Yes* 2 Q And that document shows that you tested in 1979 3 and found TCDD on the Control Room table, doesn't It, sir? 4 A It appears to indicate that* 5 Q Yes* And what you told the public i n 1083 6 wasn't the truth, was it, sir? " 7 A There's no indication that we told the public 8 in 1983, Mr# Carr# 9 Q Isn't that what you used to respond to the public1 10 requests? 11 A Mot necessarily* This is SarahCollins sending 12 this out to people to get their comments. 13 Q well, did you comment# "Hey, that's not correct* 14 You shouldn't say that*"? 15 A I can't recall whether I commented or not# 16 Q bet me suggest to you that this is the only 17 question and answer press release document that was given 18 to us relating to this area, unless you have some that you 19 Know of, unless you know that it was changed, and that this 20 is not the one that was used* Then I'll stand corrected if 21 you know there was some other* 22 A This is not something that I am responsible for, 23 Mr* Carr* I'm just not that familiar with it* 24 Q . Mr* Park, I suggest that you do have a responsibi- 1 lity. You are one of the recipients of it are you not? 2 A I am named as one of those to whom it was 3 addressed. ' 4 Q You have an obligation, and Malloy has an S obligation* And Malloy was the man at the plant* Malloy is 6 the one that received this memo Exhibit 1233 wasn't he sir? 7 A That's correct. 8 Q it's addressed tohim. 9 A Yes* 10 Q Each of you Small Malloy# Gilhousen McCarville, 11 Papageorge, Shaneberger, each of you have a responsibility 12 not just to the plant* but to the public* don't you* sir? 13 A 1 don't understand your question* Mr. Carr. 14 Q You have the responsibility to make sure that the 15 information that you give out is the truth and not a lie* 16 don't you* sir? 17 A Certainly if we have contact with the public# we 18 do# yes. 19 Q And this is the purpose for this question and 20 answer preparation was to tell this to the public. Didn't 21 we establish that already sir? 22 A . Yes. \. 23 Q And if this is what was told to the public# it 24 wasn't tfue# was it# sir? 1 A I don't know, Mr. Carr. You're assuming that 2 this prior thing was correct. 3 Q No, I'a saying **- 4 MR. MUSGRAVEs Just a moment, your Honor. 5 Q (By Mr. Carr) It's not true is it, sir? 6 MR. MUSGRAVEs May he finish his answer, sir. 7 THE COURT: It was not responsive. The objection 8 is overruled. 9 Q (By Mr. Carr) If this is what was used and what 10 was told to the public, it's not correct, is it, sir? It's U not true, is it, sir? 12 A I don't think your statement is correct, neces 13 sarily, Mr. Carr. 14 Q Mr, Park, if it were told the public, they were 15 told an untruth, weren't they, sir? 16 MR. MUSGRAVEs Objection. It's been asked and 17 answered, 18 THE c o u r t * Overruled. 19 Q (By Mr. Carr) Assuming they were told, sir, 20 A I don't know that that is the case. As you are 21 phrasing this, Mr* Carr, I would have to answer no, I don't 22 think it would be an untruth. 23 Q well, Mr, Park, the truth is that you found t c d d 24 there, isn't it, sir? Isn't that the truth? 1 A X don't know that that is the truth* 2 Q Mr. Park, we just established that that was a 3 Cl4 * CI4 stands for tetra, you know that, don't you? 4 A All you've established is that's written on that 5 piece of paper, Mr* Carr* 6 Q That's all w e 've established? 7 A Yes* 8 Q And that piece of paper is tests done by Monsantoj 9 isn't it, sir, and we established that, didn't we, sir? 10 A By whomever, yes* I don't know that it says di 11 it say on here who performed the tests? I can remember that 12 there was much donfusion over wipe sample testing. 13 Q X learned from Brian Ward -- you know who Brian 14 Ward is, don't you, sir? 15 A I remember Brian Ward* 16 Q He took the wipe samples and followed them through 17 analysis You know Brian ward is the man who was doing the 18 testing He was head of that department at that time, wasn't 19 he, sir? 20 A 1 don't recall what his position was exactly* 21 q Don't recall exactly, but tell me what it was, 22 what his responsibilities were with regard to testing* 23 A X don't remember his responsibilities, but he did 24 have to do -- he was in our department of Medicine and Environmental Health. Q He had to do withanalysis, didn't he, sir? And it describee that he took the wipe samples and followed them through* So you did have the information you did do th testing; isn't that correct, sir? A Yes* q And that information was of the tetra TCDD isomer, you had .175 micrograms per square meter* A That's what you have on our plaque there* Q That's what you had on the exhibit that you hold in your hand* A I don't see that last part* Q Mr. Park, we just went through it. A I don't see the micrograms per square meter on here. Q You see the 1.75 u*g*? A Yes. . Q They had added to that the M-2 square, don't'they ( sir? A Yes* That's different from this. q That is different fromthat* The figures are the same, the control table is the same; isn't that right? A what do you mean control table, Mr. Carr? Q Mr* Park, why are you doing this to me* A Oh, the heading# I'm sorry* Q The Control Boom Table. a yes. Q And the information is shown there is that there was TCDD in the wipe samples# isn't it# sir? A That1s what thedocament indicates. Q And# therefore# the press question and answer statement is wrong# isn't it# sir? A Not necessarily* This could be wrong# Mr. Carr* Q Do you have any indication that it's wrong* sir? A I can recall that there was much confusion ever the taking and analysis of wipe samples. This was one reason why OSHA decided to drop its allegations or violations. is that right# Mr* ark? A As 2 recall. Q Now* perhaps it's because OSSA wasn't told the truth by Monsanto. A No. It was because OSHA decided to have no case that it could bring against us, Q And somebody from OSHA* I take it# wrote you a letter to that effeet? A No. OSHA west into the administrative court and decided to withdraw its allegations. Q Is there some document they said they withdrew? A No, there's a ruling by the judge that I mentionec Q No. All it mentions is that they do not prosecute it It doesn't say they withdrew it Be dismissed it because it wasn't prosecuted, you know that* A No. I think I recollect that they were withdrawn. Q Well, do you have any document that indicates that? A No, not off the top of my head Q As a matter of fact# what OSBA would do or not do depends a great deal on information that they get from the respondent, in this case Monsanto. MR. MUSGRAVE: Objection, speculation, conjecture about what OSBA, an unnamed individual at OSHA, or all individuals at OSBA# It's vague and indefinite in that respect# It also calls for speculation and conjecture. TUB COURSPs The objection is overruled. It's a proper question to be asked of this witness# THE WITNESS? I would say no Q (By Mr* Carr) Mr. Park, you are aware of, and you participated in a process whereby OSHA sent you in that very case that you're talking about a long list of requests for information, for responses to long lists of questions, and you participated, you yourself participated directly in answering those questions, you know, and the responses to those requests for admission of fact. You recall that don't you Mr. Park? A I recall the admission yes. q And it was after you responded to those questions that the case was notffurther prosecuted by 0SHAf isn't that correct sir? - A Hell it was sometime later* That was fairly' early on* This was the first step in discovery* Q It was after thatwasn*t it#sir? A Much after* MB* CARR* Wouldyou markthis Plaintiff's Exhibit please* (Plaintiff's Exhibits 1544 and 1545 were marked for identification by the court reporter,) Q (By Mr. Carr) Mr. Park# I'll hand you what's been marked Plaintiff's Exhibit 1544 and ask you if you recognise that exhibit as the 0SHA*s Request for Admissions, addressed to Monsanto# and Plaintiff's Exhibit 1545 as Monsanto's response to that Request for Admissions* A Yes# 1 do, MR. CARR* I offer those two exhibits Into evidence if it pleftse the court. MR. MUSGR&VE* The same objections. This is all irrelevant and immaterial# your Honor. It deals with another proceeding handled by Frank Pellegrini# another lawyer. This is irrelevant and immaterial to any issue in the lawsuit. t h e COURT The objection is overruled. They*re both admitted over objection. Mr. Carr# before you go into this# is this a good point to break for lunch? MR.CARRt Fes# your Honor. THE COURT* Ladies and gentlemen# we will break for lunch at this time. X would remind you the admonishments that X*ve given you earlier are applying during this break also. We*11 resume again at 1*00. Court is in recess. (Lunch recess.) THE COURT Mr. Carr. *1 ' (Plaintiff*s Exhibit 1546 was marked for identification by the court reporter.) Q (By Mr. Carr) Mr Park# X hand you what*s now been marked Plaintiff*# Exhibit 1546# and ask you if that is not a memo of January 5# 1081 referring to wipe samples. Could you answer the question? 65 1 A I*ra sorry. I didn't know you were addressing me, 2 Mr. Carr. I didn't hear the question. 3 Q The exhibit that I handed you Mr. Park -- 4 A Yes. 5 Q -- Plaintiff's Exhibit 1546 is a memo dated 6 Janaury 5, 1981 referring to dioxin wipe samples is it not 7 8 JV Y&S- 9 Q It's addressed to Ward and Bohl in St. Louis, and 10 to Keating in St. Louis as well Is it not sir? 11 A Well it's addressed to Ward and Bohl. It shows 12 copies to Keating and some others. 13 MR. c a r r : I offer this exhibit into evidence if 14 it please the court. 15 m r . m u s g r a v e : Your Honor I object to this. It 16 deals with a different plant, appartntly West Footscray. It 17 has nothing to do with this lawsuit, much less the Kruramrieh 18 Plant, And even if it did, again we would object on the 19 basis that it's irrelevant and immaterial to any issue in 20 this lawsuit, have no probative value. 21 THE COURT* It's admitted over objection. 22 Q (By Mr. Carr) And, Mr. Park, you see the very 23 first sentence of that, contrary to what Mr. Musgrave said, 24 tefers to wipe samples taken in the Krummrich Plant, doesn't it|r Sir* MR. MBSGRAVEt Object to counsel's comment, your Honor, because he has not read the entire document, obviously^ then* The document speaks for itself* THE COU&Pt Objection is overruled. The question was directed to the first sentence* It was not an . improper question. MR. MUSGRAVE* I believe, your Honor, ray comments were with regard to his saying contrary to what I said about this dealing with west Footscray. MR. CARR* You said this didn't have anything t o d o with Krummrich is exactly what you said, Counsel. The very first sentence deals with KruBBarich* 14 A (By Mr. Carr) doesn't it# Mr. Park? 15 THE COURT The objection is overruled* 16 THE WITNESS? The first sentence does mention the Krummrich Plant. 17 18 MR* CARR* Will you pass that exhibit to the jury, PENGAD CO.. BAYONNE, N.J. 20 Q (By Mr* Carr) You recognize B.G. ward as the 21 same Ward that wrote the memo that we've been dealing with 22 on the wipe sarnies? If we can find it again* MR. MUSGRAVE* Plaintiff's 1233, Mr. Carr? MR. CARR* I'm not sure, Counsel* i\ 67 MR. m u s g r a v e j It was not written by ward. MR. CARR: Yes. Ward is referred to in Exhibit 1233. THE WITNESS* I would assume that it is. Q (By Mr. Carr) And does and it does say* does it not,"Dioxin was detected in wipe samples taken in the chlorophenol unit at the W.G. Kruramrich plant in February, 1973*w Doesn't it say that? A Yes, thatVs the first sentence. Q And that is an affirmation or an agreement with the exhibit that we previously had been discussing, that is Plaintiff's Exhibit 1233, is it not, sir? A Well, it's written by someone in Australia* I guess he's just maybe repeating what he's heard* Q I wonder if you couldn't answer my question, Mr* Park*. A Well, I would say no, it appears to be repeating something he's heard. Q Does it not say that it was detected in the chlorophenol unit at the W.G* Krummrich Plant in February of A Q about? Yes. And isn't that the plant that we've been talking 1 A Yes. 2 Q And isn't: it wipe samples that were from the Krumrarich Plant that w e 're talking about? 3 4 A Yes, wewere. 5 0 And isn't -- doesn't this exhibit show the other 6 Exhibit 1233, show that dioxin was detected in the wipe 7 samples taken from the Kruiamrich Plant? 8 A Yes. 9 ME. CARE: would you mark this as an exhibit. 10 11 (Plaintiff's Exhibit 1547 was marked 12 for identification by the court reporter.) 13 14 Q (By Mr. Carr) X hand you now what's been marked IS Plaintiff's Exhibit Number 1547, and it's the only copy I a 16 have, so let me show it to Counsel first* let me ask you if 17 you recognize that as a Monsanto document dealing with Builds 18 ings 236 and 237, and describing the same samplings that we 19 have previously discussed as attached to Exhibit 1233, only 20 1233 is handwritten and the document you have now, 1547, has 21 the results typed. 22 A If you're asking me if it is, Mr. Carr, I 'll have 23 to take time to check them. I haven't seen this before# 24 Q .That's what X want you to do. A Well, we're comparing Table 1 of the document you have just handed me last# 1547# and -- Q First of all# confirm that they're talking about the same buildings and the same areas from the same buildings Mr* Park. A Is there a page to this document -- Q You have the document as it was given to me, Mr* Park. A It doesn't say which location Q Mr. Park# it does say. It says Building 236# Blower Motor Housing. A Yes.. Q And it saysBuilding 236#Blower Motor Housing# does it not# sir? A Yes. But this is attached to a Monsanto memo, and this is not. Q That is also a Monsanto memo. It was given to me -- you see the "Confidential" stamp# you see the C.O. number. A Yes# sir. Q It's a Monsanto document# it was given to me. Just confirm for me# if you would# that they're talking about the same buildings# the same places. There's the same date. A I see the same date. Isee thesamebuilding number here. 70 1 Q You see the same pact of the building, Blower Motor Housing, and walls, control tables, and things of that 2 3 sort that they*re taking the wipe samples* 4 A Mr. Carr, this most recent document says, "Blower 5 Motor Housing Outside Walls," this says "Blower Motor Housing 6 Top Cover." You're asking me to distinguish documents I'm 7 not familiar with. But they appear to be different to me* 8 Q well, whether they arei different or not, you 9 recognise these as buildings examined on 6/6/79, don't you, 10 sir? 11 A I see these numbers across here. 12 MR. MUSGRAVE: Where does it say they were 13 examined on 6/6/79, Mr* Carr? 14 MR. CARE* The date at the top of the page, 15 6/6/79. 16 MR. MUSGRAVEs is the word "examined" there? 17 MR. CARR: No, Counsel, the word isn't there* It 18 - says, "Wipe sample 1A - Building 236, 6/6/79, 1315 hours, 19 Blower Motor Housing Outside Wall, six by six area of wipe." 20 q (By Mr* Carr) Now it also describes on the 21 Exhibit 1233, does it not, sir, Building 236, 6/6/79, Blower 22 Motor Housing six by six area wiped? You see that, sir? 23 A But it says "Top cover," and not outside walls* 24 Q Well, there*s a little more information on one fch II. PENGAO CO.. BAYONNE, N.J. I > 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 there is on the other. A There's different information. Q If it Is a different test, that's fine with me* I don't quarrel with that* But if you will look at the inside page it's fine with me that it is more, because it shows more tests and more findings* Now if you look at the inside pages do you see sir, that they have wipe numbers 1-A, 2-A, 3-A, .4-A, 5--A, 6-A, 7-A and 8-A? A X see that* Q And wipe number 1-A is the Blower Motor Housing Outside Walls, Building 236, is it not, sir? A Yes. Q And they found there 2,160 nanograms of dioxin per wipe did they not# sir? A That appears to be what it says. Q And wipe S-A, which is the vertical support - girder in Building 236, southeast of the foreman's office they found in 3-A 200 nanograms of dioxin per wipe in the tetra 4 column, did they not, sir? A That's correct* Q And in the 6-A -- 6-A -- that was 210 for 5-A -- . and the 6-A column it's 260 nanograms per wipe, which is the table in the Control Boom. Do you see that, sir? A Yes, X do., V 72 MR. MUSGRAVE* Let my objection be a continuing objection to this. It*s all repetitive, your Honor. Xt*s been gone through this sorbing* It*s been gone through with Other witnesses*, Just all repetitive* THE COURT Continuing objection noted. Q (By Mr* Carr) You see in the next lower column, t-A* wipe sample found 1700 nanograms of dioxin in the wipe on sample 1A* A I see that number* Q . How# Mr. Part, referring now to the Exhibits 1544 and 1545, which I*ve previously given you# and which have been passed to the jury# If you would please, sir. A Yes* Q 1544 is a request that was submitted to you that you toot to various people at your plant and got input from them as to how to answer these questions, did you not# sit? A I sent copies of i t # a s I recall# to different Q And they responded to you as to how they thought these various questions should be answered# did they not# sir? A I think 1 received responses from some* I'm not sure from all* There was some# 1 think# confusion concerning these questions* 0"- " * 2 1- 3 4 5 6 7 8 .9 10 11 PE NG AO C O. . B A YO N N E . N.J, O- ** I XD 3 O. 3 2 UJ fa o o: *' in ` V" '-- 12 13 14 15 16 17 18 19 20 21 22 23 24 Q And then you prepared the information that ran * given - - you prepared these responses from the information given yea by these various people, Dr* Wilson and ether people that gave you information, you prepared these responses, did you not, sir? A No, Mr* Carr* As l recall, there was further discussion, and then retained counsel, outside counsel actual* ly prepared the submission to OSHA, the response* Q Well, he prepared these responses based upon information given to him by Monsanto employees, did he not, sir? A Well, as a result of discussions* Q Well, as a result of discussions* He had no information of his own, did he, sir? A Be would have received information concerning the Monsanto facility from Monsanto employees* Q yes* And based upon the information that you at Monsanto gave him, he prepared these responses to these Bequests for Admissions, did he not, sir? A Well, not me personally* Q ' ..Sir?.. A No* Not me personally. I said he prepared* A .yes, he prepared them* Q With your help, and you saw it before it got filed, did you not# sir? A Yea* Q Now# you're# o course# aware thattheplaintiffs in this ease also had asked Monsanto in court documents -- I recognize that these responses that you filed were not responses to requests filed in a court. It's before the QSHA Review Commission. But you do know that in this ease# Monsanto was also asked to admit the truths of certain facts* You know that# or did you know that that took in this case? A This Request for Admissions? Q No. I'm now talking about Requests for Admissions in fact that were filed in this case by Monsanto's lawyers# based upon information given the Monsanto lawyers by Monsanto people* A The case that we're in trial with? Q That we're currently in trial on* A I*ro not familiar with that, Mr. Carr. Q You had nothing to do, I take it# or did you# sir, have anything to do with the preparation of the answers to Requests for Admissionof Fact that was filed in this case that we're trying here# the Kemner case? bid you have any thing to do with that# sir? 75 A NO* / Q All right. So let*s discuss then what you did have to do with, Mr* Park, namely these answers that you gave to these requests* Mow you have responded first of all, it's clear that they're talking about the Kriramrich Plant; isn't that correct, sir? A yes Q And they ask you to admit that OSRA didconduct ar inspection between February 7 and February 23 of *79. A Yes. Q And, ofcourse, you admit that they filed the citation, and that the inspection took place, and that you . have certain employes, and that you manufactured chloronated phenols at your plant for more than 36 years* That would be question number 5 or 6, I*m sorry. MP. MSGRAVE* Your Honor, mayray objection to Counsel going through this document also be noted again on the basis of relevancy and materiality, and no probative value* THE COURT The objection is noted, and it is overruled* X will take it as a continuing objection* ME. MBSCKAVEs Thank you. Q (By Mr. Carr} You also admit that orthochloro phenol was manfactUredihv Department 237; isn't that correct 24 76 PE NG AD C O. . B A Y O N NE . N. J . 0 7 0 0 2 FORM It- 24 B A Let's see This is number what, Mr Carr? Q Humber 7, sir A Yes* We admitted 7-b. Q Hew in request number 8 they ashed you to admit that synthesis of chlorinated phenols can produce polychlori nated dibenzo-p-dioxins, referred to as dioxin, as a by product, and polychlorinated dibenzofurans as a by-product, do they not, sir? A Yes* Q You denied the truth of that, did you not, sir? A Yes* Q sir? A ThatVscorrect* Q How, Mr* Park, you knew, and others at Monsanto knew in 1979, in November of *79 when youfiled these responses, that dioxin had been detected in your chlorinated phenols* You knew that for a number of years* A It was not a by-product as we defined it. Q Well, what was it, a product? A No. It would be an undesired contaminant, if it was anythinq* Q Well,all right. Isn't any contaminant undesired? When it's manufactured in a process, isn't it a by-product? It's not what you intend to produce* A Hot as that term is used by many people, Mr; Carr* ^ Q Mr. Park, is there any question in your mind that what they were asking you that dioxin is produced in the synthesis of chlorinated phenols? A This type of a request by a party in an administra tive hearing, it is customary if there is anything not totally correct about it to deny it* Therefore, allow the party who proposes it to prove it when it comes to hearing. Therefore, there is something that is not correct about this, so it's denied on that basis* Q Mr* Park, what you're saying is what you did, if you could find some little area there that you thought you could quarrel with* and be technically correct, in so doing if* you gave a denial instead of an affirmative response* didn't you* sir? A As you phrase that, 1 have to say no* We denied number 8. we denied number 8* it was not totally correct* And every other one in here that was not totally correct was denied. Q well now, Mr. Park, did you produce dioxin or not at that plant? A Not intentionally. Q Well, X didn't ask you whether you did it inten** tionally or unintentionally. M d you produce dioxin in that plant? A apparently dioxin was an unwanted contami" nant that can result fro certain processes Q And you produced it at that plant* didn't you* sir? A Not as a by-product* as I define the term Q My question* one at a tine* is* sir* did you produce it at the plant? A Not intentionally Q My question is did you product it at the plant* A In a sense it was produced* Q And was it the end product that you were seeking? A No* Q Mas it a by-product then? K- No* Q y o u either have an end product or a by-product. You*we got one of the two* sir* A No* we don't* Mr. Carr* Q Oh, is it an end product? A It's a contaminant* an undesired contaminant. Q It was produced, though, wasn'tit,sir? MR. MUSGRAVEt Object* It's been asked and PENGAD CO., BAYONNE. N J , 07002 FORM IL 24 B MR* Ca r s And he said it was produced* 79 1 Hit MUSGRAVE* He said in a sense# Mr. Carr. 2 MR. CARR* Certainly in a sense. That's all I'm 3 talking about. In a sense it was actually one hundred percent 4 produced in the Krummrich Plant# wasn't it# sir? 5 MR. MUSGRAVS* Object to the question# been 6 asked and answered. 7 THE COURT It has been answered in the affirms- 8 tive# yes. 9 TBS WITNESS * One hundred percent# you say# 10 produced? I don't know that I can agree with that. 11 Q (By Mr. Carr) Yes. It was produced at the 12 Krummrich Plant# wasn't it# Mr. park? 13 MR. MUSGRAVE* object, it's been asked and 14 answered. 15 TBS COURT* Go ahead and answer it* 16 THE WITNESS* It was produced in the sense it 17 was a result of the manufacturing process# an undesired 18 contaminant. 19 Q (By Mr. Carr) And it was# therefore# a product 20 of a manufacturing process# was it not# sir? 21 MR. MUSGRAVEt Object. It's been asked and 22 answered. 23 TBS COURT* Mo# it has not. 24 TBS WITNESS* Not as you're using the term, Mr. Carr# Q In any context. II it*s produced, the end result of produced is product, is it not# sir? A Mr, Carr -- Q Excuse me, Mr. Park, could we answer that question, so we can pass on to another one, A No. My answer must be no, Mr. Carr, as we under- stand those terms. Q When you produce something, you make products# don't you# sir? A No, Q Doesn't the word "produce*1 and "Product", aren't they the same word, one is the end result and the other is the verk? One is the noun, the result* A NO. Mr. Carr# I tried to explain that. You cut me off. Q isn't produce the verb# sir? A ^he verb of what? Q Isn't produce a verb, sir? A I will produce# yes# it would be a verb* q isn't product, derived from produce, the verb? , A In a context it would be, Q in any context, A No*. ' Q Product is a result of producing. MR. m u s g r a v e * Object, it's been asked and answered. THE COURTi it has not. Overruled. THE WITNESS* Semantics/ Mr. Carr. q {By Mr. Carr) Indeed* we are. That* Mr* Park* is exactly the point* that you cannot escape from the eonclu sion that dioxin was a by-product because it wasn't the end product. It wasn't that which you were wanting to produce# MR. MUSGRAVE* Object to Counsel's speech. It*8 not a question. It's Counsel's opinion. It's Counsel's conclusions. Request it be stricken* the jury instructed to disregard it. THE COURT* The objection isoverruled. Answer the question* please* Mr. Park. q (By Mr. Carr) You wanted to produce it* then. : A ; No. Q Was it a product? A It was a by-product. It was nota by-product. m r . m u s g r a v e j Objection. THE COURT* Objection is overruled. q (By Mr* Carr) Now you've gone one step farther* one step at a time* please, when you have confirmed and the couft has confirmed if i t w a s a product* 1 MR* MUSGRAVB* Object* 2 3 THE COURT* Objection is overruled* THE WITNESS* No, I didn't confirm that. 4 Q (By Mr. Carr) Mr. Park# I want you to assume, so 5 6 we don't -- . MR. MUSGRAVE* I object further, the testimonyr 7 8 your Honor# that it was in a sense produced. It is not a correct characterization of the testimony of Mr. Park. 9 10 t h e COURT* Objection is overruled. 11 (By Mr. Carr) Now# if it was produced# it is some 12 kind of product, isn't it# sir? A No, it's not, Mr. Carr. 13 14 Q what Is it if -- if it's a result of a producin'! 15 process# what is it then? 16 A It is ah unwanted contaminant* 17 Q And that is a product, isn't it, sir? 18 A No, it is not. 19 q what is a product? 20 A A product is something weproduce andmarket* 21 Q A product is something that youproduce and market 22 A And market as a product. 23 Q Can't you have products that you never market, sir! 24 A No* Not in the sense in which we use th term# 1 For eacample, as a result of production -- Q What is a by-product, sir? 2 MR, MUSGRAVE: Just a minute, Mr. Carr, may he 3 4 MR. CARR* NO. 5 MR, MUSGRAVE: Your Honor, -may the witness finish 6 7 his answer? THE COURTS No. 8 9 MR. MUSGRAVE: May ay objection as to the Court's 10 refusal to let the witness -- 11 THE c o u r t s I said it was overruled. 12 MR, MUSGRAVE: I just want to make sure ay objection was noted. 13 14 THE COURT* Your objection is fully noted. Mi. 15 Carr, you may proceed. 16 .Q (By Mr. Carr) what is a by-product# Mr.Park? 17 A Coaaonly used definition is that itwould be a 18 secondary produced product that is marketed. 19 Q By-products are marketed? 20 A Yes. 21 q And because you don't sell dioxin as such, you 22 don't consider it a by-product? 23 A We do not. 24 Q do you sell it, however? A No, not intentionally. 1 Q I didn *t ask you intentionally. 0h # you do intenc 2 to sell it, you knowit's in the product when you're selling 3 it? 4 VA/ " 'Mr*-' Carr- -- . 5 Q E x c u s e me, Mr* Park. You know it's in the product 6 when you're selling it, don't you, sir? 7 8 A I'd have to go check. Perhaps in tiny quantities. 9 Q whatever quantity. You know -it's in the product 10 that you*re selling, don't you, sir? 11 A Not as a product. 12 Q It's in the product you're selling. It's part of 13 the product that you're selling? isn't it, sir? . A In tiny amounts. 14 Q And you are marketing that, aren't you, sir? 15 .A We1re marketing the product. 16 Q And that product has in it phenol, it has in it 17 18 chlorine, it has in it chlorinated phenols, it has in it 19 dioxin, doesn't it, sir? 20 A It may have trace amounts of unwanted impurities. 21 q And you are selling those unwanted irapurities, 22 aren't you j sir? They're part o f the product, and you're 23 marketing it, aren't you* sir? 24 A That may be present in the product being markete 1 2 3 4A 5 6 77 8 y 10 11 ' . 12 13 14 15 Pd ^ 16 X o * o 11"/7 o o 2 18 Q Yes. How tha next question that they've asked you is whether or not you*ve researched or authorized research in the formation of dioxin# and you admit that you did so# don't you# sir? A tes* Q then the next one they ask you is whether or not studies prepared by or for Respondent have determined that dioxin is a potential by-product in the manufacture of I chlorinated phenols# and you deny that also# don't you# sir? I A Because of a difference in opinion about the meanH inf of the question# yea# we deny that# Q ou deny that in the same sense that you denied question number 3 didn't you?'.' a Hell# it was denied* Q you denied it for the same reasons you denied number 8; isn't that correct# sir? A That and there may well have been other reasons here* the next question# number It# they ask you# "The PE NG AD CO. . BSAYVOONNE . N. J. 0 70 02 so o term dioxin refers to 75 different compounds#, dependent upon' :< 20 o z Ui * 21 the location of the chlorine atoms within the dioxin molecular 1 22 structure#" and you deny the truth of that# don't you#sir? 23 \~ 2`'4 : a yes* why do you 'deny that# sir? 8* 1 A The response states because dioxin refers to a 2 broad class of compounds estimated to exceed 10#000 in number* 3 Q And it isn't commonly referred to that there are 4 75 ' 5 MR. MUSGRAVE* Object to that,your Honor. That's 6 not what the question was that was ashed 7 THE COURTS Humber 11? 8 MR. MUSGRAVE* Yes. 9 THE COURTS Overruled. 10 MR. MUSGRAVEs Number It? 11 THE c o u r t Number 11. You may proceed# Mr. Carr. 12 Q (By Mr. Carr) Isn't that what your lawyers and 13 you and your scientists and your chemists# and everybody else 14 has said that there are 75 different dioxin isomers? IS MR. MUSGRAVE* Object, it's irrelevant* 16 Q (By Mr. Carr) some people have said 72 others 17 have said 75. Isn't that exactly what they're saying here# 18 sir? . 19 MR. MUSGRAVE* I object# it's irrelevant to the 20 question that's at hand. 21 THE -WITNESS*: No# Mr.. Carr. 22 MR. MUSGRAVE* And the question 3peaks for itself, 23 as to what was asked. There's no word commonly in there# or 24 what people might generally think. 1 THE COURT* Objection is overruled. It's a prop* 2 question. It*s relevant. i.^ - . 3 Q (By Mr. Carr) Did you answer the question/ Mr* 4 5 A 1 did* Mr; Carr. The answer was no. 6 Q And number 12, you deny that tetrachlorodibenzo-p- 7 dioxin refers to 22 potential isomers, each containing four 8 chlorine atoms in varying locations, don't you, sir? 9 MR. MUS6RAVE* Objection. It's a misstatement 10 of the question, your Honor. The question in its entirety 11 must be read, your Honor, and he is not doing that. He*s 12 taking it out of context. 13 THE COURT* Objection is overruled. It's a proper 14 paraphrasinfof the-question. 15 Q (By Mr. Carr) Excuse me. My question is you 16 deniedthat the termtetraehlorodibenzQ^p-dioxin refers to 17 22 potential isomers, each containing four chlorine atoms in 18 different locations. You denied that, didn't you, sir? 19 A As you have stated, I have to say no, Mr, Carr* 20 0 Well, did you admit that, sir? 21 A That question was not one of these in the Request 22 for Admissions. 23 Q That question is not 24 A You didn't read the whole question, Mr, Carr* P IN 6 A 0 CO,, iA V O N N I, N,J, O I Q O i i A, , MR. MUSGRAVE: The one you just read, Mr. Carr, is not what was asked, Mr. Carr. Q (By Mr. Carr) What did I just ask you -- A Would you like me to read the entire question 12? Q You tell roe. A You left out the paren statement --- Q Hereinafter referred to as TCDD, didn't I, sir? A Yes. Q Did it change the meaning of the question by leaving that out, sir? A I think you did. Q How so, sir? A Because TCDD -- the term TCDD is used elsewhere in here in another manner,fa confusing manner which raises questions as to what was intended by the asker of these questions. Q You don't understand that TCDD is referring to tetrachlorodibenzo-p-dioxin, exactly as they say there, tetra chlorodibenzo-p-dioxin, hereinafter referred to as TCDD? A The next question he says it's a toxic compound. Q Let's look at question number 12 first of all. A Yes. We denied this because of confusion over the definition of TCDD by the asking party. Q And where is the confusion over what is a tetra -- * 89 1 what is t c d d ? 2 A" Did the asker of these questions intend that that 3 term mean an isomer# a compound, a specific entity, or a broad A group of entities, or what? 5 0 You can't see? He says j.t refers to 22 potential 6 isomers* You*re denying that, aren't: you, sir? 7 . A " Yes.,.. 8 Q And you also deny number 13, that TCDD is a toxic 9 compound, don*t you, sir? 10 . "A'- ' Yes,'.. 11 0 Well, you know it is a toxic compound, don't you# 12 sir? 13 A It's not a compound. 14 Q What is it, sir? 15 A That's a question -- 16 Q it is a compound -- 17 A We are limited by the terms used in this 18 document, you see, at least at the time we dealt with this 19 Q Well, does this somehow or other define compound 20 that allows you to say why this doesn't fall within the frame" 21 work M the word compound? Is there some word -- 22 A There was enough inconsistencies and confusion, 23 ambiguity, concerning use of this term. 24 ;G": . Where, sir? 1 A I guess in 11, 12, 13.-- 2 Q Where is the use of the word "compound" confusing? 3 A -- and further on. It appears to refer to a set 4 of isomers in 12, then he's talking about, apparently, a 5 specific compound in 13. 6 Q What is a compound, sir? 7 A I'm not sure I know in the context of this at 8 this moment. 9 Q Did anybody tell you that TCDD was not a compound? 10 A As defined in this document. 11 Q In any document, anywhere. 12 A No, no, we're limited to this document, Mr. Carr, 13 when we answered it. 14 Q Is compound defined in this document? is A The word compound was not defined, which was 16 unfortunate. 17 Q All right. Then you used the common, accepted 18 definition of compound, wouldn't you, Mr. Park? 19 A No, we wouldn't because -- 20 Q Well, what would you use then, sir? 21 A The common practice throughout the trade is to 22 deny it and then the first party will come back and ask the 23 question -- .' 24 Q I'm talking about the word compound, sir. 1 A Yes, I'm trying to say. 2 Q what is the meaning of the word compound? 3 A The party that asks the question, Mr. Carr -- 4 Q Excuse me, I'm asking you the question at this 5 time, what is the: meaning of the word compound. 6 A It wasn't clear to us what he meant. 7 Q What does it mean to you, sir? 8 A The question was what did it mean tothe OSHA 9 attorney. 10 Q My question to you, Mr. Park, what does the word 11 compound mean to you? 12 A I'm not sure what it would mean. 13 Q I'm asking you, Mr. Park, what it means to you. 14 A I don't know, Mr# Carr. 15 Q Then if you don't know, Mr. Park, how can you deny 16 that tetrachlorodibenzo-p-dioxin is a compound? 17 A Because those technical persons who were giving 18 us advice on this raised a question concerning what it meant. 19 Q They told you -** 20 A They were confused by it. 21 Q Bid they tell you that tetrachlorodibenzo-p- 22 dioxin was not a compound, and if so, who told you that? 23 A I think, perhaps, they did. I think they may 24 have said there are a number of compounds that could fall 1 witliia tfeafe TCDD term, and that some of those are relatively 2 not toxic* ":v ' 3 Q well, relatively is a modifying word# We're not .4; worrying about the meaning of the word compound now* We 5 pasted from that. Because' you do know, ana you do agree that 6 the word compound would encompass a tetrachlorodibenzo-p- 7 dioxin because it is a compound, it's made of more than one 8 substance? Isn't that correct* sir? 9 A X don't think so, Mr. Carr. 10 Q Well, what is a compound, if that's not the case? 11 A In another context, not this document, I would 12 take it to mean a substance or chemical, 13 Q Well, dioxin is a chemical, isn't it,sir? 14 A Dioxin is a large number of chemicals, hundreds 15 perhaps. : 16 Q And, therefore, it's a compound,isn't it, slfi 17 A No, not a compound. 18 Q Well, it's not a compound, and that's the reason 19 you denied that? 20 A Yes. Because there was something that was not 21 correct about it. 22 Q What about the word toxic, do you consider that 23 it*S tOJiic? IS that the reason you denied it? 24 A That could have b e e n a reason right there. 1 Q could hav been? 2 , A ' . Yes. 3 Q-;-'- Because relatively it's not as toxic as all TCDD - 4 different TCDD Isomers* one is more toxic than the other? 5 A Some are relatively non-toxic as I understand. 6 Q Yes. But they're all toxic, aren't they# sir? 7 So why do you deny that it's toxic? 8 MR. MUSGRAVEt Just a moment. Just a moment. Are 9 you asking that as a question, Mr. Carr? 0 MR. CARR* yes* indeed, I'm waiting for him to 11 answer. 12 THE WITNESS* I don't know that they are* 13 Q (By Mr. Carr) You don't know that. All right* 14 That's the reason you denied it, because you have no knowledge 15 on that point; is that correct* sir? 16 ... A : No. 17 Q Well* why did youdeny it? 18 A Because one or more things about it that were not 19 correct* so it was denied. 20 Q And you denied also that it's generally recognised 21 asthemost toxic dioxin compound? 22 A Recognised by whom*Mr. Carr? 23 Q By you* sir. 24 A ' No# sir* 1 Q Or generally recognized by the scientific world 2 at large* 3 MR. MUSGRAVEs Where does it say that/ Mr* Carr 4 in the question? 5 MR* CARR: The word generally is there in the 6 7 MR* MUSGRAVEs The words you just put into it* 8 Mr* Carr| where does it say that in the question? 9 q (By Mr. Carr) Mr* Park# you understand what the 10 wards "generally recognized* means, don't you, sir? 11 A Mot when they come -- when we're limited by the 12 words on this paper. 13 Q Well, my question is aside from that, Mr. Park, 14 you do know what the words "generally recognized* means, 15 don't you# sir? 16 A Well, yes, and I don't know ~17 Q All right. Now, Mr. Park, just one thing at a 18 time. Pou do know what the words "generally recognized* 19 means? 20 A Mo. NO, if you put them in a context. 21 Q Sir? 22 A Put them in a context, Mr. Carr. 23 Q I intend to do so after 1 get your agreement that 24 you know the meaning of those commonly used words. * 1 A No# I don't know that I do# Mr. Carr. 2 Q You don't know that you know the meaning of the words "generally recognized?" 3 4 A Generally recognized# no. 5 Q d o you know the meaning of the word "general?" A I'm not sure I know the precise meaning of that. 6 7 Q Do you know a commonly accepted meaning of the 8 word "general?" 9 A No. 10 Q You d<>n*t know that. Do you know the meaning 11 of the word "recognized?" 12 A I know the meaning of the word "recognized." 13 Q You do know the meaning of the word "recognized?" 14 A Yes. 15 Q All right. But you don't know what generally 16 meant is that correct# Mr. Park? 17 A Mr. Carr -- 18 Q If you don't know, we'll pass on# sir. 19 A Okay. 20 Q You don't know what the word "generally* means? 21 A We didn't know what the writer meant. 22 Q Excuse me# Mr* Park# I'm asking you about what yot 23 know the word "generally* means* I'm not asking you about the 24 writer. 1 A In many contexts I do know what the word means, 2 Mr* Carr, obviously* 3 Q All right* Well, apparently not so obviously because you denied it a moment ago that you knew what it 4 5 meant* 6 A Okay. 7 MR. MUSGRAVEt without context, Mr.Carr -- 8 Q (By Mr. Carr) What you're saying now, in this 9 context you don't knuw what is meant by the use of the words 10 "generally recognized?* is that correct, sir? 11 A That's correct* 12 Q And the same thing, if you're-- whatyou're 13 talking about is because you're not in that mind of that 14 parson* and you d~n't know just precisely what that person 15 means* so you're just going to assume then that it's to be -- 16 have no attention paid to it* and you're not going to give it 17 the commonly accepted useage* are you* sir* or meaning? 18 MR. MUSGRAVE* Object to this line of questioning, 19 your Honor* These are questions asked, that have to be 20 responded to in accordance with rules, and no one is required 21 to assume what is the lawyer drafting these has in mind. It 22 is the duty of the lawyer to be specific with the question 23 so they can be responded to. It's unfair for Mr. Carr to 24 question in this regard^ with regard to this document* by taking it out of context of the rules that govern the 1 responses that are made. 2 THB COURTt Bis questioning is completely within 3 the rules that govern Requests for Admissions, common to both 4 the state court, federal court# and the administrative agency 5 in the federal system. The objection is overruled. 6 Q (By nr* Carr) h o w , Mr. Park, question number 14, 7 you denied that 2,3,7, TC0D is generally recognized to be 8 the most toxic of the "fcetra" isomers,"didn't you, sir? 9 A Yes. 10 Q Hell, now you do know in point of fact that 11 2,3,7,8 TCbD is generally recognised to be the most toxic of 12 the tetra isomers, don't you# sir? 13 A Rot as the terms are used in this particular 14 document, Hr. Carr. 15 Q Well# how on earth ** what meaning can you get 16 from that# other than the words# sir? 17 A if there wasanything about it not totally correct 18 Q What is itthat's not totallycorrect? 19 20 A The term TC>f> has confusion in it as it's used in these documents is one. 21 q TCDD, they tell you up above there, is short for 22 tetrachlorudiben*o~p~dioxin. You see that# don't you, sir? 23 a yes# i do. 24 1 MR, MUSGRAVE: Just a moment, Mr. Carr, Above 2 it says it's 22 isomers* 3 Q (By Mr. Carr) you see that, don't you, sir, TCDD 4 is tetrachlorodibenzo-p-dioxin, hereinafter referred to as 5 TCDD, you see that, don't you, sir? 6 A Yes, sir, 7 Q They use that term TCDD, tetrachlorodibenzo-p- 8 dioxin, you see that, sir? 9 A . Yes. 10 Q You can read those together? 11 A Yes, sir. 12 Q So you know that that means, 2,3,7,$ tetrachloro 13 dibenzo-p-dioxin is generally recognized to be the most toxic 14 of the tetra isomers, isn't it, sir? \ 15 A There would be another difficulty with the term 16 "generally recognized,* and finally with the terra "tetra." 17 Q All right. I thought we agreed we knew what the 18 word -- - you-knew what the word "generally" meant. 19 A Not in this context, Mr. Carr. I tried to make 20 that clear. I'm sorry. 21 Q Well, what do you think it means in this context? 22 A We did not know what it meant in this context. 23 Q My question is what do you as a lawyer, 24 of law school, years of college -- 1 A That' ack the point, Mr# Carr# 2 Q it is# 3 A m $ it isnft. Q It's exactly the point* 4 MR# MOSGRAVE* X object to the question because 5 6 it is m b the point* What he may think it means in responding 7 to these questions is totally irrelevant Rutting his own 8 interpretation on words that may have other meaning to other 9 people* I object to that as being irrelevant# 10 TKE c o u r t Objection is overruled# It is 11 properly the point in answering the Request for Admissions# 12 you may proceed# 13 THE WITNESS! X know what it means in a given 14 content# 15 Q (By Mr. Carr) Mr. Park ~~ S' 16 A I did not know what it meant in this context. 17 Q than you could have responded to that# "We bellevi 18 the word generally means," and then give your definition Of 19 the word generally. If you are using the word "generally* in 20 that sense# our response or our answer-to that request in yes 21 or no# depending on whatever you want to say. If there is anj 22 thought in your nind about the meaning of the word# you know 23 that you havethe right to say we are answer this to the assuiai 24 tion that. yoUyean * ' means so and so you know that 1 don't you. M e * Park? 2 A Counsel advised to answer it as we did* 3 Q Excuse me* My question is you know that# don't 4 you# sir? 5 A We had the liberty to answer it a number of ways. 6 I'm sure* 7 Q y o u could have made it very precise what you mean 8 Now what do you believe# as you sit here today# that the word 9 "generally" means? Let me suggest to you that it means that 10 most people believe something to be so* Generally means not 11 everybody# but most people* Commonly accepted* Not that 12 everyone says so# but most people say it's so. That's the 13 word "generally recognized." Generally understood* That's 14 the way you understood those two words are to be taken# don't 15 you# sir? 16 ME* MOSGRAVEt Object to the multiple form of 17 the question* 18 THE COURT Objection is overruled* 19 THE WITNESS* Z would have to answer no# Mr* Carr 20 q (By Mr* Carr) I'm sorry? 21 A I would have to answer no* 22 Q And so you denied that it was generally ecognize 23 to be the most toxic of the tetra isomers# didn't y< 24 A .That's cerreot* Q You also denied the next one that you had 1 analyzed samples of orthochlorophenol produced at the W*G. 2 Kruaunrich Plant foe the presence of dioxin both prior to 3 and after February 7 *79, didn't you, sir? 4 A . Yes. 5 Q How, again you know that the truth is that you 6 did analyze orthochlorophenol, both before and after February 7 8 the 7th, *79, don't you, sir? A HO. 9 10 Q You don*t know that, sir? Your chemists know 11 that. We've got the documents in evidence here, sir. 12 A I dwn't think that's correct. I think -- Q Oh, yes. In March of "78 Vulcan asked you to 13 analyze for the presence of dioxin, and you did. 14 MR. MfJSGRAVB* In what, Mr. Carr? 15 MR. CARRt In orthochlorophenol. 16 MR. MUSGRAVEt Crude? 17 Q (By Mr. Carr) Isn't that correct, sir? 18 19 A I think that was a different product, Mr. Carr. Q You don't know that you're selling orthochloro-. 20 21 phenol to Vulcan and Reichhold Chemical? 22 A 1 would assume that orthochlorophenol means the 23 final product. 1 believe the other might be the crude, not 24 the final product. 1 Q Do you have a product that you sell at the plant 2 in *79 called orthochlorophenol? Hot the product you sell 3 as orthochlorophenol crude You don't sell anything other thai 4 that# are you# sir? 5 A I'm sorry# 1 just don't know the answer to that 6 Q Well# if you sell anything other than the ortho- 7 chlorophen^l crude# it's not shown by the documents# and you 8 admitted in request number 7 that you manufactured orthochlore 9 phenol# and they're talking about the orthochlorophenol produc< 10 at that plant# aren't they# sir? 11 A Request number 15 was a statement or number 15 12 was simply incorrect, Hr* Carr# and I'm assuming that it was 13 because samples of this particular product# the orthochloro 4 phenol itself had not been analysed# 15 Q But you know that'it's not the case. You know 16 that you've seen *-- 17 A NO* 18 Q -- you've seen the documents where they've 19 analysed* I've seen them to you# where they analysed the 20 21 A Crude? 22 Q They're not even talking about orthochlorophenol 23 crude# and neither are you* You call it OCR in all of your 24 documents# don't you# sir? 1 A I don't know, Mr. Carr* 2 Q You don't know that* The people that you went 3 to for these responses knew, though, didn't they, sir? 4 A I would assume so* 5 Q Over on p a g e - - the next page on question 17, you 6 deny -- well, that's not airborne concentration of dioxin* 7 The next question, 18, you deny that chloracne is a symptom 8 of dioxin exposure, don't you, sir? 9 A Yes. 10 Q And you know that it is a symptom of dioxin 11 exposure, don't you, sis? 12 A No* Not as limited by this document. 13 0 Mr. Park, do you understand that the witness, 14 two witnesses preceding you, Dr* Roush* took the position tha 15 chloracne is the only symptom of dioxin poisoning, none othen 16 He spent weeks here testifying to that* Do you understand 17 Sir? 18 A Yes. All right. 19 q And he swore under oath that it is 20 MR# MUSGRAVE: Is what? 21 q (By Mr* Carr) -- caused by dioxin poisoning* 22 And here you're saying in this document that it's n o t -- 23 MR* MUSGRAV2* Object* 24 Q (By Mr* Carr) -- a symptom of dioxin exposure* 1 HR* MUSGRAVEs Object That's contrary to what 2 the question askad. There's two different questions. 3 THE COURTt Objection is overruled. 4 THE WITNESS No. We*re merely denying this 5 Request for Admission Nr. Carr. 6 Q (By Mr. Carr) Well in this request, it is asking 7 you to agree that chloracne is a symptom of dioxin exposure* 8 a wot in the context of this document. X guess a 9 couple of things come through to me as possible reasons why 10 this was considered not to be a totally correct statement. 11 Q well, you must not agree with what the word 12 *symptom" means, or what the word "chloracne* meant. 13 A NO* 14 Q Or what the word "dioxin" meant, or what the word 15 "exposure" meant., 16 - A Tes* t 17 Q is that it, Mr. Park# one of those words you don't 18 know what it means? 19 a No* we feel the statement as written-was not p 20 totally correct. 21 q Okay. 22 A And# therefore, notsubject to being admitted. 23 Q : Where is it not correct, sir? 24 A For one thing, it* a the dose that may 1 Q There's no mention about -- 2 A That's right, there isn't. 3 Q There's no mention about dose. 4 A That's right. Mere exposure to a small amount 5 may not result in chloracne. 6 Q Yes. So -- . 7 A A large amount may, 8 Q Yes, that's right. 9 A We don't know. But chloracne can be caused by 10 other things. 11 Q That's true* No dubt about that. 12 A So the statement as written is not wholly correct. 13 At least that was the conclusion drawn six years ago. 14 Q It doesn't say it's the- only symptom, and it 15 doesn't ask you to say that it's only dioxin that can cause 16 it. It doesn't ask you to say the amount that can cause it. 17 It's a simple little statement that you had witnesses here 18 testifying under oath for a considerable period of time that 19 chloracne was a symptom of dioxin exposure. 20 MR. MUSGRAVE: Objection, that's not the testimony 21 Not exposure, dose. 22 MR. CARR: It's not the testimony? 23 MR. MUSGRAVE: Dose. Not exposure, 24 THE COURT: Objection is overruled. You may 1 proceed* Mr. Carr. 2 Q (By Mr. Carr) Here in order to stop this 3 proceeding that was going on* you undertook to deny the truth 4 of something that Dr. Roush has pointed out document after document* chloracne is the hallmark of dioxin exposure. 5 6 Chloracne is generally recognized as being caused by dioxin exposure. Yet here you deny it* don't you# sir? 7 8 A it's totally false, Mr, Carr. Q That's totally false? 9 10 A That was not the stopping proceeding at all. This 11 was merely as you see* this was the first set of interrogato 12 ries. Those that were not totally correct, we would deny, 13 actually expecting that the plaintiff, SBA, would come back 14 with some more detailed and more clear requests for admissions 15 Q Did you tell them somewhere* did you write them 16 a document saying that number 18* we don't know what you mean 17 by that, we d^n't agree* We don't know what chloracne is* or 18 be mre precise about what you mean by symptoms, or be more 19 precise what you mean by exposure* You've got the right, and 20 you understand that you have the right, don't you, Mr* Park, 21 if you believe it's ambiguous, and you don't understand it* 22 you have the right to object to it? You have the right to 23 say we cannot answer that question because it's ambiguous* 24 because we dn*t understand what it means* You have the righi 1 to do that# you know that# don't you# Mr. Park? 2 A Yes# 3 q But you didn't do that with these questions# did 4 you# sir? 5 A We denied those that were not totally correct# 6 q And you didn't tell them that you were denying 7 it because it was ambiguous, or you didn't know what it meanti 8 you just out right denied it# didn't you# sir? 9 A Yes, if it was not totally correct# 10 Q Now# don't you reckin that they could have given 11 you more questions if you said# "Bey# we really don't under 12 stand what you mean by that. Give us more detail# because we 13 don't understand what you mean by symptom# or by dioxin# or 14 by exposure*" 15 MB# MUSGRAVEs Object to the speculation and 16 conjecture# 17 THE COURT; Objection is overruled. 18 THE WITNESSt What we followed was the common 19 method of practice# Mr# Carr, advised by a counsel experience! 20 in OSBA matters# we fully expected OSHA would come back wit* 21 several series of questions that would define themselves# 22 Q (By Mr* Carr) But they didn't# did they, sir? 23 A I don't believe they did# 24 1 A NO* 2 Q They took your denials at facte value didn't they, 3 4 A No* 5 NR* MUSGRAVE* Object to that* Objection, specule 6 tion as to what anyone at OSBA did upon reviewing and receivir< 7 these* There's no foundation for that* It's totally specula^ 8 tion and conjecture* I object to it* 9 THE COURTj Objection is overruled* 10 Q (By Mr. Carr) Did you write them a letter saying 11 to them that if you'll send us some more questions more 12 precise questions and define every word in your document or 13 the words like compound and symptom, and TCDD, define those 14 for me, we can give you another set of answers? 15 A No* 16 Q Did you say that to them? 17 A No. t 18 Q No* Now on question number 20 you did admit that 19 a chemical spill.took place didn't you sir? 20 A Tes * 21 Q But you promptly denied question number 21 becaus 22 it didn't consist of orthochlorophenol did it sir? 23 A X think that's correct. 24 Q The spill consisted of 2,4-Diehlorophenol that PENCAD CO,. BAYONNE, N.J. 07002 FORM IL 24 B N NU> NKA) NN-A ON> }rOCf ^3 3 JtOI| 8 |ftsr| 'IX0 M <g **> m >O & H io tPm' JQ > 0 > O n 0 ff*t # 1 SS ? *r ft $ *t ## ** N Y* - #4? *r*f> 0r *i< 0c Ca*b> *f4t*;' K g m r >i #r 0H 0r f* ft ** - P0 H *0WK **** fi* *H** a *#I< i i#<** a g0 ft 0 3* 00K Ha %HH * s0 aH* e. rF** g H& i* ta j*H*a-. OOO fsm *-* V 0 0 O' Ui -* *n*) ff0Ht|i f*F O> N I0 (t .m N h* ft 0 I1 Cb ** & t* ne ft H8 2o*S f* 8H D .* Sft. >a IKf ft Ha8 #MH tfe i f <t H o ft Cu IaK ft *`H*; Hf i&g w H 0 10 M** *! *fPttk .I0t* afyt > M* m$w<f ft UK&iIL fwwa , H* ft -* t* 0 & rr m ** If0t if* P4* S B KH % K> mO h* % *g 8 H 1 ft to *8 fc* H* *<nt<r %A*a tm ft ft $ If H* t sr ft .% H* H & Hft 8 *** * Io * ft 1 than 3,000 gallons or less than 3#000 gallons, or what was it! A I think it may -- . 2 3 Q Sir? 4 A I believe it was more actually* Q so because it was more you denied it# even though 5 6 they used the word "approximately," is that correct? A The statement was incorrect We would have been 7 8 wrong to have confirmed an incorrect statement 9 Q Oh, but why couldn't you say it wasn't 3,000 10 gallons that spilled, but it was 5,000 gallons that spilled? 11 Why couldn't you have answered that way? 12 A Mr* Carr, because that's not the practice. 13 Q Mr. Park# it's not the practice at Monsanto that 14 way. But 1 assure you it is the practice in many# many other 15 places to respond just exactly as l*ve suggested* 16 - A That's before the OSSA Review Commission 17 MR* m s s g r a v e * Object to Mr. Carr's statement 18 Request that it be stricken* 19 THE COOK?* Objection is overruled 20 Q (By Mr. Carr) Mr Park, now you state there that 21 you -- well, you do admit that you analysed subsequent to 22 the clean-up of the spill, and that is a true statement, you 23 had not analysed it prior to the clean-up of the spill# had 24 you# sir? 1 A/-V right. 2 Q Mow you do admit that you did fine the presence 3 of dioxin in your analysis, didA*t you, sir? 4 A Are you in item 25# Mr. Carr? 5 ' ' . Yes,'' 6 A ' Yes. 7 Q And the next few questions deal with the protect! 8 measures given for the workers, which you admit were correct. 9 But over on question 33 you object because it*s something 10 that occurred at Sturgeon, and you deny what Was said there, 11 don't you# sir? 12 A Yes, This was on advice of counsel. 13 THE COURT: Hr, Cart# before you get into that# 14 is this a .fcod point for a sh^rt break? 15 ."HE, -CARR* Sure, 16 THE COURT* Ladies and gentlemen# we*11 take a 17 short recess at this time# and then resume again. Court is 18 in recess* . 19 20 (Short recess.) 21 22 (The following proceedings were had at the bench out 23 of the hearing of the jury*) 24 THE COURT* When can you get me the response to 1 that motion? 2 MR. MASSIF: I talked with Bruce, he said he 3 could have it by next week. 4 THE COURT Sometime next week? 5 MR. NASSIFs Would that be early enough? 6 THE COUBTt Can you make it early next week? 7 MR. NASSIFi 1*11 try. 8 THE COURT* That's probably okay. 9 MR. MASSIFj And the experts you're talking about 10 THE COURT* That will be okay. Thank you. 11 12 (The following proceedings were had in the presence 13 and hearing o the jury!) 14 15 (Plaintiff's Exhibit 1548 was marked 16 for identification by the court reporter.) 17 18 Q (By Mr. Carr) Mr. Park, in response to the 19 request to admit 3a, as I recall your reasoning to that 20 response, you said that you were denying it because, or 21 should be denied because it's not a by-product. That is the 22 dioxin is not a by-product Do you recall that, sir? 23 A Fes. 24 Mow do you consider that you might be guilty of 1 deceit in denying that it is a by-product? 2 A No. Q I w ould like to show you Plaintiff*s Exhibit 3 1548 and see if you recognise that as an exhibit written by 4 S Wilson on the subject of deceit, if you deny that that is the 6 by-product. " THE COURT: Is this 1548? Is that the number? 7 8 COURT REPORTER* Yes. THE WITNESS* Yes, this is a memorandum from 9 10 James Wilson* 11 Q (By Mr.Carr) It*s a memorandum to you in 12 response to your request that he and others, that they give 13 you information so that you can respond to these OSHA citation o s h a requests made in the citation. 14 15 A Y e s . . 16 MR. CARR* I offer 1548 into evidence, if it 17 please the Court. 18 MR. MUSGRAVE* Object on the same basis as the 19 last exhibit* It's irrelevant, immaterial, no probative value 20 and weight of the considerations to the issues in this lawsuit. 21 THE c o u r t * Overruled. It's admitted over objec 22 tion* 23 Q (By Mr. Carr) Dr* Wilson in this memo dated 24 October the 9, 1978, it states with reference to the request that, dioxin is a by-product in the synthesis of chlorinated 1 phenols by saying# does he not, quote, My dictionary defines 2 "by-product" as "something produced in addition to the principal 3 product." To contaminate is "to make impure by admixture." 4 There's no disputing the fact that the aforementioned "dioxins" 5 were contaminants in our chlorophenols. However, I'm afraid 6 we will be guilty of deceit if we deny that they might not 7 also be by-products. Certainly the fact that TCDD concentra 8 tions declined following certain changes in operating procedur 9 at WGR argues that they were being formed as by-products of 10 manufacture* Especially since those changes were designed to 11 eliminate TCDD formation. 12 Isn't that what he says#sir? 13 A That's correct* 14 Q And you did deny that it was a by-product# didn't 15 you# sir? 16 A Yes. 17 Q And Dr. Wilson would characterise that -- well, 18 as a matter of fact, he said# "We will be guilty of deceit if 19 we deny that#* didn't he# sir? 20 21 A It appears to be what he said* He was overruled 22 by the group as to the meaning of the word "by-product#" as I recall it. 23 Q someone can be overruled as to the meaning of word 24 1 Words have meanings* You can't overrule someone as to the 2 meaning of the word, can you, sir? 3 A The meaning was his understanding of the term 4 "by-product," was different from the way the others would 5 commonly understand it. 6 Q He's referring to a dictionary. He says it's 7 something produced in addition to the principal product. That* 8 exactly what it is, isn't it, sir? 9 A Well, it's an unwanted contaminant is what it is. 10 It*a not a by-product -- 11 Q Whether it's a contaminant or not. It's produced 12 in addition to the product, isn't it, sir? 13 A Mr. Carr, as I said earlier, many people, if not 14 most, use the terra "by-pr0duct* to mean something that is 15 produced and is sold. It wMuld not be the principal -- 16 Q The precise dictionary definition Dr. Wilson gave 17 you. He pointed out to you that you would be guilty of deceit 18 if you denied it, but nevertheless you denied it* isn't that 19 correct, sir? 20 A In our response to OSHA we denied that. 21 Q Yes. Now on number t5 -- I'm sorry, on question 22 number 15, that we've already passed by, and you said that it 23 was correct to deny that you had analyzed samples of ortho24 chlorophenol produced at the W.G. Krummrich Plant for the 1 presence of dioxin prior to February the 7th, '79. Do you see 2 that, sir? 3 A Yes, I see that* 4 Q And I suggested to you that you had, indeed, teste 5 two samples in 1978. Do you recall that 1 suggested that to 6 you? - 7 A Yes, X think X do* 8 MR* CARR* would you mark this as an exhibit, 9 please* 10 11 (Plaintiff's Exhibit 1549 was marked 12 for identification by the court reporter.) 13 14 8 . (By Mr, Carr) It's the only copy X have, so X 15 show it to you first, Counsel* 1549* 16 . I hand you what's been marked Plaintiff's Exhibit 1549 17 and see if you recognize that as another memo written earlier 18 in point in time by James Wilson, to you, again on the subject 19 of 8a and now also on the subject of 15a. And on 8a he again 20 tells you that by-product is properly in the process there, 21 does he not, sir? 8a* 22 A oh, l*m sorry* Yes, he repeats that* 23 Q And what does he say about by-product there? 24 A He says *As chemists use the wrd 'by-product*, 1 dibenzodioxins can be manufactured as by-products during 2 chlorophenol manufacture* Dlbenzofurans cannot so be made** 3 Q What does he say about 15a where OSHA has asked 4 you whether or not it's true that you've analyzed samples of 5 orthochlorophenol for the presence of dioxin prior to February 6 7# 1979? 7 A He says# "Tw samples produced in 1978 were analyse 8 and found to contain no dioxins*" 9 Q And he suggests the answer to that question 10 should be yes? 11 A Yes. 12 Q But nonetheless# you answered it no# knowing that 13 in fact what Dr* Wilson pointed out to you that you had 14 analyzed it* isn't that correct#- sir? 15 A The response went in denying that, I cannot 16 recollect exactly why* Perhaps Dr. Wilson was incorrect and we 17 had not* Perhaps it was a different product* X don't know* 18 Perhaps there w a s a mistake made* I don't remember* 19 Q Hr* Park# as I advised youalready, we have 20 exhibits in evidence that shows that you requested in 1978 to 21 analyze for dioxins# and you did. They're in evidence* Thatvs 22 exactly what Dr. Wilson is telling you# But nevertheless -- 23 .A.. ' Yes* 24 Q -- having those facts you denied the truth of the statement, didn't you# sir? 1 A Dr* Wilson was one of a number of people who 2 participated in this* 3 Q Excuse me. Mr* Park that isn't what I'm asking* 4 A I understand* 5 Q Nevertheless, having knowledge of those facts, 6 people can't overruled facts* 7 8 A These are statements coming from Dr* Wilson* Q Those facts, he told you were facts, and they 9 were indeed facts, but yet you denied the truth of them, didn't 10 you, sir? 11 ME* MUSGRAVEi Objection, it's contrary to the 12 evidence, your Honor, as to what the facts were* it's 1378 13 OOP crude was analyzed, not the CP* H THE COURT* Objection is overruled* 15 Q (By Mr. Carr) Would you answer the question* 16 A I'd have to say no, Mr* Carr* 17 Q All right* On the -- I think we were to -- you 18 denied that the chemical in number 33, you denied that the 19 20 chemical spill -v* you denied the truth of the fact that the 21 newspaper article attached there was fully identifying it* You 22 denied all those matters from 33 down through 41 all together, 23 didn't you? 24 A yes* This was a procedural thing, Mr* Carr. It 1 was felt that was not relevant to the OSHA proceeding, we 2 objected to it and since it was felt that we either had to 3 admit or deny it we denied it* Q Well at least here you give the reason for the 4 5 denial don't you, sir? 6 A Yes.* 7 Q You're letting them know that you are denying it 8 on technical grounds wherein in these other instances of 9 denial you didn't let them know that you were denying on 10 technical grounds did you sir? 11 A I guess we felt it would be understood.-- 12 Q Excseme Wiuld youanswer that question*. 13 A we just denied it* 14 q And you didn't let them know that you were denyis 15 on technical interpretation of these various irords, did you 16 sir? 17 MR* MUSGRAVEt Well I object to that* That's 18 contrary to what the answer says* The objection says that the 19 basis for it is immaterial and irrelevant not some technical 20 basis Mr* Carr* That's a mispresentation of what the 21 document says* 22 Q (By Mr. Carr) Could you answer my question, 23 please. 24 t h e c o u r t * The objection is overruled* 1 THE WITNESS! We didn't state we were -- * we just 2 denied them, Mr* Carr* 3 Q (By Mr. Carr) And you didn't give any reason 4 for denying, did you? 5 A No, that's correct. 6 Q As you did give a reason for denying 33 through 7 41, didn't you? 8 A 'yes*. 9 Q Now, directing your attention to number 42a end 10 b, you deny 42 a and b, don't you, sir? 42 says,"Prior to 11 OSHA*s February 7, 1979 inspection, Respondent's employees in 12 the areas of its w*G. Krummrich Plant where chlorinated phenols 13 were manufactured, handled, or stored were not advised of the 14 hazards of dioxin contamination.** You denied that, didn't you, 15 sir? 16 yes. 17 Q By denying that, you mean to say that they were 18 advised of the hasards of dioxin contamination, don't you, sir? 19 A Yes. 20 Q Now, did you ever see a document or a memorandum 21 of any sort dated before February the 7th, 1979 which any 22 employee was advised at any time that they were handling 23 dioxin, other than the laboratory employees, and of the hazards 24 associated with dioxin handling, other than the laboratory 1 employees? 2 A Mr* Carr# 1 cannot recall with great specificity# 3 but X believe that some employees in the pentachlorophenol 4 operation would have been advised eoncering chloracne* This 5 would have been in writing and I think that there were verbal* 6 Q you think that? 7 A Tee* 8 Q But my question did youever see any memo# any 9 writing# any document* 10 A I think there was some writing on the chloracne. 11 Q In the pentachlorophenoldepartment? 12 A Yes* 13 Q That writing was dated December of *79. The only 14 hazard they were told that was possible was chloracne* There 15 was some reversible liver changes is what they said* That*s 16 the only document that Dr* Roush could find# according to his 17 testimony# in which employees were told of the hazards# or 18 possible hazards of dioxin contamination* Do you have any 19 knowledge of anything else# other than that? 20 A Not specifically. I just -- I think -- 21 Q Well# you think. 22 A Yeah# uh-huh* 23 Q Now question number 46,would you look at that# 24 I- ' 1 2 A Q In number 46 they ask you to admit that, quote, 3 During the manufacturing process of certain chlorinated phenols 4 produced at Respondent's W.G. Krummrich Plant the following 5 contaminants are potentially presents (a) dioxin# (b) TCDD, 6 and (c) 2,3,7,8 TCDD, do they not# sir? 7 A . yes*. 8 Q And you deny the truth of that# don't you? 9 A Yes. 10 Q Now you do know that dioxins were present in k. :V 11 those -- found in the manufacturing process of these chlorinated 12 . phenols# don't you# sir? 13 a Hot personally. I assume that there are documents 14 here that might so indicate* P E:Nn gG aA dD CcOo. . B A Y O NN E . N. J. 0 7 00 2 FORM IL 24 B : 15 Q Well# look at this dated 6/6/79 It talks about ; K i6 dioxin concentration# doesn't it# sir? And in parts per uo. 3 o 17 million# doesn't it, sir? And look at document 1135# there's o 2 18 all kinds of dioxins present under all these columns here# KoJ I n 19 dealing with dioxins# all eight dioxins are dealt with. There's O thousands and thousands of dioxins -- thousand parts per billion a. 21 of dioxins in your product# according to 1135# aren't there# 22 .. sir? 23 MR. MUSGRAVE* You want to show me which one says 24 that as far as a product# Mr. Carr, as a part of the process./'*-* 1 Q (By Hr. Carr) Would you answer the question# sit? 2 MR. MUSGRAVEt Object to Counsel's representation 3 of documents incorrectly# request that it be stricken from 4 the record as improper characterization of the evidence. 5 THE COURT) objection is overruled. You may 6 proceed, Mr* Carr. 7 Q (By Mr. Carr) You know this document, 1135# 8 refers not just to processing# but to products# not as Mr* 9 Musgrave thinks. 10 A I don't know that# Mr* Carr. 11 MR. MUSGRAVEi That's not what I said* Z said 12 X want the one that's got thousands of parts in a product# not 13 in a process stream. 14 THE COURT) Mr. Carr# go ahead with your question 15 /please.' 16 Q (By Mr. Carr) You do know that dioxins are 17 produced and have been found in your products# don't you# sirl' 18 A Which dioxin# Mr. Carr? 19 Q I don't care about dioxin, (a) is dioxin. It* s' 20 talking about all dioxins. 21 A Okay. 22 Q Any dioxin. You denied that# and yet you had 23 all the evidence# all the findings these products contained 24 dioxins. You don't have any question about that in your mind# 1 do you# sir? 2 A This item number 46 -- 3 Q 46(a) 4 A It's not totally correct, Mr. Carr. 5 Q Where is it incorrect? 6 A It's vague in some areas. 7 Q where is it incorrect, sir? 8 A All right. Certain chlorinated phenols. 9 Q Yes. Now certain chlorinated phenols were 10 included parachlorophenoi, Santophen, 2,4-Dichlorophenol, 11 orthochlorophen^lj isn't that correct, sir? 12 A NO. 13 Q That wasn't? 14 A No. 15 Q Those are not 16 A We are limited to this document* We're trying 17 to respond to it. The customary thing is then the complainant 18 would come bach with another document. 19 Q Mr* Part# please don't get off on that again. 20 They're ashing you for things outside the document. They're 21 wanting to know -- they're wanting you to tell them that it's 22 true. 23 A We can admit or deny. 24 0 Excuse me. You deny# and you're guilty of deceit 1 if ym deny something that you know to he the truth Sure# 2 youf2re capable of denying everything# as you did# But it1s 3 deceitful to do that# OSHA 4 A No# sir# not when it's incorrect# r 5 MR* CARRi It*s a speech, your Honor* Request 6 that it be stricken. Zt*s not a question. It*a an insinuation 7 and an attack on the witness. X ask that it be stricken and 8 the jury be instructed to disregard it. 9 THE COURTt It*s overruled. St was a proper 'X 10 question* 11 Q (By Mr. Carr) Mr* Park# X agree with you if it 12 is incorrect# you should deny it. But now I'm asking you# .sir# 13 where is it incorrect that certain of your chlorinated 14 phenols contain dioxin as aeontaiainant? 15 A Okay* The vague the places where the statement 16 is-unclear 17 Q No# let's say where it's incorrect. 18 A X said it's not a totally correct statement. 19 Q Okay. Where isn't it totally correct that certain 20 chlorinated phenols produced at the Krummrich Plant had dioxins' 21 A we had no way of knowing what the writer meant 22 when he said certain chlorinated phenols. For example -- * 23 Q You don't know what the word "chlorinated phenol" 24 means? . A We didn't know what he meant when he wrote that* 1 If he had put down a specific process, or a specific product 2 3 perhaps, that might have been different. But he didn't. He said certain chlorinated phenols, 4 5 Q Certain chlorinated phenols included all, doesn't 6 it, air? 7 A HO, 8 Q So if you have chlorinatedphenols that have 9 dioxins, that's what he's talking about, isn't he,sir? 10 A I don't think so, 11 Q What do you think he'stalking about if he's not 12 talking about chlorinated phenols? 13 A I guess the group with the advice of counsel 14 concluded that this was ambiguous and# therefore, should be 15 denied at this time. The same is true *** 16 . Q How can it be ambiguous? Look at number 32, You 17 admit that you're aware of spills of chlorinated phenols 18 manufactured there. You admit number 32, and they used the 19 word "chlorinated phenols," 20 A Well, the word "certain chlorinated phenols" 21 raises the question* 22 Q So the word "certain," So now it's not "Chlorinat 23 phenols," it's the word "certain," 24 A Chlorinatedphenols, 1 Q Weren't certain chlorinated phenols, didn't they 2 contain dioxins? 3 A Then the terns *-- 4 Q Excuse me. Didn't certain chlorinated phenols 5 contain dioxins? 6 A for purposes of this, we denied that* 7 Q Excuse me* I know you denied it. Youre telling 8 me what you did* I 'm asking you didn't certain chlorinated* 9 A I don't know that* 10 q You don't Knox that* Aren't these chlorinated 11 phenols that are shown here in Exhibit 1249-A? 12 A is that, what, penta chlorinated phenol? 13 . Q . -PCP, 2,4-Dechloropftenol, aren't they chlorinated 14 phenbis?' 15 A Yes* 16 - 0 And don't they contain dioxins according to this \ 17 exhibit? 18 A ; Yes, they appear to. 19 t h e COURTt I didn't hear that answer* 20 THE WITNESS* Yes, they appear to* 21 THE c o u r t s Could you please try to keep your 22 m i c e up# 23 THE WITNESSi Yes* 24 THE COURT* .Thank you* 1 Q (By Mr. Carr) You denied it here* didn't you* sir 2 A For purposes of this document* yes. 3 Q Knowing it to be the truth? 4 A NO. .5- Q where is it untrue* sir? What part of it is 6 untrue? - 7 A The statement was vague* 8 Q what part of it is untrue* sir? 9 a l*m telling you that the statement in our opinion 10 was not sufficiently* totally correct* as to warrant -- 11 G What part of it is incorrect? 12 A -- an acceptance* 13 Q What part of it is incorrect? 14 A Certain chlorinated phenols Is vague* 15 Q 16 vague* we went through that already* sir* 17 A We concluded that it was. 18 Q Sir? 19 A tie concluded that it was at the time* 20 q n o * what you said was we're going to deny that 21 and we'll do that by saying that chlorinated phenol is vague* 22 But you use the words chlorinated phenols throughout your 23 documents all the time* don't you* sir? 24 . -A , No. Q Look at this document tight here# chlorinated phenol. That's chlorinated phenol. Chlorophenol, chlorinated phenol* They're synonymous# aren't they# sir? There's no vagueness about that* You use that word. They use that word. What else are they going to -- MR, MUSGRAVE* Object to the question. It's got multiple parts. Request that it be stricken. t h e COURT* Objection is overruled. q (By Mr. Carr) What about the next one# TCDD# there's no question that you knew that there were TCDD's presert inyour chlorinated phenols, in certain of them. A Mot all of them. Q No, it doesn't say all of them# does it# sir? It says certain of them. There's no question it is. You knew that. A if we *"* ; Q Excuse me, Mr. Park# would you answer that question* A I have to answer no# then, Mr. Carr. Q You didn't know it? A Mot the way you phrased the question. q The person that works for Monsanto# that prepared these documents# t135# do you reckin that he knew it? A I have no idea what he knew# Mr. Carr* Q Well you do have an idea because you've seen 1 the document* You've seen 1135 and it shows chlorinated pheno; 2 and it shows the tetras# and it shows the dioxins# so he knew 3 it# didA't he# sir? 4 A I can see the document. 5 Q And he knew it# didn't he# sir? 6 A I guess the person that prepared the document kne1 7 what he put on the document. 8 Q And he knew that there was dioxin and TCDD's in t 9 chlorinated phenols# didn't he# sir? 10 A Maybe not for this purpose# Mr. Carr. 11 a How can you have truth for one purpose and a lie 12 for another# Mr. Park? Could you explain that to me? 13 MR.MUSGJRAVEs Object to the question# improper 14 .question* 15 Q (By Mr* Carr) The truth is the truth is the 16 truth* 17 THE COURTi The objection is overruled. 18 TUB WITNESS; I've been trying to explain why 19 you're limited to this document, Mr. Carr* 20 Q (By Mr* Carr) I've been listening to your 21 22 explanation# Mr* Park# so far I haven't seen any reason# nor do you# I submit to you# why you would deny the truth of the 23 statement that dioxins and TCDD's and 2#3#7,3 TCDD are 24 1 potentially present in your chlorinated phenols? 2 A Because all TCDD's were not present, and that tern 3 was defined, it certainly could be taken to be defined earlier 4 to include all of the isomers in TCDD. 5 Q How on earth could you get that? 6 A This is too vague to accept " 7 Q Too vague? 8 A Yes 9 Q These are words that you yourself used in document; 10 everyday, and we discussed those the last -- 11 A Hot in that context, wedon't, Mr* Carr 12 Q we discussed those the last time you were here* 13 All your chemists use these terms, your executives use these 14 terms# scientists write scientific articles using these terms* 15 We've got lots of them in evidence Every witness that's come 16 on the stand here has used these terms How# Mr. Park, how car 17 you as an attorney sit down there and say that terms that 18 scientists use, that the doctors use, and the chemists use to 19 describe certain things are vague? where do you in the law 20 get that right to say these words that the scientists use 21 are vague? Can you tell me that# sir? 22 A Yes# because they're used by someone else here 23 Q They're used by someone else? 24 A "es* Hot by your scientists* Q And you don't consider that the person that prepared this wan asking questions of the people that he thought were scientists# he thought he was addressing questions to scientists, didn't he, sir? A Mr* Carr# the person that asked me these questions were several very capable attorneys with OSHA, They would take ewer omission that we made.here and use it against us* Q indeed they would* A so we had to be careful# and be accurate in the way we responded* Q Exactly right, and that is the point, sir. What you had to do# Mr* Park, because OSHA has the responsibility for the safety and health of your workers#doesn't it# sir? That's the only responsibility# isn't that right# sir? A I would say that Monsanto is primarily responsible * Q I'm talking about OSHA* it has its sole functio# it's sole obligation is to protect the health and safety of the workers that work throughout the United States* a /That's correct* Q Not just at Monsantoi isn't that correct? A That's correct* Q They're not in it to make money# they're not in it ij; : flsiyiv o f . make a profit or to make a product. They 24 hawe one function, and one function only, that's to protect the 133 1 workers* isn't that correct* air? 2 A The Occupational Safety and Health Administration, 3 yes, sir# 4 Q And when they submitted these questions to you, 5 these requests to admit# they were attempting to perform their ) 6 sole function, that is to protect the health and safety of 7 your workers# weren't they# sir? 8 A well# these were department of Labor attorneys# 9 to be specific# Mr* Carr* 10 Q And they were working for OSHA. It was their job, 11 their sole job in this instance to protect the health and 12 safety of your workers? isn't that correct, sir? 13 A They were representing OSHA with respect to 14 some citatiohs which had been issued* 15 Q For the purpose of protecting the health and 16 safety of your workers) isn't that correct# sir? 17 A res*' 18 Q And in that regard# in that respect# they asked 19 certain questions of you so that they can present the evidence 20 to a hearing board and determine whether or not you are 21 properly protecting the health and safety of your workers? 22 is that correct# sir? 23 A Not totally# Mr* Carr* 24 Q That is their function* That was thefunction anc the sole and only function that they have; isn't that right 1 2 sir? A No, Mr. Carr. 3 Q Wbatother function do they have other than 4 protecting the health and safety of the workers? 5 6 A That wasn't the question you asked, Mr. Carr. 7 Q That was exactly the question I asked. 8 A No, it wasn't. Q In what they were doing here, they were executing 9 10 the mandate given them by Congress, signed by the President, 11 it's their job to go out into the plant and discover areas 12 where the health and safety of the workers might be jeapordlzec isn't that correct, Mr. Park? 13 A OSHA inspectors do that -- 14 f 15 Q Isn't that their job, sir? 16 A you're switehinfT-1' I'm trying to follow you --. 17 from attorneys with the Department of Labor, now to o s h a 18 inspectors. 19 Q They're different. The entire OSHA personnel, 20 from lawyers to investigators, to scientists. They have one 21 job and one job only, that is to protect the health and safety 22 of the workers; isn't that correct, sir? 23 MR. MDSGRAVSt He's now arguing with the witness. 24 The witness already answered the question. He's now arguing 1 with the witness* 2 THE COURTS Objection is overruled. 3 THE WITNESS* The function of the agency is to 4 protect the health of workers. 5 Q (By Mr. Carr) And the way that agency functions 6 is through its employees, through its lawyers, through its 7 scientists, through its investigators, through its inspectors* 8 isn't that correct, sir? Through the secretaries, through 9 their scientists. 10 A Yes. 11 Q Through their nurses. 12 A To be accurate, OSHA, I believe, does not -- it 13 uses Department of Labor attorneys, 14 Q And those attorneys, when they're representing 15 OSHA are performing the Congressional mandate of protecting the 16 health and safety of workers, aren't they, sir? 17 A They're supporting OSHA. 18 THE COURT* I didn't hear your answer. I'm sorry 19 ^ THE WITNESS* They are supporting OSHAon its 20 function. The lawyers are supporting OSHA in its function. 21 Q (By Mr. Carr) Mr. Park, there are thousands and 22 thousands of employers in this country, aren't there, sir? 23 A Yes. 24 Q And OSHA is a finite, that is a limited -- there U 1 are limits to their manpower limits to their lawyers aren't 2 there sir? 3 A High limits yes* 4 Q And you in the manufacturing end, you are aware 5 of the fact that if you make it difficult enough for OSHA and 6 its1 attorneys to prove their ease, if you will deny elementary 7 things that they will have to go in and do a lot of things, 8 subpoena records do as we did, dig out these things from thes^ 9 records if you don't admit those things, you know that you 10 can make it so difficult that they will withdraw their complain 11 and spend their manpower more efficiently on other things. 12 You know that, don't you Mr. Park? 13 MR. MUSGRAVE* objection. That calls for specula*' 14 tion, conjecture, improper guestio. 15 t h e c o u r t : Objection is overruled. 16 THE WITNESS: Ho, I don't, Mr. Carr. 17 Q (By Mr. Carr) You don't know that, Mr* Park? 18 You don't know that if you -- if you admitted the truth of 19 those things, the things that you know to be true, then they 20 don't have to prove it do they sir? If you admit the truth 2) of it. 22 A what things, Mr. Carr? 23 Q The things that they requested that you admit to 24 1 A It*a not clear what they requested. 2 Q Would you direct the witness to answer my question' THE COURT* Mr. Park you have to answer the 3 question 4 THE WITNESSi I have to answer no then to the way 5 6 you phrased it, Mr. Carr. 7 Q (By Mr. Carr) They have to prove it, if you don't 8 admit the truth of it, sir. The whole idea, isn't it, Mr Park, of a Bequest to Admit a fact is so it need not be proven? 9 10 A Mr. Carr, OSHA's lawyers normally rely on their 11 inspectors 12 Q Isn't that the whole idea, sir? 13 A Yes, That's contrary to general experience. Q Excuse me. what is the purpose of a Bequest to 14 Admit a fact, sir? 15 A It's to avoid heing required to prove it in a 16 court. 17 Q Isn't that exactly what I asked you, sir? 18 19 A No, I think you phrased it different, Mr. Carr 20 Q It's to avoid to prove it* They don' t have to 21 prove it if you admit it) isn't that right, sir? 22 A That's right. 23 q But if you deny it, they then have to prove it, 24 ^den't they, sir? 1 h That'scorrect* 2 Q An<3 to prove it, they have to go into your plant, 3 they have to get records, they have to subpoena your records, 4 they have to analyse your records, they have to spend the 5 months as we have spent here, they have to cross examine 6 witnesses at length, witnesses like yourself, witnesses like Dr* Wilson, witnesses like Dr* Roush, who deny these things, 7 who take that position, that's what they have to do, if you 8 deny those things, they have to prove them, then, don't they, 9 10 sir? If A not at all, Mr* Carr. 12 Q They don't have to prove them? 13 A No, Mr* Carr* no* This was highly unusual **** 14. Q Then how do they get * decision against you, if 15 'they.-don't prove them? 16 A This isn't -- most of what's covered in these 17 requests for admissions is not even part of the OSHA regulatio 18 All they have to do is 19 Q My question, Mr* Park -- . 20 A -- is to go in and prove that there was some 21 Violation of a standard* 22 Q My question, Mr. Park, if you don't admit it, 23 they have to prove it* don't they, sir? 24 a . yes* 1 Q And to prove it they then have to subpoena the 2 records, dbn*t they, sir? 3 A NO. 4 Q How do they prove it without subpoenaing the 5 records? 6 A Prove violation? They show, say, a concentration 7 level of some chemical is above OSHA limitation in the work 8 place* That's how they do it. No subpoenaing of records at 9 all. 10 Q In order to fine Monsanto, how do they prove 11 that Monsanto knew these things and make a wilful violation? 12 It's a wilful violation that they're trying to prove on you, 13 isn't it, Mr* Park? 14 A Which violation are you -*~ 15 Q Mr. Park, you were cited not for an accidental 16 violation of the OSHA regulations, but for the deliberate wil 17 ful violation. 18 MR. MUSGRAVEt Object, your Honor, the reference 19 to allegations* That's totally improper. Request that it be 20 stricken, and the jury instructed to disregard it, and Counsel 21 admonished and instructed to refrain from referring to unproved 22 unsubstantiated allegations that were withdrawn* 23 THE COURT: Objection is overruled. It is a 24 proper question* It is a proper area of inquiry. 1 mean Monsanto, characterised it on page four of your summary 2 of the citations, the citation is in evidence, but I don't 3 have the number in front of me right now. Do they not categor* 4 ire it as wilful and serious, sir? 5 A This is what is said. 6 g- And to prove something is wilful, you know as an 7 attorney# Mr. Park, that you have to prove that you had know 8 ledge, don't you, sir? 9 A l would suppose so. 10 Q And by denying that you had knowledge of these 11 things, that is that dioxin comes along with making# or poten 12 tially comes along with your chlorinated phenols, just as it 13 has been denied in this case, you seek to avoid being found 14 guilty on the wilful charge# don't you? IS h We're not seeking to avoid a fust charge, Mr. 16 Carr* We're trying to avoid an improper one* 17 q By denying the truth of things that you know to 18 be a fact you're setting yourself upaas the judge of whether 19 or not it's a just charge when there are other persons that ar 20 given that obligation, aren't you, air? 21 A NO. 22 G Well, in any event, you know to prove wilful 23 they've got tw go into your records and prove what you knew 24 at a.'point in. timet- 'isn't that correct, sir? 1 A But -- 2 Q isn't that correct# Hr. Park? A . No. 3 Q Mr. Park# just as in this case, we are suing 4 5 Monsanto for punitive damages, the whole 6 -- 4 months have 6 been spent now putting in evidence on punitive damages trying to prove that you had knowledge that dioxin was there# and tha 7 8 you did nothing about it. You did not tell your customers* 9 You didn't tell the people at Sturgeon. You didn't tell your 10 workers. Just as o s h a charged *'-* 11 MR. MUSGRAVEi Object to the speech and request 12 that it be stricken, your Honor. It has nothing to dO with 13 this questioning* Request that the Jury be instructed to 14 disregard it* 15 Til COURT* The objection is overruled. It's a 16 proper analogy. >. 17 Q (By Mr* Carr) Mr. Park# to finish my question# IS you are aware of the fact that there were wilful charges# 19 where knowledge has to be proven in the OSHA citations just as 20 you are aware of the fact that there are wilful charges in thi 21 case requiring that we prove knowledge that you had; isn't 22 that correct# sir? f 23 A I'm really not familiar with the proceedings in 24 this case# Mr. Carr* Q You're not aware of the fact that we are suing for punitive damages? A I think I'm aware of that* 0 And a wilful charge is brought for the -- and under OSHA is brought for the purpose of punishing you; isn't that correct? isn't that what they're trying to do, punish you for your violations, for your wilful violations of the law? A Any charge under OSHA is punishment for violation* Q There's different punishments for deliberate, intentional violations, wilful violations, and for accidental violations, where wilful isn't a part of itj isn't that correct, sir? A The term wilful is just not used that much, Mr* Garr. It's serious and non-serious. Q Excuse me* Could you answer my question, sir* A I'm not sure, Mr* Garr. Q Well, you've used the word, your documents use the word "wilful", didn't they, sir? A Mr.Aley used it. Q Yes* And you got no punishment in thatinstance, did you, sir? A No, we did not. There was no violation* Q Because they withdrew the case, didn't they, sir? 14< A "..Yes* they did# 1 2 Q They didn't subpoena your records as we did in this ease# did they# sis? 3 4 A "89. 5 0 They didn't take depositions of important execute 6 and chemists and scientists and Dr. Wilson to prove the presen 7 of dioxin # did they# sif? 8 h m. 9 Q Mr. Park, you even denied in this request questioi 10 number 54# didn't you, sir# where they asked you whether or no^ 11 an industrial accident involving chlorinated phenols occurred 12 at Respondent's plant in witro# west Virginia* You even 13 denied that# didn't you# sir? ' 14 "A'-' ' 'Yes* . 15 ;Q Sir? I didn't hear your answer* 16 A Yes. The answer is yes. 17 Q And you know that it did involve -- that there 18 was an industrial accident involving chlorinated phenols# 19 didn't you# sir? 20 A I recall there was an industrial accident* 1 21 would have to question the term "chlorinated phenols'1. I'm 22 trying to recollect why this would have been denied, it must 23 have -been.' 24 Q : Well# look at Exhibit 1543, look at the P.S. that 1 Dr. Wilsn puts on there with regard to question 54, that it 2 involved 2,4,5-Trichlorophenol processed as stated. We've 3 had studies done by Dr. Suskind in which he describes it as a 4 Trichlorophenal accident. 5 A Wilson says, "I think that accident -- " 6 Q We know because we've seen the documents. 7 A Okay. 8 Q It was a Trichlorophenol process, and the process 9 for making Trichlorophenol, they're going to go on and make 10 it on the 2,4,5-T, another product. Wilson tells you that, 11 and you knew that, and yet you denied it; isn't that correct, 12 sir? 13 A I would have to -- the way you phrase it, I would 14 have t answer no, Mr. Carr. 15 Q You didn't deny it, or you didn't know it? 16 A I didn't know it, sir. 17 Q Sir? 18 . A I would have to say that to the best of my 1? recollection, I am not in the position to say that I did know 20 that, no. There were others involved here -- 21 Q I'm not talking about whether you knew it. I'm 22 asking abbut Monsanto knew that they were making 2,4,5-TrichoL 23 phenol in the accident of 1949. 24 A Mr. Carr, I'm assuming that if Monsanto had known 1 that the correct response to 54 was different, we would have 2 answered it differently* 3 Q Wilson told you it was different. A 1 have to assume it was answered correctly. 4 5 Wilson told you in 1548 that it was -- 6 , A There were others than Wilson who provided infor mation that went into the response here. 7 8 Q Well, what other information was there, sir? A I cannot remember at this time. 9 10 MR. CARR: I have no further questions of this 11 witness, your Honor. 12 THE COURT* Mr. Musgrave. MR. MUSGRAVE* Thank you, your Honor. 13 14 CLARIFICATION EXAMINATION 15 BY MR. MUSGRAVE* 16 \ Q Mr. Park, while we're on this very question, with 17 regard to the Nitro questions that were asked, in these 18 Requests for Admissions, and the responses that were given -- 19 20 ME. CARR* One moment. Did I offer 1549? It 21 needs to be offered into evidence. 22 THE COURT: 1549? 23 MR. CARR* 1549 and 1548. 24 THE COURT* No. 1549. 1548 has been admitted 1 oyer objection. 2 MR. CARR* 1549 I'd like to offer. MR. MSGRAVE* The same objection as to 1548. 3 THE COURTt 1*11 incorporate them. 1549 is 4 S admitted over objection. 6 Q (By-Mr. Musgravef Mr. Patkf as I was about to ask you, with regard to this question that Mr. Carr was just 7 8 questioning you on, I*d also like to refer you to admission number -- well, Request for Admission number 50 up there. Do 9 10 you see that one? H . .A;, : Yes. . 12 Q And ask you if 2,4,5-^T is a chlorinated phenol, 13 and that was denied. 14 a Yes. 15 Q And do you know why that was denied? 16 A I assume because it*s not fully correct. 17 Q 2,4,5-T is not 2,4,5-TCP, trichlorphenol, 2,4,5 is is 2,4 trichlorophenioxla acetic acid. Do you know whether 19 what's commonly referred to as 2,4,5-T, the herbicide -- 20 A I believe that that is correct. 21 Q So 2,4,5-T, that is trichlorophenioxla acetic 22 acid, is not a chlorinated phenol, and that was denied for 23 that reason? 24 A Yes. ; 1 .Q:' Now do you know ~ 2 MR. CARR: Are you leading the witness, there. 3 Counsel? They didn't ask about 2,4,5-Trichlorophenol, they :4 asked about chlorinated phenols which is 2,4 trichlorophenol 5 Aren't you aware of the fact that the accident did not involve 6 :2,4,5-T? 7 MR. m u s g r a v e : I'm referring to question SO, 8 Mr. Cair, which is 2,4,5-T -- 9 MR. CARR: The denial of that would be proper. 10 MR. MUSGRAVE: That's fine, sir. Thank you. 11 MR. CARR: But 54, to deny that is not proper* 12 MR. MUSGRAVE: Mr* Carr, I haven't asked a 13 guestlon yet on that. Do you want to wait? 14 MR. CARR: Well, sure, go ahead* 15 MR. MUSGRAVE: Well, thank you, sir. 16 Q (By Mr. Musgrave) Now, with regard to 54, 2,4-TC^ 17 2,4,5-Trichlorophenol is a chlorophenol to your knowledge? 18 A ' 2,4,5-T? ' . 19 ; Q . 2,4,5-TCP. 20 A 2,4,5-Trichlorophenol? 21 Q As opposed to 2,4,5-T. 22 A I would think 2,4,5-TCP would be --- 23 Q A chlorophenol? 24 A chiorophenol. Q And is 2,4,5-TCP involved in the making f 2,4#5-1 1 phenoxia herbicide? 2 A I'm sorry, I just don't knew. 3 Q You don't know* Do you know whether any other 4 chlorinated phenols are involved in the making of 2,4,5-T? S A NO. 6 Q This question 54, does it not state, sir -- 7 MR. CARR* Object to the leading form of the 8 question. 9 THE COURT* Objection is sustained. 10 MR. MUSGRAVE* l*m simply asking him if it doesn* : 11 state something* 12 THE COURT* You*11 have to rephrase it. 13 Q (By Mr. Musgrave) Let me ask you whether or not 14 question 54 reads as follows -- is that right? 15 MR, c a r r * Sure* 16 Q (By Mr. Musgrave) "In 1949, an industrial acciden 17 involving chlorinated phenols occurred at Respondents Nitro, 18 Nest Virginia plant." 19 A Yes, it d^es* 20 Q Is the phenolsplural there, sir? 21 A Yes. 22 Q Now with regard totheseRequests for Admissions, 23 these were served upon you by the attorneys representing the 24 1 Occupational Safety and Health -- or actually I guess repre 2 senting the Secretary of Labori is that correct -- 3 A That's correct. 4 Q -- of the united States? 5 A Yes. 6 Q Who was representing essentially the OSHAj is the 7 correct? 8 A Yes, 9 Q And each question they ashed you stated something 10 about if any part of it was not true# you would not admit it. 11 A Yes. 12 Q Is that correct? 13 A That's correct. 14 Q And why was that# sir? 15 A As our counsel whom we retained because of his 16 extensive experience in OSHA matters advised us this is the 17 common practice in pleading of cases which go before the 18 Review Commission# that when Requests for Admissions are 19 submitted# if they are not totally correct, they're denied. 20 And then the obligation goes back to the other party to 21 rephrase them# resubmit them if he so elects# or whatever. 22 Q This is a proceeding where OSHA is attempting -- 23 MR. CARRt Object to the leading form of the 24 question. 1 THE COURT* Obimtion is sustainedt 2 Q (By Mr Musgrave) Is this a proceeding where OSHJ 3 is attesting to establish a violation of an OSHA regulation 4 and post a fine? 5 A Yes# 6 Q Is that what that was? 7 A Yes 8 Q And in connection with that, if they use a vague 9 terra, which you consider a vague terra, do you have any way in 10 reading this document of knowing What they mean by a terra that 11 you consider vague? 12 A There's no way we could know what they meant* 13 Q If you were to admit to a terra that you thought 14 had one meaning and they thought had another meaning, could 15 that have any adverse consequences in this proceeding? 16 A It certainly could* 17 Q And in an improper fashion? 18 A Yes. 19 Q Where you might admit something that really you 20 didn't have any intention of admitting because it wasn't true? 21 A That's correct* 22 Q Now, Nr* Park, as opposed to the use of language 23 in these documents, and these are lawyers, are they, sir, 24 that prepared this document? 1 A Yes* indeed* 2 Q And knew of how Requests for Admissions should 3 be formed to get appropriate answers? 4 A Yes# 5 Q But as opposed to the use of a document in 6 type of a proceeding, that1s attempting to asert violation of 7 an OSHA regulation and a penalty# as opposed to language used 8 in this type of document* Mr# Carr referred you to these 9 documents here* that are ~~ are these documents that are going V 10 from one Monsanto employee to another Monsanto employee? 11 A Generally, yes. 12 Q Where the use of terms might be something that 13 they both Know what they're talking about? 14 A Yes. 15 Q go if Monsanto analytical chemists were to use 16 the term dioxin in connection with the chlorophenol analysis 17 in talking to another analytical chemist, do you suppose that 18 that other analytical chemist with Monsanto might understand 19 what he means by the term "dioxin"? 20 'A Yes. 21 Q But on the other hand, sir, if dioxin is in fact 22 a term that other people could use to mean not only tetra-* 23 chlorodibenzo-para-dioxin, but nitrated dioxins do you take 24 a chance as to what GSBA might really be saying with these 1 attorneys when they say dioxin that they're saying the same ,2 thing you are# or do you deny it? 3 A No# we have to he more specific 4 Q And# Hr. Park# this problem that Mr. Carr aludes 5 to about how or suggested to you that OSHA withdrew this 6 complaint because we denied these questions did he suggest 7 that to you#sir? 8 A I-- 9 Q Xs that what you understood him to suggest? 10 A X think at one point he did. 11 Q And because they didn't have enough manpower# 12 something like that# he talked about not having manpower# or 13 didn't have enough help to do this. 14 A Resources. 15 Q How many lawyers names appear on these Requests 16 for Admissions? 17 A There are five lawyers names. Three lawyers were 18 working very actively on the matter. 19 Q They've got Clauss# the Solicitor of Labor# whose 20 name appears on this pleading* Herman Grant# the Regional 2J Solicitor# whose name appears on this pleading# Steven E. 22 Walanka# an attorney# whose name appears on this pleading on 23 behalf of the plaintiff in this case# OSHA# dames L. Bowers# 24/ another attorney# and then Gerald c. moton. They've got five 1 lawyers whose names appear on here* And you say three that 2 you're aware of that were actively working on it. 3 A Yes* 4 Q Is that right? 5 A That's correct* The last three were quite active 6 in working on this case* 7 Q And when you first started working on this matter 8 were you handling it by yourself? 9 A Yes* 10 Q And did you yourself hire this outside counsel* 11 Mr* Pellegrini; is that correct? 12 A Yes* I did* 13 Q And why was that* sir? 14 A When I learned that three capable attorneys were 15 representing OSHA in this matter* I figured that I should 16 bring -- retain someone who really was more familiar with the 17 OSHA practice than I was* 18 Q And you hired Mr* Pellegrini? 19 A Yes. 20 Q And the first thing that happened was the filing 21 of this Request for Admissions by these OSHA attorneys? 22 A That came pretty early* yes* 23 Q And youresponded to these? 24 A Yes. 1 Q And Mr. Carr has gone over that with you* is that 2 right? 3 A Yea. 4 Q And one o the responses in here that Mr. Carr 5 asked you about did deal with the sample in question that 6 QSHA said their inspectors had found and analyzed and had 7 found a level of TCDDj isn't that correct? 8 A Yes, 1 believe. 9 X believe it's number 40, isn't it, sir? 10 A -Yes. 1 11 q Number 40 does it not read as followst "Respondent 12 analyzed the chemical referred to in Request No* 33 for the 13 presence of dioxini (a) prior to the cleanup of the spill, 14 (b) subsequent to the cleanup of the spill. 11 Is that how 15 it reads? 16 A Yes, that relates to the sturgeon spill* 17 Q All right. The chemical referred to in Request 18 number 33 is the sturgeon spill* Allright* I 've got the 19 wrong one here* which one is it that X wanted to refer you 20 to? 21 A Number 20* 22 Q Okay* Thank you. Yes. Number 25, does it not 23 read as follows "Respondent's analysis referred to in Request 24 No. 24 disclosed the presence of dioxins" and you answered (h)< 1 with respect to Request Ho 24(b)" that there was a trace 2 amount? is that correct? A Let's see, we're at 24(b)? 3 Q Yes. Let's go back to Request number 20. Request 4 number 20 talks about a spill occurring on February 21, 1979? 5 is that correct? 6 ^ A That's correct. 7 Q A tank car in thevicinity ofDepartments 236 8 9 and 236 and 237. 10 A Yes. Q And then Number 24 asks if Monsantoanalysed 11 12 the chemical referred to in number 20, the one we just talked i about. 13 -A Yes. 14 Q And we answered that we did,subsequent tothe 15 16 clean-up. A ' Yes. 17 G And then 25 says with regard to that analysis, 18 19 subsequent to the clean-up, did it disclose the presence of 20 dioxin. 21 A Yes* * 22 Q And we said itdid in a trace amount;isn't that 23 correct? 24 A ` Yes.> 1 Q One of th violations or alleged violations that 2 OSHA was pursuing was that this spill material contained 3 sufficient quantities of contaminants that were potentially 4 harmful to the workers 5 A I can't remember the exact citations wording, 6 Q And in response to these a d m i s s i o n s w e told them 7 that we had found a trace level is that right? 8 A ; YSS* 9 Q And this was one of the first things that happene 10 in this lawsuit? H A 'Yes- ; 12 Q Infact, did anything else happen in this 13 allegation brought by OSHA after you responded to these, after 14 you told them that our analysis had found a trace amount? 15 A well, there was some general things X remember* 16 There were conferences withthe OSHA lawyers The OSHA lawyers 17 I know reviewed with their personnel a number of matters 18 Q Did they request any samples of anything from you 19 A X can't recall any additional requests 20 Q hid they ask any interrogatories# written 21 questions that we had to write answers to? 22 ' A ' NO. 23 Q they take any 24 A No. 1 Q Did they ever say that they weren't doing it 2 because they didn't have a big enough work staff these five 3 lawyers? 4 A NO. 5 Q Did they ever say that they weren't pursuing this 6 matter because they were violating the very duty that Mr Carr 7 says they have to protect the health of workers? 8 A No. 9 Q That they were going to ignore that and not 10 pursue this matter? 11 A No. 12 Q Did they ever saythat toyou? 13 A No. 14 Q Did they evergive you the results of their 15 16 A No. 17 Q Of this spill material? Sir did they? 18 A I can't remember with clarity but I don't *-- . 19 I'm sorry just don't remember whether we received any or 20 not. 21 Q Don't you think sir if they felt they had a 22 case a sample of this spilled material they claimed they 23 had it they put it in the paper don't you think if they 24 thought they had a cade that they had a violation of OSHA 1 don't you think that they would have pursued it? 2 A Yes* 3 Q Has Mr Carr showed you one piece of evidence 4 to suggest that they wouldn't have? 5 A No. 6 Q That these givegentlemen arejustfair-do-well 7 lawyers# that don't care about doing their job, and their 8 responsibility in following up? 9 A NO. 10 Q Or don'thave the timebecause they're playing 11 golf? 12 A Right. 13 Q Did he tell you that he's brought one piece of 14 evidence in this courtroom to substantiate that suggestion# si; 15 A No. 16 MR. CARR; Your Honor# I'm prone to interrupt# 17 Counsel has been going on for sometime. All of these questions 18 for the last two or three minutes have been leading and 19 suggestive# and argumentative# and I object to them# and ask 20 that Counsel not do it anymore. 21 THE COURTs They have been leading They haven't 22 been objected to up to this point# but you will have to 23 rephrase future questions. 24 Q (By Mr. Musgrave) Let's talk some more about 1 these requests, Mr. Park, just a bit. Referring you to 2 request 11, 12 and 13 that Mr. Carr asked you.about. You'll 3 recall he asked you about 12. 4 A Yes. 5 Q And why that was denied. 6 A Yes. 7 Q That the term tetrachlorodibenzo-p-dioxin, herein 8 after referred to as TCDD, refers to 22 potential isomers. 9 A Yes. 10 Q That was denied. 11 A Yes. 12 Q Now, the very next question uses the same term 13 that was in quote before, does it not? 14 A Yes. 15 Q TCDD? 16 A Yes. 17 Q Now in that question, that is request number 13* 18 does it refer to it there in as being 22 potential isomers?. 19 .A NO. 20 Q What d^es it refer to as TCDD, or TCDD -- 21 A As acompound. 22 q As acompound. 23 A Yes. 24 Q Used in the singular, a compound. 1 . A Yes. 2 Q And, sir, referring you to the one immediately 3 in front of that, request number 11, up there it refers to 75 * 4 that dioxin refers to 75 different compounds; is that right? 5 A That's correct. 6 Q Now, do you recall Mr. Carr asking you a question 7 about there being 75 isomers of chlorodibenzo-para-dioxins? 8 A I think there was a question along those lines. 9 Q He said some people say 75, some people say 72, 1 but 75 isomers has generally been talked about in this court 11 room. 12 A That's right. 13 Q Of the chlorodibenzo-para-dioxin? 14 A Yes * 15 Q Is that right? 16 A Yes* 17 G So up in 11 the OSHA lawyers are now referring 18 to dioxin as being 75 different compounds; is that right? 19 A That's what the statement says there. 20 Q And there are 75 isomers of chlorodibenzo-para- 21 dioxin, we just talked about that; isn't that right? 22 A Yes* 23 Q So these three questions put together, could they 24 did they create confusion as to just what the heck the governia wanted to k n % here? 1 A " Yes* 2 Q Or what they said they weresaying? 3 A Yes, they did. 4 Q In 12 they said TDD is 22 isomers, or 22 compounds 5 6 because they say that the isomers in 12 are different compounds} j don't they? 7 8 .A. ' '.Yes. .. Q Or up in 11, they say that they're different 9 compounds# and in 13 they're saying TCPD is a toxic compound; 10 11 isn't that right? 12 A That's correct. Q Toxicity, sir, is toyour way of thinking a 13 14 couple of grains of salt toxic if you eat it? A .NO. 15 16 Q If you eat a quart of salt, to your knowledge cotal|< 17 it be toxic? 18 A Yes* 19 Q Is there the same distinction to be made, sir, 20 in your mind when you're talking about toxicity of different 21 compounds, or toxicity of the same compounds, even 2 ,3,7,8, 22 one part per quatriilion as opposed to a glass of it? 23 A Yes, I think that applies to everything. 24 Q Did the government, and lawyers in any of these questions when they talked about toxicity, give you a level or 1 2 a dose that somebody was exposed to get -- A ' NO. 3 Q -- to have you determine whether it was toxic or 4 not? 5 6 ; a - no. Q And i f you would have answered 13 that TCDD is a 7 toxic compound in the affirmative, would that mean or could 8 that have been construed by the government lawyers that any 9 10 level of TCDD is toxic? 11 A X think it could have. 12 Q Did that have anything to do, sir, with the 13 reasons that you denied some of these answers? 14 A I'm sure it did. 15 Q Or questions 'that were requested that dealt with 16 17 A Yes. 18 Q Now, Mr. Park, Dr. Wilson wrote some memos about 19 by-product, and what he thought a by-product wast is that 20 correct?'; 21 A .Yes.*.- 22 q Did you agree or disagree with those, or d^. you 23 recall? 24 A I frankly cannot recall my own view* 'x c, Q Do you know whether the government lawyers in 2 preparing this document were distinguishing between a by-product 3 and a contaminant? 4 A I don't know what the government meant when they 5 put that term in. 6 Q Well# they talked about dioxin or polychlorinated f 7 dibenao-p-dioxin as a by-produt in number 8 , didn't they? 8 A Yes, 9 10 ' 11 ' Q Did you notice in number 46# sir# that when they talked about dioxin there# that they talked about it as a contaminant? \ 12 O ' .' 13 A Yes, Q Did you notice then in 47, sir# they started 14 talking about dioxin again and they called it a contaminant B A Y O N NE ; N.J. , '' *4, J *X3 3oo-. i Jz |a o' :<<3 a. 15 16 17 18 19 20 21 22 23 ^ 24 or a by-product? A . Yes, Q And# sir# with regard to this 46# that's where it was denied that the manufacturing process of certain chlorinated phenols produced at the Kximmrich Plant potentially contained the following contaminants# the first thing they say is dioxins; right? A Yes, Q Now in other places in this document do they not use the term polychlorinated dibenzo-p-dloxln# like in number i? 1 A That's correct. 2 Q And hadn't you previously denied that the term 3 dioxin referred r-- 4 t h e c o u r t s Mr* Musgrave# rephrase the question* 5 The last three# at least* have been leading* and I told you 6 to rephrase the leading questions* Do so immediately. 7q 8 say? (By Mr* Musgrave) Humber 11# sir* what does that 9 A "The term dioxin refers to 75 different compounds 10 dependent upon the location of the chlorine atoms within the 11 dioxin molecular structure*" 12 Q you were requested to admit that? 13 A That's right* 14 q Did you admit ordeny it? IS A We denied it* 16 Q And did you give an explanation as to why you 17 denied it? 18 A Ho* s 19 q Pardon me* sir? 20 A HO. 21 Q X think you might look at your answer* sir. 22 A I'm sorry. I'm sorry. I was looking at the wronc 23 one* We did explain that* 24 g And what was the explanation? t A We said dioxin refers to a broad class of compoun 1 2 estimated to exceed 10,000 in number. Q All right. And so you denied it. 3 A Yes. 4 Q And so back in 46, sir, did the response that you 5 6 gave in 11 have anything to do, sir, with your denial of 46(a) that is that certain chlorinated phenols produced at the plant 7 the Kruramrich Plant, contained potential: contaminants such a 8 9 quote, dioxin, close quote? 10 A 1 think that's correct* H Q And did Mr* Carr show you any documents here, sir 12 with regard to the denial of 46(b), and did he show you any documents here where any of these chlorophenols are shown to 13 14 contain all 2 2 -- IS A No. Q -- of the TCDD isomers? 16 17 A NO. 18 Q And does 46(b) specify which isomer it's talking 19 about when it says TCDD? 20 A It implies 22, all of them. 21 Q And handing you what*s been previously marked as 22 Plaintiff's Trial Exhibit 1119, which is the OSHA citations, 23 sir, I*d like you to read through that and tell me if you see 24 in that any place the word "wilful" or "deliberate." 1 A I do see right at the top of citation 2 the 2 phrase or term "Wilful/Serious." 3 Q Anyplace else, sir? 4 A Nowhere else* 5 Q Do you know whether that "wilful/serious" means 6 either one, or both, or do you know? 7 A I think it means either one, and it's generally 8 taken to be serious. 9 MR. car ri Counsel, stt we don't have to go througl 10 this on recross, why don't you point out that there's a half 11 a dozen pages at least of this 1 0 page citation that have the 12 word "wilful/serious." 13 MR. MUSGRAVSt wilful/serious? 14 MR. CARR Yes. 15 THE WITNESS: Yes* 16 MR. CARRt You said nowhere else* One, two, threi 17 four, five, six, seven, eight pages of the -- one, two -- of 18 the fourteen page document contain the words "wilful/serious* 19 q (By Mr. Musgrave) And that is a wilful-slash-. 20 21 A . Yes. 22 Q And is it contained anywhere in the body of the 23 document describing the alleged allegations? 24 A I don't think so* 1 Q It*s just wilful/serious at the top; is that 2 tight? 3 A Yes. / 4 Q Mr. Park, you saw Mr. -- or Mr. Carr asked 5 about the one Request for Admission about the -- whether we 6 had analyzed orthochlorophenol. Do you recall that? 7 A .Yes* 8 Q And he showed you the Dr* Wilson mexao where he 9 talked about analyzing orthochlorophenol? 10 A Yes* 11 Q Have you everheard of orthochlorophenol crude? 12 A Yes. 13 Q Do you know whether there's a distinction betwee 14 orthochlorophenol, the product* and orthochlorophenol crude* 15 the product? 16 A I thinkthere's adistinction. 17 Q Let me show you Plaintiff*s Trial Exhibit 1lit, 18 as well as Plaintiff's Trial Exhibit 1135, it was marked twiceL 19 it's also a memo by Dr.Wilson that Mr. Carr put into evidence* 20 is it nbt? 21 A -' Yes. 22 Q And does Dr. Wilson in there refer to these same 23' analyses that were done in *78 that were referenced in the 24 other exhibit he showed you where he talked about the ortho- 1 chXorophenol? 2 He calls these saropXes OOP crude 3 Q Do you know whether he knew or understood at the 4 time he wrote these memos possibXy the distinction between 5 orthoehlorophenol and orthoehlorophenol crude? 6 A i would think he should know the difference 7 Q Mr Park# Mr Carr also showed you# I believe it 8 was Plaintiff's 1543 This was preparedness question and answer on soil sampling that was prepared by Sarah COXXins. 10 Do you have that, sir? 11 A Yes, I do 12 Q And he asked you about the finding of a level of 13 dioxin in one of the locations there in the sampling that was 14 done* This is on page 2 of this exhibit 15 A ' Yes 16 Q And you recall that he asked you a question 17 about question 8 -- pardon me* question 6 and answer 6 18 Do you have that? 19 ' -a "'' Yes. 20 Q About what Monsanto was going to do about the 21 potential exposure 22 ,"A Yes, ^ 23 Q And it was indicated that the area was going to 24 1 A Yes. 2 Q What does question 7 and answer 7, the ones immediately next to it, what do those read, sir? 3 A Question 7 says, "Are you paving the lot just 4 because of the dioxin?" Answer, "No. We planned to extend the 5 6 parking lot prior to the sampling program." Q And question 6, would you read that, sir. 7 8 A Question 6, "Don't you consider the one near the 9 fence area a health hazard?" 10 Q And the answer to that. 11 A The answer reads, "No. The dioxin was detected 12 a couple of inches below the surface in an area where there has been a low potential for exposure, and with the parking 13 14 lot extension this area will be paved over, eliminating any 15 exposure," Q Now, Sarah Collins, sir, the author of this, 16 do you know when she started with Monsanto? 17 18 A No, I don't really. Several years ago. 19 Q Do you know whether she was employed in 1979? 20 A I frankly don't remember. 21 Q Now, in question 10, it is asked, is it not, sir, 22 "Had you ever tested for TCDD before now?" 23 A Yes* 24 Q And would you read the answer to us. 1 A The answer r e a d s W e have tested for TC DD by 2 taking wipe samples and found it not to he present* In taking 3 the wipe samples, we tested the surface of equipment and furni 4 ture in the chlorophenol units and their control areas,* 5 Q Do you know whether Sarah Collins was familiar 6 with thatJune* 1979 wipe sample exhibit that Mr. Carr showed 7 you that had one finding of a contaminant in Department 237? 8 A I don't know, 9 Q That was some four and a half years earlier# 10 wasn't it# sir? 11 A ' T h at's correct* 12 Q From this document dated November of 1983* 13 A ' Yes, 14 Q Do you know# sir# whether any wipe samples were 15 taken at the Krummrich Plant in the interim# between June of 16 *79 and November of *83 when Sarah Collins prepared this memo? 17 A I think there were a number of wipesamples taken. 18 g Do you know which results Sarah Collins might have 19 been referring to when she said "We tested for TCDD by taking 20 wipe samples"? 21 A She's probably referring to some more recent in 22 /time, 23 Q Do you think# sir# she would have gone all the way 24 back to 1979 if the sampletesting for the last couple of years had shown that there were no findings of TCDD in wipe samples? 2 A I think it's quite possible she might have gne backjust a few years and found that none had been detected, 3 4 and then stopped* 5 MR. CARR* Your Honor, I object to this as pure 6 7 MR. M SGRAVE Well, your Honor, he's asking-- - 8 MR. CARR* And Counsel knows it* 9 MR. M SGRAVE He's asked the witness to speculate] 10 about all kinds of things, I think this is just as clearly \ V\ 11 12 13 admissible speculation as to what he's asked the witness to speculate about. THE COURT: You made the objection as to specula 14 tion* It's my opinion that they haven't been speculation* 15 They've been proper questions This witness is a lawyer. This 16 particular question that you're talking about is speculation* 17 and the objection will be sustained. I see it's a couple minute 18 after four, so we'1 1 terminate proceedings for the day at this PfNAO GO,, BAVONN, N,J, 07001 fOHM ItJAB 19 point in time. 20 Ladies and gentlemen, we will adjourn for the day 21 at this time* we will resume again Monday at 9*00. I want to 22 remind you# besides the regular admonishments over any break, 23 that you're not to read, listen to or watch anything about this 24 ease in particular, or subject matter in general in any of the 1 media, or electronic# Thank you for your attention and 2 cooperation# Have a good weekend# W e 1!! see you on Monday# 3 4 (Court adjourned #) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 STATE OF ILLINOIS 1 TWENTIETH JUDICIAL CIRCUIT 2; COUNTY OF ST. CLAIR 3 SS. 4 I, Kathleen Watson Brunsmann, one of the Official Court 5 6 :Reporters#- do hereby certify that the foregoing transcript is a true and correct copy of said transcript. 7 8 DATED* August 12, 1985. 9 id il Kathleen Watson Brunsmann, GSR# RPR 12 Official Court Reporter 13 14 15 16 17 18 19 20 21 22 23 24 1 STATE OF ILLINOIS 2 TWENTIETH JUDICIAL CIRCUIT 3 COUNTY OP ST. CLAIR SS. 4 5 I, RICHARD P. GOLDENHERSH, Circuit Judge, do 6 hereby certify that the foregoing transcript is a true and 7 correct copy of said transcript. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24