Document nrdbQKVvpbob0XNkdyRBGzaa

1 IN THE ,,CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS 2 ST. CLAIR,COUNTY 3 FRANCES E. KEMNER, et al. 4 Plaintiffs/ 5 v. CAUSE NO 80-L-970 6 MONSANTO COMPANY, 7 Defendant. 8 9 REPORT OF PROCEEDINGS . IO Before the HONORABLE RICHARD P. GOLDBNHERSH 11 April 9/ .1985 12 13 .APPEARANCESi - .. 14 MR; REX CARR/ Attorney at Law, and MR. JEROME SEIGFREID, Attorney at Law/ 15 On Behalf of the Plaintiffs; 16 MR. KENNETH HEINEMAN, Attorney at Law, MR. JOHN MUSGRAVE, Attorney at Law, and 17 MR. JOSEPH NASSIF, Attorney at Law, On Behalf of the Defendant. 18 19 20 21 22 23 PATRICIA A. GANDY, C.S.R. 24 Official Court Reporter 1 BE IT REMEMBERED AND CERTIFIED, that heretofore, on 2 to-wit: April 9, a1985, the matter as hereinbefore set forth 3 came on for hearing before the Honorable Richard P. GoldenherBh, 4 Circuit Judge in and for the Twentieth Judicial Circuit, State 5 of Illinois, and the following was had of record, to-wit: 6 THE COURT: Good morning* Mr. Heineman? 7 FURTHER CLARIFICATION EXAMINATION 8 .BY MR. HEINEMAN 9 Q Dr. Paget, yesterday.we were talking about the fact 10 that in Department 236 at the Krummrich Plant in which the 11 pentachlorophenol was manufactured that there were some people 12 that contracted chloracne and there were some that did not; 13 do you recall that, sir? ... 14 A Yes, sir, I do. 15 Q Now, to what do you attribute that phenomenon? 16 A Well, there are several-- -two major possible 17 explanations. One, that the exposure of the various people 18 differed, and even though although they were working in the 19 same plant, they may quite reasonably have been exposed to 20 different levels of a chloracnogen by being a little further 21 away from somewhere where it was coming from or being a little 22 more scrupulous about the use of protective equipment or 23 washing or things like that. .And the other possibility, of 24 course, is that they may have varied in their sensitivity. 1 All animals, including human beings, i1v:ary in their sensitivity 2 to toxins or to-- indeed to therapeutic drugs---and so they may 3 have varied in their sensitivity, they might have been less 4 sensitive if they didn't get chloracne 5 Q So that what may have been a toxic dose for one 6 person or several may not have Jbeen a toxic dose for some of 7 the others, assuming that they were exposed in the same way? 8 A That's a possibility, yea, certainly, sir. 9 Q Now, if I asked you .to assume, sir, that a Monsanto 10 employee named Joseph Starczyk worked in Department 236 had 11 severe chloracne, moved to Department .237 .where ortho- 12 chlorophenol, the dichlorophenol, and the parachlorophenol 13 were manufactured, and his chloracne went away, what could you 14 conclude from that fact? - IS A Well, you would have to conclude that he was then 16 exposed to a level of a chloracnogen that was below his-- -- the 17 level which was toxic for him, yes. 18 Q Is it possible that .there would not have been an 19 exposure to a chloracnogen? 20 A That's entirely possible.. 21 Q In that Department 237? .. 22 A Entirely possible, yes. , 23 Q with respect to the jother symptoms which Dr. Neal 24 spoke to you about, would you expect any other symptoms, if I any there be, to appear absent the presence of chloracne? 2 A No, sir. The situation was clearly that If there 3 were no chloracne, no other .symptoms were to be expected* 4 Q Now, with respect to conversations with Dr* Neal, do 5 you recall having conversations with Dr* Neal at any time in 4> the Spring of 1979 concerning the Wright State-- the claimed 7 Wright State results7 . 8 A Yes, sir, I spoke with Dr* Neal on several occasions 9 as Z think I've already said about this problem* And this was 10 the first person X consulted about the Wright State results* 11 Q And as X understand,it, you don't recall discussing 12 the subject at the April 27th Biohazards Committee meeting? 13 A Not specifically, no, sir* 14 Q Do you recall at some point discussing the subject 15 with Dr. Neal? 16 A Yes, sir. 17 Q And what was Dr. Neal's impression, if he had one, 18 relating to the Wright State results? 19 A Well, of course, this was an area in which he was 20 keenly interested as a biochemist studying dioxins, and he 21 didn't believe that these -results could be valid, because he 22 didn't think that the technology permitted the identification 23 of TCDD, let alone 2,3,7,8 TCDD at that level in blood 24 samples. 1 Q All rights sir. Now,, I would like to ask you to look 2 at Exhibit/ Plaintiffs' Exhibit ,1262, which 1 think may still 3 be here. Here We go. PlaintiffsA Exhibit 1262/ sir, and I 4 would direct your attention .to a paragraph at the bottom of the 5 first page of that Exhibit which Mr. Carr asked you about 6 yesterday. And that paragraph states as follows/ does it not/ 7 sir/ "In the absence of precise knowledge of human susceptibill 8 and in view of the extreme sensitivity of some species, it is 9 obvious that very small amounts of TCDD in the human environ 10 ment in certain circumstances of intimate exposure or of abuse 11 or misuse or casual worker procedures may,0 the word may is 12 underlined/ is it not/ sir? . 13 A Yes, sir. *. 14 Q , And in parenthesis it says, "we repeat may," and it 15 is underlined again? 16 A Yes, sir. 17 Q "have significance, is that right? Now, when you 18 are talking about small amounts of TCDD in the human environ 19 ment, which may have significance, what kind of concentration 20 are you talking about.there? , 21 A Well, it wholly depends, .sir, on the circumstances in 22 which they are present. .And.indeed, the concentration of the 23 material to which human; beings are exposed and from which one 24 must assume the absorption of a dose, so really it can range 1 from parts per billion maybe if it were something which they 2 were consuming on a regular basis, so you are getting doses of 3 the order of micrograms per kilogram over a period, or it may 4 be very much larger doses if it was something which human beings 5 were not directly exposed or .by derivative or composition of. 6 Q Now, is this essentially^what is expressed in this 7 paragraph? Is this the worst case analysis .that you are talk 8 ing about? 9 A Yes, sir, really itIs what it is saying that when we JO don't know precisely how human beings may react to TCDD or 11 indeed to any other toxin, the only prudent assumption is that , 12 they react as the most sensitive species. Saying, really, when 13 one has no precise knowledge of human beings'exposure, sorry, 14 of human susceptibility,, when you come to evaluate possible IS exposures, you have to evaluate them on the basis of the most 16 sensitive species. And, well,, some species are very sensitive. 17 That involves making some assumption about very low levels of 18 material to which very sensitive species may be exposed. 19 Q Now, is that what you were talking about, sir, when 20 you were discussing with Ur. Carr the subject of the difference 21 between a clear, demonstrated hallmark such as chloracne, and 22 other effects which might, one, none, all of the other effects, 23 which might possibly be present because they had been reported 24 at one time or another but not clearly demonstrated? 1A 2 yes. That*s exactly the distinction I was making, sir, .. 3 Q Now, tell me how that factor would affect the 4 judgment that you would be making, let's say in terms of 5 talking to Harry Gilmer of the EPA? 6 A Well, sir, it means two things, really. In the worst 7 case analysis, one should assume that the material which is 8 present, the worst thing- that-it might be. Even though one is 9 not sure that all the TCDD's that were reported were 2,3,7,8, 10 and indeed it seemed unlikely that they were all that, but 11 nevertheless one should assume that they were all 2,3,7,8 12 because that was the worst thing it could be. And secondly, 13 when you made the evaluation of the hazard presented by some 14 level of TCDD, one should-not-only .be guided by the things 15 that have been reported by various people reporting on TCDD 16 exposure, which may or may not be accurate, in many cases 17 probably not accurate, one should assume that human beings are 18 not only susceptible as those reports, but even more you 19 should assume that they are susceptible as the most susceptible 20 animal species, in that case, the guinea pig. In that case, 21 not is it safe in terms of those miscellaneous reports, but 22 would it be safe for guinea pigs? 23 Q Now, on the occasions when you have had to make a 24 determination of that kind, when you have been making a ] judgment about a possible human hazard, have you applied this 2 philosophy? 3 A Yes, sir, indeed. * 4 Q And in doing so, have you made calculations, kinds of 5 calculations that you have testified about here over the last 6 several days? ~ ... 7 A Yes, sir. 8 Q And when you make those calculations, what have you 9 found in making up your mind as to whether or not there would 10 be a possible human hazard? < 11 A Well, if you make those assumptions, it depends on 12 the precise calculation what the safety factor is, but we 13 found that in any of the calculations we made, the human 14 hazard, even if human beings .were as sensitive as guinea pigs, IS had a safety factor of hundreds, thousands, hundred thousands, 16 and sometimes millions between the dose which you could assume 17 that a human being might get .and the worst circumstances and 18 what might cause hazard to human beings if they were as 19 sensitive as guinea pigs. 20 Q And is it those calculations and those judgments that 21 you make that give rise to decisions as to whether or not 22 certain warning should be given or whether or not certain 23 information should be made .available? 24 A Absolutely, sir, yea 1 MR. HEINEMAN: T h a t U all the questions I have, Judge. 2 THE COURT: Okay. Mr. Carr, do you have any further 3 questions? 4 MR. CARR: Yes, your, Honor* 5 FURTHER CROSS EXAMINATION 6 BY MR. CARR 7 Q With regard to Dr. Taylor, If I understood you 8 yesterday, you suggested that Drs. Taylor and T i e m a n had no 9 articles published and referred to in this document 1273? 10 A No, I don't think I said .that. I think I said that 11 the reference that is given a t .the .point where the blood level 12 of TCDD is referred to is the reference to the letter to the 13 American Public Health Association. 14 Q And do you recall Mr. Heineman took you to an IS appendix and asked you whether or not any articles appeared in 16 that appendix authored by Taylor or Tieman, do you recall that, 17 sir? 18 A No, sir, I don't recall that precisely. 19 Q You don't recall going to the appendix, what is it, 20 Jerry, B? Appendix B, yes. . Th literature reviewed and asked 21 about, whetheror not Taylor and Tiernan had any citations in 22 that, any references, do you recall that, sir? 23 A Yes, sir. 24 Q Now, point of fact, .you do know, or I assume you ] know, that Taylor has probably, oh, ten or eleven articles in 2 here, and T i e m a n has nine or ten, you know that, don't you? 3 A Yes. 4 Q And you didn11 mention that yesterday, did you, sir? 5 HR. HEINEMAN: We were talking about blood. 6 A We were talking about blood. 7 Q And were we not also-talking about levels of tetra8 chlorodibenzo-p-dioxin in environmental and biological samples? 9 A No, sir. 10 Q We weren't? And that's not what Dr. Taylor has 11 written on-- -- as a matter of fact, if you look, at Page 297, you 12 see that Dr. Taylor wrote ten .articles referred to on that 13 page, referring to methods.,of detecting dioxin in various 14 substances including Agent Orange and environmental and 15 biological samples--- . 16 MR. HEINEMAN t You are referring to another section. 17 MR. CARR: Yes, a section you didn't refer to. 18 MR. HEINEMANi .Oh, of course I did. 19 BY MR. CARR: * .... 20 Q Will you look and see if there are not ten articles 21 by Dr. Taylor dealing with detecting various substances in the 22 environment? 23 A Yes, sir. 24 Q TCDD in the environment? , I A I haven't read through them all, but yes, sir, I can 2 see one or two which refer .to the detection of dioxins* I don' 3 know-- -well, there is one here, the detection of tetrachloro- 4 dibenzo-para-dioxin in herbicides, I don't see one referring to 5 the detection of tetrachlorodibenzo-dioxin in blood, sir. 6 Q Hell, Doctor, you know it is not captioned as such, 7 but would you not read and see if he is not having articles 8 that he's written on environmental samples and tissues? Go on 9 down the list and refresh your recollection on that point. 10 A Hell, sir, I don't aee one which refers to the n detection of tetrachlorodibenzo*-dioxin in,tissues either. 12 Q Well, sir, do you see where it talks about detection 13 in environmental and biological samples, do you see that as far 14 back as 1976? . IS A Yes, sir. 16 Q And are biological samples, does that include 17 tissues? 18 A It includes a wide variety of things. 19 Q My question is does .it include tissues? 20 MR. HEINEMAN: Objection.. How can he conclude that 21 without seeing the article? How does he know what the guy's 22 writing about? 23 THE COURT: Overruled. 24 Q Does the word biological ,,samples include tissues and 1 blood? 2 A It might, but does not necessarily 3 Q I didn't say It necessarily did, does biological 4 samples include tissues and blood? 5 A Oh, of course it could. 6 Q Now, you didn't mean, to suggest, you and Hr. Heineman 7 didn't mean to suggest to this jury that Dr Taylor was some 8 how or another out of his .field when he wrote the letter refer 9 ring to detection of the TCDD in a particular biological sampler 10 that is, blood, you didn*t mean to suggest that, did you, sir? 11 A Sir, he said that the technologies didn't exist* 12 Q My question was, did you mean to imply that, or 13 infer that to the jury that Dr. Taylor didn't know what he was 14 talking about? ............. IS A No, sir. 16 Q As a matter of fact *you know, if you turn to the 17 next page, you will see a.number of articles written by Dr 18 Tierhan cited in the EPA Handbook, will you not, sir? 19 A Yes, sir, I don't see any.that refer to the detec 20 tion in blood. - 21 Q Doctor, could you just please answer my question? 22 There are a number of articles on the next page referring to 23 the detection of various TCDD's in various substances, are 24 there not, sir? ] A Yes, sir* *. ' v 2 Q As a matter of fact*, there is one where he talks 3 about detecting it in beef samples? 4 A Yes, sir, I saw that* . . 5 Q And beef sample is a. living tissue, isn't it, sir? 6 A .. Not usually, ho. Well, it has been alive, but it is 7 not usually at the time you do it. Well, there is a difference, 8 sir, because you can take .a .kilogram of beef, you can't very 9 well take a kilogram of blood. , . 10 Q Doctor, the beef sample is a living, biological 11 sample? * 12 A It is a biological sample, yes, sir. 13 Q And, Doctor, he has jgiven seminars, he's given 14 lectures at various seminars as well, has he not? 15 A Yes, sir. 16 Q Now, Dr. Paget, is there .any question in your mind 17 but what Drs. Taylor and T i e m a n are the preeminent specialists 18 in detecting TCDD in biological samples? 19 A They are among them,, yes* sir. 20 Q My question was not .that*. Is your answer yes, they 21 are the preeminent authorities, specialists in the field? 22 A i don't think they are the preeminent ones, no, sir. 23 Q Do you know any aboye them, sir? 24 A No, sir. * ] Q Thank you. 2 (Plaintiffs1 Exhibits 1157A r B and G were 3 marked for identification*) 4 MR. HEINEMAN; Your .Honor, my recollection is the 5 jury has copies of that, is that correct? 6 MR. CARRi That is correct. 7 THE COURT: Which number?. 8 MR. HEINEMAN: .1157w 9 THE COURT; Okay. X think that's right. 10 MR. CARR: That is correct, it has been admitted into 11 evidence, your Honor. 12 BY MR. CARR: ,. 13 Q Doctor, I'll ask you to glance at these Exhibits, 14 1157A, B and C. Do you recognize those as the three pages that 15 make up 1157, do you not, sir? 16 A Yes, sir. .. . 17 MR. CARR: 1 offer these JBxhibits, 1157A, B and C, 18 your Honor. 19 (Plaintiffs' Exhibits 1157A, B and C were 20 offered into evidence.) . 21 THE COURT: I will incorporate the same arguments 22 and objections. 23 MR. HEINEMAN; FineJudge. 24 THE COURT; They are admitted. 1 (Plaintiffs' Exhibits 11S7A, B and C were 2 admitted into evidence.) ,, 3 BY MR. CARR: 4 Q Doctor, when you had the discussion with Dr. Neal, 5 do you recall, was that before or after, do you have a 6 recollection of whether that was before or after the 19-7 April 27, 1981 meeting of the Biohazards Committee? 8 MR. HEINEMAN: '79.^ 9 A That would be before, yes, sir. 10 Q And he told you, if Ji have written correctly, that n he did not believe that they had the ability to find out if 12 there was TCDD in the blood, he said he didn't believe the 13 technology existed for detecting TCDD in blood, is that correct, 14 sir? 15 A Yes, sir. 16 Q Sir? 17 A That's what I said, .yes, sir. 18 Q Of course, do you know whether or not he knew about 19 the Hummel article of 1977? 20 A I don't know, sir. Me was an expert, and I presume 21 he-would know the literature. 22 Q He mentioned that it didn't exist. Well, you know 23 that the Hummel article of Dow Chemical Company said that it 24 did exist? 1 A I don't believe that's what that article saysf sir. 2 Q Doctor, didn't we go through that once? 3 A Yes, sir. And thatVs the conclusion we came to. 4 Q We came to the conclusion that it was an article that 5 spelled out how you go about detecting for the presence of 6 TCDD in.blood? 7 A It spelled out how to do.it, it didn't do it, sir. 8 Q Excuse me, Dr. Paget, did the author of the article 9 describe that, didn't we go through it, that he was describing 10 how you can detect TCDD in blood? II A Dr. Taylor says that it does, too. 12 MR. CARR: Would you direct the witness to answer my 13 question? 14 THE COURT: Doctor, .you have to answer the question IS directly. 16 A Could you repeat it,, sir? 17 (The previous question was read by the 18 Court Reporter.) 19 A That's what the article purported to do, yes, sir. 20 Q And that was published in 1977, was it not? 21 A Yes, sir. 22 Q And Dr. Taylor in 1979 described how he did it with 23 the blood from Walter Kidwell, didn't he, sir? 24 A Yes, sir 1 Q Do you know whether gor not Dr. Neal was aware of this 2 report from the American Public Health Association and from 3 Wright State University at the time he made the comment to you? 4 MR. HEINEMAN: .Excuse me* your Honor. Did you say 5 from the American Public Health Association? 6 MR. CARR: Yes. 7 MR. HEINEMAN: What .report from the American Public 8 Health Association? 9 MR. CARR: 1156, counsels Plaintiffs' Exhibit 1156. 10 MR. HEINEMAN: Oh, X see.. Okay. 11 BY MR. CARR: 12 Q Now, my question is* was he aware of the report from 13 the American Public Health .Association and from Wright State 14 University to the'effect that TCDD was detected in the blood 15 of Walter Kidwell or the* workers at the Sturgeon spill site? 16 A He would have been aware .that it had been reported, 17 because I would have told him. But I don't know at what stage 18 he became aware of the precise report from either Wright State 19 or from the American Public Health Association. 20 Q So when he made the .comment to you, you don't know 21 whether or not he knew that it was Wright State University that 22 did it, and that the American Public Health Association had 23 published, that is pronounced publicly , the results of the 24 findings of Wright State, University, is that correct? 1 A He would have known .the first, but not necessarily 2 the second* 3 Q He would've known that it was a public announcement 4 by the American Public Health Association? 5 A No, he would've known that Wright State claimed to do 6 the analyses, I don't know .that he would've known that the 7 American Public Health Association had pronounced on it, if 8 they did. 9 Q Doctor, the initial .publication came from the 10 American Public Health Association, not from Wright State 11 University. 12 A Yes, sir, but we all knew that Wright State had been 13 claiming to do the analyses*. 14 Q And you knew that when you reported to the 15 Biohazards Committee that it was Wright State University? 16 A I believe so, yes, sir. 17 Q Yes. And did you at that time do an investigation 18 to determine the expertise of the standing of .Wright State 19 University in this field? 20 A Wright State were known to be-21 Q Excuse me. Did you 4o any investigation to determine 22 the standing of Wright State University in this field? 23 A Not personally, no, .sir. . 24 Q All right. Now, Dr.. Paget, you also said that-- - 1 strike that* I won't get .to that yet* You were discussing 2 yesterday with Ur* Heineman .the fact that you have to have-3 ingest> . I take it--- a hundred micrograms per kilogram of body 4 weight before you can-- -that's the threshold level Z think you 5 said--- of dioxin for chloracne? 6 A .That was my recollectionyes, sir* 7 Q The exact testimony that ,,you gave was that the dose 8 of which chloracne is known to occur or the threshold is one 9 hundred micrograms per kilogram.is your exact testimony? 10 A That was my recollection*, yes, sir* 11 Q That's what you testified to? 12 A Yes* *- * 13 Q Yes. Now, by that, you meant to convey to the jury 14 that a dose of less than, one .hundred micrograms per kilogram 15 would not cause chloracne, did you not, sir? 16 A Yes m 17 Q And a 50-pound child weighs approximately what, 25 18 kilograms, a little less? . 19 A A little less than that* , 20 Q Twenty-five kilograms, is that correct, sir? 21 A Yes, sir. *_ 22 Q And a 50-pound child then would have to ingest 2500 23 micrograms of 2,3,7,8 TCDD before he would get chloracne, in 24 round figures? ., 1 A Yes. 2 Q Is that correct/ sir? 3 A Yes, sir. *. 4 Q And so that if. he ate-- -2500 micrograms is 2500 parts 5 per million, isn't it, sir? 6 A Yes, sir. Well, no,, sir,. I'm sorry. I am not sure. 7 Q If you contaminated something with 2500 parts per 8 million, it would have in,it-- 9 A No, 25 micrograms is. an amount, and parts per million 10 is a concentration. 11 Q Okay, but you testified, ,if my notes are correct, 12 that you would take in, ingesting of five grams of soil at 13 4.5 parts per billion, you would need 500,000 times that in 14 order to get chloracne? _ , , .... IS A That was, yes. ,.. 16 Q And you related it to the 4.5 parts per billion in 17 five grams of soil, did you .not, sir? 18 A That's--- you have ta convert it.to an amount, sir. 19 Q And you did convert ,it to that amount? 20 A That's what I did, yes, sir. 21 Q And that would be 22 nanograms is what you testified 22 to yesterday? 23 A That's my recollection, yes. 24 Q Well, now, actually thatIs considerably less than the I same calculation of a hundred micrograms per kilogram, is it 2 not, sir? -, 3 A Yes, sir. .. 4 Q How much less is that? 5 A Well, a nanogram is *a thousandth part of a microgram. 6 Q Well, do the same calculation for us using a 7 hundred micrograms per ^kilogram level that you testified to 8 initially, sir. 9 A Can I borrow a piece of paper?. What would you ..like 10 me to calculate, sir? .... 11 Q Well, calculate if you will how many-- you hypothe 12 sized yesterday at 4.5 parts per billion in five grams of soil. 13 A Okay, sir. 14 Q Now, use instead of the value that you ended up with 15 yesterday, use the initial value, the hundred micrograms per 16 kilogram. 17 A Back to what the concentration in soil would have 18 to be? 19 Q Yes. 20 A To a hundred micrograms per kilogram to a 50-kilo 21 to a 25-kilo child. 22 Q No, I want you to da-the .same calculation that you 23 did yesterday with Nr. Heineman using instead of the factor 24 that you used with him, because I think you cut it down by 1 half, use the factor that you testified to originally, that is 2 the hundred micrograms per kilogram* 3 A I'm sorry, I really don't understand the calculation 4 you wish me to do* 5 Q Yesterday you stated for .the jury that if one ate 6 five grams of soil-7 A Yes, sir. 8 Q You didn't specify the weight of that person. 9 A We were assuming anadult, a 70-kilo adult. 10 Q Is that what you were assuming? n A That's what I was assuming. 12 Q A 70-kilo adult would be JL50. pounds, more or less? 13 A Yes, that's the standards 14 Q So let's use that. Use ;the 100 micrograms per IS kilogram then and calculate for me how much there would be in 16 this five grams of soil* . . . . . . 17 A Sir, a hundred micrograms per kilogram to a 70-kilo 18 man is a hundred micrograms times 70 is the total amount, 19 that's 7,000 micrograms, 7,000 micrograms, that's the total 20 amount. And five grams of soil, that's five grams of soil is 21 5,000 milligrams, or 5,0d0,000 micrograms, that's 7,000 parts 22 in 5,000,000 or approximately one part in 400, something like 23 that. 24 Q How, Doctor, convert it to--- 1 A That's point one-fourth percent* 2 Q Convert it to the nanograms like you did for Mr. 3 Beineman. 4 A I 'm sorry. I don't .think you are asking me to do a 5 feasible calculation. 6 Q Well, you testified yesterday that it would have to 7 be 22 nanograms in five grams of soil. 8 A Yes, sir. And you asked me if one took a hundred 9 micrograms per kilo. 10 Q What factor did you use yesterday? Did you use the 11 factor of 100 micrograms? v 12 A Bo, sir. I calculated how much somebody might ingest 13 if they swallowed five grams of soil containing an amount of 14 TCDD or an amount of OCP. , 15 Q And did you use the .threshold level of 100 micrograms 16 per kilogram to b& causing chloxacne? 17 A I didn't use the threshold level at all, sir. 18 Q Did you not testify .that 22 nanograms in five grams 19 of soil is 500,000 times less than what would be required for 20 the threshold chloracne? Didn't you testify to that? 21 A Well, 22 nanograms, JL understand what you are saying, 22 you are querying the factor of 500,000, is that what you are 23 querying? 24 Q I'm querying, Doctor, did you use the hundred 1 micrograms per kilogram factor in making that calculation? 2 A No, sir, not at all*. 3 Q What did you use? 4 A I didn't use any factor* ,, I said that the does would 5 be 22 nanograms, which is 300 picograms per kilogram. 6 Q And you said that was 500,000 times less than 7 required for the threshold chloracne? 8 A I compared that with the .safety factor. I think it 9 was of one-tenth of a microgram per kilogram. If you compared 10 it to a hundred roicrograms, it would, of course, be a hundred 11 times larger. 12 Q it would be how much? 13 A It would be a factor, of 5^,000,000 times less. 14 Q So in order for the person to get chloracne, there 15 would have to be 5,000,000 times the TCDD concentration than 16 was apparent at the ten percent contamination? 17 A Yes. ... 18 Q And ifthere is4.5 parts per billion inthatsoil, 19 you would have tomultiplythat by 5,000*000 in order to get 20 chloracne? 21 A Yes. . 22 Q And that would- be approximately 220,000,000 parts 23 per billion? 24 A Well, that's 220r-f- ] Q 220,000,000 parts per billion? 2 A Yes, sir, without-- 3 Q Now, in order for somebody that's going to consume 4 five grains of soil, and that five grains of soil is one-sixth of 5 an ounce, according to you he would have to-- that soil would 6 have to be contaminated with 220,000,000 parts per billion of 7 2.3.7.8 TCDD? 8 A Yes. 9 Q To reach the threshold level of chloracne? 10 A Yes, sir. 11 Q 220,000;000Sparta per billion, and that would boil 12 down to, if scratched out, that would be 220 parts per thousand, 13 wouldn't it, sir? 14 A Yes. IS Q That would mean that soil would have to be 22 percent 16 2.3.7.8 TCDD? 17 A Yes, sir. 18 Q So before somebody can get chloracne, they would have 19 to eat 22 percent of five pounds, that's roughly five grains, 20 they would have to eat one gram of pure 2,3,7,8 TCDD in order 21 to get chloracne? 22 A Somewhere we have lost some factors of ten, X fear, 23 sir, in those calculations. 24 Q No, Dr. Paget, these are the calculations that you 1 gave to the jury yesterday, .and these are the calculations that 2 you are giving to the jury today. .You would have to eat soil 3 that is 22 percent 2,3,7,8 TCOD in order to get chloracne, and 4 chloracne is the only bad thing that happens from exposure to 5 2,3,7,8 TCDD, is that correct? 6 A No, I didn't say that, sir. That's the only clearly 7 demonstrated thing that happens. . 8 Q Nell, we went through the .long session the other day 9 that it is the only thing that you know, the only thing that 10 you believe, you said under oath that's the only thing that you 11 believe is going to ..result .to somebody being exposed to 2,3,7,8 12 TCDD? 13 A Yes, sir. 14 Q And a gram is,, let's, see* what is it, how many grains 15 in cm aspirin? Roughly five grains to an aspirin, isn't there, 16 sir? ... 17 A Well, an aspirin tablet is about 300,000,000 grams, 18 so that's one, well, there are one-fifteenths of five grams. 19 Q There are 65 grains A n a .gram, well-- 20 A I'm not sure. I've ,,forgotten grains so long ago, 21 I'm not sure, but it's 325 milligrams. 22 Q There are 65 grains in a gram, I'm sorry, there are 23 15 grains in a gram, so if an aspirin is five grains, that 24 means you would have to eat a third, you would have to eat one 1 gram, you would have to eat three aspirins, three pills the 2 size of an aspirin of pure 2,3,7,8 TCDD before you would get 3 chloracne, that's what your calculations add up to, Dr* Paget? 4 A I'm sorry, sir, I don't trust this calculation done 5 under these circumstances. 6 Q Well, calculate it again,. Dr*Paget. 7 A May I take my time? ^ . 8 Q Please do* 9 A The assumptions you .wish me to make? 10 Q The.assumptions that you made with Mr* Heineman 11 yesterday* One hundred micrograms per kilogram of body weight 12 is the threshold level of chloracne. 13 A Seven thousand micrograms is the dose, 7,000 micro 14 grams-- well, sir, If you ^assume that a 70-kilo man is going 15 to ingest 100 micrograms per kilogram, which is the dose we 16 were talking about, and that must mean that there is a 70 17 times 100 or 7,000 micrograms in what is ingested* Seven 18 thousdand micrograms in five grams of soil is 7,000 parts, and 19 5,000,000 parts or seven parts in 5,000, which reduces to just 20 a little oyer 1 percent, .14 percent* 21 - Q Which is how many parts per billion in that soil? 22 A Well, *14 percent Is, 140 .parts per thousand, or 23 140,000 parts per million* 24 Q 140,000 parts per million? , 1 A 140,000 parts p&x million* 2 Q Per million? ... *. 3 A Yes. 4 Q So you are talking about .140 parts per billion then 5 -- I'm sorry, 140,000,000 .parts per billion? 6 - A Yes, that must be true. , 7 MR. HEINEMAN: Wait.a minute. I'm lost here. 8 BY MR. CARR: . . .. 9 Q 140,000,000. We were at .220 parts per billion, now 10 we're down to 140 parts per billion, and we've reduced it 11 somewhat, but not a great-deal. 12 A 140,000.parts per billion, it's .14 percent, there is 13 no point in reducing it to parts per billion, it's .14 percent. 14 Q You said that was liOyOOd parts per million, did you IS not, sir? ... 16 A Well, .14 percent is..a 140,000 parts per million, 17 or 140,000,000 parts per billion. . 18 Q All right, that's exactly right. 19: A But it is still .14^percent. 20 Q So you have to have .that .soil, that roan would have to 21 eat soil contaminated with .140 parts per billion, and that 22 comes down to 140 over a thousand, which is 14 percent? 23 A Ho, sir, that's .14 percent. It is 140,000,000 24 parts per billion, we just calculated that. 1 Q Well, you said 140,0,00, so it is 140-- 2 A Zt is 140,000 partsper million, or 140,000,000 parts 3 per billion, or .14 percent* 4 Q What you are saying J.s 140,000,000 parts per billion 5 is what you are saying, Dr* Paget? 6 A It's *14 percent, it is 1,000 micrograms in five 7 grams* 8 Q And that is how many .parts per million, or how many 9 parts per billion? 10 A That's *14 percent, ,,14 percent is 140 parts per 11 thousand, or 140,000 parts*per.million, or 140,000,000^-- I'm 12 sorry. 13 Q Dr* Paget, you are completely fouled up on your math* 14 A Well, I wouldn't be surprised. 15 Q 140 parts per thousand is it, sir? 16 A Well, it's *14. percent, ao *14 percent is 140 parts 17 per thousand* 18 Q No, Dr. Paget, 140 parts per thousand is 14 percent, 19 not *14 percent, you misplaced your decimal point two places* 20 A No, 14 percent is 14 parts per hundred* 21 Q Yes, or 140 parts per thousand* 22 A I'm sorry, sir, you .are losing me. .14 percent-- 23 Q Take 140, put it over a thousand, and scratch off the 24 last zero of each and you have 14 over a hundred, don't you, 1 Dr* Paget? 2 A Quite right* This is .14 percent, so it's 140 parts 3 per thousand, 140 parts per ten thousand, you are quite right* 4 Q Now you are getting jcloser. Doctor* %9 5 A It is 140 parts per.ten thousand, or 140,000 parts 6 per ten million, or 140 or-- -.-wait a minute, let me put those 7 right-- that's 14,000,000 .parts per billion* 8 Q 14,000,000 parts per billion* 9 A Or *14 percent* , 10 Q So now we are down to 14^000,000 parts per billion, li is that correct, sir? 12 A If my arithmetic is Jto be relied on, which it is 13 quite obviously not under these circumstances* 14 Q So to eat, now, 14,000,000 parts per billion is a 15 threshold level for chloracne? . 16 A If you ate five grams of<soil containing 7,000 17 micrograms of 2,3,7,8 TCDD, that would be correct* 18 Q Which would be. contaminated with 14,000,000 parts per 19 billion? Dr* Paget, you've got 50 percent of the workers at 20 the pentachlorophenol Department 236 got chloracne* Now, are 21 they being exposed to a product that .has 14,000,000 parts per 22 billion of 2,3,7,8 TCDD? . 23 A I don't know, sir. ~ 24 MR. HEINEMANx In penta? . 1 BY MR. CARRx 2 Q Anything they're working .with. Doctor, according to 3 Monsanto, 2,3,7,8 TCDD is not even in pentachlorophenol? 4 A And I believe that may be true, sir. 5 Q Now, Doctor, do you Jcnow .any Monsanto product, that 6 contains 2,3,7,8 TCDD-at the level of--- or any product any 7 where that's ever been manufactured to your knowledge at any S time anywhere that contained 14,000,000 parts per billion of 9 2,3,7,8 TCDD? 10 A iNo, sir. ....... - ,, 11 Q And, Doctor, you know there is a lot of people got 12 chloracne, people at Nitro, West Virginia, got chloracne, 13 people at Krummrich Plant got chloracne, are you saying that 14 all these people had to ingest, had to eat something, had to 15 take into their bodies, not just be exposed to it, and touch 16 their skin, but get into their system 14,000,000 parts per 17 billion of 2,3,7,8 TCDD, the product they are working with, 18 they have to take it in? 19 A Yes-- ,, - ,, 20 MR. HEINEMAN: Objection,* your Honor. He's comparing 21 apples and oranges with this witness. He went from taking a 22 dose up to a large amount, and now he is talking about that 23 level in the product. . .. 24 THE COURT: Overruled 1 A Well, sir, the point about the calculation we've just 2 gone through was it started with the assumption you consume 3 five grams of soil, as you correctly pointed out, just about a 4 sixth of an ounce, but those people are exposed to lower 5 concentrations of vastly greater amounts, obviously. 6 Q Vastly greater amounts of, which? 7 A Of the material from which they absorbed the dose. 8 Q Well, they have to get in their systems equivalent of 9 soil that's contaminated or anything-- -- it doesn't have to be 10 soil, whatever they're working with has got to be contaminated II and they have to get it in their system something that's 12 contaminated with .14,000,000 parts per billion. 13 A They have got to get in their systems 7,000 micro 14 grams. 15 Q And they are not going to take in pure 2,3,7,8, are 16 they, sir? They are going to get it because it is going to be 17 contaminating something, correct, sir? 18 A Yes, sir. v 19 Q And this is 14--- * 20 MR. HEINEMAN: Are you talking about 1,400,000, Mr. 21 Carr? 22 A In five grams of soil, sir. 23 Q Well, it doesn't have to .be soil, it can be any 24 thing ] A In five grams. 2 Q In five grams. It has to be contaminated with 3 14.000. 000 parts per billion of 2,3,7,8* doesn't it* sir? 4 MR. HEINEMAN: Well*, now^ your Honor, let me object. 5 Witness continually said .14 percent. .. 6 MR. CARR: And I had him .break that down to parts 7 per billion, and he broke.it down to 14,000,000 parts per 8 billion. . 9 MR. HEINEMAN: Well,. I'm .confused because--- 10 MR. CARR: I'm sure y o u are 11 .MR. HEINEMAN: I get 1,400,000. 12 THE COURT: Objection overruled, I followed the 13 calculations. Go ahead,.Mr. Carr* 14 A Well, .14, it is still .14 percent whatever it Is in 15 terms of parts per billion, sir. 16 0 Dr. Paget, would you like to recalculate your figures? 17 A I can't see the point, sir. 18 Q neither can I, because you came up with the 19 14.000. 000 parts per billion. 20 A I said .14 percent, .that's what X said. 21 Q Excuse me, and did you not also say 14,000,000 parts 22 per billion contamination in that soil, sir? 23 A That's how I calculate it, not necessarily correctly. 24 Q Sir-- .* I A I say that was the reasoning, I am not necessarily 2 correct* I know the figure X am talking about is *14 percent. 3 Q Dr. Paget, I want you--- you are testifying here 4 under oath, you gave calculations to Mr. Heineman yesterday 5 that X am working with, and X am asking you to do the same 6 thing today that you did with Mr. Heineman, you said then it 7 would be off by a factor, of 500,000, the 22 nanograms, well 8 that seemed like a lot to me, and this seems right in line with 9 that, I don't see anything wrong with that, 500 times 22, 10 500,000 times 22 will come pretty close to this figure, the 11 figure you gave yesterday was pretty close to what you gave to 12 me. 13 A If it is the same aa .14 percent, I agree. 14 0 I don't. I am taking your calculations. You are 15 doing the calculations, I am putting them here. Now, these 16 people at Sturgeon can go home and rest at night because that 17 soil doesn't contain 14,000,000 parts per billion of 2,3,7,8, 18 does it, sir? 19 A That's so, certainly, yes, sir. 20 Q And the workers at the Krummrich Plant can relax 21 because there's never been any product made by anybody that you 22 know of that contains that kind of 2,3,7,8 concentration, is 23 that correct, sir? 24 A As far as eating five grams of the material, yes, sir 1 Q It doesn't make any difference, they are not going to 2 eat it, maybe It is going to get on their skin, so they can 3 have a lot greater contamination of 14,000,000 parts per 4 billion, it is not all going to be in--- I think you said 10 5 percent goes into the skin? 6 A That's the rough figure, yes* . 7 Q So they can have ten .times that contamination on 8 their skin? 9 A If all they were exposed to was five grams, yes, sir* 10 Q Five grams is a pretty lot, isn't it, sir? 11 A That's one-sixth of ,,an ounce, as you pointed out* 12 Q ,, I'm sorry? 13 A I said it is one-sixth of an ounce, as you pointed 14 out* 15 Q Yes, so these workers at Xrummrich Plant that got 16 chloracne were exposed to something that contained the equiva 17 lent to 14,000,000 parts per billion-- 18 A No, sir. 19 Q " -- of 2,3,7,8? . ,-., 20 A No, sir* It depends on the amount of material they 21 were exposed to* 22 Q Nell, whatever they are exposed to has to be 23 contaminated to that extent. 24 MB* HEINEMANi Objection,. your Honor. ] BY MR* CARR: 2 Q Whatever they are exposed to-3 MR. HEINEMAN: Your -Honor/ he is comparing apples and 4 oranges/ and he is intentionally trying to confuse the witness* 5 He knows that we are not talking about 2,3/7/8 when you are 6 talking about pentachlorophenol. You are talking about totally 7 different dioxinsr and the contamination level may be 8 completely different. 9 THE c o u r t s Overruled* 10 BY MR. CARRS 11 Q We know the other dioxins are a lot less toxic than 12 2/3/7/8, X think the most toxic one was l r3/7/8f and X think 13 it was supposed to be according to Dr* Wilson or somebody, I 14 can't recall who now, one-tenth as toxic as 2,3,7,8* So these 15 dioxins that these workers .at.the Krummrich Plant are being 16 exposed to, if 2,3,7,8 isn't there, is a lot less toxic, isn't 17 it, sir? 18 A I don't know about the Krummrich Plant, sir. If 19 they were different dioxins, yes, they would be less toxic. 20 Q And so for them to get chloracne, it would have to 21 be a lot more exposure, it would have to be contaminated with 22 the dioxin at a greater level .than 14,000,000 parts per 23 billion, wouldn't it, sir? . 24 A Wo, sir, not at all.., . 1 Q It wouldn't? Why not, sir? 2 A Because you are talking about contamination that five 3 grams of soil would have to have if you were to eat five grams 4 of soil and get 7,000 micrograms. Zf you get 7,000 micrograms 5 from a very much larger quantity of material--- 6 Q Well, how much? 7 A The contamination rate would be less. 8 Q Well, how much more would they have to eat than five 9 grams of soil, these workers, .in order to get chloracne? 10 A It depends. You don't have to eat it, and you can 11 absorb it over a period. 12 Q Okay, how much? They have to absorb it, they have to 13 get it in their system in.order to get chloracne, the equivalent 14 of five grams of soil that would be contaminated to the level IS of 14,000,000 parts per billion 2,3,7,8, don't they, sir? 16 A They have to absorb .7,000 micrograms or thereabouts 17 over-- from the material to which they are exposed over some 18 reasonably short period,, yes, sir. 19 Q And by reasonably short period of time, you mean 20 what, in 30 days? - .. . 21 A Something of that sort, X believe, yes. 22 Q So they have to take into their system the equivalent 23 of five grams of soil that would have been contaminated with 24 14,000,000 parts per billion of 2,3,7,8 in 30 days time in 1 order to get chloracne? 2 A They have to take something like 7,000 micrograms, 3 yes, sir. .. , 4 Q Is the answer to my ,,question correct. Dr. Paget, the 5 one I am asking you, not the one you are answering? 6 A Yes, sir, that9s the way I am stating it. 7 Q Thank you. And these workers so far as you know, 8 they are not eating anything, are they, sir? 9 A I don91 know anything about it. 10 Q They are under compunction, they are under orders to 11 wash their hands and leave out their clothing and make sure 12 that they don't ingest that material, aren't they, sir? 13 A I don't know, sir. ,, .. . 14 Q You don't know that?;:; You are in the division of 15 medicine and health, responsible for the health and safety of 16 those workers, weren't you, Dr. Paget? 17 A But setting the rules-- _ 18 Q Weren't you, Dr. Paget? 19 A Yes, sir. 20 Q And you don't know the rules for health and safety? 21 MR. HEINEMMJs Your .Honor, I'm going to object to 22 that. Mr. Carr's confusing .the witness with two different 23 things. Mr. Carr knows d a m .well that this guy was in DMEH 24 from December the 29th, 1978, until the fall of 1979. Now, 1 when did the penta department close, Mr Carr? Is that in 2 evidence? 3 THE COURTt Objection is overruled. 4 MR. HEINEMAN: Before then* 5 BY MR. CARR* 6 Q Doctor, in the course of your practice for Monsanto, 7 in order to adequately protect the workers, you have to know 8 the rules for exposure as .far as they are concerned, don't you, 9 sir? 10 A No, sir. 11 Q You don't? 12 A No, sir. 13 Q Now, Doctor, if they are rdown in the material digging 14 with their hands, they are going .to get a-different dose than 15 if they are simply working with it with gloves on and with 16 masks on and they take their gloves off and their masks off 17 when they eat and everything else, isn't that correct, sir? 18 A Somebody has to be aware of that, it was not my 19 responsibility to do that. 20 Q How can you adequately determine whether or not your 21 workers are being exposed<to risky levels of 2,3,7,8 or any 22 other chemical without knowing the precautions that they are 23 instructed to take, and the precautions that they do take? 24 A One has to say. how much material they must not 1 absorb f and then from the concentrations you can work out what 2 the permissible operating procedures might be. i 0 Well, one way or another,, these workers got chloracne, 4 didn't they, sir? 5 A Yes, sir, they* did......... 6 Q And for them to get .chloracne, they had to get into 7 their system, they had to .ingest, it had to come into their 8 system, because the chloracne works from the inside out, it had 9 to get into their system, that material that they were working 10 with, pentachlorophenol, did they not, sir? 11 A Or some contaminant yes . sir. 12 Q Well, the contaminant isn't going to fall out of the 13 penta, it is going to be in .the penta? 14 A They have to absorbait, yes, sir. 15 .Q And that penta has to be .the pure product, if they 16 are taking it, it has to contain dioxins at greater level than 17 14,000,000 parts per billion, mustn't it, sir? 18 A No, sir. 19 Q Oh, no? What would .it have to contain? 20 A That depends on the .amount from which they absorbed 21 it. 22 Q Well, if they absorb five grams in a month-- 23 A If all they absorbed was .that, and they had 7,000 24 micrograms in five grams, .they might well get chloracne, yes, s: 1 Q They would have to absorb something, the other 2 dioxins they would have to absorb, they would have to be taking 3 into their systems the equivalent of, let's see, 65 grains in 4 an aspirin, they would have to be taking in the equivalent of 5 60 aspirins of this product per month in order to get chloracne , 6 wouldn't they, sir? .. - - 7 A They would have to take in, yes, that's roughly, yes 8 Q They are going, to da that how,, sir? How are they 9 going to get it in their, systems? 10 A I don't know, sir. 11 Q And it would have to be contaminated at a greater 12 level, since there would have to be at least ten times the 13 level of this? 14 A If all they took was. five grams, yes, sir. 15 Q The dioxins that would be in that penta would have 16 to have contained dioxin at least at the level of 140,000,000 17 partB per billion, wouldn'.t it, sir? 18 A If all they took waa five grains, if all they were 19 exposed to was five grazas of material, yes, sir. . 20 Q Hot exposed to, you^said it different. Doctor. Not 21 exposed to, but ingest. . 22 A Well-- 23 Q They have to take into their system-- 24 A Five grams. 1 Q Five grams in order .to get chloracne, don't they, sir. 2 A if that's the contamination level, yes, sir. 3 Q Now, Doctor, then I take .it, and you don't know of 4 any amount of exposure where they would get, well if they take 5 in less than five grama,, it's got to have in it more than 140 a parts per billion of dioxin, doesn't it? 140,000,000 parts per j billion of dioxin, doesn't.it, sir, if they take in less than 8 five grams? ...... 9 A If they take in lesa, yea. 10 Q If they take in morn than five grams, it can come 11 down by whatever factor we .want to assume * if they take in a 12 hundred grams a month, then we can divide this by a hundred, 13 can't we, sir? No, divide .it by .20.7 14 A 20, yes, sir. * . 15 Q So divided by 20, they have to be working with, they 16 have to be ingesting something that has slightly under a 17 million parts per billion .of dioxin content? 18 A I don't-- -yes,. under; those circumstances. 19 Q 140 divided by 20? .- , ` 20 A Is something like 7CU 21 MR. HEINEMAN: Why don't you use the calculator? 22 BY MR. CARR* 23 Q It would be about 7^000,0.00 parts per billion. 24 MR* HEINEMANj .Don't let ,Mr. Carr tell you, use the 1 calculator 2 HR. CARR: Your Honor, la Mr. Beineman going to 3 instruct the witness what to 4o? 4 THE COURT: Go ahead,, Mr*> Carr. Q The amount of material, if they took in 50 grains a 5 6 month of 140,000,000 parts per billion, that's what they would 7 have to take in in orderto get chloracne, wouldn't they, sir? 8 A They would have to take in 7,000 micrograms in what 9 ever concentration they took it in. 10 Q No, no, no. If it1a one-tenth the toxicity of 11 2,3,7,8, they would have, to .take in 70,000 micrograms, wouldn11 12 they, sir? 13 A Yes, they would take in 7.0 milligrams. 14 Q And Doctor, since vesr-- all the people then in the-- 15 since only 50 percent got chloracne in Department 236, the 16 other 50 percent must have taken-in less than 50 grams of the 17 material they were producing, is that correct? 18 A That's a possibility, yes. 19 Q So they could take in 48 grams and not get chloracne? 20 A Well, it doesn't exactly work like that, but they 21 have to take in-- -- they would take in some acnogenic dose for 22 them. .. - 23 Q Dr. Paget, then inasmuch .as the only danger from 24 dioxin is chloracne, and-you don't know-- have you ever heard 1 of any soil anywhere that was contaminated to the level of 2 14,000,000 parts per billion of 2,3,7,8 TCDD? 3 A No, sir. 4 Q Then the concern that we have about Times Beach and 5 Minker-Stout where it has, oh, levels ranging from less than 6 a part per billion to maybe a hundred parts per billion or 7 maybe even six hundred parts per billion in some places, 8 actually all that concern that we have over that soil is 9 misplaced, isn't it, Dr. Paget? 10 A I believe that, yes, sir. 11 Q The government has spent millions of dollars In just 12 doing-- just doing useless things, because that soil, none of 13 that soil is contaminated at the level of 14,000,000 parts per 14 billion, is it, sir? 15 A No, sir. 16 0 Now, Dr. Paget, do you really believe that the EPA 17 and the CDC and everybody else that's concerned about the levels 18 of dioxin in soil, do you really believe what you are saying 19 here that it has to be contaminated to this extent before you 20 have any concern? 21 A No, sir. I said if you were to take a chloracnogenlc 22 dose in five grams of soil or any other five grams, that was 23 the level it would have to have. 24 Q Well, Doctor, you are talking about eating it, you 1 are talking about not;just walking on itr not laying on It# not 2 rubbing It on your face#, not taking a bath# not putting It in 3 your ears# but washing it out# you are talking about eating it# 4 because you are only going to absorb ten percent of it in the 5 soil from what you have given us. So you can wallow in soil 6 that's contaminated to 14#000,000 parts per billion# wallow in 7 it as long as you kept your mouth shut and washed your hands# 8 didn't get it in you# you could wallow in it every day for the 9 rest of your life# because -it is only that which you take in 10 in a 30-day period that has any consequence# no way could you 11 absorb enough to get chloracne# isn't that correct? 12 A I don't know that. * 13 Q Well# figure It o u t , If you were not going to 14 absorb, the ten percent that is on you# that ten percent doesn't 15 get ingested immediately# it takes some time. 16 A If you had been wallowing in soil# I'm sure it would 17 have more them five grams# probably a thousand more# a million 18 times more than five grams. . 19 Q Ingested# taken in. 20 A on your skin? . 21 - Q On your skin# Doctor# but we are talking about 22 ingesting it. 23 MR. HEINEMAN: Well#, you Jceep switching horses on 24 him# Mr. Carr. Why don't you stick with one and let him answer 1 BY MR. CARR: 2 Q Doctor, there really is no concern about soil that 3 has a thousand parts per billion TCDD contamination, is there, 4 sir? 5 A I don't think there Is, no, sir. 6 Q There is really no concern that has a million parts 7 per billion TCDD, is there, sir? 8 A I would be getting to be .anxious about that, yes, sir 9 Q Well, anxious, why? You ..are just one-fourteenth of 10 the amount that you need to e a t .in five grams in order to get 11 it, and nobody's going to,go around, children may, indeed, on 12 occasion ingest that. But all .they're going to get is a little 13 bit of chloracne, and that chloracne is going to go away as 14 soon as they quit eating,, that dirt? . 15 A X wouldn't want to see children getting chloracne. 16 Q Neither would I. But chloracne has been described in 17 some places, your workers have been told on occasion that 18 chloracne looks just like .a case of teenage acne, your know 19 that, too, don't you, sir? 20 A I don't know that. ,, 21 Q You don't know that? We will demonstrate that. 22 MR. HEINEMAN: ,What .evidence is there of that? v' * 23 MR. CARR: There will be *as soon as we have Dr. 24 Rousch. There will be.. . 1 MR. HEINEMAN: Well#, if there is no evidence of it 2 now X object to it and X .ask that the jury be instructed to 3 disregard it. 4 MR. CARR: Your Honor just as Mr* Heineman asked 5 the witness to assume certain facts that are not yet in 6 evidence but he believes will be I'd like for you to assume*1 7 MR. HEINEMAN: Can youname an occasion when that 8 occurred? 9 THE COURT: Objection is overruled. 10 MR. CARR: Just thia morning counsel* 11 MR. HEINEMAN: Pick .one. 12 BY MR. CARR: . , .,,- 13 Q Dr. Paget is the only problem that you are going to 14 get from the dirt contaminated with 14,000 000. parts per 15 billion of 23,7,8 TCDD is chloracne which is going to go away 16 within a month of the time you are not exposed to it, why the 17 concern about soil that has one part per billion or 45 parts 18 per billion or a hundred parts per billion or 00 parts per 19 billion which is just a small fraction of that, which is 20 necessary to cause chloracne? .Why concern about it? 21 A Well, X don't think there is concern about soil that 22 contains one part per billion. . In fact I think that's been 23 said as a safe level by the Center for Disease Control;, 24 Q Doctor, you know as ja matter of fact that they have 1 said that one part per billion Is not a safe level, cannot be 2 considered safe. You know that, don't you, sir? 3 A No, sir. I don't know that. 4 Q And my question went beyond just one part per 5 billion. My question went to 45 parts per billion and a 6 hundred parts per billion and 600 parts per billion, didn't it, 7 sir? 8 A Yes, sir. 9 Q I direct your attention Just to the statement that 10 you just made that one part per billion is safe. Would you II look at Exhibit 1255 and turn to Page 49 thereof. And for the 12 record, 1255 is a document issued by the Center for Disease 13 Control, Senate Kimbrough, one of the authors thereof. And it 14 is dated 1984. Have you got Page 49? IS A Yes, sir. 16 Q It says there, does it not, "In residential areas, leve 17 at or above one part per billion TCDD in soil cannot be 18 considered safe, and represents a level of concern." Doesn't 19 it say that, sir? 20 A Yes, sir. 21 Q And doesn't it use the words, "levels at one part per 22 billion TCDD In soil cannot be considered safe"? 23 A Yes, sir. 24 Q And now, has that corrected your thought on what the | ! I 1 CDC has said about the level of soil contamination? 2 A That statement-- - , 3 Q Sir? _ ... 4 A That means the level, .is less than one part per 5 billion can be considered safe 6 Q Is that what that means, .sir? 7 A Yes, sir* 8 Q No, it specifically jdoesn't say that at all. It says 9 levels at or above one part per billion in soil cannot be 10 considered safe* 11 A No, sir, and the converse-- - 12 Q Isn't that what it says? , 13 A Yes* . ^- 14 Q And the converse is.,, 15 A The converse that levels below it can be considered 16 safe* 17 Q And one part per billion,, levels above one part per 18 billion then are unsafe, right? 19 A That's what it says^ 20 Q And something that has above one part per billion 21 cannot be considered safe, can it, sir? 22 A Yes, sir. That's what it says* 23 Q Is that right? That's what it says, and that's what .24 you believe, isn't that correct, sir? 1 A No, sir. * 2 Q That's not what you believe? 3 A No, sir, it depends^on the circumstances. 4 Q Oh, that's right, you believe It takes 14,000,000, 5 don't you, sir? 6 A In five-- 7 Q You used the word, you estimate that one part per 8 billion 2,3,7,8 tetrachlorodibenzo is probably acceptable 9 medically in santophen. 10 A Yes, sir. li Q And above, it follows that above one part per 12 billion is not acceptable medically, isn't that correct? 13 A No, sir. 14 Q That doesn't follow! 15 A No, it doesn't, no, .sir. , 16 Q Now, Dr. Paget. 17 MR. CARR: Your Honor, I'm sorry. I have gone beyond 18 eleven already. 19 THE COURT: Okay. We will take a short break at this 20 time. I would remind you during all the breaks, this admonish 21 ment will hold, you are not to discuss this matter among your 22 selves or with anyone outside the jury panel or as of yet form 23 any opinions or conclusions about the matters on trial. The 24 Court will be in a short recess 1 (Court was in recess.) 2 (Plaintiffs' Exhibit 1274. was marked for 3 identification*.) 4 MR. CARR: Your Honqr, I 'jd offer Exhibit 1274 into 5 evidence. It is Dr. Paget'.s calculation on the necessity of 6 14,000,000 parts per billion 2,3,7,8 for the material to be 7 contaminated. 8 (Plaintiffs1 Exhibit 1274 was offer into 9 evidence.) . .. 10 THE COURT: Any objection? 11 MR. HEINEMAN: .Just -moment. No objection. 12 THE COURT: Fine. Admitted without objection, 13 thank you. 14 (Plaintiffs' Exhibit 1274 was admitted 15 into evidence.)* 16 BY MR. CARR: 17 Q Doctor, I'll now hand you Plaintiffs' Exhibit 1194, 18 which is a box containing Lysol. It has on the front of it the 19 contents of the dibenzo-p-chlorophenol concentration of 4.5 20 percent. Would you look at that and see if that isn't correct, 21 sir? 22 A Yes, sir. - 23 Q Now, I would like for you to calculate, if you would, 24 that's 4.5 percent of that bottle has the material in it that 1 is used, is prepared at Monsanto, that material is made for 2 santophen, you understand that, don't you, sir? 3 A Yes, sir. 4 Q I'd like for you to calculate for me, if you would, 5 the amount of contamination with 2,3,7,8 TCDD that would have tc 6 be in that 4.5 percent before ingesting the contents of that 7 bottle, or the number of bottles you have to ingest in order to 8 get chloracne at the level you have given us here. 9 MR. HEINEMAN: Well* I would object to that, your 10 Honor. That's calling for too .many unknowns, there is no way U to make that calculation. . ,, 12 THE COURT: Objection is overruled. 13 A Also, you have to bo-aware if you drank the contents 14 of this bottle you would, die from poisoning, from the phenol. IS Q Dr. Paget, that isn',,t the question that I am asking. 16 I'm asking you, making the assumption that you wouldn't die, 17 what's the level of contamination for that lysol that you would 18 need with 2,3,7,3 before you would get chloracne? 19 A We are going to assume-- * . 20 Q The calculation before, to make it easy for you, 21 Doctor, you can round it off, .your calculation before was based 22 on soil with ten percent, of OCP- in it, and that is Lysol, the 23 4.5 percent of the santophen, so you just round off the 4.5 and 24 make it much easier, just use the figure 5. 1 A I'll round it off ta fiver five percent of five grams 2 at a hundred-- 3 MR. HEINEMAN: .You are asking him in the whole 4 bottle? 5 A It's .14 percent. 6 Q Again, it's .14 percent, of course. 7 A Or, 1.4 million parts per billion, in fact. 8 Q 1.47 . .. 9 A Yes, I made an error in calculation. 10 Q So you are telling us now you made an error? 11 A I made an error. I .corrected it when I sat down here 12 and looked at that. It's actually 1.4 million parts per 13 billion, not 140. Well, I'm .sorry, sir, I calculated incorrect]. 14 Q Well, you want to calculate it again? IS A Yes, sir, can I do it with you? 16 Q You started out .14 .percent, did you not, sir? Is 17 that still the figure you are working from? 18 A That's .14 parts in ,ten-- - 19 Q Excuse me, Doctor, if you could just go with me, 20 1.4 percent. 21 A .14 percent, .14 percent, 7,000 micrograms in five 22 grams. 23 Q .14 percent, correct, sir? 24 A 0.14 percent. 1 MR. HEINEMAN: You said 1.4, Mr. Carr, that's why he 2 is correcting you. 3 Q Excuse me, .14 percent. . 4 A .14 percent, yes. 5 Q .14 percent is 14 over a .thousand, Is It not, sir? 6 A Well, can I do: it-- . 7 0 No, Doctor, if you don't mind, let's do it so that we 8 can understand it. 9 A Well, I'm trying to o it so I can understand it, sir. 10 Q 1.4 percent would be--- , II A .14 percent. .. 12 MR. HEINEMAN: .Objection,, your Honor. If he is 13 asking this man to do the calculation, then why doesn't he let 14 this man do it the way he wants to do it? 15 THE COURT: Overruled. Xt is proper, what he is 16 doing. 17 BY MR. CARR: 18 Q Doctor, your initial calculation is .14 percent, 19 correct, sir? 20 A Yes, sir. 21 Q Of whatever material that we are talking about? 22 A Yes, sir. 23 Q If it contains .14 percent of 2,3,7,8 TCDD it will 24 cause chloracne? 1 A If it was in five grams, sir. We are talking about 2 five grams 3 Q All right. 4 A As the material, year five grams of material, 5 0 Well, we will take the five grams, if the five grams 6 contains .14 percent of 2,3,7,8 TCDD, then that's going to cause 7 chloracne? 8 A A single dose might well.. 9 Q All right. And 1.4*percent is over a hundred, isn't 10 air? .... .. 11 A No, .14 percent--- .. 12 Q Would you just:-- 1.4, sir. 13 A Well, you keep saying 1.4, and I say .14 percent. 14 Q Doctor, would you please .wait a moment? I am 15 perfectly aware of where the .decimal point is in these two 16 figures. I can see that. . I put it there. I know where it is. 17 1.4 percent is over a hundred, isn't it, sir? 18 A 1.4 over a hundred ..is 1*4 percent. 19 Q And .14, if we. put 14 over a thousand, what do we 20 have, sir? 21 A That's .14 percent, .yes. . 22 Q .14 percent? 23 A No, that's 1.4-over *it, and a thousand is 1.4* 24 Q 1.4 ever a hundred is 1.4 percent. ] A 1.4 in ten squared. ,. 2 Q Dr. Paget, forget about the ten squared. 3 A Is 1.4 percent. 4 Q That's right, Doctors And move the decimal point 5 over one place, do we not, sir? Move over one place, and we 6 add a zero, don't we, sir?. 7 A All right, sir. No,. .14 .over a hundred is .14 percen 8 1.4 over a hundred is 1.4 .percent, .14 over a hundred is .14 9 percent. 10 Q Yes, but if we. eliminate the point, Doctor, move the 11 point over one place, eliminate the point, we add a zero. 12 A No, sir. 13 Q No? 14 A One 14 parts per thousand, .is 1.4 percent. IS Q Sure it is. That's jexactly right. 14 parts per 16 thousand is 1.4. If you multiply 1.4 times a thousand, what 17 will you get. Doctor? 18 A You will get, well, .you've got 14, in fact-19 Q And that's 14 out o,a thousand, isn't it, sir? 20 A That's 1.4 percent-- .-well, 14 out of a thousand is 21 1.4 percent, I'm sorry, sir, 14 parts per thousand is 1.4 22 percent, not .14 percent. 23 Q I agree. Doctor, and we are talking-- 24 MR. HEINEMAN: Well, youVve just been using different 1 figures with him, Mr. Carr. You told him 1.4 over a hundred- 2 MR. CARRi Yes, sir,, that's 1.4 percent. 3 A Yes, and 1.4 over a hundred is 1.4 percent, and 14 4 over a thousand is .14 percent. 5 Q Yes. ,. . 6 A So we are talking about 1.4 percent,and not .14 7 percent. ...... 8 Q All right. .14, and we put that over a thousand, 9 what will you have, Doctor? 10 A Well, I'm not sure. .-.14 over a thousand, what you 11 are trying to convey by that, sir. . 12 Q Doctor, .14 percentis less than one percent of a 13 hundred, isn't it, sir? ........... 14 A Yes, sir. , *. IS Q It's a little more than a .tenth? 16 A Yes, sir. 17 Q And we end up then with 1.4 parts per thousand, do 18 we not, sir? 19 A 1.4 parts per thousand, right. 20 Q Is that correct, Doctor? ... 21 A Yes, sir. That's the way. I wanted to do it* 22 Q All right. Fine. And so we end up then with what? 23 What is our final calculation. Doctor? 24 A 14 parts per lOyOOOy 140 parts per 100,000, or 1,400 1 parts per million, and so on, and we come to 1.4 million parts / 2 per billion. .. 3 Q 1.47 4 A Million parts.. ,_ 5 Q Well, Doctor, let's <even .work with that figure, all 6 right? That's 1,400,000, isn't it, sir? 7 A Yes. 8 Q So now the contamination .that's necessary in five 9 grams of soil has been reduced by a factor of ten. It's now 10 1,400,000 parts per billion? 11 A Yes. , 12 Q All right. And we qan eliminate the other calcula 13 tion and use-- no we c a n ' t b e c a u s e we .are out of paper. We 14 will put it back on this, one * with .your permission, and we will 15 put a scratch through that one and put in its place, reduce it 16 by a factor of ten, 1.4, make that a zero-- a comma, rather-- 17 now, is that correct, Doctor? Do you now go with this figure? 18 A Yes, sir. 19 Q All right. We've gat down some 240 parts per 20 million to 14 million parts per billion to 1,400,000 parts per 21 billion in the soil to be consumed? 22 A For one dose to be absorbed from five grams to give 23 you chloracne. 24 Q Or absorbed over a period of a month? J A Yes, sir 2 Q Because it does accumulate in the body? 3 A Yes, it does. .. 4 Q And every day as you eat some soil, that 2,3,7,8 goes 5 to the fat, a portion of it, doesn't it, sir? 6 A That's believed to he so,, yes, sir. 7 Q As a matter of f a c t w o u l d n ' t one have to be-- how 8 much of that 2,3,7,8 is being taken.from the soil, Doctor? 9 It's not all taken from the .soil, is it, sir? 10 A No, sir. 11 Q There have been some recent studies that indicate 12 that of the soil you consume only thirty percent is actually 13 2,3,7,8 comes out of it*. Are .you aware of these studies? 14 A I believe that's soy es ,, -sir. 15 Q So actually you would have to multiply that by three, 16 wouldn't you, sir? 17 A Yes, sir. $ 18 Q If it is in soil? 19 A Yes, sir. 20 Q So actually it* s not the eoil would have to be 21 contaminated with 4,200,000 parts per billion in order to cause 22 chloracne, wouldn't it, sir?. 23 A If one dose of five .grams were to cause chloracne, 24 yes, sir. 1 Q All right. So actually we are now back up to 2 4*200,000 parts per billion in soil because two-thirds of the 3 2,3,7,8 that's in that soil is going to pass out and not be 4 stored and therefore won't be there long enough to cause any 5 problems? 6 A Yes, sir. 7 Q So you have to get in your body, accumulate it, these 8 7.000 micrograms that you are discussing for a 70-kilogram, 9 150-pound man, correct, sir? 10 A Yes, sir. 11 Q So actually this is .the final figure we are talking 12 about, 4,200,000 parts per billion, according to your now most 13 recent calculations, is that correct, sir? 14 A Yes, sir. 15 Q All right. Now, Dr^ Paget, a child, of course, say 16 a child that weighs one-third the man's weight, say he weighs 17 50 pounds, which would of course-- he could take in one-third 18 of that content, correct, sir? 19 A Yes, sir. 20 Q So a child would have to ,eat in a month's time either 21 soil that's contaminated, five grams of soil that's contaminated 22 with 12,600,000 parts per billion in the five grams of soil, 23 or would have to eat 15 grams of soil contaminated with 24 4.200.000 parts per billion, is that correct, sir? 1 A No, sir, the child rould eat less, I presume, i the 2 child is smaller, a smaller .dose would produce chloracne. 3 Oh, why yes, I tripled it instead of dividing it, 4 correct. So he could eat one and a third grams of soil contam 5 inated with 4,200,000 parts per billion in order to get 6 chloracne? 7 A Well, strictly, one .and two-thirds. 8 Q Well, one and two-thirds, isn't that correct. Doctor? 9 A Yes, sir. 10 Q Now, do you know any. product at Monsanto that could 11 be-- or any other product anywhere that would be capable .of 12 contaminating soil with 4,200,000 parts per billion of 13 2,3,7,8 TCDD? 14 A No, sir. 15 Q There isn't any? You've never read or heard of any 16 manufacturing process anywhere that could cause soil to be 17 thusly contaminated, isn't that correct, sir? 18 A That's so, sir. ... 19 Q And therefore, no soil that a child is likely to play 20 in contaminated with 2,3,7,8 can cause chloracne, isn't that 21 correct, sir? 22 A By the absorption of one .five gram, or one and two- 23 thirds gram dose, yes, sir. 24 Q Now, if they eat more than-- -well, they would have to 1 eat soil that contains a thousand parts per billion, how many 2 grams of soil would they have to eat, Dr. Paget, contaminated 3 with a thousand parts per billion of 2,3,7,8 in order to get 4 chloracne? .. 5 A About 50 milligrams.. 6 Q 50 milligrams? 7 A Yes, sir* 8 Q I thought five grama .would-- -- you would have to eat 9 five grams containing 4,200,000 parts per billion? 10 A I made the same mistake that you made, sir* X 11 divided and should have multiplied, so let me multiply instead 12 of dividing. 13 Q Surely. 14 A Well, with reservations about my arithmetic, about 15 210 grams. 16 Q 210 grams? ,- 17 A Yes, sir* 18 Q At a thousand? Now,. Doctor, your man has to eat 19 five grams of soil with four million-^-- now I've reduced it to 20 1,000 parts per million-- -per billion-- I've reduced it by 21 4,200 parts* So wouldn't you multiply by 4,000 times the five 22 or the 4,000 times the one and two-thirds grams? 23 A Well, 4,000 times one, yes* I'm sorry, you're quite 24 right, yes, sir. 1 Q So, 4,000 times two .grama, you would eat 8,000 grams 2 of soil? 3 A Yes, sir, v, . 4 Q A 50-pound child would have to have ate-- 5 A Over a period, yes* ... 6 Q In a period of.a month? < 7 A Yes. 8 Q 8,000 grams of, soil* if there is 30 grams to the 9 ounce, how many pounds of dirt would he have to eat to get 10 chloracne? II A About 16 pounds, about eight kilograms, about 16 12 pounds. , 13 Q So do you know of any child anywhere that has-- have 14 you ever heard of a child-eating 16 pounds of dirt a day? 15 A No, sir. ,,,, 16 Q And have you ever heard of any soil-- 17 A It is not a day, six. It -is in a month. 18 Q In a month's time? ,,. 19 A I'm not sure that that's not possible. It is about 20 a half a pound a day. 21 Q Have you ever heard jof any soil that's been contami 22 nated as much as a thousand parts per billion? 23 A No, sir. ,,. 24 Q So then really ,all this concern that we have had 1 about the dioxin sites in Missouri where their contamination 2 levels are manyf many times lower than a thousand parts per 3 million, really all of that we've just been barking up the 4 wrong tree; haven't we, Dr. Paget? 5 A X think a lot of that concern is misplaced, yes, sir,. 6 Q And the CDC's concern, you wouldn't really be 7 concerned about contamination of 1,000 parts per billion in S the soil for children, and the CDC's concern of one part per 9 billion is way off base? 10 A Well, sir, of course in any estimation, you could 11 include considerable safety factors. We .have been talking 12 about a dose that would cause chloracne. 13 Q Dr. Paget, that thia chloracne is going to go away 14 a month after the child quits eating dirt. Now, every child-15 and every child that X know .of gets acne at some time or 16 another in his life that lasts from sometimes for years. X 17 had acne that lasted for many years, all through my teenage 18 years and into my manhood. Now, that's not unusual to have 19 acne?' 20 A That1s very common, .yes. . 21 Q And if chloracne is .really nothing worse than a case 22 of teenage acne, what's the concern, Doctor? 23 A Well, sir, one doesn't want children to have-- -I'm 24 sure you, having been a sufferer, you would agree that if you 1 could prevent acne It would be something that's very highly 2 desirable It Is a dreadful disease. 3 Q Is It highly desirable that they would condemn an 4 entire town and move the people out just so the kids wouldn't 5 get a case of acne, Doctor? 6 -MR. HEINEMAN: Excuse me. He Is asking this witness 7 to speculate or give his opinion of propriety of the actions of 8 the EPA or the U.S. Government at Times Beach, that's irrele 9 vant and Immaterial to this lawsuit, and I object to It. 10 THE COURT: Overruled. I think it is relevant and 11 material. 12 A Well, sir, If you include a safety factor In the 13 calculations we have been doing and the safety factor of a 14 thousand fold might not be inappropriate for this sort of 15 thing, and I think you would agree that-16 Q Doctor, we are not even talking of a safety factor 17 of a thousand fold, because the thousand is what I gave you 18 hypothetically. You are talking about soil that has to be 19 contaminated to 4,200,000 parts per billion. We are not talking 20 about a safety factor of a thousand, are we, Doctor? 21 A We were talking about that concentration being such 22 as would be required to give chloracne from one dose of five 23 grams, sir. 24 Q Or a lot of little doses over a period of a month 1 adding up to five grains 2 A Amounting to five grans. , 3 Q And, Doctor, we are not talking about a safety factor 4 here* What you are saying .to us as a representative of 5 Monsanto is that there is no concern about soil until it reachef 6 the level of 4,200,000 parts per billion in the soil? 7 A Wo, I didn't say that, sir* I said that that's the 8 dose which would surely give chloracne, and if one has to-- 9 Q Wo, you said that was a threshold level. You didn't 10 say would surely give, you said that is the threshold level for 11 chloracne, isn't that correct* Dr. Paget? 12 A Yes, sir, that's the dose at which I was quite wrong 13 to say surely. This was, the ,dose at which chloracne might be 14 expected, yes. ....... 15 Q And in a lot of people it would take a lot more than 16 that to cause chloracne,. and in some people, according to your 17 testimony here before, they are just not going to get chloracnef 18 no matter how much 2,3,7,8 TCDD they ingest? 19 MR. HEINEMAN: Objection* your Honor, it mischaracter- 20 izes his testimony. 21 THE COURT: Overruled. * 22 A I don't believe X ever said that, and if I said that, 23 it was not correct. 24 Q Well, you did suggest that the chloracnogenic respons a 1 varies from person to person. . 2 A Yes, sir. 3 Q And what you have given us was the threshold level 4 for the most sensitive person, didn't you, sir? 5 A Yes, sir. 6 Q So there has got to h e -- .and since there are some 7 people that have chloracne and some people that don't, fifty 8 percent of the people there didn't have chloracne. Apparently, 9 and from the facts that we know as far as their exposure and 10 what they took in, apparently half the people there didn't get 11 chloracne, and presumably they were working in the same area, 12 you know nothing to the contrary, isn't that correct, Dr. Paget 13 A That's correct. I know nothing to the contrary. 14 Q So the threshold dose of .4,200,000 for a 70-kilo man IS eating five grams of dirt in a .period of a month would have to 16 be increased for those less sensitive, correct, sir? 17 MR. HEINEMAN: Objection,, your Honor, that's not the. 18 threshold dose. He is using the wrong term again. 19 THE COURTS Overruled. 20 Q Isn't it the threshold dose. Dr. Paget? 21 A That's under the very special circumstances-- 22 Q And it is a threshold dose? 23 A Of eating that five .grams of soil. 24 MR. HEINEMAN: In soil, Mr. Carr, you get 7,000 A 1 micrograms of a dose, .. 2 Q And, Doctor, this threshold level is for the most 3 sensitive human beings, isnVtit, sir? 4 A That's the 7,000 micrograms as the level at which 5 one might expect most sensitive people to get chloracne* 6 Q And these people that ingest that amount of soil 7 contaminated-- -or any other product in the same five grams of 8 anything-- it doesn't have to he soil, would not get chloracne 9 and they wouldn't get anything else, and so they don't need to 10 worry about it? 11 A No, sir, because one likes to incorporate very large 12 safety factors* 13 Q Well, why? The only thing they are going to get is 14 chloracne, isn't that correct. Dr, Paget? 15 A 1 wouldn't say that .even .ordinary acne is something 16 that you could describe as-- 17 Q Well, Doctor, isn't ,,the only thing that they are 18 going to get is chloracne?........ 19 A That's what 1 believe, yea, sir. 20 Q And so we have, indeed then spent these years of 21 concern about 2,3,7,8 TCDD -in exposure to children and to human 22 beings, really what we're really talking about is acne, that's 23 all we are really talking about, that's our only concern, is 24 that correct. Dr* Paget? .->,, . / 1 A Hor air. 2 Q Do we have other concerns because of exposure to 3 2,3,7,8, Doctor? 4 A Well, until the situation is completely understood, 5 yes, of course one has to .have concerns. 6 Q Do we have concern that very low doses might accumu 7 late in a period of time, .doses, insignificantly small fraction 8 of 4,200,000 parts per billion, just might cause cancer in some 9 body, do we have that concern, Doctor? 10 A One has a concern about---. 11 Q Doctor, do we have that concern with relation to 12 2,3,7,8 TCDD? 13 A Until the factor is ,,studied, yes, of course one has 14 that concern. .. -- ..... . 15 Q It's been studied for a number of years, and we still 16 have that concern? 17 A Yes, sir. 18 Q And should we not be concerned about very low doses 19 over a period of time causing neuropathies? 20 A One should be concerned about the possibility that it 21 causes..anything, including things that we don't even know about. 22 Q Excuse me, Doctor, could you just direct your atten 23 tion to the ones that I am talking about? Should we have 24 concern that very low doses over a period of time will cause 1 peripheral neuropathy? 2 A That depends on what, you .mean by very low doses. 3 Q Any doses? 4 A No, not any doses. ,, 5 Q Doctor, haven't we established that the EPA has not 6 yet established a no-effectlevel for 2,3,7,8 exposure? 7 A I don't know that, air. ,. 8 Q You don't knowthat?.. 9 A No, I don't. . 10 Q Now, Doctor, would you assume that it's been testi 11 fied here by toxicologists that-- you are a toxicologist, 12 aren't you, sir? 13 A Yes, sir. 14 Q Don't you keep up on what the EPA pronounces? IS A Well, 1 don't know that they have mot established an 16 effect level. I know that they haven't established a maximum 17 safe level. . .- . 18 Q Well, have they established a minimum safe level? 19 A 1 don't think they ever do that for anything. 20 Q Well, the question is have they established a no 21 effect level that you know of. Dr. Paget? 22 A No, sir. 23 Q And, Doctor, they are not willing to say that any 24 dose of 2,3,7,8 TCDD, no matter how small, may not have effects 1 upon man, isn't that correct, sir? I 2 A I don't know that, air, no* 3 Q You don't know that* Dr. .Paget? 4 A No, sir. 5 Q Well, have they announced a level of which it is 6 safe? ,, ,, ., 7 A No, sir, and that's .different. 8 Q All right. And, Doctor, ,,they can measure down to the 9 million parts per billion, can't they, sir? They have the 10 capacity to do these same calculations that you do? 11 A Oh, yes, sir. 12 Q And, Doctor, shouldn't we be concerned then about 13 very low doses causing loss .of libido, for instance, in man? 14 A X don't know, sir. .. . .. IS Q My question is, not whether you know, my question is 16 shouldn't we,have concern about .that? 17 MR. HEINEMAN: -Well* I object to it. If he doesn't 18 know, how can he answer the ,,question? 19 THE COURT: Overruled20 A It depends on what you mean by.very low doses. 21 Q - Low dose is a lot, lot, thousands and thousands of 22 times smaller than 4,200,000 parts per billion? 23 A That's not a dose, sir. 24 Q It is if you eat in ive .grains of soil. Dr. Paget. 1 A That's the dose we expect, might very well cause 2 chloracne, so one would want to have a very large safety 3 measure between that dose .and-- -- 4 Q Doctor, we are not now talking about-- - 5 MR. HEINEMAN: May he answer the question, your 6 Honor? ,- - 7 MR* CARR: If he answered, the question I asked, I 8 wouldn't mind. -- ... 9 MR. HEINEMAN: I would like a little courtesy in the 10 Courtroom. 11 THE COURT: Overruled.' Xt was not responsive* 12 MR. HEINEMAN: I.think it was responsive. 13 A Could you repeat the. question, please? 14 MR* CARR: I'd like the Court to instruct the jury IS that they should disregard what Mr. Heineman just said and did. 16 They should not be influenced b y .comments that counsel makes 17 that are completely improper to a Court that's making its 18 ruling, and I would ask the jury to disregard what he just said. 19 THE COURT: The jury, is so instructed. When I make 20 a ruling, that stands. 21 MR. HEINEMAN: .Your .Honor, with my respect to the 22 Court-- - 23 MR. CARR; Your Honor, X .suggest it is not respectful 24 to the Court for him to say what he said* 1 HR. HEINEMAN: bYour^Honor, it was respectful tothe 2 Court. I believe I have a right-- 1 am certainly not question 3 ing this Court's rulings with respect to the evidence in the 4 case. 5 MR. CARR: What did ^ou just do if you didn't questioi 6 his ruling? . 7 THE COURT: Mr. Heineman* the point is that the time 8 to express your opinion as .to a ruling is before it is made 9 when the point is being argued before the ruling is made. I 10 would assume if you made the objection that your opinion is, 11 however it is expressed in the objection, it does not need to 12 be repeated after the ruling .has been made, which is what you 13 did in this particular case. I'd let it go before, but counsel 14 did properly note it, and .1 am instructing the jury to disregar< 15 it. 6 MR. HEINEMAN: -Very .well,, sir. 17 THE COURT: Please read the question back. 18 (The previous question was read by the 19 Court Reporter..) 20 BY MR. CARR: 21 Q Doctor, have you ever at .Monsanto or anybody that you 22 know of, have you ever advised the EPA or the Center for 23 Disease Control or OSHA when they came to the plant that they 24 are way off base in their concern about human and worker safety! I MR. HEINEMAN: Excuse me, your Honor. May I object? 2 He Is changing the question and abandoning the question that he 3 just asked. 4 THE COURT; X assume If he hasn't followed it up he 5 Is abandoning the question. 6 ^ MR. HEINEMAN: He Is not asking the witness to answer 7 that question? All right. 8 TOE COURT; Go ahead. 9 A No sir. I have never advised the EPA about their 10 concern no no sir. 11 Q Well, do you know if Monsanto has? 12 A I don't know, sir, no. 13 Q Do you know if--well, you know. Doctor, that there 14 are Immense sums of money being spent relative to the dioxin 15 problem, you are aware of that? 16 A Yes, sir. 17 Q And you are aware of the Agent Orange case involving 18 millions of dollars, and you are aware of the Times Beach 19 cleanup and Minker-Stout cleanup costing millions of dollars? 20 You are aware of all those-- 21 MR. HEINEMAN: Your Honor, X object to this. It is 22 nothing but a speech to the jury. He is just trying to inflame 23 the Jury. It has nothing to do with the merits of this lawsuit 24. and X object to it. 1 THE COURT: Overruled. X think it's properly a subjei 2 of.the question. 3 A Well, it depends whet you mean by aware, sir. Some 4 of these I have the same awareness of any reader of the news* 5 paper has, and that's all.. .. 6 Q Well, that's enoughs Monsanto presumably, you among 7 others read the newspapers, don't you, sir? 8 A Yes, sir. 9 Q And you know what's jgoing on here. Have you ever, 10 you at Monsanto during the period of time that you were on 11 this case and a toxicologist, did you ever advise-- well, OSHA 12 was there, OSHA was there during .the time you were a toxicolo 13 gist and they made a report during the time you were a toxi 14 cologist working for the Krummrich manufacturing process. Did IS you tell OSHA, well, that's only .150, only 150 or 120 parts per 16 billion in that soil. And you don't need to rope off that 17 space there, those workers aren't going to get down there and 18 eat five grams of soil a month, and even if they did, it's only 19 got 150 parts per billion of 2,3,7,8 in it? Did you ever tell 20 OSHA they were concerned about nothing? 21 MR. HEINEMAN: Your .Honor, I'll object. The witness 22 has already testified that he was not involved in the OSHA 23 situation at all. 24 THE COURT: Overruled. 1 A No, sir. 2 Q Doctor, you did have, a meeting in which you discussed 3 the 2,4 dichlorophenol being produced and marketed at the 4 Monsanto plant, didn't you, .sir? . 5 A I'm sorry, sir, there may as well have been such a 6 meeting, yes, ... - 7 Q Let me hand you a letter ,,that we received yesterday 8 afternoon at 1:30. 9 (Plaintiffs' Exhibit 1275. was marked for 10 identification*) 11 Q I'm handing you what's been marked Plaintiffs' 12 Exhibit 1275 and ask you to look at that and see if you don't 13 recognize that as involving you and where you made an evaluatio 14 You recognize that as a memo involving you? 15 A Yes, sir. , 16 MR. CARR: I offer 1275 into evidence, if it pleases 17 the Court* 18 (Plaintiffs' Exhibit 1275 was offered 19 into evidence,1 20 THE COURT: Any objection? 21 MR, HEINEMAN: Your -Honor, we have previously 22 objected in this case to.any information relating to 2,4 di 23 chlorophenol as not being relevant to the merits of the issues 24 in this case. We would continue that objection with respect J 1 1 to this particular document# and of course we have previously 2 objected on other grounds which the Court has ruled on# which 3 is why Mr* Carr got the letter yesterday afternoon. 4 THE COURTS Fine# okay- .It is admitted over 5 objection* Gentlemen# could I see you at the bench for just a 6 minute# please? ^. 7 (Plaintiffs' Exhibit 1275. was admitted 8 into evidence.). 9 (The following proceedings were held at JO the bench.) 11 THE COURTS Before we get into this# it is close to 12 noon. X want to break now. .Before that# I want to tell you. 13 You submitted something in camera yesterday. One letter# a 14 memorandum or however you characterize it-- - 15 MR. HEINEMAN: Yes# J think that's right. 16 THE COURT: X want you to produce that except for the 17 part on legal fees# the footnote on legal fees. You can white 18 that out if you want# but-the rest of it has to be produced. 19 MR. HEINEMAN: The whole .thing# you mean? 20 THE COURT: There ia onesection on legal fees# have 21 you seen the document? - 22 MR. HEINEMAN; I think I',ve got a copy. I've only 23 looked at it very casually. 24 THE COURT: Okay. For the record# X want you to 1 produce all of it except the part on legal fees. If you don't 2 understand which parts I mean, I will take you in Chambers and 3 show you the part. 4 MR. HEINEMAN: Would you .please? 5 THE COURT: Okay. And we will break for lunch at 6 this time and I want it done by 1:30. 7 MR. HEINEMAN: ThatVs no problem. 8 (The following proceedings were held in 9 open Court.) 10 THE COURT: Ladies and gentlemen, we are going to 11 break for M u n c h at this time. The admonishments that I .gave 12 you earlier would apply during this break also, and we will 13 resume at 1:30. Thank you .for your attention and cooperation. 14 The Court is in recess for lunch. 15 (At this time Court was in recess for lunch.) 16 (The following proceedings were held in Chambers , 17 THE COURT: Okay, what are we doing back here? 18 MR. HEINEMAN* The thing .1 talked to you about right 19 before lunch, about making the record. 20 THE COURT: Right. We will have to do that. That 21 will just take a minute. 22 MR. HEINEMAN: The Judge,, the Court has ordered that 23 we turn over to Mr. Carr a portion, or turn over the document 24 which was submitted for the Court's review in camera on Friday 1 with certain portions deleted* We would ask before we turn 2 this over to the Court, obviously, we have taken the position 3 that this information besides being privileged is totally 4 irrelevant and not calculated to lead to the discovery of 5 admissible evidence which .1 am assuming the Court has already 6 considered in making its. ruling* .. . 7 THE COURT; Right. 8 MR* HEINEMAN : We would ask the Court at this time 9 to stay its Order to turn .this over and to certify this 10 question for appeal so that we might be able to take it up 11 before this information is .disclosed to the attorneys for the 12 Plaintiffs* 13 THE COURT: Do you have anything you wish to say, 14 Mr* Carr? *. -- -, 15 MR* CARR: Yes, your Honor* They could have taken 16 that position a year ago if they wanted to. We're very close, 17 hopefully, just a few days away from resting. And there is no 18 time to delay the trial of this case while they take that up 19 on appeal. 20 THE COURT: Anything, else you want to say? 21 MR* HEINEMAN* No, your Honor. This document was not 22 responsive to any other request of Mr* Carr's other than the 23 most recent occasion when the Court ordered us to produce 24 anything that had the word dioxin in it. It was subject to ] that Order that this document was turned up, and it's clearly 2 not related to any of the .other requests that Mr. Carr has 3 made. Therefore, it's only very recently that it's turned up, 4 fairly recently that it's ..been responsive to any ordered 5 production. And therefore, .we can't help the shortness of 6 time. We're stuck with it just as everyone else is, and we 7 still make the request to .the Court. 8 THE COURT: X am denying .the request. First of all, 9 X think it has been covered in prior requests. Number two, I 10 think it is relevant and material, and in fact is probably 11 relevant and material to. the matters in the section of' the 12 trial that we are in at this time. And you could have taken 13 this position on this document a long time before. X don't 14 think that there is any substantial compelling or just reason 15 to delay enforcement of this.. X .am ordering you to turn it 16 over, and I am denying your request for a stay to allow you to 17 appeal to the Appellate Court on it. Okay? 18 MR. HEINEMAN: That's it.. 19 (The following proceedings were held 20 in open Court.k 21 MR. CARR: X need ta pass Exhibit 1275 to the jury 22 at this time. 23 THE COURT: Fine. 24 BY MR. CARR: 1 Q Doctor, this Exhibit deals with, as we started to get 2 into before lunch, a meeting that was held on the 22nd-- - 3 apparently on the 11th of .May, 1979, and again on the 22nd of 4 May, 1979, is that correct, sir? 5 A Yes, sir. y 6 Q --And you were one of .the participants at either one 7 or both of these meetings, is that correct, sir? 8 A Yes, sir. >. . 9 Q And you were asked to give your judgment to evaluate 10 the 2,4,6 trlchlorophenol that is present in many of the II chlorinated phenols produced by Monsanto, isn't that correct, 12 sir? .. 13 A Yes, sir. * . 14 Q And you, of course,knew that the 2,4,6 trichloro- IS phenol is also present and -was present in the orthochlorophenol 16 crude that was manufactured in this case-- 17 A I don't know. 18 Q You don'tknow. thatZ 19 A No. .. ' 20 Q Well, you do know that there was tricholorophenols in 21 that product, don't you, sir? 22 A Z believe there were other chlorophenols, sir. Z 23 don't know which ones were present, no. 24 0 Well, there is an Exhibit in evidence that indicates 1 that trichlorophenols were present In the OCP tank car. Would 2 you accept that, please, sir? 3 A Yes, sir. 4 Q For the purpose of this. And the 2,4,6 trichloro- 5 phenol or any trlchlorophenol for that matter would be 6 considered an impurity, wouldn't It, in the product you are 7 putting out? 8 A Yes, sir. 9 Q And you of course also, now back in the trichloro 10 phenols there can be tetrachlorodibenzo-p-dloxlns, you know 11 that, don't you, sir? 12 A I believe that, yes, sir. 13 Q And the 2,4 dlchlorophenol that's being manufactured, 14 .of course, is being sold to customers and it contains levels 15 of 2,4,6 trlchlorophenol and also contains levels of dioxin at 16 that time. You knew that, did you not, sir? 17 A I didn't know the levels of dioxin, no, sir. 18 Q Well, I didn't ask you if you knew the levels of 19 dioxin. You knew it did contain levels of dioxin, didn't you? 20 A Yes, sir. 21 Q And at that point in time, you of course had In your 22 mind the levels of contamination that would have to be 2,3,7,8 23 TCDD before you would consider it something that could cause 24 chloracne, you had that in your mind at that time, did you not, 1 sir? 2 A Yes, sir, 3 Q And you were asked to give an opinion as to whether 4 or not a hazard existed relative to the 2,4 dichlorophenol that 5 was being sold, were you not, sir? 6 A Yes, sir, -* 7 MR, HEINEMAN: .Objection. Oh, you mean in this : 8 matter? 9 MR, CARR: Yes, * 10 MR, HEINEMAN: All right, I thought you meant back 11 in *79. 12 MR. GARR: This was -in *79, counsel. This meeting 13 was in May of *79, 14 MR, HEINEMAN: Well* I thought you meant February, IS BY MR. CARR: 16 Q You were asked to give an opinion at that time as to 17 whether or not the impurities in the 2,4 dichlorophenol was 18 being manufactured and sold to your customers were of a nature 19 as to pose a substantial- risk of injury to the health of the 20 ultimate users or the environment, isn't that correct, sir? 21 A No, sir. . 22 Q Would you direct your attention to the last paragraph 23 on this document. Page 1275, .last paragraph on the first page? 24 A Yes, sir. 1 Q Are you discussing there ,,whether or not 2,4 dichloro2 phnol as being in produced and marketed represents a substanti 3 risk to-- 4 A That*s what the meeting was about* That's not what 5 I was asked to evaluate* 6 -- Q You were asked only ,to evaluate only the 2,4,6 tri7 chlorophenol? 8 A 1 was asked to- evaluate just specifically an NCI 9 bioassay report on the carcinogenicity of the material on the 10 2,4,6. II Q Well, did you offer ^ah opinion then on just the NCI 12 bioassay study dealing with 2,4,6 trichlorophenol? 13 A That's what I was asked to evaluate, yes, sir* 14 Q And you did not evaluate any other impurity or the 15 risk that might be associated with other contaminants in the 16 2,4 dichlorophenol other than the 2,4,6 tripchlorophenol 17 contaminant? 18 A No, sir, that's what I was asked to evaluate* 19 Q Well, did anybody at that meeting, did you not 20 discuss the fact that dioxins are known to be in the 2,4 di 21 chlorophenol when you all determined whether you should or 22 should not notify the EPA as to the existence or nonexistence 23 of a substantial risk? 24 A I didn't, no, sir* * 1 Q Was it; even discussed at .those meetings? 2 A Z can't recall, no, .sir. ^ . 3 Q Dr* Paget, if you all knew dioxins were in 2,4 di4 cholorophenol, you all knew .that, did you not, sir? 5 A X am not sure what was known at that time, sir, in 6 Hay* I certainly wouldn't have known what specific dioxins 7 were there* 8 Q Well, you would have known that it contained the 9 tetradioxins that elute at .the same retention time as 2,3,7,8 10 TCDD? 11 A I'm not sure whether that was known or not, sir. 12 Q Well, please accept my word for it that it was not 13 known, and there are existing Exhibits in evidence that 14 reflect that* 15 A If you say so, yes, jsir* . 16 Q And was it-- you had to know that in order to give 17 an opinion as to whether or not a hazard exists? 18 A Sir, I was not asked to give an opinion as to whether 19 a hazard existed, but only to evaluate-20 Q Well, didn't you-- -what did you do then just at that 21 meeting, ignore the fact that TCDD1s and other dioxins were in 22 2,4 dichlorophenol? 23 A I don't know what other people did, but my participa 24; tion in that meeting was limited to evaluating the NCI bioassay I report 2 Q Well, Doctor, you know from your experience and 3 knowledge as a toxicologist that .2,3,7,8 TCDD is thousands and 4 thousands of times more toxic than 2,4,6 trichlorophenol, you 5 know that, don't you, sir? . 6 A I don't know about thousands and thousands. I know 7 it is more toxic, yes, sir. 8 Q Doctor, wouldn't the fact that .the 2,4 dichlorophenol 9 that is being manufactured .by Monsanto contains more than just 10 2,4,6 trichlorophenol as an impurity, that it also contains 11 tetradioxins that elute the same way as 2,3,7,8 TCDD elutes, 12 the same retention time, don't .you consider that that presence 13 of the tetras in that 2,4 .dichlorophenol poses a greater threat 14 to the ultimate user, to the house of the user or the environ* 15 ment than the possible effects of 2,4,6 trichlorophenol? 16 A I don't know what the concentrations were, sir. This 17 meeting was to consider the 2,4,6. 18 Q There were chemists .at that meeting, there was J. D. 19 Wilson. He was there, he is .an organic chemist. Did you 20 inquire of Mr. Wilson, Dr. .Wilson, if any chemists as well were 21 asked to determine whether or not we should notify the EPA 22 about 2,4 dichlorophenol, .are there possibly TCDD's in this 23 that we should consider,, did .you ask that, Dr. Paget? 24 A Wo, sir. I Q Did anybody ask that;.at that meeting? 2 A I don't recollect whether they did or not, sir* 3 Q Dr. Paget, at this point in time you were surely 4 aware of the program that was being .undertaken, it had been 5 under way since March, at ,least, to determine the TCDD content 6 of the various products,, and.you .had reports by this time, a 7 number of reports, and you are taking it up to the Biohazard 8 Committee. Surely at that meeting you were aware of the fact 9 that there could be something in your ,2,4 dichlorophenol that 10 could be of a greater hazard .to the health of the people than II just 2,4,6 trichlorophenol, surely you were aware of that, were 12 you, sir? 13 A Z don't know, sir. 1 don't know what was discussed 14 other than the evaluation,of this 2,4,6 trichlorophenol.from 15 the NCI which was what the meeting was called to discuss. 16 Q Now, Doctor, there was further mentioned in this 17 memo that in order to prevent possible misuse of the product 18 by a customer, it is recommended that the responsible business 19 group send a letter to its customers for this product referring 20 to the NCI bioassay describing the present 2,4,6 trichloro 21 phenol content of the product, .and the plans which are under 22 way to Improve the purity ..of the product. Now, do you know 23 whether or not the customers were sent such a letter? 24 A No,, I don't, sir. , . ] Q And if such a letter; .were sent/ do you know whether 2 or not they discussed and .told .the customers that there is more 3 than just 2/4/6 trichlorophenol in this product/ there is in 4 addition, tetrachlorodibenzo-p-dioxins in this product/ do you 5 know whether or not that was .ever done? . 6 A NO/ sir. 7 Q Now, Doctor/ did you have meetings at Monsanto in 8 which you discussed with, others your opinions as to the amount 9 of 2/3/7r8 TCDD that would .be necessary to ingest before one 10 would get a case of chloracne#. was that discussed by you and 11 others? 12 A At this meeting/ six? 13 Q Not at that meeting* .at any meeting? 14 A I'm sure it wasf yea# six. . 15 Q And all of the, actions that were taken by the-- or 16 the actions that were taken by Monsanto that you know of, they 17 had in mind this premise of yours as to the toxicity of dioxin? 18 MR. HEINEMAN: .Let me object to the form of the 19 question calling for sheer speculation. 20 THE COURT; Overruled. 21 Q Do you know that. Dr. Paget? 22 A NO/ sir, 1 don't know that. 23 Q You don't know what it was or was not? 24 A NO/ sir. ^s 1 Q You do know that you expressed that opinion? 2 A X expressed what opinion? I'm sorry# could you say 3 what opinion you assume X -expressed? 4 Q You expressed your opinion as to the amount of dioxin 5 it would take in order to cause chloracne. We have discussed 6 it a greater part of the morning. 7 MR. HEINEMAH: Object. Xt is vague and indefinite# 8 expressed to whom# when# vague and indefinite# .your Honor. 9 THE COURT: Overruled. L think that was clarified :: 10 in the questions prior to that one* Overruled. 11 Q Could you answer that question? 12 A If I have been asked, my opinion# I would have given 13 it. 14 Q My question ls> you did give that opinion# did you 15 not# sir? 16 A X can't recall-when gave it or on what occasions# 17 no# sir. . 18 Q Well# did you discuss this subject with Dr. Rousch? 19 A I'm sure X did# yes* sir< 20 Q And did he agree with you# or you and he in agreement 21 as to the amount of dioxin -it takes to cause acne to occur? 22 A I'm sure we would've been# yes# sir. 23 Q Have you learned anything frena Dr. Rousch since that 24 time that he has perhaps changed his mind as to the level of I dioxin contaminant necessary before one gets the condition 2 called chloracne? .... . . 3 A I don't believe we discussed this, sir. 4 Q Well, at any event, .you all decided at that meeting 5 that you did not need tonotify the EPA and that you did not 6 need to notify the customers as to anything other than the 7 2,4,6 trichlorophenol content of the products, is that correct, 8 sir? 9 A That's so, yes*, sir., 10 Q And you of course, you are aware of the fact that the 11 2.4 dichlorophenol goes into products such as Weed-B-Gon and 12 2.4 D that we have* X don't think I've discussed it with you, 13 but that Hr* Musgrave has .discussed with witnesses prior to the 14 time you took the stand*. ..You knew that had taken place, I take IS it? 16 A I'm sorry. I'm-not sure what you are asking. 17 Q Well, X am not sure that .X put it in a frame that 18 you could properly answer, ,Dr. Paget. You are aware of the 19 fact that we had discussed in this case that Weed-B-Gon and 20 2.4 D contains Monsanto product called 2,4 dichlorophenol? 21 A Wo, sir, I am not aware of that. 22 Q You are not aware of. that? 23 A No. 24 Q Well, do you know that 2,<4 dichlorophenol goes to 1 customers who use it in making .the products known as 2,4 D or 2 Weed-B-Gon? ., 3 A Yes# sir, ,,, 4 Q All right. And you A o know that ultimately# the 5 product is going to be used by the--- well# by the homeowner# 6 by people that have farms#, . by. all kinds of people that are 7 involved in controlling dandelions and other weeds? 8 A Yes# sir. . 9 Q And you do know that it's going to be sprayed.on the 10 lawn# it*s going to be mixed in gallons of water# for instance. 1) 1 think if you looked at that .Weed-B-Gon can you will note that 12 it takes four teaspoons of .Weed-B-Gon to a gallon of water. 13 A X don't know it# but I believe that might be the case 14 Q And do you know that the Jtfeed-B-Gon contains nearly 15 eleven percent of .the 2,4 dichloropheiioxyaceitlc acid? 16 A X don't know# but it .you ..will tell me so# X will 17 believe it# yes. 18 Q And you do know that customers will be ultimately 19 exposed to that content either on your lawn or on their dirt# 20 or somehow they can come in contact with it? 21 A Yes# sir. 22 0 Now# would the same .percentage that is .14 percent 23 that you gave us for the soil contaminants# and you mentioned 24 it for the hysol# would that same percentage work for the 1 2,4 dichlorophenol that has 2,3,7,8 TCDD in it? 2 MR* HEINEMAN: Your ^Honor;, let me object to the form 3 of that question as being so vague and indefinite. We are 4 talking about different material, different substances, 5 different amounts. I can't imagine how anybody could figure 6 that out. 7 THE COURT: Overruled. 8 A You would have to tell me what assumptions you wish 9 me to make, sir. .... 10 0 Well, is the toxicity of .2,3,7,8 TCDD affected by 11 the substance that it contaminates? 12 A Not as far as X am aware,, no, sir. 13 Q If you get it into your system, it doesn't make any 14 difference whether it's on grass and y o u e a t the grass, or on IS the dirt and you eat the d i r t o r if it's on the grass and you 16 lay on the grass as Mr. Kidwell fell to the ground in sturgeon, 17 or if you-- -however you come in contact with that. If It gets 18 into your system, whether you eat it or inhale it or drink it, 19 it gets into your system, and it has this same effect, doesn't 20 It, sir? 21 MR. HEINEMAN: Let me object, your Honor. That's 22 eight different questions in one. And Mr. Carr surely knows 23 the differences in concentration, whether it's on grass or 24 whether it's in soil or in water or some place else, it's 1 misleading and it's eight-different questions in one, and I 2 object* 3 THE COURTs Overruled* It is a proper question. It's 4 one question* 5 A You would have to let me know what assumptions about 6 the spread of the diluted material over the ground I should make 7 before I can even begin to answer that question, sir* 8 Q Doctor, does it make a difference to you in deter 9 mining whether or not chloracne is going to be caused-- you 10 have to take in, no matter how you get it, the same amount of 11 2,3,7,8 TCDD, don't you,- sir? 12 A Yes, sir* . .. 13 Q For an average 150-160 pound man, you have to take in 14 7,000 micrograms, don't you, sir? 15 A Yes , 16 MR. HEINEMAN 3 We are talking about a one-shot dose 17 now* 18 Q Or in an accumulative dose over a period of time, 19 isn't that correct? 20 A Over 30 days or so, yes, .sir* 21 Q' Isn't that correct, air?., 22 A Yes, sir. ,, 23 Q So it really doesn't make any difference how you get 24 that 7,000 micrograms in-your system, does it, sir? 1 A Not in the strict form in which you absorb it. The 2 amount of the material you absorb of course affects you whether 3 you take 7,000 micrograms on--- 4 Q Well, I certainly agree with that, Doctor. I didn't 5 suggest there was anything different. You have to have it into 6 your system-whether it comes from eating it as I suggested to 7 you earlier or whether it comes from eating the grass, eating 8 the soil, drinking the gallon of water that has it in it. How 9 many gallons of water would you have to drink in order to get 10 7,000 micrograms of 2,3,7,8 TCDD if you assume that it's got n ten percent 2,4 dichlorophenol in the Weed-B-Gon and that four 12 teaspoons go into a gallon of water? 13 A And how much 23,7,8 .TCDD ami; I to assume that there 14 was in the original material? 15 Q Any level that you want. . Say 50 parts per-- -let's do 16 the same way we did the soil. You had 45 there. Say it's 45 17. parts per billion that goes into the 2,4 dichlorophenol that 18 goes into Weed-B-Gon. 19 A Well, sir, you have ,,to bear with me while I make this 20 calculation, because it is more complicated than any we've done 21 so far. 22 Q All right. Hound them off so it will be easier for 23 you. If you want to use 45 or 50 might be easier. 24 MR. HEXNEMAN: Do you want to include the fact of 1 any dilution of 2,4 di becoming 2,4 D? 2 HR* CARR: Sure, that'll be fine* 3 MR* HE1NEMAN: Do you have that figure? 4 HR* CARR: Mr. Musgrave said assume that that was all 5 2,4 dichlorophenol in that Waed-B-Gon can, and that's okay, I 6 will accept that. 7 HR* HEINEMAN: x understand from Mr* Musgrave that 8 that's inaccurate 9 MR. CARR: Well, Mr*. Musgrave put it on the board and 10 just assumed that it was all 2,4, he is the one that did the 11 calculations on the Weed-BrGon, if my memory serves me right* 12 And he didn't give any factor of dilution other than the 13 dilution when it gets into the .gallon of water which we have to 14 work with in a moment. And if you want to assume that it's 15 further diluted, assume that it's diluted another 50 percent, 16 it's fine with me. Doctor*... 17 A It's three teaspoons, in a gallon* 18 Q Four teaspoons in ajgallpn? 19 A Three teaspoons in a gallon. 20 Q No, four teaspoons, and according to the directions 21 of course some customers use a lot more than that and seme use 22 less, I suppose* But take the four teaspoons per gallon* 23 A You would have to drink, I think, 25 gallons, sir* 24 Q To get 7,000? 1 A Micrograms 2 Q Micrograms? 3 A Yes. .. 4 Q If it contained 50? . 5 A If the original dichlorophenol contained 50 parts per 6 million and if you assume .that it's .diluted in the manufacture 7 of the Weed-B-Gon by 50 percent, I have 25 parts per million, 8 and the raw material of Weed-B-Gon, if you like* end that 9 would mean there was 2*5 parts per million* 10 Q Ho, you left out a calculation because it diluted n further in the can by ten .percent* It's only ten percent of th< 12 can* 13 A Yes, I'm coming to that* So that material in the 14 can, the total can, would .contain 2*5 parts per million* It's 15 diluted ten percent in the can* 16 Q 2.5 parts per billion? 17 A 2*5 parts per billion, not million* I'm sorry, I 18 have to assume 50 parts per million* 19 Q No, 50 parts per billion*. 20 A Oh, I'm sorry* Well.then, that will make it very 21 much more, of course. 22 Q Indeed it will. 25,.000 gallons. 23 A Yes, sir, that would be just exactly a thousand tiroes 24 more* 1 0 Yes. So one could get# if you had your product 2 contaminated with 50 parts per billion of 2 ,3,7,8 TCDD, you 3 would have to drink, somebody would have to drink, 25,000 4 gallons of water before he could get chloracne? S A If he drank the diluted Wead-B-Gon, yes, sir, 6 Q Once he drank the diluted Weed-B-Gon and 25,000 7 gallons of water is a pretty good sized swimming pool, isn't 8 it, sir? 9 A Yes. X don't know about ,a swimming pool, but it is 10 a fair sized amount. 11 Q That would be a swimming ,pool about 20 by 30, 12 wouldn't it? 13 A X don't know. .1 don't own a swimming pool, 14 unfortunately. IS Q That is your calculation .astto the amount, and that's 16 predicated, that's based upon the same figures that you used to 17 arrive at the 4,200,000,. or I'm sorry, 1,400,000 parts per 18 billion in soil. You got t o i t at exactly the same way, didn't 19 you, sir? 20 A The same type of calculation, yes, sir. 21 Q And of course then the people at Monsanto knowing how 22 the 2,4 dichlorophenol is being used, they would know that it 23 would be physically impossible for ^anybody to drink in a month'll 24 time 25,000 gallons of water, isn't that right, sir? 1 A Yes, sir* 2 Q Yeah. So, and even J.f you had 2,4 dichlorophenol tha: 3 contained 150 parts per billion of 2,3,7,8 TCDD, they would 4 have to drink 8 ,00 0 gallons of water of that nature, wouldn't 5 they, sir? 6 A Of the diluted WeednB-Gon, yes, sir. 7 Q And again that's something that a person probably 8 won't drink that much in his lifetime. 9 A I don't know about that, air, but--- 10 Q In any event, you at Monsanto all operated on this 11 premise when you made a decision that this does not contain 12 a substantial hazard to the people involved. 13 MR. HEINEMAN: ,What .premise, Mr. Carr? 14 MR. CARR: That it would ,,take 25,000 gallons of 15 water, not swimming in it,, but drinking 25,000 gallons of 16 water before you would get chloracne. 17 MR. HBINEMAN3 Mow, are you asking, Mr. Carr, if 18 that was the only consideration? 19 BY MR. CARR: 20 Q I'm asking if that was a .consideration that you used 21 when you determined whether or not you were going to notify the 22 customers? .. 23 A At this meeting, sir? 24 Q Yes, at that meeting. And any subsequent meeting. I I asked you yesterday whether or not there was a plan on the 2 part of Monsanto to withhold this information relative to what 3 dioxin was in the products ,, withhold it from the workers, 4 withhold it from the people at Sturgeon, withhold it from your 5 2,4 dichlorophenol customers, withholding from your Lysol 6 santophen customers, from the employees in the plant. I asked 7 you yesterday, was that answer yesterday you were part, in 8 fact, of such a meeting that discussed whether or not customers 9 should be notified, weren't you, Dr* Paget? 10 MR. HEINEMAN: ,Okay,, your Honor, the witness has 11 testified that he was asked to comment on the 2,4,6 study and 12 that he didn't remember the other aspects of the meeting. If 13 I am-- X may be mistaken, but -that's what X thought X heard him 14 say. 15 THE COURT; You're objecting on this? 16 MR. HEINEMAN: X a m ,objecting to this, besides the 17 fact that Mr. Carr just gave a speech, and X would request-18 X would object to the speech. X request that the jury be 19 instructed to disregard it. 20 THE COURT: It was a proper question, number one. 21 And number two, your objection is overruled. 22 BY MR. CARR: 23 Q Dr. Paget, was this meeting that you had in May one 24 of a series of meetings held by Monsanto personnel at which 1 you arrived at the Monsanto policy on what you should or-- :-or 2 would not-- -surely not should, what you would tell these people 3 that X mentioned, your employees, your customers, and the peopl 4 at Sturgeon, or the public at large? 5 A Not as far as I am aware,., sir, no. 6 Q There were other meetings held, sir, weren't there? 7 A I don't know, sir. ... *. . . 8 Q Weil# you held, a^meeting later in June where you 9 discussed the position that you all were going to take. You 10 gave that to your Senior Vice President, Mr. Throdahl, didn't 11 you, sir? ... 12 A That was a paper todiscuss the establishment of an 13 ultra-trace laboratory, sir.. . ....... 14 Q You also discussed the very small amounts of TCDD in 15 the human environment of certain circumstances of intimate 16 exposure may have significance, didn't you. Doctor? 17 A Yes, sir. 18 Q Somebody could drink, insofar as the 2,3,7,8 TCDD 19 concentration is concerned, somebody could drink the entire 20 bottle of Lysol or drink- the entire bottle, entire can of 21 Weed-B-Gon and not suffer any ill effects, not suffer any 22 chloracne, not suffer anything so far as you know from the 23 2,3,7,8 TCDD that might be.in there, isn't that correct, Dr. 24 Paget? 1 A Yes, sir. It is not a course I would advise. 2 Q Dr. Paget, just what then did you have in mind the l 3 exposure might be where you said in Plaintiffs' Exhibit \rttiy 4 "In the absence of precise knowledge of human susceptibility 5 and in view of the extreme sensitivity of some species, it is 6 obvious that very small amounts of TCDD in the human environ 7 ment in certain circumstances of intimate exposure or of casual 8 worker procedures may, and we repeat may, have significance." 9 What amounts did you have in mind, sir? What kind of exposure 10 did you have in mind if you could drink the product and not 11 suffer any consequences from? . 12 A I was referring here to the method of analysis in 13 assuming one was dealing with the most sensitive species, and 14 circumstances where;-an exposure might occur, we would have to IS assume that the human being, where we didn't know the precise 16 sensitivity of the human being was as sensitive as the most 17 sensitive species ........ 18 Q You said here, "It is obvious that very small amounts 19 of TCDD in the human environment may have significance in 20 certain circumstances of intimate e x p o s u r e H o w intimate can 21 you get if you take your- product and drink it? 22 A You can't get much more intimate than that, sir, no. 23 Q And you believe from -what you have said in this room 24 today, and you at Monsanto believe that you could drink that 1 product and suffer no consequences? You wouldn't even get 2 chloracne, Isn't that correct, sir? 3 A I think that's true * y e s s i r . 4 Q And, Doctor, please,, what is the very small amount 5 then of TCDD in certain circumstances of intimate exposure? 6 What intimate exposure did you have in mind? 7 A Well, for example, drinking it, sir. 8 Q And is that the only intimate exposure you had in 9 mind? 10 A Applying it as though cosmetic, perhaps. 11 Q Applying Weed-B-Gon or Lysol as a cosmetic? 12 A No, sir, this was not confined to Weed-B-Gon or 13 Lysol. There was a situation where any of our products might 14 contain TCDD in this particular instance. 15 Q Now, Doctor, the cu&tomer could--- and you talk about 16 abuse or misuse. A customer could take the entire can of 17 Weed-B-Gon and pour it in a gallon of water and drink that 18 gallon and he wouldn't get chloracne, would he, sir? 19 A No, sir, I don't believe he would. 20 Q How much more customer ahuse could you have other 21 than taking the entire can and putting it in a gallon of water? 22 A We are not talking about-- * 23 Q Take the entire can nnd put it in a quart of water. 24 MR* HEXNEMAN: Why don't you let him answer the ] question before you interrupt him? 2 A We are not talking about .only Weed-B-Gon. We are 3 talking about any conceivable product at that time or any time 4 thereafter* 5 Q Well, you are talking about Lysol, that's another 6 product? 7 A Yes, sir. 8 Q And you are not making pentachlorophenol at that 9 time, so you are not talking about the wood preservative? 10 A No, sir. 11 Q You are talking about santophen that goes out and 12 gets into Lysol, and you are talking about 2,4 D that goes out 13 and gets in Weed-B-Gon, and you are talking about orthochloro- 14 phenol that goes out, and others make it into pentachlorophenol IS for a wood preservative, and you are talking about parachloro- 16 phenol and 2,4 D that may.be used in oil well drilling, and 17 things of that sort, is that correct, sir? 18 A Yes, sir. ... 19 Q Now, what abuse could a worker have, how could a 20 worker possibly be exposed to levels under what circumstances 21 in the plant, under what circumstances could that customer 22 possibly be exposed to levels of 2,3,7,8 TCDD that could cause 23 him harm? 24 A 1 don't know, sir 1 Q Well, you must have Jiad in mind, because you said it 2 was obvious So you must have known something You said it is 3 obvious that very small amounts---- this is what you said in June 4 of *79, not what you are saying now in March-- what month are 5 we in? We are not in March, April of *85. Doctor, what are 6 the certain circumstances of intimate exposure that could have 7 significance? 8 A X don11 know, sir wouldn't know then until they 9 were-10 Q What did you have in mind in 1979 where you said it's n very obvious, itas obvious, not very obvious, it's obvious that 12 very small amounts of TCDD in the human environment in certain 13 circumstances of intimate exposure or of abuse or misuse or 14 casual worker procedures may have significance? What did you IS have in mind, Doctor? /. 16 A Well, in casual worker procedures where people worked 17 without the indicated protective clothing. 18 Q Well, Doctor, how is that going to hurt them? They 19 have to absorb 7,000 micrograms in a month's time of pure 20 2,37,8 TCDD to even get a case of teenage acne. 21 A x don't think you get teenage acne, you get 22 chloracne. 23 Q Chloracne, which has been described by you as having 24 the same results-- not by you, but Jay :your company-- is that 1 it looks just like a case of adolescent acne. 2 - A Well, I don't know that, .sir. 3 Q Well, Doctor, assume,.that I can prove what I say in 4 this Courtroom. Would you .assume that, .please? . Because if I 5 don't prove it, the jury, will hold me to account for it. 6 MR. HEINEMAN: Why don't ,,you show it then? 7 MR. CARR: Because X'm saving it for Dr. Rousch. 8 A Well, sir, I will make that assumption. 9 Q And, Doctor, under what circumstances can the worker 10 take in that level of 2,3,7,8 TCDD in your product when you 11 have only the maximum that X have,seen by anybody is the 12 University of Nebraska saying that your 2,4 dichlorophenol had 13 2>600 parts per million In it, how could they possibly be hurt 14 by that? ... 15 A We are not talking about,specific products, sir. 16 We were talking about establishing a general policy about 17 dioxins and establishing a .laboratory which would enable us to 18 know under any circumstances with any product that1s then or at 19 any time in the future, what the .dioxin levels were, and 20 circumstances where we would .have to make a worst case anaylsis 21 and assume that human beings were exposed to some level of 22 dioxins that might be relevant to the most sensitive species, 23 for example, the guinea pig. 24 Q Now, Doctor, you are not ^talking about detecting it ] in this paragraph that I read to you and Hr. Heineman has read 2 to you. You are talking, about the small amount# very small 3 amounts of TCDD. Well# let's start-- -define, please# what you 4 mean by very small amounts of TCDD. Do you know 1,400,000 5 parts per billion-- 6 MR. HEINEMANt Were you about ,,to say, Mr. Carr#, that 7 he wasn't referring in the paragraph to extreme sensitivity of 8 sme species# because it, is .certainly there. 9 Q Could you please answer my question# Dr. Paget? IO A We were talking about levels of dioxin that might 11 be hazardous# for example# guinea pigs-- - 12 Q No# you are talking .about humans here. You are say 13 ing very small amounts of .TCDD .in the human environment# didn't 14 you' use the words human environment? . 15 A Yes# sir. ,,, 16 Q You didn't say animal environment? 17 A Yes# sir# but in the. same sentence-- 18 Q Dr. Paget# please# If you would# I want to know what 19 is the very small amounts of .TCDD in the human environment? 20 What small amounts do you have in mind? 21 A It depends on the precise circumstances. 22 Q Give me the small amounts that you had in mind# 23 whatever the circumstances may .be. ' . . .24 A One would want to analyze reliably- I Q I didn't ask you that. X want to know what are the 2 very small amounts that you had in mind when you used the words 3 in this paragraph. 4 A Of the order of parts per billion or parts per 5 million/ yes. . ...... 6 Q The order of parts per million or parts per billion? 7 A Or parts per million. 8 Q What parts per million? 9 A I didn't have a specific number in mind/ sir. That 10 was a document suggesting^-- 11 Q Would one part per billion meet your definition of a 12 very small amount of TCDD.in the human environment? 13 A One part per billion in acme circumstances is a very 14 small amount. IS Q My question is, would one part per billion meet your 16 specification of very small amount? 17 A That is a very small, amount. 18 Q Well/ Doctor/ that can't ..possibly cause anybody any 19 harm/ and you would have to eat tons of dirt. 20 A X didn't say that it caused harm/ sir. 21 Q Well/ Doctor/ you are saying it here. It may have 22 significance/ what you mean by that surely is significance from 23 a health viewpoint. 24 A NO/ sir. *, ] MR, HEINEMAN: He didn't rsay it was one part per 2 billion there, >, ..... . 3 Q Isn't that what you .have .in mind. Dr, Paget? 4 A Ho, sir, that isn'tnecessarily what I have in mind* 5 Q What are the very small amounts in your opinion where 6 they have intimate exposure before it would have significance? 7 MR, HEINEMAN: Objection,, that has been asked and 8 answered, 9 Q My question is not what you know, what did you have 10 in mind at that time, Doctor? . 11 A Any small amount, sir,* but depending on the circum 12 stances---- ........ 13 THE COURT: Overruled, ,,. 14 Q Would one part per billion have a deleterious effect IS upon human beings? 16 A I don't know, it depends ,,on the circumstances, 17 Q Any circumstances. ,. .. . 18 A Personally, I don' t .think one part per billion would 19 have an ill effect. 20 Q Then, one part per billion would never under any 21 circumstances pose any hazard to human beings? 22 A Not any circumstances I can imagine, no, sir. 23 Q And what about a hundred vparts per billion? 24 A Well, I think that if you drank a gallon of water 1 every day containing thatr .you could eventually get a body 2 burden that might lead to chloracne. 3 Q Doctor, we just went through--- were you drinking 4 water that contains-- you would have to have 25,000 gallons, 5 you could drink the pure thing and not get chloracne, and now 6 you are saying something different. 7 A No, sir, I am saying you .could drink that every day 8 of your life-- 9 Q How much would, you accumulate if you drink in a 10 month's time? Is dioxin going to accumulate over a lifetime. 11 Doctor? 12 A I don't know, sir. *. * 13 Q Well then. Doctor, why are you saying that if you 14 don't know that? IS A I don't know that. 16 Q A hundred gallons of water, or rather a gallon of 17 water a day containing a. hundred parts per billion is going to 18 give you. chloracne? 19 A No, sir. ' ' , 20 Q Then, why did you say it,. Doctor? 21 A No, that was a*--- I misspoke. 22 Q Well, tell me what is the level that you consider 23 in your product could cause-- what are the very small amounts 24 that could cause-- that could be significant? *;''f ;Vf' l A Well# significance doesn't mean necessarily a health 2 effect# sir. .... 3 Q Well# what does it mean# ..Doctor, if we are not talk 4 ing about the human health environment? What other significanci 5 are we talking about? 6 A We are talking, aboutthe circumstances as for example 7 now where we are debating about very small amounts # which I 8 don't think-- 9 Q Doctor# w e 're debating small amounts only because it 10 has a deleterious effect on .the health of human beings. We II don't care about it in the other context# do we# sir? 12 MR. HEINEMAN; Objection*, Would you please let the 13 man answer the question before you start shouting at him 14 again? ... 15 THE COURTi Objection overruled. The answer was not 16 responsive to the question. 17 0 Doctor# was there any context in which you want to 18 talk about TCDD other than human health effects that has any 19 relevance whatsoever? 20 A Yes# sir# of course ..there are. 21 Q What# sir? Give them. 22 A Well# for example# if ill-informed people make 23 statements about our products # we would like to know from our 24 point of view what is in those products* 1 Q And, Doctor, they are making those statements only 2 because of the health effects of what they believe, isn't that 3 right, sir? . .. 4 A If they are ill-informed* they are ill-informed 5 about the health effects, as well. 6 Q Isn't there any other conceivable thing at all that 7 2 ,3,7,8 could do to hurt anything other than health effects? 8 A I don't know of any* sir., 9 Q Well then. Doctor, why do you say those things? 10 You are talking about here, you are talking about 2,3,7,8 . 11 MR. HEINEMANj .Are you going to let him answer the 12 question? , ... 13 Q What do you talk about, then? Why are you concerned 14 about very small amounts of .TCDD in the human environment if IS you are not concerned about the health? 16 A Because I would be concerned about what people might 17 say about the product, and we would like to know precisely what 18 the facts are about a product. 19 Q And why would they say it about the product, Dr. 20 Paget? 21 A Because they are ill-informed. 22 Q And why would it be jof concern to you? Why would you 23 care if they said oh, there .is a lot of 2,3,7,8 in there if it 24 isn't because it would injure somebody or if they are saying it 1 would injure somebody, what other reason would you have? 2 A We would want to know what the facts are before we 3 rebut them. .... 4 Q I understand that. .But you are talking about the 5 subject of human health, whether they are ill-informed or fully 6 informed, you are talking about human health, aren't you, sir? 7 A Yes, sir. 8 Q Now, Doctor, give me~ anything other than health where 9 it has any relevance whatsoever. 10 A Well, that's not strictly to do with health, sir. n If we don't believe there is a health hazard, somebody else 12 says there is-- 13 Q Doesn't that have to do with health if you don't 14 believe it is a health hazard, .Doctor? 15 MR. HEINEMAN: -Objection.. He keeps interrupting the 16 witness. .. 17 Q If he is exposed to it and he says healthy, aren't we 18 talking about health, Dr. Paget? 19 A Well, of course, sir. 20 Q Now, Dr. Paget, I want you to tell me then what are 21 the very small amounts of TCDD that you believe could under 22 some circumstances have significance on humans' health. 23 A It depends what people said about the product. 24 Q What they say can't ^affect your health. They can tel' 1 you all day long that 2 ,3,7,8 is bad stuff, it's not going to 2 make you sick* It's only .going to make you sick if you get 3 exposed to it and if you take it in and then you've got to take 4 it in in certain levels high enough to give you acne. Doctor, 5 that's what you were talking about. . I want to know, sir, and 6 forget about the uninformed public. I want to know what you 7 are talking about when you .said very small amounts of TCDD in 8 the human environment may have significance, what were you 9 talking about? , 10 MR. HEINEMAN: Object. It's been asked and answered. 11 THE COURTi Overruled. It has not been answered. 12 A I was talking about very .small amounts, sir. 13 Q Were you talking about one part per billion in 14 santophen that goes in nurseries? , 15 A I would like to know that--- 16 Q Are we talking- about one .part per billion that goes 17 in nurseries, sir? 18 A I would like to know that, yes, sir. 19 Q You were talking about it, .weren't you, sir? 20 A Yes, sir. * 21 THE COURT: Gentlemen, could Z see you at the bench 22 for a minute, please? * . . . . . 23 (An off-the-record discussion was held at 24 the bench.) ^ I THE COURT: Ladies and gentlemen, we will take a short 2 recess at this time. The admonishments that I gave you earlier 3 will apply during this break .also, . The Court is in recess, 4 (At this time Courtjwas in recess.) 5 MR. CARR: 1 have net further questions of the 6 witness, your Honor. ..... . 7 THE COURT: Okay, Mr. Heineman. Do you have any 8 further questions? ....... 9 MR. HEINEMAN: .Yes, .sir. , .. 10 FURTHER CLARIFICATION EXAMINATION 11 BY MR,, HEINEMAN ^ 12 Q Dr. Paget, Mr.. Carr .was asking you to compare the 13 dose that someone might receive .from a one-shot exposure to 14 five grams, either by eating it or by rubbing it on their skin, IS with the exposure that one would get or one might have gotten 16 in the pentachlorophenol, .Department 236, do you remember that, 17 sir? 18 A Yes, sir. 19 Q Now, of course, in the pentachlorophenol Department, 20 what you had was the continual manufacture of a product, isn't 21 that right, sir? 22 A Yes, sir. 23 Q Is that your understanding? 24 A Yes, sir I Q So what you would have is if there were a contaminant 2 present, you would have a continually regenerated source of that 3 contaminant/ wouldn't youf sir? 4 A Yes, sir. *. A 5 Q So that one might be exposed to small amounts in 6 large amounts of material over a very long period of time/ 7 might one not? 8 A Yes, sir. ,,. 9 Q And if there was some material that went out, then 10 they would manufacture some more? 11 Yes. & - > 12 Q So a worker in that -department would continually be 13 exposed to small amounts, of material, is that right? 14 A Yes, sir. * 15 Q And there is a, big difference, is there not, sir, in 16 dose? As x recall your description >f dose, you said that was 17 a measure of the concentration times the area in iwhich--- 18 A Times the volume. 19 Q Times the volume, yes. And so that if the concentra 20 tion is very small--- . 21 A Yes. * 22 Q -- and the volume ia .very large-- - A Yes, sir. *. ... . q ---there can be a dose---1 ,,,, 1 A Yes , sir* 2 Q --- derived from that; And there can be a dose derive*: 3 from an amount that's very .small/ and a concentration that's 4 very large? .... 5 A Yes, sir 6 Q Right? 7 A Yes,sir 8 Q So you could have a dot of this material in a very 9 small amount, and if somebody took all of that small amount, 10 they would get a large dose, wouldn't they? n A Yes, sir. 12 Q And if somebody had va little bit and was exposed to a 13 great deal of material, they .would have a large dose? 14 A Yes, sir 15 Q So you can talk about wallowing around in dust as 16 opposed to taking one five-gram sample and eating it, right? 17 A Yes *. * 18 Q And wallowing around ,in dust might very well expose 19 you to a great deal more? .. ,.. 20 A Especially if you did it every day, day-in and day-ou 21 Q And especially apropos to this, to the penta 22 comparison that you had a product that was continually being 23 generated day after day after day, correct, sir? 24 A . Yes, sir. 1 Q But I think what Mr, Carr, wants to have you forget, '2 sir, that at Sturgeon there .was just one amount, right? 3 A Yes, sir* ,,. ... . 4 Q And that amount either was carted off by trucks-- - 5 A Yes, sir. ,, - 6 Q Or was blown away in the .wind? ^ 7 A Yes, sir. 8 Q Or was washed down the stream? 9 A Yes, sir. .. . 10 Q But whatever was there, there was not more than at 11 the moment about three grams? 12 A At the very most that was the amount there the night 13 of the spill, yes, sir. .. 14 Q Now, you recall, sir,- that the Kligman thing, the 15 Kligman study that you relied .on was a skin test, isn't that 16 right? 17 A Yes, sir. 18 Q So the Kligman study wasn't one involving oral 19 ingestion as far as you know? 20 A No, sir. 21 Q You told us that in terms of concentrations claimed 22 to be in Times Beach soil, now those aren't doses, are they, 23 sir? 24 A No, sir. . 1 Q They are not doses until .somebody takes that soil and 2 actually gets an exposure .to .it and then actually you measure 3 how much of that contaminant in that soil actually gets into 4 the body, right? - .- ... 5 A Yes, sir. ... 6 Q But with respect to .the levels in soil at Times 7 Beach, I gather from what you told Hr* Carr that it's your 8 opinion that those levels .should not be your concern? 9 A That's exactly what JC believe, yes. 10 Q Now, with respect ta the .Center for Disease Control 11 report which is Exhibit 1255,. you have that in front of you, 12 don't you, sir? 13 A No, sir, I don't. ... ... 14 Q Plaintiff's Exhibit .... 15 A No, sir. ,- 16 MR. CARR: Here it is. 17 Q Let me hand that back to you,*sir. Nq w , as I recall, 18 you said that it was your -impression, that the Center for 19 Disease Control report said .that one part per billion of TCDD 20 in soil or less-- ... 21 A Yes. -r ... 22 Q -- would be considered safe or of no concern, is 23 that right? 24 A That was my understanding, yes. 1 Q And Mr Carr read to you from Page numbered 49? 2 A Yes. ,.. 3 Q in that report, didn't he, sir? 4 A Yes, sir. *. .. 5 Q And he asked you to read that sentence that said, "In 6 residential areas, levels .at .or .above one part per billion TCDD 7 in soil cannot be considered safe and represent a level of 8 concern." 9 A Yes ^ IO Q Now, would you lookat Page 48, the page just before 11 that. 12 A Yes, sir. , 13 Q It says here, ?We have concluded that residential 14 soil levels greater than, one .part per billion TCDD pose a level 15 concern." ...... 16 A Yes, sir. A - - ' 17 Q Correct? - 18 A Yes, sir. 19 Q So that that would be consistent with what you 20 originally reported, isn't it? 21 A Yes, sir. *> 22 Q And it also goes o n t o say, "The appropriate degree 23 of concern for which management decisions are made should also 24 consider an evaluation of .the .specific circumstances at each 1 contaminated site," isn't that correct, sir? 2 A Yes, sir. v .. 3 Q Now, as X understand it, .sir, you don't agree with 4 CDC that anything above one part per billion concentration of 5 TCDD in soil is necessarily a concern? 6 A No, sir, X don't agree. *. 7 Q And indeed, what they did here was to set a level, 8 and they attempted to set .a level below which there would not 9 be any concern, and above which they said they would not 10 consider it safe and it might represent a level of concern. 11 A They said you would .have ,,to .make specific decisions .12 in each specific case, yes, sir. 13 Q Now, if X can direct-your attention to the page of 14 this report numbered 74..... 15 A Yes, sir. 16 Q You see that paragraph right tiiere in the middle of 17 the page, just above the part that's labelled "Risk Assessment0 18 A Yes, sir. 19 Q And they say for the sake of brevity extreme total 20 daily dose estimates were compiled for two divergent levels of 21 TCDD soil contamination,. one part per billion and 100 parts per 22 billion, based on the assumptions set forth above, at an 23 initial soil contamination of one part per billion in residen >24 tial areas, the average daily TCDD dose to an individual over 1 a 70-year lifetime would be 44.6 picograms? 2 A Yes, sir. 3 Q Now, sir, they,*re saying .that at the one part per 4 billion level which is the .level over which they would develop 5 a degree of concern, that one part per billion in soil would 6 give rise to 44.6 picograms o f TCDD dose taken in by an 7 individual every day for. 70 .years? 8 A Yes, sir. ~ 9 Q Correct? 10 A Yesr 8ir. ~ 11 Q Didn't you compute what the parts per billion or what 12 the dose would be of 45 parts per billion in 69,000 parts per 13 million of OCP? ... . 14 A Yes, sir. ^` . IS Q The level of that? 16 A That was, I think, 100 and some feratagrams per kilo 17 gram, yes. 18 Q And you and Mr. Carr, agreed on some figure being 19 based upon if you assumed .that there was a ten percent contam 20 ination of the soil withthe OCE, if you assumed ten percent 21 and there wasn't a single level found by Western Environmental 22 Services, or OH materials, which was ten percent, they were all 23 below that, right? 24 A Yes, sir. -- ... 1 Q So if you assume there was ten percent OCP in the soil 2 that the dose from that in a 5-gram sample would be 22 pico- 3 grams? 4 A Yes, sir. ,,... 5 Q Now, a 5-gram sample of a seven percent OCP solution 6 would, in soil, would burn you,, wouldn't it? 7 A Yes, it would indeed, sir, yes. 8 Q So somebody wouldn *t eat J?ive grams of OCP with-- -or 9 soil with OCP in it, would they? 10 A No, sir. ^ 11 Q Because it would b u m them? . 12 A Yes, absolutely. *- . ... 13 Q Now, even with, seven .percent o r with ten percent, 22 14 picograms, that is one-half? .. 15 A Yes. 16 0 Of the level that the CDC says you could eat every da? 17 for 70 years? 18 A Yes, sir. v, 19 Q Is that right?^ *. . : 20 A Yes,sir, 21 Q Now, let me direct your attention to Page 50 of that 22 report, sir. Do you see that? 23 A Yes, sir, ~ '24 Q I'm looking at, the first .full paragraph at the top of I the page starting with the words, "The method". 2 A Yes, sir. Q It says, "The method used for conducting a risk 3 assessment and Identifying a level of concern for TCDD In soil 4 Is complicated by many uncertainties, namely, Insufficient data 5 6 on the toxicology of TCDD, Insufficient Information about 7 exposure of people to soil, and Insufficient information about 8 intake of TCDD by humans from such soil." 9 A Yes. 10 Q It does say that, sir? 11 A Yes, sir, It does. 12 Q Nevertheless, despite those uncertainties, the Center 13 for Disease Control said that at one part per billion and below, 14 or even if you take that part that Mr. Carr read to you, below 15 one part per billion, there would be no level of concern? 16 A Yes, sir. 17 Q . Now, I want to get Into, again, if I may, your 18 position paper, which is Plaintiff's Exhibit 1262. Do you have 19 that before you there, sir? 20 A Yes, sir. 21 Q Now, Mr. Carr went over with you again and again and 22 again the last paragraph on that page, did he not, sir? 23 A Yes, sir, he did. 24 Q Now, would you tell the jury what you mean by the 1 term significance and how that relates to the worst case analy 2 sis- that you have told the jury about before? 3 A Yes, sir. Of course# the .word significance in this 4 paragraph meant significant to Monsanto# and it could be 5 significant in several respects and an obvious one which Mr* 6 Carr went on about-is if that level were of health significance 7 in relation to the people .that were exposed to it. But it coulc 8 also be significant if for example .somebody alleged that there 9 was an amount of material .in our product that was possibly 10 damaging, that could be significant-because we .would wish to 11 allay the concern from a, basis-of certain knowledge about how 12 much was there. It could,also be.significant if for example 13 we wanted to understand exactly what was happening in a parti 14 cular process that could-be .significant. We would also want to IS know# even although we believed that there was no conceivable 16 hazard to human beings, when we did. this analysis which was -re 17 called the worst case analysis, we would want to.know, would 18 that level that we found, in an environment or in a product or 19 wherever, would it be something which would be significant if 20 the human being was as sensitive as -the most sensitive species 21 which we knew, and since as X .said J.n the beginning of the 22 paragraph, some species are very sensitive# we would have to 23 look at very small amounts. -Now# that's not to say that we 24 believed those small amounts would be injurious to human beings, I but we needed to know the amounts before we could make a certain 2 Judgment, You can only make certain judgments from-- certain 3 Judgments you can only be certain in your judgment If you can 4 be a little clearer about It. You can only be certain in your 5 judgment if you know the exact facts, and this paper reconmendec 6 that we put ourselves in a position to know the precise facts 7 about dioxins and products in the environment, 8 Q Now, sir, when you were making your decisions in 9 1979 with respect to what Harry Gilmer had to be told up 10 there, you engaged in a worst case analysis, didn't you, sir? 11 A Yes, we did, sir. 12 Q And you weren't talking about whether or not how 13 much material would be required to cause chloracne as opposed 14 to anything else? 15 A Yes, sir. 16 Q You wanted to be sure that if you assumed any person 17 exposed to that had the sensitivity of the most sensitive 18 species, namely a guinea pig, would the amount of 2,3,7,8 19 present in that product conceivably harm them? Isn't that what 20 you were analyzing? 21 A That's exactly the worst case analysis, yes, sir. 22 And moreover, that if you assume that all the dioxins were 23 2,3,7,8, which was not clear at that time, that those were the 24 worst assumptions we could make, and those were the ones we 1 did make Q And those assumptions on m 5-gram intake of soil 2 would give rise to femtagrams of dose? 3 A Depends upon the precise .concentration in the soil, 4 but certainly in the order of femtagrams or occasionally 5 picograms, yes. 6 MR. HEINEMAN; That Vs all. I have, your Honor. 7 8 THE COURT: Okay, Mr. Carr? . 9 MR. CARR: Nothing, .your .Honor* 10 THE COURT: Okay, Dr. Paget. You may step down. 11 Thank you, sir. ... 12 MR. CARR: I'd like ,,to recall Mr. Kaley to the stand, 13 your Honor. 14 THE COURT: Okay, gentlemen, could I see you at the IS bench? 16 (The following ^proceedings were held at 17 the bench.) 18 THE COURT: Any offers of proof or anything out 19 standing with this witness before we let him go? 20 MR. HEINEMAN: Let me check to be sure. 21 THE CdURT: Okay. Are there any with you, Mr. Carr? 22 MR. CARR: No.. There's none for them either. 23 MR. HEINEMAN: None* your Honor. 24 THE COURT: Okay, fine. JEhank you. 1 (The following proceedings were held in 2 open Court.) * 3 .ROBERT C. JCALBY, 4 (being recalled as an adverse witness under 5 Section 2-1102 f the Civil Practice Act, having 6 previously been duly sworn, on oath testified 7 . as follows) * ~ * 8 CROSS EXAMINATION 9 BY ER. CARR . JO Q Dr. Kaley, you understand# of course, that you are 11 still under oath? .... 12 A Yes, I do. .. 13 Q And you understand you're being called today because 14 Dr. Wilson is unavailable and <1 want to prove some Exhibits by 15 you that I had in mind to .prove by Dr. Wilson, do you under 16 stand that as well? .* 17 A That is my understanding,, yes. 18 MR. CARR: I'd like to pass 1120 to the jury. It's 19 already in evidence. 20 THE COURT: Fine. * _ 21 Q Dr. Kaley, you recognize 1120 as a report authored 22 by Dr. Hileman that was-- a copy of which was sent to Mr. Ward, 23 Mr. Wilson, to Mr. Mieure, to yourself, and to Tom Taulli? 24 A Yes, that's so indicated* 1 Q And appended to 1120; is what is described as 1128. 2 Do you see that, sir? That's the table that's attached to it. 3 A Okay. It's not so marked, but I will take your word 4 for it. I will take your word for it that it is marked that was 5 up there. 6 Q Yes, it is. 7 A Hay 1 take a few minutes .to read it? I am not 8 familiar with the contents of this. 9 Q Oh, sure. Doctor, X'm not going to ask that many 10 questions about it. 11 A Fine, I just wanted to be familiar with it. 12 Q Do you understand that this is the spill sample 13 number three that was referring to the material that spilled in 14 February of '79 in the Department 237? IS A Yes, 1 would have that understanding. 16 Q And at that time in February of 1980, this document 17 identifies the various isomers that was found on January the 18 11th or whenever it was found, it was at least reported by Dr. 19 Hileman on January the 11th, and identifying various isomers, 20 isn't that correct, sir? 21 A Well, 1 think the memo says materials which coeluted 22 at those retention times, with that proviso. 23 Q Well, at that time you had these standards, the 24 1 ,3 ,6 ,8 7 1,2,3,4; 2,3,7,87. and .1,2,7,8? I A That's correct* 2 HR. HBINEMAN: Your .Honor, X object to this. Excuse 3 me, Hr. Carr, I object to this line of questioning. We have 4 been through the same set of questions with about four 5 witnesses on this document. Now, if he intends to prove 6 documents, that's one thing. But this document is in evidence, 7 these are the same questions that's been asked before, I object. 8 It's repetitive and he is intending to unduly prolong the 9 examination of witnesses, here. 10 HR. CARR: Your Honor, Dr. Hileman could not identify 11 this as being the material: ;frcra the spill. He objected to me 12 asking questions of Dr. Hileman about the spill. He knew 13 nothing about any spill, a n d .all I was going to do with this 14 witness was identify that this was from the spill and that 15 these isomers were discovered.. 16 THE COURT: Go right ahead, objection overruled. 17 MR. CARR: And if it. were not objected to at the 18 time of Dr. Hileman, X would not have had to do this. 19 BY MR. CARR: 20 Q Doctor, now these were identified at that point in 21 time in January 1980 connected.with those spill samples, the 22 2,3,7,8 isomer in the level of 120 parts per billion. 23 A Okay, it's a material which coelutes with 2,3,7,8. 24 It is not identified in the body of the memo, it specifically 1 says that the recovery or 2,3,7,8 was based only on the high 2 level spike, because the low level spike was concealed by TCDD 3 isomer coeluting with 2,3,7,8. . So we are back to the same 4 coelution. 5 Q This was not a coelution question. He identifies it 6 in this document as 120 parts per billion. 7 A Material that is coeluted, it is stated in the memo. 8 Q 1 don't cars whether:.it is coelution, he identifies 9 it here as coelution. 10 A As a material which ,,coelutes with 2,3,7,8, yes. 11 Q And, Doctor, we of course-have gone through the 12 University of Nebraska examination, and at the bottom of this 13 page he also talks about, the .400 parts per billion of TCDD 14 present, correct, sir? 15 A Yes. He makes a statement it is approximate total 16 of 400. ' .. . 17 Q Which is in reasonable agreement with spill samples 18 number one and spill samples number two? 19 A That's what the words say, yes. 20 Q Thank you. Doctor, JE now hand you Plaintiffs' 21 Exhibit 1256 and ask leave to pass copies of that to the jury, 22 if it please the Court? - 23 THE COURT: That's already been admitted, X believe. 24 MR. CARR: Already in evidence. 1 THE COURT: Fine, you may pass it to the jury. 2 MR. MUSGRAVE: You don't .mean this is in evidence, 3 do you, Mr. Carr? 4 MR. CARR: I assume j.t ia, is 1256 in, Jerry? 5 MR. SEIGFREID: YeSw .. 6 BY MR. CARR: ..,, 7 Q That is the number on that document, isn't it, Dr. 8 Kaiey? 9 A Yes, that's the way J.t is marked on this particular 10 document. ... 11 Q Is there any question about it? You recognize that 12 as a report sent to Monsanto by the University of Nebraska? 13 MR. MUSGRAVE: Mr. Carr, JC have 1256 as Monsanto 14 Biohazards Committee meeting of February .19, 1979. IS (Plaintiffs' Exhibit 1276 was marked for 16 identification..) 17 Q I hand you now what's been marked Plaintiffs' 18 Exhibit 1276, Dr. Kaiey. Do you recognize that as the 2,4 19 dichlorophenol samples that were sent to the University of 20 Nebraska for analysis and .their report on those samples? 21 A There is no identification of the samples other than 22 by numbers. 23 Q Well, that may be, but I'm asking you, don't you . 24 know. Dr. Kaiey, that those were samples sent to University of 1 Nebraska, I think we have some Exhibits in evidence, yes, that 2 were sent to the University of Nebraska for analysis, 2,4 3 dichlorophenol from the spill sample* 4 A I really can't testify ta that, that that is what 5 this is. - 6 Q Now, Doctor, did you go to the University of Nebraska 7 in August of 1979? 8 A I think it was. July* .yes* .1did go, yes* 9 Q July? And did. you not at that time either send or 10 have sent to them or know they were already sent samples from 11 the 2,4 dichlorophenol spill? , 12 A Okay, I certainly did not. I think Brian Ward may or 13 may not have, he was there .at.the same time I was, and I am 14 frankly not totally positive about what samples Brian had* IS They were independent visits .that happened to coincide* 16 Q Now, Doctor, If didn't ask you whether or not you were 17 totally positive. Do y o u .recognize that as a report to the 18 Monsanto Industrial Chemical Department? 19 A Yes. 20 Q And do you recognise .that it's dated September 11, 21 1979? 22 A Yes ...... 23 Q And it is a report, that la reporting on some samples 24 analyzed, is it not, sir? 1 That's correct. 2 .. Q And of chlorinated phenols? 3 A It Isn't so stated In here, and I 'm -- that I can find. 4 Q Do you recognize some of the same numbers, Doctor, 5 on Exhibit 1169A under the column of the University of Nebraska 6 column? 7 A Yes, I do. S Q And that talks about the DC? reserve sample? 9 A Yes, It does. 10 MR. CARR: I offer 1276 into evidence if it please 11 the Court. 12 (Plaintiff's Exhibit 1276 was offered 13 into evidence.) 14 ,, M R , MUSGRAVE: If the counsel offers this with regard 15 to 2,4 DC?, make the same objection that we have been making 16 previously with regard to that. It's irrelevant and immaterial 17 and has no bearing on the issues in this lawsuit. 18 THE COURT: Okay, fine. It is admitted over objection. 19 Your objection Is noted for the record. 20 (Plaintiff's Exhibit 1276 was admitted 21 into evidence.) 22 BY MR. CARR: 23 Q And, Doctor, the Exhibit, this report has in written, 24 typed form the same information that appears or some of the 1 same information at least that appears in 1169A, does it not# 2 sir, with regard to the University of Nebraska? 3 A Yeah, the numbers-- vsome ,of the numbers are the same/ 4 the sample designations are different and some of the numbers 5 aren't the same. 6 Q Well, the sample designations are the same/ it has 7 2/4 D too here/ does it not? And the,sample over here has 8 2/600 parts per million? 9 A This one doesn't say,.2/4 23/ but/ yes, that's correct. 10 Q And then the next column J.s the third sample. It has 11 27 under the University of Nebraska/ it has got 2200 parts per 12 million. And over here, I'm sorryr per billion. And over here 13 it is described as 2/700 parts. 14 A Yeah/ but on that document it's got additional 15 information. -. 16 Q Dr. Kaley/ I am perfectly aware of that. All I'm 17 attempting to do is to get you to agree that these figures 18 that are entered into this Exhibit 1169A also appear on 1276 19 A Okay. Those three specific numbers do appear on 20 this 1276 that I am looking at/ yes. 21 Q Now/ Dr. Kaley# I hand you now what's marked-- not 22 been marked anything yet/ but would you mark it please? 23 (Plaintiffs' Exhibit 1277. was marked 24 for identification.)* i I Q 1227, do you recognize that. Dr* Kaley-- oh, I'm 2 sorry, 1277. 3 A I don't have a specific recollection of this document, 4 no. ,, 5 Q Well, do you recognize what it's discussing? 6 A I do recognize, the sample numbers. I think it had 7 come up in my previous testimony, yes. 8 (Plaintiffs' Exhibit, 127& was marked for 9 identification *,) 10 Q Doctor, handing you,,now Exhibit 1278, it can help 11 you identify that particular Exhibit. Dr. Kaley you recognize 12 your handwriting on the table in .that Exhibit, the table 13 attached? 14 A I'm sorry, there is ,no handwriting on the table I IS have 16 Q Oh, you didn't-get one with .handwriting on it. I 17 thought I handed you another one. - The number of this should 18 be-- -- we will have to renumber this .1278 .. Handing you now a 1? new Exhibit 1278 and ask.you if you recognize your handwriting 20 on that Exhibit. Do you recognize that. Dr. Kaley? 21 A Yes, I recognize that as my handwriting. 22 (Plaintiffs' Exhibit 1278A was marked 23 for identification1 24 Q Do you recognize that Exhibit 1278A as being that 1 table but without handwriting? 2 - A Yes, that's correct... 3 MR. CARRi I offer 1278 and 1278A, if it please the 4 Court. 5 (Plaintiffs* Exhibits 1278 and 1278A were 6 offered into evidences) 7 THE COURT; Any objections? 8 MR. MUSGRAVE: You say you offer? 9 MR. CARR: Yes. 10 MR. MUSGRAVE; Is that the handwriting? 11 MR. CARR: Yes. .* 12 MR. MUSGRAVE: So you are going to have one with 13 and one without the handwriting? 14 MR. CARR: You. have one with the handwriting. 15 MR. MUSGRAVE: I wanted to see if he has the same 16 one you gave me, Mr. Carr. Your Honor, I would object to 1278 17 and 1278A in that it would appear from what Mr. Carr has shown 18 us here that this deals with at least the one sample, a 19 santophen residue, which has nothing to do with this lawsuit. 20 It is irrelevant and immaterial* The other samples are not 21 identified in this document, 1278, and for that reason, there 22 has been no showing that it would have any relevancy or 23 materiality, and we would object on that basis* 24 THE COURT: Objection is overruled. Both of them I are admitted over objection 2 (Plaintiffs' Exhibits 127,8 and 1278A were admitted into evidence.) _ 3 BY MR. CARR: 4 Q Wow, Doctor, the Exhibit .that's on the board that has 5 6 the^concentration that has the same retention time as 2,3,7,8 7 has .56-- -I'm sorry, 560,000 parts per billion, does it not? 8 A Ho, that's parts per tril/lion* 9 Q Per trillion, does it not, sir? 10 A Yes, 560,000 parts per trillion, yes. 11 Q And that is the aantophen residue that's described 12 in the other Exhibit that .1 gave you a moment earlier? 13 A YeB, that is the same sample designation number 14 according to my handwriting on.this sheet* 15 Q And the next line, that has got the 380 parts per 16 trillion is MB 758, that.is ,santophen, is it not, sir? 17 A I have no way of knowing .that. 18 Q You have no way of knowing that? 19 A Hot without some documentation* 20 Q Well, let me show yqu Plaintiffs' Exhibit 1131 which 21 is already in evidence and ask you to look at that and see if 22 that doesn't help you identify that sample. 23 A According to this document, 758 is described as 24 santophen 1, that's correct* 1 UR. CARRt Your Honor, IId like leave to pass that 2 Exhibit to the jury. It will be the one that has the hand 3 writing on it, I forgot to do that. 4 THE COURT: 1278? 5 MR. CARR: Yes. 6 THE COURT: Okay. 7 MR. CARR: Your Honor, I jiote I haven*t offered 1277 8 into evidence. I*d like, to offer that. X don't know, did I 9 pass one to the Court? It looks like that, your Honor. 10 (Plaintiffs' Exhibit 1277 was offered 11 into evidence 12 THE COURT: Yes, I've got mine. Any objections to 13 1277? 14 UR. MUSGRAVE: Same .objection. Again, relevancy and 15 materiality dealing with santophen. 16 THE COURT: Okay. Xt is .admitted over objection. 17 (Plaintiffs' Exhibit 1277 was admitted 18 into evidence*),. 19 MR. CARR: And ask leave to pass it to the jury, 20 your Honor. 21 THE COURT: Fine. 22 (Plaintiffs* Exhibit 1277A was marked for 23 identification..) 24 BY MR. CARR: 1 Q . Doctor, 1277A is a blowup of 1277, is it not? 2 A Yes. 3 MR. CARRi I offer 1277A .into evidence as well, your 4 Honor ...... 5 (Plaintiffs' Exhibit, 1277A was offered 6 into evidence.), ~ 7 MR. MUSGRAVE$ Same .objection as to 1277, your Honor. 8 THE COURTS Pine. Same ruling. 9 (Plaintiffs' Exhibit 1277A was admitted 10 into evidence1 II BY MR. CARR; ... . 12 Q Doctor, this report,,have you read enough of that 13 memo to identify that the 759A is santophen residue that they 14 tested, and that 758 is santophen? 15 A Yea, santophen flakes, yes. . 16 Q And they tested the ,758 on two times and found that 17 which coelutes with 2,3,7,8 at 380 parts per trillion and 440 18 parts per trillion, did they not, sir? 19 A Yes, that's corrects 20 MR. CARR: Your Honor, that's nil the questions that 21 X have of Dr. Kaley. 22 THE COURT: Do you have any questions? 23 MR. MUSGRAVE; Just a couple. 24 CLARIFICATION EXAMINATION 1 BY MR* MUSGRAVE .* 2 Q Dr. Kaley, referring, you back-- well, while we're 3 on it, let's just take a look at Plaintiffs' 1278. This is 4 this University of Nebraska report. As you indicate, that is 5 in parts per trillion, isn't it? 6 A Yes, it is, that's correct, parts per trillion. 7 Q And the blowup that J-Ir. Carr here has, 1278A, doesn't 8 have parts-pertrillion indicated on i t any place, but the 9 handwritten notes that you identified as your handwriting on 10 the original document do have it? 11 A That is correct. 12 Q Did you get that information from the body of the 13 report. Plaintiffs' Exhibit 1278? 14 A , X really don't remember where 1 got it to make that 15 original__ ___ _ , 16 MR. CARRi It describes it in the Exhibit that X 17 gave him earlier. 18 A Yeah, parts per trillion.. 19 0 All right. Now, again, on the blowup, Mr. Carr 20 doesn't show your handwritten notes .to be samples five and six 21 that would be the MB 758, .is that correct? 22 A That is correct* 23 Q And was there a blowup of the other table that he 24 just looked at from Plaintiffs'. Exhibit 1131, is there a 1 blowup of that, Mr. Carr? 2 MR. CARR: I'm. sorry., what, counsel? 3 MR. MUSGRAVE: Is there a blowup of Plaintiffs' 4 Exhibit 1131 of the last table, .Table 2? Did you ever blow 5 that up? 6 MR. SEIGFREID: Yes.. 7 MR. CARR: It should be somewhere, 1131A if you 8 find it. ... 9 MR. MUSGRAVE: .I would like to have it. 10 THE COURT: Why don\t we .just take a 10-minute break 1) and you can find it and set .it up? 12 MR. MUSGRAVE: Fine,, your Honor. 13 THE COURT: We will Jtake ja short break at this time, 14 ladies and gentlemen, The admonishments X have given you IS earlier will apply during .this break also. The Court is in 16 recess 17 (At this time Court .was in recess.) . .18 MR. MUSGRAVE: ,Your Honor., we determined 1131A was 19 in fact not a blowup but a xerox copy of the same table and it 20 had been previously passed to the jury, and X took the liberty 21 to repass it to the jury so we could move on. 22 THE COURT: Fine, thank you. 23 BY MR. MUSGRAVE: ..... 24 Q So the jury does have in .front of them Table 2 from 1 Plaintiffs' Exhibit 1131A, which is what, Dr. Kaley, I think yoi 2 had previously referred to.as-being, that is Plaintiff's 1131A, 3 being the analysis that Orville Hicks did of this sample in his 4 report dated July of 1979, is that correct, sir? 5 A Yes. 6 Q And this Table 2 for MB 758 .he reports total tettas, 7 does he not? 8 A Yes* 9 Q That's what's reported under the Cl 4 column? 10 A That's correct. II Q And he reports a leas than 20, and is that parts per 12 billion that he is reporting? 13 A Yes, that is correct. 14 Q Mow, in this instance, this Is once of those instance: 15 where the ND does not appear before the less than 20? 16 A That's correct. 17 Q And that again indicates .that there was an interfer 18 ence there and he could not reach the level of detection that 19 he could not identify what he was seeing because of the 20 interference? 21 A That is correct. 22 Q So if anything was there, he was saying here it was 23 less than 20 parts per billion? 24 A Yes, that's correct 1 Q Now, with regard to that .same sample that was analy: 2 by-the University of Nebraska in Plaintiffs* 1278 which is up 3 here on the chart, shown up here on the .chart as Plaintiffs' 4 1278A, again that would be sample five and six, I assume they 5 ran a replicate, ran it once and then ran a replicate as six. 6 A We actually submitted two samples as replicates. 7 Q Incidentally, you indicated you had been in Nebraska 8 coincidental to Brian Ward going and took some separate 9 A That is correct. *. .. IO Q So you do know, about those samples? 11 A That is correct. * ,,. ,,,, - , 12 Q Now, these two, samples then are shown, or the reports 13 are in parts per trillion* .. 14 A That's correct. 15 Q Now, the column here, 2,1,7,.8 TCDD column, they are 16 reporting isomers that coelute with .2,3,7,8, is that correct? 17 A Yes, that's what the? footnote 1 says. 18 Q So in September of 1980-- :.-well let me-- strike that* 19 MR* CARR: '79, counsel* 20 Q Yes, strike that. University of Nebraska appears to 21 have a lower level of detection than Monsanto? 22 A That's correct* ,. 23 Q All right. But nonetheless, in September of 1979 24 they were not isomer specific, were they? I A No, they were not* ,, 2 Q Now, who prepared these samples? Do you recall who 3 prepared these samples? 4 A They would have been prepared by Orvill Hicks in our 5 laboratory* 6 Q Do you know why Monsanto .prepared them as' opposed to 7 Nebraska? 8 A At the time it was my understanding Nebraska didn't 9 have any experience with separating the dioxins from phenolic 10 type materials, so we used our own extracts n Q Now, going back though to their report. What they 12 report here, for instance, sample five as 380 parts per 13 trillion, what does that translate to in parts per billion? 14 A Well, *38 or approximately 4, almost half a part IS per billion. 16 Q A half a part per billion? 17 A Yes* , 18 Q So that was below our levels of detection in July of 19 1979, Monsanto's? 20 A That's correct* 21 Q And the sample six which .is the replicate sample, it 22 reported 440 parts per trillion of isomers coeluting with the 23 2,3,7,8 standard, is that correct? 24 A That's right*