Document o94Yv2zDMve68EQdQy0jm2DZg

1 A. That's a yes* 2 . Q* Thank you# Doctor* How about persistent feelings 3 of pins and needles in the body? Can that be a clinical 4 effect# Doctor? 5 A* It can be* 6 Q. How about cramps# can that be a clinical effect? 7 A. I don't know# sir* 8 Q. You don't know that cramps can be a clinical 9 effect? Have you ever gone swimming# swum too fast# too far# 10 too long* had a cramp? 11 A* I try not to# sir* 12 Q. Have you ever done it? 13 A. When I was a child# yes* 14 Q. Was the cramps that you had a clinical effect of 15 fatigue# of blood deprivation# or of some injury to your 16 muscles? 17 A. In that instance# yes# sir* 18 Q* So cramps can be a clinical effect can it not? 19 A. It's possible to be a clinical' effect* 20 Q. Is that yes it can be a clinical effect? A. It can be in your terms# sir. Q. How about loss of power# can that be a clinical effect? A. X don't know what that means# sir* What is loss of. 43 1 power? 2 Q. Loss of strength. Can loss of strength? 3 A. Is that equivalent to weakness? 4 Q. Doctor, can loss of strength be a clinical effect? 5 A. I don't know what that means, sir. 6 Q. You don't know what loss of strength means, Doctor? 7 A. No, not -- not the way it's -- 8 Q. Are you saying you don't know what loss of strength 9 means, Doctor? 10 A. It says loss of power here. 11 Q. Doctor, I'm asking you whether or not you know what 12 loss of strength means? 13 A. I can interpret it. 14 Q. My question is, do you know what loss of strength 15 means? 16 A. At face value, I do not know. 17 Q. Doctor, do you know what loss means? 18 A. Lack of. 19 Q. Do you know what strength means? v 20 A. I believe I do. 21 Q. Do you know what those two combined, loss of 22 strength means. Doctor? 23 A. That means having no strength. 24 Q. Why, Doctor? ---------------- ---------------44 1 A* That's what it means. 2 Q. Can loss of strength be a clinical effect? 3 A. I don't know. 4 Q, Doctor, you don't know that you can lose your 5 strength if you are sick, if you are too old, if you are worn 6 out, if you are deceased, if you are injured? Can't you have 7 a loss of strength from any number of situations, Doctor? 8 A. You can, but this says loss of power, sir. t 9 Q. Doctor, are you listening to what I'm asking you? 10 A. Yes, I am. 11 Q. You keep referring to a paper. My question refers 12 to loss of strength. Can loss of strength be a clinical 13 effect, Doctor? 14 A. Complete lack of strength I've never heard of, 15 complete lack of strength. 16 Q. Doctor, I'm not asking you whether or not you've 17 ever heard of -- 18 A. That's what loss is. 19 Q. Complete lack of strength? Youive heard of when 20 you are dead, have you not? 21 A. That's true. 22 Q. You've heard of it when you are paralyzed, have you 23 not? 24 A. That's true. 45 1 Q, You've heard of it when you are laying vflat on your 2 back so sick, so 111 you can't move, you've heard of that 3 too, haven't you, sir? 4 A, That's true, sir. 5 Q. You've heard of that. Now, can those things be 6 clinical effects. Doctor? 7 A, If you are dead or paralyzed, yes. 8 Q. And that's the only way you can have a clinical 9 effect from loss of strength? 10 A. That's complete loss of strenght. 11 Q. I didn't say complete loss. t 12 A. That's what loss means, loss means lack of. 13 Q. Loss means complete? 14 A. Doesn't it mean lack of? 15 Q. Can't you have a slight loss? Can't you have some 16 loss? Can't you have a great loss? Can you have a little 17 bitty loss? Can you have complete loss? All these things 18 are losses, aren't they? 19 A. Not necessarily, no. 20 Q. Aren't they all losses, sir? 21 A. No. ' 22 Q They are not? What are they if they are not 23 losses? Is a slight loss a loss. Doctor? 24 A, If you quantitate loss, _______________________________________________________ _____________________________________ 46 1 MR. HEINEMANi Excuse me* Let me object to four 2 questions in a row there* 3 THE COURTS Objection is overruled* 4 Q* (by Hr* Carr) Is a slight loss a loss? 5 A. I don't know about a slight loss, sir, never heard 6 of it. 7 Q* You don't know whether that's a loss? 8 A* Decrease but not a slight loss* 9 Q* Doctor, is a slight loss equivalent to a decrease 10 or less? 11 A. I don't know* That's your -- that's your 12 definition, sir. 13 Q. You don't know that a slight loss of strength means 14 a decrease in strength? 15 A. If that's the way you define it* 16 Q. Let's define it that way* Loss of strength means 17 -- a slight loss of strength means a decrease in strength? 18 A. If you are defining it that way. 19 Q. Defining it that -- 20 A* Are you defining it that way? 21 Q* Yeah, Doctor, is that a clinical effect? 22 A. It may be. 23 Q. Can it be? 24 A. It can be in your terms. 47 1 Q. Can a great loss of strength be a clinical effect? 2 A, It might be* 3 Q. Can it be, Doctor? 4 A. If you are paralyzed* 5 Q* Can a great loss -6 A. Or dead* 7 Q. Can a great loss of strength be a clinical effect. 8 Doctor? 9 A. It can be* 10 Q. Doctor, what about burning in body, can that be a XI clinical effect? 12 A. I don't know what that is, sir, and you know -- I 13 have no idea what that is* 14 Q* Doctor, I'm asking you whether or not you can have 15 a burning sensation in your body as a clinical effect, 16 Doctor? Can it be a clinical effect? 17 A. I don't know what that is, sir 18 Q. My wife who has recently gone through menopause 19 complains about burning, about hot flashes, about things of 20 that sort, is that a clinical effect of her going through 21 menopause? 22 A The way you have described it, it's yes, but the 23 way it's described here, sir -- 24 Q* Doctor, I'm not -- please quit referring to that, 48 1 Doctor 2 A You referred to it, not me 3 Q, Doctor* I'm asking you whether or not a burning -- 4 now these people out here* as far as you are concerned* they 5 may all be going through menopause* they may have blow 6 torches put to their body 7 A* 1 hope not 8 Q May be over exercising* may be doing any number of 9 things to cause burning in bodies* but that's not what I'm 10 asking you* Doctor I'm asking you simply can burning in 11 body be a clinical effect? 12 A. And what I said* sir* is I don't know what burning 13 in body is 14 Qm Doctor* I've described it to you a number of things 15 that can be 16 A. The way you've -- 17 Q. Can those things be clinical effects? 18 A* The way you have described it? 19 Q. Yes* Doctor* can that be clinical effects? 20 A Not the way it's described here* but the way you 21 have described it it's a clinical effect 22 Q Can tingling in fingers and toes be a clinical 23 effect* Doctor? 24 A, I believe so. 49 1 Q, Thank you, Doctor* Now, Doctor, you have also had 2 occasion to perform a health study upon various workers at 3 the Krummrich plant, have you not, sir? 4 A. I have. 5 Q* 1979? 6 A. Yes, sir* 7 Q. 1507a to the witness, please Do you have it, 8 Doctor? 9 A. No, I do not. 10 Q. Oh, I'm sorry I'll give you a copy of mine. 11 MR HEINEMAN* Excuse me, Your Honor, may counsel 12 approach the bench? 13 THE COURTi Sure* 14 (The following Side Bar conversation was had outside the 15 hearing of the jury) 16 MR HEINEMAN* I just want to make sure we are 17 working with the same version of this thing As I recall, it 18 was corrected two or three times 19 MR. CARR: Yes, 1507a is th last version 20 THE COURT! Okay. 21 MR, HEINEMAN: 1507a is what the witness has? 22 MR CARR: is what the witness has. 23 MR. HEINEMANt All right. 24 THE COURT* Fine. 50 1 (The following proceedings were had In open court*) 2 Q. (by Mr* Carr) Doctorr when you perform this health 3 study upon these workers, you ask a number of questions 4 relative to their problems, complaints, and symptoms, did you 5 not, sir? 6 A. We asked specific questions about -- 7 Q, Now, Doctor -- 8 A* We asked specific questions about their complaints, 9 sir, yes* 10 Q And one question that you asked, Doctor, is do you 11 have headaches daily, weekly, less than weekly, did you not, 12 sir? 13 A. I don't have the questionnaire before me but I 14 believe we did that* 15 Q. That's my only copy right now* v 16 A. Okay* 17 Q* Doctor, you asked a number of questions, did you 18 not, sir? 19 A. Yes. 20 Q* Do you have headaches? Do you have trouble 21 sleeping? Are you tired most of the time? Do you need more 22 sleep than usual? Do you have a good appetite? Do you lose 23 your temper easily? Do you feel angry often? You've asked 24 all those questions in that questionnaire, did you not, 51 1 Doctor? 2 A* I believe we do. 3 Q. All right. Now, Doctor, are those problems that 4 you mentioned there, are they all clinical effects? 5 A. No, sir. 6 Q. How about headaches, is that a clinical effect? 7 A. In answering to this question, they are complaints, 8 sir 9 Q. Well, they are complaints or symptoms, aren't they, 10 sir? 11 A. They might be if they are real. 12 Q. Doctor, a complaint according to your definition is 13 a clinical effect? 14 A. It can be a clinical effect if it's real. We have 15 been through that a thousand tiraeB. 16 Q. No question about it. I'm not talking about 17 imagined headaches or imagined trouble sleeping, neither were 18 you, you were asking about real problems, weren't you, that 19 they might have, weren't you, sir? 20 A. At any time. 21 Q. Isn't that right? 22 A, At any time. 23 Q. Doctor, is the answer to my question, yes, you were 24 asking about real problems? 52 1 A. At any timer yes, sir* 2 MR. CARR: Would you direct the witness to answer 3 my question. 4 THE COURTs Doctorr please don't go beyond the v 5 question that's asked of you. Could you answer the question 6 directly? 7 A. We didr sir. 8 Q. And, Doctorr the question that you asked with 9 reference to headaches was do you have headaches, that's what 10 you asked, wasn't itr sir? 11 A. Yes, sir. 12 Q. Now, you are asking whether or not they have a 13 clinical effect known as headaches, weren't you, sir? 14 A. No, we are not. We are asking them if they have 15 headaches and clinical effect is the effect of something and 16 insinuates that something is causing it. 17 Q. Doctor, weren't you asking these questions to do a 18 health study on these people associated with these chemicals / 19 at the Krummrich's Sauget, Illinois plant? 20 A. If it was so found, data analysis has to be done 21 first, sir. 22 MR. CARR: Would you direct the witness to wait 23 until I finish my question? 24 THE COURT: I believe he was trying to ask another 53 1 question after you answered the one 2 Q. Doctor/ weren't you asking these questions in order 3 to assert whether or not these men had problems related to, 4 associated with, caused by the chemicals with which they were 5 working? 6 A Not necessarily 7 Q. Doctor, isn't that the reason you asked these 8 questions? 9 A No, we wanted to know what the health status of 10 these people were and that's different 11 Q. Doctor, why did you want -- 12 A. That's different 13 Q Doctor, why did you want to know what their health 14 status was? 15 A We wanted to know what the health status of that 16 group was 17 Q. Doctor, didn't you say to these workers the 18 objective of this clinical study is to determine the health 19 status of employees of the W. G Krummrich plant of the 20 Monsanto Company who have been exposed to chlorinated phenols 21 and then go on and on, Doctor? Didn't you say that, sir? 22 A We did, but that doesn't mean to say we were 23 looking for things that had to be related to chlorinated 24 phenols 54 1 Q. Oh, Doctor. 2 A. A health status -- 3 Q. But then. Doctor, you went on to say -- I didn't 4 read you the entire sentence. 5 A. Please do. 6 Q. And to identify those conditions which may be 7 related to the work environment, you said that also, didn't 8 you, Doctor? 9 A. Correct, sir. XO Q. You also said particular attention will be paid to 11 skin reactions and the problem of other organ systems which 12 may be identified through laboratory tests? 13 A. Correct, sir. 14 Q. You said that, didn't you, Doctor? 15 A. Through laboratory tests. 16 Q. And you asked these questions having in mind you 17 wanted to determine the health status of these employees, 18 didn't you, sir? 19 A. Correct. That's what I have already said, sir. 20 Q. All right. Doctor, now, you asked these questions 21 in order to help you determine that health status, did you 22 not, sir? 23 A. Absolutely. 24 Q. All right. Now, Doctor, you asked the question 55 1 about whether or not headaches, because you believe that was 2 -- you designed this study, that was a question that was 3 important to you to ask in order to determine their health 4 status, did you not, sir? 5 A. One of the things we'd ask, among a lot of others, 6 Q, That's right, Doctor, no question about that, and 7 so you wanted to find out whether or not their health had 8 been affected by these chemicals in such a way as could 9 possibly cause them headaches, did you not, sir? 10 A. NO, 11 Q, Doctor -- 12 A, Not necessarily, 13 Q. Not necessarily. Hadn't you previously found that 14 human health effects of exposure to TCDD was headaches? 15 Hadn't you previously found that, Doctor? 16 A, No, sir. 17 Q, Didn't you testify here earlier that a health 18 effect -- and doesn't your Table 1 show a health effect from 19 TCDD exposure in this instance acute reaction is headache? 20 A. We have went through that before, sir, and I 21 pointed out -- 22 Q, Doctor, would you answer that? 23 A. That is a runaway reaction. 24 Q. Would you answerthat? 56 X A. No, I did not, sir* 2 Q. You didn't find this to be a human health effect 3 from this acute reaction to TCDD? 4 A. No, to TCP, there it -- 5 Q. Doctor -- 6 A* why don't you read the rest of it? It says acute 7 following TCP runaway reactions as at Seveso. k 8 Q. Doctor, what about TCDD? 9 A* The acute health effects -- 10 THE COURTS Doctor, you've answered the question* 11 You've gone beyond th question. Let counsel ask the next 12 question? 13 A* Thank you* 14 Q* Doctor, did you use the words TCDD here or not? 15 A. I used that to show 16 Q. Doctor, my question is simple, did you use the 17 words TCDD there or not? 18 A* I used those words, but I have explained it before 19 in this court, sir, and you have manipulated my answer* 20 THE COURT: Doctor -- 21 MR. CARR: Your Honor, would you -- 22 THE COURT: That was not at all responsive to 23 anything that you were asked* You were asked simply whether 24 the words were used* Now, when you answer a direct question . 57 1 like that stop when you fully answered it* What you said 2 past that point was not responsive to the question. I 3 pointed that put to you dozens of times and you shake your 4 head in acknowledgment that that's so, and then you do itv 5 again a short time later. This time please -- 6 A. I'll try not to, sir. 7 THE COURTS Please follow the requests of the Court 8 and only respond to the questions that are asked of you. 9 MR. CARR: Would you direct the jury to disregard 10 the charge that Dr. Suskind has made that I've manipulated -- 11 THE COURT: Jury is so instructed. It was not 12 responsive to the question. 13 Q. (by Mr. Carr) Dr. Suskind, you use the questions, 14 did you not, sir, you designed the questionnaire in order to 15 determine their health status? 16 A. We did, sir. 17 Q. And, Doctor, one of the questions you asked was 18 about headaches, wasn't it, sir? 19 A. We did, sir, 20 Q, You wanted to find out whether or not it was 21 possible these men had headaches that just might possibly be 22 caused by the conditions in which they were working, did you 23 not, sir? 24 A, It might be, sir, yes. 58 1 THE COURTt Doctor -- I mean -- now I'm getting 2 confused 3 MR CARR: Yes, Your Honor 4 THE COURTt Let's take a break at this point I n 1 5 time* I think I need it if no one else does. 6 THE COURTi We will take a short recess, whether 7 doctors, lawyers, or jurors And 1 would remind you, you are 8 not to discuss this matter among yourselves, with anyone 9 outside the jury panel or as of yet form any opinions or 10 conclusions about the matters on trial Court is in recess 11 (Following a recess, these proceedings were had in open 12 court) 13 Q Doctor, these questions that are contained on Page 14 11 of your document dealing with these Krummrich plant 15 workers, these questions are the only questions contained in 16 the questionnaire that you gave to these men relating to 17 their current health problems symptoms or complaints, isn't 18 that correct, sir? 19 A No, I believe we do have a -- no, we have on Page 9 20 a personal medical history, have you been bothered with the 21 following conditions -- 22 Q Doctor, that's says have you been bothered with any 23 of the following conditions? 4 A Right, well, that's a medical history, sir. You 59 X asked me that and I 'm answering it* There were-any number of 2 other places, sir, and in the physicians ~~ 3 Q. Doctor, that physician is when they asked them 4 orally, when the dermatologists that you brought with you or 5 the interviewers you brought with you, they ask questions 6 My question relates to questionnaire, the questions written 7 8 A I am saying that on Page 9, sir. 9 Q. All right. Doctor, I understand that there is on 10 Page 9 personal medical history, have you been bothered with 11 any of the following conditions? 12 A. Correct, sir. 13 Q. That would relate to at any time in the past, 14 wouldn't it, sir, because it says have you been bothered, 15 that's in the past tense, isn't it, sir? 16 A. Right, in the past. 17 Q. Now, that's past tense, isn't it, sir? 18 A. Yes, sir. 19 Q. Now, my question relates to current, Doctor, the 20 current questions in this form that you submitted to these 21 men, those current questions dealing with their current 22 health problems contained on those questions on Page 11 23 running from question 3 to 9, isn't that correct, sir? 24 A. And on Page 13 and 14, sir, in the review of 60 X symptoms 2 Q, Doctor, the review of symptoms is something for the 3 doctor to fill out. It's the dermatologists that you brought 4 down, they reviewed the systems with the men individually, in 5 the examining room, Doctor. I'm not referring to that 6 examination. My question is referring to the questionnaire 7 submitted to the men for answering. Is it not true that the 8 only questions asked about their current medical problems, 9 current health problems is contained on Page 117 10 A. No, sir. 11 Q. What other page, sir? 12 A. On Page 13 and 14 the doctor -- 13 Q. Doctor -- 14 A, My I finish my answer, sir? 15 Q. Doctor -- 16 A. You have asked me a question* 17 MR. CARR: Would you direct the witness -- 18 THE COURT: Doctor, please -- 19 Q. (by Mr. Carr) Doctor, we have already referred to 20 Page 13 and 14. It is the doctor asking the questions. 21 A. Well, the doctor asks the questions. 22 Q. Yes, Doctor, I'm not asking -- 23 A. A medical history is taken by a doctor. 24 THE COURT: Doctor, Doctor, Doctor, let him finish 61 1 the question please* We have gone -- this is the third time 2 we have gone over this. 3 Q* (by Mr* Carr) Doctor, I'm not asking you whether 4 or not the doctor in the examining room asked questions about 5 their current medical problems, that is not the question I'm 6 asking you* You understand that, Doctor? \ 7 A* I believe I do, sir* 8 Q* Doctor, I'm asking you about the questionnaire that 9 was submitted dealing with -- 10 A* v It wasn't submitted* It was an interview, sir* 11 Q. In the interview -- 12 A* Okay* 13 Q. By the interviewer -- 14 A* This was an administered interview. 15 Q* By the administered interviewer, those questions 16 are contained on Page 11, are they not, sir? 17 A* The administered interview on Page 11 and the 18 doctors interview, sir, on Page 13 and 14. 19 MR. CARR: Your Honor, would you direct the 20 witness? He is again going beyond the question* 21 THE COURT: Doctor, I Just explained a minute ago 22 that's not responsive to the question* This is the fourth 23 time we have had to go over it. I'm ordering the jury to 24 disregard the last remarks about Page 13 and 14* They were v 62 1 not responsive* The other stands as the answer Hr Carr, 2 let's proceed. 3 Q. (by Mr Carr) Dr Suskind, Page 13 and 14 do not 4 set out any questions, do they, sir7 It simply is a form for 5 the physician to fill out as he reviews and examines the 6 patient. He will question the patient. He will examine the 7 patient. He will fill out that form. But there are no 8 questions asked, set out on that form to be asked the 9 patient, are there, sir? 10 A. Doctors don't need questions, sir. 11 MR. CARR: Your Honor, would you direct the witness 12 to answer the question? 13 THE COURT: Doctor -- 14 A. There are no specific questions. 15 Q. Doctor, there are no questions at all set out on 16 that page? 17 A. There are, sir. 18 Q. The doctor uses -- 19 A. There are questions about organ systems. 20 Q. May I finish, sir? The doctor uses his own 21 background, his own knowledge, his own method of asking 22 questions. He's not confined to a particular question or 23 form, is he, sir? 24 A. He is not confined to a form, sir. 63 1 Q. And there are no questions on 13 and 14 that he is 2 told specifically to ask the worker He is given his own 3 discretion as to how to ask the questions in order to pry 4 from the man his status, isn't that correct, sir? 5 A. No, sir* 6 Q* That isn't correct? 7 A* No, sir* 8 Q. Doctor, what is incorrect? 9 A* The incorrect part of that is that all of our 10 examining physicians were trained for this particular study 11 and they were instructed as to how to go about getting a 12 medical and other history from the patient. 13 Q. Doctor, it would be fine to accept that, I have no 14 quarrel with that, you understand? My question isn't 15 directed to that, sir* My question relates to the questions 16 in the questionnaire that your interviewer, not your doctor, 17 but that your interviewer was to ask the workers* Those 18 questions dealing with the current medical health problems 19 are contained on Page 11, are they not, sir? 20 A. 9 and 11, sir* 21 Q. Doctor, we have already established that 9 deals 22 with past medical history. 23 A* No, it could be current as well, it could be any 24 time. 64 1 Q. Doctor, didn't you -- 2 A* Any time* 3 Q. Doctor, excuse me, but didn't you agree that the 4 question was have you been bothered? 5 A Right 6 Q. That Is In the past tense, Isn't It, sir? 7 A. And have you been bothered yesterday, the day 8 before, today, It's the same thing Have befen* This Is a 9 semantic problem which you have raised, sir, and I submit 10 that these problems could have been yesterday or the day 11 before 12 Q* Doctor, I don't even quarrel with that. Doctor 13 A Well, then why are you quarreling? 14 Q I am not, Doctor, you are The question that I'm 15 asking you, sir, the only questions that are set out in this 16 questionnaire about current medical problems in the present 17 tense, sir, do you have headaches, do you have trouble 18 sleeping, are you tired most of the time, do you need more 19 sleep than usual, these are all based in'the present tense, 20 aren't they, sir? 21 A. As well as Page 9, sir 22 Q. Doctor, the Page 9 uses the word have you been? 23 A So what? 24 MR. CARRi Your Honor, would you -- 65 1 A. It could be yesterday* 2 THE COURT: Doctor, that's not responsive to the 3 question* Please confine yourself to the question that was 4 asked of you* We have been on this too long* 5 Q* (by Mr* Carr) Doctor, these questions that were 6 asked were designed -- on Page 11, were designed to help you, 7 along with these questions dealing with the history on Page 8 9, were designed to give you a basis in order to make a 9 determination of the health status of these workers, isn't 10 that correct, sir* 11 Q. Not only those things, Doctor, but other things as 12 well* But these questions were part of the design for that 13 end, weren't they, sir? 14 A* They were partly designed for that end, sir, yes* 15 Q* Now, Doctor, and these questions that you asked 16 were designed, among other things, to find out whether or not 17 they had these particular clinical effects, were they not, 18 sir? 19 A. No, sir. 20 Q. Did you ask the questions for a purpose, Doctor? 21 A. Yes, sir* 22 Q. Did you ask the questions to determine whether or 23 not they had these particular problems currently, that's 24 contained on Page 11? 66 1 A* We did* 2 Q. And did you ask those questions with the thought in 3 mind that possibly one or more of these problems could be 4 caused by exposure to chemicals? 5 A. Possibly. 6 Q. Yes, Doctor, that's the reason for asking the 7 questions, is it -- 8 A. No, sir. 9 Q. Doctor, didn't you ask the questions for the 10 purpose -- *didn't you do the whole survey for the purpose of 11 trying to find out what their health status is as connected 12 to the work environment, as related to the work environment? 13 Haven't we already established that you said that was your 14 objective in this whole study? 15 A. It was one of our objectives, yes. 16 Q. Doctor, it was the objective. It was the stated 17 objective, was it not, sir? Stated by you? 18 A. To determine the health status. 19 Q. Wasn't it the objective to determine the health 20 status of these employees who have been exposed to 21 chlorinated phenols, and to identify those conditions which 22 may be related to the work environment? 23 A. That's correct, sir, 24 Q. And, Doctor, you asked these questions for the 67 X purpose of identifying, among other things -- you. asked these 2 questions, among other things, for the purpose of identifying 3 those conditions which may be related to the work and 4 environment, did you not, sir? 5 A. We did, sir. 6 Q. Thank you, Doctor. Now, and you wanted to find out 7 whether or not these people had these problems, and if they 8 had them, you wanted to find out whether or not it might be 9 -- may be related to chlorinated phenols, isn't that correct, 10 sir? 11 A. That was one of our objectives, sir. 12 Q. That was the objective, wasn't it? 13 A. Not necessarily so. 14 Q. Doctor, wasn't that the only stated objective of 15 this study, sir? 16 A. No, it wasn't. 17 Q. What other objective did you state there, sir, in 18 your document -- 19 A. We said -- 20 Q. Doctor -- 21 A. You have read it correctly, sir. 22 Q. My question -- 23 A. You have read it correctly. 24 Q. I know that, Doctor. My question now is what other* 68 1 objective is set out in this document other than''the 2 objective I read to you, sir? 3 A. If we are determining -- 4 MR. CARR: Would you direct the witness to answer 5 my question? 6 A. I'm answering your question. You haven't allowed 7 me to* 8 THE COURT: Doctor, please answer the question 9 directly? 10 A. I am, sir. The objective stated there is to 11 determine the health status of individuals, and the group, 12 and to determine because these people were indeed exposed to 13 chlorinated phenols, but there could be other reasons for 14 having symptoms or other reasons for having abnormal 15 laboratory findings* 16 Q. Nobody is quarreling with that, Doctor. We both 17 agree 100 percent. 18 A. Then we agree. 19 Q. But, Doctor, my question to you; sir, is what 20 objective did you have in this study other than to determine 21 their status of those who have been exposed to chlorinated 22 phenols and to identify those conditions which may be related, 23 to that exposure, sir? 24 A. That plus whatever else I said. 69 1 Q. Whatever else did you say, Doctor? 2 A. I said what other -- other stimuli/ other 3 environmentsr other causes for clinical or laboratory 4 findings* 5 Q. Where did you say thatr Doctor, that you want to 6 find out what other causes may be? 7 A* We said health status* 8 Q* Excuse me. Doctor, my question is where do you say 9 you want to find out whether or not the health status has 10 been caused by something other than the exposure to the 11 chlorinated phenols? 12 A* Sir, when you do a study like that it's implied. 13 MR* CARR: Your Honor -- Dr* Suskind, would you 14 point out to me where? 15 A. I said it's implied* 16 Q* What does that mean, that it's not stated in there? 17 A. It's not stated specifically* 18 Q. What does that mean that it's not stated in there? 19 A* Any self respecting scientist would would recognize 20 21 Q* Would you answer my question? 22 THE COURT: Doctor that was not responsive* Please, 23 answer the question that was asked you* 24 A* It isn't spelled out there if that's what you want.*- 70 1 Q, Doctor, the objective that's spelled out is you 2 want to determine whether or not these conditions that they 3 have were caused by exposure to the chlorinated phenols? 4 A* Or something else, 5 Q. Well, that's all right, Doctor, I'll certainly go 6 with that, 7 A, That's all I'm-saying, sir, 8 0, Now, Doctor, the questions that you asked and that 9 we have already read once were asked for the purpose of 10 helping you identify those conditions that might be 11 attributed to exposure to chlorinated phenols, isn't that 12 correct, sir? 13 A, Or something else, sir, 14 Q, Or something else? 15 A, Good, Yes, 16 Q, All right. And you asked those questions with that 17 in mind, did you not, sir? 18 A, Correct, 19 Q, And these are the only questions that you've asked 20 on that page in this interviewer section, isn't that correct, 21 sir? 22 A, In the interviewer section. 23 Q. All right, Doctor, Now, Doctor, these questions 24 that you asked were for the purpose of determining clinical * 71 1 effects for exposure to the chlorinated phenols or from 2 something else* isn't that right/ sir? 3 A. No. 4 Q. What other purpose would you have in asking these 5 questions/ Doctor? 6 A. Were those -7 MR. CARRi Excuse mer let me finish my question. 8 What Other purpose would you have in mind in asking those 9 questions if you did not want to determine what their current 10 health status may have been that was caused by the exposure 11 to the chlorinated phenols or something else? 12 A. Okay. It was important for us to find out if these 13 complaints as indicated on Page 11/ which you are referring 14 tor were significant/ if they were significant complaints/ if 15 they were real. And it has nothing to do with lying or not 16 lying. It has. to do with the significance of those answers. 17 Q. Now/ Doctor/ would you answer my question/ please/ 18 sir? 19 A. I have already. 20 Q. Would you read the question. 21 COURT REPORTER; "Now, Doctor/ these questions that 22 you asked were for the purpose of determining clinical 23 effects for exposure to the chlorinated phenols or from 24 something elser isn't that right/ sir?" 72 1 MR* HEXNEMAN: Objection, just been answered, 2 Judge* 3 THE COURT: I think it has been* Objection 4 sustained. 5 Q. (by Mr. Carr) Are you saying the purpose to answer 6 these questions is to find out if they had significant health 7 problems? 8 A. One of the purposes, sure. 9 Q. You asked the question, these nine questions in 10 order to find out whether or not they had significant health 11 problems that may have been caused by chlorinated phenols, 12 isn't that correct, sir? 13 A. When you -- I say the significance of these, not 14 significant problems, but the significance of these 15 problems. They are just a few, a few possible complaints, as 16 you can see, and I believe that we -- again we depended upon 17 the physician to ask the rest. 18 Q. Doctor, that isn't what I'm asking you about at 19 all. Would you read my question to him again. 20 COURT REPORTER: nYou asked the question, these nine 21 questions in order to find out whether or not they had 22 significant health problems that may have been caused by 23 chlorinated phenols, isn't that correct? 24 A. No. The answer is no. 73 1 0 Sir? 2 A. No. 3 Q. You just -- why did you ask these questions then* 4 Doctor? 5 A, Because we wanted to know if there were -- if they 6 were significantly related, 7 Q, Yes, 8 A, Significantly, First of all, if these were 9 significant issues, 10 Q, Yes, Significant complaints? 11 A, Right, And whether or not one could by looking at 12 groups of people relate these complaints, these complaints to 13 the exposure, or to some other factors that might be, might, 14 emerge, 15 Q, That's fine, Doctor, I have no quarrel with that. 16 Accept that 100 percent. That's the reason for asking these 17 questions, isn't it, sir? 18 A, But we didn't only ask them to find out if it was 19 chlorinated phenols, sir, 20 MR, CARR: Your Honor, would you direct the witness 21 to answer my question again? 22 A, I have, 23 THE COURT: Doctor, no, I don't think that was 24 responsive. Please read the question to him again. 74 1 COURT REPORTERt "That's fine# Doctor, I have'no 2 quarrel with that Accept that 100 percent That's the 3 reason for asking these questions, isn't it sir?" 4 A Does that limit it to chlorinated phenol? I'm not 5 altogether sure what the previous statement that you made in 6 the question 7 Q It's the answer that you made that I'm referring 8 to, Doctor Would you read his answer to him? 9 COURT REPORTERS Right And whether or not one 10 could by looking at groups of people relate these complaints, 11 these complaints to the exposure, or to some other factors 12 that might be, might emerge? 13 A. Right 14 Q And now, Doctor, these questions fall within, and 15 Doctor, there is no question but what these are questions 16 designed to determine whether or not there are clinical 17 effects from this exposure or from something else, isn't that 18 correct, sir? We have covered that, no problems with that, 19 sir, 20 A Yes, I believe so. 21 Q. All right Wow, Doctor, these questions fall into 22 categories dealing with headaches, and by these questions I 23 mean those on Page 11, sir, deal with headaches, and their 24 frequency, whether or not they have difficulty sleeping. 75 1 fatigue, poor appetite and neurobehavioral problems, correct, 2 sir? 3 A, By neurobehavioral I assume you are referring to 4 the -- 5 Q. The temper and the anger? 6 A* Lose your temper and the anger, yes* 7 Q* All right* Doctor, now, and these gentlemen all 8 answered these questions, did they not, sir? 9 A. I don't have the records before me, but they were 10 asked the questions and I assume that in those 115 who were 11 interviewed that they answered the interviewers questions. 12 Q. And you collected with all their answers are you 13 not, Doctor? 14 A. We have all the records* 15 Q. You have all the records that has all their 16 answers, don't you, sir? 17 A. Yes, I believe we do* 18 Q* These were the sole questions asked on this page by 19 the interviewer that were set up purposely designed to, along 20 with the other questions, and the past history and the 21 doctor's examination, designed to get from them what their 22 current health problems might be, isn't that correct, sir? 23 A * Yes * 24 Q. And this is *- 76 1 A. Current complaints were. 2 Q. Yes, this Is Information that you felt was 3 important to get, did you not? 4 A Otherwise we wouldn't have asked. 5 Q. That's right, that follows, doesn't it, sir? 6 A. Right. 7 Q. These were the most important questions that you 8 could design to ask, have your interviewer ask preparatory to 9 the physicians seeing him about their current health problems 10 that might be bothering these workers who have been exposed 11 to these chlorinated phenols, isn't that correct, sir? 12 A. This along with 9 and the physicians. 13 Q. Is that correct, sir? 14 A. Page 11, as I say, only constitutes a small number 15 of those questions. 16 3. Doctor, but it's the only questions based upon the 17 current status in this interviewer section, is it not, sir? 18 Have we established that, sir? It's the only ones posed in 19 the present tense, do you have headaches; do you have trouble 20 sleeping; are you tired most of the time; do you need more 21 sleep than usual; do you have a good appetite; do you lose 22 your temper easily; do you feel angry often; those are the 23 only questions posed only in the present tense in this form? 24 A. No, sir* No, sir. 77 1 Q. Doctor, haven't we established that those are the 2 only ones? 3 A* No, sir, we have not established that, sir. 4 Q. You pointed out Page 9, sir? 5 A. Right, I did 6 Q. That the interviewer was to ask about problems that 7 have been bothering them, correct, sir? 8 A. Right. 9 Q* All right* Now, Doctor, did you utilize the 10 answers to these questions, sir, on Page 11, or on Page 9 in 11 analyzing whether or not what the health status of these 12 people were? Did you, sir? 13 A. I don't know if they are in our current analyses. 14 I think what we concentrated on -- 15 Q. Excuse me, Doctor, did you utilize these answers or 16 any part of these answers or the business on Page 9 in any 17 way in reporting on the health status of these workers? Do 18 you have your report, your final report submitted on 19 September 29th, 198 -- Do you, Doctor? If you don't I'll 20 have the Clerk give you the copy. 21 A* That, sir, was not the final report, sir. 22 Q. There is another more final report than that? 23 A. You have copies. We made available to you copies. 24 Q. Excuse me, is there another report more final than ' 78 1 this? 2 A. Well* it is not completely -- 3 Q* Doctor, my question is -- 4 A* Completely assembled -- 5 Q. My question is, is there another report more final 6 than this one? 7 A. Yes, sir* 8 Q. Where is that report, sir? 9 A* You have copies of it, sir, I believe, and -- 10 Q. Are you talking about those documents that were 11 given to us when you started testifying? 12 A* Well, before we testified, yeah, I am, sir* 13 Q. Doctor, those are documents that you just brought 14 in to this court. You never submitted those to anybody 15 before you came to this court, did you, sir? 16 A. No, we submitted them to Monsanto, sir. 17 Q. When was that, sir? 18 A. Shortly before we came here, sir. 19 Q. Doctor, what you gave me -- what was given me was a 20 file of papers with some tables and other things in it, isn't 21 that what you gave me, sir? 22 A. Very valuable stuff, sir, yes. 23 Q. Isn't that what you gave me, sir? 24 A. Yes, we did. Not a pile of papers. That was a 79 1 report* 2 Q. That is something that you gave Monsanto in 3 response apparently to some question they asked you for some 4 other kind of report? 5 A* No, sir We felt that the 19 -- whatever that 6 other report was, 1982 7 0* 1980, Doctor 8 A, Was really not the final report because we hadn't 9 -- by that time we had not analyzed all the data We only 10 analyzed some of the data. IX Q. This report in 1979, a study in 1979, and as late 12 as 1986, you had not analyzed all the data? 13 A. That's correct, sir, absolutely 14 Q Doctor, I suggest to you that your report, your 15 final report was made after we submitted your final report 16 into evidence in this case, in the fall of 1985, and after 17 Plaintiff's Exhibit 1500 was made, which in fact analyzed 18 your final report, isn't that correct, sir? 19 A No, I would submit that you -- that what you say is 20 completely erroneous, sir. 21 Q. Doctor, did your report come up In 1986? Did your 22 final final report come up in 1986? Did you submit it in 23 1986, Doctor? 24 A Yes, in 1986 ' 80 1 Q. Was 1986 in point of time months afterwe prepared 2 Plaintiff's Exhibit 1507a? 3 A* Sir, 1 never saw that until this trial started, 4 sir 5 Q. This trial started two years ago* 6 A. Until I got -- sorry* Until I was asked to 7 testify. 8 Q. Well, Doctor, you were asked to testify several 9 months ago, years ago, as a matter of fact. 10 A. No, I was not, sir* That's not so. 11 Q. When were you asked to testify. Doctor? 12 A. Oh, some time in either November or December of 13 last year, sir. 14 Q. And, Doctor, that was after Plaintiff's Exhibit 15 1507a came into existence? 16 A. I haven't seen that. 17 Q. I'm not asking whether or not you've seen it or 18 not. Monsanto knew of its existence. Monsanto knew it. You 19 were asked to testify after this exhibits was prepared, were 20 you not, sir? 21 A. I don't know, I can't answer that. 22 Q. This exhibit bears the date of July 31st, 1985, you. 23 would have been asked after that date, wouldn't you, sir? 24 A, No, we were -- you mean asked to testify? 81 1 q J After this point in time, after July 31st# 1985# 2 you were asked by Monsanto to testify in this case# is that 3 correct# sir? 4 A I believe so, yeah* 5 THE COURT: Mr* Carr, is this a good point to break 6 for lunch? 7 MR, CARR: Yes, Your Honor* 8 THE COURT: We will recess for lunch at this time* 9 We will start again at 1:15. Admonishments that I've given 1.0 you earlier will apply during this break. Court is in lunch 11 recess* 12 (Following a recess for the lunch hour# these proceedings 13 were had in open court*) 14 Q* (by Mr* Carr) Dr* Suskind, this morning we were 15 discussing the report, Plaintiff's Exhibit 1500 entitled, & 16 Study of Health Workers. Invoivad ln the Product ion_of_ 17 Pentachlorophenol and Other,Chlorinated, Phenols* you recall 18 that, sir? 19 A* Yes, 1 do, sir* 20 Q. And you have in the past called this your final 21 report, have you not? 22 A, Mo, sir, I have not. 23 Q. You have not? 24 A* Mo* 82 1 Q. You didn't tell Dr Roush that it was your final 2 report? 3 A No, not specifically, sir, no. 4 Q. Dr. Roush testified in this court on the 25th of 5 July, 1985 on Page 47, counsel, "Question: Dr. Roush -- 6 MR. HElNEMAN: Can you wait just a second until we 7 find it? 8 MR. CARR; Certainly. 9 MR. NASSIF: What page, Mr. Carr? 10 MR. CARR: 47, Line 10. n Q. "Dr. Roush, when you testified here before the 12 break and before your visit with Susieind, you called this 13 Krumrarich study the final report, did you not, sir?" And his 14 answer was, "I called it a final report after Dr. Suskind 15 said to call it the final report." And then on Page 48, 16 "Question: And at that time before you had those other 17 things take place, you considered it the final report, did 18 you not, sir? Answer: I called it the final report. 19 Question: Well, you called it what you considered it to be, 20 did you not, sir? Answer: At Dr. Suskind's request." 21 Now, Dr. Suskind, was Dr. Roush telling the truth when he 22 said that you told him to call it the final report? 23 A. No, I don't think he was completely accurate, sir. 24 ,Q. My question is was he telling the truth? 83 1 A. I say I don't think he's completely accurate* 2 Q. Doctor# there is no -- you can't misinterpret 3 this* He says# nI called it a final report after Dr, Suskind 4 said to call it the final report," Now# he testified under 5 oath in this case that you told him to call it the final 6 report* Was he telling the truth# sir? 7 A* Hot accurately# sir. . 8 Q. He wasn't telling the truth accurately? 9 A, Well# there is an explanation for -- * 10 Q. Was he telling the truth# Doctor? Did you tell him 11 to call it the final report? 12 A* Ho# X did not. 13 Q* All right. And Dr* Roush either misconceived what 14 you said# or he lied# one of the two? 15 A* No# there is a third explanation# sir* 16 Q. Doctor# is there something other than he 17 misconceived what you said or that t>e -- because he said that 18 you said to call it a final report* Now something you said 19 to him gave him the impression that he was to call it the 20 final report according to you# and that's what he said* Now# 21 either he made that up# or you told him something that he 22 interpreted to mean called this the final report# isn't that 23 correct, sir? Aren't those the only two alternatives we 24 have# sir? 84 X A* He and I discussed it and I told him something* 2 Q* My question is, sir, aren't those the only two 3 alternatives we have, either he misinterpreted what you said 4 to him, or he's not telling the truth? 5 A* Ho, that's not so, sir* 6 Q* What other alternative do we have, Doctor? 7 A. May I explain? 8 Q* I'm asking you what other alternative do we have? 9 A* The other alternative is the fact that there was an 10 $8500 debt for this study which the -- which the University 11 of Cincinnati carried, and that $8500 debt could not be paid 12 until a final report was submitted* So, since 1 was retiring 13 from my directorship, I felt that it would be inappropriate 14 for me to leave a debt, so I called Dr* Roush, and my 15 business office did as well, and we asked him that to have 16 the business office of the company submit the balance and he t 17 said, well, we -- since this was for a final report I have to 18 say something which will allow the company to pay the 19 balance, and I said you do whatever you want to do so we can 20 get paid. If you want to call it the final report, call it 21 the final report, but it really wasn't the final report, 22 because the final report or segments of the final report are 23 in your hands, sir. 24 Q* Doctor, then what you told him was that if you want' 1 85 1 to call it the final report, call it the final report? 2 A. That's what I said, sir. 3 Q. Then you in fact did tell him to call it the final 4 report, didn't you, sir? 5 A. Only for -- 6 Q. I don't care about only, you in fact did tell him 7 for the purpose of getting this money from Monsanto, which 8 you are not entitled to -- 9 A. Yes, we were. 10 Q. Until you get a final report, isn't that correct, 11 sir? Your group was hot entitled to payment until Monsanto 12 got the final report? 13 A. That was in the original agreement, however -- 14 Q* Isn't that correct? 15 A. Let me finish, Mr. Carr. 16 Q* No, 1 want you to answer the question. 17 A. I am answering your question, sir. 18 Q* Isn't that correct, sir? 19 A. I don't know what you mean by is that correct, sir. 20 G. That -- 21 A. And please don't interrupt my answers. 22 Q. That you are not entitled to be paid until you 23 submitted to Monsanto the final report? 24 A* Mo, that is not so. --------------------------------------------------------------------------------------------- --J . 86 1 Q. All right. Was that what the documents required of 2 you, Dr. Suskind? 3 A. That is what the original -- that is what the 4 original contract read, sir. 5 Q. Was there any other modified contract, sir? 6 A. We -- 7 Q. Was there a modified contract, sir? 8 A. There was a verbal agreement by Dr. Roush and 9 myself that we should get paid before I retire, sir. 10 Q. Did you have the authority of the University of 11 Cincinnati to modify this contract? 12 A. Sure, it was an agreement between the department. 13 Q. Then why did you have to call it a final report, 14 Doctor, if you had an agreement to modify it? Why didn't you 15 just say we are modifying the agreement and we are entitled 16 to be paid on this preliminary report? Why did you go 17 through the charade of calling something that's not a final 18 report a final report if you had the power to modify the 19 contract? 20 A. If you'll let me answer it, I will, sir, but don't 21 interrupt me, please. 22 Q. Dr. Suskind, do you really believe that you are 23 entitled to tell me that? 24 A. I do indeed. 87 1 Q. Do you really? 2 A. Because you've been interrupting me continuously* 3 Q. Doctor, do you understand what I've been 4 interrupting you the Court has allowed it and the Court has 5 said it's proper because you've been answering -- you have 6 not been obeying the orders of Court? Do you understand 7 that? Do you understand that, Doctor? 8 A, Would you allow me to answer the question? 9 Q* Do you understand what I just said? 10 A. I do understand* 11 G. Do you understand that I'm allowed to interrupt you 12 according to the orders of this Court and other Courts and 13 the rules of this trial, that I'm allowed to interrupt you 14 when you are not answering the questions that I posed? Do 15 you understand that? 16 MR * HEINEMAN: Obj ect ion. 17 A. Even if it's impolite? 18 Q. We have got nothing to do with being polite* 19 MR. HEINEMAN: Objection. 20 THE COURT: Mr* Carr, can you approach the bench, 21 please? 22 (The following Side Bar conversation was had outside the 23 hearing of the jury.) 24 MR. HEINEMAN: This is outrageous. You won't let v' 88 X me say anything in front of this jury and you let him carry 2 on in the most outrageous way* 3 THE COURT: There is nothing outrageous about it* 4 What he says is absolutely correct. 5 MR* HElNEMAN: I have -- 6 THE COURT: Just calm down, first of all, number 7 one. Number two, what he said was absolutely correct and 8 absolutely accurate. He has been allowed to interrupt this 9 witness when I've determined that it's been a non-responsive 10 answer* Those times when I have determined that it was part 11 of a responsive answer, I have allowed the witness to 12 continue his answer* I've done that with other witnesses as 13 well as with this one. I have explained it in front of the 14 jury to this witness before, and both the statement that Mr* 15 Carr made and the question that he asked of him were proper* 16 MR. HEINEMAN: Your Honor, it is not his province 17 to instruct this witness about the Court's rules, or the 18 Court's rulings* He is not permitted to do it, under 19 Illinois law he is not permitted to do that* 20 THE COURT: Now we are rehashing objections. I can 21 use the services of both of you gentlemen as Officers of the 22 Court to enforce this Court's rules. I have used yours in 23 explaining to witnesses the rules they are to adhere to in 24 their testimony. I have used Mr. Carr's, allowed him to make' 89 1 these statements In furtherance of enforcement o f t h e rules 2 of this Court as to how witnesses are to testify. And I will 3 continue to use the services of both of you Officers of the 4 Court as I see fit, and in the exercise of my discretion, and 5 to see that the rules that govern this trial are obeyed by 6 all witnesses and all parties involved in the trial. You can 7 object to it however much you want, that happens to be 8 something that I am allowed to do and is something that in 9 the fulfillment of the obligations of my office I should be 10 doing if it's needed to be done to make sure that the rules 11 that 1 was sworn to obey are in fact enforced. Your 12 objection is overruled. 13 MR. HEINEMAN: Your Honor, do you conceive it to 14 truly be fair to not permit me to say anything in front of 15 the jury, when I disagree with this outrageous behavior that 16 Mr. Carr -- 17 THE COURT: Since Mr. Carr has made objections up 18 here also it is evenhanded and fair treatment of both of 19 you. There were too many problems when both of you fought 20 out these motions in front of the jury -- objections rather, 21 in front of the jury. You are both restrained from doing 22 that and are forced to fight out the objections up here at 23 the bench. It applies to both of you. It is fair and 24 evenhanded treatment. The trial is run better as far as 90 1 those objections ace concerned since I have applied this 2 rulef I am therefore going to continue to apply itr and I 3 think that it's something that I .intend to use in some other 4 cases in the future* Since it's applied to all parties in 5 the caser there is no question that it's fair* Your 6 objection is overruled* 7 MR* CARR: I'd like to also point out for the 8 recordr Mr* Heinemanr if I may respond to one of his 9 commentsr when we are in front of the witness who consistent 10 -- had consistently deliberately flaunted the orders of this 11 Court and makes outrageous statements as he makes and has 12 just made, when he does not obey the orders of the Court, and 13 he makes no pretense to obey the order of the Court, 14 deliberately openly flaunting the orders of the Court, the 15 only possible way that I can control this witness, anybody 16 can control this witness is to not allow him to make these 17 long, rambling, non-responsive answers* Otherwise, if I were 18 not allowed to interrupt him, he would get before this jury 19 every conceivable improper response, every bit of improper 20 evidence that could possibly be* It would be different if 21 this witness were controlable, but this Court cannot control 22 the witness* The only way -- the only way that I can operate23 with this kind of witness is to in fact interrupt him when 24 he's making these non-responsive answers, because the only 91 1 alternative the court has is to put the witness in jail and 2 force him to answer in jail these questions in an appropriate 3 fashion, and the only possible way that I can protect the 4 record in this case and prevent this witness from going way 5 beyond the question and making these outrageous charges, 6 charges me with manipulating the evidence, charging, say 7 don't interrupt me, he is not in control -- * well, he is, 8 because the only way we can operate to finish this witness -- 9 the Court obviously is hot going to put him in jail, although 10 he should be The only way I can operate is that I do 11 interrupt this kind of barbaric behavior 12 MR HEINEMAN: Well, Mr Carr, what you confuse and 13 what I'm objecting to is the way you select to do it. First 14 of all, instead of following this Court's order and if you 15 have an objection to what this man is doing, then object and 16 come up to the bench and make your objection to this Judge 17 and let the Judge instruct him, but no, you stand out here 18 and you make a speech in front of the jury with respect to 1.9 what you think his behavior is, and the Court is permitting 20 that, and that's what I'm objecting to. If he wants to 21 interrupt this witness' testimony, then he can say objection 22 and come up to the bench That's what you make me do 23 MR. CARR: Counsel, that's impossible* The witness 24 gets it out even beyond me talking, he goes on and on. Once v 92 1 he makes the charge, it's too late, I can't object -- 2 THE COURT: I've allowed both of you to Interrupt 3 non-responsive answers I will continue to allow both of you 4 to Interrupt non-responsive answers And it does not require 5 the form of objection you are talking about from either of 6 you And if I disagree with your opinions as to whether it's 7 non-responsive, I will let the witness proceed Your 8 objection is overruled Let's proceed 9 (The following proceedings were had in open court.) 10 Q. Dr. Suskind -- 11 A* Yes, sir. 12 Q. It is a fact, is it not, sir, that if you had the 13 power to modify this agreement, you need not have gone 14 through the charade of calling it a final report, isn't that 15 correct, sir? 16 A No, sir 17 Q. Doctor, isn't it a fact that you called it a final 18 report because that's the only way Monsanto would pay you? 19 A I didn't call it a final report, sir. 20 Q. Doctor, isn't it a fact that it was called a final 21 report by agreement between you and Dr Roush because that 22 was the only way Monsanto would pay you? 23 A, No, sir No, sir 24 Q Doctor, then why did you call it a final report? 93 1 A* I said already just a minute ago that I did not 2 call it a final report* You did* 3 Q. No, Doctor* Dr* Roush -- 4 A* Dr. Roush* 5 Q. I did not* Roush did* 6 A* Dr* Roush interpreted it as a final report* 7 Q* Doctor, why was it called a final report except to 8 get payment from Monsanto? 9 A* Dr. Roush had to do what he felt was necessary in 10 order for the University to get paid, and we didn't -- we 11 were not concerned whether or hot whether he called it the 12 initial report or the post final report or the final report* 13 It wasn't of any concern* But we did have a report to submit 14 and the report you already have, that is 15 Q. Doctor* my question is -- 16 A* That's part of the final report* 17 Q* Why did you and Dr. Roush call it a final report 18 except to get paid? 19 A* Sir, I didn't call it a final report. It wasn't my 20 idea. 21 Q. Why was it called a final report except for the 22 purpose of getting paid, getting money out of Monsanto? 23 A. If that's what Dr. Roush wanted to do, that was his 24 business, sir, not mine. " 94 1 Q. Now you say it was Dr* Roush wanted to do it7 2 A. Well, Dr* Roush felt that that was the way he could 3 4 Q. Excuse me. You say Dr. Roush wanted to do it, is 5 that correct? 6 A. I said to Dr. Roush -- 7 Q. Excuse me. You say Dr. Roush wanted to do it, is 8 that correct, sir? 9 A. I don't know if he wanted to do it, sir. 10 Q. Excuse me, Doctor. Didn't you just say Dr. Roush 11 wanted to do it? 12 A. I don't know. I can't answer that question yes or 13 no. 14 Q. You don't know that you just said that a moment 15 ago? 16 A. I said -- 17 Q. Excuse me, Doctor. Do you not know that you just 18 said a moment ago that Dr. Roush wanted to call it a final 19 report? Didn't you say that? 20 A. Dr. Roush wanted to call it a final report to get 21 paid, 22 Q. Dr. Roush wasn't going to get paid, Dr. Suskind, 23 you were the one, University of Cincinnati? 24 A. Sorry, in order for us to get paid. I apologize 95 1 for that gross error. 2 Q. Now, Doctor, it was called a final report in order 3 for the University of Cincinnati to get paid, is that 4 correct? 5 A. Dr. Roush did that, sir, yes. 6 Q. Excuse me. It was called a final report for that? 7 A. I said Dr. Roush did that. 8 Q. Would you answer my question? 9 A. I have answered it. 10 THE COURT: Doctor, you have not. It was not 11 responsive. Listen to the question again and answer the 12 question that's asked of you, sir. 13 MR. HEINEMAN: Your Honor, may counsel approach the 14 bench? 15 THE COURT: Yes, you may. 16 (The following Side Bar conversation was had outside the 17 hearing of the jury.) 18 MR. HEINEMAN: Your Honor, I object to the Court 19 interjecting himself into that exchange when there has been 20 no objection or no request by counsel for the Court's 21 assistance. 22 MR. CARR: I welcome the Court's assistance. I beg* 23 the Court to enter in a similar way in the future. 24 MR. HEINEMAN: I want the record to show I object ' 96 1 to It 2 THE COURTS You may object all you want* If I feel 3 my order Is being evaded or the rules are not being followed, 4 I do not have to wait for either of you gentlemen to ask me 5 to intervene, in order to intervene on something like that 6 Your objection is noted for the record and is overruled 7 (The following proceedings were had in open court) 8 Q* (by Mr Carr) Doctor, would you answer the last 9 question? 10 A it was called a final report, sir, yes 11 Q In order that University of Cincinnati would get 12 paid, isn't that correct, sir? 13 A. I assume that was the purpose of it, yes. 14 Q* Yes, Doctor Because the University of Cincinnati 15 could not get paid and would not get paid by Monsanto unless 16 it was called a final report, isn't that correct? 17 A. I didn't know that, sir 18 Q Doctor, didn't you just get through explaining that 19 to us in your conversation with Dr. Roush -- 20 A That's what Dr. Roush said. 21 Q. Then you did know it? 22 A. Dr. Roush said that to me. 23 Q. Then you did know that, didn't you? 24 A Yes, sir. 97 1 Q, Yes* Doctor -- would you hand the witness Monsanto 2 Exhibit 917, 3 THE CLERKt I don't have it. It hasn't been 4 admitted so I don't have it, 5 Q* (by Mr, Carr) Doctor, I hand you what's been 6 marked Monsanto Exhibit 917/ which is a memo from a Robert J, 7 Murphy/ Superintendent of Health and Safety, Do you see 8 that/ sir. You see it/ sir? 9 A. Yesr I do/ sir, 10 Q, It contains a sentence/ does it notr sir, "Attached 11 is a preliminary draft report from Dr, Raymond R, Suskind," 12 Goes on/ gives the title/ report is dated November 29, 1980/ 13 then it goes on to say, "Dr. Suskind is now calling this 14 preliminary report his final report and it has been accepted 15 for payment as such by Monsanto's DMEH,n does it say that, 16 sir? 17 A, That's what this says, yes, 18 Q, And it says that you are calling this your final 19 report, aren't you, sir? Doesn't it, sir? 20 A, This is wrong, sir, 21 Q, My question is, it says that you are calling it the 22 final report, doesn't it? 23 A. I have no responsibility for this. 24 MR, HEINEMAN: Just a moment. Doctor. Please, may v 98 1 counsel approach the bench? 2 THE COURTS Yes, you may* 3 (The following Side Bar conversation was had outside the 4 hearing of the jury.) 5 MR. HEINEMANs Do I understand this is admitted or 6 it's not admitted? 7 THE COURTs I don't have the notebooks on that. 8 MR. CARR: I don't know whether it is or not. She 9 doesn't have it admitted but Dr. Roush identified it and 10 referred to it in his testimony. It was used by counsel at 11 that time* I'll certainly offer it at this time. 12 MR. HEINEMAN: But that isn't what I have as 917 13 917 is a lot more than just one page. 14 THE COURT: But what the witness has is the full 15 917. I'm just using this portion for my purposes, Counsel. 16 THE COURT: You are referring to the cover letter, 17 right? 18 MR. CARR: Uh-huh. 19 THE COURT: Are you offering it *now? 20 MR. HEINEMAN: It's a Defendant's exhibit, I'll 21 offer it. 22 THE COURT: Fine. You don't have any objection, I 23 take it? 24 MR. CARR: Your Honor, they haven't offered it and * 99 1 I will offer it. 2 MR. HEINEMAN: Well, I'm offering it now. 3 THE COURT: I don't care who offers it, it's 4 admitted. 5 (The following proceedings were had in open court.) 6 Q. (by Mr. Carr) Doctor, this memo by Mr. Murphy 7 states, does it not, that you are now calling it a final 8 report? 9 A. That's what this memo states. 10 Q. And Dr. Roush has also testified that it's called a 11 final report at Dr. Suskind's request, you know that as well, 12 don't you, sir? 13 A. If that's what he said, he's wrong, sir. 14 Q. Doctor, my question is you know that's what he 15 said, don't you, sir? 16 A. That's what you have already told me, sir. 17 Q. So this memo says that? 18 A. We are repeating ourselves. 19 Q. So this memo says to call it a final report? Dr. 20 Roush says you say to call it a final report, and the only 21 way you can get paid by Monsanto is to call it a final 22 report, and so it was called a final report, is that correct, 23 sir? 24 A. No, sir, that's not correct, sir. 100 1 Q. What's wrong with that, sir? V 2 A. If you*11 turn to the next page of this, you'll see 3 a letter from me to Dr Roush that, "Enclosed is a 4 preliminary report ** 5 Q, Dated when, Doctor? 6 A, It's dated September 30th, 1980 7 Q Yes When is the memo -- - what's the date of the 8 memo where it said -- 9 A June 14th, 1985, sir. 10 Q. I'd like to finish my question, sir 11 A. Sorry 12 Q. The memo in which it refers to the preliminary 13 report in the first sentence and where it says that you said 14 to call that preliminary report a final report, what is the 15 date of that memo, sir? 16 A* That is June 14, 1985 17 Q Some five years later? 18 A. Almost 19 Q Yes And, Doctor, you have then submitted a final 20 report instead of this one, is that correct, sir? 21 A. We have submitted sections of a final report, sir 22 Q I thought you said this morning it was your final 23 report? 24 A No, I said -- I did not, sir* I said it was 101 1 sections of the final report which still have to be 2 completely assembled* 3 Q* Doctorr didn't you describe in your testimony with 4 Mr* Heineman on direct testimony, sir, regarding this report, 5 sir, Monsanto 1711? Doctor -- could you give 1711 to the 6 witness? 7 A. Yes, sir, I have it, sir* 8 Q. And, Doctor, did you submit that, sir, as a report? 9 A* We submitted this as a summary statement. 10 Q. As a summary statement? 11 A. A summary statement of a final report which was 12 still to be assembled, but we submitted -- we submitted the 13 data which is summarized in this Exhibit 1711, sir. 14 Q. And, Doctor, this summary was actually not even 15 prepared by you, was it, sir? 16 A. Oh, yes, it was* 17 Q. Sir? 18 A. Yes, it was. Well, it was prepared by my staff* 19 Q. It was prepared by your biostatistician, wasn't it, 20 sir? 21 A, It was prepared by -- 22 Q. My question is, it was actually prepared by your 23 biostatistician, wasn't it, sir? 24 A. It was prepared by two people, sir. 102 1 Q, Doctor# do you recall testifying here when Mr* 2 Heineman was asking you questions referable to Exhibit 1711# 3 starts at Page 70 and goes through Page 72# he's asking you 4 when was this analysis# this 1711# prepared* You say# MI 5 can't really give you an exact date# but I think that an 6 approximation would be about one month ago# it could have 7 been before* It was actually prepared by our 8 biostatistician#" wasn't that your answer at that time# sir? 9 A. That's correct# sir* 10 Q* And that's the truth then# sir? 11 A* Absolutely* 12 Q* Then it was prepared by your biostatistician# 13 wasn't it# sir# and not by you? 14 A. Mr. Carr# I -- 15 Q. Isn't that correct? 16 A* I don't analyze the data# sir* 17 Q. Was it prepared by your biostatistician and not by 18 you? 19 A. Most of the report was prepared by -- 20 Q. Wasn't 1711 prepared by your biostatistician and 21 not by you? 22 A. With my help# but essentially her* 23 Q. Excuse me. Wasn't it prepared by the 24 biostatistician and not by you# Doctor? 103 1 A. No, sir* 2 Q. Didn't you tell us on direct examination that It 3 was prepared by your biostatlsticlan? 4 A. It was prepared by -- the analysis was done by the 5 biostatlsticlan. 6 Q. That's what we are asking about. Doctor. 7 A, These -- let me finish. 8 Q. That's what I'm asking about, 1711. 9 A. That's what I'm talking about and please let me 10 finish. When these things are submitted by a 11 biostatlsticlan, they are submitted to the principal 12 investigator, which happens to be me, and I reviewed her 13 findings, and we looked at it and then determined whether or 14 not this was a proper and adequate and complete summary, so 15 that if you say preparation, the initial analysis is done by 16 the biostatistician, absolutely, but the final summary is 17 done by the biostatistician and myself, and the other people 18 involved in the analysis of this study, and there were others 19 as well. 20 Q. Doctor, my question to you, though, is didn't you 21 tell us, sir, that it was actually prepared by your 22 biostatistician? 23 A. I did, sir. 24 Q. Doctor, a few moments ago you told us that it was v 104 1 prepared by you and another, didn't you, sir? 2 A* I said it was prepared initially-- 3 Q. You didn't say that. Doctor. 4 A. It was initially prepared by the biostatistician, 5 yes, sir, and then the final draft is a draft which is 6 reviewed and edited by myself and others involved in the 7 study. 8 Q. Doctor, you were referring to -- in your testimony 9 to Mr. Heineman, you were referring to this Monsanto Exhibit 10 1711. Would you pass those copies to the jury, please. Were 11 you not, Doctor? 12 A. I sure was. 13 Q. Referring to 1711 when you said, nIt was prepared 14 by our biostatistician?" 15 A. The basic material was prepared by her, sir. 16 Q. Mo, Doctor, that isn't what we were talking about. 17 A. Oh, come on, for crying out loud. 18 Q. Mr. Heineman asked you the question with regard to 19 1711, your response was, "It was prepared about a month ago. 20 It was actually prepared by our biostatistician." Wasn't 21 that what you said? 22 A. That's an accurate statement, sir, yes, 23 Q. Doctor, the record would show that we received a 24 copy of it at 4 p.m. on the 12th of February, 1986, and 105 1 Doctor* that was two days after you started testifying* 2 wasn't it* sir? You started on the 10th of February? 3 A. If that's accurate* it is two days after I started* 4 sir 5 Q And* Doctor* would you look -- would you mark 6 this? Doctor* Exhibit 1808 is the remainder of the material 7 that was given to us on the 12th of February* 1986* you 8 recognize that as the data that you say was being assembled? 9 A, Sir* this is not the remainder* This is the bulk 10 of the report* sir* not remainder. This is a summary. And 11 this is the bulk of the report* and you also have another 12 segment of this which you took off my desk here at the 13 beginning of this trial. 14 Q. What is that* sir? 15 A. Which describes what's in here. 16 Q. Your own notes* Doctor* that you submitted to no 17 one? 18 A. They are not my notes* they are a summary -- they 19 happen to be a description of what is;in those tables. 20 Q. Did you submit that to Monsanto? 21 A. X don't know. I believe I did. 22 Q. Doctor* what it was that you supplied to me under 23 the Court's rules was a copy of some of your notes analyzing 24 the data* and was in no way anything submitted to Monsanto orv 106 1 In no way submitted in the nature of a final report, isn't 2 that correct, sir? 3 A, No, I believe I'm talking about this, sir. Now is 4 this part -- is this what you have? That's what I'm 5 referring to, sir 6 Q. In addition to the other documentation, Doctor? 7 A. I don't know whether this is what you have there or 8 not. Ihave no idea But I didn't -- I haven't gone through 9 thatexhibit that you showed me, except cursory 10 Q Doctor -- 11 A. But you have this I'm sure you do. 12 Q Doctor, if you would look to your written reports 13 on your preliminary draft which has been called a final 14 report, is there any mention made in that report or in any of 15 the reports as to the health status of these workers 16 Q. Including this summary analysis, Doctor? 17 A I believe that the data itself -- 18 Q. Excuse me, Doctor, the data is there. Myquestion 19 is, sir, is there any reference in your preliminary draft, in 20 your final report, or any other document, as to the health of 21 these workers, sir? 22 A. Sure, there is. 23 Q. Would you direct me to it, please? In which 24 document is it? ' 107 1 A. Well/ I believe that -- If you are going 2 chronologically/ I believe that on Page 6* 3 Q. Which document? 4 A This is the initial onet September 9/ 1980, 5 Q. On Page 6? 6 A, Right/ starting with result, 7 Q. Yes, 8 A, The significant clinical observations, 9 Q, Excuse mer on Page 6/ sir? 10 A. And 7. 11 Q. Yes, Where does it say anything about the health 12 of these workers other than the fact they got chloracne? 13 A, Well/ I believe if you'll go further you'll see -- 14 Q, Doctor, I haven't found anything yet where it says 15 anything about their health other than the fact they got 16 chloracne/ some of them, 17 A. Well/ I believe that the clinical laboratory 18 findings are discussed and printed in Tables 15 through 22 19 and -- 20 Q, Doctor -- 21 A, Let me finish/ sir. There is a discussion of the 22 laboratory findings/ and there is a discussion of the -- 23 Q, Where is the discussion of the laboratory findings/ 24 Doctor? Let's do this one at a time if you would. 108 1 A. All right, on Page 8. 2 Q. Page 8 is laboratory findings? 3 A* 8 and 9 4 Q. Where does it discuss it. Doctor? 5 A In the analysis of laboratory data possible 6 correlations between history of chloracne and residual 7 chloracne and levels of test results were examined 8 Q. Yes, Doctor, what you are doing and what this 9 report does is compare people with chloracne lab results with 10 people who have not got chloracne. Doctor, my question to 11 you, sir, is to exclude reference to chloracne. There is no 12 question about it, the study talks about chloracne. Every 13 table in there discusses chloracne. 14 A. Sure. 15 Q. My question, sir, is where is there any mention of 16 the health status of these workers other than their 17 chloracne? 18 A. There is in this report, sir. 19 Q. That's what I'm asking you, sir, refer me to the 20 page, sir. 21 A Page 9. 22 Q. Page 9? Where does it talk about the health, other* 23 than comparing chloracne persons, HDL, with people who don't 24 have chloracne, VLDL, with people in the plant without 109 1 case is going on for a length of time, that it should be j II 2 mistrialed. I haven't heard counsel give any argument that 3 the case is in a posture that the jury can't understand the 4 issues. The jury understands the issues quite clearly, and 5 perhaps that's the reason counsel wants the mistrial. Thej I 6 jury does know what's at stake. It does know the issues 7 here, and counsel suggests that jurors might not be able to I 8 recall the name of the plaintiff. I don't remember whether 9 Jim recalls or not, but in law school I took two months after 10 one summer in order to work in order to make a few dollars to 11 continue on with law school. This is at the end of my fourth 12 semester in law school, came back to law school, and starteid 13 the semester the next -- the fall semester after the summer 14 of work and couldn't recall the name of friends that I had 15 sat down next to and for two years had been working with. 16 Couldn't recall the names I sat right next to them and drank I 17 beer with them and everything else. So simply because a |j 10 juror might not be able to call the name of a plaintiff, I I 19 isn't an excuse for mistrial, because I'll confess that I j 20 have a similar problem. But at the conclusion of this case, 21 the jury will have the charts that have gone into the I | j 22 evidence in this case, without objection by counsel. Each 1 r 23 chart has a picture of a plaintiff on it, it has their ; i 24 problems and counsel cross examined, or Judge Craven wasn't 32 1 here, he wouldn't be aware of that, has cross examined the 2 witnesses as to the symptoms and findings and laboratory 3 results on those charts, and the jury has taken notes with 4 reference to that cross examination, and they will be able to 5 call back the evidence. 6 Now, counsel says something or another about the 7 length of the case and titled in with some test case which 8 somenow or another escaped me. Your Honor, Monsanto said 9 when the case was complex and had third party complaints and 10 cross claims involved said it would take a year. I said that 11 it would take six months, and finally I compromised and said 12 it will probably take not more than nine months, so Monsanto 13 said it's going to take a year. I said it's going to take 14 nine months on a consolidated basis. We were both wrong and 15 enormously wrong. Neither of us, maybe perhaps Monsanto knew 16 more than I knew about the length of the case because they 17 now the tactic that they were going to use to defend this 18 case. And they knew the evidence that they had hidden and 19 had not produced until nearly, well, they hadn't produced the 20 significant evidence on punitive damages until after the case 21 had been going on for a year, and Monsanto knew that. They 22 knew more tnan I know. 23 Your Honor, we have analysed for the Court and I've 24 heard no quarrel from counsel with that analysis, that 33 1 fifteen months, 60 percent of the time that's transpired thus 2 far has been spent on issues on evidence that would be 3 introduced were there one plaintiff or a thousand 4 plaintiffs. That is the evidence dealing with the toxicity 5 of dioxin, its effect upon human beings. The actual 6 occurrence itself, and the punitive damage aspect of the 7 case, that would be -- Your Honor, can you fathom a case for 8 one plaintiff lasting fifteen months and knowing that you've 9 got 65 more or 22 other cases sitting? As I pointed out, it 10 would take 27 years for this Court to dispose of that case. 11 Nov;, all of the evidence that came in during those 12 fifteen months was proper, was important, and should be in 13 evidence in order to prove the case. It had to be in 14 evidence in order to prove the case. Very rarely did counsel 15 make objections that something was not relevant to the 16 issues. When they did make it, it was clearly demonstrated 17 how it was relevant to the issues. Their own defense, Your 18 Honor, has gone on now, what, ten months, or eight months, 19 whatever, since August or, yeah, seven months, since that 20 time, and I don't know how close we are to finishing their 21 case. So, length of case is not a reason not to consolidate, \ 22 because if other aspects of it, fifteen months and yet got 21 23 more cases to dispose of? Impossiole for this Court or 24 anybody else to handle it, and I don't know of a rule of lav; 34 1 that says a case, simply because it is long, cannot be 2 tried. Because actually that's what counsel is saying, a 3 case that's going to last fifteen months should not be A tried. That's v/hat they are saying. And they are saying 5 that a jury can't understand a case that's going to last 6 fifteen months, leading to the logical conclusion then no 1 case is going to last more than four weeks should be tried or 3 more than four months should be tried or be heard. Then we 9 have got no remedy for cases where people are injured as 10 massively as this group of people have been injured in this 11 case* or as an individual would be under the punitive damage 12 aspect. So that's saying, okay, we are not going to try 13 these cases. That's all the argument I've heard from 14 counsel, simply the length of the case, but this case, even 15 if we accepted a four-month rule to try the individual cases, 16 an unconsolidated case, they said, and we all said would last 17 four months, Your Honor, that's 88 months right there, if 18 this Court had not consolidated. If we dispose of these 19 cases in 36 months, if this case should last three years, 20 this Court has saved, by consolidation, has saved us 50 21 months of trial time by consolidating the case. 22 How, counsel alluded to the test case. How, Your 23 Honor, wnat we said in February vas that a test case, unless 24 it's going to be binding on somebody, is useless. It's 35 1 worthless. Would Monsanto pay us for the other 22 cases if 2 we won the first one? Wo. As they obviously haven1t offered 3 a dime to settle this case, do you think they would offer a 4 dime to settle the others? No. They would say we will fight 5 them all, and that's been their tactic. So this Court has 6 saved us, if we last three years, this Court has saved 50 7 months of time. Monsanto, as the Court asked Monsanto, will 8 you be bound by the results of this test case, and that 9 question was answered negatively by Monsanto as they had the 10 right to do it, but when they answered it that way, this 11 Court had no option. If it wanted this county to continue in 12 existence, no option but to consolidate the cases. Even if 13 they were to last four months rather than fifteen months for 14 common issues as the evidence has come out, we are confronted 15 with the trials that would last either six years on an 16 unconsolidated basis -- if it were four months in trial -- or 17 27 years if it's a fifteen month trial. I submit, Your IS Honor, this Court had no choice and an Appellate Court 19 reviewing this case will find there is no choice when 20 confronted with this. Or the only other thing the Court can 21 do is say no, these plaintiffs cannot band together. Not 22 even alludeci to that, because that's gone into in our brief, 23 is the cost. There is no conceivable way that one of this 24 group of 22 people, one could come into this courtroom and 35 1 fight this monster Monsanto the way it's been going here. No 2 conceivable way. So if you don't allow these people to band 3 together to pool their resources for this kind of battle, 4 then we have given up the day, the corporate giant, those 5 that have the resources and the will to fight this kind of 6 battle, would have prevailed. 1 Your Honor, it would have been easy for me -- I 8 don't need this case. I've done the things in my life that I 9 consider I'm proud of and successful. I don't need this case 10 to add to a stock of victories. But the fact that I-lonsanto 11 believes that they can run over this Court, the fact that 12 they apply to the Appellate Court or the Supreme Court when 13 they know it's improper so to do, in order to try to 14 intimidate this Court, in order to try to pervert the ends of 15 justice, and I say I'll go to the end of my life, if 15 necessary, in order to thwart Monsanto's obvious tactic of 17 victory, to achieve citory in this particular way, and I 18 think the Court should deny the Motion for Mistrial. 19 THE COURT: Do you have any short reply? 20 MR. MASSIF: Your Honor, I'm going to reply and I 21 can tell right now that it's not going to be short, and I 22 know Your Honor has to leave at sis o'clock. 23 THE COURT: I do. 24 MR. MASSIF: So might we carry this over until 37 1 tomorrow morning? 2 THE COURT: Why don't you start and I'll give you a 3 few minutes. I'll tell you when to stop. 4 MR. MASSIF: Your Honor, I would just like to ask a 5 question of the Court, because Mr. Carr has said something 6 that is very surprising to me, and I, quite frankly, don't 7 know how he knows this. I sat in with the Court in all the 8 conversations having to do with Mrs. Melton and I never 9 recall either Mrs. Helton or the Court telling us that Mrs. 10 Helton v/as informed that the trial might proceed without her, 11 and that she made it clear to the Court that she didn't want 12 that to happen, which is what Mr. Carr said that she said, I 13 don't recall that in any conversations. I would ask the 14 Court if to somehow let me know if I'm wrong in my 15 recollection, because I'd like to go back through the 16 transcripts of our discussions regarding Mrs. Melton and find 17 where the Court reported that to us, because I don't, quite 18 frankly, have any idea how Mr. Carr knew about that, because 19 I don't recall, in any of the conversations that I 20 participated in -- 21 MR. CARR: Ret me interrupt on that point. Might 22 have been Marlene told r.ie that or might have been the Judge 23 in the hallway said tnat Marlene said that. I'm not 24 confident that it was the Court that told me that. 38 1 MR. NASSIF: If that1s the way Mr. Carr found out 2 about that information. Your Honor, X think we have some 3 serious -- we have some serious business to take care of 4 outside of these two motions about whether or not Mr. Carr is 5 finding out what in fact the jury's feeling are either 6 regarding their participation in this case from people 7 outside of Your Honor, which I don't think is proper, Your 8 Honor, at all. 9 MR. CARR: May have been from the Court, I'm not 10 saying it was Marlene. I'm telling you that -- 11 MR. MASSIF: I'm saying if it came from the Court, 12 I never heard it from the Court. I sat in on all the 13 conversations relating to it. It would have certainly been 14 something that I would have recalled, and I don't recall it 15 right now. But we would like -- my client would like an 16 explanation of that situation, Your Honor, if we could, if it 17 would please the Court. 18 Secondly, the jury may indeed recognize that this 19 is a monumental case, as Mr. Carr suggested, because h e 1s 20 been telling them in everything he said to the newspaper that 21 this is his dying swan case, that he wants to make history. 22 If he can leave something behind in his -- in his poor little * 23 old way, quoting the times magazine article that Mr. Carr 24 quoted, that this is his goal in life, his last gasp, so to ' 39 1 speak. 2 MR. CARR: I hope not. 3 MR. NASSIF: I think the very fact that he suggests 4 this jury knows this is a monumental case is an issue that 5 has to be considered when the Court is considering whether or 6 not we are going to voir dire these individuals or not, 7 because X think Mr. Carr has done everything he could to make 3 them think this is monumental and if they let the chemical 9 company off the hook that indeed the world will end, if 10 nothing even more dramatic than that. Mr. Carr has made an 11 affidavit to the effect, and h e 1s reiterated those comments, 12 Your Honor, about the fact that this is an extraordinarily 13 attentive jury, and that they take notes continuously, and 14 he's raised this issue again. I would just remind the Court 15 tnat the jury was admonished last summer about sleeping, and 15 in fact the jury responded as pointed out in a letter that 17 they posted on the bulletin board in the jury room which was 13 reported by the Chicago Law Bulletin where the question was 19 raised by the jurors, to sleep or not to sleep that is the 20 question. I would like to read this into the record so that 21 22 THE COURT: It's part of the record as part of the 23 motions, you don't have to read it. 24 MR. NASSIF: I did not see this article was part of,- 40 1 the notions It was not in the group we submitted 2 THE COURT: Rather than taking the time to read it 3 in, I'll allow you to file it. 4 MR. NASSIF: I would just for the record in 5 response, since Mr. Carr has filed an affidavit, I will also 6 like to note for the record I have been here since March 5th 7 1985, in this courtroom. We will be filing an affidavit 3 contrary to the one that Mr. Carr filed about whether or not 9 the jury has been extraordinarily attentive and takes notes 10 continuously. 11 On that point, Your Honor, I would like to note 12 that as of Wednesday at 4:27, I noted that nine of the jurors 13 had their eyes closed and their heads in a position that was 14 not upright, and I would only like to suggest, Your Honor, 15 that I don't know if they were sleeping, but I can assure 15 you, Your Honor, they were not taking notes. 17 In addition, it is difficult -- it is difficult for 18 me to believe when I'm staring at a parka that has covered 19 somebody for practically the entire day, whose arras have not 20 come out of that parka, to have to sit here and say that 21 individual took any notes today, and I would say there are 22 more than one juror who has covered themselves for quite 23 sometimes, because the courtroom is cold, and I ara not saying 24 these people are in any way unreasonable by sleeping through . 41 1 this trial-, quite frankly, I have seen Mr. Carr lay his head 2 down on the table on several occasions. And I'd have to say 3 that anybody that hasn't slept during this trial is probably 4 superhuman. Suffice it to say that a lot of sleeping goes 5 on, and we are going to respond to that affidavit, to Mr. 6 Carr's affidavit by our own affidavit. 7 On more of these issues, Your Honor, about our # 8 defenses lasted seven months, I would just comment on that. 9 Your Honor, Mr. Carr says that we have taken seven months to 10 try this case. I would comment that Mr. Carr has taken two 11 months to cross examine Dr. Suskind of our seven months, so 12 quite frankly, we only tried our case for five months. 13 In addition, on his calculation as to how much time 14 would have been saved, just for the record, Your Honor, we do 15 not agree. We do not agree with Mr. Carr's calculations as 16 to how much of the trial was related to individual issues and 17 how much of the trial was related to group issues. We don't 13 agree with that calculation at all. As a matter of fact, we 19 disagree with it quite strongly. 20 And the charts that Dr. Carnow has used we objected 21 to the use of those charts when they were first introduced 22 into evidence, Your Honor, we objected to them. We felt at 23 that time they were misleading. How is a juror supposed to 24 know when they see a red dot next to calcium whether that 42 1 means it's* an abnormality, whether that means the -calcium is 2 high, calcium is low, triglyceride is high, whether it is 3 low, whether or not low triglyceride is an unhealthy person, 4 whether high triglyceride is a healthy person from a dot 5 staring them on the chart. 6 THE COURT: How much more do you have? 7 MR. NASSIF: Not very much more. 8 THE COURT: Can you do it in a few minutes? 9 MR. NASSIF: Yes, I can. The question of the 10 significance of those dots is what those twelve people are 11 supposed to decide. That's what those twelve people are 12 supposed to decide. Not whether or not how many dots are on 13 the chart. What is the significance of a dot in a particular 14 box. That is what these people are being asked to do in 65 15 individual cases. 16 On this issue of whether Mr. Carr wanted 17 consolidation or not, I've read this transcript from February 18 10th where this discussion came up. I don't see anything in 19 this transcript where Mr. Carr said if I could try a case 20 involving one plaintiff and it would be binding and the 21 Defendants would agree it would be binding, I would agree to 22 consolidation. I don't find that in this February 10th, 23 1983, transcript where the issue of consolidation is 24 discussed, Your Honor, so I don't know whether Mr. Carr said 43 1 it at some- other time. He may very well have said it. Let 2 me tell you this, there is no way Mr. Carr would have agreed 3 to going forward with one family or one individual in this 4 case, because his whole case is based upon the effects on 65 5 people. He has put in his evidence on that fact alone, that 6 if you got 65 sick people then something must have caused 7 it. He would never have considered going forward without 8 those 65 people's health effects being in front of this 9 jury. So in that sense he's right. No matter how you would 10 have set this case up, it still would have taken three years, 11 because that's the way he would have tried to put his 12 evidence on in this case, to prove that in fact something was 13 wrong with these people. So I don't believe that Mr. Carr 14 ever would have agreed to a trial of one individual in this 15 case, and I don't think he ever did agree to that. 16 And Mr. Craven has one remark. 17 MR. CARR:* Let me respond to that, please, Your 18 Honor. It wasn't me. It was the Court in November of 1983 19 that asked the question of Monsanto. .I'm not saying that I 20 would have ever agreed to a test case. I wasn't asked. The 21 Court asked Monsanto in November of '83 and Monsanto said, 22 no, they would not be bound by a test case. 23 MR. CRAVEN: Well, Mr. Carr in his objections said 24 Monsanto wouldn't take the test case and thereby avoid 44 1 multiplicity of trials on the issue of liability. . 2 THE COURT: I read that. 3 MR. CRAVEN: Well, he was saying that if we'd agree 4 then we would avoid the multiplicity of trial and implicit in 5 that is a representation that he v/ould have agreed. Now, at 6 some point, there has to be a litmus test of who's saying 7 what and when and who's asserting what. 8 It's true, I've not been here all the time during 9 this trial. And, I have to say that on those occasions that 10 I have been here, I was herelast week and there was a 11 reporter from the Sun Times, and he was listening to this 12 trial and he didn't understand that it wasn't a trial 13 involving some workers atNitro, and I've been here at times 14 when I thought we were tryingAgent Orange or Times Beach or 15 Nitro or Lysol or whatever. And I suggest that even under an 16 order of consolidation this case wouldn't have taken more 17 than a few months if it had been this case that was being 18 tried and not all of the other ancillary stuff that Mr. Carr 19 is intentionally dragging in for the jury. 20 But the fact ofthe matter is, Judge, by way of 21 summarizing, this case is out of hand, out of control, 22 undecidable in an intelligent way by a jury, and it's an 23 insult to the process to ask a jury to sort out the claims of 24 65 people under those circumstances, and the Motion for 45 1 Mistrial, because of the erroneous consolidation/.should be 2 granted. 3 THE COURT: Okay. Gentlemen, I'll send you the 4 orders, Thank you. Courts adjourned. 5 COURT ADJOURNED: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 46 1 STATE OF ILLINOIS 2 TWENTIETH JUDICIAL CIRCUIT ) SS ) 3 COUNTY OF ST. CLAIR ) 4 5 I, DEBRA M. MUSIELAK, certify the foregoing to be a 6 true and accurate transcript of the testimony and proceedings 7 in the above-entitled cause. 18 Dated this _day of April, 1986. 9 10 U 12 13 14 15 16 17 18 19 20 21 22 23 24 47 1 STATE OF ILLINOIS ) ) 2 TWENTIETH JUDICIAL CIRCUIT ) SS ) 3 COUNTY OF ST. CLAIR ) 4 5 I, RICHARD P. GOLDENHERSH, one of the Judges in and 6 for the Twentieth Judicial Circuit, do hereby certify that I 7 have examined the aforesaidtranscript of proceedings, and 8 certify the foregoing to be a true and accurate transcript of 9 the testimony and proceedings in the above-styled cause. 10 Dated this _____ day of April, 1986. 11 12 13 14 15 16 HON. RICHARD P. GOLDENHERSH 17 18 19 20 21 22 23 24 48 IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT ST. CLAIR COUNTY, ILLINOIS FRANCES E. KENNER, ET AL, Plaintiffs, vs. NONSANTO CONPANY Defendant. ? 5\ D 3 CAUSE NO. B0-L-970 D D IN-CHANBERS CONFERENCES HELD AT S:30 A.N.; 1:30 P.N.j AND 5 P.N. Before the HONORABLE RICHARD P. BOLDENHERSH APRIL *i, 1986 APPEARANCES: NR. REX CARR, Attorney at Law, and NR. JERONE SEISFREID, Attorney at Law, On Behalf of the Plaintiffa. NR. JANES CRAUEN, Attorney at Laui, and NR. KENNETH HEINENAN, Attornsy at Law, and NR. JOSEPH NASSIF, Attorney at Law, On Behalf of the Defendant. TRACY LYBARSER, C.S.R., R.P.R. Official Court Reporter INDEX Paga No. IN-CHANBERS CONFERENCE IN-CHAMBERS CONFERENCE IN-CHAMBERS CONFERENCE AT 9:30 A.ti........ AT 1:30 P.M ......... AT 5 P.M........... 2 23 20 5 1 BE IT REMEMBERED AND CERTIFIED, that heretofore, s on ta-uiit: April 4, 1386, the matter as hereinbefore set 3 Forth cams on for hearing before the Honorable Richard P. 4 Boldenhersh, Circuit Judge in and for the Twentieth Judicial 5 Circuit, State of Illinois, and ths following was had of 8 record, to wit: 7 April 4, 1986 B CThe following proceedings ware had in chambers 9 out of the hearing and presence of the Jury at 9:30 a,m.) 10 THE COURT: It is Just before trial, First of 11 all, what do each of you have that you want to bring up? IS MR. CARR: Your Honor, I would like to-- there were 13 certain implied charges made by Mr. Nassif last night which i 14 I would like to get on the record as soon as possible the 15 circumstances surrounding the matter that ha has alleged to 16 have occurred or implied occurred so there would be no 17 problems in the record at any time as to what actually 18 transpired. 19 THE COURT: That was about' the Juror? 20 MR. CARR: That's correct. SI THE COURT: And what do you havs? 25 MR. CRAUENt Same subject matter. Ue want tc get' S3 it clarified now, and we have several Motions that we want 24 to maks and-- 3 1 THE COURTi On that matter? s MR. CRAUEN: On that matter, And Judge, us would 3 like to do It before ws resume anything, 4 THE COURT: Well, us ara going to have all the 5 jurors here in just a short time. I 'll start this for a 6 while, but we mag finish it up later. Bo ahead. . 7 MR. CARR: All right. If the Court will recall, B on September 27th or thereabouts a juror got sick, a Mrs. 3 Maltn, and was taken to the hospital and had an appendec 10 tomy and a hysterectomy at that time. From that time until 11 about October 11th I believe we had no regular court ses 1H sions, but the Court was in communication with each side, 13 at least the Court advised us that hs was in communication 14 with each side, as to the circumstances of this Juror's 15 illness, and as a mattsr of fact, called-- the Court advised 16 us that hs would call ths surgeons and the family physicians 17 involved and find out when this lady could come back to 18 court. And I assume when the Court called me, I'm confi 19 dant, and advised me, that I'm sure.thB Court called one or SO more of the opposite Counsel and advised them of that cir 21 cumstance as well. There was never to my knowledge any con SS ferences other than by telephone with either the plaintiff's S3 Counsel or the defense Counsel. IF there were conferences 24 with ths defense Counsel face to Face, I'm not aware of thein 4 1 and I was not privied to them. The tlphona conversations a of which 1 am aware and which did take place, the Court 3 initially advised us by telephone that we were going to 4 resume trial the Following day or following Monday, 1 forget 5 which it was right now because 1 did not take notes on the 6 circumstances, because tha Court had bean advised by the 7 family physician that this juror would be out of action for 0 eight weeks or something of that sort, if my memory serves 5 me right, approximately eight weeks. The Court advised ua 10 that it was going to notify tha jurors-- the bailiff to get 11 ahold of the jurors and to have them return to Court tha IB following day for the resumption of the trial. And I assume 13 that started taking place. Later on that, I believe that 14 very same day, the Court called again and advised us that he 15 had talked to the operating surgeon and had been informed 16 that this lady could return to trial within a short period 17 of time, three to four weeks rather than six to eight weeks, 16 and that she wanted to return to the trial having expended 19 that period of time and that the Court was going to wait in BO view of tha new information received from the operating SI surgeon that she could return tD the trial. Now, all of SB that I believe took place by telephone-- well, I do know none 53 of it took place PacB to face. It is possible or conceiv 24 able that there may have been a conference among all of us 5 1 in the chambers.' l know there was no in chambers conference 8 in this matter of any sort without all Counsel being 3 present. My memory i9 is that all of this conversation took 4 place by telephonet that the Court communicated and at least 5 I was advised at the time that the Court was going to com 8 municate this information to the opposite Counsel* Now, I 7 do not know whether or not the Court advised opposite B Counsel that this Juror wanted to return. But,1 am S3 S percent sure that it wae the Court that advised me thathe 10 had been advised by the bailiff that when she was going out 11 to notify the jurors-- or notifying them by telephone, I 18 aesumaj I don't know whether it was in person or not-- but 13 whsn she was notifying them that we were going to return to 14 trial without Mrs. Melton, Mrs. Melton informed her or IS fellow jurors-- I don't know whom it was, and I don't have IB that accurate of a memory of it-- or Fellow jurors that she 17 did not want this casa to proceed without her, that shewas 18 more than willing to come back, and the Court, find this is IS the information that I have. Mow, whether or not the Court 80 communicated to opposite Counsel the exact same information 21 that was. communicated to me or whether the Court communi 88 cated an anecdotal matter to the apposite Counsel that the 83 Court did not give tD me, I don't know; but, this is what I 84 am aware of and know of the circumstances in question. And 6 1 that's all I know about it, your Honor. a THE COURT; What do you have to say? 3 HR. CRAUENi Judge, last night Mr. Carr said that 4 either the Court or the bailiff-- 5 THE COURT: Yea. 6 MR. CRAUEN: Related to him the content of conver 7 sation with Mrs. Melton. That utas the first time ujs had any B knowledge that there was a conversation with Mrs. Melton or 9 ths content of it. So that one of two things is true. 10 Either ths Court has communicated with Mr. Carr ex parte, 11 or the bailiff has bean telling Mr. Carr what ths jurors ia ara saying, or someone has had a conversation with the 13 juror of which ws hava no knowledge. Now, whan this first 14 aross-- wa have checked all the transcripts-- when this First IS arose Mr. Carr indicated that he had no objection; he IS wanted to go ahead with the trial; he didn't want to wait 17 for this juror. And he said specifically, "We agree with 18 the Motion then, Judge, because I don't see any prospect 19 that ths lady is going to be back inside of three weeks to SO a month." And that was September 27th. ei THE COURT: Right. 22 MR. CRAUEN: He wasn't present on the October 11th S3 proceeding. But, wa were. E4 THE COURT: What was the October 11th? 7 v 1 MR. CRAUEN: This was a subaaquant in chambers a conversation. 3 MR. CARR; That's whan Monsanto Filed a Motion-- 1 4 wasn't hers at that time-- but Monsanto Filed a Motion to 5 resuma trial on the next day rather than wait For the juror G to come back. I wasn11 here 7 THE COURT: This utas a hearing on that? 0 MR, CARR: Yea, there was a Motion there, and Mr. 9 SaigFraid represented the plaintiffs at that time, and so 10 Far as I know, that's the only-- there's only two sessions 11 relating to this matter; that's bn September 27th and 15 October 11th. I don't know of any others. 13 MR. CRAUEN: Now, it's clear as the record exists 14 now that what has happened is that some decisions have been 15 made,by Counsel and the Court with reference to Mrs. Melton IS bassjdf, upon information that wa didn't, have, and taking Mr. 17 Carr's statement last night as tha truth, we are entitled 18 before we go forward and we do mova to strike Mrs. Melton. 15 Us want an evidentiary hearing to determine the basis of SO what Mr. Carr said; where ha got the information; and since 81 Mr. Carr has implicated the Court-- and this morning proved B2 even Further-- then, Judge, we are respectfully requesting 83 that we have an evidentiary hearing on this question with a 24 diFFarent Judge. Bacause.Mr, Carr is indicating that he B i \ 1 sags that this was hot a matter of substance, tile think it a mas a matter of substantial substance.. And he is now a saging that ha got this information from tha Court. Wo 4 didn't have that information. We mag wall have mads vary 5 diffrant judgments with reference to this juror had uia had 6 that information. So, until uia know what happened, what 7 transpired, and how it transpired, wa don't want to go 8 forward with this juror in the box. Mr. Carr said he 9 didn't either, and ha was willing to stop. And than all of 10 the sudden ha changed his mind. And cur experience is that 11 hs doesn't do that willy-nilly. And he knew things that we ia didn't know. And we have been prejudiced by tha fact that 13 this juror ia sitting in that box. And wa want to find out 14 what happened; why it happened; who knew what; when; why 15 didn't svargbodg know it; and since Mr. Carr has implicated / 16 your Honor, wS ask that this be done by-- under tha super* 17 vision of a Judge other than your Honor. Wa need to have IB the bailiff interrogated as to conversations with jurors. 19 We, I think, clearly are-- if tha bailiff is involved-- are eo entitled to have a different bailiff. UJe are entitled to ai have the juror removed, and we have to find out what kind 22 of taint if any is applicable to the other jurors. And in S3 view of the-- we recognize the serious nature of this; wa 24 recognized the serious nature of it last night when Mr. 9 1 Carr stood up and mads these observations to tbs Court and a indicated to the Court last night that we would be prepared 3 this morning after us checked the transcripts to see what 4 course of action uts should take. And, Judge, to sag we are 5 in a hurry and ua want to go out thare and start this trial B with that Juror in ths box and with these decisions that 7 have bean made, it is just manifestly unfair, and ue don't B want to do that. And ua want to move expeditiously and are 9 prepared to move expeditiously upon any kind of reasonable 10 investigation with reference to this matter, 11 THE COURTj Any response? IS MR. CARR: Your Honor, Counsel hasn't been here 13 and wasn't here whan this matter transpired. Obviously 14 Counsel is not aware of ths fact that the Court did initi IS ally decide- to proceed, and there is no question in my mind 16 but what the Court advised not this particular Counsel, but 17 by telephone some other Counsel of the Court's decision so IB to do, because we were gearing up to come back the next 19 day. The Court was ordering us to pome back on the very eo next Monday. There's no question in my mind but what the ei Court advised one-- whatever Counsel may hava bean in Court 22 that particular week, one of half a dozen-- of that fact. 23 Mow, it is absolutely correct that when we were initially 24 advised that there was an indefinite period of time when 10 1 this juror was going to be out, there's no question but 8 what us did not uant to wait an indefinite time. And I 3 think even at that time, at three to four weeks, we did not * 4 uant to wait that period of time. The Court, however, in 5 it's discretion ruled that ue weren't going to wait the B eight ueeks required that the Family physician said.. And 7 the only possible way this Court could communicate in that B situation ie by telephone, and 1-- by telephone communica 9 tion to the operating doctor and by telephone communica 10 tion to the family physician. And to suggest-- for former 11 Judge Craven to suggest that there uas any uay of any 18 wrongdoing on the part of the Court in communicating that 13 by telephone to us on an administrative matter has nothing 14 to do uith a juror being tainted. This Court uiae making up 15 it's mind as events developed uhethar or not it uas 16 worthwhile to uait for the juror or not to uait for the 17 juror. The Court did not communicate to me that the reason 16 it uas going to uait the three or four ueeks that the 19 operating surgeon said it would taka' uas the fact that the SO Juror uantad to return. The Court communicated to me-- and I SI don't know uhat the Court told apposition Counsel by as telephone-- the Court communicated to me that the reason S3 that the Court had changed it's mind uae because the 24 operating physician said that this juror could return 11 1 within a relatively short period of time. And the 2 implication-- the suggestion by nr. Nassif laat night and 3 now this morning suggested by Mr. Craven that this Court 4 has dona something or that this juror is somehow tainted 5 because she expressed to a bailiff and-- I assume it was to B the bailiff-- and the bailiff expressed to the Court that 7 she wanted to continue with the case, that's a hallmark of 8 a good juror that Monsanto should be pleased and happy 9 with. It mould be a bad situation if a juror did not want 10 to serve. This lady expressed desira to serve, and 11 certainly at least to me the Court did not communicate how is she fait about tha merits of the case nor that she had made 13 any decisions about tha merits pro Monsanto or anti Monsan 14 to. It simply was-- it got to ma at least the expression of 15 a good citizen who wanted to continue her duty and the 16 Court had found that facts had developed in. a manner that 17 would allow her to continue her duty. And to question that IB juror or to question the bailiff about.this episode is IS absurd and for the charge to be made that the Court cannot SO communicate to Counsel by telephone in this situation. 21 Now, If tha Court did indeed advise just plaintiff that w b ss were not going to proceed with this case in view of what f S3 the surgeon said, then I would suggest tha Court is in 24 error and the Court should have communicated bath sides of 15 1 hla decision. But, there la no doubt in mu mind ths facts e show that us did procaed upon ths advice of the surgeon 3 that it wee not eight weeks; and there's no question in mu 4 mind but what tha Court communicated to the lawyers for ths S other side the vary same facta that it communicated to ms 6 about tha availability of that juror. And ws strongly 7 oppose-- well, and even the implication that this Court must 0 ba itself ths aubjact of an investigation over a decision 9 made to wait for a Juror's recoupsratlon is absolutely 10 absurd, and it's another-- their wanting to excusa this 11 juror is another attempt of Monsanto to q q the mistrial IS that it's been looking for for many many months. And we 13 CBrtainly opposB everything that.Counsel has-- for Monsan 14 to-- has suggested. 15 MR. CRAUEN:: Judge, this record now clearly 15 indicates that back on September 57th.Mr, Carr didn't want 17 to go forward with the case, and he then talked in terms-- IB not in terms of eight weeks, in terms of three to four IS weeks. 50 MR. CARR: I thought 1 did want.to go forward 51 with ths case in September. 55 MR. CRAUEN: You said you wanted her excused. 23 MR. CARR: Yes, that's what I said; I did want to 54 go forward. You said I didn't. 13 1 THE COURTt Let ms interject something. My 2 memory of It-- and I haven't checked anything on it-- is that 3 both aides wanted to go forward quickly with her or without 4 her. And it was my decision, disagreeing with both of you, 5 after talking to both of the surgeons, both of the doctors, 6 the surgeon and the treating doctor, or supervising doctor, 7 or whatever, that wa were going to wait, despite both of B you wanting to go forward. Ny-- 9 M R CRAUENi But, Judge-10 THE COURT: Now, wait a second. Wait a second. u So, let me correct that. I don't think-- my memory of it is IS that no-one changed their position as far as waiting for 13 her full time. That was my decision basically in defiance 14 of everybody as far as whether we would wait or not. And 15 so, 1st me correct that as far as anyone's position. Do 16 you havs anything further? You did make Notions, and I 17 think you should have the last word on your own Notions. 18 NR. CRAUEN: Well, it'e clear.that Nr. Carr 19 wanted to go forward and than decided to wait. SO NR. CARR: Ulhere'e that clear? SI THE COURT: That's what I was trying to say, I 22 decided that everybody would wait. 23 NR. CRAUEN: Let me Just make-- 1*11 check the 84 October 10th transcript-- but the fact of the matter is 14 1 according to Mr. Carr now-- H THE COURT: Yea. 3 MR. CRAUEN: Ha knew something that we didn't, 4 know about this juror when he was making a decision back in 5 September or October. And us don't know how he knew it. 6 We know we didn't know it. And we think it was relevant to 7 our decisions then as to what to do about this juror. Now, a it's not right for Mr* Carr to know something and us not to 9 know something. It'S simply not right. Now, someone has 10 talkad with this juror, and we don't know who. What did 11 the Juror say? What ware the questions? What was the IS basis far tha questions? Uhat was communicated to the 13 other jurors? Who did it? Last night Mr. Carr said it 14 was-- he thinks maybe it was a conversation of tha Court 15 with tha juror. 16 MR. CARR: No. 17 MR. CRAUEN: That's my understanding, 18 MR. CARRi That's not what 1. said last night. 19 MR. CRAUEN: And he said that either the Court or SO the bailiff told him this. If the bailiff has told him SI what jurors are saying, what else has the bailiff told him 52 the jurors are saying? If the bailiff-- 23 MR. CARR: Let me make it clear. My beet recol 24 lection today, it was tha Court and not the bailiff. 15 'L/"", 1 MR. CRAUENi All right. That's even more a serious. 3 MR. CARR: Well, 1 don't care whether it's more 4 serious or not, but that Is the facts as I remember It. 5 MR, CRAUEN: But, that le even more serious. 6 And, Judge; it ie simply wrong: to resume this trial with 7 that Juror in the box until we know what happened: when it 0 happened: with whom It happened; why it happened; and why 9 we didn't know it and have the same footing as Mr. Carr. 10 Now, that's essential to any notion of fairness and due 11 process. Now, how do ws make an intelligent decision as to, la what to do back in October when this juror was going to 13 have surgery when we didn't know what she said to various 14 people. If there was a conversation with the juror by the 15 Court, we are unaware of it. Thera's no transcript of a 16 conversation. I don't know whether there was one or not, 17 I don't know what the Court told Mr. Carr in telephone IB conversations. Quite obviously there's no way for us to IS know that. And ha doesn't know what the Court told us in 20 telephone coversationa. But, we are telling this Court ai that this business of this juror's observations with refer 22 ence to her burning desire to continue hBr service-- why? S3 Why? Good citizenship? Well, there aught to be-- I Just 24 don't-- I 'm not persuaded that that's necessarily so. But, 16 1 why? Why would she make those observations? And to whom? s It's not right. This juror is tainted. But, before you 3 make a judgment on that, let's find out uihat is happening, 4 who'a talking to wham, why is there conversation, uhy does 5 one side know something and tha other side doesn't, and B let's get at tha root bottom of that first. 7 MR. CARR: Your Honor, 1 suggeat Counsel doesn't 8 know what his side knows. Ware any of the-- there's no 9 doubt in my mind that the Court contacted a lawyer from 10 Monsanto. Who was that, Mr. Craven? 11 MR. CRAUEN; It was not me. 18 MR. CARR: Well, you don't know then what was 13 said to the lawyer from Monsantoj do you, sir? 14 MR. CRAUEN: No, I don't. 15 MR. CARR: What lawyer was it that was contacted 16 on more than one occasion, not just once, about this 17 matter? 18 MR. CRAUEN: I'm telling the Court that wa heard 19 last night for the first time what that Juror said. 80 MR. CARR: Well, but what lawyer was it that has 81 knowledge? 88 MR. CRAUEN: I don't know. 83 MR. CARR: Wall, how can you sit there and make 84 some charges if you don't know what the Court told other 17 1 Counsel? a MR. CRAUEN: Now, I 'm not Or. Suskind; you don't 3 got to use those tactics on me. 4 MR. CARR; Counselor, I suggest you are talking 5 from ignorance. If you don't know what the Court advised B Monsanto attorneya in this entire matter, how can you pos 7 sibly say that some information uias communicated about the 8 surgeon, about the time it was going to take, if you have 9 no knowledge of it? 10 MR. CRAUEN; Why don't we let you talk to Mr. 11 Haineman. I believe you were the one called. IS MR. HEINEMANi I'm the one that the Judge called. 13 And tha Judge told ma about that it would just be a time. 14 The Judge told me that ha had talked to the doctors-- 15 MR. CARR: Yee. 16 MR. HEINEMAN; And that there would be a parti 17 cular time when she would return, period, 18 MR. CARR; Didn't the Judge tall you on two 19 occasions-- first hs told you we were going to go ahead with eo this trial and was notifying the jurors? si MR. HEINEMAN: No, I don't recall any suoh 22 conversation. S3 MR. NASSIF: We got the transcript that says h e 's 4 going to talk to the doctors and then consider going For 10 1 ward. That's what the transcript sags. B MR. HEINEMAN; The Information 1 got was that we 3 mars not going forward, that's what I was told, that us 4 ware not going forward. 5 MR. NASSIF; Until ha talked to the doctor. 6 MR. CARRi Wall, until ha talked to the, doctor. 7 NR. HEINEMAN; Right. And than I was told whan 8 tue ware going back. That I was told. Those are the two S things I uas told. 2 wasn't told about any conversation 10 with a juror. I can't imagine whg the bailiff was talking 11 to the juror about the possibility, as you suggested, that 18 we would return to trial without her. 13 MR. CARR; Ulall, because that's what thB Court 14 advised the bailiff to tell ths Jurors, that we were going 15 to trial. 18 MR. CRAUENi Without her? . ; 17 MR. CARR; Yea. 18 MR. CRAUEN: Whan? 19 MR. CARR; And-- whan the Court advised us that ha S0 had talked to the family physician and that it was going to SI take too long for the recouperation to taka plaa. SS MR. CRAUEN; Is that on record anyplace? S3 MR. CARR: No. As I told you, Counsel, he was S4 talking to the attorneys for Monsanto and attorneys for the 19 1 plaintiff by telephone. This bias the decision the Court a mas making and just exactly what facte he told* 3 MR. CRAUEN: This was In October? 4 MR. CARR; September. 5 THE COURT: Either one of you have anything more 6 to say? Okay. As I told you before when I interrupted 7 your argument, It was my decision to wait. I d o n 't remem 8 ber there ever being any agreement on It. But I decided 9 initially to go ahead and than decided later to wait. I, 10 except For the meetings that we had here, 1 contacted-- 1 11 communicated with Counsel for plaintiff and Counsel for ia defendant on the same day by telephone and told both eidea 13 the same thing. I remember talking to you at one time, Mr. 14 Heineman-- I'm not painting to you-- and I remember talking 15 to Mr. Musgravs once and I don't ramembar whether I talked 16 to anyone alee in the time. I generally, when I've called 17 your office, any of the Four of you or five of you who are IB there, I just assumed is notice to everybody elee* So, 19 whoever I can get, I talk to. And basically with the ao plaintiffs also as far as even Mr. Carr or Mr. Seigfreid. ai If I talk to one, I figura I 've talked to both. And admin ae istratively I communicated this by telephone both on the 23 decision to go ahead and then my subsequent decision to E4 wait. As I said, I've told both sides the same thing. I 20 1 don't frankly remember whether 1 said anything about this e thing or not. If I told one, however, I did tell another. 3 I'm careful to do that) and avsn to the point at times to Ht making lists of what I'm going to communicate so I do com 5 municate the same substance to both sides if for admini 6 strative reasons I have to get ahold of either of- you bg 7 telephone. It ubb my decision to resume, it was my e decision to wait, in the face, if I remember correctly, of 3 a Motion to Proceed towards the and that was filed, a 10 written Motion, to go ahead. I think that as Mr. Carr 11 characterized this earlier, this is anecdotal only. I 18 think that a mountain is being made out of a molehill, and 13 I think that thara is no just reason under any circumstance 14 to delay thB resumption of this trial this morning, and 15 thera is no reason in the world to strike this Juror from 16 the jury panel. I think that this is making a mountain out 17 of a molehill, I'll repeat it again. And your Motions are IB entirely denied, and as far as I'm concerned, the matter is 19 closed. So, assuming that the jurors are here by now, we SO will resume. Wall, before we do, I'vb gotten this request 21 from a Juror for a day off if anyone has any objection to 22 it, And I have one question I need cleared up from yester- ` 23 day's argument. When you mentioned an affidavit by Mr. 5H Carr, you ara talking about a section of one of his SI 1 responses, not a separate sheet saying this is an affida a vit! right? 3 MR. NASSIFi Just the affidavit that accompanied 4 hia entire list of objections, your Honor, 5 THE COURT: He signed it? 6 MR. NASSIFt Yea, 7 THE COURT: And so, you are talking about that in 6 the form of as an affidavit? 9 MR. NA3SXF: Yes, sir, that he had attested that 10 everything in his objections ware true. 11 THE COURT: Okay. Because 1 was looking for a IS separate affidavit attached to it. 13 MR, NASSIF: No. 14 THE COURT: And I was wondering if I had missed 15 something. But, that's what you are talking about; there 16 wasn't a separate affidavit? 17 MR. NASSIF: No, not on the juror's attentive IB ness or anything. It was Just part.-of- his entire 19 objection. SO THE COURT: Okay. SI MR. NASSIF; We'll have a separate affidavit. ss THE COURT: I understand you will have e separ S3 ate affidavit on that one subject. I was Just wondering 24 whether I had missed something. 88 1 NR. NASSIFi No. a THE COURT* Okou. 3 MR. GRAVENt I assume us can be given leave to 4 file an affidavit by Nr. Heinaman that he was the attorney 5 called with reference to the subject matter of this and 6 reciting what the conversation was. 7 THE COURT: You can recite whatever you want. 8 Both sides can fils whatever they want on this. I will 3 look it over and consider it as a Notion to Reconsider if 10 you decide to file anything. But, sure, you can file U whatever you want. I've got no problem with that. And Nr. 18 Carr, you may, too, if you wish. Does anybody have any 13 objection to that? 14 NR. NASSIF* Judge, can we get back to you on 15 this-- on this latter? I'm not saying we are going to have 16 an objection, but we need to sort of talk from a scheduling 17 standpoint. IB THE COURT* Sura. But, I would like to tell her 13 today. 80 NR. NA9SIF* Yes; we'll tell you at noontime. 21 THE COURT: Fine. 82 NR. MASSIF* Just give us a few minutes to-- 23 THE COURT: Sure. 84 NR. NASSIF: We won't hold you up. S3 X CThus concluding the 3:30 s.m. in chambers e conference on April 4, 1388.) 3 \ 4 CThe following proceedings were had in chambers 5 out of the hearing and presence of the Jury at 1:30 p.m.) 6 MR. CRAUENi Judge, me talked with Mr. Carr just 7 a minute ago, what wa want to talk about now is Dr. Sue-* B kind's continued appearance on the stand and the fact that 3 h@*s been on the stand for two months really, two calendar XO months-- 11 THE COURT: Just about. IS HR. CRAUEN: IS or SO trial days. This man is 73 13 years old. He is exhausted. He has bean living away from 14 home going back getting back late on Friday nights, coming 15 here in time for court the next day. He's-- several times 16 hie testimony has bean interrupted by reason of days off or 17 something, coming hers on Monday and no court on Tuesday. IB I'm not faulting anyone for thatj I-'m :just saying that is a 15 fact. J20 THE COURT: Right. SI MR. CRAUEN: And we are to a situation where a as combination of two things, his health and the fact that S3 he's exhausted and his own schedule. And wa need to do -54 something about the rights of this witness. Mr. Carr is 54 1 indicating-- hB didn't give us any kind of an indication of 5 hou long this ia going to continua. And-- 3 MH. CARRt You didn't ask me for an indication. 4 MR. MASSIF: Ha asked you if you ware close to 5 finishing. 8 MR. CARR: That's correct. And I told -you 1 was 7 not. B MR. CRAUEN: And there's no uay use know this. S And in any event, ua are nou asking that this witness be 10 permitted to interrupt his testimony at this stags and come 11 back aftar some period of time when he can recover. It's 15 very obvious to anyone, I think, watching this trial that 13 this thing is-- ths tension is Just getting too graat. Dr. 14 Suskind is under constant pressure day and night. And I 15 can see Rex being quits different and h e 's showing the 16 tension. And frankly, your Honor, I ses the Court reflect 17 ing tension that goes on in this courtroom. And it's time 18 to taka a break in that; not taka a_-break from the trial, 13 but taka a braak from this witness and coma back to him at S0 a later tlms when these tensions have abated and when he's 21 recovered, And to continue with this witnsss under thBse SS circumstances just simply-- just simply can't be sndured. 23 And-- 54 THE COURT: What's your thoughts on the matter, 23 X Mr. Carr? 2 MR, CARRi Your Honor, what the Counsel requests 3 is First of all in my judgment way out of line, because 1 anything that is occurring relating to the length of the 5 examination of this witness is the making of tha witness 6 end it's not my making nor tha Court's making. Tha witness 7 is doing it; he's doing it delibarately; hs shows absolute 8 ly no sign of tension. Ha's amiling and lughing and from ( 3 all appearances is having a great time. And I certainly 10 suggest to Counsel that he's way in error if he thinks l*m u under any more tension than I have been from the beginning 13 of this case. They are certainly not affecting me nor my 13 ability to function, and he haan't been hare very long that 14 he wouldn't say that I show signs of tension. To put the 15 witness in context, your Honor, he started on the 10th of 18 February, and wa had the 11th-- -that was Monday-- the 11th 17 was off end the 12th was off bacause it was Lincoln's 13 birthday. So, hs worked three days-that week. The follow 19 ing weak we had no trial on the 17th, that was Washington's SO birthday, and no trial on the 20th and Hist. -Ha worked two 21 days that weak. He couldn't be hBre on tha 20th and 21st. 22 Tha following weak we had no trial on the Monday bacause I 23 had to be in the Fourth District Appellate Court in Spring- 24 field, and wa had four days of trial. V 56 1 MR. SEIGFREID: "No trial* Judga was ill." 2 MR. CARR: That's correct. The Judge use sick 3 for-- 4 THE COURT: For about Four days. 5 MR. CARR: Three days that week plus the-fourth B day we had Motions. A Juror was not in the courtroom* a 7 Juror had problems getting there, and so we didn't have it. B So, actually that utaak no problems at all with him baing 9 hare; he had a long time off. The weak of March 3rd, at 10 the request of Dr Suekind we shut douin on Wednesday. We 11 had tuio days at the beginning of the week and tuio days at IS the end of tha week. 13 THE COURT: Right. 14 MR. CARR: The week after that ue had court on 15 Monday, no court on Tuesday, no court-- and court on Wednes 16 day, no court Thursday or Friday. 17 THE COURT: Right. That was when I was on the IS faculty of the judicial conference. 13 MR. CARR: We had two days of court that weak. SO The following week,- the week of March 17th, ws had no court ei on the lBth and we ended court at 3 p.m. on Friday the 21et. So, we had three and three quarter days of trial 3 that weak. The following week, tha week of March 54th, we 54 had no court on Thursday and Friday. We had three days of 37 1 court that weak. The following week we had no court on a Tuesday. Ula had four days of trial that week. And that's 3 the week we're in right now. This is the longest. Ula'va 4 had four days of trial this week, your Honor. Thera has 5 been no burden. Ule have not had since this witness has 8 been here a week of solid trial. Ule have had many breaks, 7 many recesses, to accommodate this witness and because tha B Court was sick and because of the conferences and because 9 of holidays. This witness-- -I could have finished with this 10 witness inside of a week if the witness had responded as a n witness is expected to respond and as this Court directed is him to respond. He has simply refused to do so. Maw, 13 Counsel apparently now is saying that they can't control 14 him; that ha's out of control. UJall, it appears to me that 15 if ha's out of control, that certainly is hie problem. And 16 h a 's a very experienced-- he doesn't shew the least sign of 17 fatigue nor the least sign of being concerned or upset 18 about his deliberate flaunting of the Court. I could 19 finish this cross examination of him next week without any SO problems whatsoever-- without a question I could finish this SI cross examination nsxt week if the witness were to respond. 52 Ule have had to go back again and again and again to re S3 establish points already established. There isn't a day % E4 goes by that 1 don't have to re-establish points already 38 1 made. The best example of what's occurred la juet hsra a right before noon. 1 started out truing to establish the a problems with ths HDLs. Ufa finally end up right before 4 noon, "Well, I said that all the time in my report." as if 5 what do we have this dispute about. He denied it to start B with, and then hs ends up saying, "Well, 1 said that all the 7 timei there's no problem with that.** B THE COURTr Let me interrupt you. All the jurors 9 are hers. I want to-- we*11 finish this after court. 1*11 10 announce, so this juror can make her plans, that we*11 be 11 off Tuesday April 0; and at the end of court this afternoon IS w e *11 resume this discussion so that bath of you can say 13 whatever in full you wish to say. 14 15 CThus concluding the 1:30 in chambers conference IB on April 4, 1986.) 17 18 CThe fallowing proceedings wisipe had in chambers 13 out of the hearing and presence of the Jury at 5 p.m.) 50 THE COURT: All right. 51 HR. CRAUEN: Judge, wa are back on the question 55 of interrupting the-- 53 THE COURT: Right. Had you finished your presen 54 tation? 29 1 MR. CARR: Yes. 1 had finished X thought. 2 MR. CRAUENi I hod assumed so. 3 M R CARR t Yes. And I thought you had started 4 already. Maybe not. 5 MR. CRAUEN: No, I hadn't started. We are 5 prepared to furnish if the Court thinks it's necessary, a 7 certificate from a doctor saying that it is unwise uiith B someone who is 73 years old and has a heart condition to 3 undergo this kind of stress. One only has to sit and 10 listen to something that happened in this courtroom this 11 afternoon. It is Just clear stalling having this witness 12 sit there and read exibits, "Doesn't it say this?" and 13 "Doesn't it say that?" That's been going on for days that 14 I've witnessed. This is just holding a witness hostage IS trying to make him comply with Mr. Carr's absolute precon 16 ceived notion that everyone has to use his same kind of 17 words. This is Just mors than this witness can endure, and 18 uie want this witness excused from the stand and he will 19 coma back and M r . Carr can resume his cross examination, 20 But, wb want him excused as of today and start with some* 21 thing else Monday. We have the request for voir dire, and 22 I have soms kind of confidence that it will be allowed; and 23 we could spend Monday an voir dire of witnesses, Tuesday ia V 24 no court, and we have a witness ready to come in on Uednes** 30 1 day. And I have to say I 've been back bars a lot on a Motions. Tba only time we* vs aver gotten anything is whan 3 Mr. Carr agreas. Ue can disagree, and ha wins. And, 4 Judge, I hava bean down hare on 1 don't know how many 5 times, and I have heard d o b objection by Mr. Keinaman or B Mr, Musgrava sustained. X almost fall out of the chair 7 yesterday when one was sustained. And wa ara in that kind B of a thing. But, I'm telling this Court that this witness 9 is exhausted. I'm telling this Court that Mr. Carr is 10 abusing this witness, end no fair reading of the transcript 11 or mors appropriately no Fair listening to the tape will IS tall any Fair-minded person that h e 's doing anything and 13 everything that he can to harass, intimidate, and abuse 14 this witness. And the witness has to have a break. He 15 simply has to hava a break. And I 'm also suggesting that IB we shouldn't have to go running up tp reviewing courts 17 asking For some kind of relief in these kind of indica IB tions when there is a compelling need For this kind of 13 relief on the witness. Ule also have to prepare, and Mr. 20 Carr is always saying he doesn't have time, but we have to SI prepare the affidavits that-- Mr. Heineman and Mr. MusBE grave-- with reference to the matter that developed last S3 night which we consider to be very serious. You said you 24 were going to consider it as a Motion to Ra-examins that. 31 1 1 think the Court is going to want to give that some vary 2 serious attention, and toe need a few .days to do that, ao 3 does Hr. Carr. That's a compelling matter of interest to 4 all of us, and yst you are forcing us to go ahead with a 5 trial with a juror with a situation where we think there B are very serious impediments to this kind of procedure. 7 THE COURT: I don't want to reargue that Motion. B MR. CRAUENs 1 know. I'm just saying what we an 3 do with the time. 10 THE COURT: Okay. u MR. CRAUEN: It seems to ms that we are entitled IS to a break. Ula are entitled to let this witness tska some 13 time off and recouperate and get out From under this kind 14 of stress. Now, who wants the responsibility of this kind 15 of pounding of a witness for this-- we would be going on-- IB the 10th of April starts his third month. And that's just 17 unbelievable. And I can't believe that Rex is opposing it, IS but he is opposing it. 13 MR. CARR: Believe it. SO MR. CRAUEN: And I understand his batting 21 average. But, I 'm suggesting this is one we want to win. ss And I 'm suggesting we want this witness to get soma rest. 23 And I 'm suggesting that not to do so is a clear abuse of 24 discretion. 35 1 MR. CARR: If 1 might respond to the remarks of 2 Counsel. Thera*a about three subjects that he touched upon 3 rather than the one the Court asked For, and I*m con* 4 strained to respond to at least one of them if not all 5 three. His suggestion that this Court has been sustaining 6 my objections and overruling their objections Implies that 7 this Court is not acting in a judicial and fairhsnded and 8 fair manner, and quite frankly, 1 think that's a serious 3 charge-- Implication-- on the part of Judge Craven to make 10 about this Court, because the clear implication is there, 11 and he's put it thsrB because he contemplates apparently 15 this record to go up on another1supervised order, and he 13 put it there for a purpose something like Sables, I 14 suppose. If you make a charge often enough and strong 15 enough and loudly enough, you*11 find people that will 18 believe it. And that's apparently what he's operating on. 17 Or perhaps it could be because of Ignorance, because he has 18 not been in a courtroom defending a.*lawsuit before and 13 perhaps he hasn't tried many cases and that he's speaking SO from ignorance. If he is, I'll forgive him. SI MR. CRAUENt I'm going to interrupt you. 22 MR. CARR: 1*11 forgive you of that. S3 MR. CRAUENi May I interrupt just a minute? Just 4 a minute, please. c1,='-> V 33 1 THE COURT: You'll gat your chance; just a s minute * 3 MR. CARR: A tactic that is developed to a * skill-- to a fins skill-- by dafanse lawyers, because they ae 5 interested in a reversal-- always a reversal-- is to make 6 objections, outlandish objections, that are not based upon 7 any law or any evidence or any logic or reason, whereas the B plaintiffs' lawyers, who know that this record is going to 3 be scrutinized- by Appellate judges and by Supreme Court 10 judges, refrained from making objections that are not 11 proper and cannot be sustained appropriately. And that 12 happens to bs the way plaintiffs and defsndants try caess. 13 Defendants try cases hoping that the Judga will erroneously 14 overrule onB of their objections and thus make s record for 15 reversal. This is standard operating procedure. It has 16 been the operating procedure of Counsel in this caa in mu 17 judgment. And it would be assinina for me to spend two IB years in a case and taka positions that I knew would be IS reversible error. It would be stupid for this Court to 20 take two years in this case-- because we know for a certain** 21 ty this case is going on appeals we know that from what 22 they have said hare and in the past elsewhere. We know 23 that for a certainty* Neither this Court nor plaintiff's V Counsel, I think, are of a mind to do stupid things and go 34 v 1 on For two goers for no and, for it to be a reversal* 2 There's no doubt in mg mind but what this Court hae 3 overruled objections whan it's believed It*9 proper to do 4 so. There's no doubt in mg mind that I know that I have 5 never made an objection that I thought would be reversible 8 error for the Court to sustain. And 1 never opposed 7 objections of Counsel on the other aide where I believed to 8 do so would cause the Court to commit reversible error 9 I'm trying this case in the bast way I know how to prevent 10 reversible error. And I think the charge that Judge Craven 11 has made is either, as I've said before-- wall, I think it's IS from ignorance. He doesn't know any batter. Sut, that's 13 the wag these lawsuits are tried. Now, on the statement 14 about ''Uisll, he hasn't won any, and therefore he sure wants IS to win this one", that is a ploy and I hope it won't 16 influence the Court, designed to say, -"Okay, I'll throw you 17 something." No, this Court should rule for the request of 18 Counsel if he believes it's proper and appropriate to do 19 so But, he should not rule for Counsel, simply because, eo "We haven't had something in a long time, please give us 21 something." This Court should in my judgment and has in my t 22 judgment ruled on the merits of each Motion made and each 23 objection made, and I hope the Court will continue to do 24 so. Mow, on the merits oF this particular matter. They 35 1 have said they will furnish an affidavit slgnad by a doctor a that stress is bad for somebody with a heart attack-- or a 3 heart condition. There's no need for such an affidavit] 4 everyone knows that stress is bad for people with a heart 5 condition. Ua don't know that this particular witness has 6 a heart condition. X haven't heard From his doctor that 7 the man is unable to sustain the cross examination. They B brought him forward representing to the Court that he would S be able to withstand this cross examination. Ha underwent 1 0 weeks of examination in Nitro, blast Uirginia and didn't ask 11 for a recess to my knowledge, is MR* NASSIFi Two weeks. 13 MR. CARR: Wall! two weeks, And it's mors than 14 two weeks* Counsel. I've got a stack of transcripts from 15 it. But. nevertheless, he didn't ask for any recess there, 16 and 1 haven't heard the witness say that he's unable to 17 take further cross examination and needs an excuse for 18 medical reasons. I haven't seen an.-affidavit from his 19 treating doctor that says he is unable to continue Monday ao for medical reasons. While the implication is there that SI they can get an affidavit from a doctor that etrass is bad 25 for somebody with a heart condition, we'll concede the S3 point. But, we haven't heard yet that that's any medical 84 reason to apply to this witness. This witness has got the 36 1 entire weekend to rest. H e 'll be back one day Monday and a then he'll have another day to reat and then he'll have 3 three days to continue on. Certainly whatever recoupara4 tivs powers he*a got can came into play in the two days for 5 this weekend and one day next Tuesday# IF at the end of 6 next week it should appear that he needs an extra day, I 7 don't oppose recessing for another day if he needs it-- and 0 I don't think ha needs it. But, I absolutely oppose taking S this witness off the stand and putting another witness on 10 in his place. Ule agreed to have this witness go off the 11 stand for his reasons that ha had to fly hers or fly there is or do this seminar or do that. Ule agreed to that. Ule will 13 certainly not agree to taking another witness on in his 14 stead next week or at any time in the future. I have a 15 forecertainty that if he comes back at soma later date, I 16 will have to re-establish everything .that I have with great 17 difficulty established to data, and it would be an inordi16 nate waste of judicial time sc to do as wall as probably 19 interrupt the next witness on cross examination for him to 60 come back. So, absolutely, I oppose any kind of recess as 61 suggested by Counsel 66 MR. CRAUEN: It's said that ha gods would 63 destroy, they first make man; but, the analogy to Cobles is 64 not fitting you Rexj and even an argument of that kind of 37 1 misuse of anything la demeaning to what I thought you wars* a I resent It. I reject it. And I think you can have it 3 back. .And for him to use that kind of thing even under 4 those circumstances I find absolutely unprofessional, and I 5 mould like It stricken From the record and I mould.hope 8 that he mould apologize. That's just outrageous, absolute 7 ly outrageous; but typical of mhat he's doing in this e trial; typical of the may h e 's abusing the judicial 9 process. And for him to talk about 0oble9 and than sit 10 over there and say that Or. Suskind mas examined for masks 11 in kJsst Virginia rnhen it mas two weeks, mhan h e 's been ia under stress here for tmo months and suggests that this is 13 somehow lesser of a strain than that, and mho is going to 14 talk about Gobles? Norn, Judge, this mitneee is no longer 15 able to endure this. : It's time to do something about it. 16 Norn, talking about the suggesting that hr. Carr almays 17 mins. That's not a question of anything except count* 18 I've been back here, end me have not won anything mhan hr. 19 Carr opposed us. That's a fact. I've sat in that court SO room and 1 have not heard any abjections sustained. I did 51 hear one the other day. We are endeavoring to count them, SS for mhatsver use it mill be made in the Future, us are 23 counting, Just doing a count. But, the only thing me are V 24 suggesting is that this mitnaas bs given a chance to rest, 38 X gat out from under the stress of this thing which Mr* Carr a is intentionally doing. And to say that h e 's cross exam 3 ining a witness that was on the stand In direct for tu)ovand 4 a half days, or certainly less than three days, and h e 's 5 now getting ready to start his twentieth day of cross 6 examination by making the witness read exhibits that 7 weren't even touched in direct examination-- and I'm not the 8 world's greatest trial lawyer, Rex, and I don't purport to 9 be, and. X haven't had a tremendous amount of triel experi XO ence, as you suggest; but, I've had enough to know that XX cross examination was always limited to the scope of th8 xa direct. And X found that out a long time ago. But, h e 's 13 doing this deliberately. This is a deliberate ploy to 14 abuse this witness, because he wants this witness to bend 15 to his will. This is Juet a deliberate ploy, and the 18 witness is showing the stress. As a matter of fct, X . 17 assume that maybe some of Mr. Carr's remarks indicate that 18 ha's showing the stress. Ule want this, witness off the 19 stand so that ha can recoup, and ha'll be back. 20 THE COURT: Okay. I am denying the Motion, and I 21 am denying it for a number of grounds-- number of reasons. 22 First of all, this-- the first part of your Motion. H e 's 23 been on the stand a long time. I don't know how long he V 24 was on the stand in West Uirgina at Nitro, and I don't know 39 1 how long he was on tha stand at Comp hearings in '56 and X a don't really care, because that's not relevant to what us 3 are doing here* The length of time on the witness stand is ** something that is dependant on a number of things. The 5 main thing it's dependant upon in this particular case, and i 6 it*9 the thing over which he has control, is compliance 7 with tha rules of Court, the rules that I've articulated, 8 the rules that X'va admonished him about, the rules that 3 Mr. Haineman as an officer of the Court on numerous times 10 has explained to him, both all of them in general end at my 11 request with emphasis on particular ones such as responding IS only to the question and how to handle assumptions. And 13 really the length of time that this witness is on tha stand l1* ie something that's within his control. Now, he has so far 15 by his actions extended the length of that variable, and he 16 appears willing to do that, and he appears intent on doing 17 it. And I really am not going to allow this Court to be IB put in the position of a witness who is deliberately trying 13 to evade the rules of this Court and warp tha rules of this so Court and obstruct the operation of this trial and then 21 claim that he haa become exhausted thereby and needs a as break from it. That is an absurdity which I am not going 23 to allow. I have-- I was advised earlier as to this wit- v* e* ness* age, I think by you Nr. Nassif, back hBre in chambers 40 N. 1 I think at the time whan we had the argument and we talked 2 about his hearing aid tht he doesn't-- that he didn't want 3 to wear up to that point in time. You also advised me that 4 he seemed to be getting tired In the afternoon and perhaps 5 us could do something about that. And there have been a B number of times such as one dag this week when I 've allowed 7 a very long break in the afternoon. And I 've kept an eys B on him both in tha morning and afternoon. And I don't S agree with your observation based on my observations 10 looking at him and listening to him and watching him pretty 11 intently* When he has seemed a little slow in the after 12 noon, wa've taken some breaks. You've noticed, if you kept 13 track of the time as well as you claim to have kept track 14 of the objections, you'll notice that there have bean some 15 times whan u s 'vs Bvsn taken some long breaks In the IB afternoon. There have also bean some times when-- have been 17 some times when us have gone for a shorter period and than IS taken a break in the afternoon. This witness is in good IS shape; this witness is in control of himself; he is in so control of is faculties; I don't see what you claim to see ei as far as this witness* And if, for the sake of argument, 22 it were there, ha has within his power the ability to 23 shorten his tenure on tha witness stand and that is by a V 4 simple basic compliance with what this Court has repeatedly 41 1 requested M m to do. As far as your insinuation on the s rulings, X don't kaap count of who wins how many (lotions, 3 bacauss 1 try to avoid meaningless actions. I try to look 4 at the quality of what X do and not the quantity. And my 5 advice whan anyone has complained about rulings against 6 them in this trial as well as. others hava bean that I 7 advise them to look at the quality of the Motions and the 8 objections they make and not the quantity. And I think S that advice applies hare also. I am denying your Motion. 10 I'm denying it for the grounds stated. And X think that 11 takes care of what your Motion included. IS MR. CRAUEN: Mr. Carr conceded the question on 13 the doctor's certificate. 14 MR. CARR: I did not concede the doctor's certi 15 ficate. 16 MR. CRAUENt All right. Does the Court want-- I 17 mean, Mr. Carr is trying to diagnose hie condition, and if 18 ws give to the Court a certificate by a doctor that his IS continuation on this stand under these circumstances SO without a break can be dangerous, injurious, to his health, SI is the Court still going to persist in His ruling? as THE COURT: I don't rule on things before I sea S3 it. If you want to submit something to me, you are free to V do so at any time; but, l*m not going to be making advisory 45 1 rulings on this or anything alas. And I'm not-- wait a s second, because I haven't Fully addressed It yet. 3 MR. CRAUENt I'm sorry. 4 THE COURTi I'm not going to rule on something 5 that I have not yet aeen. It just-- I'll take the same 6 position on that as I have on the affidavit. If you want 7 to submit something, you know, fils a copy with tha clerk), 8 xerox a copy for me, and I will take a look at it. The 3 only thing I am going to tall you is I mill read whatever 10 you submit. I'm not going to pro-judge; I'm not going to 11 make an advisory ruling; I'm not going to pre-ruls on some IS thing that I have not assn or not heard. So, you knout, if 13 you want to submit something on this or on tha affidavits, 14 or anything else for that matter, go right ahead. 15 MR, CRAUEN: There*3 the chronology problem, hie 16 probably will have to go to Cincinnati to get hie doctor 17 and get the affidavit and get it back. Ha's going home 18 tonight. Do ws offend against the affidavit and bring him 13 back again here on Monday morning and-- whan wa ars giving SO you the affidavit? I don't know why we have to do that, 51 assuming that tha affidavit is as strong aa I think it can 52 b e . 53 THE COURT: Well, you are asking me again to make 54 a judgment and a ruling on something that I have not seen, 43 1 and I'm not QDi.no to do that. Now-- I*ve rulad on your 3 Notion. And by my ruling, uie start Court at 9:30 Nonday 3 morning. N 4 NR, CRAUEN: Dell, la the Court going to rule on 5 the voir dire-- the request For voir dire? Because.we are 6 going ahead-- 7 THE COURT: I'm working on both of the Notions 0 that you have submitted to me; and when I feel that I have 9 an Order that properly resolves either and both, I will 10 file them and you'll get copies of it. U NR. CRAUEN: Ulhere can we gat this affidavit to 19 you tomorrow? 13 THE COURT: What? Of what? His doctor? 14 NR. CRAUEN: Of the doctor. 15 THE COURT: Drop it off at my house if you want. 1B Leave it in th door if I'm not home.' I*ve had a number 17 of-- 1B NR. CARR: You are not saying that the Court 19 would rule ex parte on the affidavit without hearing from 30 us? 31 NR. CRAUEN: Rex, I don't do business that way. 33 THE COURT: I'm sorry, I didn't hear what you 33 said. 34 NR. CRAUEN: I said, "Hex, I don't do business 44 1 that way." a THE COURTi You know, you*vs dropped things off a at my house before. IF you want to drop off an affidavit-- 4 MR. CRAVEN: Ua won't be able to file it tomor 5 row, but we will have it ready for filing. We will send a 6 copy to your housa and we will sand a copy to Counsel if 7 that's agreed. 0 THE COURT: You can do whatever you want. 9 MR. CRAVEN: I'm asking for directions as to-- 10 THE COURT: I 've allowed-- I have a very very 11 liberal policy. If you want to drop something off at my IS house on any of these Notions for me to read, drop it off 13 and I will read it. And that includes affidavits, I 've 14 received responses that way, I've received briefs that way. 15 You know, I'm in the book; drop it off. Shaila knows where 16 I live, so do a couple of tha others,, so just drop it off. 17 IB CThus concluding the 5 p.m. in chambers 19 conference Dn April 4, 1985.) SO SI SS 23 S4 STATE OF ILLINOIS 3 3 SS. COUNTY OF ST. CLAIR 3 45 I, TRACY LYBARBER, C.S.R., an Official Court Reporter for the Twentieth Judicial Circuit of the State of Illinois, do hereby certify that I reported in shorthand the proceedings had on the hearing in the above-entitled causej that thereafter I caused the foregoing to be transcribed into typewriting, which I hereby certify to be a true and accurate transcript of the proceedings had before the Honorable Richard P. Qoldanhersh, Judge of said Court. STATE DF ILLINOIS 5 1 COUNTY OF ST. CLAIR 5 46 I, RICHARD P. 60LDENHERSH, Circuit Judge in and for the Twentieth Judicial Circuit, hereby certify that the above ia a true and correct transcript of the proceedings had in the case oaptioned: FRANCES E. KENNER, ET AL v. MONSANTO COMPANY, Cause No. 80-L-970, heard on January 10, 1986. DATED this _____ day of April, 1986. RICHARD P. GQLDENHERSH, Circuit Judge