Document p2mw875gEG0xB59r0qzjZmj7k

u iV 5% 1 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT ST. CLAIR COUNTY, ILLINOIS FRANCES E. KEMNER, ET AL., Plaintiffs, vs MONSANTO COMPANY, Defendant. ) } ) NO. 0O-L-97O REPORT OF PROCEEDINGS December 12, 1905 Before the HONORABLE RICHARD P. QOLDENHERSH, Circuit Judge APPEARANCES MR. REX CARR and MR. JEROME SEIGFREID, Attorneys at Law, on Behalf of the Plaintiffs; and MR. KENNETH HEINEMAN and MR. JOSEPH NASSIF, Attorneys at Law, on behalf of the Defendant, Monsanto Company. Kathleen Llatson Brunsmann, RPR, CSR Official Court Reporter 49 i background level. That: Is the opposite of what this witness a testified to. He testified that it was unexposad people 3i ii 4. that have the background level of porhyria, of elevated porphyrin. 5 ' MR. CARR: It's an endemic situation. The 6 testimony is that everybody has it, that it's in everybody's 7 a i 8 10 tissue, that was the thrust of your question. It was the thrust of his testimony, that everybody has it. MR. KEI NEMAN: That's got nothing to do with 5,4,5-T. i 11 THE COURT: The objection is overruled. 15 i 13 CThe following proceedings were had in the 14 > presence and hearing of the jury:) 15 ; i 16 i 17 i i 0 CBy Mr. C arn 3 Now have you considered in that respect, Dr. Kilgore, the fact that Santophan manufactured ! by Monsanto end used in the manufacture:of Lysol has been 19 shown to have 5,3,7,0-TCDD as a contaminant along with other 50 dioxins? 51 A I would say yes. i 55 And where did you learn that Santaphenj had the r< / 53 ,3,7,6 and the Lysol had it, sir? ,i i 54 A I don't really know that. But what I'm saying -- . ''% 9 50 1 Q Where did you l s a m that? Do you know that For a 2 Fact, air? 3 8 I am aware that thars is soma connection. 4 811 right. Uhara did you learn that there waa a 5 connection; From whom? 6 8 I 'm sura it was From Monsanto. 7 Q Wall, now, you say you're sure it's From Monsanto. 0 Did Monsanto tell you that thair Santophan has 2,3,7,8-TCDD S in it, and that the Lyaal has it in it? 10 8 1 think there was some statement'to that eFFect, ( v 11 yea. v.____ 1H 811 right. Now, Doctor, did they tell you how 13 muoh, what were the levels oF 2,3,7,8-TCDD in the Lysol? 14 8 No, I do not recall. | 15 Q Well, did they diacuss with you how -- the Fact i 16 that the Lysol that contains that S,3,7,8 is sold thrpughct 17 the country? ~i 18 8 No. 19 Q Doctor, what oFFicial of Monsanto told you that eo the Lysol has the 2,3,7,B--TCDD in it? 21 8 I honestly don't recall. 22 Did you have a conference with more than ona 23 oFFicial of MonsantoT 24 A No, several. * 51 \ 1 And did it oome out In one of those conferences? 2 A A statement of some effect like that, yea 3 Doctor, how long ago was it that you learned that 4 Lysol has 2,3,7,0-TCOD in it? 5 . A Two or three months, maybe, 6 Q Now, Doctor, this meeting that you had when you 7 learned that Lysol had 2,3,7,8 in it, was it at the Monsanto B Headquarters in Crave Cower, was it at the plant in S Illinois, or was it in an attorney's office? 10 A It u b b an attorney's office. 11 And -- you've already said there was more than one 12 official present. Who ware these officials of Monsanto that 13 were present to your best memory 14 A I honestly can't remember. 15 Did they give you documentation showing thb amount 16 of 2,3,7,8 found to be in the Lysol? 17 A Not to my knowledge. 16 Q Doctor, did you at that meeting or any of those 19 meetings learn also that the Wed-B-6on, known as 2,4-D, 20 manufactured from Monsanto's 2,4-Diohlorophenol, did you * 21 learn that it too has levels of 2,3,7,6-TCDD in itT 22 A No, I did not. 23 Nobody told you that? 55 1 Did thsy tell you that the 3,4-Dichlorophenol from S which the S,4-D is manufactured has 5,3,7,0-1000 in it? 3 ft I don't recall that. 4 Doctor, did anybody show you, or did you ask to 5 see any of the documents of Monsanto's own analysis showing 6 that their 3,4-Dichlorophenol manufactured, and in studies 7 that they made shortly after the Sturgeon accident, did B anybody show you or did you ask to see any of the. documents 3 showing the levels Df 5,3,7,0-TCDD in, not Just the 5,410 Oichlorophenol, but all of the Monsanto chlorinated phenols 11 that were being tested at that particular time? IS ft I*vs seen same tank samples announced with 13 orthochlorophenol, but that's all. 14 All they showed you for data was the data relating 15 to the orthochlorophenol, and they did not show you any data IB relating to Santophen, or to 3,4-Dichlarophsnal,.or' 17 parochlorophenol; is that correct, sir? IB A I believe that's correct. 19 All right. Now, Doctor, whan you gave your SO opinions as to the reason fat tissue has 3,3,7,B-TCDD in it SI as you have given that opinion, did you take into SS consideration the fact that this Lysol that has 5,3,7,B-TCDD S3 in it is used pratically in every American household? 54 A No, I don't think so. 53 1 e 3 1 5 6 7 B S 10 11 IS 13 11 15 16 17 IB 19 20 B1 22 23 51 Doctor, you do knout, or do you know that 2,3,7,B TCDD can bloaccumulata in tha body's tissue? A No. You don't know that, sir? A No Q Has no one ever told you that it mill bioaccumulata, that Monsanto's own researchers have shouin that it bioaccumulstss? They've never told you that, sir? A No. Q Now, Doctor, assume, if you will, that 2,3,7,0TCDD doea bloaccumulata. There's disputes as to how long it stays in the body. Monsanto says it stays three to five years. There's disputes as to whether it reaches s steady state, when It falls off. There's disputes of that sort. Assume, sir, something that you did not know before that it does bioaccumulata*. Wouldn't the fact that Lysol has 2,3,7,0-TCDD in it be important r-- as a power source of 2,3,7,8-TCDD that could bioaccumulata in the tissue, in the human tissue. A 1 don't think so. Doctor, Lysol is used in practically every household, is it not, sir? A I don't know. Wall, Doctor, you do know that if you go into the 54 1 supermarket you asa shelves loaded with Lysol products, you a know that, don't you?. 3 A That's correct. 4 You've seen that. And _p_r_e__s_u_m_a_b_l_y___a_s_i__g_n_i_f_i_c_ant 5 part of the American buying papulation buys that Lgsol or 6 they wouldn't keep it in the supermarketj isn't that right, 7 sir? B A I'm sure that's correct. 9 In those quantities. You do know that it's used 10 in babies nurseries, for example, that they recommend that 11 it be used in babies nurseries. You know that, don't you, ie sir? 13 A I believe sc. 14 You do knou that if the Lysol is in the products IS that gou uash It uith or on the table or the babies togs IS that it can be ingested that uayj you do knou that, don't 17 you, sir? 18 A You don't know that if the Lgsol ---- 19 Q If the Lysol has the S,3,7,B in it, Dr. Kilgore, BO and if a mother washes the baby's toy, or his cradle with 51 that Lysol, there is some 5,3,7,8-TCDD on that toy unless 55 it's completely washed off with water; isn't that correct, 53 sir? 54 A No. 55 1 a a 4 5 E 7 B S 10 11 IS 13 14 IE IB 17 18 IS SO SI ss S3 54 Q Doctor, If there's ,3,7,0 in the Lgaol to start with, and you put the Lgsol an this pen, for instance, and then gou da not wash the Lgsol off of this pen, there is some amount of 5,3,7,8 -- first of all, there is same Lgsol an that panj isn't there, sir? A Yes, there is. 0 And there's some 5,3,7,0- TCDD in the Lgsolj correct, sir? A I don't know that. Q Doctor, you were told that. It was in the Lgsol on the pen, is it not, sir? A Not necessarily. What happens to it, sir? Whu wouldn't it be on the pen if it's in the Lysol? A I would imagine it would depend from batch to batch and the level. You can dilite out things,.you know, to the point where you can't detect it. I 'm not talking about detectability. I'm talking about physical fact. You can dilute it ten million timas. There ie still some there, is there not, sir, unless it's washed off completely? . A For all practical purposes, no. I'm not talking for all practical purposes. If I put Lgsol on this counter, for instance, if tha Lysol has 56 1 2,3,7,0-TCDD in it, and the Lysol stays on that counter if 5 it*s not washed off, it has in it some portion of all of the 3 ingredients of Lysol, doesn't it, air? 4 A It could, yea. I j I 5 Q Well, it would, wouldn't it, sir, if I put it on i 6 this counter -- whatever amount I putjon this counter, thBre 7 is some part of the ingredients of Lysol on this counter i B isn't there, sir? \ 3 ft No, not necessarily. 10 Q Why not, Doctor? Whet happened to it? 11 ft It depends on whether it's in there initially or 15 not. 13 Q That's right. If it's in there initially, sir. 14 If it's in the Lysol initially, and I put it on this 15 counter, it's on the counter then; isn't it, sir? 16 A Th_a_t_'__s__c_o_r_r_e__c_t_._ I 17 Q And it will remain there until something happens " IB t>o it, won't it, sir, e`ither vol--atilizes or "washed offt 19 isn't that rloht__sis? 50 ft That's correct. 21 One of the things that could happen to it is that 22 a baby could salivate and could put it in that child's ------- - --------------------- --L_____ ____ ____________ 23 (nouth: correctT_sir? . , 24 ft Yes, that's correct. ^ -il j 57 1 0 And that: babu mould gat! therefore, if there mas 2 2,3,7,8 In It, the baby mould get tha 5,3,7,8, wouldn't ha, 3 sir? ----- -- _ 4A 5 a.C"orrect_.__ In some, whatever tha amount might be, depending 6 on what ths ratio Is or how it's diluted or how it mixes 7 with ths baby's saliva, whatever the amount is, it's going B to get soma of tha g,3,7,B-*TC0D; isn't it, airT 9 A That's correct. 10 Now, if 5,3,7,B volatilizes, if a housewife, For 11 instance, or me on a Saturday afternoon, if I scrub a 15 basement floor, or a kitchen floor with Lysol and let it bet 13 that way and don't just wash it off and remove it all, there 14 * is some Lysol on my floor,* isn't there, sir? 15 A Yes. IB And if E,3,7,B volatilizes, and I suggest that you 17 don't agree that it does, if it does volatilize, it's in my IB house and I 'm inhaling, sir, evsrytima 1 go in that room, if 13 it does volatilize. 50 A I'm to assume that it volatilizes? --------------------------- --- --- 21 Yes, please do, because we have that testimony. 22 A Yas. 23 So each tima I'm in that room that has the Lysol > ------------------------- ------------- -- -- ---- ---- 24 in it, I am inhaling some part of tha 5,3,7,8-TCDD that's in 50 1 that Lysol, aren't I, sir*? a a Possible, yes. 3 Yss. Pnd I would do that for everyday, and if 4 I've used Lysol for years end years and years, I'm inhaling 5 Lyaol in some amounts, uihatavar amount it might be, no 6 matter houi diluted it might be, I'm inhaling some* of the 7 Lysol over the period of time that I 'm using the Lysol, 8 aren *t I, air? 9 A That's correct. 10 Q Pnd inhaling the Lysol, I'm Inhaling the 2,3,7,B- 11 TCDD contaminant, aren't I, sir? 12 A Yes. s. 13 Yes. And, Doctor, if it bioaccumulates in my 14 tissue then I have it, and everyday I breathe that Lysol air 15 in that basement or in that kitchen, everyday I am taking 15 some amounts of 2,3,7,0-TCDD into my body, aren't I, sir, 17 end keeping some part of it? ia A If you assume that it bloaccumulatea, yes. 19 Q Yes. If you assume it's bioacoumulated. Now -- 20 and, Doctor, I can accumulate, and that TCDD is in my body, ai and if I get another source of TCDD, say I gc outside and I 25 have used Wed-B-Gon, or some other form Df something that 53 uses 2,4-0, and if the 2,3,7.B is in that, I'm an that lawn, 24 there I gat 2,3,7,0-TCDD as we, don't I, air, if it's in the' 53 1 product to start with? 2 MR. HEINEMAN: Objection, your Honor. May Counsel 3 approach the bench? 4 THE COURT: Yes, you may. 5 6 CThe Fallowing proceedings were had at the bench 7 out of the hearing of the jury t3 8\ 9 MR. HEINEMAN: There's no evidence in the case 10 whatsoever that there has ever been found 5,3,7,B--TCDD in 11 5,4-0, nor in Wed-B-Son. Everytime when Mr. Carr has 15 examined a witness on this subject, he's asked the witness 13 to assume that it would be in the final product. There's 14 never been any evidence that it's there. 15 MR. CARR: Your Honor, Mr. Musgrave is the first IB person that asked the witness to assume that it was in the 17 Ued-B-Gon, He demonstrated with his witness the amount IB that would be there. Us have cross examined a number of 19 witnesses. Mr. Wilson has admitted that on a manufacturing 20 process, in one manufacturing process it wll be there and in 21 another manufacturing process it won't be there. He said he 22 had no knowledge as to the fact of the manufacturing process 23 that might destroy 2,3,7,8 was being used at the points in 24 time that's relevant in this case. Us have plenty*of 60 1 evidence to support the statement that it's there. s MR. HEINEMAN: Never been a single witness testify 3 that It's found in 2,4-D or in the Ued^B-Bon. Not one. 4 THE COURT: The objection is overruled. I 'll make 5 it a continuing objection to the line of questioning. 6 7 CThe following proceedings were had in the B presence end hearing of the jury:) S 10 (By Mr. Carr) Doctor, I mould be subject, 11 assuming that there is 2,3,7,B in the finished product IS UJed-B-Gon or 2,4-D, I mould be subject to inhaling if it 13 does volatilize everytime I go out an my laun, wouldn't I, 14 sir, the 2,31,7,8 contaminant? 15 A No, not necessarily. 16 Doctor, you say not necessarily. I take that to 17 mean that it is possible that it could occur. ia A Theoretically possible, yes. is Doctor, if I sit down, if I play on my lawn, so that's been sprayed mith a material that contains the 2,4- 81 Dichlorophenal, that in turn contains the 2,3,7,B-TCOD, I 82 would thereby be in contact with 2,3,7,B Just by playing on 83 my lawn, wouldn1t I, sir? 24 A ThBoretially, yes. 61 1 Doctor, there'a no thaorg about it. If the a 5,3,7,8 is in the 2,4-Dichlorophenol, and if tho a,3,7,B a being in the 3,4-Dichlorophenol, ends up in th 3,4-D, or the 4 Ued-B-Gon, and that ends up on mg lawn, there is 5,3,7,8 on 5 mg lawn, isn't there, sir? G A There could be, ges. 7 Q No, not could be. There would be. IF what I told a you is correct to start with, there would be; would there a not, sir? 10 A If what you told me originally is correct, gee. li Yes. And each time I'm on mg lawn, if mg child le plags on the lawn, IF mg dog plage on the lawn, until it's 13 washed away, or degrades or volatilizes, whatever, until 14 that somehow is gotten rid of, I 'm subject to ingesting or 15 taking in that 3,3,7,B, aren't I, sir? 16 A Yes. 17 Now, Doctor, if it does bioaccumulata, can that IB not -- cannot a fact that Lgsol is sold: throughout this IS country Just bg itself, isn't that fact alone sufficient to 50 account for some level of 5,3,7,8--7600 in our body tissues 51 assuming that it bioaccumulates? 55 A Yes. 53 Q Doctor, you do know that toxic substances at some 54 levels can have no effect, and as you add to those levels -- 62 1 Udu can gat to a toxic affect, can't you, sir? 5 A That's correct. 3 And you do know that gcu can have accumulation' by 4 a chronic or long term daily exposure to something like B Lyaol, and have a regular amount taken into your system, but 6 than you can be acutely exposed to that aama toxic, and the 7 fact that you're exposed acutely in a larger amount doesn't B take auiay from, but rather it adds to the toxic effect of 9 the toxins already in your body, doesn't it, sir? 10 A No. 11 Doctor, are you saying that the acuta exposure 15 does not add to the toxins that you already have in your 13 body? 14 A That's right. 15 Are you assuming that it's ingested, that it's 16 taken into the bodu? 17 A That's correct 18 Q And are you assuming than that the toxic substance 19 is in the body from an acuta exposure? 50 A That's correct. 21 Q Will it not go through the fat tissues, sir, or to 52 the kidneys, or to the liver, like shown in the lady at 53 SavesoT 54 A It's possible, yes 63 \ 1 Q That was an acuta exposure at Sevaso, wasn't it, 2 sir, the lady at Sevaso that, had the 1.64 parts per billion 3 in her fat tissue, that was considered an acute exposure, 4 wasn't it, air? 5 A No, in mg opinion. 6 Ulhat is your definition of an acuta exposure? 7 A Well, an acute exposure to a toxin is something a that will cause a major clinical response. 3 Wall, Doctor, you're talking about the result of 10 the exposure. You're not talking about the exposure itself. 11 The acute exposure, the definition I'm using acute is a one 12 shot exposure to it. That's the way I 'm using it. The 13 dioxin that you get in the one shot exposure like at Seveso 14 would add to the dioxin you already have in your body if you 15 have it from these other sources, such as Lysol,or 2,4-D, 16 or 2,4,5-T; isn't that correct, sir? 17 A Corract. 16 Yes. And it would be a more intense or a kind of 13 a. shocking effect when added to that which you've already 20 got, wouldn't it, sir? 51 A No. 22 UJhy not, Doctor? 53 A Because it depends.on the level. 24 0 Well, Doctor, it depends upon the level. If'that 54 N. 1 level is high enough when added to the tissues that's 2 already contaminated with th 2,3,7,B-TCDD, it could have a ,3 shocking effect, could it not, air? 4 A No, not necessarily. 5 Q Why not, sir? Why not? 6 A Because when uou get to high levels of the 7 chemical, frequently they're handled differently, the B compound is taken in on a chronic basis. The effect -3 Q How does that work with 2,3,7, B-TCDD? Has there 10 ever been any studis to suggest that the 2,3,7,0 you get on 11 an acute basis, one time exposure would be handled IS differently than what you get on a chronic exposure? 13 A No. 14 MR. HEINEMANi Objection, your Honor, he cut the 15 witenss off in the middle of the answer. 15 THE COURT: I don't think so. 17 CBy Mr. CarrD Doctor, in point of fact, you'd ia know, and we've gone*:;through studies that show chronic low IS dose exposure accumulated in the body can have more serious so effects than Just a one time acute exposure. You remember 21 those studies, don't you, sur? 25 A Yes. 23 Yes. And so the chronic low dose expoeure that we 24 have when we're exposed to Lysol, if it has 2,3,7,B in it, 65 1 as you suggested -- aa you stated that you knoui that It s does, that chronic exposure can have an effect upon our fjt 3 body, and then uihen ue'ra exposed to a larger, more massive 4 amount of TCDO, that'can have a mors injurious affect upon 5 the body, can't it, sir? 6 A No. / / 7 UJhy not,f Dactor7 / Q A Because you're talking about two different 9 biological consequences. A chronic level of axposurs to 10 something does not necessarily cause ths same biological 11 affect in an acuta high level exposure to the same compound. 15 Doctor, I didn't suggest that it caused the same 13 thing, if ycu intarprettad that in my question, 1 didn't 14 mean that. Ulhat Z said urns a more injurious consequence. IS Uhen you add the larger, the massive dose, the larger dose 16 to your body that's already crippled with a chronic dose -- 17 that's an exaggeration to say crippled -- but has already IB got in it a law dose exposure, a chronic dose. My question 19 is can adding that strau, you might say, to the camel's SO back, can't that etraui end up breaking the camel's back? SI A N o . EE Q Doctor, is there any conceivable articles that you E3 have that you base that opinion upon that adding the massive 54 or the larger dasa to the doses that's already accumulated BB 1 In your body mould no add to the -- significantly add, I 2 might say, to tha injurious affect? i 3 A Sura. 4 UJhat studies, sir? 5 8 Lots of studies been dona. 6 0 Name me the studies, Doctor. It*s very moll to 7 say lots of studies. 8 8 1 could not give you an exactly reference hare. 1 9 can give you an opinion. 10 Doctor, can you give me the name of an author, 11 just the name of an author that said such a thing? 12 A Wayland Jack Kayas. 13 Wayland Jack Hayes. What did he write, sir? 14 A He has a vary extensive book on the pesticides in 15 man. 16 And in hia book he says that the massive doss 17 doesn't significantly add to the cumulative of smaller 18 doses? 18 A I can't tell you the exact wording, but that kind 20 of Information is in there. HI Upon what did he base that, air? 22 A I cannot give you a reference here. 23 Doctor, what theory did he base it upon? 24 A I don't understand. E7 1 0 Uell, what was the rational? You're saying ho 2 made that statement. Upon what did ha base that conclusion? 3 A When DOT is stored in the body fat you have one. 4 phenomena. When you are exposed to high levels of DOT it 5 has no impact on the body Fat -- on the storage of DDT in 6 the body Fat at all. It causes other kinds of damage. 7 0 Well, Doctor, the other kinds of damage is an 0 ' injurious effect added to the already chronic damage; isn't 3 it, sir? That's what I was asking you. 10 A N o . 11 Q You've Just got through saying that when you take 15 that dose it makes other damage, doesn't it, sir? 13 A Right. 14 Q Noui is that more injurious than to have just tha 15 low doss damage, to have this other damage added to it? 16 A N o . 17 Doctor, if you've been damaged already by the DDT 18 in this case that has accumulated in your body, and you got 13 some damage already; right, sir? 20 A Right. 51 And Hayes says that when you have a massive dose 52 you gat other damage, did.n 't he say that? Didn't you Just 23 say that? 24 A That's right. 68 1 Q When you add the other damage to the damage a already existing, isn't that a more injurious effect, Dr. 3 Kilgore? 4 8 If the dose is high enough. 5 Q Well, that's what pje're talking about. So what he 6 said is you get other damage that is then added to the 7 already existing damage; isn't that right, sir? B A That's right. 3 Yea. 10 THE COURT: hr. Carr, is this a good paint to 11 break for lunch? 12 MR. CARR: Yes, it is. 13 THE COURT: W e 'll break for lunch at this time. 14 We will resume beginning at 1:15. The admonishments that 15 I've given you earlier mill apply during this lunch period 16 also. Court,is in recess, 17 IB CLunch recess.) 19 EO CBy Mr. Carr) Dr. Kilgore, an the subject of El volatilization that you havB discussed, are you aware of the EE fact that the scientists at Monsanto know that DDT has E3 probably -- has spread around the world because of its E4 volatility?