Document pBGyx9R14jE0ymonKdy1ekwQ6

1 1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS 2 BEAUMONT DIVISION itislciclciciciclcic'k'k'k'k'k'k'k'k'k'k'k'k'k'kic'k'kic'k'kicit'kjsjcii'kic'kjc'k'k'k'k'k'kjt'kie'k'k'k'k'kit'k * CECIL SCOTT, ET AL VS. MONSANTO COMPANY * * CIVIL ACTION * NO. B-84-1103-CA * * k 7 8 VOLUME III 9 10 VIDEO DEPOSITION OF 11 R* EMMET KELLY? MD 12 13 14 9:09 a.m. to 12:00 noon 15 May 28, 1987 Ramada Airport Inn 16 St. Louis, Missouri 17 18 Reported by: 19 Linda C. Baker 20 Texas CSR No. 505/Notary Public . Nell McCallum & Associates 21 2900 Smith, Suite 104 Houston, Texas 77006 22 (713) 523-3767 23 Taxable Cost: $ 24 Charged to: DAVID M. LACEY, ESQ. State Bar No: 25 Attorney for: Piaintiffs NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021848 2 1 APPEARANCES: 2 For the Plaintiffs: 3 DAVID M. LACEY, ESQ. Gilpin, Pohl & Bennett 4 Allied Bank Tower, 23rd FIoor 1300 Post Oak Boulevard 5 Houston, Texas 77056 6 For the Defendant: 7 WALTER J. CRAWFORD, ESQ. 8 and CHERYL D. OLESEN, ESQ. 9 Wells, Peyton, Beard, Greenberg, Hunt & Crawford 10 Petroleum Building Beaumont, Texas 111 01 11 12 Videotechnician: 13 James Heironimus Executive Service Groups 14 15 ******** 16 17 / Video Deposition of R. EMMET KELLY, M.D., 18 taken on May 28, 1987, at Ramada Airport Inn, St. Louis, 19 Missouri, between the hours of 9:09 a.m. and 12:00 noon, 20 before Linda C. Baker, CSR No. 505 and Notary Public in 21 and for the State of Texas, at the instance of the 22 Plaintiff, pursuant to Notice and the Federal Rules of 23 Civil Procedure. 24 25 ******** NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21849 1 TABLE OF CONTENTS 2 3 4 WITNESS: R. EMMET KELLY, M.D. - VOLUME III 5 6 7 APPEARANCES 8 PROCEEDINGS 9 10 EXAMINATION BY; Mr. Lacey 11 12 WITNESS SIGNATUREPAGE AND JURAT 13 REPORTER'S CERTIFICATE 14 15 LAWYER'S NOTES 16 17 18 19 20 ******* 21 22 23 24 25 3 PAGE 2 4 5 132 133 134 NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021850 4 1 *** VOLUME-2111 *** 2 3 4 PROCEEDINGS 5 6 THE VIDEOTECHNICIAN: This videotape i7 deposition is being taken in Cause 8 No. B-84-1103-CA and is filed in the 9 United States District Court for the 10 Eastern District of Texas, Beaumont 11 Division. 12 The style of the case is Cecil Scott 13 versus Monsanto Company. 14 For the record, the video recorder 15 today is James Heironimus of the firm 16 Executive Service Groups; and the 17 Certified Court Reporter present today is 18 Linda Baker of the firm Nell McCallum & 19 Associates. 20 We are here today to take the audio 21 and video deposition of the witness, 22 Mr. R. Emmet Kelly; and we're located at 23 the Ramada Airport Inn in St. Louis, 24 Missouri. 25 The date today is May 28th, 1987, and NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21851 5 1 the time is approximately 9:09 a.m. 2 Will Counsel now pi ease state their 3 appearances for the record. 4 MR. LACEY: David Lacey, for the 5 plaintiffs. 6 MR. CRAWFORD: Walter Crawford, for 7 the defendant. 8 THE VIDEOTECHNICIAN: Would the court 9 reporter please swear in the witness. 10 11 12 ******* 13 14 15 . EMMET R. KELLY ,- _M ,D ., 16 having been first duly sworn, testified as follows: 17 18 EXAMINATION 19 20 QUESTIONS BY MR. LACEY: 21 Q Will you state your name for the record, 22 pi ease ? 23 A R. Emmet Kelly, E-m-m-e-t K-e-l-l-y. 24 Q Dr. Kelly, you're the same Dr. Kelly whose 25 deposition we started in my office a couple of weeks NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21852 6 1 ago?` 2 A ' That is correct. 3 Q And we're here today in St. Louis to complete 4 that deposition. Correct? 5 A Correct. 6 Q Okay. You understand you are still under oath, 7 exactly the same way as you were when you were in my 8 office i Houston to testify about this case. 9 A Yes. 10 Q Okay. 11 I want to try to complete some matters with you 12 by way of examination that we did not get a chance to 13 complete when we started your deposition in Houston. 14 The first topic I want to discuss with you is 15 the issue of contamination of PCB products manufactured 16 by Monsanto. And let me start by first asking you if 17 you understand what I mean by "contamination." 18 A No. Would you explain it? 19 Q Yeah, I'll try to dothat, then. 20 The way that Monsanto designed its PCB 21 production, it was not designed to have in it products, 22 other than PCBs that were -- when it -- the product was 23 finished, was it? 24 A Well, with the exception that in industrial 25 chemicals, one rarely gets 100 percent purity. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021853 7 1 -Cf' I understand. But the design was to have PCBs, 2 and not a mixture of PCBs plus other chemicals like 3 furans or naphthalenes or anything like that. Isn't 4 that correct? 5 A That is correct. 6 Q And then when we talkabout contaminants, what 7 I'm talking about is the chemicals that one would find 8 in Monsanto's PCBs that were not PCBs. You understand 9 what I mean by "contaminants"? 10 A Yes. 11 Q And another way to put that is that the 12 contaminants are the products that would be found in the 13 PCBs that were not part of what Monsanto intended to 14 produce or designed to produce. Do you understand that? 15 . MR. CRAWFORD; Well, be -- okay. 16 Be sure you understand what he's talking 17 ' about about the des- -- design. Were you 18 involved in the design of the product? 19 THE WITNESS: No, I was not. 20 _ MR. CRAWFORD: All right. 21 BY MR. LACEY: 22 Q My question - 23 A Would you repeat the question? 24 A Yes. Very clearly, did Monsanto design its 25 PCBs products to contain contaminants in them like NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021854 8 1 dibe'nzof urans and other similar chemicals? 2 A No. 3 Q Okay . And when we 4 then t we 11 re talking about a 5 the PCBS but wasn't part of 6 i t. You understand that? 7 A Yes? that may be i 8 Q Okay ; may be in i t 9 Now, with regard t> 10 chem i<cal3 tha t we f ind or m. 11 awar e of any chemicals th at 12 PCBs which were not -- as actually produced -- which 13 were not designed to be there? 14 MR. CRAWFORD: During what period of 15 . . time? 16 MR. LACEY: During any period of time 17 that Monsanto produced PCBs. 18 MR. CRAWFORD: Well, that's a pretty 19 broad question, David. I think you ought 20 , to limit it. I'm going to object to it. 21 BY MR. LACEY: 22 Q Well, let's start, then. 23 Are you aware of any contaminants -- that is, 24 chemicals that were not designed to be in Monsanto's 25 PCBs -- that were in them in the 1930's? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21855 9 1 "A" No 2 Q Are you aware of any contaminants -- that is, 3 chemicals that were not designed to be in Monsanto's 4 PCBs -- that were in Monsanto's PCBs in the 19401s? 5 MR. CRAWFORD: We didn't manufacture 6 the chemical in the 130'sf I don't 7 believe, did we? 8 MR. LACEY: Well - 9 MR. CRAWFORD: The late '30's? 10 MR. LACEY: Actually, you bought 11 Swann Chemical Company in 1935. 12 MR. CRAWFORD: All right. 13 MR. LACEY: It became a part of 14 Monsanto, and I -- I don't know the effect 15 . of your buying that company and assuming 16 its 1iabilities and its assets. I don't 17 - know what that is; whether that means it's 18 Monsanto or not. 19 But you certainly manufactured them 20 , from 1935 forward under the name Monsanto. 21 MR. CRAWFORD: From '35 is when ' 22 you're talking about? 23 MR. LACEY: No, I'm talking about at 24 any time during the 193 0 ' s, whether it's 25 Swann or whether it's before Swann was NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21856 10 1 - ' acquired by Monsanto. 2 MR. CRAWFORD: Well, let's stick with 3 Monsanto, since that's what you 1 re talking 4 about. 5 BY MR. LACEYs 6 Q Well, let me -- let me make it very clear. 7 Are you aware of any contaminants in materials 8 produced -- PCB materials produced by Monsanto or any 9 company that it acquired, whose plant it acquired, 10 during the 193 01s? 11 A Yes. I -- yes. 12 Q What contaminants are you aware of in PCBs that 13 were produced by Monsanto or its predecessor in the 14 1930's? 15 A .In the 1930's, there was a contaminant that was 16 not discovered when Swann Chemical manufactured PCBs 17 with an ,off-spec benzene; and they had different color, 18 and they had different specifications that I understood 19 was the cause for their chloracne at the time. 20 Q So there was a problem with PCBs manufactured 21 in the 193 0 ' s, at least by Swann, with contaminants in 22 i t. Correct? 23 A Well, I cannot say, because I do not know what 24 any of the details of that particular episode were. 25 Q Well, is it your understanding that there was a NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021857 11 1 problem with PCBs produced by Swann Chemical Company in 2 1930's that -- 3 A I don't -4 Q -- resulted from contaminants in the PCBs? 5 A I don't know what they were producing. 6 Q I see. Okay. So you do not know whether or 7 not PCBs produced by Swann Chemical company or Monsanto, 8 which later acquired Swann, had any problems with 9 contaminants in them in the 1930's. Is that correct? 10 A I cannot speak for Swann. I can only speak for 11 the time when I came with Monsanto. And from 1936 to 12 1939, inclusive, I do not know of any problems with 13 contaminant s. 14 Q Fine. Now, during the 1940's, are you familiar 15 with any.problems with Monsanto's PCBs that involved 16 contaminants? And by that, I mean chemicals that were 17 in the PCBs produced by Monsanto that were not designed 18 to be there. 19 A Not that I know of. 20 Q Okay. Now, in the 1950's, are you aware of any 21 problem with contaminants in the PCBs produced by 22 Monsanto? And, again, by that, I mean chemicals that 23 were not designed by Monsanto to be in its PCBs. 24 A No. 25 Q During the 1960 ' s, are you aware of any problem NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021858 12 1 with'contamination of Monsanto's PCB production? And by 2 that, I mean the presence of chemicals in Monsanto1s 3 PCBs that were not designed to be there. 4 A Well, you have made two statements there, 5 Mr. Lacey. One is the problem, and one is the 6 premise -- the presence. Do you mind breaking that 7 down? 8 Q Are you aware during the 1960's of any 9 chemicals that were contaminants in PCBs made by 10 Monsanto? And by that, I mean chemicals in the PCBs 11 manufactured by Monsanto that were not designed to be 12 there. 13 A Of my own knowledge, I do not know. There may 14 have. I may have been told about it, but I have no 15 recollection at the present time. 16 Q I see. Up to the 1960's, you r testimony is 17 you're relatively certain there was no contamination; 18 but beginning in the '60's, you're not sure? 19 A No, I didn't say there was no contamination. 20 Q All right. 21 A I said I was not aware of any contamination, 22 Q I see. So there may have bee n contamination of 23 Monsanto's PCB products in the 1930's? 24 MR. CRAWFORD: Well , he can't tes- -25 David, I think he -- IMELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21859 13 1 ~ ~' MR. LACEY: I want to make clear 2 whether his answer is there was none, or 3 there may have been some and he didn't 4 know about it. I need to know which - 5 which his answer is. 6 A Well, there may or may not have been. 7 BY MR. LACEY: 8 Q Okay. You j ust don't know. 9 A I don't know. 10 Q Okay. And that answer would -- would apply 11 from the '30's all the way through the '60's? 12 A With the exception that sometime in the late 13 '60's or early '70's -- I'm not sure of the time 14 frame -- there may have been analyses on Monsanto 15 products.for. specific contaminations. 16 Q Well, let me ask you about the 1970's. During 17 the 197.0's, are you aware whether or not Monsanto's PCBs 18 contained any chemicals in them that were not designed 19 to be there; that is, contaminants? 20 A I cannot be sure of -- of that particular -- of 21 an answer to that statement, Mr. Lacey, because I have a 22 recollection of sometime that Monsanto had analyses of 23 PCBs that showed the absence of specific contaminants. 24 So I can't answer any more -- and I don't know when I 25 received that knowledge. I just do not remember it. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021860 14 1 ' Well, I guess my question to you is: Did you 2 ever receive any information as the Medical Director of 3 Monsanto that there were any contaminants in Monsanto's 4 PCBs? 5 A I may, and I may have not. I can't answer 6 that. 7 Q You just don't recall? 8 A I do not recall. 9 Q Okay. 10 Can we agree that contaminants in a chemical 11 at -- even at very low levels, depending on what the 12 contaminant is, may have an important impact on the 13 toxicology of the chemical? 14 A Well, I won't agree unless you tell me: A, what 15 the contaminant is; B, how much is in there. 16 Q Well, I'm trying to find out if generally a 17 contaminant in a chemical -- I'm not talking about any 18 particular chemical or any particular level, but a 19 relatively low 1evel; let's say one part per million of 20 a contaminant -- may, depending on the hazards of that 21 contaminant, create toxicological problems. 22 A It may owe may not. 23 Q Okay. Depends on the chemical? 24 A Depends on a number of factors. 25 Q One of which is the dangerousness of the NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021861 15 1 contamination chemical? 2 A And how much is there. 3 Q Exactly. That's my question. Contaminants, 4 depending upon what the chemical is and the 5 concentration, may create a problem? 6 A Well, yes, and they may not. 7 Q Okay. 8 A They may be in such a percentage that it's 9 insignificant. 10 Q Okay. Now, are you aware of the fact that one 11 of the potential contaminants in PCBs are dibenzofurans? 12 A One of the potential -13 Q Yes . 14 A -- so it may be there. Yes. 15 Q .Okay. And, in fact, are you aware of the fact 16 that Monsanto's PCBs contained dibenzofurans in them as 17 a contaminant? 18 A At what particular period of time are you 19 stating this? 20 Q Well, for example, I believe Dr. Kaley has 21 testified as an expert on behalf of Monsanto that he 22 measured those chemicals in Monsanto's PCBs in the 23 1970's. 24 A Wei1, when in the 197 0's? 25 Q Well, he didn't know exactly what the NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021862 16 1 proa'uction dates were for what he measured. 2 MR. CRAWFORD: Well, Mr. Lacey, he 3 left in 1974 the company, so I think you 4 need to keep that in mind when you're 5 asking him questions - 6 MR. LACEY: Yeah. 7 MR. CRAWFORD: -- about what he 8 knows. 9 MR. LACEY: Yeah. 10 BY MR. LACEY: 11 Q My -- my question really is whether or not you 12 knew that dibenzofurans were a contaminant in PCBs 13 produced by Monsanto. 14 A Before 1974 or after 1974? Any time? 15 Q Either time. At any time. 16 A I have seen reports that showed that they 17 looked for dibenzofurans,' and they did not discover them 18 at the level of sensitivity that was present at that 19 time. That 1evel of sensitivity was 1 to 5 parts per 20 million. 21 And later the sensitivity methods became much 22 more sophisticated, and they may have had some found - 23 some findings of dibenzofurans 1ater, after I left. I'm 24 not sure. 25 Q i see. Would it be of any concern to you if NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21863 17 1 di benz'of urans were found in PCBs as a contaminant at a 2 relatively low level in the parts-per-million 3 concentration range? 4 A Well, af ter all, we had toxicity testing on 5 that product, and that product was made the same way. 6 And if it had dibenzofurans in 197 4, it had 7 dibenzofurans in 1964, and 1954 when we ran the 8 toxicity. 9 So you cannot distinguish or separate any 10 toxicity of the dibenzofurans from the entire PCB 11 product. 12 Q Okay. So if I understand your testimony 13 correctly, if dibenzofurans were measured in PCBs that 14 Monsanto produced in 1976, since they were manufactured 15 the same.way in 1976 that they were in 1966 and the way 16 they were in 1956, we can reasonably conclude, then, 17 that dibenzofurans would have been present in PCBs 18 manuf actured in the '60's and the '50's as a 19 contaminant. Correct? 20 A No, that isn't what I said at all. I said I 21 was not concerned about the toxicity that could be added 22 by any possible presence of dibenzofurans, because we 23 had tested the whole ball of wax of the PCB, which 24 included any potential dibenzofurans if they were in 25 there or not in there. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021864 18 1 XQ"' Well, let me -- let me make sure I under s tand. 2 Let's try to analyze this thing 1ogically. Uni ess 3 dibenzofurans were in every batch -- and PCBs were made 4 by batch, were they not? 5 A Yes. 6 Q Okay. Uni ess dibenzofurans were in every batch 7 of Monsanto PCBs that it made at a relatively consistent 8 level, the fact that you tested one particular batch of 9 PCBs wouldn't necessarily mean you had tested a batch of 10 PCBs that had dibenzofurans in it, would it? 11 MR. CRAWFORD: I don't understand the 12 question, Mr. Lacey. 13 BY MR. LACEY: 14 Q Let me make it real clear, if Mr.Crawford's 15 got a problem with it. 16 You told me that one reason you weren't 17 concerned about dibenzofuran contamination was because 18 you had tested PCBs - 19 A That wasn't what I said. I said I was not 20 concerned about the toxicity of the PCB that contained 21 any possible dibenzofurans, because we had tested -- 22 Q Okay. 23 A -- the PCBs. 24 Q And the only way that youwould know that the 25 furan contamination in PCBs was unimportant would be if NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21865 19 1 the"batches of PCBs that you had tested had, in fact, 2 had the dibenzofuran contamination in them. Isn't that 3 correct? 4 A I didn't use the word "unimportant." I don't 5 say that the presence or absence of dibenzofurans is 6 unimportant in PCBs. I said that whatever additive 7 toxicity dibenzofurans might have contributed to the 8 PCBs, that was included in the gross toxicity that we 9 obtained from the testing of the entire product. 10 Q And that would only be true if the batches that 11 you tested actually had those dibenzofurans in them as 12 contaminants. Correct? 13 A No, because I do not know if there is any 14 evidence that shows that whatever amount of 15 dibenzofurans in the PCBs of different batches were 16 significant, as far as the toxicity is concerned. 17 Q ' Well, let me stop and ask the question. 18 You -- you tested certain batches of PCBs. 19 A Yes. 20 Q And those batches of PCBs that you tested, you 21 do not know if they were contaminated with dibenzofurans 22 or not. Correct? 23 MR. CRAWFORD: Mr. Lacey, I think you 24 ought to show him whatever test you're 25 talking about. I mean - NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21866 20 1 '' MR. LACEY; He's the one who's 2 talking about his testing. 3 MR. CRAWFORD: Well, he didn't say he 4 personally tested them. 5 BY MR. LACEY: 6 Q Now, let's make it real cl ear. You arranged 7 through your department for the testing of certain 8 PCBs -- 9 A Would you mind lowering your voice a little 10 bit, please? 11 Q . Certainly. I'll try to do that. 12 You arranged through your Medical Department 13 for the testing of certain batches of PCBs with regard 14 to their toxicity, didn't you? 15 A Yes. 16 Q And you do not know whether those batches of 17 PCBs that you had tested were contaminated with 18 dibenzofurans, do you? 19 A No. 20 Q It is possible, as far as you know, that those 21 batches of PCBs that you tested did not have any 22 disdibenzofuran contamination, is it not? 23 A Well, anything is possible. But I think the 24 possibility of one batch of PCBs being different from 25 other batches that are manufactured under the same NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021867 21 1 man3Eacturing conditions is extremely remote. 2 Q Okay. So, while you believe it is possible 3 that Monsanto may have produced batches of PCBs that did 4 not very dibenzofuran contamination in them, the more 5 reasonable conclusion is that every batch would have had 6 the dibenzofuran contamination in it. Correct? 7 A Would you repeat it, please? 8 Q Yes. You j ust told me that anything is 9 possible. Right? 10 A That1s correct. 11 Q So that it is possible that Monsanto made some 12 batches of PCBs that were not contaminated with 13 dibenzofurans. Correct? 14 A Well, if anything is possible, that's possible, 15 too. . 16 Q Okay. But what I understood you also to tell 17 me is that it's not reasonable to believe that some 18 batches of PCBs manufactured by Monsanto would have been 19 free of dibenzofuran contamination if other batches were 20 contaminated with dibenzof urans. Correct? 21 MR. CRAWFORDs I don't believe he 22 said that, Mr. Lacey 23 BY MR. LACEY: 24 Q You can answer the question, 25 A What is the question again? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21868 22 1 ` The question is; I understood what you said 2 to -- to be that it's not reasonable to believe that 3 certain batches of PCBs made by Monsanto would have been 4 free from dibenzofuran contamination if other batches of 5 the PCBs made by Monsanto in exactly the same way had 6 dibenzofuran contamination. 7 THE WITNESS: Would you read my 8 answer back to that previous question, 9 pi ease? 10 11 (The following answer was read back 12 by the Reporter: 13 "ANSWER: Well, if anything is 14 possible, that's possible, too.") 15 16 THE WITNESS: Well, it's the -- I 17 , think it's before that. 18 THE REPORTER: Before that? 19 20 (The following answer was read back 21 by the Reporter: 22 "ANSWER: Well, anything is possible. 23 But I think the possibility of one batch 24 of PCBs being different from other batches 25 that are manufactured under the same NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021869 23 1 -- ' manufacturing conditions is extremely 2 remote.") 3 4 A Yes, I -- I agree with that. 5 BY MR. LACEY: 6 Q Okay. So you believe, then, it's -- it is 7 reasonable to conclude that almost every batch of PCBs 8 made by Monsanto were contaminated with dibenzofurans. 9 Correct? 10 MR. CRAWFORD: He didn't testify to 11 that. 12 MR. LACEY: Well, that's the question 13 I'm asking, and I want to get his answer. 14 I agree; he hasn't answered that question, 15 . . but I want -- 16 MR. CRAWFORD: Well, he made a 17 , statement. You might ask him the 18 question. 19 MR. LACEY: Yes. 20 BY MR. LACEY: 21 Q Is it your opinion that almost every batch of 22 PCBs made by Monsanto was contaminated with 23 dibenzofurans? 24 A I have no knowledge of -- as far as that is 25 concerned. I j ust do not know. I do not know what the NELL MC CALLUM & ASSOCIATES, INC, HARTOLDMON0021870 24 1 sensitivity of any method was; if it was one part per 2 billion, one part per trill ion. I j ust cannot answer 3 tha t. 4 Q So your testimony is you do not have any way of 5 knowing whe ther every batch was contaminated. Correct? 6 A Th at's correct. 7 Q An d, therefore, you have no way of knowing 8 whether the batches of PCB that you had tested for 9 toxicity co ntained dibenzofuran contamination. Correct? 10 MR. CRAWFORD: Mr. Lacey, that's a 11 broad question. You haven11 1imited it as 12 to time. You -- you -- you're opening it 13 up -- what -- what are you talking about? 14 MR. LACEY: At any time. 15 MR. CRAWFORD: Well, let's limit it 16 to a specific time. 17 BY MR. LACEY: 18 Q At what points in time did you have your PCBs 19 tested for toxicity? 20 A From 1938 to 1970. 21 Q Fine. Now, at any point in time, do you know 22 of any batch that you had -- well, strike that. 23 From 1938 to 1970, you didn't have every batch 24 of PCBs tested, did you? 25 A No, sir. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21871 25 1 r-Q~ ' Okay. Out of the -- ou t of the total 2 production that went on from 1 93 8 to 197 0, approxi 3 what percent of the PCBs produ ce d by Monsanto were 4 actually tested for toxicity ? 5 A I don't know. 6 Q A small percent ? 7 A Yes, a small percent. 8 Q Certainly less than 1 0 pe r ce nt? 9 A Certainly less than 1 percent. 10 Q Okay. So between 1938 and 1970, less than 1 11 percent of the total amount of PCBs produced by Monsanto 12 were tested for their toxicity? 13 A Yes, sir. 14 Q Okay. Now, of those PCBs that were tested for 15 toxicity.be tween 1938 and 1 970 , you have no way of 16 knowing whether any of the batches selected for testing 17 contained any disdibenzofuran contamination. Is that 18 correct? 19 A Yes, sir. 20 Q Okay. 21 A If not -22 Q And therefore - 23 A If not tested. 24 Q And, therefore, you do know no whether it had 25 it or not? ' NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021872 26 1 --A" ' I do not know for a certainty. I -- but when 2 batches that were tested that were manufactured in the 3 same way showed the presence of small amounts of 4 dibenzofuran, it is reasonable for me to assurne that 5 that was present in the earlier batches that we tested. 6 Q Okay. So your assumption is that the batches 7 of PCBs that you did test from 1938 to 1970 were 8 contaminated with dibenz of urans. Correct? 9 A I would say that the batches that we tested 10 were representative of the batches that were analyzed 11 and checked for dibenzofurans. But I have to say that I 12 do not know whether dibenzofurans were found up to 1974 13 by methods that we -- that were sensitive enough to 14 analyze. 15 Q .Yeah. That -- that's really not my question. 16 A All right. Would you repeat the question? 17 Q , Yeah. My question is: You do not know whether 18 or not the PCBs that were tested from 1938 to 1970 were 19 contaminated with dibenzofurans. Correct? 20 MR. CRAWFORD: Well, I think he 21 stated, Mr. Lacey, that the testing was 22 not sensitive enough to pick up any -- 23 MR. LACEY: That - 24 MR. CRAW FORD: -- contaminants. 25 MR. LACEY: That -- I'm -- let' s make NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021873 27 1 ~` it very clear. 2 BY MR. LACEY: 3 Q I'm talking about the toxicological testing you 4 had done of PCBs. 5 A Yes, sir. 6 Q And what I'm trying to find out is whether you 7 know one way or the other whether those batches of PCBs 8 that you had toxicological tests done on were 9 contaminated with PCBs or not. 10 And I don't really care whether you -- you -- 11 they were sensitive methods or not sensitive methods. I 12 just want to know whether you knew they were or were not 13 contaminated. 14 MR. CRAWFORD: You mean, does he know 15 now, or does -- did he know then? . 16 MR. LACEY: Either one. 17 MR. CRAWFORD: Well - 18 MR. LACEY: Has he -- has he ever 19 known at any point - 20 BY MR. LACEY: 21 Q Have you ever known at any point in time 22 whether or not the batches of PCBs you had tested for 23 toxicology from 1938 to 1970 were contaminated with 24 dibenz of urans ? 25 A We did not know for a -- for a scientific NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021874 28 1 certainty; but we did know that if a product is 2 manuf actur ed the same way and the same -- to the same 3 specifications, it is representative -- one year's 4 production is quite representative of another. 5 So that after the 170's, when we were able to 6 analyze for PCBs -- for dibenzofurans in PCBs and found 7 this minute amount, it was -- seemed to me to be a 8 logical assumption, although not a scientific certainty, 9 that those figures were representative of the ones - 10 the batches that we used for testing. 11 Q Okay. And I take it, then, that it is your 12 assumption that the PCBs that were tested for 13 toxicological effects from 1938 to 1970 were 14 contaminated with dibenzofurans at about the same levels 15 that were measured in the 1970's. 16 MR. CRAWFORD: Well, don't assume 17 ^ anything. Doctor. You can - 18 MR. LACEY: No, I'm asking -- he has 19 given an assumption. I want to make sure 20 I understand it. 21 BY MR. LACEY: 22 Q Is that the assumption that you make? 23 A Let's repeat the assumption. 24 Q Let me ask the question very clearly. 25 Is it your assumption, Doctor, that the PCBs NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021875 29 1 that were tested for toxicology between 1938 and 1970 2 were contaminated with the -- with about the same amount 3 of dibenzofuran contamination as was measured in 4 Monsanto's PCB production in the 1970's? 5 A Well, it's an assumption. I have no -- no 6 scientific proof that it was. 7 Q But that is your assumption? 8 A That's my assumption. 9 Q Okay. And because of that assumption, you 10 believe that any impact of dibenzofuran contamination on 11 ! the toxicology of PCBs was taken into account in the 12 toxicological testing of PCBs done between 1938 and 13 1970? 14 A That's correct. 15 . MR. CRAWFORD: I object to the form 16 of the question. 17 , MR. LACEY: Fine. 18 BY MR. LACEY: 19 Q Now, do you know what the factors are that 20 might cause the amount of dibenzofuran contamination to 21 vary between batches of PCBs that were produced? 22 A No, sir. 23 Q Okay. Do you know what factors contribute to 24 the existence of dibenzofuran contamination in PCBs 25 manufactured by Monsanto? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021876 30 1 r-A ' At any time in their 1 ife history? 2 Q Yes. Yes. 3 A Yes. Pyrolysis -4 Q What is pyrolysis? 5 A Fire. 6 Q Okay. And how does fire contribute to 7 dibenzofuran contamination in Monsanto1s production of 8 PCBs? 9 A It does not contribute in the production of 10 Monsanto's PCBs. 11 Q Okay. Well, letme make my question very 12 cl ear. 13 I'm trying to find out what factors, if any, 14 that you know about that contribute to or affect the 15 existence of dibenzofuran contamination in PCBs produced 16 by Monsanto. 17 A x After it leaves Monsanto's plant? 18 Q No. I'm talkingany thatMonsanto - 19 A Any time -- 20 Q -- produces. 21 A You mean while it pro- -- is being produced? 22 Q Yes. Let me -- let me make my question very 23 clear. 24 Again, Monsanto does not seek to produce PCBs 25 with dibenzofurans in it, does it? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21877 31 1 " ' MR. CRAWFORDs Object to the form the 2 quest!on. 3 A Does it? No, it does not. 4 BY MR. LACEY: 5 Q Okay. What Monsanto is seeking to produce is 6 PCBs and only PCBs. Correct? 7 MR. CRAWFORD: Object to the form of 8 the question. 9 A What Monsanto is seeking to produce is PCBs as 10 pure as they can make it. 11 BY MR. LACEY: 12 Q Okay. And that does not include as a part of 13 the plan to make some dibenzofurans on the side, does 14 it? 15 A Not as part of the plan to manufacture PCBs, 16 no. 17 Q , Now, the measurements that were made in the 18 1970's showed that PCBs made by Monsanto, in fact, 19 contained some dibenz of urans. Correct? 20 A You'll have to show me the report. 21 Q I see. You don't know? 22 A I want to be positive. 23 Q I see. With regard to dibenzofuran 24 contamination, let me show you a Document 25363, written 25 by David Wood, Marketing Manager for Dielectrics, to a NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21878 32 1 Robert' A. Stenger with General Electric, dated October 2 3 0 , 1 97 5, listing chlorinated dibenzof ur ans as one of 3 the contaminants in PCBs (tendering). 4 A (Reviews document.) 5 Q Do you see that? 6 A May -- may I finish reading it? 7 Q Certainly. 8 A (Reviews document.) 9 Yes, I see it. This is a letter dated October 10 the 3 0th, 197 5, which is approximately a year af ter I 11 left Monsanto. 12 Q Yes. My question to you now is; We know that 13 PCBs manufactured by Monsanto contained some 14 dibenzofurans in them, don't we? 15 A Well, they say under five-tenths parts per 16 mil1 ion. 17 Q , But they were identified -- 18 A Just a moment. 19 I do not know the sensitivity of the method. I 20 don't know if five-tenths of a part per million is the 21 lower 1imit of their sensitivity. And if they say under 22 five-tenths of a part per million, that may be as -- as 23 low as -- as 1ow as they can identify it. So I can't 24 answer that question. 25 Q You don11 know? You -- that letter doesn't NELL MC CALLUM 81 ASSOCIATES, INC. HARTOLDMONOQ21879 33 1 tellT-Tfhat you there were contaminants in Monsanto's 2 PCBs, including dibenzofurans? 3 A It tells me, but I do not know what the 4 sensitivity of the method is. 5 If the me thod is sensitive to only f ive-tenths 6 of a part per mill ion, and this is under five-tenths of 7 a part per million, obviously it doesn't help me. 8 If the method is one-tenth of a part per 9 million -10 Q I see. 11 A -- it -- it would help me (tendering). 12 Q Mr. Wood says -- and maybe I'm having trouble 13 reading the English language -- "Identifiable materials 14 present in our biphenyl contributes to the presence in 15 the polychlorinated biphenyl mixture of the following: 16 "Chlorinated naphthalene, chlorinated methyl 17 naphthalene, chlorinated methyl biphenyl, chlorinated 18 dibenzofurans, " and "Unidentified." 19 Now, you have trouble understanding that 20 Mr. Wood is, saying that the materials that he listed 21 there are present in the PCBs produced by Monsanto? 22 A Well, he is saying that chlorinated 23 dibenzofurans are present in under five-tenths of a part 24 per million. 25 Just a moment. NELL MC CALLUM & ASSOCIATES, INC, HARTOLDMON0021880 34 1 I don't know whether that means one part per 2 bill ion, one part per trillion, or -- just a moment, 3 pi ease, Mr. Lacey. May I finish? 4 And I do not know the sensitivity of the 5 method. Now, if he cannot analyze for under five-tenths 6 of a par t per mill ion, that invalidates that statement. 7 Q So Mr. Wood may be inaccurate in reporting that 8 dibenzof uran are present in Monsanto's PCBs? 9 MR. CRAWFORD: Doctor -- Mr. Lacey, I 10 don't want you to ask this witness to 11 speculate about something somebody else 12 did after he left Monsanto, and I object 13 to the question. I think it's improper. 14 MR. LACEY: Fine. 15 BY MR. LACEY: 16 Q That -- that document doesn11t permit you to 17 reach the con clusion that there were dibenzofurans as 18 contaminants in Monsa nt o' s PCBs . Is that your 19 testimony? 20 A That's my testimony. 21 Q Okay, sir. Fine. 22 And as I understand it, you are not familiar, 23 then -- sufficiently familiar with Monsanto's 24 dibenzofuran contamination problems, nor does this 25 document help you refresh your recollection that NELL MC CALLUM & ASSOCIATES, INC, HARTOLDMON0021881 35 1 MonSaTVto's PCBs were contaminated with dibenzofuran. Is 2 that correct? 3 MR. CRAWFORDs I'm going to object to 4 the f orm of the question. 5 THE WITNESS: Yes, there are three 6 questions there. 7 MR. CRAWFORDs Three questions, and 8 you've also made some assumptions in there 9 that are - 10 MR. LACEY: I see. 11 MR. CRAWFORD: -- not supported by 12 anything in this record -- 13 BY MR. LACEY: 14 Q Let me ask you -15 . MR. CRAWFORD: -- and I think -- 16 MR. LACEY: Well, I think they're 17 well-supported by the record. I think 18 they're, in fact, well-supported by 19 Monsanto's Answers to Interrogatories, the 20 testimonies of Dr. Richard, Dr. Munch, 21 Mr. Papageorge. But that's fine. We'll 22 let the Jury decide that one. 23 MR. CRAWFORD: Well, let's stick with 24 the record on this witness, Mr. Lacey. 25 MR. LACEY: Well, it seems that this' NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021882 36 1 witness has a troublesome time assuming 2 the testimony given by other people. 3 BY MR. LACEY 4 Q Now, let me ask you a question - 5 MR. CRAWFORD: I'm sure he can 6 testify on his own behalf with -- abo ut 7 what he knows, not what somebody else - 8 MR. LACEY: Well, actually, he's here 9 as a 30(b)(6) corporate representative, as 10 well. 11 MR. CRAWFORD: For some matters. 12 BY MR. LACEY: 13 Q Now, are you familiar with the relative 14 toxicity of polychlorinated biphenyls versus the 15 relative.toxicity of chlorinated dibenzofurans? 16 A Yes. 17 Q , Chlorinated dibenzofurans are a considerably 18 more toxic material, in your opinion, than PCBs, are 19 they not? 20 A Yes. 21 Q Okay. Now, areyou familiar with the toxicity 22 of chlorinated dibenzodioxins? 23 A Yes. 24 Q And in your opinion, the toxicity of 25 chlorinated dibenzodioxins is considerably greater than NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021883 37 1 the-to'xicity of chlorinated biphenyl. Correct? 2 A Yes. 3 Q Okay. In fact, chemicals like dioxin have 4 systemic effects on human health that can be present at 5 parts as 1ow as 200 parts per billion, do they not? 6 MR. CRAWFORD: Object to the form of 7 the question. 8 A 200 parts per billion given how often, and what 9 effects, Mr. -- Mr. Lacey? 10 BY MR. LACEY: 11 Q Without regard to the frequency, they can 12 produce systemic effects at 200 parts per billion, can't 13 they? 14 A One dose of 200 parts per billion? 15 Q .Whether it's one or whether it's chronic, my 16 question to you is: One cannot be exposed to dioxins at 17 the level of 200 parts per billion and assume there will 18 be no effect, can he? 19 MR. CRAWFORD: Object to the form of 20 the question. 21 A I'm not sure I have seen the evidence for that. 22 BY MR. LACEY: 23 Q I see . 24 Do you remember giving a deposition in the case 25 of James N. Adkins, Administrator of the Estate of Ralph NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021884 38 1 E, Adkins versus Monsanto Corporation in a case pending 2 in the United States District Court for the Southern 3 District of West Virginia at Charleston on March 2nd, 4 1984? 5 A May I see it? 6 Q Certainly (tendering) 7 A (Reviews document.) 8 Yes, sir. I remember doing it. I don't 9 remember the details of the deposition - 10 Q Sur e. 11 A -- the details of the case. 12 MR. LACEY: May I see the deposition, 13 Walter ? 14 MR. CRAWFORD: May I look at it? 15 MR. LACEY: Feel free. 16 MR. CRAWFORD: (Reviews document.) 17 Mr. Lacey, I11 d like to take about a 18 five-minute break and as k him about this 19 deposition, since you've dropped i t on us 20 here. 21 MR. LACEY: Well, I think I'm 22 entitled to continue with my examination. 23 MR. CRAWFORD: Oh, I think you are. 24 There's no question about it. 25 MR. LACEY: Well, I don't see why we NELL MC CALLUM & ASSOCIATES, INC, HARTOLDMONOQ21885 39 1 need to take a break at this time. 2 MR. CRAWFORD; Well, I'd like to talk 3 with the doctor j ust briefly about it. 4 MR. LACEY: Well, do you mind if I 5 ask him my questions from that deposition 6 and impeach his testimony before you show 7 it to him and try to clean it all up? 8 MR. CRAWFORD: I'm not going to try 9 to clean anything up, but I think I need 10 to find out when he gave his deposition 11 and - 12 MR. LACEY; The date's on the front 13 of it. 14 MR. CRAWFORD; Well, I know, but I 15 want to ask him something about it just 16 very briefly. We'll be back in about five 17 minutes. 18 MR. LACEY: I see. 19 20 (Recess) 21 22 THE VIDEOTECHNICIAN: Okay. We've 23 been off the record for a short break. 24 We're now back on the record, and the time 25 is 9;52 am. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021886 40 1 BY MR.' LACEY: 2 Q You recall giving the deposition in the Adkins 3 ca se ? 4 A Yes 5 Q In that deposition and in that case, one of the 6 issues present there was the presence of dioxins; and 7 you were asked about matters that related to the 8 concentrations at which they could produce health 9 probiems. Is that correct? 10 MR. CRAWFORD: Mr. Lacey, I'm going 11 to obj ect to any testimony that this 12 witness gives or any questions that you 13 may have involving dioxins, since they're 14 not involved in this lawsuit and you 15 . haven't shown that they're involved in any 16 PCB products. 17 , MR. LACEY: That's fine. 18 MR. CRAWFORD: And I'm going to 19 obj ect to it on the record. 20 BY MR. LACEY: 21 Q Okay. Now, my -- my question to you is: In 22 that case, the Adkins case, there were issues about 23 dioxins, were there not? 24 A Yes. 25 Q And the levels at which they could cause health NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021887 41 1 effect's. Correct? 2 A That may be. 3 Q Okay. And in that case, you were shown a 4 letter that you wrote, dated March 17th, 1965; and I 5 want to direct your attention to Page 54A of your 6 deposition, where you noted in that letter that you 7 wrote in 1975 that trace amounts of dioxin at the 1evel 8 of 200 parts per billion had caused chloracne 9 (tendering). Is that correct? 10 MR. CRAWFORD; Mr. Lacey, I'd suggest 11 that you get his 1etter to him so he can 12 see it in context. You're asking him to 13 comment about a deposition which he 14 apparently gave several years ago, and I 15 . don't think it's fair to require the 16 witness to try to recall some letter 17 , that -- that's not attached and you 18 haven't produced. 19 MR. LACEY; Well, as you know, 20 Monsanto hasn't produced that letter to 21 me. I have the benefit of the deposition, 22 but I don't have the benefit of the 23 letter. If you can produce it f or us here 24 today -- I know we're in St. Louis, and 25 you've got your stuff on computer -- I'11 NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21888 42 1 be happy to show it to him. 2 MR. CRAWFORD: Well -- 3 MR. LACEY: But I don't have it. I'm 4 sorry. Monsanto hasn't give me the 5 pleasure of being able to look at it. 6 MR. CRAWFORD: Well, maybe that's 7 because you haven't requested it. 8 MR. LACEY: Oh, I think I've 9 requested it. 10 A What was the question? 11 BY MR. LACEY: 12 Q Isn't it -- your testimony in that deposition 13 was that dioxin at a level of 200 parts per billion 14 could cause chloracne in rabbits. Is that correct? 15 A That's what I said, according to Dow. That was 16 according to Dow's work. 17 Q , Okay. And so there is scientific evidence 18 establishing that dioxins at a level of 200 parts per 19 billion can cause chloracne. Correct? 20 A Yes. It does not say how often this was 21 applied to the rabbits; whether it's one time, 40 22 times -23 Q I understand. 24 A Yes. 25 Q But whatever the frequency of application is, NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021889 43 1 dioxin' at the level of 200 parts per billion can cause 2 chi oracne, whatever the test conditions were that Dow 3 did? 4 A According to Dow, yes. 5 MR. CRAWFORD: Mr. Lacey, I'm going 6 to obj ect to the question. We're 7 talking -- what are we talking about; 8 rabbits, or humans, or what? You're 9 skipping around. Are you talking about 10 this testimony? 11 MR. LACEY: I'm talking about that 12 testimony right there (indieating). 13 MR. CRAWFORD: About rabbits? 14 MR. LACEY: Yeah. 15 BY MR. LACEY: 16 Q Do you have any problem? Isn't that what 17 toxicological testing is normally done on; animals? 18 A Yes. 19 Q Okay. 20 A But we're talking here -- I'm quoting Dow's 21 work on -- that they stated 20 0 parts per billion have 22 caused chloracne in rabbits. Unless I had the 23 opportunity to read the entire Dow report, at this time 24 I could not comment any further on it than that. 25 Q Okay. Well, let's -- let's j ust try to get a NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021890 44 1 few~h'ings clear. 2 When you do toxicological testing of chemicals, 3 you normally do that with test animals, don't you? 4 A Yes. 5 Q Okay. And it's not unusual to use rabbits as a 6 normal test animal for toxicological testing, is it? 7 A Well, it is. You generally use them to test 8 for skin problems. 9 Q And chloracne is a -- 10 A -- skin problem. 11 Q Okay. So rabbits are just the sort of animal 12 that people use to test for skin problems, isn't it? 13 A Yes, it is. 14 Q Chloracne is a skinproblem, is it not? 15 A .Yes, but there's also quite a bit of discussion 16 as to whether chloracne can be caused in rabbits or not. 17 There's-a good body of investigators that do not believe 18 you can cause chloracne in rabbits. It appears that Dow 19 believes you can. 20 Q Well, not only Dow believes you can; but that 21 their people administered dioxins at the level of 200 22 parts per bill ion, and the animals got chloracne. 23 A Dow said the animals gotchloracne. 24 Q Okay. 25 A I said there is a dispute among investigators NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021891 45 1 as Gcr whether chloracne is caused in animals. 2 Q I see. Okay. Well, if it wasn't chloracne, is 3 there some -- is there something else the investigators 4 want to call it besides chi or acne ? Is -- skin 5 sensitivity? Is that - 6 A It is not skin sensitivity. It could be called 7 folliculitis. It could be called any number of things. 8 Q Okay. And so there's a question whether you 9 should call it chloracne or whether you should call 10 it what's the word? 11 A Folliculitis, f-o-l-l-i-c-u-l-i-t-i-s. 12 Q Okay. Whether it was properly called 13 chloracne, or whether it should have properly been 14 called follicu- -- folliculitis, whatever it was, these 15 rabbits exposed to dioxins at 200 parts per billion 16 showed that effect. Correct? 17 , MR. CRAWFORD: Mr. Lacey, he didn't 18 say that. He said the Dow report, about 19 which they were as king him, indicated 20 that. 21 BY MR. LACEY: 22 Q That's the information that you had. Correct? 23 A What information did I have? 24 Q That the 200 parts per billion exposure to 25 dioxin caused what Dow called chloracne, what maybe NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021892 46 1 corcec'tly should be called folliculitis -- 2 A Foiliculitis. 3 Q -- in rabbits. 4 A Yes; something that they -- they got something, 5 yes. 6 Q Okay. 7 MR. CRAWFORD; Well, on the Dow 8 report. 9 A According to theirreport. 10 BY MR. LACEY; 11 Q Now, that establishes in the way that 12 toxicologists establish it, does it not, that exposure 13 to dioxins at very low levels can have effects. 14 Correct? 15 . MR. CRAWFORD; Object to the form of 16 the question. 17 A , On rabbits? 18 BY MR. LACEY; 19 Q On rabbits. 20 A Yes, at -- at levels of 200 parts per billion. 21 I do not know the frequency of the -- of the exposure, 22 but it did cause effects in rabbits. 23 Q Okay. 24 MR. CRAWFORD; In thatreport. 25 NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021893 47 1 BY MR.' LACEY: 2 Q Would -- would that information cause you as 3 the Medical Director of Monsanto to attempt to ensure 4 that human exposure to dioxins would be limited to less 5 than 200 parts per billion? 6 MR. CRAWFORD: Mr. Lacey, I'm going 7 to object to the question. You haven't 8 limited it in time as to when he was the 9 Medical Director, as to when that report 10 came out; and I think that the question is 11 improper, the way you phrased it. 12 BY MR. LACEY: 13 Q Do you remember when you were Medical Director 14 at Monsanto? 15 A .Ye s. 16 Q Okay. Well, do I need to repeat that in every 17 question for you? 18 A Yes, please. Just give me the years. You 19 don't have to repeat -20 Q I see. 21 A -- when I'm -22 Q I see. 23 A -- when I'm -- you don't have to remind me when 24 I was Medical Director or remind -- I know that. 25 Q Well, I was a little bit confused by NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21894 48 1 Mr."CYawford1s objection. 2 A No; but if you ask me about when I knew 3 something, it would help if you would say, "Did you know 4 this in 1930 , '40, '50, '80 5 Q Well, let's just go at it an entirely diff erent 6 way. 7 You were responsible ultimately for the 8 decision-making process by Monsanto with regard to what 9 safety precautions to take with regard to your own 10 workmen. Correct? 11 A Correct. 12 Q And with what to advise customers to whom you 13 sold products about safety precautions to exercise with 14 Monsanto products? 15 A Correct. 16 Q Okay. Now, if you, as a person in charge of 17 safe handling and a person in charge of giving 18 instructions to others about safe handling, had 19 information that dioxin exposure at 20 0 parts per 20 billion caused this skin condition in rabbits, whatever 21 it's called properly, would that mean that you would 22 want to limit the exposure of humans to dioxin to less 23 than 200 parts per billion? 24 A Again, you have to quantify the exposure. 25 If you are talking about one -- one exposure, a NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021895 49 1 sini"e` exposure, no. If you talked about a single 2 exposure once a month, no. If you talked about repeated 3 exposures every day, I may or may not have, because that 4 is only one part of the -- of the decisi on-making 5 process. 6 The other decision-making process is: What has 7 been the clinical history of the men who have been 8 exposed to a particular product that contains 20 0 parts 9 per billion of dioxin? 10 Remember, now, we're talking about dioxin, 11 which I under stand has nothing to do with PCBs. 12 Q That's your understanding. 13 A Yes. 14 Q Okay. Did Monsanto produce any products that 15 contained dioxin at levels of 200 parts per billion? 16 MR. CRAWFORD: Mr. Lacey, I'm going 17 , to object to that. This case is about 18 PCBs, and not about other products that 19 Monsanto produced in this case, and I'm 20 going to obj ect to it. I think it's 21 improper for you to go into that. 22 MR. LACEY: Well, you can obj ect all 23 you want, Walter. I think the evidence in 24 this case is going to show that PCBs are 25 contaminated with furans, they're NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021896 50 1 -' contaminated with dioxins; and that's a 2 real problem Monsanto's got in this case. 3 MR. CRAWFORD; Well, I object to 4 that. I don't think that1s what it's 5 going to show, and I object -- 6 MR. LACEY: Well, that's what we'll 7 let the Jury figure out. 8 BY MR. LACEY: 9 Q Did Monsanto make any products that contained 10 dioxins at 1evels of 200 parts per billion or greater? 11 MR. CRAWFORD: PCB products? 12 MR. LACEY: Any pro ducts. 13 A Any products? Yes, they may have. I don't 14 know the time frame. They manufactured an insecticide 15 that contained, presumably, dioxins in that percentage. 16 BY MR. LACEY: 17 Q , Okay. And did any human beings ever exhibit 18 any health problems resulting from that? 19 A During the manufacture of this product, they 20 did manifest health prod- -- problems. The use of the 21 product was not accompanied by any health problems. 22 Q But your workers who were exposed to dioxins at 23 levels of, you assume, around 200 parts per billion - 24 is that correct? 25 A No, I don't assume that at all. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021897 51 1 What was the exposure? 2 A I don't know. 3 MR. CRAWFORDs Mr. Lacey, so I don't 4 have to interfere any more and I can let 5 you go with this 1ine, may I have a 6 running objection to all testimony on 7 dioxins in other products? Is that all 8 right? Can I have a running objection? 9 MR. LACEY: Well, what is the 10 objection? To the form of the question? 11 All objections are being reserved that can 12 be reserved. 13 MR. CRAWFORD: All right. 14 MR. LACEY: I think the issues of 15 what objections you're going to make at 16 trial -17 MR. CRAWFORD: Okay. 18 MR. LACEY: -- and what the Cou rt may 19 rule are issues you re going take up with 20 the Court. 21 MR. CRAWFORD: Just so we don't waive 22 that, that's fine. 23 MR. LACEY: Well, I don't think - 24 if you've got an objection to the form 25 of my question, I'd like to have the NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021898 52 1 ' f orm-of-the-que stion objections covered 2 at this point, because I'll fix that. 3 MR. CRAWFORDS Okay. Well, the last 4 one was leading. 5 MR. LACEY: Okay. Well, that's fine. 6 I think I -- I am entitled to ask your 7 expert witness 1eading questions. I think 8 he's probably an adverse party to me, 9 since he's a -- an expert, been retained 10 against me in this case. Any problem with 11 Mr. Kelly being an adverse witness? 12 MR. CRAWFORDS Well, I have problems 13 with leading questions, and loading it up 14 with a bunch of stuff he didn't say, 15 . but -- 16 MR. LACEYs I see. 17 ,, MR. CRAWFORDS -- let's hear the 18 questions. 19 MR. LACEYs Well, I'm sure he'11 tell 20 me about it. 21 BY MR. LACEYs 22 Q Now, what level do you believe the workers at 23 Monsanto who exhibited health problems from being 24 exposed to dioxins were exposed to, in terms of parts 25 per billion? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021899 53 1 ~' MR. CRAWFORD; Object to the question 2 in that it assumes something that he 3 hasn't testified to. 4 A Monsanto workers were exposed to what was 5 presumably dioxin that was formed by an explosion at the 6 pi ant in Nitro, West Virginia. The exact nature of the 7 compound was never established; so, obviously, the 8 percentage of the material of dioxins in there was never 9 established. 10 During the manufacturing of the insecticide 11 following that explosion, people developed chloracne; 12 workers at Monsanto developed chloracne. And it was 13 found that dioxin was present in considerably higher 14 levels than 200 parts per billion. 15 BY MR. LACEY; 16 Q What were the levels? 17 A , I can't recall right at the present time, but 18 they were considerably higher than 200 parts per 19 billion. 20 Q Was it as high as 1 part per million? 21 A It may have been. I mean, I'd -- I'd have to 22 speculate. I don't know. 23 Q Okay. You know it was higher than 200 parts 24 per billion, but you're not sure if it was at high as 25 1 part per million? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021900 54 1 "A- That'scorrect. 2 Q Okay. By the way, you say that that happened 3 af ter an explosion. Are you telling me that the dioxins 4 would not have been present in the product, but for this 5 explosive process? 6 A No. I didn't say that at all. 7 Q Were the -- were the dioxins present in the 8 product even without the explosive process? 9 A Yes. 10 Q I see. And did theexplosive process 11 contribute to the presence of dioxins in the product or 12 add to the presence of dioxins in the product? 13 A It added to the disability of the individuals, 14 because their reaction was much more severe cleaning up 15 the explosion than it was during the routine manufacture 16 of the product. 17 Q , My question -- and 1et me make it cl ear -- is 18 whether or not, as a result of the explosive process, 19 more dioxins were created than were already present in 20 Monsanto's product. 21 MR. CRAWFORD; Object to the form. 22 A I told you before I couldn't answer that, 23 because the -- the analysis of the charred material that 24 remained after the explosive -- after the explosion was 25 not identified. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021901 55 1 BY MRV LACEY; 2 Q Do you know wheth er or not dioxins can be 3 created as the result of e xplosions or fires of 4 PCB-containing materials? 5 A I do not know. 6 Q Okay. 7 Now, are you fami liar with the fact that from 8 time to time, there were e fforts to improve the quality 9 of Monsanto's PCB products ? 10 A I don't know any of the details in it -- about 11 it, so I can't comment on it. 12 Obviously, in all industrial processes, you are 13 trying to improve it as yo u go along. But I have no 14 direct information as to - - to answer your question, 15 Q .Would one be inte rested in trying to improve 16 the quality of the product by reducing the level of 17 contaminants in it? 18 MR. CRAWFORD; That assumes there was 19 a contaminant in it. I'm going to object 20 to the form of the question. 21 MR. LACEY; Okay. That's fine. 22 BY MR. LACEY: 23 Q Can -- can you assume with me for the -- for 24 the moment that Monsanto witnesses have testified that 25 Monsanto's PCB products did contain contaminants in NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021902 56 1 them? 2 MR. CRAWFORD; If you know about that 3 testimony. 4 BY MR. LACEY: 5 Q I'm asking if you can assume it. 6 MR. CRAWFORD: Well, he shouldn't 7 assume anything. 8 MR. LACEY: I see. 9 BY MR. LACEY: 10 Q You can't assume that Dr. Richard has told me 11 that Monsanto's PCBs were contaminated with 12 dibenzofurans ? 13 MR. CRAWFORD: I wouldn't assume 14 anything. 15 MR. LACEY: I see. 16 MR. CRAWFORD: Just ask the question, 17 David. 18 19 (Discussion off the record) 20 21 BY MR. LACEY: . 22 Q I don't know how much of Dr. Richard's 23 deposition you want to read. Dr. Kelly. At Page 104 of 24 his deposition, beginning at Line 16, Dr. Richard 25 said - NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021903 57 1 MR. LACEY: Okay. We're back on. 2 BY MR. LACEY: 3 Q -- "We looked for any dibenzofurans and found 4 parts per million late in 1 Seventy -- late in the 5 Seventies -- I shouldn1t say late in the Seventies, but 6 late in the Sixties, early in the Seventies. 7 "QUESTION: So you have found some 8 dibenzofurans as impurities in the manufacture of PCBs? 9 "ANSWER: Parts per million possibly." 10 Now, is that -- does that satisfy you that 11 Dr. Richard has testified-- 12 A May I see it, please? 13 Q Surely. Feel free (tendering). There are 14 several pages of testimony by Dr. Richard about 15 dibenzofuran contamination. 16 A (Reviews document.) 17 , Well, I don't believe you've quoted him exactly 18 correctly. 19 Q Well, you want to read from Line 16 -20 A Yes. 21 q -- on that page down through Line 22? 22 A Yes, I will. 23 A Feel free to read it. 24 A "We look for any dibenzofurans" -- well, I'll 25 start on Line 13, if you like. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021904 58 1 -~Q~' Well, actually, I think I quoted beginning at 2 Line 16. If you're chal1enging the accuracy of my 3 quotation - 4 MR. CRAWFORD: Well, you -- 5 BY MR. LACEY: 6 Q -- why don't you begin at Line 16? 7 MR. CRAWFORD: -- you asked him to 8 read it and read what he wanted. He can 9 read what he wants to. 10 BY MR. LACEY: 11 Q Okay. If you j ust want to start reading out of 12 Dr. Richard's deposition, go ahead. 13 MR. CRAWFORD: He can start up 14 with any - 15 A "If. we're looking for that, we did not find any 16 dioxins in our product analytically. And these methods 17 were developed late. We looked for any dibenzofurans 18 and found parts per million late in 'Seventy -- late in 19 the Seventies -- I shouldn't say late in the Seventies, 20 but late in the Sixties, early in the Seventies. 21 "(QUESTION) So you did have some dibenzofurans 22 as impurities in the manufacture of PCBs? 23 "(ANSWER) Parts per million possibly. 24 "(QUESTION) Well, when you measured it, you 25 found it. Not possibly. You actually found it, didn't NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021905 59 1 you?" " ' 2 "(ANSWER) I think we did. It was not 3 BY MR. LACEY: 4 Q Pi ease don't tear it up. If you -- 5 A I'm not, but I've got to read it. 6 "You would have to ask the analytical people 7 what the exact parts per million were, but very low. 8 "(QUESTION) Which analytical people did that 9 wor k ? 10 "(ANSWER) Applied sciences -- in general, 11 applie d sciences were working under Dr. Keller," 12 K-e-1-1- e- r. 13 Q Any question from that excerpt that Monsanto 14 looked f or and found dibenzofurans in its PCB products? 15 A .This is no question that they looked for it. 16 He said, "I think we did," when we were asked about if 17 we founcl it. So I can't be any stronger than what he 18 say s. 19 He said, I think we did," and he's got a "Parts 20 per million possibly" in there. I think you'd have 21 to -- have to ask him more definitely about that. 22 Q I see. Well, is there any -- do you have any 23 problem assuming that -- that your people found furans 24 as a contaminant in PCB products when they looked for 25 it? Is that something you can assume with me? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021906 60 1 ~A~ ' I could assume. 2 Q Okay. Fine. Now, in a effort to clean up PCB 3 products, one of the things you would want to do would 4 be to take out any contamination, is it not? 5 A That's correct. 6 Q Okay. Do you know whether or not Monsanto had 7 a problem with its product, resulting in a competitive 8 problem because they weren't pure enough? 9 A No, sir, I do not. 10 Q Okay. Do you know whether a response to a 11 problem like that would be to attempt to clean up the 12 product? 13 A I don't know what their attempt would be. 14 Q I see. 15 .Was it always a goal of Monsanto to produce a 16 better-quality product? 17 A , Yes. 18 Q Did Monsanto attempt to make improvements in 19 its production processes over time to improve the 20 quality of its products? 21 A Yes. 22 Q And would one of thegoals of those 23 improvements be to reduce or eliminate contaminants in 24 its products? 25 A It may or may not have been. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021907 61 1 ' I see. So Monsanto may not have made an effort 2 to get the contaminants out of its products. Is that 3 correct? 4 A Well, I -- you'll have to ask someone 5 elimination about that. I don't know. 6 Q Okay. Was it ever a directive from the Medical 7 Department that Monsanto should attempt to produce 8 products that did not have contaminants in them? 9 MR. CRAWFORD: Mr. Lacey, I'm going 10 to object to the form of the question, a 11 because you have not defined 12 "contaminants." What are you talking 13 about ? 14 MR. LACEY: Any -- well, let's go 15 . back. I thought we defined that earlier 16 today. 17 BY MR. LACEY: 18 Q Didn't we establish earlier today that a 19 contaminant is a chemical that's found in a product 20 manufactured by Monsanto that it didn't design to be in 21 there? 22 MR. CRAWFORD: I don't think we 23 established that. 24 MS. OLESEN: You asked him to assume 25 that definition. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021908 1 BY Hit.- LACEY; 2 Q Well, let's -- let's try to see if we can get 3 it clear, and let's j ust do it with PCBs. 4 A Fine. 5 Q Monsanto set out to produce PCBs. Correct? 6 A Yes. 7 Q And they weren't attempting to produce as a 8 part of their PCBs any dioxins, were they? 9 A No. 10 Q They didn't design their pr ocess to pr oduce 11 PCBs containing dioxin, did they? 12 A No. 13 Q They didn't design their process to produce 14 PCBs containing dibenzofurans, did they? 15 A No. 16 Q They didn't producetheir -- they didn't design 17 their process to produce PCBs containing naphthalenes, 18 did they? 19 A No. 20 Q They didn't design their process to produce 21 chlorinated naphthalenes, did they? 22 A You'11 have to ask the design man. I do not 23 know whether the presence of some of these thi ngs are a 24 ne c- -- are of importance inside a PCB range. I don't 25 know tha t. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021909 63 1 ' So naphthalenes may be important in that. is 2 that correct? 3 A I don't know. I said, you'll have to ask 4 someone else. 5 Q I see. 6 Now, just talking about those chemicals that 7 definitely were not part of what Monsanto set out to 8 manufacture, I want to use the word "contaminants" for 9 those chemicals. Do you have any problem with that? 10 A No. Under our definition, it's an unwanted 11 product in the compound, yes. 12 Q Exactly. 13 MR. CRAWFORD: But you're limited to 14 what you said. 15 BY MR. LACEY: 16 Q And dioxins, if they were present in PCBs, 17 would be a contaminant,would they not? 18 A Ye s. 19 Q Furans, ifthey were present, would be a 20 contaminant, would they not? 21 A Ye s. 22 Q Okay. 23 Now, my question toyou, withthat definition 24 that you've given me of "contaminants": Did the Medical 25 Department ever seek to have Monsanto attempt to reduce NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021910 64 1 or eliminate the presence of contaminants in its 2 products? 3 A You said before we're 1imiting it this to the 4 PCB, did you not? 5 Q Well, if you want to limit it to PCB, I'11 be 6 happy to. 7 A All right. Fine. 8 Q Did the Medical Department ever seek to have 9 Monsanto limit the presence of or eliminate the presence 10 of contaminants in its PCB products? 11 A When I was in charge of the Medical Department, 12 we did not. 13 Q Okay. Now, did the Medical Department ever - 14 and I'm going to broaden the question beyond PCBs -- did 15 the Medical Department ever seek to have Monsanto limit 16 or eliminate the presence of contaminants in any of its 17 chemical products? 18 A Yes. 19 Q Which chemical products did Mon- -- the Medical 20 Department seek to have Monsanto limit or eliminate the 21 presence of? 22 THE WITNESS (to the Reporter); 23 Repeat the question? 24 BY MR. LACEY; 25 Q Let me just -- let me just ask it again. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21911 65 1 " ~' What contaminants in what products did the 2 Monsanto Medical Department seek to have Monsanto 1imit 3 or eliminate the presence of? 4 A The Medical Department recommended that 5 Monsanto minimize the presence of dioxin in a herbicide/ 6 2,4/5-T. 7 Q Okay. Any other contaminants that the Medical 8 Department ever recommended that Monsanto production 9 people seek to limit or eliminate as a contaminant in a 10 product? 11 A Yes. 12 Q What else? 13 A A copper scavenger in a hydraulic fluid. I do 14 not recall the name of copper scavenger, but it was in 15 Hydraul hydraulic fluid. 16 Q A PCB-containing hydraulic fluid? 17 A , No, it was not a PCB-containing hydraulic 18 fluid. 19 Q I see. And what was the purpose of the 20 scavenger ? 21 A To pick up loose piece of -- pieces of metal. 22 Q Okay. 23 Any other s that you recall? 24 A I don't recall. There may have been, but I 25 don't recall. NELL MC CALLUM & ASSOCIATES, INC, HARTOLDMON0021912 66 1 ~Q ' You don't recall. You don't recall any others. 2 Cor rect? 3 A I don't recall any. That does not mean that 4 they did not -5 Q The reason that you asked the production people 6 to eliminate or limit the presence of dioxin as a 7 contaminant in 2,4,5-T was because of the very high 8 toxicity of dioxin. Is that not correct? 9 MR. CRAWFORD: Object to the form of 10 the question. 11 A We knew that dioxin was causing chi or acne in 12 our workers at our Nitro plant, so we wanted to 13 eliminate it. 14 BY MR. LACEY: 15 Q .To eliminate it. Correct? 16 A Minimize it, yes. 17 Q , And did the production people seek to do that? 18 A Yes. 19 Q Were theysuccessful in doingthat? 20 A Yes. 21 Q That simply required exercising more caution in 22 the production process, did it not? 23 MR. CRAWFORD: Object to the form of 24 the question. 25 A I'm not a process engineer. I can't tell you NELL MC CALLUM & ASSOCIATES, INC, HARTOLDMON0021913 67 1 thafT; 2 BY MR. LACEY: 3 Q I see. 4 I believe in -- when we started your 5 deposition, you told me that after you became Medical 6 Director of Monsanto following World War II -- or at 7 least by that time, if it did not occur earlier -- there 8 was a directive from the management of the company that 9 all questions regarding toxicology and safe handling of 10 products come to the Medical Department for response. 11 Correct? 12 A Correct. 13 Q And also a directive from the management of the 14 company that all information given out to customers 15 about toxicology and safe handling come from the Medical 16 Department. Correct? 17 A , Yes. But, of course, obviously, if a salesman 18 is giving a customer a Technical Bulletin that has 19 toxicity and safe-handling information, it comes from 20 him, but it comes -21 Q Yes. 22 A -- indirectly from us. 23 Q The -- the -- and the way that would work, 24 obviously you didn't physically go out and hand out 25 every piece of paper to a customer that had the stuff in NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021914 68 1 it ah- safe handling. 2 A That's correct. 3 Q But before a pieceof paperwent out on safe 4 handling, it had been approved, at least in substance, 5 by the Medical Department? 6 A Correct. 7 Q Okay. And am Ialso correctin understanding 8 that to the extent that a customer wanted information 9 that had greater detail in it, more step-by-step 10 instruction than was in the Technical Bulletins, on the 11 warning labels, and the like, that more detailed or 12 technical information would come from the Medical 13 Department or be approved by the Medical Department? 14 A Well, there, you're -- you're giving a -- a 15 broad --.a question that is a broad spectrum. 16 They may have wanted engineering details that 17 would minimize personal contact. That would not come 18 from the Medical Department. 19 If they wanted more detailed information about 20 specific action of a product or specific personnel 21 handling methods or specific personal precautions, that 22 would come from the Medical Department. 23 Q If somebody were asking for specific 24 information on the best way to handle a Monsanto product 25 to avoid problems of dermatitis and toxicology, those NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021915 69 1 are-tire sorts of things that would be spoken to either 2 directly or indirectly by the Medical Department 3 department. Correct? 4 A Not exactly. Suppose they were asking about 5 methods of conveying of -- how to handle it in a 6 centrifuge; whether you should have a self- - 7 self-emptying centrifuge or a manually-op- -- -emptied 8 centrifuge. That would not come from the Medical 9 Department. 10 Q So if it were a technical piece of equipment 11 type of question, somebody else might speak to it? 12 A They might. 13 Q My understanding from talking to Mr. Elmer 14 Wheeler was that he often was the person at Monsanto 15 that would speak to things like how to design pieces of 16 equipment in order to minimize human exposure in an 17 acceptable way. Is that correct? 18 A I would like to see what he -- exactly what he 19 said, whether -- because his -- he would just be talking 20 about designing ventilation, spot or general 21 ventilation. He wouldn't be designing whether you had a 22 closed conveyor system, or something like that. I don't 23 believe that was part -24 Q I see . 25 A -- of his expertise. . NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021916 70 1 r~Q~ ' Who at Monsanto would be giving very detailed 2 design di rections to customers about how to handle 3 Monsanto products? 4 A I don't know. 5 Q Do you know if anybody ever did? 6 A I don't know whether they did or whether they 7 did not. 8 Q Okay. General questions about safe handling, 9 though, where a customer asked what to do or how to 10 handle it, would come through the Medical Department? 11 A That's correct. 12 Q Okay. And to the extent they had a specific 13 inquiry that went beyond the Technical Bulletins and the 14 warning labels, and they were to be given information 15 beyond the Technical Bulletins or the warning labels, 16 that would come from the Medical Department. Correct? 17 A , If it related to possible health hazards, if it 18 related to possible exposures, if it related to the type 19 of personnel equipment to use, yes. 20 Q Okay. And it was your intention in requesting 21 that management provide that information on safe 22 handling and toxicology be approved by the Medical 23 Department to ensure that what was being said to 24 customers was generally consistent, generally uniform 25 throughout the company. Correct? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021917 71 1 -A~ ' And accurate. 2 Q And accurate. 3 Now, did you review the material that went in 4 any manuals that salesmen used as instructions of what 5 they were to talk to customers about on toxicology and 6 safe handling? 7 A I do not recall any such manuals. 8 Q Okay. Well, would it have been -- and let me 9 ask it this way, then -- would it have been your 10 understanding that had such manuals existed during the 11 time that you were Dir- -- Medical Director at Monsanto, 12 that anything in them about what the salesmen were to 13 tell customers on toxicology, safe handling, precautions 14 for their workers, would be approved by you for its 15 accuracy.and correctness? 16 MR. CRAWFORD; David, why don't you 17 show him the manual you're talking about 18 so he can have something to focus on? 19 MR. LACEY; Well, I'm not sure that 20 there is a manual. I'm just trying to 21 find out. i -- i -- you know, I'm not 22 sure that we've got one of those. But I'm 23 trying to find out if that was covered by 24 thi s. 25 MR. CRAWFORD: Well, if there's not a NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021918 72 1 - manual, how can he answer the question? 2 MR. LACEY: Well, that's what I'm 3 trying to find out. 4 I'm trying to make sure that if one 5 shows up -- and as you know, Walter, we've 6 had documents continue to show up, and I 7 don't know how many more are going to show 8 up -- I intend to conclude this deposition 9 today, and I want to make sure I 10 understand whether or not any statements 11 in any Salesmen's Manuals or the like thSt 12 you may provide to us during the time this 13 man was Medical Director would have been 14 something that, under the policies of the 15 company, should have had his approval. 16 It's very simple. 17 A I -- I have no recollection of ever seeing a / 1 8 Salesmen's Manual. 19 BY MR. LACEY: 20 Q Fine. 21 Now, my question to you is a very simple 22 question: Was the directive that you sought from the 23 company's management and that went out from the 24 company's management one such that any literature that 25 was provided by Monsanto to its sales forces that NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021919 73 1 contained information for them to use in conveying to 2 customers would have been information that you had 3 approved and consistent with what your views on 4 toxicology and safe handling were? 5 MR. CRAWFORD: I object to the form 6 of the question. It's about ten 7 strung-together statements that make no 8 sense to me, and I can't understand it. 9 MR. LACEY: Well, let me make it 10 clear so even you can understand it, 11 Walter. 12 MR. CRAWFORD: Well, that's what we 13 need to try to accomplish. 14 MR. LACEY: Okay. Well, let's do 15 . that. 16 BY MR. LACEY: 17 Q , Had there been any instructions to salesmen on 18 how to talk to customers -- do you understand that 19 question? 20 A Is this in a subjunctive, a subjunctive -- 21 Q Ye s . 22 A -- had there been? 23 Q Exactly. You told me that you're not aware of 24 any. Is that correct? 25 A That's right. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021920 74 1 -CT' Okay. Now, what I'm trying to find out is: If 2 someone in the company had put out a manual that it 3 would go to the people that were the salesmen to tell 4 them what to say and what to do, if there were such a 5 mean, any sections in that type of literature that dealt 6 with toxicology and safe handling of Monsanto products 7 should be consistent with what you as the Medical 8 Department said were the safe-handling instructions for 9 the product. Correct? 10 MR. CRAWFORD: You're going to have 11 to show him what you're talking about. 12 A Yes. You're asking me to comment on something 13 that I don't know exists, and - 14 BY MR. LACEY: 15 Q .1 don't know if it does, either, Dr. Kelly. 16 A Well, if I -- if it doesn't exist, how do I 17 know what should be in it? Because that -18 Q Well, let me -- let me try to make it clear. 19 It's not a complicated question, I don't think. 20 A Well, yes. 21 Q It's not. 22 A I think you're asking me to decide on things 23 that don't exist, and I can't be assuming situations 24 that aren't present. 25 Q No, I -- what I'm really trying to find out, NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21921 75 1 Dr.--Kelly -- let me make it very cl ear -- I'm trying to 2 find out about the scope of the direction that you 3 sought to have issued by company management, what went 4 out to company management, stating what matters had to 5 be approved by the Medical Department before they could 6 be given to others. Do you recall that? 7 A Yes, certainly. 8 Q And if I understand your testimony correctly, 9 the directive that you sought from company management 10 was that everything on toxicology and safe handling of 11 Monsanto chemicals had to be approved by the Medical 12 Department. Correct? 13 MR. CRAWFORD: The directive he 14 sought ? 15 MR. LACEY: That he sought to get 16 management to send out. 17 BY MR. .LACEY: 18 Q Is that correct? 19 A Repeat it. 20 Q What you sought to have Monsanto management put 21 into place was a requirement that anything on safe 22 handling of chemicals and the toxicology of the 23 chemicals had to be approved by the Medical Department. 24 Correct? 25 A What management approved was that any published NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021922 76 1 literature that related to health effects of Monsanto's 2 products, precautionary information relating to health, 3 was to be furnished by the Medical Department. 4 Q Okay. Now, what I'm trying to find out is 5 whether or not the scope of that directive was such that 6 a salesman would or would not be told to say more about 7 the precautions to take with safe handling than what you 8 had approved in the published literature. 9 A I can't answer that question. I can only say ' *i ' 10 that during the course of my time with the company, we 11 had literally thousands of requests from salesmen for us 12 to answer the questions of toxicity and safe handling. 13 I do not know what every individual salesman did. But I 14 do know that they were only too happy to refer any of 15 those problems back to us at the Corporate Office. 16 Q And it was your understanding, I take it, that 17 what they were supposed to do was to only give out the 18 information that was published by Monsanto, like 19 Technical Bulletins and warning labels. 20 A That's correct. ' 21 Q They weren't to go beyond that, but rather to 22 refer any additional materials or any additional 23 questions back to the Medical Department. 24 A Well, we've got to break that down. 25 For example, suppose a customer said to him, NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21923 1 "Has ' thi s been used before? II 77 2 And he said, "Yes. X Chem ical -- X Company has 3 used 40 , 000 pounds of this a week f or the last f ive 4 years II 5 "Have they had any ill eff ects?" 6 You wouldn't say, " You 'll have to go back and 7 the people in St. Louis." You woul d say, "No, they 8 haven ' t had any ill effects . I 1 ve been th ere once a 9 week tal king to them." 10 Q Okay. So he would be auth or i z ed to give his 11 per so:nal knowledge? 12 A That's correct. 13 Q Okay. Would he be authori zed to give hi s 14 per soirial opinion about what type of protective equipment 15 ought to be.supplied? 16 A If he were knowledgeable. yes. 17 Q / And where would he get the inf ormatio:n about 18 the protective equipment that would be needed for the 19 safe handling of a chemical? 20 A From the Medical Department, from the Safety 21 Department, and from the Manufacturing Department. 22 Q Well, I guess my question to you is: Would he 23 have to check with those people and make sure what he 24 was giving out was the right information before he gave 25 it out? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021924 78 1 '"A The first time, certainly. 2 Q Okay. 3 A But then af ter the first time -4 Q Well, then, that goes back to the same point. 5 The source of the information initially had then to come 6 from the Medical Department, and he could repeat that 7 when he was asked subsequently? 8 A Yes. 9 Q But the first time a salesman was asked what 10 sort of protective equipment should be supplied, he 11 would come to the Medical Department and get an answer. 12 Correct? 13 A It -- it might be in the Technical Bulletin 14 that he had in front of him. 15 Q .Okay. If it wasn't in the Technical Bulletin, 16 if it wasn't on the warning label, then when he was 17 asked that question it was his obligation to come to the 18 Medical Department and get the information? 19 A I think so, yes. 20 Q Okay. And he could then report back to the 21 customer whatever information the Medical Department 22 gave him with regard to additional safe-handling 23 precautions that might not be contained in the Technical 24 Bulletins or on the warning labels. Correct? 25 A Correct. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021925 79 1 "Q~ " And then if another customer asked him the same 2 question again, he wouldn't have to come back to the 3 Medical Department the second time; he could go ahead 4 and give out the already-approved information? 5 A That's correct. 6 Q Okay. 7 Now, with regard to PCB products in particular, 8 what information, if any, did the Medical Department 9 give to its salesmen about safety precautions to use 10 around PCBs that were not contained in the Technical 11 Bulletins or on the warning labels? 12 MR. CRAWFORD: During what period of 13 time? 14 MR. LACEY: During the entire time he 15 . was Medical Director. 16 BY MR. LACEY: 17 Q ' And I'll go year by year; but I want to know 18 what the Medical Department told salesmen to tell % 19 customers about PCBs that goes beyond what's on -- on 20 the warning,labels and in the Technical Bulletins, if 21 anything. 22 A We had -- I'm sure we had personal contact with 23 marketing people throughout -- and development people 24 throughout the course of my time at Monsanto. 25 And this information, we transmitted to them NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21926 80 1 verbally or trans- -- was transmitted verbally to the - 2 down the line to the sales personnel. I had many 3 instances of salesmen talking to me in St. Louis about 4 the safe-handling procedures of various things with 5 PCBs. I recall that also. 6 So there -- there were many contacts. 7 Q Well, I'm trying to find out -- and let me make 8 it very clear -- I'm not interested in the extent to 9 which you just repeated what was in the Technical 10 Bulletins or the warning 1 iterature. Okay? I'm 11 interested in what it was that you told salesmen so that 12 they could tell customers about safe handling or 13 toxicology that went beyond what was in the published 14 literature. 15 .Well 16 MR. CRAWFORD: If there was such a 17 ^ thing. 18 BY MR. LACEY: 19 Q If there was any. And -- and maybe there 20 wasn't any. 21 A Yes. For example, if a customer were worried 22 about after lightning hit a transformer, is there 23 phosgene produced, I do not know if that's in the 24 Technical Bulletins or not. But the salesman would ask 25 me, and I would say, "No, phosgene is not produced if NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021927 81 1 lightning hits a transformer." 2 And there -- I'm sure there are other 3 instances, but I can't -- can't think about -- of any 4 more at the present time. 5 Q The only question you can ever recall salesmen 6 coming to you and asking about is whether or not 7 phosgene gas would be created after a PCB transformer 8 was struck by lightning? 9 A That's all I can recall at the present time. 10 Q Do you recall salesmen ever coming to the 11 Medical Department and asking for specific details on 12 protective equipment to wear beyond what was in the 13 Technical Bulletins and on the warning labels? 14 A Yes. They talked about gloves. Gloves were a 15 probiem. . 16 Q Okay. So salesmen came and asked about gloves? 17 A , Uh-huh. 18 Q What other protective equipment? 19 A I don't recall. Those are the ones that I 20 remember. 21 Q Okay. What did you tell salesmen about gloves 22 that was above and beyond whatever may have been said in 23 the Technical Bulletins and on the warning labels? 24 MR. CRAWFORD: Object to the form of 25 the question. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021928 82 1 ~~A ' When very thin Neoprene-coated gloves were 2 available, we talked to the salespeople about that. 3 BY MR. LACEY: 4 Q What did you tell them? 5 A That these were available. There is a -6 Q I'm not sure I f ollow that. How -- can you 7 explain the context of that? 8 A Yes. PCBs disintegrate rubber gloves. The 9 old-fashioned Neoprene gloves were so thick that you 10 couldn't use them. 11 So in some of our bulletins we had recommended 12 canvas gloves, which were discarded, obviously; canvas 13 gloves could get wet. 14 Then later on in my course at Monsanto, they - 15 gloves were .manufactured. I am not sure of the 16 manufacturer, but they were a thin imp- -- 17 PCB-impervious glove. 18 Q And so you told salesmen about this new 19 manufacture of gloves that were thinner and easier to 20 use ? 21 A Well, I don't know if I told the salesmen or if 22 that information was transmitted from -- from the 23 Purchasing Department to me or from someone else to me. 24 But I recall that I have told some salesmen about it. 25 Q Did you ever see any need to have a document NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21929 83 1 that would provide to salesmen -- and I'm talking in 2 particular now about salesmen for PCBs -- the basic 3 information about toxicology and safe handling so that 4 they would know what to tell customers and be sure that 5 that what they said was consistent and correct? 6 A No; because I think when you get a third party 7 in between someone, the individuals who understand 8 toxicology, a salesman cannot -- you cannot give them a 9 cookbook and say, "Here is what the toxicology of this 10 product is." 11 I think you -- the chances of errors are 12 magnified. So we say, "If a customer is interested 13 about the toxicology, let them talk to us, and we'll 14 answer them." 15 Q Is the same thing true for safe handling, as 16 well; how to handle it safely? 17 A - Well, that is a -- is a much more limited and 18 direct statement. 19 After all, if the salesman is supposed to tell 20 the individuals, "Don't get any on your hands, don't 21 breathe the material, don't breathe it at elevated 22 temperatures or in confined spaces," that's -- it's hard 23 to misinterpret that. 24 But if you're talking to somebody about LD-50s 25 and chloracne on rabbits' ears, it's a pretty hard thing NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021930 84 1 to get' that information across to a nontechnically- -2 nontoxicologically-trained individual, 3 Q Well, I guess I'm -- what I'm trying to find 4 out about is this; Did you ever see any need to provide 5 salesmen with written information -- a reference book, 6 so to speak -- that they could go to, so that they could 7 answer questions about what was required for protective 8 gear to safely handle PCBs? 9 A No, because we had been manufacturing this 10 material for 30 years; and however the information got 11 out, it certainly got out, because the amount of 12 complaints that we had or reports of alleged injury were 13 extremely few in those 30 years. 14 Q The answer to my question is that you did not 15 see any need, then, for salesmen to have a reference 16 book they could go to in order to answer questions about 17 safe handling and worker precautions? 18 A The answer is "no," because we were certain 19 that the salesmen were instructed. And whether they had 20 such a reference book or not, I can't answer that; but I 21 didn't see any need for giving one to the salesmen. 22 They were getting the information they needed very 23 adequately. 24 Q And to your knowledge, no such reference book 25 existed while you were Medical Director? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21931 85 1 -h ' I don't know if one did or not. 2 Q Well, to your knowledge, you don't know. 3 That's really my question. 4 A No, I do not know, to my knowledge. 5 Q And had there been such a book that did exist 6 on safe handling, it should have come to you for 7 approval of what was said in it. Correct? 8 A If a book existed, which I don't know whether 9 it existed or not -10 Q I understand. 11 A -- I would have to look at the whole context of 12 the book to see how -- what we were talking about in 13 that. So I really can't give you a "yes" or "no" answer 14 on that. 15 Q .Okay. So it's been -- it's possible, then, as 16 far as you're concerned, that the book might have been 17 able to,say something about safe handling, and it would 18 not have been required for you to approve it first? 19 A I didn't say that. I said that I couldn't 20 answer the question, because I didn't know what the book 21 looked like which doesn't exist. 22 Q I guess I'm -- I'm having a problem trying to 23 figure out whether, had there been salesmen's manuals or 24 instructions for salesmen and there were information in 25 there about safe handling and protective equipment, that NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021932 86 1 is a" matter that you should have reviewed before 2 salesmen were provided with a reference book to use in 3 talking to customers. 4 MR. CRAWFORD: Mr. Lacey, I'm going 5 to object to the form of the question, and 6 I'm also going to object to it because 7 it's improper. It's like asking him, "How 8 long is a piece of string?" 9 You're talking about some mythical 10 book, some -- that's got speculative stuff 11 in it that we don't know what you're 12 talking about. How can he answer the 13 question? 14 BY MR. LACEY: 15 Q .Well, the question -- the question - 16 A I can't answer the question. 17 Q _ The question has to do with whether or not it 18 was the function of the Medical Department to review and 19 approve what was written by Monsanto as a source of 20 information to give others about the safe handling of 21 chemicals manufactured by Monsanto. 22 A Now, when you say "others," we have to define 23 the others? because in plant operating departments, the 24 people would use information we had given them and write 25 operating manuals for the workers. We did not review NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021933 87 1 thoire "operating manuals. We assumed that the 2 responsible people who did it used the Medical 3 Department data that was in the technical manuals. 4 Q I'm talking about third parties, customer s. 5 A Well, that, I can' t answer, because I -- 6 th i rd party customers? 7 Q Yes. My question, again, is very simple. 8 A Well, it isn't qui te so simple, Mr. Lacey 9 Let ' s make it simple. 10 Q Well, let's try to make it simple. 11 My question is whether it was the policy of 12 Monsanto that information which would be referred to or 13 used by Monsanto employees to tell customers about how 14 to safely handle Monsanto chemicals was supposed to be 15 reviewed by .the Medical Department before it was given 16 to the customers of Monsanto. 17 , MR. CRAWFORD.- That's so broad, I 18 don't see how he can answer it. I'm going 19 to object to it. You've got to give him 20 something more specific than that. 21 BY MR. LACEY: 22 Q Can you answer the question? 23 A Well, if -- repeat it. 24 MR. LACEY: Would you read it back, 25 pi ease? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21934 88 1 ~~ ' (The following question was read back 2 by the Reporter: 3 "QUESTION: My question is whether it 4 was the policy of Monsanto that 5 information which would be referred to or 6 used by Monsanto employees to tell 7 customers about how to safely handle 8 Monsanto chemicals was supposed to be 9 reviewed by the Medical Department before 10 it was given to the customers of 11 Monsanto.") 12 13 A Well, that, you're -- you're saying any 14 information that an employee got, a salesman got or any 15 employee.of Monsanto got, no matter how, had to be 16 reviewed by the Medical Department? 17 BY MR. .LACEY: 18 Q No. I'm asking whether or not the policy of 19 Monsanto was that reference materials given -- 20 A What do you mean by "reference materials"? 21 Q Any piece of paper; I don't care whether it's 22 a -- whether it's called a Technical Bulletin, whether 23 it's called a Product Bulletin, whether it's called a 24 warning label, whether it's called instruction to 25 salesmen, whether it's called Toxicology and Safe NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21935 89 1 Handling of Chemicals, whatever it may be called -- any 2 written material that was provided by Monsanto to its 3 employees as a source of information to be used in 4 telling customers about the safe handling of Monsanto 5 chemicals. 6 Was that supposed to be approved by the Medical 7 Department before the -- the Monsanto employee gave that 8 information to a Monsanto customer? 9 A The information that a salesman received was 10 primarily based on information that the Medical 11 Department supplied. How that was -- that 12 information -- the form of which that information was 13 transmitted to the salesman, I don't know. 14 Q But whatever the information was that was 15 transmitted to salesmen with regard to safe handling and 16 toxicology was supposed to have been approved by the 17 Medical 'Department? 18 A Primarily approved, yes, by -- if in the 19 finished -- if there were this mythical sales handling 20 manual, there may be some grammatical addition of the - 21 of material. 22 Q But the substance of it was to be approved by 23 the Medical Department before the salesman would take 24 that and use it for what he told customers? 25 A That, and the knowledge that he got from -- IMELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021936 90 1 XQ~ ' Sure. 2 A -- from sales meetings, from 1etter s from me, 3 from correspondence, from telephone correspondence with 4 me; any of these. 5 MR. CRAWFORD: David, let's take 6 about five minutes. 7 8 (Recess) 9 10 THE VIDEOTECHNICIAN: Okay. We've 11 been off the record for a short break. 12 We're now back on the record. The time is 13 10:55 a.m. 14 BY MR. LACEY: 15 Q Dr. Kelly, did you ever recommend or suggest 16 that salesmen be provided with any type of reference 17 material that they could use in answering questions 18 about toxicology and safe handling beyond the Technical 19 Bulletins and the product warning labels? 20 A I have no recollection of making such a 21 recommendation. 22 Q Okay. Am I correct that it is your belief that 23 every customer who bought PCBs from Monsanto received 24 the Technical Bulletins that Monsanto put out on those 25 chemicals? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021937 91 1 MR. CRAWFORD: David, you've got a 2 document that you're: reading from there -- 3 MR. LACEY: No, I'm not reading from 4 a document, Walter. If you're going to 5 leave me alone -- 6 MR. CRAWFORD: Well -- 7 MR. LACEY: -- I'm just asking -- can 8 I look at a document while I ask the 9 question? Am I permitted to do that? 10 MR. CRAWFORD: Well, I mean, if 11 you're reading from it - 12 MR. LACEY: I'm not. 13 MR. CRAWFORD: Okay. 14 A Okay. Repeat the question. 15 BY MR. LACEY: . 16 Q Let me -- let me ask the question again. 17 ' Is it your belief that every customer of 18 Monsanto was supplied with the Technical Bulletins or 19 product literature that Monsanto put out about those 20 chemicals so that they would have information on the 21 safe handling and toxicology of the chemicals? 22 A I don't know whether every customer received it 23 or not. 24 Q Was it your direction from the Medical 25 Department that every customer should receive the NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021938 92 1 Technical Bulletins on Monsanto's chemicals that they 2 bought so that they could have the information on 3 toxicology and safe handling? 4 A I don't recall making such recommendations. 5 Q Okay. Well, then, it was, as you under stand 6 it, perf ectly possible that customer s would buy 7 chemicals from Monsanto without the benefit of having 8 available to them the materials on toxicology and safe 9 handling contained in the Technical Bulletins. Is that 10 correct? 11 A No, it isn't correct, because it depends on 12 what the compound is. It depends on the knowledge -- on 13 what the -- the relationship of that customer has been 14 to Monsanto in regard to that particular product. 15 Q Well, are you telling me that if there were 16 customers who were thoroughly familiar with the product, 17 you wouldn't be as concerned about getting the technical 18 information to them? 19 A I think getting the technical information to 20 the customer was a part of the development and the 21 marketing group. I was concerned that everybody would 22 get the information. 23 Certainly, it was not as necessary in the case 24 of sophisticated users, who knew as much as about the 25 product as we did. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021939 93 1 ~~Q And in the case of people who were not as 2 sophisticated, it would be more important that they get 3 the technical information. Is that correct? 4 A Yes. 5 Q So that either by supplying the Technical 6 Bulletin s to the nonso phisticated cus tom er, or beca use 7 of the knowle dge of th e sophisticated cu st om er, all 8 Monsanto cust omer s f or any partic ular ch emi c al woul d 9 have the ne ce ssa ry inf ormation on toxico logy an d safe 10 handling -> 11 MR. CRAWFORD: Obj ect to the form. 12 A Well r I ca n't guarantee that ev eryo ne had it. 13 I don't know of :my own knowledge that ev ery Monsanto 14 customer had this. 15 BY MR. LACEY: 16 Q Was there any program at Monsanto designed to 17 ensure .that every customer had, through one means or 18 another, the appropriate information on the safe 19 handling and toxicology of the Monsanto products they 20 bought? 21 A Well, I think that was certainly part of the 22 development and marketing programs; that the safety 23 and -- and safe handling and precaution - 24 25 (Telephone in deposition room rings) NELL MC CALLUM & ASSOCIATES, INC, HARTOLDMON0021940 94 1 '"A -- was just as impo rtant a part of the -2 selling a product to the com pany as -- as the price or 3 the date of shipping or -- j don't know about how that 4 was impl emented. 5 BY MR. LACEY; 6 Q Was it your - 7 MR. CRAWFORD; Do you want to take a 8 break ? 9 MR. LACEY: I guess so, Walter. I 10 guess we've got to. 11 12 (Recess) 13 14 THE VIDEOTECHNICIAN; We've been off 15 the record for a short break for telephone 16 calls, and we're back on the record. The 17 time is 11:12 a.m. 18 BY MR. LACEY: 19 Q Did you have any awareness of problems with 20 PCBs bein g jused in electrical apparatus that were 21 involved in fires or explosions? 22 A No, sir, not during my time with Monsanto. 23 Q Okay. Nobody ever came to you and asked about 24 what the effect might be if PCBs were in a product wher e 25 there was a fire or a -- an explosion? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021941 95 1 -A ' No, with the exception of the lightning 2 episode; if -- if -- if a transformer were struck by 3 lightning . 4 Q And the only question that was raised there was 5 the question of phosgene gas? 6 A Correct. 7 Q Do you recall being informed whether one way or 8 the other there was ever any concern within the 9 customers or users of PCB electrical equipment about the 10 toxicity of PCBs? 11 A We had -- yes. We had numerous letters from 12 customers concerning the toxicity of PCBs. 13 Q Expressing concerns that they were toxic, or 14 just asking about whether they were toxic? 15 A Well, there were all sorts of questions they 16 were asking: Could this condition have resulted from 17 PCB contact; Could -- How should you handle this? There 18 were all sorts of letters that I answered that falls 19 under the answer to your question. 20 Q Let me try to refine what I'm asking about, 21 because I'm really not trying to ask about a specific 22 letter. 23 I'm trying to find out whether you recall, 24 while you were Medical Director of Monsanto, a level 25 of concerning among those people who would use NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21942 96 1 PCB'^cont ai ning electrical equipment that PCBs were 2 toxic; and, therefore, that caused them to have concern 3 or a desire not to use PCB-containing electrical 4 eq uipment. 5 A I never had any information from a customer 6 saying they were thinking of discontinuing PCB 7 electrical equipment because of toxicity. 8 Q Okay. What about -- and -- and I -- when you 9 say "customer," you're talking about somebody who -- to 10 whom Monsanto sold PCBs directly? 11 A No; or thetransformer customer -- 12 Q Okay. 13 A -- a person who bought thetransformer. 14 'Q Okay. So you're not aware of anyone who had a 15 sufficient concern about toxicity of PCBs that it might 16 have affected their decision of whether or not to 17 purchase transformers or capacitors containing PCBs. 18 Correct? 19 A Correct. 20 Q And nobody within the company ever asked you to 21 get involved in convincing people that PCB-containing 22 electrical equipment was safe, from a toxicity 23 standpoint. Is that correct? 24 A I find it hard to -- to understand your 25 question. If you are saying that while I was in the - NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021943 97 1 in the' company, did I attempt to convince third-party 2 users that the use of PCB in electrical transformers was 3 safe? 4 Q Yes. 5 A I'm sure I wrote letters to people saying that 6 these products could be handled safely inside a 7 transformer, but I -- I don't know. I have no 8 recollection. Will you show me a letter that I might 9 have written? 10 Q I'm really not trying to find out about 11 specific letters. I'm trying to find out whether you 12 were asked to write such letters. 13 A I don't recall.By whom? By the customer? 14 Q No. By people at the company; by people at 15 Monsanto. . 16 A I don't -- 17 , MR. LACEY: David, he was there for 18 30 years. I don't think that -- 19 A I don't recall whether I was or not. 20 BY MR. LACEY: 21 Q Do you recall a Donald PoguewithMonsanto? 22 A No, I don't. 23 Q I see. 24 Do you recall seeing a reportentitled "The 25 Transformer Askarel Fluid Market" that was published NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021944 98 1 in -- or put out by Monsanto in 1970? 2 A I don't recall it. I may have. 3 Q Do you recall any suggestion by anyone at 4 Monsanto that Monsanto should address itself to frequent 5 utility technical service visits to neutralize concerns 6 on Askarel's toxicity and handling? 7 MR. CRAWFORD; Well, David, you've 8 got a document you're reading from now. 9 Could you show it to him -- 10 MR. LACEY: Sure. 11 MR. CRAWFORD: and let him look at 12 it? 13 MR. LACEY: Sure 14 BY MR. LACEY: 15 Q Let me direct your attention to a document 16 entitled "The Transformer Askarel Fluid Market," written 17 by Donald R. Pogue, dated February 17, 1970, Document 18 No. 27924 through 28017, specifically directing your 19 attention to Page 27935. And there's an underlined 20 portion here in the next-to-last paragraph (indicating). 21 A (Reviews document.) 22 On Page 6, now? Is that right? Is that what 23 you asked me? 24 Q I had a page open for you there. 25 A Yes (indicating.) NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21945 99 1 ~Q~ ' Yes, that's the paragraph. 2 A I have no recollection of ever seeing this 3 document before. 4 Q Okay. That wasn't my question to you. 5 A What was it? 6 Q My question to you was whether youwere ever 7 involved in or asked to assist in these visits to 8 utility people in order to convince them about the 9 safety of Askarel. 10 A No. 11 Q Okay. That's clearly what's being recommended 12 by Mr. Pogue, is it not? 13 A You'll have to give it back to me. 14 Q I see. 15 A -He -- they didn't recommend me go over there, 16 did they? Did he recommend that? 17 Q x No. I -- it doesn't appear he said by name who 18 he recommended do it. But it does indicate that 19 Monsanto needed to assess -- address itself to making 20 direct utility visits with regard to the safety of 21 Askarel and safe handling. Correct? 22 A (Reviews document.) 23 Well, he says, "We mustaddress ourselves to 24 frequent utility technical services"-- "technical 25 service visits" -- that's technical service people -- NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021946 100 1 "to~~rteutralize emotions on Askarel toxicity and 2 handling." 3 That1s what he say s. 4 A Yes. And n ow I 'm trying to find o ut whether 5 you were involved in any way, your department was 6 involved in any way, in pr ovi ding inf ormati on, or 7 advice, or anything else to these technical se rvice 8 representatives that they could then use in these visits 9 with uti lities to tr;y to not -- what did he say? 10 "Ne utral ize" -11 A "Neutralize emotions fl 12 Q "Ne utral iz e emo tions " on what? 13 A "Askar el1 s toxi city and h andling." 14 Q I see. And you were not -- the Me<di cal 15 Department was not at all involved in that? 16 A I have no recollection of that at all. 17 Q , So it -- it may be that that information was 18 provided on toxicity and safe handling without the 19 authorization and approval of the Medical Department? 20 A No, you may not. I do not believe that the 21 technical service people would provide information on 22 toxicity that was not approved by the Medical 23 De par tment. 24 Q Okay. By the way, do you -- do you have any 25 idea where in the world people were getting the idea NELL MC CALLUM & ASSOCIATES, INC, HARTOLDMONOQ21947 101 1 that this PCB-containing transformer fluid known as 2 Askarel might have problems with toxicity and safe 3 handling? 4 MR. CRAWFORDs Object to the form of 5 the question. 6 A I have no idea. 7 BY MR. LACEY: 8 Q Was that a topic that was generally being 9 discussed in the electrical industry in the 1970 time 10 frame, or do you know? 11 A It certainly wasn't discussed to my knowledge; 12 because we had very, very few requests for toxicity 13 information from the electric -- from people in the 14 electrical industry. 15 Q In fact, were you involved in the program that 16 was instituted by Monsanto to defend Aroclor at least as 17 early as 1968? 18 MR. CRAWFORD: Object to the form of 19 the question. It's -- 20 A What is the program to defend them? 21 MR. CRAWFORD: Yeah. ' 22 A From what? How? 23 BY MR. LACEY: 24 Q Well, let me show you a document dated December 25 9th, 1968, Document 39204-39205, written by Dr. Richard NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21948 102 1 to several people, about seven names here, entitled 2 "Defense of Aroclor" (tendering). 3 A (Reviews document.) 4 Q Were you involved with this program to defend 5 Aroclor ? 6 A I have no recollection of being so involved. I 7 do not -- as you see, I'm not copied in on that. 8 Q Well, I notice you're not; and that's why I was 9 curious whether or not the Medical Department got 10 involved in this defense of Aroclor, or it was left to 11 others within the company to go out and defend the 12 cus- -- the product. 13 A I'm holding this one piece of -- of 14 correspondence; and, certainly, this is a very 15 preliminary .statement from a research man, so I don't 16 know anything about it (tendering). 17 Q , Well, are you thinking that maybe that program 18 never got off the ground? 19 A I don't know anything about it. 20 Q I see. 21 Well, let me show you another document dated 22 September 9th, 1969, from Dr. Richard to E. Wheeler. 23 That's Elmer Wheeler, isn't it? 24 A That's correct. 25 Q And Document No. 30840through 30847, entitled NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021949 103 1 "Defense of Aroclor, F Fluids." I believe that stands 2 for Functional Fluids, doesn't it (tendering)? 3 A Yes, it does. 4 (Reviews document.) 5 Is there a question? 6 Q Yes. My question to you is: Were you ever 7 involved in the program that Dr. Richard referred to as 8 the "Defense of Aroclor"? 9 MR. CRAWFORD: Objection to the form 10 of the question. It assumes there was a 11 program. 12 A Well, yes. But you must realize that this 13 particular defense of Aroclor functional fluids was in 14 relationship to the ecological problems with Aroclor, 15 which surfaced in the '68-'69 time frame. So we're not 16 talking about harm to workers or users; we're talking 17 about fish, hawks, Peregrine falcons. 18 BY MR. LACEY: 19 Q I see. So there wasn't any concern in this 20 "Defense of Aroclors," then, to try to prove that the 21 PCB products were safe for humans. Is that correct? 22 A I don't know what you mean by "try to prove." 23 We had -24 Q Well, did - 25 A We had -- we had 40 years of experience that it NELL MC CALLUM 8t ASSOCIATES, INC. HARTOLDMON0021950 104 1 was"safe to use. 2 Q Did - 3 A So I don't know what other proof was necessary. 4 Q Did the defense of Arocl or include att empting 5 to pr ov e that it did not pose haz ards to human health ? 6 A I don't b elieve it did a t this time. It was 7 it was - - this was for ecological purposes when it -- 8 (tenderi ng) . 9 Q What was it that the Def ense of Aroclor Program 10 tooik on an effort to prove that i t was safe for human 11 contact? 12 A That occu rred when there was inadvertent human 13 contact with Arocl ors later on ar ound that time r 14 somlewhat later, ar ound '70/ '71. I'm not sure of the 15 t im,e frame. 16 Q Were you involved in the portion of th e Defense 17 of Aro cl or Program that attempted to prove that Aro cl or s 18 wer e saf e for human contact? 19 A Now, when you -- you'll have to -- you 'll have 20 to delineate what you mean by "human contact." 21 Q Didn't ca use any problem s in humans. 22 A Any place , any time? 23 Q Yes. 24 A I was cer tainly involved in showing -- in 25 dev eloping informa tion that when inadv ertent NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021951 105 1 contamination of food products by Aroclors in the 2 plasticizer field occurred that was involved in 3 developing long-term toxicological studies that showed 4 what the toxicity was, and the Government agencies; some 5 information on which they could set a safe level of 6 Aroclors in food products. I was involved in that, yes. 7 Q And that was human food and the question of 8 whether PCBs would cause problems in humans. Correct? 9 A It was inadvertent human contact, and it was a 10 question then of finding out what the long-term feeding 11 studies with PCBs would show. This material was 12 submitted to the Government, who then made their 13 decision as to what they considered a safe level. 14 Q The people within the Medical Department at 15 Monsanto.who were primarily responsible for determining 16 the effect of PCB exposure on humans were the 17 toxicologists. Correct? 18 A No. I was the primary responsibility - 19 responsible person. 20 Q Well, let me see if I understand correctly. 21 Isn't toxicology the discipline that attempts to study 22 the effect of chemicals on humans, among others? 23 A Usually, it's referred to -- the toxicologist 24 is referred to animals, but translation of the 25 information derived from animals to humans and the NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21952 106 1 relertlonship of any ill effects in humans to any 2 supposed chemical really falls under -- fell under my 3 responsibility -- 4 Q I see . 5 A -- my exper ti s e. 6 Q Well, who h ad the gr eater expertise in th e 7 Me cli cal Department w i th reclard to trying to assess wha t 8 PCB s might cause by way of health hazards ? You or your 9 tr ai ne d toxicologist s? 10 A Health haza r ds to whom? Animals, fish, birds, 11 humans ? 12 Q All of the abov e. 13 A Well, we'll start with humans. I did, as far 14 as humans are concer ne d 15 Q Okay. So y OU 'were 16 A Animals -- let me finish. Animals , fish, bi r ds 17 wer e tox icologists. 18 Q So you were more knowledg eable and you had a 19 be t ter understanding of the health hazar ds ca used by 20 PCB s to humans than the tox icologi sts that worked f or 21 you ? 22 A Yes. 23 Q I see. 24 Who was better abl e to interpret the animal 25 data and assess whether or not i t would indicate a NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021953 107 1 potential problem for humans? 2 A A toxicologist, 3 Q Okay. So to the extent that one would be 4 forming an opinion concerning whether or not effects 5 seen in animal data would indicate a potential adverse 6 human effect, one would look primarily to the 7 toxicologists on your staff? 8 A No, because we are not -- you -- going just on 9 animal data. You are making a decision based on animal 10 data and what the human experience has been over the 11 decades past. 12 MR. LACEY: Let's go ahead and change 13 the tape right now, and then we'll pick 14 up. 15 16 (Recess) 17 18 BY MR. LACEY: 19 Q The only human experience that you had was 20 whatever information you received from workers in your 21 plants, plus whatever you heard about from workers in 22 plants to whom you sold PCBs. Correct? 23 A No; because it's also communication with other 24 doctors in the field who are using PCBs, and it -- it 25 also included medical literature that related to the NELL MC CALLUM & ASSOCIATES, INC, HARTOLDMON0021954 108 1 presence or absence of any ill effects -- 2 Q Did you -- 3 A -- in workers. 4 Q I'm sorry. Go ahead. 5 A In workers. 6 Q Did you take into account the Yusho and Yuchang 7 incidents -- incidents in evaluating the effect of PCBs 8 on human health? 9 A Yes. 10 Q Do you know of any disagreements that existed 11 within the Medical Department between the people on your 12 staff about what adverse health effects could or could 13 not be caused in humans by PCBs? 14 A I don't know. I don't -- there may. I have no 15 recollection. 16 Q Well, did you i n the Medi cal Depa rtment ev er 17 get toga ther and discuss what adverse ef f e cts you 18 thou gh t coul d be caused by human e xpo sure to PCBs? 19 A Certainly. But you're -- yo u' ve got to 20 deci de - ~ deli neate what you mean by "expo sure." 21 If yo u mean by swallowing it , 1 i k e they di d 22 ov er in Yusho if you mean -- if yo u' re talking a bout 23 Japa nese PCBs, which are different f r om th e United 24 Sta t es PCBs -- if you're talking a bo u t the extra 25 ingr e die nt s or the contaminants that you r eferred t o of NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021955 109 1 the~Ja"pane se PCBs, which were enormously more than they 2 were in the United States PCBs, yes. 3 I forget what the question was, but -4 Q But you've got an answer for it, anyway. 5 A Well, I have an answer for it. 6 But we took all that into consideration, as far 7 as ill effects on humans. We -- I think there was still 8 just a feeling of all among the United -- the Medical 9 Department specifically on whether the workers who were 10 exposed to PCB in industrial use in the United States 11 suffered ill effects. I think we all agreed that that 12 did not occur. 13 Q What were the contaminants that you understood 14 to exist in the Japanese PCBs that you mentioned with 15 regard to the Yusho and Yuchang incidents? 16 A They were dibenzofurans. They were quat- -17 quatriphenyIs. I don't know what other ones may have 18 been in there. 19 Q It is your understanding that the quality of 20 the product,produced by the Japanese and its purity was 21 not as good as the American product? 22 A It is my understanding that their percentage 23 of -- of benzofurans was higher than it was in the 24 United States product. 25 Q So you understood that the Japanese had more NELL MC CALLUM & ASSOCIATES, INC, HARTOLDMONOQ21956 110 1 co n't ami nant s in their PCBs than Monsanto had in its 2 PCBs. Is that correct? 3 A We were just talking about the level of 4 nitrofurans and what was -- and the quatriphenyls which 5 were present in the Japanese. 6 Q Let me - 7 A They certainly had more. 8 Q Let me ask about -- about the specific 9 contaminant dibenzofuran. 10 A Yes. 11 Q Is it your understanding that the Japanese PCBs 12 had a higher level of contamination with dibenzofurans 13 than Monsanto had in its PCBs? 14 A It is my understanding that it did. And it's 15 also my understanding that after this material was 16 subjected to heat in the -- in the heat exchange and in 17 the the manufacture of the rice oil or the -- the 18 procedures that were used with the rice oil, a higher 19 level of benzofurans occurred. 20 Q What was your understanding about whether the 21 uses to which Monsanto's PCBs were put could result in 22 creation of additional dibenzofurans? 23 A I had seen records of used PCBs that did not 24 show any increase in dibenzofurans. 25 Q What records did you see? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021957 111 1 ' Well, I don't know. But I've seen reports - 2 certainly, the literature -- that showed -- that stated 3 that dibenzofurans were not increased in used PCBs. I 4 can get that reference for you, if you want. 5 Q Was that Monsanto PCBs, PCBs generally? 6 A I believe it referred to United States 7 production, in which Monsanto was something like 8 98 percent. 9 Q And you believe that in use, the Japanese PCBs 10 produced more dibenzofurans? 11 A No. I said that the Japanese produced more 12 PCBs in the rice-oil episode; that something increased 13 the dibenzofurans from the time that the PCBs were in 14 the heat exchanger to the treatment of the rice oils in 15 cooking.. 16 Q Did you in the Medical Department ever consider 17 whether.-the types of problems that would appear in 18 humans would be greater, depending upon the level of 19 exposure? 20 MR. CRAWFORD; Object to the form of 21 the question. It assumes something that 22 you haven't established. 23 A Well, the greater exposure, the greater the 24 possibility of -- of injury, certainly. That's why we 25 recommended against repeated skin contact, prolonged NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21958 112 1 skin ' contact. 2 BY MR. LACEY: 3 Q What did the Medical Department conclude were 4 the human problems that could arise from high levels of 5 exposure to PCBs? 6 A How high? I hate to say, "How high is high?" 7 In what method or exposure? You're talking 8 about inhalation? You're talking about drinking it? 9 You're talking about getting it on the skin? Just tell 10 me what you mean. 11 Q Well, let's start with ingestion. 12 A Well, here is an industrial chemical that is - 13 is not supposed to be taken internally. We believe that 14 if somebody had the idea of taking an ounce of this 15 every day for a month, he would have problems. 16 Q And my question is: What sort of problems did 17 you in the Medical Department believe would result from 18 that type of exposure to PCBs? 19 A We didn't know, because there has been no 20 evidence of, any such exposure. So I do not know how the 21 human body would handle an ounce of PCB every day. 22 Q So the Medical Department had no knowledge on 23 that. Correct? 24 A Correct. We had no knowledge about what 25 happens to repeated human ingestion of PCB, no. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021959 113 1 '-Q- And no one had any opinions about what we might 2 see the results in humans being, based on animal data or 3 anything else? 4 A Well, if you took enough, you could die; 5 cer tainly. 6 Q All right. What about inhalation? What did 7 the Medical Department conclude the effects on humans 8 could be from inhalations at very high concentrations? 9 A At very high concentrations, one could die from 10 it if you had a high concentration in a confined space 11 where you couldn't get away. 12 Q And what was the conclusion about the source of 13 death? What would be the cause of death? 14 A If it were immediate cause of death, it would 15 be pulmonary irritation. 16 If it were three or four days later, it could 17 be liver failure. 18 Q So you concluded that in an inhalation 19 situation, there could be either pulmotary -- pulmonary 20 irritation,, or absorption through the body and the 21 result of liver damage. Correct? 22 A In high enough levels. It's -- now, you're -- 23 you're making an assumption that we have high levels, if 24 you said any -- any level at all. So, certainly, if you 25 get enough PCB at elev- -- at high enough temperatures NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021960 114 1 in an enclosed space, you could have some of those 2 problems; cer tainly. 3 Q Okay. Any other problems besides the 4 respiratory problem and the liver failure, that you are 5 aware of? 6 A There have been cases of chloracne develop in 7 people who were exposed to inhalation of PCBs. 8 Q That's a systemic effect? 9 A Yes. 10 Q Anything else besides the respiratory, the 11 liver, and the chloracne? 12 A No. I don't believe we made any assumptions, 13 anything further from that. 14 Q What about very substantial skin contact? What 15 did the Medical Department conclude the results of very 16 substantial skin contact might be? 17 A ^ Again, now, what do you mean by "very 18 substantial"? You and I may not be -- be talking about 19 the same levels. 20 Q Okay. Getting it on the skin in direct contact 21 with the skin on a daily basis. 22 A It could be -- could -- nothing to happen to 23 you. 24 Q Well, what else could happen? 25 A If you NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021961 115 1 "Q~ ' ' What are the possible consequences? 2 A If you got enough of it over -- and left it on 3 a large enough portion of your skin, if you had clothes 4 soaked in it and left it on, you may develop absorption 5 of the material and cause -- cause chi ora cne. 6 Q Anything else that can be caused from skin 7 contact besides chloracne? 8 A That is the only thing that I have seen happen. 9 I do not know whether or not you would get systemic 10 injury -- whether you would get enough absorption. 11 Now, we have to talk about which PCB we're 12 talking about. 13 If you're talking about one of the higher 14 levels where it's less easily absorbed through the skin, 15 or one of the higher-chlorinated ones where it's more 16 viscous -- and some of them are solids -- that's -- the 17 dust ofthat would not cause any problems. 18 But I would think that in the absence of 1 9 chloracne, you would not ex- -- there would not be any 20 other ill effects. 21 Q Well, let's assume that the effect is 22 sufficient or there's enough skin absorption to get 23 chloracne. What else did the Medical Department believe 24 might result in humans besides chloracne from skin 25 contact, if anything? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021962 116 1 ' We didn't know. We didn't conclude anything, 2 because we had they ever had a doseage of individuals or 3 heard about a dosage of individuals that gave them 4 anything except chloracne. 5 So I don't know what would happen if the person 6 took a bath in the material every day. 7 Q Did you take into consideration animal work to 8 determine what the effect of repeated skin contact would 9 be ? 10 A Yes, but animal skin and human skin is entirely 11 diff erent. 12 Q My question is whether or not from the animal 13 work that was done with regard to skin contact, you 14 concluded whether there might be any systemic effects 15 other than chloracne. 16 A Well, I'd have to look over the animal reports. 17 I can't.-answer that off the top of my head. 18 Q You can't recall any, as you sit here today? 19 A Can't recall anywhat? 20 Q Any reports or any conclusions you reached 21 about problems from skin contact that might be assumed 22 in humans, other than chloracne, as you sit here today. 23 Is that correct? 24 A That is correct. 25 Q Okay. NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021963 117 1 -- ~ ' Were you consulted about lawsuits filed against 2 Monsanto in which claims were made of adverse effects on 3 human health resulting from contacts with PCBs? 4 A This is one. 5 Q No, I understand. I'm talking about back when 6 you were a full-time employee of Monsanto. Did that - 7 let me -- let me rephrase my question. I think the word 8 "consulted" is confusing to you. 9 During the time that you were employed by 10 Monsanto as Medical Director, did anyone bring to your 11 attention any lawsuits in which someone was claiming 12 that they were injured as a result of contact with PCBs? 13 A I don't recall any. 14 Q Okay. 15 . MR. LACEY: Let's go off the record 16 for just a second. 17 / 18 (Discussion off the record) 19 20 , THE VIDEOTECHNICIAN: We're back on 21 the record. The time is 11:45 a.m. 22 BY MR. LACEY: 23 Q Dr. Kelly, at the time we began your deposition 24 several days ago, we went over the fact that you were 25 appearing as a witness designated to testify on behalf NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021964 118 1 of the' company as to certain matters. Do you recall 2 that? 3 A Yes, we went over it. 4 Q And at the time of that deposition, you were 5 not aware or had not been aware for a long period of 6 time that you had been so designated before we started 7 your deposition. Correct? 8 A I don't know if that's accurate or not. I did 9 not know what -- what the parameters of my appearance 10 would include. 11 Q Yes. And with regard to that, there were 12 certain matters about which you indicated it would be 13 necessary for you to review information before you could 14 give testimony. In particular, one of those matters had 15 to do with the budgeting of toxicological studies. Do 16 you recall that? 17 A , Well, I don't believe that there was -- unless 18 you wanted me to find the exact dollars, I think I told 19 you that the Medical Department had a certain amount of 20 money that they used for toxicological matters at their 21 own discretion; and any larger amounts, as far as 22 "larger" being $20,000 and up, was to -- charged back to 23 the individual sponsoring department. 24 Q And I believe you told me in that regard that 25 you could not testify as to what the budgets were with NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021965 119 1 regard to the testing of PCB materials without reviewing 2 certain records. Is that correct? 3 A Yes. I -- well, I didn't even know if those 4 records were still extant. 5 Q Have you since that time of -- of the beginning 6 of your deposition made an effort to determine what the 7 budgeting was and how much money was spent by Monsanto 8 on toxicological testing -- 9 A No, sir. 10 Q -- of PCB s ? 11 A No, sir, I haven't. 12 Q You made no effort after your - 13 A No effort; no. 14 Q None. Okay. Did you ask anybody to assist you 15 in finding out that information so you'd be able to 16 testify about that here - 17 A ' No, sir. 18 Q -- in the completion of your deposition? 19 A No, sir, I didn't. 20 Q You weren't aware of the fact from my questions 21 that I was interested in finding out about that budget 22 inf ormation? 23 MR. CRAWFORD; Well, David, it's up 24 to you to get the -- the -- the 25 information that you want and ask him NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021966 120 1 about: it. He doesn ' t hav e to go ou t and 2 resea r ch the -- the __ th e pro bl em f or 3 you 4 MR. LACEY: I see . 5 MR. CRAWFORD: -- or the area. 6 MR. CRAWFORD: Well, he' s the 7 cor po'rate representative, and I -- 8 MR. CRAWFORD: Well, you never asked 9 US you never ask ed us to go get that 10 St uf f and have him ready on it , and -- and 11 it's not -12 MR. LACEY: I see . 13 MR. CRAWFORD: -- his obligation to 14 do that. 15 MR. LACEY: I see. 16 MR. CRAWFORD: That's your obligation 17 to get the documents and ask him - 18 MR. LACEY: I see. 19 MR. CRAWFORD: -- about it. 20 MR. LACEY: Well, you haven't 21 provided me with the documents on the 22 budgeting, Walter. 23 MR. CRAWFORD: Well, you never asked 24 me for the documents on the budgeting. 25 MR. LACEY: Well, I guess we'll take NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021967 121 1 ' that up with the Court. 2 BY MR. LACEY; 3 Q The period of time that you were Medical 4 Director, were you responsible for the decision on how 5 much money to spend in hiring professional staff for the 6 Medical Department? 7 A Well, I always had to get my budget approved by 8 someone higher up; yes. 9 Q But did you make the recommendation on who 10 ought to be hired in the Medical Department? 11 A Yes. 12 Q Were you ever refused by Monsanto the 13 opportunity to hire additional professional staff that 14 you requested for the Medical Department? 15 A .No, sir, not that I can recall. 16 Q Did you ever request that Monsanto hire an 17 epidemiologist while you were Medical Director of 18 Monsanto ? 19 A No, sir. 20 Q And none was hired for you, was one? 21 A No, sir. 22 Q So all of the information that you relied on 23 with regard to the absence of any complaints or problems 24 in your own plants, or anything you heard from the 25 plants of others, was not reviewed by an epidemiologist NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21968 122 1 before' that information was published by Monsanto. Is 2 that correct? 3 MR. CRAWFORD: Object to the form of 4 the question. It assumes something that 5 you haven't established. 6 A We had no epidemic- -- epidemiologist. I know 7 of no epidemiologist that reviewed the material until - 8 and whether he reviewed the material after -- when an 9 epidemiologist came on board or after I left, I don't 10 know. 11 BY MR. LACEY: 12 Q So when you would say to others that in 40 13 years or 30 years, or whatever, of use there had been no 14 problems, that was not based on an epidemiologist's 15 review. Correct? 16 MR. CRAWFORD: Object to the form of 17 - the question. 18 A It was not based on an epidemiological review, 19 but it was based on a review of the literature; it was 20 based on communication with the users; it was based on 21 current medical thinking, industrial medical thinking of 22 those days. . 23 BY MR. LACEY: 24 Q Well, the discipline of epidemiology existed 25 for a number of years prior to the time you retired as NELL MC CALLUM & ASSOCIATES, INC, HARTOLDMON0021969 123 1 Me df-cal Director of Monsanto, did it not? 2 A Yes, it did. But the amount of epidemiologists 3 in industry were probably one to two, at the most. 4 Q And it would have been possible for you to hire 5 an epidemiologist to conduct such a review, would it 6 not ? 7 A As I said earlier, anything is possible. Yes, 8 it's possible. 9 Q Well, I mean, there were epidemiologists who 10 were in practice who you could have retained to assist 11 you in that regard? 12 A I could have. 13 Q You did not choose to recommend that? 14 A It was not, to my opinion, needed at that 15 particular time. 16 Q And prior to the work with Industrial Bio-Test, 17 you undertook -- undertook no long-term chronic testing 18 of Monsanto's PCB materials. Is that correct? 19 A No, it isn't correct; because we did some what 20 was considered long-term with the Kettering group back 21 in the 50's. 22 Q What was the long term youdid? 23 A Well, it was -24 Q How much? 25 A It was 90 days at that time. But in the 50's, NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021970 124 1 that was considered long-term. 2 Q I see. The studies you undertook with IBT were 3 two-year and in some cases generational studies, were 4 they not? 5 A That's correct. But there -- you have to 6 recognize the fact that in toxicity you have sort of a 7 moving target, and it is always increasing in duration 8 and -- and widening of scope of the various tests. 9 Q Well, there were people who were doing 10 two-year-type studies back in the 50's on chemicals, 11 were there not? 12 A They might have been doing them on food 13 chemicals. I do not recall whether they were doing them 14 on industrial chemicals that were not intended for use 15 in food.. 16 Q In any event, you didn't have any such 17 long-term tests done on your PCB materials in the 18 1950's, or even up until 196 8? 19 A We -- we had what we considered long-term 20 enough to give us data that we needed for the safe 21 handling of PCBs by our own people and by our customers. 22 Q I see. 23 In taking into account whether or not the 24 experiences of Monsanto employees with regard to PCBs 25 showed that human exposure did not cause problems, did NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021971 125 1 you~~take into account what protective garments were 2 provided to Monsanto employees? 3 MR. CRAWFORD; Object to the form. 4 A Yes. We -- we knew that they were available. 5 Whether they wore them all the time, I can't be sure. 6 BY MR. LACEY; 7 Q Well, I guess my question is; If all of your 8 employees wore all of the protective clothing all the 9 time, then they never would have contacted any PCBs. 10 Correct? 11 A Well, that is an idealistic situation that 12 rarely occurs in industry, that 13 Q Well -- 14 A -- that they wear all the protective clothing 15 all the time. 16 Q Okay. If your employees had worn all the 17 protective clothing that they were supposed to wear, 1 8 they wouldn't havecontacted the PCBs, would they? 19 A Yes, they could, by inhalation. 20 Q I see. But they certainly would not have had 21 any skin contact, would they? 22 A If they wore gloves all the time and if they 23 wore aprons all the time, no. 24 But that is a situation that you never see in 25 industry. You see people with their gloves in their NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021972 126 1 pocket's more than you see them on their hands. 2 Q Let me -- let me ask my question, though: If 3 your people had worn their protective clothing all the 4 time, they never would have had any skin contact with 5 PCBs, would they? 6 MR. CRAWFORD: Well, I obj ect to the 7 f orm of the question. You haven't 8 established what conditions, what 9 protective equipment. It's -- it's an 10 impossible question to answer. 11 A Well, it -- 12 MR. LACEY: No, it's not impossible 13 to answer. 14 A Well, it isn't impossible to answer. 15 .But they were not in impervious suits, 16 remember. And there were sprays and leaks that could 17 contact, -- contact their clothing. 18 If they had gloves, obviously, they would 19 not -- and wore them all the time, they would not get 20 skin contact with their hands and wrists. 21 That does not mean that there could not be 22 leaks on their shoulders and coveralls and other methods 23 of skin contact. 24 BY MR. LACEY: 25 Q The point is: When you would report to others NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21973 127 1 that in 30 or 40 years of Monsanto's experience you'd 2 had no problems with PCBs, you really didn't know to 3 what extent your people had even come into contact with 4 PCB s, did you? 5 A Yes, we did. I mean, we have had air analysis 6 at times that we knew what they were -- were being 7 exposed to. We had -- had some practical understanding 8 of what industrial workers do, and we that knew that we 9 were not living in a perfect world where people wear 10 protective clothing all the time. 11 Q You assumed that your people didn't wear their 12 protective clothing all the time? 13 A I accepted as a fact that people do not wear 14 gloves all the time, eight hours a day, in a chemical 15 plant. . , 16 Q That -- that's just part of what the truth of a 17 chemical plant is? Is that what you're saying? 18 A Beg your pardon? 19 Q That's just part of the way a chemical plant 20 works? Is that what you're saying? 21 A Well, that's the way -- it's part of the way 22 workers work. 23 Q And it's not possible for the employer to do 24 anything about that? 25 A Certainly, it's possible for him to do so NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21974 128 1 something about it. 2 Q Well, did you assume that Monsanto did anything 3 to ensure that their people wore their protective gear? 4 A Certainly, they did their best to see that the 5 people wore their protective gear. But that didn't mean 6 that they had a hundred percent success. 7 Q I see. What was the success rate at Monsanto 8 in having workers wear their protective gear? 9 A That, I don't know. 10 Q Did you instruct that the operations people 11 were to make it a -- a matter of priority to ensure that 12 the workers wore their protective gear? 13 A We knew that the priority was high enough, 14 because the workers had no troubles. They had no 15 adverse ill effects from the manufacture of this 16 material. 17 Q , And that doesn't tell you what levels they were 18 exposed to or how often that they wore the protective 19 gear, I take it. 20 A As I say -- 21 Q That does not tell you how often they wore 22 their protective gear or what extent they were exposed 23 to. Is that correct? 24 MR. CRAWFORD: Well, David, he wasn't 25 down on the floor there every day watching NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021975 129 1 this, if that's what you're asking. 2 A If it's a simple "yes" or "no," the answer is 3 no, it doesn't; because I do not know when spills 4 occurred; I do not know what the people did when spills 5 occurred. So I -- I would have to answer no, it does 6 not tell me. 7 BY MR. LACEYs 8 Q Did you make an effort to ensure that your 9 operations people advised Monsanto employees working 10 with PCBs of the things that might happen to them if 11 they didn't make use of their protective equipment? 12 A Would you repeat that? 13 Q Yes. Did you advise your operations people to 14 instruct Monsanto employees of the types of hazards that 15 they mi ght encounter if they didn't wear thei r 16 protect iv e equipment ? 17 A In some cases. we di d. Some, we may no t have 18 done. 1 9 We -- we said that "You hav e to keep th is off 20 of you. n n You should" _ -- n If yo u do the" -- "If you 21 foilow these safety pre caut i ons-. you w ill ge t no ill ' 22 effect. II 23 We didn't say, "If you f ollow th ese saf ety 24 precautions , you won't get thi s, thi s, thi s, and this, 25 no. We sai d you would not ge t a ny ill ef f ect NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021976 130 1 ~~Q You didn' t -- 2 A We did not describe indetail the ill effects, 3 no. 4 Q You didn't tell them, I take it, then, for 5 example, that if they got enough of it, it might kill 6 them . 7 A No, because that was entirely out of the range 8 of probability at these plants. 9 Q You're talking about the Monsanto plants? 10 A That's correct. 11 Q And why was that entirely out of the range of 12 possibilities? 13 A Probabilities, I said. 14 Q Probabilities. 15 A Because we knew that we had precautions there 16 that would prevent it. We -- we knew that we had been 17 operating for years and years and years with not even 18 coming close to this type of an exposure. 19 Q And so you just assumed there wouldn't be any 20 problems in the future? 21 A Well, we assumed our present situation of 22 having no problems would continue. 23 Q Okay. 24 MR. LACEY: Mr. Benignus is supposed 25 to be here now, Walter? NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021977 131 1 MR. CRAW FORD : He'll be here for 2 lunch, yeah. 3 MR. LACEY: I'll pass the witness. 4 5 (Discussion off the record, and the 6 deposition was concluded at 12:00 noon) 7 8 9 10 11 12 13 14 15 ******* 16 17 18 19 20 21 22 23 24 25 NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21978 132 1 THE-SITATE OF..........................* 2k 3 COUNTY OF.............................. * 4 5 I, R. EMMET KELLY, M.D., hereby certify that 6 I have read the foregoing transcript of my testimony 7 given in the foregoing numbered and styled case, and 8 that same is true and correct to the best of my 9 knowledge and belief. 10 I further certify that any and all 11 corrections have been made on a separate page and 12 attached hereto. 13 14 19 87 . 15 SIGNED on this the day of f 16 R. EMMET KELLY, M.D. 17 18 SWORN TO AND SUBSCRIBED BEFORE ME on this 19 the - - - - day of - ~ ~ ~ ~ . 1987 . 20 21 22 Notary Public 23 24 25 NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMONOQ21979 133 1 THE'-.STATE OF TEXAS * 2 COUNTY OF HARRIS * 3 4 I , LINDA C. BAKER , a Cert if ied Shor than d 5 Repor ter, her eby cert ify that the for egoing te stimo ny 6 was gliven bef or e me af ter the Witness had been firs t 7 duly sworn. 8 I further cer tify that I prepar ed this 9 tr ans cript an d that the f oreg oing 132 pages constit ute a 10 compl ete and correct copy of the tran script of the 11 proceedings. and that the ori ginal is being given t o the 12 at tor ney taki ng same. to be f iled by him if necessa ry. 13 I further cer tify that I am nei ther att or ney 14 for, related to, nor empl oy ed by any of the parties to 15 the 1 awsuit i n which this deposition was ta ken; fur ther , 16 I am neither related to nor employed by any attor ne y of 17 recor d in thi s cause, nor do I have a f inan cial int er e st s 1 8 in th e matter 1 9 GIVEN UNDER MY HAND AND SEAL OF OFFICE in 20 Houston, Texas, on this the. .day of June, 1987 . 21 22 23 Certification Number: 505 Date of Expiration: December 31, 1988 24 Address: 2900 Smith Street, Suite 104 Houston, Texas 77006 25 Phone: 713/523-3767 NELL MC CALLUM & ASSOCIATES, INC. HARTOLDMON0021980